American Federation of Government Employees, Local 948 and U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, Boston, Massachusetts
[ v55 p582 ]
55 FLRA No. 100
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 948
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS COMPENSATION
PROGRAMS, BOSTON, MASSACHUSETTS
DECISION AND ORDER ON
June 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains five proposals. [n2]
For the reasons fully explained below, we find that Proposals 2 and 5 are within the duty to bargain; and that Proposals 1 and 6 are outside the duty to bargain. We dismiss without prejudice the petition for review as it pertains to Proposal 4 because the Agency has not asserted that the proposal is inconsistent with law, rule, or regulation.
II. Background and Preliminary Issues
Following an arbitrator's finding that the four GS-11 Longshore Workers Compensation Claims Examiners (LSCE) in the Agency's Boston office perform the same work as the two GS-12 LSCEs in the same office, the Agency revised position descriptions for GS-12s. [n3] After the Agency provided a copy of the revised position descriptions to the Union, the Union submitted these proposals to the Agency.
At the outset, we address two preliminary issues. First, the proposals in the Union's Petition for Review differ from the proposals set forth in the Union's Response. The Agency declared the latter proposals non-negotiable and addressed these in its Statement of Position. Accordingly, we analyze the proposals in the Union's Response, rather than those in the Petition for Review, as the ones before the Authority for decision.
Second, the Agency has not asserted that Proposal 4 is outside the duty to bargain; the Agency expressly states that it does not "address" Proposal 4 in its statement of position. Statement of Position at 2 n.2. Under section 7117 of the Statute, and section 2424.1 of the Authority's Regulations, [n4] the Authority will consider a petition for review of a negotiability issue only where the parties dispute whether a proposal is inconsistent with law, rule, or regulation. As the Agency has not alleged that Proposal 4 is inconsistent with law, rule, or regulation, the petition for review with respect to this proposal does not meet the conditions governing review of negotiability issues. Accordingly, we dismiss the petition as it relates to Proposal 4, without prejudice to the Union's right to file an appeal if the conditions governing review are met and the Union chooses to file such an appeal. See, e.g., Professional Airways Systems Specialist, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 53 FLRA 1246, 1249 (1998). [ v55 p583 ]
III. Proposal 1
There will be six GS-12 Longshore Workers Compensation Claims Examiner Positions (GS-991-12) in the Boston District Office of Workers' Compensation Programs. These positions will be filled no later than 12/31/97.
A. Positions of the Parties
The Agency makes the same arguments as to Proposals 1, 2, 5, and 6 without differentiating among the proposals. In particular, the Agency asserts that the proposals affect management's rights. The Agency, stating only that the proposals "address either classification matters or protected management's rights[,]" does not specify which management rights are affected by any of the proposals. Statement of Position at 2. Additionally, the Agency contends that each of these four proposals exceed the scope of impact and implementation bargaining, and that they do not "constitute appropriate arrangements to any reasonably foreseeable adverse impact of more than a de minimus [sic] nature[.]" Id. In support of its claim that the proposals concern classification matters, the Agency cites March Air Force Base, Riverside, California and American Federation of Government Employees, AFL-CIO, Local 1953, 13 FLRA 255, 258 (1983) (March Air Force Base).
The Agency also asserts, without elaboration, that Proposals 1 and 2 do not concern section 7106(b)(1) matters, and that even if they do concern such matters, it has no duty to bargain over the proposals because, under the parties' collective bargaining agreement, "bargaining over [section] 7106(b)(1) matters will occur at the National level" of the Agency, not at the regional level. Id.
The Union asserts that Proposal 1 does not affect management's section 7106(a) rights for two reasons. First, the Union asserts that the Agency has "fully exercised its rights under section 7106(a)" by assigning GS-11 employees to perform GS-12 work. Response at 9. Second, the Union maintains that the Agency has not demonstrated that the proposal would "directly interfere" with a management right. Id. The Union also asserts that the proposal is an appropriate arrangement because:
it is narrowly drawn to provide . . . balm . . . only to those employees who have been adversely affected by the exercise of a management right, i.e., those employees who have been paid incorrectly as though they are performing GS-11 work but who, in fact and as [the] Arbitrator . . . determined have performed the GS-12 work that was assigned to them.
