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29 FLRA No. 126

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 214

                    Union

         and

U.S. MARINE CORPS
MARINE CORPS LOGISTICS BASE,
NONAPPROPRIATED FUND
INSTRUMENTALITY, ALBANY, GEORGIA

                    Agency

Case No.  O-NG-1320

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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It presents issues concerning the negotiability of nine provisions of the parties' locally negotiated agreement which were disapproved by the head of the agency pursuant to section 7114(c). The Agency has withdrawn its disapproval of three additional provisions. 1

For the reasons discussed below, the Authority finds that the Agency must rescind its disapproval of Provisions 7 (section 5) and 9. The Union's petition for review concerning Provisions 1, 2, 3, 5, 6, 7 (section 3) and 8 is dismissed. The Authority Members have reached differing conclusions concerning Provision 4. The Decision and Order and Chairman Calhoun's dissenting opinion on this provision immediately follow this decision.

II. Provision 1

Article VIII, Section 1

Section 1

The Employer agrees that employees, to the maximum extent consistent with work requirements, will be assigned to work appropriate to their job classification specified in (their) job description(s) and at the step or grade level for which they are being paid.

A. Positions of the Parties

The Union asserts that this provision is intended to prevent exploitation of employees in the assignment of work. That is, it generally requires that the Agency limit work assignments to what accords with predetermined classifications and pay rates. It specifically seeks to cure the problem of assignment of work which is classified at a higher pay level. It does not dictate how the Agency will establish classifications and pay rates, but only requires that management adhere to them in the assignment of work to the maximum extent consistent with work requirements. it argues that the provision is negotiable as an "appropriate arrangement" under section 7106 (b)(3). In support it argues that employees have no control over their work assignments and have a significant interest in being appropriately compensated for the work assigned. Moreover, it argues that the impact on the Agency's right to assign work is limited in that, while the provision would generally proscribe assignments which do not comport with classification and pay rates, such proscription would not apply where work requirements dictate otherwise. On balance it contends that the benefits to employees outweigh the negative impact on the Agency's rights.

The Agency asserts that the provision interferes with its right under section 7106(a) (2) (B) to assign work. As to the negotiability of this and other provisions under section 7106(b)(3), the Agency argues that the provision is not focused on ameliorating adverse effects consequent to the exercise of a management right, but rather on preventing the exercise of the right. Also it argues that section 7106(b) (3) is applicable only where management effects a substantial change in conditions of employment as opposed to routine exercises of management rights. Based on these reasons it contends that the provision is nonnegotiable.

B. Analysis and Conclusion

1. The Provision Interferes with the Right to Assign Work

This provision, by its express language and its intent, would preclude "to the maximum extent consistent with work requirements" the assignment of duties which are not consistent with an employee's classification and pay rate. It is to the same effect as Provision 2 in National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1984), which the Authority found was nonnegotiable because it violated the agency's right under section 7106 (a)(2)(B) to assign work in that it precluded the agency from requiring employees to perform duties "inappropriate to their positions or qualifications."

The fact that this provision is qualified by the language "to the maximum extent consistent with work requirements" does not remove the limitation on the Agency's right to exercise its discretion in making work assignments. Such qualifying language does not make an otherwise nonnegotiable matter negotiable. To the contrary, such language constitutes a substantive criterion which would enable an arbitrator to substitute his or her judgement for management's as to, for example, whether management had made work assignments within the limitations prescribed by Provision 1 to the maximum extent consistent with work requirements. Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA No. 56 (1987) (Proposals 5a-d).

Furthermore, this provision is unlike proposals which have been found negotiable because they required only that management take specified matters into consideration in making work assignments but which left intact the Agency's discretion with respect to making the assignments. Compare, for example, American Federation of Government employees AFL-CIO. Local 3511 and Veterans Administration Hospital, San Antonio. Texas, 12 FLRA 76 (1983) (Proposal 37 and cases cited therein).

More recently, the Authority was presented with a proposal concerning the assignment of duties to employees which was held to be nonnegotiable. National Association of Government Employees, SEIU, AFL-CIO and State of Connecticut, Adjutant General Office, 27 FLRA No. 86 (1987) (Proposal 2) (Chairman Calhoun dissenting on Proposal 3). The proposal would have limited the definition of the phrase "other duties as assigned" in employee position descriptions in order to prevent the agency from assigning menial or lower grade duties which employees were not qualified to perform, whether or not the agency amended the position descriptions to reflect assignment of the proscribed duties. Therefore, we held that the proposal was nonnegotiable, as Provision 1 is in the instant case, for having the same effect as Provision 2 in Vint Hill Farms Station, discussed above.

2. The Provision Is Not an Appropriate Arrangement

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), the Authority articulated the test for determining whether a proposal is negotiable as an appropriate arrangement under section 7106(b)(3). Under that test, whether the exercise of management rights involved is "routine" or results in a substantial change in conditions of employment is not, standing alone, determinative of the question of negotiability, as the Agency suggests. The factor may be a consideration in balancing the interests of employees against those of management. It therefore may have some impact on the ultimate determination of whether a proposal is negotiable under section 7106(b)(3).

The Union asserts that the provision is intended as an arrangement to ameliorate the adverse effect on employees of being assigned work of a level and nature which does not correspond to the rate at which they are compensated. We do not think it is apparent, and the record does not show, that employees would inevitably or uniformly be affected adversely by such assignments. The Union tacitly concedes this dichotomy in its arguments as to other provisions of this case: that opportunities to develop broader skills are beneficial to employees. See Provisions 7 and 8 in this decision. In some circumstances, assignments to work of a different classification and higher rate of pay without receiving the higher rate of pay, might reasonably be viewed as detrimental to the interests of employees. In other circumstances those assignments might reasonably be viewed as being beneficial.

However, even if we assume that the proposal constitutes an arrangement for adversely affected employees, we find that it is not an "appropriate" arrangement because it interferes excessively with management's rights. As explained by the Union the provision would act as a general, although not absolute, proscription on the assignment of work which is not in accordance with an employee's job classification and pay rate. It would severely limit the Agency's discretion with respect to making such work assignments. As to benefits to employees, it would limit the extent to which they would be required to perform work associated with a higher pay rate without receiving that pay rate. However, it would also limit their opportunities to gain experience and develop whatever skills might be associated with broader work assignments. On the whole, balancing the restrictions which the provision would place on the Agency's right to assign work against the limited extent to which it would benefit employees, we conclude that the negative impact on management's rights is disproportionate to the benefits derived by employees.

3. Conclusion

Provision 1 excessively interferes with the Agency's right to assign work and is not within the duty to bargain.

III. Provision 2

Article IX, Section 2

Overtime shall be equitably distributed among employees engaged in similar work in a particular work area as far as practicable. It is understood that where special skills are required, employees possessing such skills will be assigned to the overtime work involved. Supervisors shall not assign overtime work to employees as a reward or penalty but solely in accordance with the Employer's need. In case of dispute regarding equity of overtime distribution, the Employer shall, to the extent permitted by the Privacy Act of 1974, make overtime records of the employees involved available to the Union.

A. Positions of the Parties

The Agency asserts that this provision interferes with its right under section 7106(a)(2)(B) to assign work in that it would restrict the Agency's discretion to assign bargaining unit work on an overtime basis to nonbargaining unit employees. It argues that this provision is not an appropriate arrangement because it prevents the exercise of the management right rather than ameliorating its claimed adverse effect on employees.

The Union asserts that this provision merely sets forth a procedure for the assignment of overtime and that it does not interfere with the Agency's right to assign work. It describes the proposal as seeking to protect the rights of bargaining unit employees to an "equitable" share of overtime work and the accompanying premium pay. However, it asserts that under the provision the Agency retains the ability to assign bargaining unit work on an overtime basis to nonbargaining unit employees where restriction to the bargaining unit is not "practicable."

As an alternative argument, the Union asserts that even if the provision interferes with management's right, it is negotiable as an appropriate arrangement intended to address the adverse effects of inequitable assignment of overtime work.

B. Analysis

1. The Provision Interferes with the Agency's Right to Assign Work and Is Not a Procedure

As described by the Union, the purpose of this provision is the preservation of bargaining unit work. That is, it seeks to restrict the ability of the Agency to assign certain overtime work to nonunit employees.

The right to assign work encompasses the assignment of work on overtime. The Authority consistently has found that proposals which restrict the assignment of overtime to bargaining unit employees conflict with that right. See, for example, American Federation of Government Employees, Local 1409, AFL-CIO and U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 16 FLRA 352 (1984) (Provision 1).

