National Federation of Federal Employees, Local 1332 (Union) and Army Materiel Development and Readiness Command (DARCOM) (Activity)  

 3 FLRA No. 28
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1332
 Union
 
 and
 
 U. S. ARMY MATERIEL DEVELOPMENT
 AND READINESS COMMAND (DARCOM)
 Activity
 
                                            Case No. 0-NG-148
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SEC. 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101-7135).
 
                              UNION PROPOSALS
 
    THE UNION SEEKS NEGOTIABILITY DETERMINATIONS AS TO BOTH OF ITS
 ALTERNATIVE PROPOSALS.  IN THE AUTHORITY'S VIEW THE PROPOSALS RAISE THE
 SAME ISSUES, AND THEY WILL BE CONSIDERED TOGETHER FOR CONVENIENCE SAKE.
 
    THE ORIGINAL UNION PROPOSAL WAS AS FOLLOWS:
 
    SECTION E.  COUNSELOR.  THE PROGRAM COUNSELOR SHALL BE AN INDIVIDUAL
 WITH TRAINING AND
 
    EXPERIENCE IN TREATING PERSONS SUFFERING FROM ALCOHOLISM, DRUG ABUSE,
 DEPRESSION, AND OTHER
 
    MEDICAL/BEHAVIORAL PROBLEMS.  HE OR SHE SHOULD HAVE A WORKING
 KNOWLEDGE OF THE TECHNIQUES OF
 
    COUNSELING AND OF DIVERSE TREATMENT AND REHABILITATION METHODS.  HE
 OR SHE SHOULD ESTABLISH
 
    RAPPORT WITH EMPLOYEES IN ORDER TO INSTILL CONFIDENCE THAT ASSISTANCE
 IS AVAILABLE AND IN
 
    ORDER THAT REHABILITATION EFFORTS WILL BE SUCCESSFUL.
 
    MANAGEMENT ADVISED THE UNION, DURING NEGOTIATIONS, THAT IT CONSIDERED
 THAT PROPOSAL WAS NOT WITHIN ITS DUTY TO BARGAIN, AND THE UNION MADE THE
 FOLLOWING PROPOSAL:
 
    SECTION E. COUNSELOR.  THE PROGRAM COUNSELOR SHALL BE QUALIFIED IN
 ACCORDANCE WITH CURRENT
 
    X-118, 101 SERIES.
 
    MANAGEMENT ONCE AGAIN ADVISED THE UNION THAT THIS PROPOSAL WAS NOT
 WITHIN ITS DUTY TO BARGAIN.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNDER SEC. 7106(B)(1) OF THE STATUTE, THE
 UNION PROPOSALS CONCERN A MATTER PERTAINING TO THE TYPES AND GRADES OF
 EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION OR WORK PROJECT ARE
 NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSALS CONCERNING THE QUALIFICATIONS OF
 INDIVIDUALS TO BE ASSIGNED AS ALCOHOL AND DRUG ABUSE COUNSELORS, VIOLATE
 THE AGENCY'S RIGHT TO DETERMINE THE TYPES AND GRADES OF EMPLOYEES
 ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION OR WORK PROJECT UNDER SEC.
 7106(B)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SEC. 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3482 ET SEQ. (1980), THE
 AGENCY'S ALLEGATION THAT THE PROPOSALS ARE NOT WITHIN THE DUTY TO
 BARGAIN IS SUSTAINED.
 
    REASONS:  THE RECORD REVEALS THAT ALCOHOL AND DRUG ABUSE COUNSELOR
 POSITIONS EXIST PURSUANT TO THE ALCOHOL AND DRUG ABUSE PREVENTION AND
 CONTROL PROGRAM AND THE INCUMBENTS IN SUCH POSITIONS PERFORM A VARIETY
 OF DUTIES AND RESPONSIBILITIES INCLUDING COUNSELING OF EMPLOYEES
 CONCERNING ALCOHOL AND DRUG RELATED MATTERS.
 