Id. at 11.
Additionally, the Union argues that the proposal concerns the numbers and grades of employees in an organizational subdivision within the meaning of section 7106(b)(1) of the Statute. The Union also asserts that the Agency has an obligation under the collective bargaining agreement to bargain over any proposals concerning section 7106(b)(1) matters.
With respect to the second sentence of the proposal, the Union asserts that although the proposal requires the Agency to take action before December 31, 1997, the proposal is not moot. In this respect, the Union asserts that: "While the sentence was not proposed in anticipation of retroactive application, it can be negotiated in that manner. Retroactive implementation is not inconsistent with the sentence, so the second sentence is not moot and is properly before the Authority for negotiability review." Id. at 12.
Finally, the Union requests that the Authority "sever any portions of an individual proposal that are negotiable from portions of that proposal that are determined to be non-negotiable if the negotiable portions are viable standing alone." Id. at 4.
B. Meaning of Proposal 1
The plain wording of Proposal 1 states that the Agency will staff the Boston District Office of Workers' Compensation Programs with six GS-991-12 Longshore Workers Compensation Claims Examiner positions. The Arbitrator found, and the parties do not dispute that, at times relevant to this case, there were four GS-11 and two GS-12 LSCEs. Based on the Union's Response, it is clear that the "six" positions referred to in Proposal 1 are intended to comprise the four existing GS-11 LSCEs and the two existing GS-12 LSCEs. In this respect, the Union, relying on the Arbitrator's findings, asserts that "[i]t is undisputed that" there are 6 LSCE employees in the Boston office performing GS-12 work, and that the proposal would not require the Agency to change the number of LSCE employees in the Boston office. Response at 9. Accordingly, we construe the proposal as requiring the Agency to reclassify the four GS-11 LSCEs as GS-12 employees. [ v55 p584 ]
C. Analysis and Conclusions
Section 7103(a)(14)(B) excludes policies, practices, and matters relating to the classification of any position from the definition of conditions of employment and, by extension, the duty to bargain. In construing that section, the Authority relies on the definitions of the terms "classification" and "position" that appear in 5 C.F.R. § 511.101. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 665, 667 (1996) (Corps of Engineers, San Francisco). Pursuant to those definitions, the term "classification" means: "the analysis and identification of a position and placing it in a class under the position-classification plan established by [the Office of Personnel Management (OPM)] under chapter 51 of title 5, United States Code; and the term "position" means: "the work, consisting of the duties and responsibilities, assigned by competent authority for performance by an employee." 5 C.F.R. § 511.101(c) and (e). Id. at 667-68.
The Authority has held consistently that a proposal that assigns a specific grade level to a specific existing position concerns a classification matter under section 7103(a)(14)(B) of the Statute. See, e.g., American Federation of Government Employees, Local 1978 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 51 FLRA 637, 641-45 (1995) (proposal to establish among existing employees a "leadman" position with a five percent increase in the employee's pay concerned classification); see also National Association of Government Employees Local R5-168 and U.S. Department of the Army, Fort Polk, Louisiana, 53 FLRA 1622, 1624-25 (1998) (Fort Polk). In Fort Polk, an agency audit determined that grades would be raised for some employees while the grades of other employees would be lowered and, in response, the Union proposed that the agency raise the grades of all the employees. The Authority found that, by identifying the series and grade into which specified positions would be placed, the proposal "relate[d] to the classification of those positions" and was outside the duty to bargain. Id. at 1625. See also March Air Force Base, 13 FLRA at 258 ("[I]t appears that Congress intended to remove from the scope of bargaining threshold determinations as to what duties and responsibilities will constitute a given position and the placement of that position in a class for purposes of personnel and pay administration.").
Proposal 1, as construed, would require the Agency to classify the four GS-11 LSCEs as a specified series (991) and grade (12). Accordingly, consistent with the precedent cited above, we find that the proposal as construed relates to the classification of those positions. International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 339 (1995). Because the proposal concerns classification, it is outside the duty to bargain without regard to management's rights. American Federation of Government Employees, Local 1978 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 51 FLRA 637, 644 n.10 (1995) ("Because we have found that [the proposal], in its entirety, does not concern `conditions of employment' within the meaning of section 7103(a)(14), we do not address the parties' arguments concerning section 7106."). Accordingly, we do not address the parties' arguments regarding management's rights. Id.
