ACTION Employees Local, American Federation of State, County and Municipal Employees and ACTION (Authority decision, March 28, 1988)

Final FLRA decision. The Authority finds both disputed union proposals outside the agency's duty to bargain and dismisses the negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

ACTION planned to move specialists from three small state offices to offices needing more staff. The union proposed a volunteer survey that could select employees from other offices and proposed balancing workloads after the moves. The Authority found that the survey proposal would take from ACTION its choice of staffing levels at particular offices, a subject negotiable only if the agency agreed. It found that the workload proposal would restrict management's right to assign work and was not an appropriate arrangement for affected employees. It dismissed the union's petition for review.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E), 7106(a)(2)(B), 7106(b)(1), and 7106(b)(3).
• Outcome: Both proposals outside the duty to bargain; petition dismissed.
• Key point: The proposals would dictate office staffing and limit work assignments during the reorganization.

Full text (FLRA public release)

[ v31 p1053 ]
31:1053(84)NG

The decision of the Authority follows:

31 FLRA No. 84

ACTION EMPLOYEES LOCAL
AMERICAN FEDERATION OF STATE
COUNTY AND MUNICIPAL EMPLOYEES

Union

and

ACTION

Agency

Case No. 0-NG-1460

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of 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 two Union proposals. The proposals were submitted in response to a proposed reorganization by the Agency. We conclude that the first proposal is outside the duty to bargain because it would eliminate the Agency's right to determine the staffing levels of particular offices. As such, the proposal involves the numbers, types, and grades of employees assigned to a particular office, a matter which is negotiable only at the Agency's election. We conclude that the second proposal, which would require that the workload be equally shared by the Agency's State Offices, is outside the duty to bargain as it interferes with the Agency's right to assign work under section 7106(a)(2)(B).

II. Proposal 1

Agency agrees to clearly define the criteria upon which it has identified offices from which employees will be relocated (WA, NE, and MN).

Assuming the Agency's criteria can be met in other offices, the agency will conduct a survey to locate employees who will voluntarily transfer. If more than one volunteer is identified, the senior employee with the agency will have preference. The survey will require a verifiable response from all unit employees. No employee will be officially reassigned until the survey findings have been reviewed by and discussed with the Union.

(Only the second paragraph of the proposal is in dispute.)

A. Positions of the Parties

The Agency contends that the proposal involves the numbers, types, and grades of employees to be assigned to its offices, a matter which is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute.

The Agency's State Program Offices normally have from three to five employees including a supervisor and a secretary. The Agency decided to reassign one State Program Specialist from each of its Washington, Minnesota and Nebraska State Offices to offices in California, Illinois and Kansas where additional personnel were needed. The Agency concedes that most State Program Specialists are qualified to work in any office. However, the Agency asserts that the proposal does not concern the question of the Agency's right to reassign employees from a pool of equally qualified employees. Rather, the Agency maintains that given the small size of its offices, the proposal directly affects the staffing levels of its individual offices. Therefore, the Agency concludes that the proposal is so directly and integrally related to the numbers, types and/or grades of employees assigned to its offices as to be determinative of them. Thus, the proposal concerns a matter involving section 7106(b)(1) of the Statute, which is negotiable only at the election of the Agency.

The Union asserts that its proposal merely provides a procedure by which the Agency will select from a pool of equally qualified candidates those employees to be transferred to the offices identified by the Agency as needing additional staffing.

B. Analysis and Conclusions

We find that the proposal interferes with the Agency's right under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a particular State Office.

The proposal would require the Agency to determine whether there are offices other than the three offices already identified by the Agency which could afford to lose an employee. This determination would be based on the criteria already used by the Agency in deciding which offices could afford to lose an employee. The Union's proposal presumes that other State Offices would also meet those criteria. Therefore, the pool of offices from which employees could be reassigned to the three offices which need an additional employee would be expanded from the three offices selected by the Agency. The proposal would then require the Agency to conduct a survey among the employees in all the eligible losing offices to determine whether there were volunteers interested in being reassigned to the gaining State Offices. Finally, the proposal requires that the senior employee within any pool of volunteers would have preference in selecting a reassignment.

An agency must establish that a proposal is directly and integrally related to the numbers, types and/or grades of employees or positions assigned to an organizational subdivision, work project or tour of duty in order to sustain an argument that a matter is negotiable only at the agency's election under section 7106(b)(1) of the Statute. National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40 (1987).

We conclude that the Union's proposal would have a direct impact on the Agency's staffing patterns within the meaning of section 7106(b)(1) because the effect of the Union's proposal would be to shift the determination as to the number of employees to be assigned to particular offices from the Agency to the "lottery" system encompassed by the proposal. The Agency has the right to determine the number of employees to be assigned to any particular State Office. See American Federation of Government Employees, AFL - CIO, Council 236 and General Services Administration, 9 FLRA 825, 825 (1982) (Proposal 1), where the Authority held that a proposal requiring an Agency to negotiate over the numbers and grades of employees who will remain in their present organization and of those who will relocate to another subdivision of the Agency was negotiable only at the election of the Agency.

