[ v53 p403 ]
53:0403(47)NG
The decision of the Authority follows:
53 FLRA No. 47
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R1-109
(Union)
and
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
NEWINGTON, CONNECTICUT
(Agency)
0-NG-2241
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
September 15, 1997
_____
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
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), and concerns the negotiability of 11 proposals. The Agency filed a statement of position; the Union did not file any response. The parties filed supplemental submissions at the direction of the Authority.
For the reasons more fully explained herein, we find as follows:
Proposals 1 through 3, which require the Agency to use, respectively, volunteers, seniority and rotation to fill the detail that is the focus of the proposals, are not within the duty to bargain because they affect management's right to assign work under section 7106(a)(2)(B) of the Statute and there is no basis for concluding that they constitute procedures or appropriate arrangements. See Section IV, infra.
We dismiss, without prejudice, the petition for review as to Proposals 4, 8 and 10 because those proposals are not properly before us. See Section III, infra.
Based on the Agency's failure to cite any specific provision of law or regulation barring negotiation of Proposal 5, we find that it is within the duty to bargain. See Section V, infra.
Proposal 6, which requires the Agency to pay detailed employees the locality pay applicable to the site to which they are detailed, is inconsistent with a Government-wide regulation and, therefore, not within the duty to bargain. See Section VI, infra.
Proposal 7, which requires the Agency to delay the detail until after consolidation of two facilities, is not within the duty to bargain because it impermissibly affects management's right to assign work under section 7106(a)(2)(B). See Section VII, infra.
We dismiss the petition as to Proposal 9 because the record is inadequate to determine whether the proposal is within the duty to bargain. See Section VIII, infra.
Proposal 11, which requires that the Agency delay the detail until conclusion of the negotiation process, is not within the duty to bargain because it impermissibly affects management's right to assign work. See Section IX, infra.
II. Background
These proposals were presented in response to the Agency's announced plan to detail a specific nuclear medicine technician employed at the Veterans Administration Medical Center (VAMC), Newington, Connecticut, to the Nuclear Medicine Service at VAMC, West Haven, Connecticut. The proposed detail was for a 6-week period to assist in decreasing the backlog of nuclear medicine scans at VAMC, West Haven.
III. Preliminary Issues
A. Request To Take Official Notice
After the filing of the petition, the Union submitted a request that, pursuant to section 2429.5 of the Authority's regulations, the Authority take official notice of a settlement agreement between the parties resolving a number of unfair labor practice charges.(1) The Union contends that the settlement agreement is germane to this case because it shows "that the Activity has exercised it's [sic] discretion regarding 5 USC 7106(b)(1) issues." Union's request at 1.
We deny the Union's request. In negotiability decisions, when the Authority finds that a proposal concerns a matter encompassed by section 7106(b)(1), it dismisses the petition as to that proposal pursuant to section 2424.10 of its regulations. See, e.g., National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 394 (1995) (VAMC, Lexington). Consequently, the point the Union seeks to establish through official notice--whether an agency has elected to bargain matters covered by section 7106(b)(1)--could not affect the disposition of the proposals. See id. at n.12. In view of this, it is unnecessary to determine whether section 2429.5 applies.
B. Proposals 4, 8 and 10
Although, on its face, the Agency's allegation of nonnegotiability applied generally to the Union's proposals, the Agency states that the allegation does not concern Proposals 4, 8 and 10. In this regard, the Agency asserts that it agreed to Proposals 4 and 8 and that Proposal 10 is irrelevant. The Agency also asserts that Proposal 10 is not an appropriate arrangement, but does not claim that this proposal affects a management right.
Under section 2424.1 of the Authority's regulations, the Authority considers a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See, e.g., American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Headquarters, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 53 FLRA 131, 132 (1997). In the absence of any Agency argument that these proposals are inconsistent with law, rule, or regulation, there is no issue before us appropriate for resolution in a negotiability appeal. Therefore, we dismiss the petition as it relates to Proposals 4, 8 and 10 without prejudice to the Union's right to file an appeal if the Agency alleges that any of the proposals are outside the duty to bargain and the other conditions governing review are met. See id.
IV. Proposals 1-3
[Proposal 1]
The Employer shall first seek volunteers from qualified individuals.
[Proposal 2]
The Employer shall first assign the detail to employees on an inverse seniority basis.
[Proposal 3]
The Employer shall rotate equally, all qualified employees.
A. Positions of the Parties
The Union asserts that all of the proposals in this case concern numbers, types and grades under section 7106(b)(1) and are procedures and appropriate arrangements under section 7106(b)(2) and (3).(2)
The Agency asserts that these three proposals would require it to use, respectively, volunteers, seniority, and/or rotation to fill the detail. The Agency states that it has determined that only one employee possesses the qualifications for the detail and that these three proposals would negate that determination. The Agency maintains that, consequently, these proposals interfere with management's right "to assign" under section 7106(a) of the Statute.(3) The Agency contends that none of the proposals in this case involves matters encompassed by section 7106(b)(1).(4)
B. Analysis and Conclusions
1. Meaning of the Proposals
As worded, Proposal 1 requires the Agency to "first seek volunteers from qualified individuals" for the purpose of assigning an employee to the detail. The Union provides no statement of intent regarding this proposal or explanation of what constitutes a "qualified" individual under the proposal. The Agency claims, and the Union does not dispute, that Proposal 1 requires it to use volunteers to fill the detail and that only one employee is qualified for the detail. Based on the wording of the proposal and the Agency's undisputed claim that the proposal requires it to use volunteers for the West Haven detail, we construe Proposal 1 as requiring that the Agency solicit and assign volunteers to the detail rather than simply assigning the employee it has chosen to fill the detail.
As worded, Proposal 2 requires the Agency to "first assign" the detail to employees based on inverse seniority. The Union offers no explanation of this proposal. Based on its wording, we construe Proposal 2 as requiring the Agency to use inverse seniority in filling the detail rather than simply assigning the employee it has chosen for the detail.
As worded, Proposal 3 requires the Agency to "rotate equally[] all qualified employees" through the detail. The Union provides no statement of intent regarding this proposal and does not explain what constitutes a "qualified" employee. Based on the wording of this proposal, we construe Proposal 3 as requiring the Agency to rotate the detail among "qualified" employees rather than simply assigning the employee it has chosen for the detail.
2. We Reject the Union's Bare Assertion That the Agency May Elect To Bargain Over These Proposals Under Section 7106(b)(1)
In VAMC, Lexington, the Authority set forth the approach for resolving negotiability disputes where parties disagree whether a proposal comes within the terms of section 7106(a) or 7106(b)(1). Under this approach, the Authority first examines the contention that a proposal is electively bargainable under section 7106(b)(1). If the proposal concerns a subject set forth in section 7106(b)(1), the Authority does not address contentions that the proposal also affects the exercise of management's authorities under section 7106(a). If the proposal is not encompassed by section 7106(b)(1), however, the Authority proceeds to analyze it under section 7106(a).
Here, the parties disagree whether these proposals come within the terms of section 7106(a) or 7106(b)(1). However, the Union offers no support for its assertion that these proposals concern a matter within the subjects set forth in section 7106(b)(1). Where a party asserts that a proposal concerns a matter within the subjects set forth in section 7106(b)(1), but offers no argument or authority to support its bare assertion to that effect, and it is not otherwise apparent that the proposal concerns a section 7106(b)(1) matter, we will reject the assertion. Cf. American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513-14 (1996) (DCAA) (Authority rejected a union's bare assertion that a proposal was a negotiable procedure under section 7106(b)(2)); American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1317 (1996) (INS) (Authority determined that because the union did not explain, and the proposal did not speak to, the manner in which a disputed portion of the proposal would address adversely affected employees, that portion did not constitute an arrangement under section 7106(b)(3)).
The Union offers no basis for finding, and it is not otherwise apparent, that these proposals concern "numbers, types and grades" within the meaning of section 7106(b)(1) of the Statute. Consequently, we reject the Union's claim that they do.(5) As this unsupported claim encompasses all of the proposals in this case and because it is not otherwise apparent that any of the proposals concern "numbers, types and grades," we reject this bare assertion as a general matter and will not address it further in this decision.
3. These Proposals Affect Management's Right To Assign Work
The right to assign employees under section 7106(a)(2)(A) is the right to assign employees to positions. See, e.g., American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), aff'd sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). The right to assign work under section 7106(a)(2)(B) focuses on the assignment of duties and includes the right to determine the particular duties and work to be assigned to employees or positions and the particular employees to whom, or positions to which, the work will be assigned. See, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of Public Debt, 3 FLRA 769 (1980), aff'd, 691 F.2d 553 (D.C. Cir. 1982) (Bureau of Public Debt). The Authority has long held that the rights to assign employees and assign work each include establishing the qualifications and skills needed for a position or duties and judging whether particular employees meet those qualifications and skills. E.g., Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703, 706 (1982) (VA, National Cemetery Office).