In contrast, proposals which are limited to determining which, particular employees, among those employees to whom management in its discretion has already assigned the work involved, will be selected to perform the work in an overtime status when management determines that overtime is required have been held negotiable. See for example, American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982) (Proposal 1). The critical difference between the two types of proposals is that the first limits the agency's discretion to decide whether it will restrict overtime assignments to the bargaining unit; the second does not. Provision 2 is in the first category.

The Union asserts that because the proposed restriction is qualified by the language "as far as practicable" it preserves management's flexibility to assign unit work to nonunit employees when necessary. We rejected a similar claim in connection with the phrase "to the maximum extent consistent with work requirements" in Provision 1. We reject this argument for the same reasons. Consequently, since the provision constitutes a substantive limitation on the Agency's right to assign overtime work to nonunit employees, we find that it directly interferes with management's right to assign work, and does not constitute a procedure negotiable under section 7106 (b)(2).

2. The Provision is Not Negotiable As an Appropriate Arrangement

It is not clear that bargaining unit employees are "adversely affected" by management's exercising its right to assign overtime work to nonunit employees. We may assume, however, for the purpose of this decision that the provision was intended to ameliorate an adverse effect perceived by a qualified bargaining unit employee who was not assigned overtime work even though the assignment was "practicable," and lost the opportunity to earn overtime compensation, because management assigned the work to a nonunit employee instead. In this circumstance, the proposal would prevent the Agency from assigning the overtime work outside the bargaining unit notwithstanding any determination by management under section 7106(a)(2)(B) that the work should be assigned to, for example, a supervisor, an employee in another bargaining unit, or a contractor's employee. See Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367 (1986) (Proposal 4). Such a proposal, which abrogates the exercise of the discretion inherent in management's right to assign work, see Department of Agriculture, Food Safety an Quality Service, Washington, D.C. at 664, clearly does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). See AFGE Local 2782 v. FLRA 702 F.2d 1183, 1188 (D.C. Cir. 1983), reversing and remanding American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981). The proposal's effects on management's rights outweighs the benefit to employees, in our view. Accordingly, the provision excessively interferes with management's right.

3. Conclusion

Provision 2 is not within the duty to bargain because it violates management's rights under section 7106 (a)(2)(B) and does not constitute a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute.

IV. Provision 3

Article IX, Section 6

Employees called in to work outside of and unconnected with their basic work week shall be guaranteed a minimum of 2 hours of work and shall be immediately excused upon completion of the task they were called in to perform. All call-back overtime worked shall be considered to be at least 2 hours in duration.

A. Positions of the Parties 2

The Agency contends that this provision is non-negotiable insofar as it mandates that employees who have been called in to work beyond their basic workweek must be released upon completion of the particular task which they were called in to perform. It contends that this aspect of the provision conflicts with the right to assign work under section 7106(a)(2)(B). It asserts that the provision is not negotiable as an appropriate arrangement for several reasons. First, it argues that section 7106(b)(3) is not intended to apply to routine exercises of management authority but only where an exercise of that authority results in a change in conditions of employment which is substantial. Even if section 7106(b)(3) applies in circumstances such as those to which this provision would apply, the provision would excessively interfere with the right to assign work in that it would deprive the Agency of all discretion inherent in its right to assign work during callback while providing insignificant benefits to employees.

The Union asserts that this provision is intended as an arrangement for employees adversely affected by the Agency's exercise of its right to assign work by calling them back outside their work hours. The adverse effects which the provision is intended to ameliorate are the intrusion into the employee's personal time and the &uneven release procedure practiced by the employer"--that is, sometimes employees are released after completing the particular task for which they were called back and other times employees are assigned other tasks. It asserts that the impact on the Agency's management rights is limited to preventing the Agency from assigning "busy work, to employees who are on call back. Thus it asserts that the Agency would only be required to refrain from assigning duties during call back which would normally be assigned during the regular workweek. As to benefits to employees, the Union contends that the provision would minimize the inconvenience to employees which is attendant to being called back to work during times they would otherwise be off duty. As to the effect of the provision on effective and efficient Government, the Union contends there would be little, because in practice call back situations seldom occur.

B. Analysis and Conclusions

The provision is in dispute insofar as it requires that employees on call back will be released from duty when they have completed the specific task for which they were called back.

