American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration (Authority decision, July 12, 1991)

Final FLRA decision. The Authority finds six disputed parts of a union provision governing employee details negotiable and orders the agency to rescind its disapproval. An aggrieved person may seek judicial review by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The Health Care Financing Administration disapproved parts of a provision for selecting employees for noncompetitive details. The provision required objective, job-related qualifications and used volunteers and seniority after the agency identified qualified employees. The Authority found that the qualification rule protected employees from tailored requirements without unduly limiting management's assignment right. It found the selection rules negotiable procedures because they applied only after management decided who was qualified. The agency's objection to a canvassing rule was resolved by the union's reading that it did not require a search across the entire department. The Authority ordered the agency to rescind its disapproval of all six disputed subsections.

Decision snapshot

• Authority: Management assignment right and bargaining exceptions under 5 U.S.C. § 7106(a)(2)(A) and (b)(2) and (3).
• Outcome: Six disputed subsections negotiable; agency disapproval rescinded.
• Key point: A rule for choosing among employees whom management has already found qualified can be a negotiable procedure.

Full text (FLRA public release)

[ v41 p618 ]

41:0618(58)NG

The decision of the Authority follows:

41 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCING ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

0-NG-1922

DECISION AND ORDER ON NEGOTIABILITY ISSUES

July 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

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). It concerns the negotiability of six subsections of
a provision imposed on the parties by the Federal Service
Impasses Panel which was disapproved by the Agency head under
section 7114(c) of the Statute.

For the following reasons, we conclude that the disputed
subsections, which address details of employees within the
Agency, are negotiable.

II. The Subsections in Dispute

Article 27. Details, Temporary Assignments, and
Voluntary Changes

Section 5. Rotation

A. The following shall apply when offering
non-competitive details to both classified and
unclassified positions.

1. The Administration will list the
   qualifications and performance attributes (e.g.
   relevant experience, knowledge, skills and
   training) it determines to be necessary to
   perform the detail. They will be objective and
   job-related.

2. The Administration will list the
   employees who possess the factors in 1.

3. The Administration will canvass the
   employees in 2 to determine if anyone wishes to
   be detailed. If the same number volunteer as
   vacancies exist, they shall be selected.

4. If more employees volunteer than
   vacancies exist, the Administration will select
   from the volunteers. Seniority will be the
   selection criterion, unless unusual
   circumstances require some other bona fide
   factor.

5. If there are no volunteers, then the
   least senior employee(s) in 2 will be selected.

6. If there are fewer volunteers than
   vacancies, then the volunteers will be selected,
   and additional persons will be selected as in 5.

7. Seniority means service in the
   Department of Health and Human Services.

8. These procedures will not apply when the
   Administration makes a detail to accommodate a
   substantiated medical or health problem.

9. These procedures will initially not
   apply when the Administration must make a detail
   to respond to an unusual, sudden, and unforeseen
   situation of an urgent nature. However, after
   the initial agency response, the Administration
   will fill the detail under the provisions of the
   Section.

10. The universe of employees to be
    canvassed will be those within the component of
    similar grade and occupation.

[Only the underscored portions of the provision
are in dispute.]

A. Positions of the Parties

1. Subsection 1

The Agency claims that the requirement in
subsection 1 that "the qualifications of
employees selected for temporary assignments be
objective and job related" violates the Agency's
rights to assign employees and "to determine the
particular qualifications and skills which the
employee must have to fulfill the
responsibilities of the temporary or permanent
assignment." Statement of Position at 7.

The Union argues that the disputed sentence
in subsection 1 is an appropriate arrangement
for employees adversely affected by a management
right. The Union states that the sentence
ensures that employees will not be required to
meet position qualifications that are not
objective and job-related.

2. Subsections 3, 4, 5, and 6

The Agency argues that these subsections
interfere with its right to assign employees
under section 7106(a)(2)(A) of the Statute. The
Agency maintains that "the right to assign
employees includes the right to determine the
particular qualifications and skills needed to
perform the work of the position, including such
job-related individual characteristics as
judgment and reliability, an[d] the right to
determine whether employees meet those
qualifications." Statement of Position at 6.
The Agency claims that the disputed subsections
prevent the Agency from evaluating employees'
qualifications and, instead, require the Agency
to assign employees based solely on seniority.
The Agency also argues that its right to assign
employees includes the right not to assign
employees and that the disputed subsections
interfere with its right by preventing the
Agency from discontinuing details. Finally, the
Agency claims that the Union has not
demonstrated that Section 5, or any of its
subsections, constitutes a negotiable
appropriate arrangement.

