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28 FLRA NO. 26

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 1760

                   Union

        and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION

                   Agency

Case No. O-NG-1181

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 presents issues concerning the negotiability of seven provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute.

II. Procedural Issues

A. Provisions at Issue

The Union's petition sought review of two provisions which concerned giving notice of transfer to affected employees and providing transferred employees with reference manuals and materials along with familiarization time. The Union, however, included no document reflecting Agency head disapproval of those provisions nor did the Agency address those provisions in its Statement of Position. Consequently, those provisions are not appropriately before the Authority for review and we will not consider them in this case. See American Federation of State, County, and Municipal Employees, AFL - CIO, Local 2910 and Library of Congress, 11 FLRA 632 n.1 (1983). 

B. Duty to Bargain

The Agency asserts that it has no duty to bargain on certain provisions in this case because they are governed by provisions in the parties' national agreement and/or by Agency regulations which have already been negotiated into the agreement. Because of the claimed existence of threshold issues concerning the duty to bargain, the Agency contends that we have no jurisdiction to decide those negotiability issues in this case. To the contrary, under section 7117(c) of the Statute, when an agency head either has appropriately disapproved a provision under section 7114(c) or has alleged that a proposal is nonnegotiable under section 7117(a), a union is entitled to a decision by the Authority as to the negotiability of that provision or proposal, despite the existence of other issues in the case, including, as claimed here, an alleged conflict between some of the provisions and a controlling agreement. American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). Moreover, the record in this case fails to provide any basis for substantiating the Agency's assertions. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, these issues may be raised in other appropriate proceedings. See, for example, American Federation of Government Employees, AFL - CIO, Local 2736 and Department of the Air Force, Head-quarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).

C. Timeliness Issues

The Agency argues that the Union's petition for review was untimely based on when the Agency served the Union with the allegation of nonnegotiability. However, the Agency provides no proof of when it served the Union with the allegation. Thus, absent the necessary documentation to support the Agency's assertion, we conclude based on the record that the petition for review was timely filed. The Agency also argues that the Union's response to the Agency's Statement of Position was untimely filed. We also find, based on the record, that the response was timely filed.

The Union contends that the Agency's Statement of Position was untimely filed. The Union's initial appeal, however, was filed without a copy of the Agency head allegation of nonnegotiability. The Union cured the defect   and the Agency had 30 days from receipt of the completed appeal in which to file its response. Thus, the Agency's Statement of Position, filed within 30 days of the completed appeal, was timely filed under our Regulations.

III. Provisions 1 and 6

Provision 1

Clause 2: Prior to selecting any employee for reassignment, management will counsel all incumbent employees on potential position availability throughout the Northeastern Program Service Center. Such counseling shall include providing a list of all vacancies throughout the activity for which the incumbent(s) may be qualified and instructions on how to apply for such vacancies. Should an incumbent(s) apply for any vacancy, management will give them every possible consideration for the position.

Provision 6

Clause 11: The transferred employee will be given written notice of any vacancy in his/her present position at least fifteen (15) days before such vacancy is filled. Upon written request of the transferred employee that employee will be given every possible consideration for the vacancy save for an overriding exigency. If the transferred employee is not selected, such reasons for non-selection shall be explained to the employee in writing.

A. Positions of the Parties

The Agency argues that Provisions 1 and 6 are inconsistent with management's rights, under section 7106(a)(2)(A) and (C) of the Statute, to assign employees to positions and to make selections from any appropriate source. Additionally, the Agency contends that these provisions conflict with Federal Personnel Manual (FPM), Chapter 335, Subchapter 1-4 because they remove management's right to select from among a group of best qualified candidates or from another appropriate source. Finally, the Agency claims that it had no duty to bargain because the principle of "priority consideration" was incorporated into the parties' agreement.  The Union disputes the Agency's contentions and asserts that the provisions merely required that a displaced worker be given "every possible consideration" for any vacancy for which that employee is qualified. Moreover, as to Provision 6, the Union contends that it constitutes an "appropriate arrangement" to ameliorate the effects of an involuntary transfer on a qualified employee.

B. Analysis and Conclusions

The Union states that Provisions 1 and 6 are intended to afford an employee, who is involuntarily removed from his present position due to a staffing imbalance, "priority consideration" for a vacancy in another position for which that employee is qualified. Union Response to Agency Statement of Position at 4 and 15. That is, the provisions merely require the Agency to "consider" certain employees for assignment to a position or selection to fill a vacancy. This interpretation is consistent with the language of the disputed provisions and is adopted for purposes of this decision.

Provisions 1 and 6 are therefore to the same effect as the first sentence of Proposal IV in National Federation of Federal Employees, Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981), which prescribed the area of consideration for positions within the bargaining unit. In finding the proposal in that case to be within the duty to bargain, the Authority determined that it did not: (1) prevent the agency from considering other candidates or from expanding the area of consideration once bargaining unit candidates were considered; or (2) preclude the Agency from making selections from any appropriate source. Similarly, Provisions 1 and 6 in this case only require the Agency to consider employees for selection to fill a vacant position or for reassignment. They do not require either the assignment of an employee to a position or the selection of an employee to fill a position. Therefore they do not directly interfere with management's rights under section 7106(a)(2) (A) or (C) of the Statute. For the same reasons, we find that the provisions are not inconsistent with FPM, Chapter 335, Subchapter 1-4. Consequently, these provisions are within the duty to bargain. See National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986) (Chairman Calhoun dissenting on other grounds), petition for review file sub nom. Department of the Treasury v. FLRA, No. 87-1084 (D.C. Cir. Feb. 13, 1987).   Since we find that the provisions do not interfere with management's rights, we do not reach the issue of whether Provisions 1 and 6 constitute "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute.

IV. Provisions 2 and 3

Provision 2

Clause 3: Prior to selecting any employee for reassignment, management will solicit a volunteer from among all qualified employees. If only one employee volunteers, such employee will be selected save for an overriding exigency which will be explained to the employee in writing.

Provision 3

Clause 4: When an involuntary reassignment is necessary due to a staffing imbalance, management will establish a roster of all incumbent employees(s) indicating their service computation dates. In selecting the employee to be transferred the incumbent with the least service who meets the requirements will be selected.

A. Positions of the Parties

The Agency argues that these provisions violate its rights to assign employees to positions and to make selections from other appropriate sources under section 7106(a)(2)(A) and (C) of the Statute.

The Union contends that the "overriding exigency" language used in Provision 2 preserves management's discretion in the exercise of its rights. Relying on American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983), the Union asserts that the Agency must meet the excessive interference test set forth in that case before this provision can be found nonnegotiable. The Union further contends that Provision 3 merely establishes the procedure by which employees previously judged by management to be equally qualified will be selected to perform the work.   B. Analysis and Conclusions

Provision 2 would require the Agency to solicit qualified volunteers for reassignment and, if only one employee volunteers, select that employee absent an overriding exigency. Provision 3 requires the Agency, when an involuntary reassignment is necessary due to a staffing imbalance, to establish a roster of incumbent employees and to select the employee from that roster who meets the requirements of the position and who has the least seniority. The effect of the provisions is to designate one particular employee out of a group of equally qualified employees to receive a reassignment.

The disputed provisions in this case are to the same effect, therefore, as the second and third sentences of the proposal in Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL - CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA 848 (1985), enforced sub nom. U.S. Naval Ordnance Station, Louisville, Kentucky v. FLRA, 818 F.2d 545 (6th Cir. 1987). These sentences required that before the agency reassigned employees, it would solicit volunteers from among qualified employees and make its selection on the basis of inverse seniority. In finding those portions of the proposal to be negotiable, the Authority determined that they established a negotiable procedure under section 7106(b)(2) of the Statute which the agency would use when selecting among employees previously determined by management to be qualified to perform the work of the position.

In like manner, Provisions 2 and 3 in this case prescribe the procedure which management must follow when exercising its right under section 7106(a)(2)(A) to select an employee for reassignment from among employees previously judged to be qualified to perform the work of the position to which they are to be reassigned. See Union Response to Agency Statement of Position at 10-11. Consequently, we find that the disputed provisions are also negotiable procedures within the meaning of section 7106 (b) (2) of the Statute. Moreover, because these provisions would take effect only after management has decided to fill a position by reassignment, they do not dictate the source from which management will fill that position and thus do not interfere with section 7106(a)(2)(C) of the Statute.   Since we have determined that Provisions 2 and 3 are negotiable procedures under section 7106(b)(2), we do not reach the Union's contention that Provision 2 is also an appropriate arrangement under section 7106(b)(3).

V. Provision 4

Clause 6: No transfer under this agreement will be effectuated until any and all grievances and/or equal employment opportunity complaints disputing the transfer are resolved by the appropriate authority.

The parties agree that all grievances and/or equal employment opportunity complaints arising as a result of this transfer will be handled expeditiously with such grievances and/or equal employment opportunity complaints being submitted directly to an arbitrator for final and binding decision.

A. Positions of the Parties

According to the Agency, the effect of this provision would be to prevent management, when correcting a staffing imbalance, from making a timely assignment of work. Consequently, the Agency contends that the first sentence of this provision violates management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and, under section 7106(b)(1), to determine the number and type of employees or positions assigned to any organizational subdivision. Moreover, noting that its declaration of nonnegotiability is limited to the first sentence of the provision, the Agency claims that the second sentence of this provision is improperly before the Authority because it "attempts to modify the parties' negotiated grievance procedure," and as such, "deals with a matter that is beyond the scope of the instant negotiations and that was fully covered during negotiations of the parties' collective bargaining agreement." Statement of Position at 8.

The Union contends that the provision is negotiable because it does not prevent the Agency from &acting at all, with respect to its reserved management rights and that the National Labor Agreement allows the parties to agree to amend or modify the agreement.  

B. Analysis and Conclusions

The first sentence of Provision 4 would suspend the permanent reassignment (transfer) of employees until all grievances and equal employment opportunity complaints regarding the transfer are resolved through the negotiated grievance procedure, including arbitration. This part of the provision simply provides, therefore, that the reassignment of an employee will be stayed until the employee has exhausted whatever right of appeal may exist under the grievance procedures. The Authority has consistently held that proposals which would stay management action pending the completion of the negotiated grievance procedure or other applicable appellate procedures are within the duty to bargain under section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL - CIO, Local 1999 and Army-Air Force Exchange Services, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982) (grievance procedures) and National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 15 FLRA 465 (1984) (appeals to the Merit System Protection Board). For the reasons set forth in those decisions, we find that Provision 4 is a negotiable procedure under section 7106(b)(2) of the Statute and is within the duty to bargain.

In this case, bargaining on the second sentence of Provision 4 occurred at the local level and an agreement was executed. Local agreements are subject to review by the agency head under section 7114(c) of the Statute. As for the scope of agency head review, section 7114(c) requires that the agreement be approved if it is in accordance with the Statute and any other applicable law, rule, or regulation. The Agency head in this case did not disapprove the second sentence of Provision 4 on the ground that it was inconsistent with law or regulation. Therefore, under section 7114(c), the Agency head's disapproval was improper. See National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 4).

VI. Provision 5

Clause 8: The parties agree that Position Description #5A465 is a national position description and that any   management initiative to modify, abolish or amend it on a national level will be handled in strict accord with the terms and conditions of the National Labor Agreement.

Should the activity decide to modify, abolish or amend the position description on a local level, advance copies of such changes will be provided the union ninety (90) days prior to their implementation save for the presence of the exigencies of public business. No changes will be implemented, save for such exigencies, until the union has been afforded the opportunity to bargain on the changes pursuant to law.

A. Positions of the Parties

The Agency argues that it has no obligation to bargain concerning future changes to position descriptions and that modification of a national standard position description is not a reasonably foreseeable adverse impact resulting from the reassignment of one employee to that same position. Consequently, in the Agency's view, this provision is not properly before the Authority.

The Union contends that the provision is negotiable because it merely requires the Agency to adhere to the Statute or the collective bargaining agreement prior to modifying, abolishing, or amending this particular position description.

B. Analysis and Conclusions

Provision 5, like the second sentence of Provision 4 above, was bargained on at the local level and an agreement was executed. Also, like the second sentence of Provision 4, the Agency head did not disapprove Provision 5 on the ground that it was inconsistent with law, rule, or regulation. Therefore, for the reasons set forth in our discussion of Provision 4, under section 7114(c), the Agency head's disapproval of Provision 5 was improper.

VII. Provision 7

Clause 12: The reassigned employee will be deemed to be fully satisfactory for the first one hundred twenty (120) days of his/her reassignment and no action will be proposed against him/her during the period for poor work performance.   Any audits conducted on the transferred employee's work before (s)he is fully trained will not be recorded in any fashion or used in any way to his/her detriment.

A. Positions of the Parties

The Agency contends that this provision violates management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Union disputes the Agency's contentions and states that the provision simply defers the application of performance standards until the reassigned employee has a chance to adjust to a new position. The Union contends that this provision, like the proposals in American Federation of State, County and Municipal Employees, Local 2910, AFL - CIO and Library of Congress, 15 FLRA 541 (1984) and National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985), merely requires a reasonable training period for a reassigned employee.

B. Analysis and Conclusion

The first portion of this provision prescribes the performance rating to be given an employee--that is, "fully satisfactory&--during the first 120-day period of reassignment. The evaluation of employee performance is an exercise of management's rights to direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987). Moreover, the right to evaluate employee performance extends to the determination of the rating to be given an employee. See Federal Prison System, U.S. Medical Center for Federal Prisoners and American Federation of Government Employees, Local 1612, 23 FLRA No. 53 (1986). Consequently, by prescribing that an employee's rating be "fully satisfactory," regardless of what management would have evaluated that employee's performance to be, the first portion of this provision directly interferes with management's right to evaluate employees pursuant to section 7106(a)(2)(A) and (B) of the Statute.  10] The remainder of Provision 7 would limit management's ability to evaluate employees during the first 120 days after a reassignment. In particular, the provision provides that management will not record or make use of any audits of employee performance which it conducts during that period. in its decision in National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985), the Authority found that a proposal providing for a 6-month period after the implementation of changes in job procedures, during which employees would not be charged with errors related to those changes, was negotiable. The Authority's decision in Social Security Administration was reversed by the Fourth Circuit in Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986). The court held that the proposal required more than a mere postponement of the evaluation of employees' work; rather, it precluded management from determining the extent to which employees were able to master new job instructions, contrary to management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. 791 F.2d at 327. The court concluded that the proposal thereby restricted management's prerogative to set performance standards.

Provision 7 now before us presents issues similar to those addressed in Social Security Administration. We conclude, on review of the record in this case and the decision of the Fourth Circuit, that the remaining portion of Provision 7 is outside the duty to bargain because, at a minimum, it precludes management from evaluating how quickly employees are able to master the requirements of the positions to which they are reassigned. To the extent that it is inconsistent, we will no longer follow the Authority's decision in social Security Administration. We find instead that broadly worded provisions, such as the one at issue here, do not merely postpone management's evaluation of employee performance of new duties. Rather, by precluding any evaluation of employees during a preliminary "training" period, such proposals do not permit management to appraise employees on their ability to master new job requirements. This restriction on management's evaluation of employee performance directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

For these reasons, we find that the remaining portion of Provision 7 is also outside the duty to bargain. 

 VIII. Order

The Agency must rescind its disapproval of Provisions 1-6. The petition for review as to Provision 7 is dismissed. 1

Issued, Washington, D.C., July 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

 

FOOTNOTES

Footnote 1 In finding that these provision are within the duty to bargain, we make no judgement to their merits.

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