International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California (Authority decision, December 24, 1998)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving negotiability petitions. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Facing a budget shortfall, the Army Corps of Engineers planned to eliminate positions in several South Pacific Division offices. The union proposed keeping specified numbers of engineers and accountants in four units. The Authority found that the proposals affected management’s right to assign work and were outside the required duty to bargain. Because they also set staffing levels, the agency could choose to bargain over them under 5 U.S.C. § 7106(b)(1). The Authority dismissed all four negotiability petitions.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E); elective staffing bargaining under § 7106(b)(1).
• Outcome: Four petitions dismissed; proposals bargainable only at the agency’s election.
• Key point: Proposals fixing position counts can be elective bargaining subjects even when they affect management’s work assignment right.

Full text (FLRA public release)

[ v55 p25 ]

55 FLRA No. 11

INTERNATIONAL FEDERATION OF

PROFESSIONAL AND TECHNICAL ENGINEERS

LOCAL 49

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY CORPS OF ENGINEERS, SOUTH PACIFIC DIVISION, SAN FRANCISCO, CALIFORNIA

(Agency)

0-NG-2420, 0-NG-2421, 0-NG-2422 and 0-NG-2423

_____

DECISION AND ORDER ON

NEGOTIABILITY ISSUES

December 24, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

These cases are before the Authority on
petitions for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). We have consolidated the cases for decision. [n1]

Each of the cases concerns one proposal. Each
of the proposals specifies the number of personnel with a specific job title that will be assigned to an organizational element to accomplish a particular workload. The Agency filed a consolidated statement of position and the Union separately filed a response in each of the cases. [n2]

For the reasons set forth below, we find that
the proposals are negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, we dismiss the petitions for review, pursuant to section 2424.10 of the Authority's Regulations.

II. Background

The Agency notified the Union that as a
result of a budgetary shortfall it would be eliminating a number of positions in particular organizational units. In response, the Union proposed, essentially, that the Agency retain the number of positions in a specified job title previously assigned to perform the workload of the organizational units targeted for reduction.

III. Proposals

Proposal 1 [Case No. 0-NG-2420]

The planning study development technical job duties/work load assigned to the Planning Division shall be performed by five non-supervisory, professional civil engineers. [Emphasis in original].

Proposal 2 [Case No. 0-NG-2421]

The civil engineering job duties/work load assigned to the General Engineering Branch, Engineering Division shall be performed by two non- supervisory, professional civil engineers. [Emphasis in original].

Proposal 3 [Case No. 0-NG-2422]

The accountant job duties/work load assigned to the Directorate of Resource Management shall be performed by two non-supervisory, professional accountants. [Emphasis in original].

Proposal 4 [Case No. 0-NG-2423]

The electrical engineering job duties/work load assigned to the General Engineering Branch, Engineering Division shall be performed by one non- supervisory, professional electrical engineer. [Emphasis in original].

IV. Positions of the Parties

A. Agency

The Agency maintains that the Union's
interpretation of the proposals is inconsistent with their wording. The Agency claims that the proposals do not concern the numbers of positions assigned to the identified organizational elements. According to the Agency, each of the four proposals "mandates the assignment of certain
[ v55 p26 ] duties to specifically identified bargaining unit positions." Statement of Position at 3 (emphasis in original). Correlatively, the Agency argues that each proposal " the assignment of the identified duties to other bargaining unit positions or to non-unit positions, such as those held by supervisors." Id. (emphasis in original).

The Agency argues that, consistent with
Authority precedent, management has the right, under section 7106(a)(2)(B) of the Statute, to decide the positions to which it will assign a particular type of duty. The Agency maintains that by requiring that certain duties be assigned to particular unit positions, and thereby precluding those duties from being assigned to nonunit positions, the proposals affect management's right to assign work and are outside the duty to bargain.

In the alternative, if the proposals are
found to concern the number of positions assigned to an organizational subdivision in addition to the right to assign work, the Agency claims that the required nature of the work assignments makes that aspect of the proposals the dominant requirement.

B. Union

According to the Union, the Agency's proposed
decision to eliminate positions would reduce the existing complement of non-supervisory, professional positions in the organizational elements referenced in the proposals by one. The Union also notes that the elimination of the positions proposed by the Agency would not change the existing work assignments of the positions. The Union contends that the proposals would restore to the organizational elements the one position proposed for elimination in each organizational element and that the proposals therefore concern the numbers of positions assigned to those organizational elements.

As explained by the Union, the proposals
provide that the work assignments performed by the specified positions in the organizational elements will be performed by the number of positions set forth in the proposals, rather than the reduced number determined by the Agency. The Union claims that the proposals are clearly intended to determine the numbers of employees or positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute.

