Association of Civilian Technicians, Evergreen Chapter and U.S. Department of Defense National Guard Bureau, Military Department, State of Washington, Camp Murray, Washington

[ v55 p591 ]

55 FLRA No. 101

ASSOCIATION OF CIVILIAN TECHNICIANS EVERGREEN CHAPTER
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MILITARY DEPARTMENT
STATE OF WASHINGTON
CAMP MURRAY, WASHINGTON
(Agency)

0-NG-2385

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

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 concerns two proposals relating to assessing production inspectors' qualifications to certify aircraft repairs.

      For the reasons that follow, we find that Proposals 1 and 2 are outside the duty to bargain. Accordingly, we dismiss the petition for review, pursuant to section 2424.10 of the Authority's Regulations. [n2] 

II.     Background

      The Agency implemented a program to increase the number of production inspectors qualified to certify repairs of certain aircraft maintenance conditions. Prior to the implementation of the Agency's program, certification of these repairs was performed by a small group of inspectors whom management considered to be qualified to perform this work based on their status as "top" performers and/or their experience. See Statement of Position at 2-3. The program implemented by the Agency included the following:

(a)      A book of consolidated questions and reference materials (but not answers) will be distributed to relevant work centers.
(b)     At least annually, production inspectors, assisted and instructed by immediate shop supervisors, will review and complete an open book questionnaire, utilizing the prepositioned book of consolidated questions (open book) and reference materials.

Union's Request for Agency's Written Allegation of Nonnegotiability, Attached to Petition for Review.

III.     Proposals

      Proposal 1:

. . . the agency rescind the . . . change in working conditions which the agency imposed in August 1996 . . . . 
. . . the agency restore the status quo ante - that is, the qualifications . . . and the methods and means of performing work that were applicable before the change imposed by management in August 1996.

      Proposal 2:

In the alternative, the union proposes that the August 1996 change in working conditions be modified to:
Consolidate questions and answers into a book, this book would then be distributed to all relevant workcenters, and once a year production inspectors would review [the book] and be signed off by their immediate supervisors [as having the knowledge stated in the book, upon demonstration satisfactory to the supervisors].

Petition for Review at 1-2 (emphasis and brackets in original).

IV.     Positions of the Parties

A.     Agency

      The Agency argues that Proposals 1 and 2 are outside the duty to bargain because they affect management's rights to assign work and to assign employees within the meaning of section 7106(a)(2) of the Statute. The Agency asserts that the rights to assign work and employees include the discretion to determine the quali- [ v55 p592 ] fications needed to perform the work of a position to assess whether a particular employee possesses those qualifications. According to the Agency, Proposals 1 and 2 restrict the qualifications that management can assess and, thereby, require management to assign certification of aircraft repairs to inspectors who are unqualified to perform that work. The Agency also argues that Proposals 1 and 2 affect the rights to assign work and employees by preventing management from establishing the appropriate evaluation for determining whether inspectors are knowledgeable about current regulations and procedures.

      In addition, the Agency claims that Proposals 1 and 2 affect management's right to select employees under section 7106(a)(2)(C). According to the Agency, the right to select includes the right to determine the qualifications, skills, and abilities needed to perform the work of the position as well as the right to determine whether applicants for the position possess such qualifications, skills and abilities. The Agency asserts that the proposals impermissibly restrict the qualifications that management can determine are necessary to perform the work and the appropriate evaluation for determining whether the employees meet these qualifications.

      The Agency maintains that the proposals do not concern the methods and means of performing work, within the meaning of section 7106(b)(1), because the proposals do not concern the way in which the Agency performs the work. The Agency further argues that, even if the proposals concern section 7106(b)(1) matters, they are not within the duty to bargain because the "dominant requirements, or effects of the proposals are actually to restrict management's discretion in the determination of qualifications . . . ." Statement of Position at 9.

B.     Union

      The Union argues that Proposals 1 and 2 concern matters that are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. The Union asserts that because the proposals concern the qualifications that production inspectors need to perform the certification work, the proposals concern "types" of employees, as well as the "methods" and "means" of performing work, under section 7106(b)(1). With respect to methods and means, the Union asserts, relying on Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985) (Panama Region), that the "particular reading, speaking, and writing that production inspectors do to acquire or to demonstrate knowledge" are methods and means of performing work. Union Response at 2. With particular regard to Proposal 2, the Union claims that the question-and-answer book would "be distributed to all the relevant workcenters," and that "at any[]time throughout the year the technician would have access to this book." Attachment to Union's Petition at 8. According to the Union, the Agency previously conceded that the proposals concern matters under section 7106(b)(1).

