[ v55 p1145 ]
55 FLRA No. 184
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1985
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, DUBLIN, GEORGIA
DECISION AND ORDER ON
November 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
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). The case concerns the negotiability of four proposals.
For the reasons that follow, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review.
The parties entered into a settlement agreement of an unfair labor practice charge, in which they agreed to bargain over the "Nursing Service Memorandum [NSPM] No. 118-36 Medication/Intravenous Therapy Administration and Storage and Disposal of Needles, Syringes, and Contaminated Material." The Union thereafter submitted proposals to the Agency. In response, the Agency sent the Union a memorandum alleging that four of the proposals were nonnegotiable on various grounds. See Petition for Review, Attachment 3.
III. Preliminary Issues
A. The Petition for Review Was Not Prematurely Filed
The Agency argues that the petition for review is premature because the Union did not request an allegation of nonnegotiability from the Agency as required under the Authority's Regulations. The Agency acknowledges that, while it "raised negotiability objections" to some of the proposals, it was willing to engage in further discussions of other proposals. Statement of Position at 5.
The Union claims that the petition is properly before the Authority. According to the Union, an Agency "memorandum dated October 6, 1997 is a declaration of non-negotiability as it left no opening for discussion of the proposals made by the union . . . ." Response at 1.
The Authority's Regulations provide that a union may file a petition for review of negotiability issues with the Authority following service on the union of the agency's allegation of nonnegotiability. [n1] A union may obtain a written allegation of nonnegotiability by making a written request for such an allegation from the agency. A union may also file a petition for review based on an agency's unsolicited written allegation that a matter over which the union seeks to negotiate is outside the duty to bargain. See American Federation of Government Employees, Local 1867 and U.S. Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado, 46 FLRA 199, 202 (1992). There is no requirement in the Statute or the regulations that an allegation of nonnegotiability must be made with any particular degree of specificity. See id. at 203. See also National Air Traffic Controllers Association, Local C90 and U.S. Department of Transportation, Federal Aviation Administration, 45 FLRA 469, 472 (1992) (FAA).
In this case, the Union submitted its proposals to the Agency via an e-mail message. Although the Union did not request an allegation of nonnegotiability, the Agency responded to the proposals, asserting that each was outside the duty to bargain either because it affected management rights or pertained to classification matters. Consistent with the precedent cited above, we find that the Agency's memorandum constitutes an unsolicited allegation of nonnegotiability, from which the Union could file a petition for review. The Union's petition for review was not prematurely filed. [ v55 p1146 ]
B. Section 7106(b)(1) Claims Are Properly Raised in a Negotiability Proceeding
The Agency argues that, insofar as the Union asserts that its proposals "are negotiable under section 7106(b)(1) pursuant to Executive Order No. 12871, negotiability of the proposals cannot be determined under the negotiability appeal procedure. The Authority will determine only if the proposals concern section 7106(b)(1) matters, and will dismiss the appeal if they do." Statement of Position at 15 (citations omitted).
Although the precise basis of the Agency's contention is not clear, to the extent the Agency contends that the Authority lacks jurisdiction over the petition, we reject the contention. The Authority has previously addressed and rejected similar claims in American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228, 229-30 (1999), and American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1489-90 (1997) (FCI, El Reno). The Authority found that an agency allegation of nonnegotiability "is the sole express requirement for filing an appeal under section 7117(c)(1) of the Statute. Nothing in section 7117(c)(1) of the Statute conditions a union's ability to file a negotiability petition on the union's theory as to why a proposal is within the duty to bargain." See FCI, El Reno, 52 FLRA at 1489-90 (emphasis in original).
Here, the Agency claimed, and continues to claim, that the proposals are outside the duty to bargain because they affect the exercise of various management rights or are otherwise contrary to law. Thus, the Union's petition meets the jurisdictional requirements under section 7117(c)(1) of the Statute for filing a negotiability appeal with the Authority.
C. The Duty to Bargain Claim Is Not Properly Before the Authority in This Proceeding
The Union claims that its proposals were made in accordance with the master agreement between the Department of Veterans Affairs and the American Federation of Government Employees. [n2] According to the Union, the Agency agreed to bargain over section 7106(b)(1) matters and not to raise section 7106(a) as a means of circumventing its bargaining obligation under section 7106(b)(1). The Union argues that, in order for the Agency to bargain in good faith, the parties' contractual agreement must be honored. The Union also claims that the Agency's conduct in this case violated various provisions of the Statute.
These claims are not properly before us. Under the Authority's regulations that are applicable to this case, see note 1, supra, issues concerning the duty to bargain are not appropriately resolved in this proceeding. [n3] See, e.g., American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 175-76 (1998) (HUD); American Federation of Government Employees, Local 2143 and U.S. Department of Veterans Affairs Medical Center, Boston, Massachusetts, 48 FLRA 41, 43-44 (1993). See also FAA, 45 FLRA at 473 (claimed existence of threshold duty to bargain questions did not preclude determining negotiability of proposals that were otherwise properly before Authority).
IV. Proposal 1
The Union proposes deletion of Part IV.A.3. of the NSPM which reads as follows:
NAs [nursing assistants] (GS-04) will insert laxative suppositories, with demonstration competency as assigned by RN [Registered Nurse]. NAs will document insertion on treatment record, VAF 10-2970a.
A. Positions of the Parties
The Agency claims that this proposal contravenes management's rights to assign work and employees and to determine the personnel who will conduct Agency operations. The Agency argues that the right to assign work includes the right to determine the duties to be assigned to particular positions and employees. See Statement of Position at 7, citing National Association of Government Employees, Local R1-109 and Department of Veterans Affairs Medical Center, Newington, Connecticut, 53 FLRA 403 (1997) (NAGE Local R1-109). The Agency asserts that the proposal would place a "flat prohibition" on the assignment of a particular duty to NAs, thereby violating the right to assign work. Statement of Position at 7. [ v55 p1147 ]
The Agency further contends that "the [U]nion's requirement" that the duties be assigned "only to licensed personnel" violates the Agency's right to assign employees, as well as its right to determine the personnel to conduct its operations. Id. at 8-9. The Agency states that it has determined that the NAs possess the skills and qualifications necessary to perform the specified duty. The Agency also argues that, to the extent that the proposal would require the assignment of the disputed duties to RNs, the proposal is outside the duty to bargain because it concerns employees in a different bargaining unit.
Finally, the Agency rejects the Union's assertion that the proposal concerns the "[t]echnology, methods and means" of performing work under section 7106(b)(1) of the Statute. The Agency argues that the phrase "technology, methods and means" refers to "how" an agency accomplishes its work, not "who" accomplishes the work. Id. at 10.
According to the Union, the "express position" made in its proposal is that "[o]nly licensed staff should give any and all medications regardless of route." Petition for Review at 3. The Union explains that, in the past, only licensed staff could give medications because they were qualified to do so, received formal training, and passed a state test for competency. The Union asserts that, as NAs are not licensed, they should not be allowed to give medications for the protection of the patient, the facility and the employee. The Union also states that, should the NAs be forced to give medication to patients, they will have to rely on RNs or LPNs (licensed practical nurses) for dosage amounts and times, and patient allergy histories.
The Union also contends that the proposal does not affect management's right to assign work because the "RN's are not management personnel [and] therefore cannot assign work[.]" Response at 2. The Union explains that until the NSPM was implemented, only licensed personnel - RNs and LPNs - were allowed to administer medication.
Additionally, the Union states that the proposal addresses the means of performing work. The Union explains that:
The proposal addresses . . . documentation on the treatment record instead of the medication record . . . as the agency did not want the nursing assistants to document administration of medication on the medication record. The proposal . . . also addresses the fact that the nursing assistant in order to perform the work of administering medications rectal must locate the Registered Nurse to obtain the correct medication, assume that the medication provided by the Registered Nurse is the correct one, and must have the Registered Nurse provide guidance on whether the patient is allergic to any medication prior to administration.
Response at 4. [n4]
B. Analysis and Conclusions
1. Meaning of the Proposal
Proposal 1 would require the Agency to delete the requirement in the NSPM that NAs insert laxative suppositories. Although the proposal is silent with respect to who will perform that task, the Union explains that the intent of the proposal is to require that only licensed staff, RNs or LPNs, "give any and all medications regardless of route." Petition for Review at 3. We adopt that explanation and find that the proposal would require only licensed staff to insert laxative suppositories. The proposal would also require the Agency to delete the requirement that NAs document insertion on a specified treatment record.
2. The Proposal Affects Management's Right to Assign Work
The parties disagree over both whether this proposal affects management's right to assign work under section 7106(a)(2)(B) of the Statute, and whether it is bargainable at the Agency's election under section 7106(b)(1). In this circumstance, the Authority will address and resolve first whether the proposal affects management's right under section 7106(a). [n5] See HUD, 54 FLRA at 178. [ v55 p1148 ]
The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., American Federation of Government Employees, Local 1164 and Social Security Administration, District Office, New Bedford, Massachusetts, 54 FLRA 1327, 1331 (1998); National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996).
As explained, Proposal 1 would prevent the Agency from assigning a certain duty to NAs and, instead, would require the Agency to assign that duty to other, licensed personnel. Since the proposal would prevent the Agency from assigning work to the NAs, we find that the proposal affects the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, e.g., American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642, 646 (1998) (proposal which required the agency to assign work to an additional employee, where the agency had determined it was not operationally efficient to do so, affected management's right to assign work). [n6]
3. The Proposal Does Not Concern the Methods and Means of Performing Work under Section 7106(b)(1) of the Statute.
There are two prongs to the Authority's current test used to determine whether a proposal concerns the methods and means of performing work. [n7] See General Services Administration and American Federation of Government Employees, Council of GSA Locals, Council 236, 54 FLRA 1582, 1589 (1998) (AFGE GSA Council 236); National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1437-38 (1998) (NFFE Local 7). First, the proposal must concern a "method" or "means" as defined by the Authority. The Authority construes "method" to refer to "the way in which an agency performs its work." See NFFE Local 7, 53 FLRA at 1437, citing International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996) (Army Corps of Engineers). The term "means" refers to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." AFGE GSA Council 236, 54 FLRA at 1589-90; NFFE Local 7, 53 FLRA at 1437-38. Second, it must be shown that (1) there is a direct and integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 420 (1993).
Applying the first prong of the test, there is no basis on which to conclude that the proposal concerns the method and means by which the Agency performs its work. The proposal deals with the assignment of duties to particular employees. As the Authority stated in AFGE GSA Council 236, in connection with a union's claim that a contracting out proposal concerned the methods and means of performing work, "proposals concerning contracting out do not relate to the way in which an agency performs its work or the tools or devices that may be used in accomplishing it. Rather, such proposals relate to an agency's decision-making process concerning by whom the work is best performed -- either in-house by agency employees or by employees of an outside organization." 54 FLRA at 1590 (emphasis in original; footnote omitted). Similarly, here, the requirement to assign only licensed employees the duty of administering certain medication involves who will perform work, not the way in which the work is performed or the tools and devices that may be used to accomplish the work. As the proposal fails to satisfy the first prong of the methods and means test, there is no need to address the second prong of that test.
The Union also claims that the proposal addresses methods and means because it involves "documentation on the treatment record instead of the medication record [ v55 p1149 ] where all other nursing employees who administer medication also document the administration of medications[.]" Response at 4. The Union's argument goes to the second sentence of the proposal. The Authority grants a union's request to sever and it separately examines parts of a proposal, where, among other things, the parts are able to stand independently. See, e.g., FCI El Reno, 52 FLRA at 1506; 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 n.4 (1993).
Here, the Union did not request that we sever the proposal or argue that this portion of the proposal could stand independently. Consequently, we decline to separately consider whether documentation on a particular record concerns a method or means of performing work.
The proposal is outside the duty to bargain because it affects the right to assign work under section 7106(a)(2)(B) of the Statute and it is not electively negotiable under section 7106(b)(1) of the Statute. Given this result, it is unnecessary to address the Agency's additional claim that the proposal is outside the duty to bargain because it affects conditions of employment of RNs.
V. Proposal 2
The grades should be increased with the job description reflecting the duties and pay, and changed to nursing technicians.
A. Positions of the Parties
The Agency contends that the proposal's requirement to change the NA positions to nursing technicians "concerns the determination of what duties and responsibilities constitute the position and its classification for personnel and pay administration purposes." Statement of Position at 13. Accordingly, the Agency claims that the proposal is outside the duty to bargain. In support, the Agency cites International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 665 (1996) (IFPTE Local 49); American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884 (1993); and National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Naval Air Warfare Center, Weapons Division, Point Mugu, California, 45 FLRA 802 (1992).
The Union claims that the proposal concerns the rights of employees to be provided accurate position descriptions, to have a properly classified position, and to be properly compensated for duties performed on a regular and recurring basis. The Union argues that all position descriptions must clearly and concisely state the principal and grade controlling duties and that each employee must be furnished a current, accurate copy of the description to which assigned at the time of assignment and upon request. The Union contends that the Agency's claim that the proposal concerns a classification matter "is invalid" and that "aspects of classification are negotiable in that all positions must be classified to the proper occupational title, series, code and grade." Response at 5. The Union also states that it has "no intention of classifying the employee's [sic] positions, but to ensure that all job related issues are included intake [sic] job description, and that the position is classified in compliance with the OPM Standards." Petition for Review at 1.
The Union further argues that the proposal "addresses the grade numbers, types and positions assigned to nursing service[,]" which the Agency elected to discuss in the parties' agreement. Response at 5.
B. Analysis and Conclusions
1. Meaning of the Proposal
The Union's explanation makes it clear that this proposal concerns nursing assistants. By its terms, the proposal would require the Agency to do three things: 1) increase the NAs' grades; 2) change their job description to reflect the change in duties and pay; and 3) change the title of the NA position to nursing technician.
2. The Proposal Relates to Classification and Is Outside the Duty to Bargain
Section 7103(a)(14)(B) of the Statute excludes policies, practices, and matters "relating to the classification of any position" from the definition of conditions of employment. In enacting this section, "Congress intended to remove from the scope of bargaining threshold determinations as to what duties and responsibilities will constitute a given position and the placement of that position in a class for purposes of personnel and pay administration." See International Organization of Masters, Mates and Pilots, Marine Division, Panama [ v55 p1150 ] Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 339 (1995) (Panama Canal Commission), citing March Air Force Base, Riverside, California, 13 FLRA 255, 258 (1983) (March AFB).
In construing section 7103(a)(14)(B), the Authority relies on the definitions of the terms "classification" and "position" that appear in 5 C.F.R. § 511.101. See National Association of Government Employees, Local R5-168 and U.S. Department of the Army, Fort Polk, Louisiana, 53 FLRA 1622, 1624 (1998); IFPTE Local 49, 52 FLRA at 667; March AFB, 13 FLRA at 257. Pursuant to these definitions, the term "classification" means: "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5, United States Code." The term "position" means: "the work, consisting of the duties and responsibilities, assigned by competent authority for performance by an employee." 5 C.F.R. § 511.101 (c) and (e). Under the system established by OPM, classification entails the identification of the appropriate title, series, grade, and pay system of a position. See 5 C.F.R. § 511.701(a) (a classification action is the determination to establish or change the title, series, grade or pay system of a position).
The Authority has held that the assignment of a particular "pay level" or "grade level" to a position based on its duties and responsibilities is part of the classification process. See, e.g., Panama Canal Commission, 51 FLRA at 339. See also IFPTE Local 49, 52 FLRA at 668 (proposal that required the job series to be the same for all project managers was outside the duty to bargain because it concerned the classification of positions). In relevant part, the proposal here would require the Agency to change the title of employees from nursing assistants to nursing technicians, and to increase the employees' grades accordingly. There is no evidence in the record that the Agency presently employs, or has positions classified as, nursing technicians. Therefore, it does not appear that the proposal would have the effect of placing individuals currently serving as nursing assistants into positions that were previously classified by the Agency. Compare National Association of Government Employees, Local R3-76 and U.S. Department of Defense, Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, Pennsylvania, 55 FLRA 509 (1999) with American Federation of Government Employees, Local 948 and U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, Boston, Massachusetts, 55 FLRA 582 (1999), petition for review filed, No. 99-1330 (D.C. Cir. Aug. 18, 1999) (Proposal 1) (ESA). Rather, consistent with the precedent cited above, the proposal concerns a classification matter that is excluded from the obligation to bargain.
Because the proposal does not concern a condition of employment as defined by the Statute, there is no need to address the Union's argument that the proposal is negotiable pursuant to section 7106(b)(1). See ESA, 55 FLRA at 584.
The proposal is outside the duty to bargain.
VI. Proposal 3 [n8]
The number of FTEE be increased to compensate for the increased work load given the FTEE in question and the number of RNs be decreased.
A. Positions of the Parties
The Agency argues that the proposal is not sufficiently specific for the Agency to address, or for the Authority to determine, its negotiability. In this connection, the Agency contends that "[t]he proposal does not explain whether it would require VA to increase FTEE of the agency, whether it refers to an increase at the VAMC, whether it refers to an increase in Nursing Service, whether it refers to an increase in NA's or some other occupation(s), or whether it affects other staffing or work assignments." Statement of Position at 11.
The Agency also argues that the second part of the proposal is outside the duty to bargain because it concerns RNs, who are in a different bargaining unit. The Agency claims that it has no duty to bargain with respect to such employees, citing U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point).
The Union explains that the proposal addresses "the positions in question," and that "it would be far reaching" if the proposal, which is talking about nursing assistants and registered nurses, would suddenly be [ v55 p1151 ] addressing other subdivisions, "as the whole proposal addresses the nurses [sic] assistants." Response at 5. The Union further states that:
[i]t does not take a simplistic approach to realize that if you remove major duties of the Registered Nurses, then there is a need for fewer positions of that grade, therefore the union proposal includes a logical end result of the assignment of duties.
The Union also claims that, while bargaining concerning the reduction of RNs "may be stretching the issue under our bargaining rights," the Union is entitled to bargain over the numbers, types, grades and positions assigned to the organizational subdivision of nursing under section 7106(b)(1) of the Statute. Petition for Review at 2-3. In response to the Agency's claim that the proposal is outside the duty to bargain because it concerns employees in a different bargaining unit, namely, RNs, the Union states that "the agency response is a reversal of agency actions as they negotiated the whole issue with the RN exclusive representative, therefore themselves violating [Cherry Point.]" Id.
B. Analysis and Conclusions
1. Meaning of the Proposal
Based on its wording and the Union's explanation, the proposal would require the Agency to increase the number of nursing assistant FTEEs and to decrease the number of RNs at the VAMC Dublin facility. Contrary to the Agency's assertion, and noting particularly the Union's clarification regarding the meaning of the proposal, we find that the proposal is sufficiently clear on which to make a negotiability determination.
2. The Proposal Directly Affects Conditions of Employment of RNs
A proposal that directly affects conditions of employment of employees in other bargaining units is outside the duty to bargain. See, e.g., American Federation of Government Employees, Local 2879, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074, 1089 (1994) (SSA San Diego). As the court stated in Cherry Point:
We are not aware of any case--in either the public or private sectors--in which an employer has been required to bargain with a union over the conditions of employment of employees in another bargaining unit . . . . There is a good reason why no such case appears to exist--for a court to so hold would violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only.
952 F.2d at 1442 (emphasis in original).
Applying Cherry Point, the Authority has determined that "[a]n agency is not required under the Statute to bargain with one exclusive representative about conditions of employment in a unit represented by another union because such a requirement would run afoul of the principle of exclusive recognition." American Federation of Government Employees, National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 1267, 1276 n.11 (1998) (Member Wasserman dissenting as to other matters), citing American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 505, 507-08 (1995), aff'd sub nom. American Federation of Government Employees v. FLRA, 110 F.3d 810 (D.C. Cir. 1997).
In this case, it is undisputed that the RNs are represented by the Georgia Nurses Association, a unit different from that represented by the Union. It is also undisputed that the proposal, by its express terms, would require that "the number of RNs be decreased." A decrease in the number of RNs would directly affect their conditions of employment. As the Union made no request to sever and separately address the portion of the proposal relating to NAs, see our discussion of Proposal 1 supra, we find that Proposal 3 in its entirety is outside the duty to bargain since it would directly affect conditions of employment of employees represented in a different bargaining unit. See SSA San Diego, 49 FLRA at 1089 (proposal establishing criteria by which employees in another bargaining unit would qualify for parking permits). Cf. International Federation of Professional and Technical Engineers, Local 35 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 54 FLRA 1377, 1381-82 (1998) (proposal that restaurant be located at site prescribed by union held to be within the duty to bargain despite proposal's effect on, among others, [ v55 p1152 ] employees in other bargaining units, because such effects were indirect).
In view of this result, it is unnecessary to address further the Union's arguments with respect to section 7106(b)(1) of the Statute. See ESA, 55 FLRA at 584 (because proposal did not concern condition of employment of bargaining unit employees, it was outside the duty to bargain without regard to management's rights).
VII. Proposal 4
Each employee should be able to pass a test which would be concurred with the Union to be considered sufficient for the purpose of administrating [sic] suppositories.
A. Positions of the Parties
The Agency contends that the proposal, which requires that employees pass a test on the administration of suppositories, constitutes a qualification or performance standard. The Agency argues that proposals which specify qualification or performance standards "interfere with reserved management rights to assign work and employees." Statement of Position at 14. In support, the Agency cites Authority precedent, in which the Authority found that proposals preventing agencies from implementing qualification requirements for positions affected management's rights to assign employees and assign work.
The Union claims that this proposal "was made to ensure that the nursing assistants who administer medication are required [sic] be deemed competent under the same criteria as other employees who are required to pass a medication test prior to being allowed to administer medication." Response at 6. The Union argues that testing is a method of ensuring competency, which is a component of the working conditions to which employees must adhere. Therefore, the Union asserts that the proposal is negotiable "as it impacts on working conditions. Employees are required to be competent to do their duties." Petition for Review at 2.
B. Analysis and Conclusions
1. Meaning of the Proposal
Based on its wording and the Union's explanation, the proposal would require the Agency to administer a test in order to determine whether employees are competent to administer suppositories. Neither the proposal nor the Union explains the portion of the proposal requiring concurrence of the Union. However, in view of our decision below, it is unnecessary to resolve this matter.
2. The Proposal Affects Management's Rights to Assign Employees and Assign Work
The Union claims that the proposal is negotiable because it relates to employees' working conditions. The Agency does not dispute that the proposal involves conditions of employment of bargaining unit employees. Instead, the Agency claims that the proposal is outside the duty to bargain because it affects management's rights.
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 the Public Debt, 3 FLRA 769 (1980), aff'd, 691 F.2d 553 (D.C. Cir. 1982). 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. See, 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).
Under Authority precedent, the way in which an agency determines whether employees are qualified to perform the duties of a position affects the exercise of management's rights. See, e.g., Association of Civilian Technicians Evergreen Chapter and U.S. Department of Defense, National Guard Bureau, Military Department, State of Washington, Camp Murray, Washington, 55 FLRA 591, 594 (1999) (Member Wasserman concurring) (National Guard Bureau) (proposal that agency determine employee qualifications to perform aircraft repair based on demonstrated knowledge in question-and-answer book affected right to assign employees). [n10] See also National Federation of Federal Employees, Local 1214 and Department of the Army, [ v55 p1153 ] Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1187-88 (1991) (agency's requirement that emergency medical technicians be certified by a national registry constitutes a determination of a personnel requirement or qualification for the position; a proposal to delay certification affects rights to assign employees and assign work). By requiring the Agency to administer a test to ensure employee competency to administer medications, Proposal 4 would dictate the means that the Agency would utilize to determine whether employees possess the qualifications and skills needed to perform the task of administering medications. Consistent with the cited precedent, we find that the proposal affects the Agency's rights to assign employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute.
The proposal is outside the duty to bargain.
The petition for review is dismissed.
Article 9, Classification, provides, in pertinent part:
Section 1 - General
. . .
B. Title 5 position descriptions must clearly and concisely state the principal and grade controlling duties, responsibilities, and supervisory relationships of the position.
C. Employees will be furnished a current, accurate copy of the description of the position to which assigned at the time of assignment and upon request.
D. Position descriptions will be kept current and accurate, and positions will be classified properly. Employees shall be properly compensated for duties performed on a regular and recurring basis. Changes to a position will be incorporated in the position description to assure that the position is correctly classified/graded to the proper title, series, and grade. . . . The Local [Union] will be provided the opportunity to review proposed changes in position descriptions and copies of updated position descriptions. . . .
. . .
F. Management will meet and confer with AFGE locally on procedures pertaining to systematic position classification and special maintenance reviews.
. . .
Section 2 - Classification Standards
A. Title 5 positions will be classified by comparing the duties, responsibilities, and supervisory relationships in the official position description with the appropriate classification and job grading standard.
. . .
Article 44, Mid-Term Bargaining, provides, as relevant:
Section 1 - General
. . .
B. In accordance with Executive Order 12871, the Department will bargain on the numbers, types, grades of employees, and positions assigned to any organizational subdivision, work project, tour of duty, and the technology, methods, and means of performing work. Further, Management will not use 5 USC Section 7106(a) as a means of circumventing its 5 USC Section 7106(b)(1) bargaining obligations under this Agreement. In the event Executive Order 12871 is rescinded and the Department chooses not to bargain 5 USC Section 7106(b)(1), either party may reopen this Article to address the 7106(b) issues. However, agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated. Both parties continue to retain their statutory rights.
C. Recognizing that the Master Agreement cannot cover all aspects or provide definitive language on each subject addressed, it is understood that mid-term agreements at all levels may include substantive bargaining on all subjects covered in the Master Agreement, so long as they do not conflict, interfere with, or impair implementation of the Master Agreement. However, matters that are excluded from mid-term bargaining will be identified within each Article.
D. As appropriate, the Union may initiate mid-term bargaining at all levels on matters affecting the working conditions of bargaining unit employees.
Footnote # 1 for 55 FLRA No. 184
The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As the petition in this case was filed before that date, we apply the prior regulations. With respect to the filing of the petition, we apply 5 C.F.R. § 2424.3.
Footnote # 2 for 55 FLRA No. 184
Footnote # 3 for 55 FLRA No. 184
Under the Authority's revised regulations governing negotiability appeals, we will in some cases now resolve bargaining obligation disputes in a negotiability proceeding. See 5 C.F.R. § 2424.30(b)(2).
Footnote # 4 for 55 FLRA No. 184
With respect to its claim under section 7106(b)(1), the Union states that under the master agreement, the "number, type, and positions, grades and means of methods of performing the work must also be negotiated." Petition for Review at 4. The Union makes no further argument, and it is not otherwise apparent, that Proposal 1 concerns the "numbers, types, and grades of employees or positions" under section 7106(b)(1). Consequently, we address only the Union's "methods and means" contention.
Footnote # 5 for 55 FLRA No. 184
The Union does not contend that any of the proposals constitute procedures or appropriate arrangements under sections 7106(b)(2) and 7106(b)(3), respectively. Consequently, if any of the proposals affect a management right under section 7106(a), we analyze only whether the proposals are electively negotiable under section 7106(b)(1). We acknowledge the Union's claim that Proposal 1 "does address procedures as procedures are means and methods of performing work." Petition for Review at 2. We conclude, however, that taken in context, this statement does not constitute a claim that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute.
Footnote # 6 for 55 FLRA No. 184
Footnote # 7 for 55 FLRA No. 184
As we noted in American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642, 653 n.7 (1998), the Authority's current test for determining whether proposals involve the methods and means of performing work may no longer be appropriate where a union, rather than an agency, raises a claim under section 7106(b)(1). However, neither party has questioned the continued viability of this precedent, and we decline to reconsider the precedent sua sponte in this case.
Footnote # 8 for 55 FLRA No. 184
While not explained by the parties, the term "FTEE" in the proposal is commonly understood to mean "full-time employee equivalent." 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).
Footnote # 9 for 55 FLRA No. 184
The Union stated, in connection with Proposal 1, that "[t]he work situation applies . . . only to Nursing Assistants within Nursing Service, Carl Vinson VAMC, Dublin, Ga." Petition for Review at 4. This statement supports the Union's position that Proposal 3 refers to nursing assistants at the VAMC facility in this case.
Footnote # 10 for 55 FLRA No. 184
Member Wasserman concurred in National Guard Bureau on the basis that, in his view, the proposal was electively bargainable under section 7106(b)(1) of the Statute. See National Guard Bureau, 55 FLRA at 595.