National Federation of Federal Employees, Local 1332 (Union) and Army Materiel Development and Readiness Command (DARCOM) (Activity) (Authority decision, May 12, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed specific training and qualification requirements for alcohol and drug abuse counselors at an Army command. The Authority found that the proposals would determine the types and grades of employees assigned to that work. Those matters were negotiable only if the agency elected to bargain, and it had declined.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1).
• Outcome: Agency nonnegotiability allegation sustained.
• Key point: The agency did not have to bargain over these counselor assignment requirements.

Full text (FLRA public release)

[ v03 p200 ]

03:0200(28)NG

The decision of the Authority follows:

3 FLRA No. 28

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1332
Union

and

U. S. ARMY MATERIEL DEVELOPMENT
AND READINESS COMMAND (DARCOM)
Activity

Case No. 0-NG-148

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SEC. 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101-7135).

UNION PROPOSALS

THE UNION SEEKS NEGOTIABILITY DETERMINATIONS AS TO BOTH OF ITS
ALTERNATIVE PROPOSALS. IN THE AUTHORITY'S VIEW THE PROPOSALS RAISE THE
SAME ISSUES, AND THEY WILL BE CONSIDERED TOGETHER FOR CONVENIENCE SAKE.

THE ORIGINAL UNION PROPOSAL WAS AS FOLLOWS:

SECTION E. COUNSELOR. THE PROGRAM COUNSELOR SHALL BE AN INDIVIDUAL
WITH TRAINING AND

EXPERIENCE IN TREATING PERSONS SUFFERING FROM ALCOHOLISM, DRUG ABUSE,
DEPRESSION, AND OTHER

MEDICAL/BEHAVIORAL PROBLEMS. HE OR SHE SHOULD HAVE A WORKING
KNOWLEDGE OF THE TECHNIQUES OF

COUNSELING AND OF DIVERSE TREATMENT AND REHABILITATION METHODS. HE
OR SHE SHOULD ESTABLISH

RAPPORT WITH EMPLOYEES IN ORDER TO INSTILL CONFIDENCE THAT ASSISTANCE
IS AVAILABLE AND IN

ORDER THAT REHABILITATION EFFORTS WILL BE SUCCESSFUL.

MANAGEMENT ADVISED THE UNION, DURING NEGOTIATIONS, THAT IT CONSIDERED
THAT PROPOSAL WAS NOT WITHIN ITS DUTY TO BARGAIN, AND THE UNION MADE THE
FOLLOWING PROPOSAL:

SECTION E. COUNSELOR. THE PROGRAM COUNSELOR SHALL BE QUALIFIED IN
ACCORDANCE WITH CURRENT

X-118, 101 SERIES.

MANAGEMENT ONCE AGAIN ADVISED THE UNION THAT THIS PROPOSAL WAS NOT
WITHIN ITS DUTY TO BARGAIN.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER UNDER SEC. 7106(B)(1) OF THE STATUTE, THE
UNION PROPOSALS CONCERN A MATTER PERTAINING TO THE TYPES AND GRADES OF
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION OR WORK PROJECT ARE
NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY. /1/

OPINION

CONCLUSION: THE UNION'S PROPOSALS CONCERNING THE QUALIFICATIONS OF
INDIVIDUALS TO BE ASSIGNED AS ALCOHOL AND DRUG ABUSE COUNSELORS, VIOLATE
THE AGENCY'S RIGHT TO DETERMINE THE TYPES AND GRADES OF EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION OR WORK PROJECT UNDER SEC.
7106(B)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SEC. 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3482 ET SEQ. (1980), THE
AGENCY'S ALLEGATION THAT THE PROPOSALS ARE NOT WITHIN THE DUTY TO
BARGAIN IS SUSTAINED.

REASONS: THE RECORD REVEALS THAT ALCOHOL AND DRUG ABUSE COUNSELOR
POSITIONS EXIST PURSUANT TO THE ALCOHOL AND DRUG ABUSE PREVENTION AND
CONTROL PROGRAM AND THE INCUMBENTS IN SUCH POSITIONS PERFORM A VARIETY
OF DUTIES AND RESPONSIBILITIES INCLUDING COUNSELING OF EMPLOYEES
CONCERNING ALCOHOL AND DRUG RELATED MATTERS.