1. The Provision Directly Interferes with the Agency's Right to Assign Work

The disputed portion of this provision is to the same effect as a portion of a proposal which was found nonnegotiable in National Federation of Federal Employees, Local 1380 and Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 11 FLRA 129 (1983). That proposal expressly limited the agency's right to assign work on call back to duties related to the emergency situation necessitating the call back. The Authority held that it was inconsistent with section 7106(a)(2)(B) of the Statute. We reach the same conclusion as to this provision.

2. The Provision Excessively Interferes with the Right to Assign Work

For the reasons expressed in conjunction with Provision 1, we reject the Agency's argument that section 7106(b)(3) does not apply to "routine" exercises of management rights. We find that the provision is intended as an "arrangement" for employees who are adversely affected by the Agency's exercise of its right to assign work in circumstances where it calls employees who are off duty back to perform work. Balancing the respective interests of the Agency and the employees, we find that the proposed arrangement excessively interferes with the Agency's right to assign work and is, therefore, not within the duty to bargain, as explained below.

The provision absolutely prohibits the Agency from requiring employees to perform additional tasks--other than the specific one(s) for which they had been called back--while they are on callback overtime, without regard to the Agency's needs. Thus, in addition to foreclosing the assignment of "busy work," the provision would also foreclose the assignment of work for which the Agency might have a legitimate need at the time. On the other hand, the provision could serve to limit the amount of time which the employee was required to spend at the work site when called back, thus limiting the extent of the intrusion into the employee's personal time. However, the intrusion into their personal time is somewhat mitigated by their being paid on an overtime basis and being guaranteed a minimum of 2 hours of such pay.

In view of these circumstances we see the negative impact on the Agency's right to assign work is disproportionate to the additional benefit which the provision would afford employees by requiring their release upon completion of the task for which they were called back. Moreover, we cannot conclude that the nature and extent of the adversity suffered by employees as a consequence of the Agency's exercise of its right to call them back is particularly severe especially in view of the fact that, as the Union acknowledges, call back is an infrequent occurrence. Compare National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986) (Provision 2) (the severity of impact of a reduction-in-force on employees).

Balancing the detriment to the Agency's ability to exercise its right to assign work and to perform its mission effectively and efficiently against the extent to which employees would be benefited by the provision, we conclude that the provision interferes excessively with management's right and is not an appropriate arrangement which is negotiable under section 7106 (b)(3).

V. Provision 4

The Authority members disagree as to the negotiability of this provision. The decision and order on Provision 4 and Chairman Calhoun's dissent immediately follow this decision.

VI. Provision 5

Article XXI, Section 5

The Employer agrees that any employee in the unit requested to perform temporarily the duties of a higher job classification for more than thirty (30) days will be compensated at the appropriate higher rate of pay for the period served. The effective date of such promotion will be in accordance with applicable regulations. At the end of such assignment, the employee will revert to the former job classification and pay grade. When it is anticipated that the higher level vacancy will extend over a protracted period of time, such temporary promotion will be rotated among available qualified employees every ninety (90) days.

A. Positions of the Parties

The Agency asserts that, by requiring it to rotate assignments to a position when a temporary promotion is involved, this provision conflicts with its right under section 7106(a) (2) (B) to assign work. It claims that the provision is not an "arrangement" under section 7106(b)(3) because bargaining unit employees suffer no adverse effect from a management decision to temporarily promote one of them. The Agency further asserts that, even assuming that the provision could be construed as an "arrangement," it is not "appropriate" because it excessively interferes with the exercise of management's right by stripping the Agency of discretion as to whether to continue a particular employee in an assignment. It would also detrimentally affect the continuity of the Agency's operations by requiring periodic changing of the employee assigned to a particular project. Thus, management could be forced under this provision to replace an employee who has not yet finished a project or assignment with another who requires a break-in period to achieve the same level of effectiveness.

The Union asserts that because the provision requires only that management rotate employees it has determined are qualified for a particular assignment, the provision constitutes a procedure under section 7106(b)(2) or, alternatively, is an appropriate arrangement for employees adversely affected by being denied the career enhancing opportunities and higher pay attendant to a temporary promotion which management gave to another employee. Moreover, the Union claims that the possible presence of favoritism in such actions further serves to adversely affect such employees. The union contends that the provision's only impact on the Agency's rights is that it would not be free to retain one employee in a temporary promotion for more than 90 days. It further claims that this impact would be offset by the fact that the work involved would be accomplished by a succession of employees whom management had determined to be qualified. Consequently, more employees would share in the benefits of temporary promotion. The Union asserts that the effect on efficiency of operations would be minimized because the employees eligible for rotation would have to meet the Agency's qualifications requirements.

