[ v23 p230 ]
23:0230(30)NG
The decision of the Authority follows:
23 FLRA No. 30
American Federation OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3186
Union
and
DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE OF SOCIAL SECURITY FIELD
OPERATIONS, PHILADELPHIA REGION
Agency
Case No. 0-NG-969
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The petition concerns
the negotiability of three proposals submitted in response to the
Agency's implementation of a reduction-in-force action involving the
separation from employment of temporary employees and a new policy
whereby it restricted permanent, part-time employees to work within
their established tours of duty.
II. Union Proposal 1
Permanent part-time employees who are restricted to a tour of
duty of less than forty hours per week will be assigned to a
reduced workload.
A. Positions of the Parties
The Agency contends that because this proposal would require
management to assign a reduced workload to positions in the bargaining
unit, it directly interferes with management's right, under section
7106(a)(2)(B) of the Statute, to assign work. The Agency also contends
that the proposal interferes with management's right, under section
7106(b)(1) of the Statute, to establish a new shift or tour of duty.
The Union argues that, under applicable Authority precedent, this
proposal is within the duty to bargain because it contains general
non-quantitative language which provides, at most, a procedure or an
arrangement by which a management right is exercised.
B. Analysis
This proposal was submitted in response to management's new policy of
restricting part-time employees from working beyond their part-time
tours of duty. Prior to management's decision, part-time employees
could work up to 40 hours per week. As a result of the change, these
employees are now precluded from working up to 40 hours per week.
The Union's explanation that the intent of the proposal is merely for
management to give "consideration" to the reduction of full-time
workload assignments is contrary to the explicit language of the
proposal. That is, the proposal is not limited to considering the
reduction of work assignments, but instead would mandate that management
reduce work assignments in circumstances where employees work less than
full-time hours.
The Agency has provided no support for its claim that this proposal
interferes with its right to establish tours of duty under section
7106(b)(1). Thus, such contention cannot be sustained. However, this
proposal is to the same effect as Proposal V found nonnegotiable in
National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 6 FLRA 508 (1981). Proposal V in that case
required the agency to refrain from assigning cases to employees "when
the caseload is unmanageable." The Authority reasoned that the proposal
imposed a precondition on the assignment of cases to employees and under
some circumstances, and irrespective of the agency's immediate needs,
prevented the agency from making case assignments. Thus, the Authority
concluded the proposal was inconsistent with management's right to
assign work under section 7106(a)(2)(B) of the Statute. Based on the
reasons expressed in Internal Revenue Service this proposal, which
precludes management from making work assignments in circumstances where
employees work less than full-time, is also inconsistent with
management's right to assign work under section 7106(a)(2)(B). See also
National Federation of Federal Employees, Local 1622 and U.S.
Commissary, Fort Meade, Maryland, 16 FLRA 998 (1984) (Provision 1).
Since this proposal would directly interfere with management's right to
assign work it does not constitute a negotiable procedure within the
meaning of section 7106(b)(2) of the Statute. See American Federation
of Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub
nom. Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945 (1982).
We turn now to the question of whether this proposal constitutes an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute and apply the tests set out in National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986). Here, the Union has not identified any adverse
effect which would result solely from the assignment of work to the
employees in question. That is, there is no indication that these
employees are expected to perform the assigned work in a manner that is
inconsistent with their being restricted to working less than 40 hours
per week. But, even assuming that the proposal was intended to
ameliorate an adverse effect perceived by the assignment of a full
workload to permanent part-time employees who are now restricted to
working only the hours of their established part-time tour of duty, the
proposed amelioration would expressly preclude the Agency from assigning
a certain amount of work at all in these circumstances. Such a proposed
amelioration, which totally abrogates the exercise of a management
right, would excessively interfere with management's right to assign
work and therefore does not constitute an appropriate arrangement within
the meaning of section 7106(b)(3). See American Federation of
Government Employees, Local 2782 v. Federal Labor Relations Authority,
702 F.2d 1183, 1188 (D.C. Cir. 1983), reversing and remanding American
Federation of Government Employees, AFL-CIO, Local 2782 and Department
of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
C. Conclusion
This proposal violates management's right, under section
7106(a)(2)(B), to assign work and does not constitute a negotiable
procedure under section 7106(b)(2) or an appropriate arrangement under
section 7106(b)(3) of the Statute.
III. Union Proposal 2
Temporary employees will be recalled based on their length of
service with the Social Security Administration.
