[ v41 p618 ]
The decision of the Authority follows:
41 FLRA No. 58
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of six subsections of a provision imposed on the parties by the Federal Service Impasses Panel which was disapproved by the Agency head under section 7114(c) of the Statute.
For the following reasons, we conclude that the disputed subsections, which address details of employees within the Agency, are negotiable.
II. The Subsections in Dispute
Article 27. Details, Temporary Assignments, and Voluntary Changes
Section 5. Rotation
A. The following shall apply when offering non-competitive details to both classified and unclassified positions.
1. The Administration will list the qualifications and performance attributes (e.g. relevant experience, knowledge, skills and training) it determines to be necessary to perform the detail. They will be objective and job-related.
2. The Administration will list the employees who possess the factors in 1.
3. The Administration will canvass the employees in 2 to determine if anyone wishes to be detailed. If the same number volunteer as vacancies exist, they shall be selected.
4. If more employees volunteer than vacancies exist, the Administration will select from the volunteers. Seniority will be the selection criterion, unless unusual circumstances require some other bona fide factor.
5. If there are no volunteers, then the least senior employee(s) in 2 will be selected.
6. If there are fewer volunteers than vacancies, then the volunteers will be selected, and additional persons will be selected as in 5.
7. Seniority means service in the Department of Health and Human Services.
8. These procedures will not apply when the Administration makes a detail to accommodate a substantiated medical or health problem.
9. These procedures will initially not apply when the Administration must make a detail to respond to an unusual, sudden, and unforeseen situation of an urgent nature. However, after the initial agency response, the Administration will fill the detail under the provisions of the Section.
10. The universe of employees to be canvassed will be those within the component of similar grade and occupation.
[Only the underscored portions of the provision are in dispute.]
A. Positions of the Parties
1. Subsection 1
The Agency claims that the requirement in subsection 1 that "the qualifications of employees selected for temporary assignments be objective and job related" violates the Agency's rights to assign employees and "to determine the particular qualifications and skills which the employee must have to fulfill the responsibilities of the temporary or permanent assignment." Statement of Position at 7.
The Union argues that the disputed sentence in subsection 1 is an appropriate arrangement for employees adversely affected by a management right. The Union states that the sentence ensures that employees will not be required to meet position qualifications that are not objective and job-related.
2. Subsections 3, 4, 5, and 6
The Agency argues that these subsections interfere with its right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency maintains that "the right to assign employees includes the right to determine the particular qualifications and skills needed to perform the work of the position, including such job-related individual characteristics as judgment and reliability, an[d] the right to determine whether employees meet those qualifications." Statement of Position at 6. The Agency claims that the disputed subsections prevent the Agency from evaluating employees' qualifications and, instead, require the Agency to assign employees based solely on seniority. The Agency also argues that its right to assign employees includes the right not to assign employees and that the disputed subsections interfere with its right by preventing the Agency from discontinuing details. Finally, the Agency claims that the Union has not demonstrated that Section 5, or any of its subsections, constitutes a negotiable appropriate arrangement.
The Union argues that Section 5, as a whole, does not interfere with the Agency's right to assign employees because it "leaves management free to determine where employees' skills, knowledge, and abilities can best be utilized." Reply Brief at 8. The Union states that the section does not affect the Agency's rights to determine the qualifications required for details and whether employees possess those qualifications, including "'such job-related individual characteristics as individual judgment and reliability.'" Id. at 11. According to the Union, subsections 3, 4, 5, and 6 apply "[o]nly after those rights have been exercised by the employer[.]" Id. at 7-8. The Union also asserts that Section 5 does not prevent the Agency from cancelling a detail and that subsections 4, 8, and 9 allow "the employer to make exceptions to the procedure and to weigh individual circumstances . . . ." Id.
The Union also asserts that Section 5, both as a whole and as separate subsections, constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union contends that there are "adverse effects of details [which] result from both being selected and not being selected for detail." Reply Brief at 16. The Union maintains that one adverse effect is "the denial of career advancement potential" to interested employees. Id. at 15. The Union argues, in this regard, that some details provide employees opportunities to gain new or unusual experience and, as a result, promotion advantages over other employees. The Union states that this is particularly true of non-classified assignments which later "'ripen' into fully-fledged promotions once classification has occurred." Id. The Union also argues that some involuntary details produce "morale problems and more difficult working conditions for the detailed employee, while virtually assuring that the employee's performance level will decline from the level the employee would achieve in the more familiar, permanent position." Id.
The Union explains that Section 5 offers employees the benefits of the "stability of a single procedure; a degree of protection against favoritism or punitive disparate treatment; efficiency of administration; effective use of human resources, as measured by the use of qualified volunteers when possible; and perception of equity in HCFA's personnel administration programs." Id. at 16. According to the Union, these benefits outweigh any interference with the Agency's right to assign employees resulting from the section.
3. Subsection 10
The Agency claims that the Union did not explain the meaning of the term "component" in subsection 10. The Agency maintains that it is possible that the Agency "would have the . . . responsibility for canvassing . . . the entire Department of Health and Human Services rather than some smaller organization with the Health Care Financing Administration, a primary component within the Department." Statement of Position at 9.
The Union states that subsection 10 "refers to the universe of positions whose incumbents have traditionally been in competition for each other for promotion, i.e., all similar positions from which detailees are customarily drawn." Petition for Review at 4. The Union states that subsection 10 would not require the Agency to canvass the entire Department of Health and Human Services (DHHS). The Union also states that "the employer is free to consider its various sections and divisions as part of the establishment of qualification requirements, and is thereby free to determine which employees, whether volunteers or not, are subject to be detailed." Reply Brief at 14.