V.     Meaning of the Proposals

A.     Proposal 1

      It is undisputed that Proposal 1, as worded and interpreted by the Union, requires the Agency to rescind the certification program it implemented, and return to using the prior system for determining whether inspectors are qualified to certify aircraft repairs. As such, the proposal requires that management determine which inspectors are qualified to certify aircraft repairs, based on the inspectors' status as "top" performers and/or their experience. Statement of Position at 2-3.

B.     Proposal 2

      Proposal 2, as worded, requires that a book containing questions and answers relevant to inspectors' demonstration of knowledge necessary to certify aircraft repairs be developed and distributed to all relevant workcenters. The proposal also expressly requires that, on an annual basis, inspectors review the question-and-answer book and "be signed off by their immediate supervisors . . . ." According to the Union, Proposal 2 is an "alternative" that would modify the Agency's certification program. In addition, the Union explains that Proposal 2 requires inspectors to do more than merely read the questions and answers; Proposal 2 is intended to require inspectors to demonstrate to their supervisors' satisfaction that they know the required information.

      The Union's explanation of Proposal 2 comports with the proposal's plain wording. Consistent with that explanation, we find that the proposal would require the Agency to: (1) develop and distribute to workcenters, for use throughout the year, a question-and-answer book containing necessary information for certification of aircraft repairs; and (2) on an annual basis, determine whether inspectors are qualified to certify aircraft repairs based on inspectors' demonstration of knowledge of information in the book. [ v55 p593 ]

VI.     Analysis and Conclusions

      In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171 (1998) (HUD), the Authority clarified the sequence of analysis it will follow in resolving negotiability disputes where parties disagree over whether a proposal comes within the terms of section 7106(a) or section 7106(b). Essentially, under the HUD sequence, the Authority first resolves claims that would determine whether a proposal is within the duty to bargain, and then, if necessary, addresses claims that would determine whether a proposal is electively negotiable. See also American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228, 234 (1999) petition for review filed, No. 99-1160 (D.C. Cir. Apr. 26, 1999) (INS).

      In this case, the Union does not dispute the Agency's contentions that the proposals affect management's rights to assign work and assign employees under section 7106(a) of the Statute. The Union also does not claim that the proposals constitute a procedure or an appropriate arrangement within the meaning of section 7106(b)(2) or (b)(3), respectively. Consequently, we begin with the Union's claim that the proposals concern matters that are electively negotiable under section 7106(b)(1). We note, in this regard, the Union's argument that the Agency previously conceded that the proposals concern matters under section 7106(b)(1). There is no basis on which to conclude that the Agency is now precluded from arguing that the proposals do not concern matters under section 7106(b)(1). Accordingly, we analyze the Union's 7106(b)(1) arguments on the merits.

A.     Proposal 1 is outside the duty to bargain

1.     Proposal 1 does not concern the "methods" or "means" of performing work

      In determining whether a proposal concerns the methods or means of performing work under section 7106(b)(1), the Authority has construed "method" to refer to "the way in which an agency performs its work." INS, 55 FLRA at 236. The Authority has construed "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. The legislative history of the Statute indicates that the term "methods" was intended to mean "how" work is performed; the term "means" was intended to mean "with what." See Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, S.Rep. No. 95-969, at 768-69 (1978), reprinted in 1978 U.S.C.C.A.N. 2830, 2831; see also General Services Administration and American Federation of Government Employees, Council of GSA Locals, Council 236, 54 FLRA 1582, 1590 n.6 (1998) (discussing legislative history defining methods and means). [n3] 

      The Union does not assert that Proposal 1 would change how or with what the work is performed. The proposal would rescind the Agency's certification program and return to the prior system, under which management determined which inspectors were qualified to certify aircraft repairs based on their status as "top" performers and/or their experience. Agency's Response at 3. Unlike the disputed proposal in Panama Region, which concerned the textbooks that teachers would use in performing their teaching duties, Proposal 1 does not concern how or with what the inspectors perform their job of certifying aircraft repairs. See Panama Region, 19 FLRA at 814-17. Accordingly, this proposal does not concern the methods or means of performing work within the meaning of section 7106(b)(1).

2.     Proposal 1 does not concern "types" of employees relevant to staffing patterns

      The Union relies on National Association of Government employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 211, 216-17 (1990) (VAMC, Newington), to argue that Proposal 1 concerns "types" of employees because it relates to the Agency's right to determine the necessary qualifications for employees to perform work. However, in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1031 (1997) (VAMC, Lexington), the Authority reexamined its definition of "types," holding that the term means "distinguishable classes, kinds, groups or categories of employees or positions that are relevant to the establishment of staffing patterns." The Authority specifically stated that it would no longer follow VAMC, Newington. VAMC, Lexington, 52 FLRA at 1031 n.9. [ v55 p594 ]

      There is no argument, or other basis in the record on which to determine, that Proposal 1 concerns the Agency's staffing patterns. Accordingly, in this case, the necessary relationship between the claimed "type" and staffing patterns has not been established. As Proposal 1 does not concern staffing patterns, it does not concern "types" of employees under section 7106(b)(1) of the Statute.