B. Analysis

1. The Provision Interferes with the Agency's Exercise of Its Management Rights

The Agency disapproved only the last sentence of this provision. Therefore, our ruling is limited to that portion of the provision.

The disputed portion of this provision is to the same effect as Provision 4 in American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985). That provision, which required 30-day rotation of temporary promotions, was held to be inconsistent with the Agency's right under 7106(a)(2)(B) to assign work: it would have required management to reassign work after the specified period. For the same reasons, Provision 5 is inconsistent with section 7106 (a)(2)(B). See also, American Federation of Government Employees, AFL-CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) (Provision II). In that case the Authority found that a provision which required that details to positions of the same or lower grade not exceed 60 days conflicted with management's right to assign employees. The Authority noted that inherent in the right to assign employees is the right to determine the duration of the assignment.

2. The Provision Does Not Constitute an Arrangement Negotiable under Section 7106(b)(3)

Here, we may assume that the disputed sentence was intended to ameliorate an adverse effect perceived by a qualified, available bargaining unit employee when another bargaining unit employee is temporarily promoted to a higher level position and retained at the higher level for more than 90 days. In the circumstances covered, however, the proposed amelioration would eliminate management's discretion to require a particular employee to complete an assignment extending beyond 90 days. This severe limitation on management's ability to exercise its rights would apply without regard for the degree of inefficiency or disruptiveness the Agency might determine it would engender in specific situations. Such a proposed amelioration excessively interferes with the exercise of management's rights to direct employees and to assign work. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Proposals 6, 7, and 8). Consequently, it does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). See AFGE, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983).

C. Conclusion

The disputed portion of Provision 5 directly and excessively interferes with the Agency's right under section 7106(a)(2)(A) and (B) to assign work and direct employees and is not an appropriate arrangement within the meaning of section 7106(b)(3). It is therefore not within the duty to bargain.

VII. Provision 6

Article XXI, Section 8

A rating panel will be established to rate and rank applicants and screen out all but five highly qualified candidates, the names will be furnished to the selecting official. For each additional vacancy, one additional name will be added to the highly qualified list. The selection list will be prepared by listing the highly qualified candidates in alphabetical order. The selecting official shall select from among the highly qualified candidates.

A. Positions of the Parties

The Agency asserts that this provision conflicts with section 7106 (a)(2)(C) and Federal Personnel Manual (FPM) Chapter 335--a Government-wide regulation--since it would prevent management from either declining to make a selection or selecting from another appropriate source. As to the Union's assertion that the provision is an appropriate arrangement, the Agency claims that tit is not aimed at ameliorating adverse effects flowing from the exercise of management rights but at establishing prior limitations on how the right will be exercised.

The Union argues that the provision is susceptible to two interpretations. One being that it would limit the highly qualified candidates, from among whom the Agency would make its selection to bargaining unit employees. The other being that the Agency could choose from candidates from all appropriate sources who had been processed by the rating panel. According to the Union the second interpretation would preserve the Agency's option to select from any appropriate source. Under this latter interpretation, all that is required is that applicants from all sources be submitted for rating and ranking by the panel. The Union contends that this requirement is merely procedural and does not violate the Statute.

It also argues that the provision is negotiable as an appropriate arrangement for employees adversely affected by the Agency's exercise of its rights to select employees for vacancies. The adverse effect which the provision is intended to ameliorate is the possibility that some employees might fail to be selected for positions because other employees have been held to a lesser standard in terms of qualifications. Although it acknowledges that the provision may limit the number of candidates from which the Agency may make its selection, it argues that the provision has no impact on the Agency's right to select from all appropriate sources. Lastly, the Union argues that FPM Chapter 335 is inapplicable inasmuch as nonappropriated fund employees are involved in this case.

B. Analysis

The Agency disapproved only the last sentence of this provision. our ruling here is limited to that portion of this provision.

1. The Provision Interferes with the Right Under Section 7106(a)(2)(C) to Select from Other Appropriate Sources

The express language of this provision restricts the Agency when filling vacancies to making selections from a certificate of "highly qualified" candidates. It is to the same effect as Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982). Like that proposal, this provision would limit the Agency to making selections from the "source" specified in section 7106(a)(2)(C)(i) and as a corollory would prevent it from making selections directly from other appropriate sources, such as reemployment or repromotion eligibles, or transfer or reinstatement, under section 7106 (a)(2)(C)(ii). We reject the Union's assertion that the provision is merely procedural. Rather, it goes to the substance of section 7106 (a)(2)(C) which, among other things, preserves as a management right the option of making selections directly from sources other than certificates of qualified candidates. We find that Provision 6 conflicts with the Agency's rights under section 7106 (a)(2)(C).

We reject the Agency's assertion that this provision is rendered nonnegotiable because it conflicts with FPM, Chapter 335. That portion of the FPM does not apply to nonappropriated fund employees as are involved in this case. See 5 U.S.C. 2105(c).

2. The Provision Is Not an Arrangement for Adversely Affected Employees

The Union intends this provision to ameliorate the adverse effect perceived by an employee who is not selected for a position because another candidate has been held to a lesser qualifications standard. Assuming for the purpose of this decision that this is an adverse effect within the meaning of section 7106(b)(3), the provision goes too far. It would funnel candidates for every selection action, from every appropriate source, through a rating panel. This proposed amelioration, thus, would (1) apply without regard to whether any bargaining unit employee would be adversely affected by a particular selection action, and (2) totally preclude the Agency from making any selection directly from other appropriate sources. Consequently, the Union has not established that the provision relates to only adverse effects on employees. Moreover, the proposed amelioration, which totally abrogates management's right to make selections directly from other appropriate sources under any circumstances, does not constitute an appropriate arrangement under section 7106(b)(3). See AFGE, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983).

C. Conclusion

The disputed portion of Provision 6 is not within the duty to bargain because it violates management's right under section 7106 (a)(2)(C)(ii) to make selections from appropriate sources and does not constitute a negotiable procedure under section 7106(b)(2) or appropriate arrangement under section 7106 (b)(3).

VIII. Provision 7

Article XXIV, Sections 3 and 5

(Section 3)

The Employer will provide employees on-the-job cross-training to the maximum extent practicable, using techniques such as interchanging employees.

(Section 5)

If new equipment is installed or new procedures implemented appropriate training will be provided affected employees.

A. Positions of the Parties

The Agency asserts that both sections of Provision 7 interfere with the Agency's right under section 7106 (a)(2)(B) to assign work in that both require the Agency to assign training to employees. Additionally, it asserts that neither are negotiable as appropriate arrangements. As to section 3, it argues that any relationship between the provision and the exercise of a management right is remote and speculative at best. Consequently, it asserts that the provision does not meet the test for establishing that a proposal is intended as an arrangement for employees adversely affected by a management right. It argues that any contention that section 5 constitutes an arrangement for employees adversely affected by the exercise of a management right is similarly speculative in nature. Even assuming that it does constitute an arrangement, the Agency argues that section 5 excessively interferes with the exercise of its rights.

The Union asserts that both sections are negotiable under section 7106(b) (3) as appropriate arrangements. According to the Union, section 3 is intended as an arrangement for employees who work in circumstances where they are faced with constantly changing priorities and reorganizations. In such an environment, section 3 would provide employees with enhanced job security and career potential. The Union asserts that the impact on the Agency's management right is limited by the qualification that on-the-job cross-training will be provided only to the maximum extent practicable. It argues that the benefits to employees outweigh the negative impact on the Agency's rights.

As to section 5, the Union asserts that it is intended as an arrangement for employees adversely affected by the introduction of technological and operational changes. It further asserts that the extent and the nature of the training provided as a consequence of section 5 would be directly proportional to the extent and nature of the change which results in the need for the training.

B. Analysis and Conclusions

1. Sections 3 and 5 Directly Interfere with the Agency's Right to assign Work

The Agency's right to assign work under section 7106(a)(2)(B) encompasses the assignment of training. See, for example, American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA No. 92 (1986) (Proposal 3). Therefore, we conclude that Provision 7 is inconsistent with the Agency's right to assign work.

2. Section 3 Does Not Constitute an Arrangement under Section 7106(b)(3)

Based on the Union's explanation, Section 3 is (1) not focused on any particular exercise of a management right; and (2) not conditioned on any management right being exercised. Rather it is intended to generally broaden employee skills and qualifications in the hope that employees will thereby have more options available to them in the event that reorganizations and realignments occur in the future.

Since, section 3 would apply regardless of whether any management right was ever exercised and since the exercise of the management rights which might be involved is purely speculative, we find no basis to conclude that section 3 is an "arrangement" for employees who are adversely affected by the exercise of a management right within the meaning of section 7106(b)(3).