Where management has determined that two or more employees are equally qualified, a proposal that sets forth a method or criteria for selecting one of them for an assignment does not directly interfere with management's rights to assign employees or assign work. See, e.g., American Federation of Government Employees, AFL-CIO, Local 3172 and Department of Health and Human Services, Social Security Administration, Sacramento, California, 49 FLRA 845, 848 (1994) (assign employees); VA, National Cemetery Office, 9 FLRA at 706 (assign work). Conversely, where management determines that only one employee possesses the requisite qualifications and skills for a position or to perform work, section 7106(a)(2)(A) and (B) reserves to management the right to make the assignment to that particular employee. Cf. id. at 707 (provision was not inconsistent with section 7106(a)(2)(A) or (B) because it permitted exception to the method of selection established by the provision if in management's view no two employees were equally qualified for assignment).
The Agency does not state whether it is claiming that these proposals affect its right to assign employees, assign work, or both. However, the Agency asserts in conjunction with Proposal 7 that the detail is for the purpose of accomplishing certain work, i.e., nuclear medicine scans at the West Haven facility. This argument indicates that, at a minimum, the Agency is asserting the right to assign work.
Applying the precedent described above, all three proposals affect the Agency's right to assign work under section 7106(a)(2)(B). Proposals 1 and 3 refer to more than one employee. In view of the Agency's undisputed claim that only one employee is qualified for the detail, these proposals pose alternatives to assigning to the detail the one employee whom the Agency has determined qualified. Therefore, as Proposals 1 and 3 treat other employees as equally qualified and require respectively that the Agency assign them to the detail if they volunteer or on a rotational basis, they supplant the Agency's determination as to who is qualified for the detail.
Proposal 2 also refers to more than one employee. Viewing Proposal 2 in the context of the Agency's undisputed claim that only one employee is qualified for the detail, it, like Proposals 1 and 3, treats other employees as equally qualified and requires the Agency to assign them to the detail if they are less senior than the employee the Agency has chosen. Therefore, because Proposal 2 substitutes seniority for the Agency's determination as to which employee is qualified for the detail, it affects the Agency's right to establish the qualifications and skills needed for the duties and to judge whether particular employees meet them.
In sum, we find that all three proposals affect the Agency's right to establish the qualifications and skills needed for the duties and to judge whether particular employees meet them.
4. These Proposals Are Not Procedures or Appropriate Arrangements
The Union provides no argument or authority to support its bare assertion that these proposals constitute procedures and appropriate arrangements under section 7106(b)(2) and (3) of the Statute. When a union fails to support such an assertion, the Authority declines to address it. See DCAA, 51 FLRA at 1513-14 (procedure); INS, 51 FLRA at 1317 (appropriate arrangement). Accordingly, the Union's assertion provides no basis for concluding that these proposals are within the duty to bargain under section 7106(b)(2) or (3).
The Union makes a single bare assertion that all of the proposals in this case are procedures and appropriate arrangements under section 7106(b)(2) and (3). In view of the Union's failure to provide any support for this claim, we reject the assertion that all of the proposals in this case are procedures and appropriate arrangements and will not address it further in this decision.
5. These Proposals Are Not Within the Duty To Bargain
As discussed above, these proposals affect management's right to assign work under section 7106(a)(2)(B) of the Statute and there is no basis for concluding that they constitute procedures or appropriate arrangements.(6) Consequently, we conclude that Proposals 1 through 3 are not within the duty to bargain.
V. Proposal 5
The Employer shall offer the employee the option of using the employee[']s own vehicle or agency vehicle, if the employee elects to use their own vehicle, the agency will pay travel and per diem costs to the employees.
A. Position of the Agency
The Agency states that it has agreed to pay travel costs.(7) However, the Agency asserts that insofar as the proposal requires that it also pay per diem, the proposal is contrary to law and regulation and, consequently, not within the duty to bargain. In support of its claim, the Agency cites only Comptroller General (CG) decisions B-189731 (January 3, 1978); B-185195 (May 28, 1976) and B-180603 (April 18, 1974).
B. Analysis and Conclusions
1. Meaning of the Proposal
As written, this proposal requires that an employee who is assigned to the West Haven detail have the option of using his or her own vehicle or an agency vehicle. If the employee chooses the former option, the Agency will pay travel and per diem costs. The Union offers no explanation of this proposal.
2. The Agency Has Failed to Support Its Allegation That This Proposal Is Not Within the Duty To Bargain
Pursuant to section 2424.6 of the Authority's regulations, an agency must cite the section of any law, rule or regulation on which it relies to support an allegation that a proposal is not within the duty to bargain.(8) See also National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE v. FLRA) (the parties are responsible for directing the Authority's attention, with as much specificity as possible, to the statutes and regulations relevant to an agency's duty to bargain).
The Agency has not cited the law or regulation on which it relies to support its allegation. In support of its allegation that Proposal 5 is inconsistent with law and regulation, the Agency cites only CG decisions. Those CG decisions rely on a version of the Federal Travel Regulations (FTRs) that has become outdated as a consequence of amendments over the years since the decisions issued. Further, although our cursory review of the FTRs reveals some existing provisions relating to the payment of per diem that are similar to those described or referred to in the CG decisions cited by the Agency,(9) the record does not permit us to determine whether or how those provisions apply.(10)
It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. E.g., National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 53 FLRA 139, 141-42 (1997), petition for review filed, No. 97-1522 (D.C. Cir. Aug. 25, 1997). A party acts at its peril when it fails to cite specific provisions of law or regulation and provide arguments that establish a basis for its claim that a proposal is not within the duty to bargain. See id. In view of the Agency's failure to support its allegation, we reject the claim that Proposal 5 is inconsistent with law and regulation. See NFFE v. FLRA, 681 F.2d at 891 (the Authority is not expected, sua sponte, to locate, analyze and apply all arguably pertinent statutes and regulations).(11) Accordingly, we conclude that Proposal 5 is within the duty to bargain.
VI. Proposal 6
The Employer shall pay the detailed employees the locality pay (8%) of the West Haven facility for the entire duration of the detail.
A. Position of the Agency
The Agency contends that this proposal is not within the duty to bargain because it is contrary to law and Government-wide regulation. Specifically, the Agency asserts that this proposal is inconsistent with a regulation issued by the Office of Personnel Management (OPM). The Agency states that nuclear medicine technicians receive a special salary rate.(12) The Agency asserts that pursuant to 5 C.F.R. § 531.103(a)(1) and (2), employees on special salary rates may receive the greater of (1) an applicable special salary rate or (2) locality pay,(13) but not both. The Agency states that the relevant special salary rate is greater than the locality pay that the proposal seeks.
The Agency also contends that this proposal is not an appropriate arrangement because it addresses a benefit rather than adverse effects flowing from the exercise of a management right.
B. Analysis and Conclusions
1. Meaning of the Proposal
As written, this proposal requires that affected employees detailed to VAMC, West Haven, receive the locality pay applicable to that location. The Union offers no explanation of this proposal. However, the Agency claims, and the Union does not dispute, that nuclear medicine technicians receive a special salary rate. Based on the wording of the proposal and the Agency's undisputed assertion, we construe this proposal as requiring that detailed employees receive the locality pay applicable to the West Haven area without regard to its relationship to any special salary rate that the employees receive.
2. This Proposal Is Inconsistent With a Government-wide Regulation
OPM revised the regulations governing locality pay during the pendency of this case. As part of that revision OPM removed 5 C.F.R. § 531.103, which the Agency cites to support its contention that this proposal is not within the duty to bargain. However, a comparable provision presently exists at 5 C.F.R. § 531.606. Because the Authority decides negotiability cases based on the law at the time of the Authority's decision, we will decide this case based on 5 C.F.R. § 531.606. See, e.g., National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 47, 51 n.2 (1991) (Naval Underwater Systems Center, Newport).
In relevant part, 5 C.F.R. § 531.606(a) provides that employees shall receive the greater of either their rate of basic pay, including any applicable special salary rate, or an applicable locality rate of pay. On its face, this proposal does not condition payment of locality pay on its relationship to the pay that the employee receives based on the special salary rate. Moreover, the Union does not provide anything to support an interpretation that the proposal allows for applicable legal and regulatory conditions on the payment of locality pay. Consequently, we find that this proposal is inconsistent with 5 C.F.R. § 531.606(a). Cf. International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 351 (1995) (proposal was inconsistent with statutory provision limiting pay adjustments because the proposal would produce adjustments that could exceed the limitation).
We find that 5 C.F.R. § 531.606(a) is a Government-wide regulation within the meaning of section 7117 of the Statute. Government-wide regulations are rules, regulations, or official declarations of policy that are generally applicable throughout the Federal Government and are binding on the Federal agencies and officials to whom they apply. E.g., U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 193 (1990). Section 531.606(a) is a regulation issued by OPM pursuant to 5 U.S.C. § 5304(i), which authorizes OPM to prescribe regulations implementing locality-based payments under FEPCA. See 5 C.F.R. § 531.601. Section 531.606(a) applies to employees whose official duty stations are located in locality pay areas and (1) whose rates of basic pay are established under the General Schedule or (2) who are in certain positions for which the President has authorized locality-based comparability payments pursuant to 5 U.S.C. § 5304(h)(2). 5 C.F.R. § 531.602. Thus, section 531.606(a) applies generally throughout the Federal Government. On its face, section 531.606(a) is mandatory and, hence, binding on the agencies and officials to which it applies. See 5 C.F.R. § 531.606(a) ("An employee shall receive the greatest of . . . ." (emphasis supplied)).
It is well established that proposals that are inconsistent with Government-wide regulations are not within the duty to bargain. See, e.g., Naval Underwater Systems Center, Newport, 43 FLRA at 50. Therefore, we conclude that this proposal is not within the duty to bargain under section 7117(a)(1) of the Statute.
VII. Proposal 7
The Employer shall not detail any employees until such time as the facilities, West Haven, and Newington, are formally and officially consolidated.
A. Position of the Agency
The Agency contends that this proposal is not within the duty to bargain because it abrogates management's right to "assign." The Agency argues that delaying the detail would undercut its purpose, which is to alleviate a growing backlog of nuclear medicine scans at West Haven. The Agency maintains that reading the scans in a timely manner is essential to patient care. The Agency asserts that this proposal is neither a procedure nor an appropriate arrangement. As to the former, the Agency contends that proposals that delay the exercise of a management right cannot be construed as procedures because timing is an integral part of the right. As to the latter, the Agency asserts that this proposal excessively interferes with its right to make an assignment that is for the purpose of meeting critical patient care needs.
B. Analysis and Conclusions
1. Meaning of the Proposal
As worded, this proposal would delay the detail of the nuclear medicine technician from Newington to West Haven until facilities at West Haven and Newington are consolidated. The Union offers no explanation of this proposal. Neither party elaborates on the referenced consolidation of the two facilities and nothing in the proposal itself requires the consolidation of the facilities.
2. This Proposal Affects Management's Right To Assign Work
Similar to Proposals 1-3, the Agency does not state whether it is asserting that this proposal affects the right to assign employees under section 7106(a)(2)(A), the right to assign work under section 7106(a)(2)(B), or both. In view of the Agency's argument that this proposal would undercut its ability to accomplish certain work, i.e., nuclear medicine scans at the West Haven facility, we construe the Agency's claim to encompass at least the right to assign work.
The right to assign work under section 7106(a)(2)(B) includes the determination of what duties will be assigned, the particular employees to whom work will be assigned, when work assignments will occur and when work that has been assigned will be performed. See, e.g., Bureau of Public Debt, 3 FLRA at 775. This proposal affects the Agency's right to determine when the work relating to nuclear medicine scans at West Haven can be performed by a detailee from Newington, and, consequently, affects management's right to assign work under section 7106(a)(2)(B). Cf. American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 174-75 (1993) (Fort Carson) (proposal effectively prohibiting the assignment of any task unless and until the specific work assignment is included in the position description directly interferes with management's right to assign work).(14)
In its earlier decisions, the Authority routinely found proposals that merely delayed the exercise of a management right to be within the duty to bargain. See, e.g., National Association of Government Employees, SEIU, AFL-CIO and State of Connecticut, Adjutant General Office, 27 FLRA 801, 806-09 (1987) (Chairman Calhoun dissenting). The Authority later modified that position and adopted the view that, with limited exceptions, proposals that precluded an agency from exercising a management right unless or until other events occurred were not within the duty to bargain. See Fort Carson, 48 FLRA at 173-74. The exceptions under this modified view were proposals to delay management action pending completion of bargaining and appellate processes, which remained within the duty to bargain.(15) See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston Regional Office, 48 FLRA 232, 240-42 (1993) (HUD, Boston). No party questions this precedent or its application to this case. Therefore, as this proposal does not condition the delay on the completion of bargaining and appellate processes, it is not within the duty to bargain. See Fort Carson, 48 FLRA at 174-75.
We conclude that Proposal 7 is not within the duty to bargain.
VIII. Proposal 9
All travel will be considered hours of work and will be encompassed within the employees [sic] normal tour of duty.
A. Position of the Agency
The Agency contends that because this proposal requires that "commuting" take place during the employee's tour of duty, this proposal violates law, 5 U.S.C. § 5542(b)(2), which controls the payment of overtime for time spent in travel status. The Agency also asserts that this proposal contravenes management's right to "assign" by precluding the assignment of other work during the travel period. The Agency maintains that this proposal is neither a procedure nor an appropriate arrangement. In this latter regard, the Agency argues that this proposal excessively interferes with management's right and, moreover, addresses a benefit rather than an adverse effect flowing from the exercise of a management right.
B. Analysis and Conclusions
1. Meaning of the Proposal
As worded, this proposal requires that all travel involved in the detail of the nuclear medicine technician from Newington to West Haven will be considered hours of work and be encompassed within the employee's normal tour of duty. The Union offers no explanation of this proposal. The Agency asserts that this proposal would permit commuting during an employee's tour of duty. The meaning of this proposal is unclear. In particular, it is unclear whether this proposal requires that travel to and from West Haven be scheduled during the time the detailed employee would otherwise be performing duties, or only that overtime compensation be provided for the travel, which would be scheduled so that it would not compete with the assignment of duties.
2. The Record Is Insufficient for a Determination of Whether This Proposal Is Within the Duty To Bargain
The meaning of this proposal is not sufficiently clear to permit us to determine whether the proposal affects management rights or is inconsistent with 5 U.S.C. § 5542(b)(2). Consequently, we are unable to decide whether the proposal is within the duty to bargain. See, e.g., National Federation of Federal Employees, Forest Service Council, Region 8 and U.S. Department of Agriculture, Forest Service, 49 FLRA 970, 972 (1994) (record was insufficient for Authority to understand proposal; parties bear the burden of creating a record on which the Authority can make a negotiability determination; a party failing to do so acts at its peril).
We dismiss the petition as to this proposal.
IX. Proposal 11
No employee will be detailed until such time as the parties concluded the negotiation process, up to and including impasse proceedings regarding these union counter proposals.
A. Position of the Agency
The Agency contends that this proposal is not within the duty to bargain because it abrogates management's right to "assign" and is neither a procedure nor an appropriate arrangement. The Agency contends that this proposal would result in a greater backlog in nuclear medicine scans and that reading the scans in a timely manner is essential to "meeting critical patient care needs." Statement of Position at 10.
B. Analysis and Conclusions
1. Meaning of the Proposal
As written, this proposal delays the implementation of the detail until after the parties conclude the negotiation process.
2. This Proposal Is Not Within the Duty To Bargain
Under Authority precedent, as discussed in conjunction with Proposal 7, proposals requiring an agency to maintain the status quo during the bargaining process are within the duty to bargain. See HUD, Boston, 48 FLRA at 240-42. However, precedent also provides an exception to this latter holding where implementation of an action is consistent with the necessary functioning of the agency. Cf. International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1504 (1991) (in finding that a proposal to delay implementation of drug testing program pending completion of negotiations was within the duty to bargain, the Authority noted that the proposal would not prevent the agency from implementing changes that are consistent with the necessary functioning of the agency).
Here, the Agency claims that implementation of this detail is essential to fulfilling its patient care function. The Union offers no rebuttal to the Agency's claim. Based on the Agency's undisputed claim, we conclude that this proposal would interfere with the implementation of an action that is essential to the Agency's mission and, therefore, is not within the duty to bargain under Authority precedent. It is well established that the parties bear the burden of creating a factual record on which the Authority can base a negotiability decision. See, e.g., NFFE v. FLRA, 681 F.2d at 891. A party failing to meet this burden acts at its peril. E.g., American Federation of Government Employees, Council of Locals 163 and U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts, 52 FLRA 1063, 1066 (1997).
X. Order (16)
The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 5.(17) The petition for review is dismissed as to Proposals 1, 2, 3, 6, 7, 9, and 11. The petition for review concerning Proposals 4, 8 and 10 are dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions for review are satisfied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Section 2429.5 provides:
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.
2. This position, which was taken with regard to each of the proposals in this case, will not be repeated in conjunction with our discussion of the remaining proposals.
3. The Agency does not specify whether it is referring to the right to assign employees under section 7106(a)(2)(A), the right to assign work under section 7106(a)(2)(B), or both, and cites cases relating to both rights in support of its claim. We expect agencies who are parties to negotiability petitions before the Authority and who contend that a proposal is not within the duty to bargain because it affects management rights to clearly identify which management right or rights they are asserting. See section 2424.6(a) of the Authority's regulations, which is quoted in relevant part at note 8 infra.
4. This contention will not be repeated in conjunction with our discussion of the remaining proposals in this case.
5. In Member Wasserman's view, the circumstances in this case are distinguishable from those to which his dissent in DCAA was addressed. Specifically, he finds this case distinguishable because the Agency claims that only one employee is qualified for assignment to the detail involved. Although dubious about this Agency claim, Member Wasserman accepts it because it is undisputed by the Union. In DCAA, there was no similar claim with respect to the temporary duty assignments involved in that case.
6. In view of our finding that these proposals affect management's right to assign work under section 7106(a)(2)(B) and our rejection of the Union's assertion that this proposal constitutes an appropriate arrangement under section 7106(b)(3), there is no need to address whether these proposals would also affect management's right to assign employees under section 7106(a)(2)(A).
7. Attachments to the petition indicate that the Agency agreed to pay mileage relating to the detail for the number of miles, if any, in excess of the normal daily commute to Newington.
8. Section 2424.6(a) provides in relevant part that an agency that is a party to a negotiability petition shall file a statement:
(2) Setting forth in full its position on any matters relevant to the petition which it wishes the Authority to consider in reaching its decision, including a full and detailed statement of its reasons supporting the allegation. The statement shall cite the section of any law, rule or regulation relied upon as a basis for the allegation . . . .
9. For example, the FTRs do not allow the payment of per diem where travel is within the limits of the "official station" or the vicinity of the employee's abode. See 41 C.F.R. § 301-7.5(a). Additionally, the FTRs provide that agencies "may" define a radius or commuting area broader than the official station in which the payment of per diem will be restricted. See id. Other provisions in the FTRs establish a minimum time period of travel for which per diem is allowable when the travel does not exceed 24 hours. See 41 C.F.R. § 301-7.5(b); 41 C.F.R. § 301-7.7.
10. The Agency asserts without further specifics only that per diem is not payable because the travel involved in the detail is "within the local travel area" and is "commuting, requiring no overnight stay." Statement of Position at 7. In its statement of position, the Agency does not identify which of the provisions we have cited above, or others that may be relevant, it is relying on. Moreover, the Agency does not provide sufficient facts to enable us to determine whether the proposal is inconsistent with law and regulation.
11. The circumstances involved in this proposal are distinguishable from those involved in Proposal 6. In its statement of position concerning the latter proposal, the Agency cited a section of a regulation with which it claimed the proposal inconsistent. However, the Agency has not cited any section of law or regulation to support its claim that this proposal is not within the duty to bargain.
12. Special salary rates, which are governed by 5 U.S.C. § 5305, are higher rates of basic pay that are provided to enhance recruitment and retention in specific occupations and locations.
13. Locality pay refers to a system of locality-based comparability payments to certain Federal employees established by the Federal Employees Pay Comparability Act of 1990 (FEPCA). See 5 U.S.C. § 5304; 5 C.F.R. § 531.601.
14. In view of our decision that this proposal affects management's right to assign work and our rejection of the Union's bare assertion that this proposal is an appropriate arrangement under section 7106(b)(3), it is unnecessary to address whether the proposal also affects management's right to assign employees.
15. These exceptions are, in turn, subject to an exception that is discussed in conjunction with Proposal 11 infra.
16. This case was submitted to the Authority with a particularly poor record. The Union advanced claims for which it provided no support. The Agency, in some instances, failed to identify the statutory provisions it relied on in claiming that proposals were contrary to law. We are unable to ascertain the meaning of one proposal, making it impossible to determine whether it is within the duty to bargain. Three of the eleven proposals submitted for decision were not properly before the Authority. The parties' evident disregard for the expenditure of time and resources necessitated by this appeal reflects poorly on them and is a disservice to the Federal Service Labor-Management Relations program as a whole.
17. In concluding that this proposal is within the duty to bargain, we make no judgment as to its merits.