While the Agency submitted to the Union the objective criteria upon which its decision was based, we conclude, especially given the small numbers of employees employed in each of the Agency's State Offices, that there was a direct and integral relationship between the decision as to which offices should lose an employee and the number of employees to be assigned to any particular State Office. The Agency decided that the State Offices which could best afford to lose an employee were those in Washington, Minnesota and Nebraska. Washington had three State Program Specialists and Minnesota and Nebraska had two apiece. While there may be other State Offices which meet the criteria for the loss of an employee which the Agency established and submitted to the Union, the decision as to which offices can best sustain the loss of one of two or three such employees is a matter within the province of the Agency under section 7106(b)(1), unless it chooses to negotiate about the matter. The Agency need only subject its determination that those three State Offices can best sustain the loss of one employee to negotiation if it so chooses as this decision involves the number of employees to be assigned to any particular office, a matter covered under section 7106(b)(1).

Therefore, we conclude that the Union's proposal interferes with the Agency's right under section 7106(b)(1) to determine the numbers, types, and grades of employees to be assigned to its State Offices, a matter which is negotiable only at the election of the Agency.

III. Proposal 2

The Agency will relocate employees after considering the workload that will remain in affected offices. Workload will be deter-mined and be consistent with the way work is assigned (assigned projects, TADs, etc.) to State Program Specialists and consistent with existing workloads around the country.

(Only the underlined portion of the proposal is in dispute.)

A. Positions of the Parties

The Agency asserts that the proposal seeks to negotiate workloads in violation of management's right under section 7106(a)(2)(B) to assign work to employees. The Agency cites the Authority's holding in American Federation of Government Employees, Local 32 and Office of Personnel Management, 26 FLRA 612 (1987) (Office of Personnel Management), petition for review filed sub nom. Office of Personnel Management v. FLRA, No. 87-1268 (D.C. Cir. June 18, 1987), that a proposal requiring that the distribution of assignments among employees be "fair and consistent" was nonnegotiable. The Agency further asserts that the proposal does not constitute an "appropriate arrangement" within the meaning of section 7106(b)(3) because it directly interferes with management's rights by removing the discretion to set quality and quantity requirements.

The Union contends that the proposal constitutes an appropriate arrangement for employees adversely affected by the Agency's decision to reorganize. Specifically, the Union indicates that employees in the State Offices losing employees will still have to meet the same performance standards as employees in other State Offices. As such standards will be more difficult to meet with reduced resources, the Union's proposal seeks to protect employees in the offices which will lose employees from the adverse effects of management's determination.

B. Analysis and Conclusions

We find that Proposal 2 is outside the duty to bargain because it is inconsistent with management's right to assign work under section 7106(a)(2)(B). The Union indicates that its proposal is intended to protect those employees in offices which lose an employee under the Agency's reorganization from having a heavier workload than identically classified and graded employees in the other State Offices. In effect, the Union's proposal could require management to limit the amount of work it assigned to employees in the offices which have lost an employee. Therefore, it is inconsistent with management's right to assign work under section 7106(a)(2)(B). See Office of Personnel Management, 26 FLRA 612, 617-18 (Proposal 3) (a proposal requiring consistency and equality in work assignments is outside the duty to bargain).

Further, we conclude that Proposal 2 is not an appropriate arrangement under section 7106(b)(3) of the Statute. We assume for the purpose of this decision that there is an adverse effect on the remaining employees in the State Offices which will lose an employee under the Agency's reorganization. These offices will have one less person to accomplish their work, a significant loss in offices which even now have fewer than five employees apiece. While the Union agrees that the Agency has attempted in the past to mitigate the effect on employees in similar situations, Proposal 2 would require the equitable distribution of work assignments throughout the Agency's State Offices.

The proposal would directly limit the discretion inherent in management's right under section 7106(a)(2)(B) to make such work assignments as are necessary to accomplish the work of any particular office. In our view, the effect of Proposal 2 on management's rights outweighs the benefit to employees. Therefore, the proposal excessively interferes with management's right to assign work and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). See American Federation of Government Employees, AFL - CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 543-45 (1987) (Proposal 9), petition for review filed sub nom. Veterans Administration v. FLRA, No. 87- 727 (D.C. Cir. Nov. 27, 1987), where the Authority held that a proposal which required that management maintain reasonable staffing levels to insure employee health and safety excessively interfered with management's right to assign work under section 7106(a)(2)(B) and therefore it did not constitute an appropriate arrangement within the meaning of section 7106(b)(3).

IV. Order

The petition for review is dismissed.

Issued, Washington, D.C., March 28, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY