American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City (Authority decision, March 24, 1988)

Final FLRA decision. The Authority finds both union proposals about assignments and disturbed behavior training outside the medical center's duty to bargain and dismisses the 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

The Kansas City VA Medical Center required employees who worked with disturbed patients to complete a training workshop. AFGE Local 2663 proposed returning employees who had been reassigned after unsuccessful training to their former areas and barring untrained employees from assignments in certain clinical areas. The Authority found that the first proposal would force the center to reassign someone it deemed unqualified. It found that the second would restrict the center's choice of employees and work assignments. It held both proposals outside the duty to bargain and dismissed the union's petition.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E) and 7106(a)(2)(A) and (B).
• Outcome: Both proposals nonnegotiable; petition dismissed.
• Key point: The proposals would constrain the medical center's discretion to decide qualifications and make assignments.

Full text (FLRA public release)

[ v31 p988 ]
31:0988(77)NG

The decision of the Authority follows:

31 FLRA NO. 77

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 2663

Union

and

VETERANS ADMINISTRATION
MEDICAL CENTER, KANSAS CITY
MISSOURI

Agency

Case No. 0-NG-1477

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of two proposals. The proposals concern the Agency's requirement that employees who come into contact with disturbed patients complete the "Management of Disturbed Behavior Workshop." The first proposal requires the Agency to return employees, who had been reassigned because of unsuccessful performance in the training, to their previous assignment. The second proposal requires that employees be given the training prior to being assigned to work in designated areas. We find that both of the proposals are nonnegotiable because they interfere with the Agency's right under section 7106(a)(2)(A) to assign employees. Proposal 2 also interferes with the Agency's right under section 7106(a)(2)(B) to assign work.

II. Proposal 1

All Employees affected by previous classes will be returned to their previously assigned work area immediately and receive two more chances to pass the instruction under discussion.

A. Positions of the Parties 1/

The Union states that this proposal is intended to give employees, who were reassigned prior to negotiations and as a consequence of the Agency's training requirement, a further opportunity to successfully complete the training so that they might benefit from whatever guidelines emerge from negotiations between the parties. The Agency contends that this proposal is in response to the Agency's having reassigned an employee, who had failed the course twice, out of the psychiatric unit. The Agency argues that by requiring it to rescind the reassignment and return the employee to the psychiatric unit, the proposal interferes with the Agency's exercise of its right under section 7106(a)(2)(A) to assign employees.

B. Analysis and Conclusion

Under section 7106(a)(2)(A), an agency retains discretion to determine the personnel requirements of the work of a position, that is, the qualifications and skills needed to do the work as well as job-related individual characteristics. The right to assign an employee to a position includes the discretion to determine whether an employee meets those qualifications. See, for example, 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).

This proposal requires the Agency to rescind its assignment of an employee to a position outside of the psychiatric unit and to reassign the employee to a position in that unit, even though the Agency had determined that the employee lacked the skills and qualifications necessary for such an assignment. The proposal thereby interferes with the Agency's exercise of its right to assign employees. See Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957 (1986).

The Agency argues further that this proposal excessively interferes with its right to assign employees and is, therefore, not an appropriate arrangement for adversely affected employees under section 7106(b)(3).

However, the Union has neither claimed that this proposal is negotiable as an appropriate arrangement under section 7106(b) (3) nor provided support for such a claim. 2/ Therefore, we find it unnecessary to reach that issue. See National Association of Government Employees Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

Accordingly, we find that Proposal 1 is not within the duty to bargain.

III. Proposal 2

No Employee (excluding those presently working in Psychiatry, Day Hosp., ADTU, or Emergency Room) will be allowed to work in these areas without having completed this mandatory training.

A. Positions of the Parties

The Union states that this proposal reflects an assertion made by the Agency that no one should work in the designated areas without training in the management of disturbed behavior. The Union contends that this proposal concerns employee and patient safety rather than the Agency's right to assign employees.

The Agency contends that this proposal excessively interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. It contends that the proposal requires it to assign specific training and conditions the assignment of employees on the completion of that training.

B. Analysis and Conclusions

This proposal prohibits the Agency from assigning employees who have not completed the "Management of Disturbed Behavior Workshop" to work in designated areas. Like Proposal 1, it also would affect the Agency's ability to assign employees to positions in those areas. Consequently, we will consider whether the proposal interferes with the right to assign employees under section [PAGE 3] 7106(a)(2)(A) as well as the right to assign work under section 7106(a)(2)(B), on which the Agency relies.

The right under section 7106(a)(2)(A) to assign employees includes the discretion to determine (1) the personnel requirements of the work of a position and (2) whether a particular employee meets those qualifications. See, for example, 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 same discretion is inherent in the right under section 7106(a)(2)(B) to assign work. Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982).

Proposal 2 prohibits the Agency from assigning employees to certain positions and duties unless they have completed the "Management of Disturbed Behavior Workshop." Therefore, the proposal interferes with the Agency's discretion to determine the personnel requirements of the work and whether an employee meets those qualifications. Placing such a restriction on the Agency's discretion to make assignments directly interferes with its ability to determine the particular employees who will be assigned to particular positions and duties within the Agency. See American Federation of Government Employees, AFL - CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990 (1987) (Proposal 21), petition for review as to other matters filed sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Dec. 14, 1987).

As with Proposal 1, the Agency has submitted arguments on the applicability of section 7106(b)(3) to this proposal. Since the Union has made no claim that this proposal is a negotiable appropriate arrangement under that section, we find it unnecessary to consider that issue.

We conclude, based on the foregoing, that Proposal 2 is not within the duty to bargain because it conflicts with the Agency's rights to assign employees and assign work under section 7106(a)(2)(A) and (B).

IV. Order

The Union's petition for review is dismissed.

Issued, Washington, D.C., March 24, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1/ The Union did not file a response to the Agency's statement of position.

Footnote 2/ The parties are responsible for creating the record upon which we will resolve negotiability disputes. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this burden acts at its peril.