[ v17 p790 ]
The decision of the Authority follows:
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.