American Federation of Government Employees and U.S. Department of Veterans Affairs Medical Center

[ v55 p1154 ]

55 FLRA No. 185

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
(Union)

and

U.S. DEPARTMENT OF VETERANS
AFFAIRS MEDICAL CENTER
(Agency)

0-NG-2466

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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 one proposal. The Agency filed a Statement of Position. The Union did not file a Response.

      The Union submitted the proposal in response to the Agency's plan to consolidate and centralize contracting offices under the Veterans Integrated Service Network (VISN). According to the Union, this centralization will mean that employees currently working in dispersed contracting offices will lose their positions, unless they are hired to work in the central office.

      For the reasons fully explained below, we find that the proposal is within the duty to bargain.

II.     The Proposal

      The terms of the disputed proposal are contained in a 3-page proposed memorandum of understanding (MOU), submitted by the Union to the Agency as an alternative to language that had been proposed by the Agency. The negotiations over this MOU arose in the context of the Agency's decision to centralize contracting offices under VISN. The only portion of the Union's proposed MOU in dispute concerns the method for filling a transitional contract specialist position, as follows:

To transition each medical center from a decentralized acquisition program to a centralized approach, it is agreed that a transitional contract specialist (1 FTEE) will be assigned based on seniority for a period not to exceed one year at the following locations:
VA Hudson Valley Health Care System
VA New Jersey Health Care System
VAMC Northport, New York
VAMC Brooklyn/New York/St. Albans
. . . .
The employer agrees to make all initial selections to the contracting specialist positions from a list of eligible employees within VISN #3 who indicate an interest in the position by grade and series based on service comp date.

III.      Positions of the Parties

A.     Agency

      The Agency argues that the proposal is not properly before the Authority because it concerns matters covered by the parties' collective bargaining agreement. According to the Agency, the petition for review should be dismissed because the Union has "failed to show that it is entitled to negotiate . . . issues that have been exhaustively covered by the [parties'] [a]greement." Statement of Position at 6.

      The Agency also asserts that the proposal is outside the duty to bargain because it interferes with management's rights under section 7106(a) of the Statute. First, the Agency maintains that the proposal affects management's right to determine its organization under section 7106(a)(1). In this respect, the Agency argues that the proposal would affect the "administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for assigned duties." Id. Second, the Agency contends that the proposal affects management's right to hire under section 7106(a)(2)(A) and its right to select under section 7106(a)(2)(C). Specifically, the Agency asserts that the proposal "removes from the agency the discretion to determine the personnel requirements of the work of the position" and as a result conflicts with its rights to hire and select. Id. at 7 (citing American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (AFLC)). [ v55 p1155 ]

      The Agency also asserts that the Union has not "alleged [or] identified its proposal as being within the bargainable exceptions" to management's rights under section 7106(b). Id. at 7.

B.     Union

      The Union asserts that the proposal does not concern a matter that is covered by the parties' collective bargaining agreement. The Union also asserts that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. Petition for Review at 1-2. In this regard, the Union contends that the Agency's closing of contracting offices will mean that "employees will lose their jobs or have an opportunity to be placed into another position[.]" Id. at 1. According to the Union, without the proposal, some employees might not be selected to work in the centralized network because the Agency would make selections using the merit promotion process.

IV.     Meaning of the Proposal

      Consistent with the plain wording of the proposal and the Union's statement in its petition for review, the proposal would require the Agency to make selections for "the contracting specialist positions" from among "eligible" employees based on seniority. Seniority is further defined as being determined based on the employee's service computation date. The only "contracting specialist positions" mentioned in the proposed MOU are the transitional positions that would be established pursuant to the portion of the proposed memorandum quoted above. Accordingly, we construe the proposal as applying only to those transitional positions.

      Neither the Union nor the Agency addresses the meaning of the term "eligible" in the proposal. However, an Office of Personnel Management regulation, 5 C.F.R. § 335.103(b)(3), which concerns internal agency promotion and placement plans, uses "eligible" as a synonym for "qualified." The regulation states that in order to be "eligible for promotion or placement, candidates must meet the minimum qualification standards[.]" Id. See also U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611, 1619-20 (1998) (5 C.F.R. § 335.103(b)(3) requires finding that an applicant meets the minimum qualifications for a position in order to be eligible for promotion and placement); 5 U.S.C. § 3313 ("The names of applicants who have qualified in examinations for the competitive service shall be entered on appropriate registers or lists of eligibles[.]"). As the proposal concerns the placement of employees, which is also the subject of the regulation, and as the record provides no basis for finding otherwise, we construe "eligible" to mean "qualified."