    IT IS CLEAR FROM THE LANGUAGE OF THE UNION'S FIRST PROPOSAL THAT THE
 AGENCY COULD ONLY ASSIGN ALCOHOL AND DRUG ABUSE COUNSELORS WHO
 POSSESSED
 TRAINING AND EXPERIENCE IN TREATING PERSONS SUFFERING FROM ALCOHOLISM,
 DRUG ABUSE, DEPRESSION AND OTHER MEDICAL/BEHAVIORAL PROBLEMS, AND WHO
 HAD A WORKING KNOWLEDGE OF THE TECHNIQUES OF COUNSELING AND OF DIVERSE
 TREATMENT AND REHABILITATION METHODS.
 
    THE SECOND PROPOSAL, EQUALLY SPECIFIC, LIMITS AGENCY ASSIGNMENT OF
 COUNSELORS TO THOSE WHO MEET THE PRECISE EDUCATION, EXPERIENCE, AND
 PHYSICAL REQUIREMENTS OF OFFICE OF PERSONNEL MANAGEMENT'S QUALIFICATION
 STANDARDS FOR POSITIONS UNDER THE GENERAL SCHEDULE (HANDBOOK X-118), 101
 SERIES (SOCIAL SCIENCE).
 
    THE CLEAR INTENT AND EFFECT OF THE UNION'S PROPOSALS IS TO DETERMINE
 BY BARGAINING THE "TYPES" OF EMPLOYEES WHO COULD BE ASSIGNED BY THE
 AGENCY AS COUNSELORS.  THAT IS, ONLY EMPLOYEES POSSESSING PRECISE
 BACKGROUNDS OF EDUCATION AND EXPERIENCE, EXPLICIT IN THE TERMS OF THE
 FIRST PROPOSAL, AND BY REFERENCE TO A PARTICULAR SERIES DESCRIBED IN THE
 OPM HANDBOOK IN THE SECOND, COULD BE ASSIGNED.  MOREOVER, AS A PRACTICAL
 MATTER, THE NATURE OF THE QUALIFICATIONS PRESCRIBED BY THE PROPOSALS
 WOULD IMPACT ON THE GRADE LEVELS THE AGENCY MUST ASSIGN TO THE POSITIONS
 INVOLVED.  INDEED, THE OPM HANDBOOK REFERRED TO IN THE UNION'S SECOND
 PROPOSAL CONTAINS ITS OWN GRADE STRUCTURE BASED UPON THE VERY
 REQUIREMENTS OF EXPERIENCE AND EDUCATION THAT THE UNION SEEKS TO
 REQUIRE.  THUS, THE PROPOSALS WOULD AFFECT BOTH THE TYPES AND GRADES OF
 EMPLOYEES OR POSITIONS ENGAGED IN SUCH COUNSELING.
 
    SECTION 7106(B)(1) ESTABLISHES THAT UNION PROPOSALS WHICH DIRECTLY
 AFFECT OR ARE INTEGRALLY RELATED TO THE NUMBERS, TYPES, AND/OR GRADES OF
 EMPLOYEES WHICH MANAGEMENT MAY ASSIGN TO ANY WORK PROJECT OR TOUR OF
 DUTY ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.  IN THIS CASE,
 THE AGENCY HAS ELECTED NOT TO NEGOTIATE ON SUCH MATTERS AND, THUS, THE
 AGENCY'S ALLEGATION THAT THE PROPOSALS ARE NOT WITHIN THE DUTY TO
 BARGAIN IS SUSTAINED.  /2/
 
    ISSUED, WASHINGTON, D.C., MAY 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE . . . TYPES AND GRADES OF
 EMPLOYEES OR POSITIONS
 
    ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, . . .
 
    /2/ CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 66 AND INTERNAL
 REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-19, 1 FLRA
 NO. 106, (SEPT. 13, 1979), REPORT NO. 16.