As noted above, the Union requests that the Authority sever any portions of proposals that are outside the duty to bargain. Response at 4. Generally, the Authority grants requests to sever where portions of the proposals can stand independently of the remainder of the proposals and such portions have been specifically addressed by the parties. See, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 898 n.1 (1997). In this case, however, the two sentences in the proposal are inextricably intertwined. In this regard, the reference to "these positions" in the second sentence clearly refers to the "six GS-12 . . . [p]ositions" in the first sentence, which we find concerns a classification matter. The second sentence is dependent on the first for its meaning. Because the second sentence would be meaningless if severed from the first sentence, we find no basis to separately consider the disputed sentences in Proposal 1.
In sum, we find that Proposal 1 does not concern a condition of employment under section 7103(a)(14)(B) of the Statute and, thus, is outside the duty to bargain because it concerns a classification matter. [n5] [ v55 p585 ]
IV. Proposal 2
All GS-11 and GS-12 Longshore Workers Compensation Claims Examiners in the Boston OWCP [Office of Workers Compensation Programs] (hereinafter referred to as LSCEs) shall share equally, on a rotating basis, in performing all off site work.
A. Positions of the Parties
The Agency makes the same management rights and classification arguments set forth supra, Part III.A.1.
The Union argues that the proposal is a procedure that is consistent with Authority precedent holding that proposals requiring the rotation of work do not affect management's right to assign work, provided the employer maintains the right to determine whether particular employees are qualified to perform the work. Response at 13 (citing National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738 (1992) (Red River Army Depot). The Union asserts that the proposal would not require the Agency to rotate off-site work among unqualified employees. In this regard, according to the Union, the Arbitrator's conclusion that LSCE GS-11s were performing the same work as GS-12s indicates that the Agency believes the GS-11s are as qualified as the GS-12s to perform off-site work.
B. Meaning of Proposal 2
The plain wording of Proposal 2 states that "all" GS-11 and GS-12 LSCEs will share equally in off-site rotations. The proposal is silent regarding the qualifications of GS-11 and GS-12 LSCEs subject to this proposal. The Union states, and the Agency does not dispute, that the proposal "would not require the Agency to rotate off site work among employees it determines were not qualified to perform the work[.]" Union Response at 13. Consequently, we construe the proposal as requiring management to rotate off-site work equally among all qualified GS-11 and GS-12 employees. [n6]
C. Analysis and Conclusion
The Authority explained in Red River Army Depot, 44 FLRA at 741, that a proposal requiring the equitable distribution of work does not affect management's right to assign work if the proposal allows the Agency to determine who is qualified to participate in the rotation of the work. Proposal 2, as construed above to apply to "all qualified" GS-11 and GS-12 LSCEs, would require the Agency to rotate work only among qualified employees. Therefore, consistent with Red River Army Depot, the proposal does not affect management's right to assign work. There also is no basis in the record for concluding that the proposal concerns a classification matter. Unlike Proposal 1, this proposal does not involve identifying a position and placing it in a particular class. Accordingly, Proposal 2 is within the duty to bargain.
V. Proposal 5
Management will define, in writing, what it describes as GS-12 "Complex Cases" in order that lower Graded LSCEs will know when they are performing what Management defines as higher graded work.
A. Positions of the Parties
The Agency makes the same management rights and classification arguments set forth supra, Part III.A.1.
The Union argues that the proposal is consistent with Authority precedent finding that proposals notifying employees of work rules are within the duty to bargain, as long as the proposals do not "require [the Agency to] provid[e] specific information that consti- [ v55 p586 ] tutes training on the content of the employee's work." Response at 14. According to the Union, Proposal 5 would require the Agency to define in general what constitutes a complex case, but it would not require the Agency to make determinations of whether particular cases were complex or to provide training.
B. Meaning of Proposal 5
Consistent with the plain wording of Proposal 5 and the Union's statement of intent, the proposal would require the Agency to define in writing what constitutes a "GS-12 'complex case.'"