IT IS CLEAR FROM THE LANGUAGE OF THE UNION'S FIRST PROPOSAL THAT THE
AGENCY COULD ONLY ASSIGN ALCOHOL AND DRUG ABUSE COUNSELORS WHO
POSSESSED
TRAINING AND EXPERIENCE IN TREATING PERSONS SUFFERING FROM ALCOHOLISM,
DRUG ABUSE, DEPRESSION AND OTHER MEDICAL/BEHAVIORAL PROBLEMS, AND WHO
HAD A WORKING KNOWLEDGE OF THE TECHNIQUES OF COUNSELING AND OF DIVERSE
TREATMENT AND REHABILITATION METHODS.

THE SECOND PROPOSAL, EQUALLY SPECIFIC, LIMITS AGENCY ASSIGNMENT OF
COUNSELORS TO THOSE WHO MEET THE PRECISE EDUCATION, EXPERIENCE, AND
PHYSICAL REQUIREMENTS OF OFFICE OF PERSONNEL MANAGEMENT'S QUALIFICATION
STANDARDS FOR POSITIONS UNDER THE GENERAL SCHEDULE (HANDBOOK X-118), 101
SERIES (SOCIAL SCIENCE).

THE CLEAR INTENT AND EFFECT OF THE UNION'S PROPOSALS IS TO DETERMINE
BY BARGAINING THE "TYPES" OF EMPLOYEES WHO COULD BE ASSIGNED BY THE
AGENCY AS COUNSELORS. THAT IS, ONLY EMPLOYEES POSSESSING PRECISE
BACKGROUNDS OF EDUCATION AND EXPERIENCE, EXPLICIT IN THE TERMS OF THE
FIRST PROPOSAL, AND BY REFERENCE TO A PARTICULAR SERIES DESCRIBED IN THE
OPM HANDBOOK IN THE SECOND, COULD BE ASSIGNED. MOREOVER, AS A PRACTICAL
MATTER, THE NATURE OF THE QUALIFICATIONS PRESCRIBED BY THE PROPOSALS
WOULD IMPACT ON THE GRADE LEVELS THE AGENCY MUST ASSIGN TO THE POSITIONS
INVOLVED. INDEED, THE OPM HANDBOOK REFERRED TO IN THE UNION'S SECOND
PROPOSAL CONTAINS ITS OWN GRADE STRUCTURE BASED UPON THE VERY
REQUIREMENTS OF EXPERIENCE AND EDUCATION THAT THE UNION SEEKS TO
REQUIRE. THUS, THE PROPOSALS WOULD AFFECT BOTH THE TYPES AND GRADES OF
EMPLOYEES OR POSITIONS ENGAGED IN SUCH COUNSELING.

SECTION 7106(B)(1) ESTABLISHES THAT UNION PROPOSALS WHICH DIRECTLY
AFFECT OR ARE INTEGRALLY RELATED TO THE NUMBERS, TYPES, AND/OR GRADES OF
EMPLOYEES WHICH MANAGEMENT MAY ASSIGN TO ANY WORK PROJECT OR TOUR OF
DUTY ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. IN THIS CASE,
THE AGENCY HAS ELECTED NOT TO NEGOTIATE ON SUCH MATTERS AND, THUS, THE
AGENCY'S ALLEGATION THAT THE PROPOSALS ARE NOT WITHIN THE DUTY TO
BARGAIN IS SUSTAINED. /2/

ISSUED, WASHINGTON, D.C., MAY 12, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:

SEC. 7106. MANAGEMENT RIGHTS

. . . .

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE . . . TYPES AND GRADES OF
EMPLOYEES OR POSITIONS

ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, . . .

/2/ CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 66 AND INTERNAL
REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-19, 1 FLRA
NO. 106, (SEPT. 13, 1979), REPORT NO. 16.