A. Positions of the Parties
The Agency contends that because the proposal requires management to
recall separated employees based on seniority, it interferes with
management's discretion to hire under section 7106(a)(2)(A) of the
Statute and to make selections for appointment under section
7106(a)(2)(C) of the Statute. The Agency further contends that because
the proposal requires management to rehire employees without taking into
account their actions while not employed, it interferes with
Government-wide regulations concerning "suitability" set out at 5 CFR
Sections 731.201 and 731.202.
The Union contends that the proposal is within the duty to bargain
because it is a procedure or an arrangement by which a management right
is exercised.
B. Analysis
This proposal applies to temporary employees who were terminated
without personal fault. According to the Union it would require that
these former employees "will be rehired when allocations become
available based on their length of service with the Agency." The Union
also indicates that management would be able to determine the continued
suitability for employment of employees rehired according to this
proposal. Consequently, contrary to the Agency's claim, this proposal
does not violate 5 CFR 731.202. However, there is nothing in the record
to indicate that once allocations became available management could
elect to not recall temporary employees and utilize such allocations for
permanent positions instead or to elect to accomplish its work without
any increase in staff, permanent or temporary. Thus, this proposal is
distinguishable from the proposal found to be an appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute in National
Association of Government Employees, Local R14-87 and Department of the
Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA No. 48 (1986).
The proposal in the Topeka case required management to return employees
to their former positions at their former duty stations only if and when
such positions were vacant and only then if the agency decided to fill
them. No question was raised in that case as to whether the employees
possessed the qualifications for the vacant positions since the
employees in question were merely returning to positions they would
still occupy but for their reassignment as a result of a RIF. Further,
the proposal specifically preserved the agency's right to elect to fill
or not fill vacant positions. Unlike the proposal in the Topeka case
this proposal would absolutely eliminate the Agency's discretion
concerning the filling of positions. Thus, this proposal directly
interferes with the Agency's rights to hire and select and as a result,
it does not constitute a negotiable procedure within the meaning of
section 7106(b)(2) of the Statute. See American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub
nom. Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945 (1982). In addition, by mandating the recall of temporary employees
this proposal would constitute an excessive interference with
management's right to hire and assign employees under section
7106(a)(2)(A) of the Statute and with management's right, under section
7106(a)(2)(C), to make selections in filling positions. It is not,
therefore, an appropriate arrangement under section 7106(b)(3) of the
Statute. See also National Association of Government Employees, Local
R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA
No. 105 (1986) (Proposal 2).
Even assuming that this proposal does not constitute an excessive
interference with management's rights, it is outside the duty to bargain
under section 7117(a)(1) of the Statute because it is inconsistent with
a Government-wide regulation, that is, requirement 4 of subchapter 1-4,
chapter 335 of the Federal Personnel Manual (FPM), which permits
agencies to fill positions by making selections from any appropriate
source. This proposal would require the Agency to select for vacancies
only temporary employees who have been separated from employment. By so
doing, it would prevent the Agency from making selections from any
appropriate source. Thus, this proposal violates Requirement 4 of
subchapter 1-4, Chapter 335 of the FPM, a Government-wide regulation,
and on that basis is outside the duty to bargain. See American
Federation of Government Employees, AFL-CIO, Local 2677 and Department
of Health and Human Services, Office of Community Services, 21 FLRA No.
22 (1986), petition for review filed sub nom. American Federation of
Government Employees, AFL-CIO, Local 2677 v. FLRA, No. 86-1287 (D.C.
Cir. May 19, 1986); American Federation of State, County and Municipal
Employees, Local 2830, AFL-CIO and Department of Justice, 21 FLRA No.
121 (1986) (First disputed sentence).
C. Conclusion
Based on the foregoing analysis, this proposal does not constitute
either a negotiable procedure under section 7106(b)(2) or an appropriate
arrangement under section 7106(b)(3) of the Statute. We also hold that
this proposal conflicts with FPM chapter 335, subchapter 1-4, and,
therefore, is nonnegotiable under section 7117(a)(1) of the Statute.
III. Union Proposal 3
Permanent part-time employees will be converted at the earliest
opportunity, upon request, to permanent full-time positions.
A. Positions of the Parties
The Agency contends that because this proposal requires management to
convert part-time employees to full-time status upon their request, it
interferes with management's right to hire under section 7106(a)(2)(A)
of the Statute. The Agency further contends that the proposal
interferes with management's right to determine the number of employees
of the Agency under section 7106(a)(1).
The Union argues that this proposal is within the duty to bargain
because it contains general non-quantitative language which provides for
reasonable application and is, at most, a procedure or arrangement by
which a management right is exercised. Furthermore, according to the
Union the term, "at the earliest opportunity," refers to, "when either a
full-time position is vacated by another employee or when the employer
determines that the workload justifies the establishment of a full-time
position."