C. Analysis and Conclusion
This proposal requires the Agency to define a "GS-12 complex case." The proposal does not prescribe any particular definition. There is no basis in the record for concluding that the proposal would require the Agency to do anything beyond providing a definition, of its choosing, of what constitutes a complex case, or would otherwise affect management's rights in any way. There also is no basis in the record for concluding that the proposal concerns a classification matter, as discussed above in connection with Proposal 1. Accordingly, we find that this proposal is within the duty to bargain.
VI. Proposal 6
When a GS-12 LSCE is unavailable, a GS-11 LSCE will act as the District Director when she is absent.
A. Positions of the Parties
The Agency makes the same management rights and classification arguments set forth supra, Part III.A.1.
The Union asserts that the proposal was "specifically negotiated to correct violations found by [the] Arbitrator" and thus, that it is an "appropriate arrangement for the employees who have been paid contrary" to the collective bargaining agreement. Response at 15. The Union argues that GS-11 and GS-12 employees occasionally fill in for the District Director, and that the proposal is intended to minimize the inequity in the employees' pay by ensuring that GS-12 employees will be required to perform the higher-graded duties of the District Director as long as GS-12 employees are available to perform them.
B. Meaning of Proposal 6
Consistent with the plain wording of Proposal 6 and the Union's statement of intent, the proposal would require the Agency to assign District Director duties to GS-12s when the District Director is out of the office. The proposal further requires that the Agency assign District Director duties to GS-11s when no GS-12s are available.
C. Analysis and Conclusions
Proposal 6 would require the Agency to assign District Director duties to one of the GS-12 LSCEs in the Boston office, and if none is available, then to a GS-11 LSCE. Proposals requiring management to assign particular duties to particular positions affect management's right to assign work under section 7106(a)(2)(B) of the Statute. See, e.g., National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 260 (1990). Thus, we find that this proposal affects management's right to assign work.
The Union asserts that this proposal is an "appropriate arrangement for employees who have been paid contrary" to the parties' collective bargaining agreement. Union Response at 15. In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG).
Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992) (Minerals Management). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management rights, how those effects are adverse, and how the proposal is intended to ameliorate the adverse effects. See KANG, 21 FLRA at 31.
The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id. As the Authority has explained, relying on Minerals Management, 969 F.2d at 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management right. American Federation of Government Employees, [ v55 p587 ] National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996) (Border Patrol Council). If the proposal is determined to be an arrangement for employees adversely affected by the exercise of management's rights, then the Authority determines whether it is "appropriate" by examining the extent to which it interferes with the relevant management right.
The Union asserts, in effect, that the proposal would ameliorate the inequity that GS-11s and GS-12s were previously paid differently for performing the same work by regulating assignments to acting District Director duties in the future. However, the record does not demonstrate how the past harm alleged by the Union would be ameliorated by the proposed restrictions on these future assignments. The record also does not demonstrate how the GS-11 employees would be harmed by the future assignments to acting District Director duties. The dissent states, in this regard, that there is a "inherent pay inequity" in such assignments and, further, that GS-11 employees who are assigned acting District Director duties would not be compensated for such assignments. Member Wasserman Dissent at 23. However, there is no assertion by the Union, or any basis in the record, for finding that employees are harmed, financially or otherwise, by assignment to acting District Director duties. Thus, while we agree with the dissent that a proposal may properly forestall future adverse effects, we find the record here insufficient to find such effects.
Consistent with the foregoing, we are unable to find on the basis of the record before us that Proposal 6 ameliorates an adverse effect flowing from the exercise of a management right. As a result, we find that the proposal is outside the duty to bargain because it is not an appropriate arrangement.
The petition for review, as it pertains to Proposal 4 is dismissed without prejudice to the Union's right to file a negotiability appeal if the Agency alleges that the proposal is outside the duty to bargain and the other conditions governing review are satisfied. The petition for review, as it pertains to Proposals 1 and 6 is dismissed because the proposals are outside the Agency's duty to bargain. Proposals 2 and 5 are within the Agency's duty to bargain. Accordingly, the Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposals 2 and 5. [n7]
Separate Opinion of Chair Phyllis N. Segal:
I write separately to further explain my views on the meaning of Proposal 2. There is no disagreement between the Majority and Member Cabaniss about the law to be applied in reviewing the proposal. Instead, and stated simply, the sole disagreement is whether the proposal means what the Union says it means. In this regard, the proposal explicitly requires the Agency to make assignments to "all" employees; the Union explains that the assignments must be made to "all qualified" employees -- thereby modifying the term "all". As is evident from the analysis in the Majority Opinion at 10, this distinction determines the outcome under Authority precedent: the proposal is within the duty to bargain only if it is limited to "qualified" employees.
