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39:1441(124)NG - - AFGE Local 898 and DOL, Occupational Safety and Health Administration, Denver, CO - - 1991 FLRAdec NG - - v39 p1441

[ v39 p1441 ]
The decision of the Authority follows:

39 FLRA No. 124













March 25, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).(1)

This dispute arose as a result of the Agency's decision to divide its Region VIII Denver Area Office into two area offices--one to be located at the present Denver Area Office and the other to be located at a new location, the Littleton Area Office. The dispute concerns the negotiability of one proposal requiring the Agency to allow bargaining unit employees' grade and time spent at the Agency's Denver Area Office to be the determinative factors when deciding conflicts over the area office to which unit employees will be assigned.

For the following reasons, we find that the proposal is negotiable.

II. Proposal

Although the Union did not submit a formal proposal, it states in its petition for review that it requested that

when the employees are split between the two offices [the Denver Area Office and the Littleton Area Office] that any conflict between employees wanting to go to the same office be resolved by GS grade and time in the Denver Area Office.

III. Positions of the Parties

A. Agency

As noted previously, the Agency did not file a statement of position. However, in its allegation of nonnegotiability dated October 15, 1990, the Agency stated that it was "management's position that the assignment of employees to an office is [an] assignment of work and is a management right and therefore non-negotiable."

B. Union

The Union asserts that the proposal constitutes a "method of relocation" to be used when deciding the office to which a unit employee will be assigned following the realignment of an Agency Regional Office. Petition for Review. The Union further asserts that this method of relocation, requiring grade and time at a specific location to be the determinative factors, "has been agreed to in the past in [Region VIII] and other Regions of the Department of Labor." Id. The Union states that "[e]ach office is going to have the same number of employees with comparable grades." Id. The Union also states that the current employees are "fungible" and that "all compliance officers by grade do the same type of work and are considered equal." Id.

IV. Analysis and Conclusions

Where management determines that it is necessary for employees to perform the duties of their positions at different locations and that the employees to be selected for the assignments are equally qualified, provisions or proposals establishing the criteria for determining the employees who will perform their duties at one or another of those different locations are negotiable. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987) (Proposal 46) (OEA), aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988) (when management finds that two or more employees are equally qualified for an assignment, there is a duty to bargain over the procedure for determining which one of two or more employees who perform the same work will be selected for an assignment); Immigration and Naturalization Service, Eastern Regional Office (Burlington, Vermont), 18 FLRA 875, 879 (1985) (INS) (the procedure by which employees previously judged by management to be equally qualified to perform the work will be selected for assignments is negotiable under section 7106(b)(2) of the Statute); and American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83 (1981) (Wright-Patterson) (a provision requiring that temporary duty assignments to a different geographical area be based on seniority was found to be negotiable).

Further, "the location at which employees perform the normal duties of their jobs is negotiable unless a relationship exists between the job location and the job duties." American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Cypress Hills District Office, 31 FLRA 1110, 1111-12 (1988) (SSA). See American Federation of Government Employees, National GSA Council (No. 236), Local 1497 and General Services Administration, Region 3, 24 FLRA 928, 936 (1986) (Proposal 4) (GSA); and Wright-Patterson.

The proposal in this case provides criteria for determining which employees will be sent to the Agency's Denver and Littleton offices, in case there is a conflict between employees wanting to go to one or the other of the offices. That is, the proposal concerns the location where work which has previously been assigned to employees will be performed. The Agency will have already exercised its discretion to assign the work to particular employees or positions and will only be deciding which particular employee will be selected to work at which office. Moreover, it is undisputed that "[e]ach office is going to have the same number of employees with comparable grades[,]" that the current employees are "fungible," and that "all compliance officers by grade do the same type of work and are considered equal." Petition for Review. Further, there appears to be no relationship between job location and job duties because the record does not indicate that different types of work will be performed at each office.

The Agency did not file a statement of position and, thus, has not shown that the proposal in any way precludes management from assigning specified duties to employees or otherwise interferes with its right to assign work. See American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA No. 41, slip op. at 15 (1991); SSA; and GSA. The parties bear the burden of creating a record upon which the Authority can make a decision. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), affirming sub nom. National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril.

Accordingly, we conclude that the proposal does not directly interfere with the Agency's right to assign work but constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See OEA and INS.

V. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the proposal.(2)

(If blank, the decision does not have footnotes.)

1. By Order dated November 28, 1990, the Authority initially dismissed the Union's petition for review because of the Union's failure to comply with a November 8, 1990 deficiency order. The Union requested reconsideration of the Authority's November 28 Order, contending that, among other things, it did not receive the deficiency order until November 27, and that it complied with the deficiency order on the following day. On reconsideration, the Authority determined that the Union had complied with the November 8 deficiency order. Accordingly, by Order dated January 9, 1991, the Authority granted the Union's request for reconsideration, rescinded its November 28 Order, and reopened the case for further processing. In conjunction with reopening the case for further processing, the Authority granted the Agency an opportunity to file a statement of position, but the Agency did not file a statement of position.

2. In finding the proposal to be negotiable, we make no judgment as to its merits.