The Union argues that Section 5, as a whole,
does not interfere with the Agency's right to
assign employees because it "leaves management
free to determine where employees' skills,
knowledge, and abilities can best be utilized."
Reply Brief at 8. The Union states that the
section does not affect the Agency's rights to
determine the qualifications required for
details and whether employees possess those
qualifications, including "'such job-related
individual characteristics as individual
judgment and reliability.'" Id. at 11.
According to the Union, subsections 3, 4, 5, and
6 apply "[o]nly after those rights have been
exercised by the employer[.]" Id. at 7-8. The
Union also asserts that Section 5 does not
prevent the Agency from cancelling a detail and
that subsections 4, 8, and 9 allow "the employer
to make exceptions to the procedure and to weigh
individual circumstances . . . ." Id.

The Union also asserts that Section 5, both
as a whole and as separate subsections,
constitutes an appropriate arrangement under
section 7106(b)(3) of the Statute. The Union
contends that there are "adverse effects of
details [which] result from both being selected
and not being selected for detail." Reply Brief
at 16. The Union maintains that one adverse
effect is "the denial of career advancement
potential" to interested employees. Id. at 15.
The Union argues, in this regard, that some
details provide employees opportunities to gain
new or unusual experience and, as a result,
promotion advantages over other employees. The
Union states that this is particularly true of
non-classified assignments which later "'ripen'
into fully-fledged promotions once
classification has occurred." Id. The Union
also argues that some involuntary details
produce "morale problems and more difficult
working conditions for the detailed employee,
while virtually assuring that the employee's
performance level will decline from the level
the employee would achieve in the more familiar,
permanent position." Id.

The Union explains that Section 5 offers
employees the benefits of the "stability of a
single procedure; a degree of protection against
favoritism or punitive disparate treatment;
efficiency of administration; effective use of
human resources, as measured by the use of
qualified volunteers when possible; and
perception of equity in HCFA's personnel
administration programs." Id. at 16. According
to the Union, these benefits outweigh any
interference with the Agency's right to assign
employees resulting from the section.

3. Subsection 10

The Agency claims that the Union did not
explain the meaning of the term "component" in
subsection 10. The Agency maintains that it is
possible that the Agency "would have the . . .
responsibility for canvassing . . . the entire
Department of Health and Human Services rather
than some smaller organization with the Health
Care Financing Administration, a primary
component within the Department." Statement of
Position at 9.

The Union states that subsection 10 "refers
to the universe of positions whose incumbents
have traditionally been in competition for each
other for promotion, i.e., all similar positions
from which detailees are customarily drawn."
Petition for Review at 4. The Union states that
subsection 10 would not require the Agency to
canvass the entire Department of Health and
Human Services (DHHS). The Union also states
that "the employer is free to consider its
various sections and divisions as part of the
establishment of qualification requirements, and
is thereby free to determine which employees,
whether volunteers or not, are subject to be
detailed." Reply Brief at 14.

B. Analysis and Conclusions

1. Subsection 1

The right to assign employees under section
7106(a)(2)(A) of the Statute includes the right
to determine qualifications and skills needed to
perform the work of a position, including
job-related individual characteristics such as
judgment and reliability. See American
Federation of Government Employees, AFL-CIO,
Local 987 and U.S. Department of the Air Force,
Warner Robins Air Force Logistics Center, Robins
Air Force Base, Georgia, 35 FLRA 265, 269 (1990)
(Robins Air Force Base). Proposals that prevent
an agency from determining the qualifications of
a position directly interfere with the right to
assign employees. See National Federation of
Federal Employees, Local 738 and Department of
the Army, Headquarters, USA Medical Department
Activity, Fort Leonard Wood, Missouri, 34 FLRA
809, 812-13 (1990) (Fort Leonard Wood).

By requiring qualifications to be objective
and job-related, subsection 1 would prohibit the
Agency from establishing qualifications that did
not meet those standards. Accordingly,
consistent with Fort Leonard Wood, we find that
subsection 1 directly interferes with
management's right to assign employees.

As subsection 1 directly interferes with the
Agency's right to assign employees, it is
nonnegotiable unless it constitutes an
appropriate arrangement, under section
7106(b)(3) of the Statute. In determining
whether a proposal constitutes an appropriate
arrangement, the Authority first determines
whether the proposal is intended to be an
arrangement for employees adversely affected by
the exercise of a management right. If a
proposal is determined to be an arrangement, the
Authority then determines whether the
arrangement is appropriate, or whether it is
inappropriate because it excessively interferes
with management's rights. National Association
of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA 24, 31-33 (1986)
(Kansas Army National Guard).

The Union argues that Section 5 as a whole,
including subsection 1, constitutes an
appropriate arrangement. In particular, as
discussed previously, the Union claims that the
section would provide employees with a fair
opportunity to compete for career-enhancing
details and would minimize the adverse effects
of involuntary details. Based on the Union's
statements, we find that the disputed sentence
in subsection 1 constitutes an arrangement,
within the meaning of section 7106(b)(3) of the
Statute.