The Union's statement of the meaning of Proposal 2 effectively inserts the term "qualified" into the proposal, which is otherwise silent on any conditions modifying the term "all." Authority precedent provides that a union statement clarifying a matter about which a proposal is silent will be adopted provided the statement comports with the wording of the proposal. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). This is consistent with long-standing precedent establishing that the Authority typically defers to a union in interpreting a proposal the union has drafted. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 32 FLRA 544, 547 (1988). Cf. National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 574 (1983) ("the Authority has consistently held that it will not base a negotiability decision on a Union's statement of intent which is clearly inconsistent with the language of the disputed proposal").
I believe this approach makes good sense, for the reasons explained in my dissenting opinion in Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee, 55 FLRA No. 98, slip op. at 17 (1999) (Tennessee National Guard). In particular, only the drafter of a proposal can know what was intended by the proposal. Applying this approach leads me to construe Proposal 2, consistent with the Union's clear explanation of its intention, to include the term "qualified," even though the language drafted by the Union is silent on this point. In contrast, in Tennessee [ v55 p588 ] National Guard, I explained why I would not apply this approach in cases concerning a contract provision -- which by definition has not only been proposed by one party, but negotiated and agreed upon by both parties. Because of this distinction, I did not construe the challenged provision in Tennessee National Guard as if it included the unstated term "revocable."
The principle that guided my contrasting construction of the contract language in these two cases is the distinction between the approach appropriate in cases concerning already-bargained contract provisions, on the one hand, and contract proposals, on the other. Applying this principle led me to reject, in the absence of fact-finding by the Authority, a construction that added a dispositive modification to the contract provision in Tennessee National Guard, while agreeing to such a construction of Proposal 2 here. In Tennessee National Guard, the addition of the modification by the Authority resulted in imposing a contract provision in the collective bargaining agreement that may depart from what the parties bargained. In contrast, in the case decided today, the consequence is simply that the parties will have an opportunity to bargain over the proposal; in doing so, the proposal will be subject to clarification or modification, as the parties see fit.
In this case, the dissent rejects inserting a dispositive unstated term -- "qualified" -- in the Union's contract proposal. Member Cabaniss Dissent at 18. In Tennessee National Guard, my dissenting colleague, joining the Majority there, found that the disputed contract provision included another dispositive unstated term -- "revocable" -- without any fact-finding to ascertain what the parties who negotiated the provision intended it to mean. I am unable to discern the principle that leads to this differing construction of contract proposals and contract provisions.
Member Cabaniss, dissenting in part:
I join the majority opinion with respect to Proposals 1, 4, 5 and 6, but I respectfully dissent as to Proposal 2. In order to find this proposal negotiable, my colleagues have had to attribute to it a meaning wholly inconsistent with its plain wording, and even inconsistent with the meaning attributed to it by the Union.
Under our traditional test, if a union's explanation of a proposal "is consistent with the proposal's plain wording," we adopt that explanation for the purpose of construing what the proposal means. International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 55 FLRA 25, 26 (1998). In this case, I cannot agree with the Majority's conclusion that the Union's explanation meets that standard, or that it "comports with" the wording of the proposal.
As noted by the majority, Proposal 2 plainly states that "all" GS-11 and GS-12 LSCEs shall share equally in performing all off site work. Moreover, the Union does not deny that under the proposal, the Agency would be required to distribute off site work equally to all six of the current LSCEs. Instead, the Union argues that since the arbitrator found that all six LSCEs had been assigned off site work, the Agency necessarily must have determined that all six LCSEs are qualified to perform such work. From this, the Union (and the majority) bootstraps to reach the conclusion that "all" means "all qualified" and therefore, management retains the discretion required by our case law. As a matter of logic, this conclusion simply does not follow. Rather, the proposal leaves the Agency absolutely no discretion with respect to the assignment of off site work, and therefore runs afoul of our case law, including Red River Army Depot, 44 FLRA at 741.