The Union also argues that the Agency's
assignment of work argument is factually erroneous. According to the Union, the RIF announced by the Agency did not involve the reassignment of the work referenced in the proposals out of the organizational elements or away from the specified positions. The Union maintains that the work currently being done by the specified positions in the organizational elements covered by the proposals will continue to be done by those positions and that the proposals only preserve the existing employee complement. The Union claims that the proposals therefore do not implicate management's right to assign work under section 7106(a)(2)(B) of the Statute.

V. Meaning of the Proposals

In interpreting a disputed proposal, the
Authority first looks to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 (1996) (Laurel Bay).

As plainly worded, and consistent with the
Union's statement of intent, the proposals would require the Agency to maintain a certain number of positions in the specified organizational units. Consistent with the Union's explanation, we find that this is the primary purpose of each of the proposals. Also under the plain wording of the proposals, the work assigned to the specified organizational units would be performed by the designated positions.

VI. Analysis and Conclusions

A. The Proposals Affect Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

The parties disagree over both whether this
proposal affects management's right to assign work under section 7106(a)(2)(B) of the Statute, and whether it is bargainable at the Agency's election under section 7106(b)(1). In this circumstance, the Authority will address and resolve first whether the proposal affects management's right under section 7106(a). See American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 177-78 (1998) (HUD).

The right to assign work under section
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 posi- [ v55 p27 ] tions the duties will be assigned. See, e.g., Laurel Bay, 51 FLRA at 739.

The proposals in these cases would require
the Agency to assign work to additional employees, where the Agency has determined that it is not operationally efficient to do so. As the Agency claims, and the Union does not dispute, the proposals would also require that bargaining unit employees occupying specific positions be assigned particular duties. As such, the proposals affect the Agency's right to determine to whom or what positions various duties are assigned. See, id.; see also American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642, 646-47 (1998) (Department of Energy) (proposals that agency retain certain number of positions found to affect the right to assign work). Accordingly, we find that the proposals affect the right to assign work under section 7106(a)(2)(B) of the Statute.

The Union does not claim that the proposals
constitute procedures or appropriate arrangements within the meaning of section 7106(b)(2) and (3), respectively. Accordingly, as the proposals affect the right to assign work, they are outside the duty to bargain.

B. The Proposals Concern the Numbers, Types, and Grades of Employees or Positions Assigned to an Organizational Subdivision under Section 7106(b)(1)

Section 7106(b) is an exception to section
7106(a). National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 392 (1995). If the Union is correct that the proposal concerns a section 7106(b)(1) matter, then the Authority will find that the proposal is bargainable at the election of the Agency.

Section 7106(b)(1) makes bargainable at the
election of the agency proposals that concern the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" The Authority has defined this phrase to mean "the establishment of staffing patterns, or allocation of staff, for the purpose of an agency's organization and the accomplishment of its work." , 52 FLRA 1024, 1030-31 (1997) (proposal requiring the agency to assign dental assistant's duties to dental hygienists concerned the numbers, types, and grades of employees within the meaning of section 7106(b)(1)). An agency's staffing pattern or "job pattern" is defined, in part, as "the number of workers in each job." Id. at 1030.

There is no dispute that these proposals
require the Agency to assign a certain number of employees occupying designated positions to specific organizational subdivisions. As such, we find that each proposal concerns the number of positions assigned to an organizational subdivision under section 7106(b)(1), and that the proposals are bargainable at the election of the Agency. [n3] See, e.g., National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA No. 110, slip op. at 4-5 (1998), petition for review filed sub nom. National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Nov. 6, 1998). Accordingly, we dismiss the petitions for review. See HUD, 54 FLRA at 177.

VII. Order

The petitions for review are dismissed.

Footnote # 1 for 55 FLRA No. 11

The Authority has consolidated cases that
involve the same parties, arise out of the same negotiations, and present similar negotiability issues. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830, 831 (1996). We do so here because the cases involve the same parties and similar proposals, arise out of bargaining concerning the same reduction- in-force (RIF) and present the same negotiability issues.

Footnote # 2 for 55 FLRA No. 11

Subsequent to the filing of its petitions
for review, the Union informed the Authority that it had filed seven unfair labor practice charges in connection with these cases and that it elected to proceed first under the negotiability procedure. Union Letters to the Authority dated March 17 and March 19, 1998.

Footnote # 3 for 55 FLRA No. 11

The Agency's assertion that the effect of
the proposals on the right to assign work constitutes the dominant requirement does not lead to a different result. As stated above, the primary purpose of the proposals is to require the Agency to maintain a certain number of positions in the organizational units specified in the proposals. See supra, Part V. Cf. Department of Energy, 54 FLRA 642 (while finding that certain proposals affected a section 7106(a) right and were electively negotiable under section 7106(b)(1), the Authority did not address the agency's dominant requirement argument).

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