We now consider whether the disputed portion
of subsection 1 is appropriate within the
meaning of section 7106(b)(3). In Kansas Army
National Guard, the Authority stated that it
would determine whether a proposed arrangement
was appropriate by evaluating whether the
negative impact on management's rights resulting
from the proposal is disproportionate to the
benefits to be derived from the proposed
arrangement.

We find that subsection 1 would provide
significant benefits to employees. The
subsection would provide employees with specific
information about possible details. The
subsection also would assure employees that
position qualifications are not tailored to
specific employees, thereby denying other
employees opportunities to qualify for details.

Subsection 1 clearly limits management's
right to determine the qualifications it deems
necessary to perform a detail by requiring the
qualifications to be objective and job-related.
The standards are general, however, and afford
the Agency flexibility in determining
qualifications. Moreover, the Agency has
identified no interest, and none is apparent to
us, in establishing qualifications that are not
objective and job-related. We note, in this
regard, that the Agency does not object to the
requirement in subsection 1 that position
qualifications "be necessary to perform the
detail." A requirement that qualifications also
be objective and job-related does not appear to
be substantially more restrictive than the
requirement to which it has agreed.

On balance, we find that the benefits
afforded employees by subsection 1 outweigh the
negative impact on management's right to assign
employees. Accordingly, we find that subsection
1 does not excessively interfere with the
Agency's right to assign employees and is a
negotiable appropriate arrangement under section
7106(b)(3) of the Statute.

2. Subsections 3, 4, 5, and 6

As discussed in connection with subsection 1,
the right to assign employees under section
7106(a)(2)(A) of the Statute encompasses the
right to determine whether employees possess
qualifications required to perform the work of a
position. Robins Air Force Base, 35 FLRA at

269. Once management has determined that
     employees are qualified for an assignment,
     however, the procedure by which one of the
     qualified employees will be selected is
     negotiable under section 7106(b)(2) of the
     Statute. For example, National Federation of
     Federal Employees, Local 2096 and U.S.
     Department of the Navy, Naval Facilities
     Engineering Command, Western Division, 36 FLRA
     834, 850 (1990); Overseas Education Association,
     Inc. and Department of Defense Dependents
     Schools, 29 FLRA 734, 793 (1987), aff'd mem. as
     to other matters sub nom. Overseas Education
     Association, Inc. v. FLRA, 872 F.2d 1032 (D.C.
     Cir. 1988).

The Union states that Section 5 enables the
Agency to determine whether employees possess
qualifications required for details. We agree.
In fact, subsection 2, which is not in dispute,
specifically provides that the Agency will
establish a list of employees who possess the
qualifications it establishes in accordance with
subsection 1. Other than the requirement in
subsection 1 that qualifications be objective
and job-related, nothing in section 5 limits the
Agency's rights to establish qualifications and
determine whether particular employees possess
those qualifications.

Subsections 3, 4, 5, and 6, which apply to
the selection of employees for details,
expressly refer to the list of employees
required by subsection 2. That is, the
requirements that the Agency select volunteers
(subsection 3), in order of seniority
(subsection 4), inverse seniority (subsection
5), or a combination of both (subsection 6), all
apply only to those employees that have been
determined by the Agency to possess required
qualifications. As such, we reject the Agency's
assertion that these subsections interfere with
its right to assign employees by requiring the
Agency to detail employees without regard to
their qualifications. Moreover, subsections 3,
4, 5, and 6 do not, explicitly or implicitly,
prevent the Agency from cancelling details.

Because subsections 3, 4, 5, and 6 apply only
to employees who have been determined by the
Agency to be qualified, the subsections do not
directly interfere with the Agency's right to
assign employees under section 7106(a)(2)(A) of
the Statute but constitute negotiable procedures
under section 7106(b)(2) of the Statute. As no
other basis for finding these subsections
nonnegotiable is asserted by the Agency or is
apparent to us, we conclude that they are
negotiable.

3. Subsection 10

The Agency's sole objection to subsection 10
is that it could be read to require the Agency
to canvass the entire Department of Health and
Human Services to establish lists of qualified
employees for details. The Union responds that
subsection 10 would not require the Agency to
canvass DHHS for qualified employees and asserts
that subsection 10 preserves the Agency's right
to determine particular needs of "organizational
sub-divisions[.]" Reply Brief at 14.

As the Agency does not object to subsection
10, as interpreted by the Union, and as the
Agency asserts no other basis, and none is
apparent to us, for finding the subsection
nonnegotiable, we find that subsection 10 is
negotiable.

III. Order

The Agency will rescind its disapproval of
Article 27, Section 5, subsections 1, 3, 4, 5,
6, and 10.(*)

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

*/
In finding these subsections to be
negotiable, we make no judgment as to their merits