I do not believe that straining to find proposals negotiable by adopting union explanations of meaning that are barely supported or, as here, unsupported by proposal language serves the interests of positive labor-management relations. Rather, such practice encourages gamesmanship by the parties. If the instant proposal becomes an agreement, the likely result is an arbitration award that we will have to find deficient when the arbitrator interprets the language to mean exactly what it says.
Since Proposal 2 impermissibly interferes with management's right to assign work, I would find it outside the duty to bargain. [ v55 p589 ]
Member Wasserman, dissenting in part:
I agree with the majority opinion regarding Proposals 1, 2, 4 and 5. However, contrary to my colleagues, I would find that Proposal 6 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. I, therefore, write separately to explain my views.
As noted by the majority above, in order to determine whether a proposal is within the duty to bargain under section 7106(b)(3), we first examine whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. KANG, 21 FLRA at 31-33. In addition to ameliorating the adverse effects of the exercise of management right(s), the purported arrangement must be tailored to compensate or benefit employees suffering those adverse effects. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994). If the proposal is determined to be such an arrangement, we then examine whether it is appropriate, or whether it is inappropriate because it excessively interferes with the exercise of a management right. KANG, 21 FLRA at 31-33.
It is undisputed that prior to the negotiability appeal filed in this case, an arbitrator found that the Agency violated a provision of the parties' National bargaining agreement which requires that employees receive equal pay for equal work. More specifically, the arbitrator found that the Agency violated the parties' agreement by paying GS-12 employees more than GS-11 employees for performing the same work. The Agency did not challenge the arbitrator's award. See Union's Opposition, Attachment 1.
In the appeal at issue here, the Union states that Proposal 6 is designed to correct the adverse effects flowing from the Agency's assignment of work in violation of the parties' bargaining agreement, as described above. The Union explains, citing the arbitration award, that the Agency assigns both GS-11 and GS-12 employees to perform the District Director's duties in the District Director's absence. According to the Union, Proposal 6 is intended to minimize the pay inequity inherent in such assignments by ensuring that GS-11 employees will only be required to perform the District Director's duties when there are no GS-12 employees available.
The Authority has consistently found proposals and provisions qualifying the assignment of certain duties, although affecting management's right to assign work, to constitute negotiable appropriate arrangements. For example, in American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387-89 (1991) (Army Tank-Automotive), the Authority found negotiable a provision requiring that, insofar as possible, the agency would normally avoid the assignment of incidental duties that were inappropriate to the employee's position and qualifications. In so finding, the Authority initially found that "by seeking to restrict the assignment of duties that employees do not normally perform, the provision attempt[ed] to limit the situations where employees [lacked] the necessary skills or knowledge to perform assignments or where they may have [had] to neglect their regular work in order to perform unfamiliar tasks." Id. at 1388. The Authority, therefore, found that the provision constituted an "arrangement."
The Authority also found that the arrangement was "appropriate" because it did not excessively interfere with management's exercise of its rights. In this connection, the Authority found that the provision provided substantial benefits to employees because it offered "some degree of assurance" that employees would not be expected to perform duties with which they may not have been familiar or for which they may have not been provided adequate training. Id. On the other hand, the Authority found that the agency's ability to assign work would not be seriously impaired because the restriction imposed by the provision was limited and would not prohibit the work assignments in all instances. In balancing the competing interests, the Authority concluded that "in view of the substantial benefits afforded to employees and because the provision preserved the [a]gency's ability to assign incidental duties", the provision constituted an appropriate arrangement under section 7106(b)(3). Id. at 1389. Accordingly, the Authority determined that the provision was negotiable. See also Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153, 164-65 (1991) (finding that proposals requiring management to make "every reasonable effort" to obtain volunteers and funding to hire lunchroom monitors and to assign the task of lunchroom monitoring to aides instead of teachers were negotiable appropriate arrangements under section 7106(b)(3)).
