American Federation of Government Employees, Local 3935 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Duluth, Minnesota (Agency)

[ v59 p481 ]

59 FLRA No. 78

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3935
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL PRISON CAMP
DULUTH, MINNESOTA
(Agency)

0-NG-2706

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

December 8, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal relating to the assignment of unit secretaries by seniority. The Agency filed a statement of position, and the Union filed a response. For the following reasons, we conclude that the Union's proposal is outside the duty to bargain and dismiss the Union's petition for review.

II.     Proposal

Whenever a Unit secretary vacancy occurs, all unit secretaries will be given an opportunity to submit a request for that vacancy. The most senior Unit secretary submitting a request will be selected first. If no Unit secretary submits a request, the secretary with the least amount of seniority or newly assigned secretary will be assigned to that vacancy. This seniority system shall also apply whenever Management determines a need to reassign a Unit secretary. This agreement shall be applied in accordance with 5 U.S.C. 7106.

Petition for Review at 4.

III.     Meaning of Proposal

      The parties in this case dispute the meaning of the Union's proposal. When interpreting a disputed proposal, the Authority looks first to the proposal's wording and the union's statement of intent. If the union's explanation of the proposal's meaning comports with the wording, that explanation is adopted for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See AFGE, Local 1900, 51 FLRA 133, 138-39 (1995).

      According to the Union, the proposal allows the Agency to determine which employees are qualified for the secretary "position[.]" Record of Post-Petition Conference at 2. Once that determination is made, the Union explains that seniority will determine which secretary fills specific "assignment[s]." Petition for Review at 5. Therefore, the Union asserts that the proposal applies only to secretaries who are "equal in ability to perform the assignments." Id. According to the Agency, the proposal does not permit it to "decide who is qualified for a particular assignment." Statement of Position at 3.

      The Union's explanation that the proposal allows the Agency to determine qualifications for the secretary position and requires management to use seniority as the determining factor for making specific assignments thereafter comports with the wording of the proposal. Consequently, we adopt the Union's explanation of the meaning of the proposal. We address below the Agency's claim that the proposal does not permit it to determine secretaries' qualifications for specific assignments.

IV.     Positions of the Parties

A.     Agency's Statement of Position

      The Agency argues that the Union's proposal impermissibly affects its rights to assign work, assign employees, and determine its internal security practices under § 7106(a) of the Statute.

      According to the Agency, proposals that require selection based on seniority are negotiable only when they permit management to determine that employees are "equally qualified for work assignments[.]" Statement of Position at 4 (citing AFGE, 55 FLRA 1154, [ v59 p482 ] 1156 (1999) and AFGE, Local 1138, Council 214, 51 FLRA 1725 (1996) (AFGE, Local 1138)). The Agency argues that the Union's proposal does not satisfy this standard because it prevents the Agency from determining "who is qualified to work on a particular Unit team as a secretary." Id. at 5. The Agency asserts that the Union's proposal also prevents it from matching "more experienced team members with newer employees" for training purposes, id. at 6, as well as prevents it from "keep[ing u]nit teams together for an extended period of time" to "reduce inmate behavioral problems." Id. at 8. Consequently, the Agency argues that the proposal affects management's rights to assign work, assign employees, and determine its internal security practices.

      According to the Agency, the Union has not shown that its proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute because the Union has not explained how the proposal is sufficiently tailored to specific adverse effects on bargaining unit employees or how the expected benefits of the proposal outweigh the burdens placed on management's ability to exercise its rights. Accordingly, the Agency argues that the proposal excessively interferes with management's rights.

B.     Union's Response

      The Union disagrees that the proposal affects the Agency's rights to assign work and assign employees. Specifically, the Union asserts that the proposal's reference to 5 U.S.C. § 7106 ensures that "all [m]anagement rights including their right to determine qualifications" are reserved. Response at 2. According to the Union, the proposal concerns only the unit assignments where the secretaries already work, and the duties performed by those secretaries are "similar regardless of the selected assignment location." Id. at 6. Therefore, the Union asserts that "all secretaries are equal in ability to perform the work duties in any Unit assignment." Id. at 4.

      The Union next asserts that the proposal does not affect the right to determine internal security practices because all staff members, as correctional officers, are "trained to deal with inmate issues and security practices within the prison setting." Id. at 6. The Union also disputes the Agency's claim in this regard because, according to the Union, all of the unit secretaries are "already working outside their assigned [u]nit [t]eam[s]" and some have rotated between dormitories "without security problems." Id. at 7.

      According to the Union, the proposal constitutes a negotiable procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3) of the Statute. In this connection, the Union asserts that the proposal is a procedure "because it sets forth an objective way for equally qualified [u]nit secretaries to select their work assignments." See id. at 3. Moreover, the Union asserts that the proposal is an appropriate arrangement because it ameliorates adverse effects on senior secretaries flowing from the exercise of management's right to make unit assignments. The Union explains, in this regard, that management's decision to make unit assignments may adversely affect secretaries with respect to annual leave (which is scheduled by seniority within each unit), the distance secretaries must walk between buildings, and office space allotments. By allowing the more senior secretaries to choose their unit assignments, the Union claims the proposal ameliorates these adverse effects. See id. at 4 (citing NTEU, 41 FLRA 1195 (1991)).

      The Union further argues that the proposal does not excessively interfere with management's rights because management retains the right to "temporarily assign secretaries to office vacancies or other coverage as needed." Id. Finally, in this regard, the Union argues that the Agency's current staffing pattern does not reflect its claim that it matches unit team members by experience and length of service.

V.     Analysis and Conclusions

A.     The Proposal Affects Management's Rights To Assign Work and Assign Employees Under § 7106(a)(2) of the Statute

      The rights to assign work and assign employees under § 7106(a)(2) of the Statute include the right to establish the qualifications and skills needed for positions and/or duties and to judge whether particular employees meet those qualifications and skills. See Laborers Int'l Union of N. America, ALF-CIO, Local 1276, 9 FLRA 703, 706 (1982). In this regard, an agency may require employees to possess specific knowledge, skills, and abilities needed to do the work of a position, as well as certain job-related individual characteristics such as judgment and reliability. See AFGE, Local 1138, 51 FLRA at 1728-29. A proposal requiring selection based on seniority does not affect management's rights to assign work or assign employees where management has already determined, or retains the authority to determine, that the employees are equally qualified for the work assignments. See id. at 1730-31. When parties dispute whether management has determined that employees are equally qualified for a particular assignment, the Authority will resolve the factual dispute based on the record before it. See id. at 1731-32 [ v59 p483 ] (citing United States Dep't of HHS, SSA, Balt., Md., 41 FLRA 1309, 1319-20 (1991); AFGE, AFL-CIO, Local 987, 35 FLRA 265, 269-72 (1990)).

      The dispute involves secretaries' qualifications for two different things: (1) their positions and (2) assignments to particular teams. In this regard, the Union claims the secretaries are equally qualified for any team assignment because the Agency has qualified them for the position and because similar work is performed in all the teams. The Agency claims that a secretary's particular assignment is based on other factors, such as experience and length of service relative to other team members. We reject the Union's claim that all of the secretaries affected by its proposal are equally qualified for any unit assignment or reassignment merely because the Agency has determined them to be qualified for the secretary position. Although employees may be equally qualified for a particular position, agencies may consider other factors, such as experience and length of service relative to other team members, when making specific assignments and reassignments. See, e.g., AFGE, AFL-CIO, Local 738, 33 FLRA 380 (1988). Consideration of such job-related, individual characteristics is inherent in management's rights to assign work and assign employees under the Statute. See id. at 382.

      The Authority has specifically found a proposal nonnegotiable because it did "not allow the [a]gency to make any judgment on the qualifications of those employees, relative to each other or to other employees, to perform the work" of a particular position in a different division. Id. at 382; see also Naval Air Rework Facility, Jacksonville, Fla., 27 FLRA 318 (1987) (award deficient where arbitrator enforced a contract provision as to deny agency's right to assign employees to different shifts for cross-training purposes). Moreover, the Union's claim that the proposal concerns the unit assignments where the secretaries already work and that the duties are "similar" regardless of the assignment does not demonstrate that the Agency has determined all secretaries to be equally qualified. In this connection, the Agency explains that assignments depend on secretaries' experience and length of service as compared to other team members. The Union's claim that the Agency's current staffing does not reflect this method of assignment does not warrant a different result. In this regard, the Agency has the right to assign secretaries based on experience and length of service, even if it does not currently do so.

      Based on the foregoing, we conclude that the proposal affects management's rights to assign work and assign employees.

