[ v49 p845 ]
The decision of the Authority follows:
49 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 3172
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 26, 1994
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 two provisions of a memorandum of understanding (MOU) which were disapproved by the Agency head under section 7114(c) of the Statute. The provisions concern the assignment of employees to a particular work unit. For the reasons which follow, we find that Provision 1 is negotiable and Provision 2 is nonnegotiable.
Provision 1 - Selection Procedures
1. The Employer shall issue a memo to all qualified employees within the office and distribute the memo to each employee.
2. All qualified employees will be given the opportunity to volunteer.
3. Employees shall volunteer in writing.
4. Should the number of qualified employees exceed the number of positions available, the Employer shall normally select the qualified volunteer with the most seniority. Should there be an insufficient number of volunteers, the Employer shall normally select the qualified employee with the least seniority. Seniority will be determined by Service Comp Date. The employee currently in the ALTA Unit at each time the selection procedure commences, will not be considered for selection based upon seniority.
5. If the Employer does not select an employee that would have been selected by seniority or inverse seniority as indicated above, the Employer will provide its reasons in writing to the Local 3172 President. The Employer's selection is subject to the negotiated grievance procedure.
6. When selection would create/aggravate a documented hardship for the employee, the parties (Employer and Union) may mutually agree to bypass the selection procedure.
Provision 2 - Consideration For Selected Employee
1. The employee in the ALTA Unit may request in writing at any time to be rotated out of the unit; other employees may also request to be rotated into the unit.
2. If the ALTA C[laims] R[epresentative] has been in this unit for at least 24 months and a request is made in accordance with (1) above, management will implement the above selection procedures.
3. If a request per (1) above is received before the ALTA C[laims] R[epresentative] has been in the Unit for 24 months, management has the option of not making any change in assignments or of implementing the selection procedures described above.(1)
[Only the underlined portions of the provisions are in dispute.]
III. Positions of the Parties
The Agency did not file a statement of position. In its memorandum disapproving the MOU, the Agency contended that Provision 1 interferes with its rights to assign employees and determine the personnel by which Agency operations will be conducted, under section 7106(a)(2)(A) and (B) of the Statute, because it "requires selection o[f] any qualified volunteer by seniority regardless of the need to use the employee in some other capacity." Petition for Review, Attachment 2. The Agency contended that the requirement in Provision 2 "to rotate the employee after 24 months affects [management's] authority to assign work" under section 7106(a)(2)(B) of the Statute. Id.
The Union contends that the Provisions 1 and 2 are negotiable procedures because they "do not impose substantive interference on the employer's decisions regarding the establishment of the ALTA Unit, or the selection of employees for that Unit." Petition for Review at 3. The Union asserts that the provisions are "to be applied along with and as integrated parts of the rest of the MOU." Id. The Union also asserts that Provision 1 would "permit the employer, in an abnormal situation, to not select an employee . . . by providing its reasons in writing" to the Union. Id.
In the alternative, the Union claims that the disputed provisions are appropriate arrangements, within the meaning of section 7106(b)(3) of the Statute. The Union contends that the provisions enable the Agency "to determine qualifications necessary to perform its work, and . . . to make selections other than as described by [the provisions] . . . in abnormal instances." Id. The Union contends that the provisions are "reasonably balance[d] between any bona fide business interests of the Agency which might arise so as to mandate a different procedure, and the interests of employees in rotating out of the ALTA Unit." Id. at 4. The Union claims that the provisions would mitigate the "physical and emotional stress" related to an assignment to the ALTA Unit. Id. at 3.
IV. Analysis and Conclusions
A. Provision 1
The Authority has long held that the right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of a position, including job-related individual characteristics, and the right to determine whether individual employees meet those qualifications. For example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884, 907 (1993) (OTS), petition for review filed sub nom. American Federation of Government Employees, Local 3295 v. FLRA, No. 93-1488 (D.C. Cir. Aug. 10, 1993). Similarly, the right to determine the personnel by which agency operations are conducted includes the right to determine the particular employees or personnel to whom work will be assigned. For example, National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Pacific Region, 47 FLRA 1038, 1044 (1993).
However, the Authority also has long held that, if management retains the right to determine the qualifications for assignment and whether individual employees possess such qualifications, then the procedures by which one of the qualified employees is assigned is a negotiable procedure under section 7106(b)(2) of the Statute. For example, OTS, 47 FLRA at 907. In particular, "an agency can be required to select a candidate for a position on the basis of seniority where management is able to determine the source from which it will select and the qualifications needed for the position." Id. at 906. See also American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 41 FLRA 618, 622-25 (1991).
Recently, in the Decision and Order on Request for Reconsideration in American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto California, 49 FLRA 302 (1994) (SSA), we addressed a substantively similar provision. Specifically, Proposal 2 in SSA required the agency to select qualified volunteers for assignment to the agency's disability work unit. Among other things, the agency in SSA argued that the proposal would prevent it from assigning employees to other duties where their qualifications were more in need. In our initial decision, we determined, based on the agency's argument, that the proposal directly interfered with the agency's right to assign employees to duties and positions outside the disability work unit. American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto California, 48 FLRA 489, 497 (1993). On reconsideration, however, we concluded that the proposal did not interfere with management's rights because, consistent with the Union's interpretation of the proposal, that the agency had "sole discretion" to determine and apply "the range of factors management can take into account in deciding to reject an applicant" for the disability work unit. SSA, 49 FLRA at 316.