Consistent with Army Tank-Automotive, I would find that Proposal 6 is an appropriate arrangement within the meaning of section 7106(b)(3) and is within the duty to bargain. In this regard, Proposal 6 is clearly intended to ameliorate the adverse effects of the exercise of management's rights, in this case, the right to [ v55 p590 ] assign the District Director's duties to GS-11 or GS-12 employees when the District Director is away. In my view, the proposal would benefit GS-11 employees by seeking to limit the assignment of the District Director's duties, for which they are not compensated, to those occasions where there are no GS-12 employees available to step in. The proposal also is tailored to benefit only those GS-11 employees who are adversely effected by the exercise of management's right to assign such responsibilities without providing additional compensation. Accordingly, I would find that the proposal is an arrangement.
I would also find that the proposal is appropriate. GS-11 employees would benefit by being provided some degree of protection against the imposition of the District Director's duties without being paid the same compensation that is paid to GS-12 employees who perform the same responsibilities. Moreover, the constraints that would be imposed on the exercise of management's right to make such assignments are slight. In my view, the Agency's interest in being able to assign work in a manner that would disproportionately burden its GS-11 employees with regard to their compensation is negligible. In addition, the restriction imposed on the Agency's right to make such assignments is limited and would not preclude the Agency from assigning the District Director's duties to GS-11 employees if there are no GS-12s available. On balance, I conclude that the benefits afforded GS-11 employees under the proposal outweigh the intrusion on management's right to assign work. Therefore, I conclude that Proposal 6 constitutes an appropriate arrangement under section 7106(b)(3).
In reaching this conclusion, I disagree with the majority's view of the record. The Union contends that the proposal would "minimize the instances where a GS-11, already paid disproportionately...would be even more disparately treated by being required to perform the higher-level District Director's work when a GS-12 was available to perform it." Union's Statement at 15-16. From the context, it is clear to me that the Union is referring to the future "exploitation" of the GS-11 employees. Id. at 16. There is an inherent pay inequity present when an employee performs work for which he is not paid at an appropriate level, and the proposal would lessen the negative effect of that inequity.
The Authority has held that there "is no statutory basis for the . . . conclusion . . . that a provision which seeks to eliminate possible adverse effects is not appropriate for consideration as an appropriate arrangement." National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 840 (1990) (rejecting the view that proposals that were intended to eliminate the possibility of an adverse effect did not constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3)). See also National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 686-87 (1991). Rather, the Authority has concluded that determinations regarding the negotiability of all proposed arrangements must be made on a case-by-case basis. Contrary to my colleagues, I conclude that the proposal is designed to address the harm that flows from being required to perform higher graded work without commensurate compensation.
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Footnote # 2 for 55 FLRA No. 100
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Footnote # 4 for 55 FLRA No. 100
The Authority's regulations governing negotiability appeals were revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
Footnote # 5 for 55 FLRA No. 100
In agreeing with the result, Member Wasserman notes that there is no record evidence that the Boston District Office was staffed with six positions at the GS-12 level and, as a result, that there is no basis on which to conclude that the proposal is designed to place employees in previously classified positions. If there were such evidence, he would conclude that the proposal does not involve a classification matter.
Footnote # 6 for 55 FLRA No. 100
Contrary to our dissenting colleague's suggestion, we do not base our construction of the proposal on a finding that all GS-11 employees are qualified to perform GS-12 work. In our view, the dissent also misreads the Union on this point. To be sure, the Union argues that "the Agency has determined all [GS-11 and -12 employees] are qualified to perform the off site work in question." Union Response at 13. However, just as clearly, the Union states, as noted above, that the Agency is free under the proposal to determine whether employees are qualified for the disputed work. Put simply, whether or not the premise of the Union's argument -- that all employees are qualified -- is correct, the Agency remains free under the proposal, as explained by the Union, to determine (or redetermine) qualifications. Indeed, the Agency makes absolutely no claim that the proposal would affects its right to determine qualifications. In these circumstances, no "straining" is required to read the proposal consistent with the Union's statement. Member Cabaniss Dissent at 18. We likewise discern no reason that our construction of the proposal should encourage "gamesmanship," as the dissent fears. Id. In this regard, if the parties so desire, they are fully capable in their bargaining over this proposal to clarify or otherwise modify the wording to make clearer its meaning.
Footnote # 7 for 55 FLRA No. 100