17:0790(109)NG - AFGE Local 32 and OPM -- 1985 FLRAdec NG

 17 FLRA No. 109
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 32
 Union 
 
 and 
 
 OFFICE OF PERSONNEL MANAGEMENT 
 Agency
 
                                            Case No. O-NG-924
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of seven Union proposals.  /1/ Upon careful
 consideration of the entire record, /2/ including the parties'
 contentions, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Section 1.  At least 15 current employees will be trained as
       personnel staffing specialist (GS-212-5/7) during fiscal year
       1983.
 
    This proposal, on its face, would require the Agency to train certain
 employees as "personnel staffing specialists (GS-212-5/7)" within the
 period of a fiscal year.  In National Association of Air Traffic
 Specialists and Department of Transportation, Federal Aviation
 Administration, 6 FLRA 588 (1981) (Union Proposals I through III), the
 Authority held that proposals which prescribed the type of training to
 be assigned as well as its frequency and duration interfered with the
 agency's right to assign work pursuant to section 7106(a)(2)(B).  Hence,
 since Union Proposal 1, herein, expressly seeks to establish the type of
 training to be provided to employees, i.e., personnel staffing
 specialist training, it is, based upon Federal Aviation Administration,
 and the reasons and cases cited therein, not within the duty to bargain.
  /3/
 
                             Union Proposal 2
 
          Section 2.  Entries in employees' individual development plans
       constitute a commitment to provide the indicated training and
       promotions, subject to the employees meeting applicable
       requirements.
 
    Union Proposal 2 is to the same effect as a proposal found to be
 outside the duty to bargain in American Federation of Government
 Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 10
 (1984) (Union Proposal 2).  In that decision, the Authority held that a
 proposal which would mandate provision of the exact training indicated
 by entries in an employee development plan violated the agency's right
 to assign work pursuant to section 7106(a)(2)(B) as it would, in effect,
 specify the type of training to be provided.  The Agency asserts,
 without contravention, that Union Proposal 2, herein, likewise requires
 management to provide the exact type of training specified in the
 individual development plan.  Hence, based on Office of Personnel
 Management and the case cited therein, Union Proposal 2 is outside the
 duty to bargain.  /4/
 
                             Union Proposal 3
 
          Section 3.  Performance standards, as well as their
       application, must be fair.
 
    In agreement with the Agency, the Authority concludes that to the
 extent Union Proposal 3 would require performance standards themselves
 to be fair, it is to the same effect as the disputed portion of a
 proposal found to be outside the duty to bargain in American Federation
 of Government Employees, Local 32 and Office of Personnel Management, 16
 FLRA No. 127 (1984) (Union Proposal 3), petition for review filed sub
 nom. Local 32, American Federation of Government Employees. AFL-CIO v.
 FLRA, No. 85-1038 (D.C. Cir., Jan. 16, 1985).  In that decision the
 Authority held that the disputed portion of a proposal which provided
 "performance standards . . . must be fair and equitable" violated
 management's rights to assign work and direct employees pursuant to
 section 7106(a)(2)(A) and (B) of the Statute.  Specifically, the
 Authority indicated that while a proposal limited to establishing a
 general nonquantitative requirement by which the application of
 performance standards could subsequently be evaluated in a grievance
 would be a negotiable appropriate arrangement pursuant to section
 7106(b)(3) of the Statute according to the holding in American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Union
 Proposal 5), a proposal which was specifically directed at the content
 of the performance standards themselves would have the effect of
 permitting arbitrators to substitute their judgment as to the content of
 performance standards for that of the agency and would constitute a
 substantial interference with management's rights.  Consequently, based
 on Office of Personnel Management, 16 FLRA No. 127, and the cases cited
 therein, Union Proposal 3 herein is outside the duty to bargain.
 
                             Union Proposal 4
 
          Section 4.  Wherever feasible, jobs will be redesigned in order
       to create career paths allowing employees now in deadend jobs to
       be promoted non-competitively.
 
    Essentially, Union Proposal 4 would result in the Agency being
 required to alter its current organizational grade level structure,
 whenever it was possible to do so, in order to provide promotion
 opportunities for employees in "deadend jobs." In this respect, the
 Authority determined in National Association of Government Inspectors
 and Quality Assurance Personnel, Unit #2 and Naval Air Engineering
 Center, Lakehurst, New Jersey, 8 FLRA 144 (1982) (Union Proposal 1),
 that a proposal which required an agency's organizational grade level
 structure to be designed to provide, among other things, promotion
 opportunities for certain employees in deadend positions, conflicted
 with the Agency's right to determine its organization pursuant to
 section 7106(a)(1) of the Statute.  Thus, to the extent Union Proposal 4
 would require the Agency to change its organization grade structure it
 is, based on Naval Air Engineering Center, Lakehurst, inconsistent with
 management's right to determine its organization pursuant to section
 7106(a)(1) of the Statute.
 
    Moreover, Union Proposal 4, herein, would require that "jobs will be
 redesigned" in order to achieve grade level organization changes.  In
 other words, the Agency would be required to reassign duties currently
 assigned to positions or employees to other positions in order to create
 the requisite number of positions at certain grades into which employees
 with lower grades could be promoted.  Thus, Union Proposal 4 expressly
 would also interfere with the Agency's right pursuant to section
 7106(a)(2)(B) of the Statute to determine the particular employee to
 whom, or position to which, duties will be assigned.  American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Union
 Proposal XVI), enforced as to other matters sub nom. Department of
 Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.
 AFGE v. FLRA, 455 U.S. 945 (1982).  Consequently, as Union Proposal 4
 would directly interfere with these management rights, individually and
 collectively, it is outside the duty to bargain.
 