In this case, Provision 1 requires the Agency to select qualified employees, in order of seniority, for assignment to the ALTA unit. It is undisputed that the provision allows the Agency to determine the qualifications for such assignments and to determine whether individual employees possess those qualifications. Although the Agency, at the national level, initially objected to the provision on the grounds that it would prevent the Agency from "us[ing] [the selected] employee in some other capacity[,]" the Agency filed no statement of position in response to the Union's petition for review, which clearly states that the Agency retains authority to determine and apply qualifications and to make decisions on assignments based on its needs. Petition for Review, Attachment 2. In particular, the Union states repeatedly that the provision applies only to "qualified employees." Petition for Review at 2, 3. In addition, the Union emphasizes that the provision provides the Agency "the ability to determine qualifications necessary to perform its work[.]" Id. at 3. It is significant that the latter statement refers generally to the Agency's work, and not specifically to work in the ALTA Unit. As the petition for review was filed in response to the Agency's disapproval of the provision, it is reasonable to conclude that, by referring generally to the Agency's right to determine qualifications necessary to perform its work, the Union intended its statement to encompass work in and out of the ALTA Unit. As noted, the Agency did not respond to the petition for review.
In these circumstances we have no basis on which to conclude that, under Provision 1, the Agency would be prevented from considering its needs to assign qualified employees to positions in other than the ALTA unit in determining qualifications for assignment to the ALTA unit. That is, we conclude, based on the record of this case, that the Agency's right to determine qualifications under Provision 1 includes the right to determine that certain volunteers will not be assigned to the ALTA unit because those employees' individual qualifications necessitate their assignment to other positions. Accordingly, consistent with long-standing Authority precedent finding similar provisions negotiable, we find that Provision 1 does not directly interfere with the Agency's rights to assign employees and determine the personnel by which its operations are conducted. As no other basis on which to find the provision nonnegotiable is argued or apparent, Provision 1 is negotiable.
B. Provision 2
Proposals that preclude management from determining the duration of work assignments directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. For example, SSA, 49 FLRA at 308-09. Provision 2 would require the Agency, at the request of an ALTA unit employee with 24 months of service in that unit, to initiate selection procedures to replace that employee with another qualified employee. As such, the provision imposes, in certain situations, a mandatory rotation period and limits the duration of work assignments. Accordingly, Provision 2 directly interferes with the exercise of management's right to assign work. See id.
Although Provision 2 directly interferes with the Agency's right to assign work, the provision is, nevertheless, negotiable if it constitutes an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Authority established an analytical framework for determining whether a provision constitutes an appropriate arrangement. First, we determine whether the provision constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the provision in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176 (1994) (Member Armendariz, concurring in part and dissenting in relevant part). Second, if we conclude that the provision is an arrangement, we then determine whether the provision is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the provision outweighs the provision's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.
The Union contends that, as an assignment to the ALTA Unit requires the performance of more computer work than in the employee's previous unit, the assignment will result in physical and emotional stress to the employee assigned to that unit. The Union argues that, by limiting the duration of assignments to the ALTA Unit, Provision 2 would ameliorate these adverse effects.
Even assuming that Provision 2 constitutes an arrangement for adversely affected employees, we conclude that the record before us does not provide a basis for finding that the arrangement is appropriate. In this regard, neither the Union nor the Agency has provided any information concerning the ALTA Unit. Specifically, the record is silent with respect to such matters as the operations, work assignments, or size of that Unit. Moreover, the parties offer conflicting arguments on whether assignments to the ALTA Unit increase affected employees' physical stress, and neither party offers any support for its argument.
We are unable to determine from the sparse and conflicting information provided by the parties the extent of either the benefits provided to employees by Provision 2 or the burdens the provisions impose on the exercise of management's right to assign employees. In this connection, we note that the parties bear the burden of creating a record on which we can base a negotiability determination. See, for example, American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 352 (1993). As the record provides an insufficient basis on which to conclude that Provision 2 constitutes an appropriate arrangement, and as the provision directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute, we find that it is nonnegotiable.(2) See, for example, National Association of Government Employees, Local R4-45 and U.S. Department of the Navy, Navy Resale and Services Support Office, Norfolk Virginia, 40 FLRA 56, 62 (1991).
The Agency shall rescind its disapproval of the disputed part of Provision 1.(3) The petition for review, as it pertains to Provision 2, is dismissed.
(If blank, the decision does not have footnotes.)
1. Neither party has provided a description of the ALTA Unit.
2. In view of our decision, it is not necessary to address the Agency's claim that Provision 1 interferes with management's right to determine the personnel by which Agency operations will be conducted under 7106(a)(2)(B) of the Statute.
3. In finding Provision 1 to be negotiable, we make no judgment as to its merits.