B. Analysis and Conclusions
1. Subsection 1
The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine qualifications and skills needed to perform the work of a position, including job-related individual characteristics such as judgment and reliability. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990) (Robins Air Force Base). Proposals that prevent an agency from determining the qualifications of a position directly interfere with the right to assign employees. See National Federation of Federal Employees, Local 738 and Department of the Army, Headquarters, USA Medical Department Activity, Fort Leonard Wood, Missouri, 34 FLRA 809, 812-13 (1990) (Fort Leonard Wood).
By requiring qualifications to be objective and job-related, subsection 1 would prohibit the Agency from establishing qualifications that did not meet those standards. Accordingly, consistent with Fort Leonard Wood, we find that subsection 1 directly interferes with management's right to assign employees.
As subsection 1 directly interferes with the Agency's right to assign employees, it is nonnegotiable unless it constitutes an appropriate arrangement, under section 7106(b)(3) of the Statute. In determining whether a proposal constitutes an appropriate arrangement, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If a proposal is determined to be an arrangement, the Authority then determines whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).
The Union argues that Section 5 as a whole, including subsection 1, constitutes an appropriate arrangement. In particular, as discussed previously, the Union claims that the section would provide employees with a fair opportunity to compete for career-enhancing details and would minimize the adverse effects of involuntary details. Based on the Union's statements, we find that the disputed sentence in subsection 1 constitutes an arrangement, within the meaning of section 7106(b)(3) of the Statute.
We now consider whether the disputed portion of subsection 1 is appropriate within the meaning of section 7106(b)(3). In Kansas Army National Guard, the Authority stated that it would determine whether a proposed arrangement was appropriate by evaluating whether the negative impact on management's rights resulting from the proposal is disproportionate to the benefits to be derived from the proposed arrangement.
We find that subsection 1 would provide significant benefits to employees. The subsection would provide employees with specific information about possible details. The subsection also would assure employees that position qualifications are not tailored to specific employees, thereby denying other employees opportunities to qualify for details.
Subsection 1 clearly limits management's right to determine the qualifications it deems necessary to perform a detail by requiring the qualifications to be objective and job-related. The standards are general, however, and afford the Agency flexibility in determining qualifications. Moreover, the Agency has identified no interest, and none is apparent to us, in establishing qualifications that are not objective and job-related. We note, in this regard, that the Agency does not object to the requirement in subsection 1 that position qualifications "be necessary to perform the detail." A requirement that qualifications also be objective and job-related does not appear to be substantially more restrictive than the requirement to which it has agreed.
On balance, we find that the benefits afforded employees by subsection 1 outweigh the negative impact on management's right to assign employees. Accordingly, we find that subsection 1 does not excessively interfere with the Agency's right to assign employees and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
2. Subsections 3, 4, 5, and 6
As discussed in connection with subsection 1, the right to assign employees under section 7106(a)(2)(A) of the Statute encompasses the right to determine whether employees possess qualifications required to perform the work of a position. Robins Air Force Base, 35 FLRA at 269. Once management has determined that employees are qualified for an assignment, however, the procedure by which one of the qualified employees will be selected is negotiable under section 7106(b)(2) of the Statute. For example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 850 (1990); Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987), aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).
The Union states that Section 5 enables the Agency to determine whether employees possess qualifications required for details. We agree. In fact, subsection 2, which is not in dispute, specifically provides that the Agency will establish a list of employees who possess the qualifications it establishes in accordance with subsection 1. Other than the requirement in subsection 1 that qualifications be objective and job-related, nothing in section 5 limits the Agency's rights to establish qualifications and determine whether particular employees possess those qualifications.
Subsections 3, 4, 5, and 6, which apply to the selection of employees for details, expressly refer to the list of employees required by subsection 2. That is, the requirements that the Agency select volunteers (subsection 3), in order of seniority (subsection 4), inverse seniority (subsection 5), or a combination of both (subsection 6), all apply only to those employees that have been determined by the Agency to possess required qualifications. As such, we reject the Agency's assertion that these subsections interfere with its right to assign employees by requiring the Agency to detail employees without regard to their qualifications. Moreover, subsections 3, 4, 5, and 6 do not, explicitly or implicitly, prevent the Agency from cancelling details.
Because subsections 3, 4, 5, and 6 apply only to employees who have been determined by the Agency to be qualified, the subsections do not directly interfere with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute but constitute negotiable procedures under section 7106(b)(2) of the Statute. As no other basis for finding these subsections nonnegotiable is asserted by the Agency or is apparent to us, we conclude that they are negotiable.
3. Subsection 10
The Agency's sole objection to subsection 10 is that it could be read to require the Agency to canvass the entire Department of Health and Human Services to establish lists of qualified employees for details. The Union responds that subsection 10 would not require the Agency to canvass DHHS for qualified employees and asserts that subsection 10 preserves the Agency's right to determine particular needs of "organizational sub-divisions[.]" Reply Brief at 14.
As the Agency does not object to subsection 10, as interpreted by the Union, and as the Agency asserts no other basis, and none is apparent to us, for finding the subsection nonnegotiable, we find that subsection 10 is negotiable.
The Agency will rescind its disapproval of Article 27, Section 5, subsections 1, 3, 4, 5, 6, and 10.(*)
(If blank, the decision does not have footnotes.)
*/ In finding these subsections to be negotiable, we make no judgment as to their merits