      In sum, Proposal 1 does not concern either types of employees, as related to staffing patterns, or the methods and means of performing work. As the Union concedes that the proposal affects the Agency's rights to assign work and employees under section 7106(a) of the Statute, it is outside the duty to bargain.

B.     Proposal 2 is outside the duty to bargain

      As construed above, Proposal 2 would require the Agency to: (1) establish and distribute to workcenters, for use throughout the year, a question-and-answer book containing necessary information for certification of aircraft repairs; and (2) on an annual basis, determine whether inspectors are qualified to certify aircraft repairs based on inspectors' demonstration of knowledge of information in the book.

      The Agency argues that the "dominant requirements" of the proposal are to restrict the Agency's right to determine inspectors' qualifications. Statement of Position at 9. The Authority applies the "dominant requirement" test to resolve disputes involving proposals that impose two or more distinguishable but inseparable requirements. See American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 798-800 (1996).

      In this case, the two requirements in the proposal could exist independently of each other. In particular, the requirement that the Agency establish a question-and-answer book to serve as a guide for inspectors and the requirement that the book be used, in lieu of the Agency-proposed questionnaire, for annual certifications of inspectors are not dependent on each other for their viability. The two requirements obviously are related. Indeed, as the dissent points out, the entire proposal results from the Union's desire to modify the Agency's decision on how qualifications to certify repairs are made. However, the Union does not assert, and logic does not dictate, that the establishment of a question-and-answer book for on-the-job guidance, and the use of that book as the method for establishing qualifications, are inseparable. It is certainly possible to have a book that serves to guide day-to-day work performance but that is not, itself, the basis for an annual process of certifying qualifications. Accordingly, the "dominant requirement" analysis does not apply.

      The Authority will sever parts of a proposal where requested, and where the parts are able to stand independently and have been specifically addressed by the parties. See 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) (Fort Bragg). In this case, the two requirements in Proposal 2 can stand independently. However, the Union did not request that the proposal be severed, and neither party addressed separate parts of the proposal. Accordingly, the Authority will not sever it.

      As relevant here, the Union concedes that Proposal 2 affects the Agency's right to assign employees. Authority precedent supports this concession -- an agency's right to assign employees encompasses both the right to establish the qualifications needed to perform the work of a position and the right to determine whether employees possess those qualifications. See id. at 908. Consistent with this precedent, and the Union's concession, the requirement in Proposal 2 that the Agency determine whether inspectors possess the qualifications needed to certify aircraft repairs in a particular way --based on inspectors' demonstration of knowledge of information in the question-and-answer book --affects the Agency's right to assign employees. In addition, for the same reasons explained above in connection with Proposal 1, the requirement in Proposal 2 that the Agency determine whether employees are qualified to certify aircraft repairs in a particular way does not concern either types of employees, as related to staffing patterns, or the methods and means of performing work.

      In sum, the requirement in Proposal 2 that the Agency determine whether inspectors are qualified to certify aircraft repairs based on inspectors' demonstration of knowledge of information in the question-and-answer book affects the Agency's right to assign employees. As the Union does not request that the proposal be severed, we conclude that Proposal 2 is outside the duty to bargain. [n4]  See Defense Commissary, 54 FLRA at 1311.

VII.     Order

      The petition for review is dismissed. [ v55 p595 ]


Concurring Opinion of Member Wasserman

      I agree with the analysis of Parts I through V.A.1. I also agree with the ultimate conclusion to dismiss the petition for review. However, I would dismiss the petition for review as to Proposal 2 on the ground that it is negotiable at the election of the Agency under section 7106(b)(1) of the Statute.

      I would characterize Proposal 2 differently from the majority. I think that the Majority fails to place the proposal in its proper context. In particular, it is management that proposed to place a book in the work place and to use it for certification purposes. The union's proposal, for the most part, acknowledged the management initiative and added that the book would contain answers. Thus, I do not think that the two aspects of the proposal can stand alone, as the Majority claims. I view them as inseparable, because the union would never have proposed that the answers be included in the book if the Agency had not proposed to place the reference book and questions, without answers, in the workplace for certification purposes.

      I agree that the certification aspect of Proposal 2 concerns the Agency's ability to determine the qualifications of its employees, thereby affecting the right to assign work. However, I view the Union's counter-proposal -- the inclusion of the answers -- to fall within the scope of section 7106(b)(1), and for the reasons stated below, to constitute the dominant requirement of the proposal.

      The Authority has applied a definition of "means" that includes "tools" used to accomplish or further the performance of an agency's work. In this case, the Agency decided that it needed additional inspectors to perform aircraft certifications. The Agency decided to place an instructional book in the employees' work area so that the employees could become proficient in the task of certification. Quite clea