B.     The Proposal Does Not Constitute a Negotiable Procedure Under § 7106(b)(2) of the Statute

      Consistent with the foregoing, the Union has not shown that the affected secretaries are equally qualified for any assignment. Therefore, there is no basis for concluding that the proposal constitutes a negotiable procedure under § 7106(b)2) of the Statute. See, e.g., AFGE, Local 3694, 58 FLRA 148 (2002) (proposal allowing employees to choose work assignments by seniority did not constitute negotiable procedure where employees were not equally qualified).

C.     The Proposal Does Not Constitute an Appropriate Arrangement Under § 7106(b)(3) of the Statute

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 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. Id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). 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's rights and how those effects are adverse. 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 AFGE, Nat'l Council of Field Labor Locals, 58 FLRA 616, 617-18 (2003) (citing NAGE, Local R1-100, 39 FLRA 762, 766 (1991)). If the proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees against the intrusion on the exercise of management's rights. Id.

      We reject the Union's claim that the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute. In particular, even assuming without deciding that the Union's proposal constitutes an arrangement that is sufficiently tailored to compensate employees who are adversely affected by the Agency's exercise of its management rights, we find that the proposal excessively interferes with the Agency's rights to assign work and assign employees. In this regard, although choosing assignments by seniority is a significant benefit to senior secretaries, we find that the burden on management's rights to assign work and assign [ v59 p484 ] employees outweighs this benefit. We find particularly burdensome the proposal's requirement that only seniority be considered when assigning and reassigning unit secretaries. In this regard, the proposal provides no circumstance in which the Agency could determine -- based on experience, length of service, or some other factor -- that one secretary is better suited for a particular assignment than another. Consequently, the proposal excessively interferes with management's rights to assign work and assign employees. See, e.g., AFGE Local 1138, 51 FLRA at 1735 (finding excessive interference where management could consider only seniority when rejecting employee reassignment requests). The Union's proposal, therefore, does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. [n2] 

VI.     Order

      The Union's petition for review is dismissed.


Dissenting Opinion of Chairman Cabaniss:

      I write separately to explain why I am unable to reach the same outcome as the majority.

      My difference of opinion with the majority is best explained by looking at the key points underlying the Union's position in the case. The Union concedes that the Agency has the right to determine the qualifications for the positions in question, and which employees have those qualifications. From that I conclude that the Agency retains the right to take into consideration as part of the selection process its desire to match "more experienced team members with newer employees" and "keep[ing u]nit teams together[.]" Statement of Position at 6, 8. Once those factors have been applied, the proposal would mandate selection based upon seniority only from among those secretaries who are "equal in ability to perform the assignments." Petition for Review at 5. If the Union indeed does concede the Agency's ability to determine the qualifications for a particular position and to apply those qualifications before there is a potential employee pool against which to apply the seniority provision, then the proposal does not run afoul of the precedent and legal argument relied on by the majority.

      I do not find that this conclusion is undercut by the Union's erroneous belief that all of these secretaries are equally qualified for all of these positions. From a real-world practicalities standpoint, I doubt that few if any employees will ever be found equally qualified for a particular position after the Agency has had the opportunity to assess candidates against the various factors outlined in its arguments. However, that real-world practicality does not undercut the otherwise negotiable nature of proposals mandating reliance on seniority to choose among equally qualified employees, provided the agency has first had the opportunity to determine what employees are equally qualified. Therefore, I would find that the proposal does not affect either the Agency's right to assign employees or assign work.

      Therefore, absent some finding that the Agency's internal security rights are affected, I would find the proposal within the duty to bargain. To the extent that an agency right was affected, however, I would find that the proposal is not sufficiently tailored. The harms identified and discussed in the record will not always be present in every assignment action, i.e., the potentially adverse affects from having to walk farther outside to get to one's workplace, having to now work in a smaller size office, or losing seniority for leave scheduling purposes. Therefore, more than just adversely affected employees will be provided a benefit by the proposal and, to the extent an agency right was implicated, the proposal would be outside the duty to bargain. See, e.g., AFGE, Local 2004, 56 FLRA 660, 662 (2000).



Footnote # 1 for 59 FLRA No. 78 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 78 - Authority's Decision

   In light of this decision, we find it unnecessary to address the Agency's claim that the proposal affects its right to determine its inter