V.     Analysis and Conclusions

A.     The Authority Does Not Consider in a Negotiability Proceeding Whether a Proposal Concerns a Matter That Is Covered by the Parties' Agreement

      Under the Authority's Regulations applicable to this case, [n1]  the Authority will not determine, in a negotiability appeal, whether a proposal is outside the duty to bargain because it concerns a matter that is covered by the parties' agreement. See American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 175-76 (1998) (HUD). Consistent with this rule, where an agency argues that a proposal is inconsistent with law, rule, or regulation, in addition to arguing that the proposal is covered by the parties' agreement, the Authority resolves the negotiability issue only. The Authority has explained that when an agency refuses to bargain over a proposal on the ground that it is covered by the contract, the union can file either an unfair labor practice charge or a grievance under the parties' negotiated grievance procedure. In such a case, the duty to bargain question could be resolved based on a full evidentiary record. See HUD, 54 FLRA at 176.

      Based on the foregoing, we do not address the Agency's allegation that the proposal concerns a matter that is covered by the parties' agreement. Since the Agency also asserts that the proposal is inconsistent with section 7106(a) of the Statute, the negotiability dispute is properly before the Authority.

B.     The Proposal is an Appropriate Arrangement

      The Union does not dispute the Agency's claims that the proposal affects its rights to determine its organization, to hire, and to select. However, contrary to the Agency's assertion, the Union claims that the proposal falls within one of the exceptions to management's rights. Specifically, the Union claims that the proposal is "negotiable in accordance with 5 U.S.C. 7106(b)(3)." Petition for Review at 1. [ v55 p1156 ]

      In determining whether a proposal constitutes an appropriate arrangement, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. The purported arrangement must be "tailored" to compensate employees suffering adverse effects flowing from the exercise of management's rights. 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 a proposal is intended to be an arrangement, then the Authority balances the parties' respective interests to determine whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

      The Union asserts that because the Agency is closing contracting offices, "employees will either lose their jobs or have an opportunity to be placed into another position." Petition for Review at 1. The Authority has found that proposals requiring management to fill vacancies with employees who have lost, or are threatened with the loss of, their jobs constitute arrangements for employees adversely affected by management's exercise of its right to select. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 43 (1987). The proposal is tailored because it would ameliorate the adverse effects only for employees who would otherwise lose their jobs. Accordingly, we conclude that the proposal constitutes an arrangement.

      With respect to whether the proposal excessively interferes with management's rights, we conclude that the effects of the proposal on the Agency's rights under section 7106(a) are not significant. In this regard, nothing in the proposal would affect the location of positions, or Agency decisions regarding how it will conduct its operations under the reorganization. Similarly, the proposal would not require the Agency to fill positions it does not intend to fill. Additionally, the proposal would not require management to fill the positions with employees it has determined are not qualified to perform the duties of the positions. With respect to use of seniority to make selections, we note Authority precedent holding that, where management has authority to determine that employees are equally qualified for work assignments, a proposal requiring selection based on seniority does not affect management's rights to assign employees and assign work. See American Federation of Government Employees, Local 1138, Council 214 and U.S. Department of the Air Force, Air Force Materiel Command, 645 Air Base Wing/CE, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1725, 1730 (1996). No reason to depart from this precedent is argued or established in this case.

      On the other hand, the benefits to employees from the proposal are significant. Put simply, the proposal would allow employees who might otherwise lose their jobs to continue their employment with the Agency, at least for 1 year.

      Based on the foregoing, we find that the benefits to employees outweigh the burdens the proposal imposes on the exercise of management's rights. Accordingly, the proposal does not excessively interfere with management's rights, and is within the duty to bargain as an appropriate arrangement. See American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 256 (1990).

VI.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on the proposal.



Footnote # 1 for 55 FLRA No. 185

   The Authority's