                             Union Proposal 5
 
          Section 6.  No position will be filled from outside OPM unless
       OPM employees have been given the opportunity to compete for it
       with the outside applicants.  The availability of every vacancy
       that is to be filled will be announced using the merit promotion
       process.  In-house and outside applicants will be rated and ranked
       on the basis of their qualifications as matched against the
       knowledges, skills, abilities and other characteristics that are
       accurate indicators of the likelihood of success in the positions
       applied for.  If members of any group which is covered by the EEO
       regulations are under-represented at the series and grade of the
       position, and members of such groups apply for and are qualified
       for the position, no lesser ranked member of a
       non-under-represented group will be selected.  (Only the
       underlined portion is in dispute.)
 
    Section 7106(a)(2)(C) of the Statute reserves to management the right
 to make selections for appointments from among properly ranked and
 certified candidates for promotion or from any other appropriate source.
  In this respect, in American Federation of Government Employees,
 AFL-CIO, Local 2578 and General Services Administration, National
 Archives and Records Service, Washington, D.C., 3 FLRA 604 (1980), the
 Authority determined that a proposal which set forth a certain
 statistical goal for the elimination of underrepresentation in the
 workforce by women and minorities but which did not require management
 to take or refrain from taking any specific action toward the
 achievement of that goal did not, among other things not here relevant,
 prohibit management from exercising its rights pursuant to section
 7106(a)(2)(C) of the Statute.  The disputed portion of Union Proposal 5
 herein, however, would expressly prohibit management from exercising its
 rights pursuant to section 7106(a)(2)(C) in the circumstances described
 in the proposal.  That is, management would be precluded from selecting
 a qualified candidate for a position if there existed any other
 candidate who was a member of an underrepresented group and who had a
 higher ranking.  Moreover, if there was only one member of an
 underrepresented group who had a higher ranking than the candidate
 management proposed to select, the disputed portion of the proposal
 would have the effect of mandating the selection of a particular
 individual.  Therefore, as the disputed portion of Union Proposal 5
 would directly interfere with management's right to select pursuant to
 section 7106(a)(2)(C) of the Statute, it is outside the duty to bargain.
 
                             Union Proposal 6
 
          Section 7.  The agency shall establish free, high-quality day
       care facilities for the children of bargaining unit OPM employees.
 
                             Union Proposal 7
 
          Section 8.  There will be no change in the central office
       operations hours, flexible hours, or core hours.  Employees in the
       Washington area office are added to the alternative work schedule
       plan.
 
    It appears from the record in this case that the Agency is not
 contending that disputed proposals 6 and 7, also submitted by the Union
 in collective bargaining over the Agency's proposed Affirmative Action
 Plan, are nonnegotiable.  That is, with respect to Proposal 6, the
 Agency notes that the Authority has previously determined a proposal
 requiring the providing of day care facilities to be within the duty to
 bargain.  /5/ The Agency then states, "(t)he negotiability of the
 subject of (Proposal 6) is not in dispute." /6/ (Emphasis in original.)
 Rather, the Agency contends that it has no duty to bargain on Proposal 6
 because it is unrelated to the Affirmative Action Plan proposed by the
 Agency.  Similarly, with regard to Proposal 7, the Agency states, "(a)s
 in (Proposal 6) the Union is attempting to 'shoehorn' the full range of
 working condition proposals into impact and implementation bargaining on
 a discrete matter." /7/ Consequently, as the Agency has made no
 allegation that Union Proposals 6 and 7 are nonnegotiable, there is no
 issue as to whether these two proposals are within the parties' duty to
 bargain under the Statute.  Cf. American Federation of Government
 Employees, AFL-CIO, Local 3028 and Department of Health and Human
 Services, Public Health Service, Alaska Area Native Health Service, 13
 FLRA 697 (1984) (wherein the Authority found that failure to respond to
 a union's request for an allegation was constructive declaration of
 nonnegotiability so as to give rise to a right of appeal.)
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., May 7, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its response to the Union's petition for review, the Agency
 withdrew its allegation as to an additional proposal concerning career
 ladder promotions.  Accordingly, there is no longer an issue as to
 whether that proposal is within the duty to bargain.  The Agency's
 contention that a number of proposals in this case are outside the duty
 to bargain because they are unrelated to the Agency's proposed
 Affirmative Action Plan cannot be sustained.  In this regard, the
 Authority decides only the negotiability issues presented under section
 7105(a)(2)(E) of the Statute.  To the extent that there are factual
 issues in dispute between the parties concerning the duty to bargain in
 the specific circumstances of this case, such issues should be raised in
 other appropriate proceedings.  American Federation of Government
 Employees, AFL-CIO, Local 2736 and Department of the Air Force,
 Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force
 Base, Michigan, 14 FLRA 302 (1984).
 
 
    /2/ The Union did not file a Reply Brief in this case.
 
 
    /3/ In view of this disposition, it is unnecessary to address the
 Agency's further contention that this proposal is inconsistent with the
 Agency's right to determine "the numbers . . . of employees . . .
 assigned" pursuant to section 7106(b)(1) of the Statute.
 
 
    /4/ In view of this disposition, it is unnecessary to address the
 Agency's further contention that this proposal is inconsistent with
 management's right to make selections pursuant to section 7106(a)(2)(C)
 of the Statute.
 
 
    /5/ American Federation of Government Employees, AFL-CIO, Local 32
 and Office of Personnel Management, Washington, D.C., 6 FLRA 423 (1981)
 enforced sub nom. Office of Personnel Management v. FLRA, 706 F.2d 1229
 (D.C. Cir. 1983).
 
 
    /6/ Agency Statement of Position at 8.
 
 
    /7/ Id. at 9.