B. Analysis
1. Appropriate arrangements within the meaning of section
7106(b)(3) of the Statute
This proposal was intended as an arrangement for part-time employees
who previously worked a full-time schedule but who because of funding
problems are now restricted to working only the hours of their part-time
schedule. Clearly, such employees are adversely affected by
management's right to reduce their hours. In this circumstance, then,
this proposal mandates that such part-time employees upon their request
will be converted to, or in other words, selected for, permanent
full-time positions at the earliest opportunity. While the term
"earliest opportunity" is not defined in the proposal, the Union states
it is intended to mean when "a full-time position is vacated by another
employee and available or when the employer determines the workload
justifies the establishment of a full-time position." Thus, in our
opinion, this proposal would apply only after management determines to
fill a vacant full-time position. Interpreted in this manner the
proposal would not violate management's right to determine the number of
employees under section 7106(a)(1) of the Statute. Further, there is
nothing in the record which indicates that management would be unable to
determine the qualifications of the part-time employee for the full-time
position. In fact, it appears that but for the funding restrictions
which resulted in part-time employees being limited to working only a
part-time schedule those part-time employees would have been performing
the duties of such full-time positions.
The Authority finds that this proposal has the same effect as the
proposal in the Authority's Decision and Order on Remand in AFGE, Local
2782 and Bureau of the Census, 14 FLRA 801 (1984), affirmed in the
Authority's Decision and Order on Motion for Reconsideration (July 11,
1985), petition for review filed, No. 85-1562 (D.C. Cir. Sept. 6, 1985).
In that case the Authority reaffirmed its prior decision that a
proposal requiring the Agency to select available qualified repromotion
eligible employees when filling vacancies in the bargaining unit
directly interfered with management's rights under section 7106(a)(2)(C)
of the Statute. Thus, the proposal in this case also directly
interferes with the Agency's rights under section 7106(a)(2)(C) and
thereby does not constitute a negotiable procedure under section
7106(b)(2) of the Statute. See American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of
Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The
Authority also concluded in the Decision and Order on Remand that the
proposal constituted a negotiable appropriate arrangement under section
7106(b)(3) of the Statute notwithstanding its limitation on management's
discretion to determine the relative qualifications of repromotion
eligibles. Accordingly, the Authority finds, for the reasons stated
more fully in that decision, that the proposal here does not excessively
interfere with management's rights and, therefore, constitutes a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute.
2. Inconsistent with Government-wide Rule or Regulation
The Authority also concluded in its Decision and Order on Remand in
AFGE, Local 2782 and Bureau of the Census that while the proposal
constituted an appropriate arrangement under section 7106(b)(3), it
nevertheless was outside the duty to bargain under section 7117(a)(1) of
the Statute because it was inconsistent with a Government-wide
regulation, that is, Requirement 4 of subchapter 1-4, chapter 335 of the
FPM, which would permit agencies to fill positions by making selections
from any appropriate source. The proposal would require the Agency to
select only permanent part-time employees for permanent full-time
vacancies which it has decided to fill. It would, therefore, have the
same effect as the proposal in AFGE, Local 2782 and Bureau of the
Census, that is, it would prevent the Agency from making selections from
any appropriate source. Thus, for the reasons stated more fully in our
Decision and Order on Remand in AFGE, Local 2782 and Bureau of the
Census, this proposal violates Requirement 4 of subchapter 1-4, chapter
335 of the FPM, a Government-wide regulation, and is outside the duty to
bargain. See also Department of Health and Human Services, Office of
Community Services; Department of Justice.
C. Conclusion
We find that this proposal would directly interfere with the Agency's
rights under section 7106(a)(2)(C) of the Statute and therefore does not
constitute a negotiable procedure under section 7106(b)(2) of the
Statute. We also find that the proposal would not excessively interfere
with management's rights and, thus, that it constitutes an appropriate
arrangement for employees adversely affected by the exercise of such
rights, within the meaning of section 7106(b)(3) of the Statute.
However, we also hold, based upon the analysis provided in our Decision
and Order on Remand in AFGE, Local 2782 and Bureau of the Census, 14
FLRA 801 (1984), affirmed in the Authority's Decision and Order on
Motion for Reconsideration (July 11, 1985), petition for review filed,
No. 85-1562 (D.C. Cir. September 6, 1985), that this proposal conflicts
with FPM chapter 335, subchapter 1-4, and, therefore, is nonnegotiable
under section 7117(a)(1) of the Statute.
IV. Order
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., August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY