[ v58 p148 ]
58 FLRA No. 29
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3694
SOCIAL SECURITY ADMINISTRATION
CASA GRANDE DISTRICT OFFICE
CASA GRANDE, ARIZONA
DECISION AND ORDER ON
October 9, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
These cases are before the Authority on negotiability appeals filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petitions concern the same parties, arise from bargaining over the same matters, and present similar negotiability issues. Accordingly, we have consolidated the cases for decision. See Int'l Fed'n of Prof'l and Tech'l. Eng'rs, Local 49, 55 FLRA 25 (1998).
Each appeal involves the negotiability of one proposal concerning the Agency's decision to fill three claims representative vacancies. The Agency filed statements of position in both cases, following which the Union filed responses, and the Agency filed replies.
For the reasons that follow, we find that the proposals are outside the duty to bargain.
II. Background and Proposals
The Agency filled three claims representative vacancies, and announced that two of the three selectees would specialize in Title 16 assignments and one would [ v58 p149 ] specialize in Title 2 assignments. [n*] The Union then submitted the following proposal for bargaining, which is at issue in O-NG-2641:
F. Specialization Selection for 3 new [Claims Representatives]
Qualified [claims representatives] will select their Title speciality based on seniority. Based on the union's polling of the two senior employees the results are as follows:
- Margaret Arreola - Title 2
- Patty Guerra - Title 16
- Clelia DeLeon-Lavin - Title 16.
During negotiations, the Agency unilaterally assigned selectees Arreola and Guerra to specialize in Title 16 assignments, and selectee Deleon-Lavin to specialize in Title 2 assignments, and sent the selectees to 13-week training courses concerning their respective specialties. In response, the Union submitted the following proposal for bargaining, which is at issue in O-NG-2638:
Margaret Arreola has the right of first refusal to the next Title 2 specialist assignment that becomes available in the Casa Grande office for which she is qualified.
III. Meaning of the Proposals
The parties agreed that the proposal in NG-2641 means that the three employees selected to the claims representative positions in the Casa Grande office will be permitted to select their specialty based on seniority. The parties also agreed that this proposal is limited to the three selectees listed in the proposal, and that it does not change the qualification standards set by the Agency.
The parties agreed that the proposal in NG-2638 means that when the next Title 2 specialist position that Arreola is qualified for becomes available in the Casa Grande office, she will be offered the position. In addition, the parties agreed that the proposal does not require the Agency to create a Title 2 specialist vacancy or fill a Title 2 position if vacant, and that the Agency would determine the qualification standards regarding a Title 2 position.
IV. Positions of the Parties
In both cases, the Agency asserts that the proposals are inconsistent with management's right to assign work under § 7106(a)(2)(B) of the Statute because the proposals would permit employees to choose their own job assignments and require the Agency to assign employees to training.
The Agency also asserts, in both cases, that the proposals do not constitute appropriate arrangements under § 7106(b)(3). The Agency claims that there is no adverse effect on employees, and that the proposals would negatively affect the Agency's ability to accomplish its mission and require the Agency to incur significant training costs. Additionally, the Agency contends that the proposal in 0-NG-2641 does not constitute a procedure under § 7106(b)(2) because the three employees identified in the proposal are not equally qualified for the Title 2 and Title 16 specialties.
The Union asserts that the proposals do not interfere with management's right to assign work because the proposals would not require the Agency to make an assignment to an unqualified claims representative. The Union further asserts that the proposals are appropriate arrangements under § 7106(b)(3) because they are limited to only three employees and are intended to address the effects on Arreola of being assigned Title 16 work, as well as the effects of employees not being allowed to have input regarding their work assignments. According to the Union, the adverse effects of being assigned Title 16 work include having to deal with different clientele, and limiting employees' opportunities for promotions and details. In 0-NG-2641, the Union makes an additional argument, claiming that the proposal constitutes a procedure under § 7106(b)(2) because it sets forth a method for equally qualified candidates to be selected for assignments.
V. Analysis and Conclusions
A. The proposals affect management's right to assign work under § 7106(a)(2)(B) of the Statute
The right to assign work under § 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 AFGE, Local 1985, 55 FLRA 1145, 1148 (1999); NTEU, Chpt. 26, 22 FLRA 314, 324-25 (1986). Proposals preventing an agency from assigning [ v58 p150 ] a certain duty to particular employees and, instead, requiring an agency to assign that duty to other employees affect the right to assign work. See AFGE, Local 2280, Iron Mountain, Mich., 57 FLRA 742, 743 (2002) (AFGE, Local 2280); AFGE, Local 1985, 55 FLRA at 1148. In addition, proposals requiring management to assign training to employees affect management's right to assign work. See PASS, 56 FLRA 798, 801 (2000); NAGE, Local R1-203, 55 FLRA 1081, 1093 (1999).
The proposal in 0-NG-2641 would require the Agency to immediately assign Title 2 duties to Arreola and Title 16 duties to Guerra and DeLeon-Lavin and, conversely, preclude it from assigning Title 16 duties to Arreola and Title 2 duties to Guerra and DeLeon-Lavin. The proposals in O-NG-2638 would require the Agency to assign Title 2 duties to Arreola when those duties are next available and, conversely, would preclude it from assigning her Title 16 duties at that time. The proposals in both cases also effectively would require the Agency to assign training to those employees whose duties would be changed pursuant to the proposals. Because the proposals would require the Agency to assign specific types of duties and training to particular employees, they affect the Agency's right to assign work.
We reject the Union's argument that the proposal in 0-NG-2641 does not affect the right to assign work because all three employees are qualified to be claims representatives and, therefore, are equally qualified to perform both Title 2 and Title 16 duties. At issue is not whether the employees are equally qualified to be claims representatives, but rather whether they are equally qualified to perform the specific duties of the Title 2 and Title 16 specialties. In this regard, the Agency asserts that they are not equally qualified, explaining that Title 16 assignments are more difficult and, therefore, the more senior and experienced employees are better qualified to perform Title 16 work. Nothing in the Union's arguments or the record undermines the Agency's claims in this regard.
Based on the foregoing, we conclude that the proposals affect management's right to assign work under § 7106(a)(2)(B) of the Statute. See AFGE, Local 2280, 57 FLRA at 743; NAGE, Local R1-203, 55 FLRA at 1093.
B. The proposals do not constitute appropriate arrangements under 7106(b)(3)
In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. Id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. KANG, 21 FLRA at 31. The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. NAGE, Local R1-100, 39 FLRA 762, 766 (1991). If the proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.
Even assuming that the proposals constitute arrangements that are sufficiently tailored, we find that the proposals excessively interfere with management's right to assign work. In this regard, the Union alleges that the proposals would benefit Arreola by allowing her to perform the duties that she prefers, increasing her opportunity for promotions and details, and by not making her deal with a different clientele. The Union also asserts that the proposals permit qualified employees to have input regarding their work assignments, which will have an impact on their future details and promotions.
The Union's asserted benefits to employees do not outweigh the burdens the proposals place on management. Specifically, the proposals would require the Agency to retrain employees, which would require the Agency to incur all of the cost associated with the training and would result in employees being away from their regular duties for a significant amount of time over a 13-week period. In addition, the proposals would substantially limit the Agency's ability to assign work. As discussed above, under the proposals, management would be completely precluded from assigning work it has determined to be more difficult to employees it has determined are more experienced. This places a significant burden on the Agency. NTEU, Chpt. 26, 22 FLRA at 325. On balance, these burdens are not outweighed by the benefits afforded the employees under the proposals.
Accordingly, we conclude that the proposals excessively interfere with management's right to assign work under § 7106(a)(2)(B) and do not constitute appropriate [ v58 p151 ] arrangements under § 7106(b)(3) of the Statute. See AFGE, Local 3529, 57 FLRA 172, 179 (2001); AFGE, Local 3529, 56 FLRA 1049, 1051-52 (2001); AFGE, Local 1164, 55 FLRA 999, 1001-02 (1999).
C. The proposal in 0-NG-2641 does not constitute a procedure under § 7106(b)(2)
The Union argues that the proposal in 0-NG-2641 constitutes a negotiable procedure under§ 7106(b)(2) of the Statute because it sets forth a method for equally qualified candidates to be selected for assignments. As set forth above, however, the three claims representatives are not equally qualified to perform the specific duties of the Title 2 and Title 16 specialties. Accordingly, the premise of the Union's argument that the proposal constitutes a procedure under § 7106(b)(2) of the Statute is incorrect and we reject the argument on that basis.
Moreover, we note that the Authority has held that proposals precluding an agency from assigning particular functions to particular individuals are not procedures within the meaning of § 7106(b)(2). See AFGE, Local 3529, 56 FLRA at 1051; NLRB Union, 42 FLRA 1305, 1309-10 (1991), rev'd as to other matters sub nom. NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993); NTEU, Chpt. 26, 22 FLRA at 325. Applying the foregoing Authority precedent, which is not challenged by the parties, even if the three claims representatives were equally qualified, the proposal would not constitute a procedure under § 7106(b)(2) of the Statute because it would preclude the Agency from assigning Title 16 duties to Arreola and Title 2 duties to the other two employees.
The petitions for review in 0-NG-2641 and 0-NG-2638 are dismissed.
Footnote * for 58 FLRA No. 29