3. Section 5 Is Negotiable as an Appropriate Arrangement

Section 5, unlike section 3, is directly linked to an actual exercise of management rights--that is, those associated with the introduction of new equipment and new operational procedures. It would only apply in the event that such rights were exercised. Unlike section 3, we find that section 5 addresses reasonably foreseeable adverse effects associated with the Agency's requirement that employees master and use different equipment or operating procedures.

In this regard the section is limited to requiring that "appropriate" training be given "affected" employees. Thus, the section requires training to be given only where there is a need for it, not in all circumstances without regard to its relevance or necessity. Also, the nature of the training would be directly tied to the changes in' employee work requirements. This section thus is to the same effect as Proposal 3 in American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA No. 92 (1986), which the Authority found constituted an arrangement within the meaning of section 7106 (b)(3). Based on the foregoing, we conclude that section 5 also is an arrangement.

In balancing the respective interests of the Agency and employees we find that section 5 does not excessively interfere with the Agency's right to assign work. As noted, the type and nature of the training required is expressly linked to the change in employee work requirements. The section does not dictate either the type or extent of the training to be given. Thus, the Agency retains discretion in this regard -- subject to arbitral review as to whether "appropriate" training has been provided. Nor does the section dictate when training will be given. In our view it is reasonable to conclude that section 5 will promote an affected employee's ability to adapt to the introduction of new equipment and procedures and to function effectively and efficiently. It can also reasonably be expected to reduce the negative effects on employee performance of the introduction of new equipment and procedures.

The negative impact of section 5 on the Agency's right to assign work is limited. In the first place, the Agency must provide only training "appropriate" to the nature and extent of the change resulting from its introduction of new equipment and procedures. In the second place, the negative impact which might otherwise arise would be offset, at least in part, by the greater efficiency and productivity which can reasonably be expected from employees who are adequately trained in the use of new equipment and procedures.

We conclude that the negative impact on the Agency's right to assign work is outweighed by the benefits to employees of being afforded appropriate training where new equipment and procedures are introduced. We find that section 5 is negotiable under section 7106 (b)(3).

IX. Provision 8

Article XXX, Section 3

The parties agree that all employees shall be afforded a reasonable opportunity to self-improvement and that efforts will be made to utilize the present skills of employees. The Employer agrees to provide opportunities for employees to improve their skills through on-the-job training, work-study programs, or other training programs including redesigning jobs where and if feasible so that they may perform at their highest potential and advance in accordance with the abilities.

A. Positions of the Parties

The Agency asserts that this provision conflicts with its right under section 7106(a)(2)(B) to assign work. The Union asserts that this provision is negotiable for the "same reasons as in Clauses 8,9, and 10." 3 The union has made no substantive argument in its Response as to the negotiability of "Clause 8." As to "Clauses 9 and 10," the Union essentially argued that those provisions were negotiable under section 7106(b)(3) as appropriate arrangements for employees adversely affected by the exercise of management rights. It also argues that the second sentence is negotiable under section 7106(b)(2) as a procedure. The Union argues that the provision does not mandate that the Agency take specific actions but only provide employees the opportunity to display their existing qualifications and to improve their skills by providing training and job redesign where feasible.

B. Analysis and Conclusion

Because the Agency disapproved only the second sentence of this provision, our ruling is limited to that portion of this provision.

1. The Provision Conflicts with the Agency's Rights under Section 7106.

This provision is part of an article relating to Equal Employment Opportunity. It would require the Agency to make available to employees opportunities to improve their skills through training programs and job redesign where feasible. The Union states that the training opportunities encompassed by the provision "are meant primarily to be provided from ongoing activity at the worksite." It further states that the provision "anticipates that existing work situations would be exploited to provide such (training) opportunities." As to job redesign, the Union describes the requirement upon the Agency as being limited to those circumstance where it is feasible: the provision would not require job redesign of the Agency reasonably decides that it is not feasible. In its petition the Union states that:

An example would be where jobs could just as easily be designed as career-ladder instead of 'dead end' jobs. The clause would require the employer to at least take a look at job families where there is a logical progression of duties and provide for structured job classification which could deliver promotions. The clause would not require the employer to implement such plans if the implementation was not consistent with the accomplishment of the mission in an effective and efficient manner

Union Petition at 5.

The Authority has consistently held that the right to assign work under section 7106(a) (2) (B) encompasses training assigned during duty hours. For example, National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Proposals 1 through 3). Thus a proposal which requires training to be given during duty hours directly interferes with that right. In contrast, the Authority has held that a proposal which did not mandate training during duty hours, or otherwise deprive the agency of discretion concerning the methodology, scheduling, duration, type, content, or other characteristics of the training itself was negotiable. American Federation of Government Employees, AFL-CIO, Social Security Local No. 1760 and Department of Health and Human Services Social Security Administration, 9 FLRA 813 (1982) (Proposal 2).

As to job redesign, the Authority has held that a proposal which requires management to redesign jobs to create promotion opportunities interferes with the rights to determine organization and to assign work. American Federation of Government Employees, AFL-CIO Local 32, and office of Personnel Management, 17 FLRA 790 (1985) (Proposal 4). On the other hand, the Authority found that a proposal which merely identified job redesign as one alternative which could be followed for utilizing the present skills of employees was negotiable. In so finding, the Authority noted that a proposal to redesign a position or job in a particular manner would conflict with the right to assign work. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 620-621, (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).

Based on the language of this provision and the Union's statements as to its intended meaning, we conclude that it would require the Agency to (1) assign training during duty hours and (2) redesign jobs to provide promotional opportunities. The Union suggests that the insertion of the phrase "where and if feasible" sufficiently preserves the Agency's discretion and renders this otherwise nonnegotiable provision negotiable. We rejected the same claims in connection with similarly qualifying language as to Provisions 1 and 2. We reject this argument for the same reasons. Since the provision places a substantive limitation on the Agency's discretion to determine whether it will assign training during duty hours and or redesign jobs, it directly interferes with the Agency's rights to determine its organization and to assign work. In view of this substantive interference, we reject the Union's argument that the provision is procedural and negotiable under section 7106 (b)(2).

2. The Union Has Not Established That the Provision Is an "Arrangement" under Section 7106(b)(3)

The Union relies on the arguments it made in conjunction with Provision 7 to support its claim that this provision is negotiable as an appropriate arrangement under section 7106(b)(3). We find that this provision, like section 3 of Provision 7, does not constitute an "arrangement" within the meaning of section 7106(b) (3) because the Union has not established how this provision relates to only adverse effects on employees produced by the exercise of management rights. Consequently, we conclude here, as we did concerning section 3 of Provision 7, that the Union has failed to identify a basis for us to conclude that this provision constitutes an arrangement within the meaning of section 7106 (b)(3).

3. Conclusion

The disputed portion of Provision 8 directly interferes with the Agency's rights under section 7106(a) to determine its organization and to assign work. The Union has failed to establish that the provision is an "arrangement" for employees adversely affected by the exercise of management rights. Therefore, we find that the disputed portion of Provision 8 is not within the duty to bargain.

X. Provision 9

Article XXXIX, Section 3

If neither party serves notice to negotiate this Agreement, the Agreement shall be automatically renewed for a one year period, subject to the due delay on the part of either party. Prior to meeting with the arbitrator, the parties will meet to define the issue to be placed in arbitration.

A. Positions of the Parties

The Agency contends that this provision conflicts with an Agency regulation for which a compelling need exists. The Union contends that the Agency has not established that the regulation relied upon meets the criteria for determining compelling need.

B. Analysis and Conclusion

The regulation on which the Agency relies, DOD Civilian Personnel Manual (CPM) 1400.25-M, CPM Chapter 711, Subchapter 3-4.b, provides in relevant part as follows:

(4) Substantive Government-wide regulations as well as regulations which are issued within DoD, and which do not merely transmit requirements imposed by law, do not over-ride any provisions of a negotiated agreement during the term of that agreement. However, each agreement must be brought into conformance with applicable published policies and regulations of the primary national subdivision and of the DoD and with regulations of appropriate non-DoD authorities, at the time it is renegotiated, or when it is renewed or extended and such renewal or extension will result in its being in effect for more than 3 years and 90 days since it was last brought into conformance with applicable laws and regulations.

(6) No agreement will exceed 3 years in duration from its effective date. An agreement may be renewed or extended for a specific period (not to exceed 3 years for each renewal or extension) where the parties so agree, subject to the requirement set forth in subparagraph (4) above.

The Agency asserts that, if it does not choose to renegotiate the agreement, Provision 9 would prevent it from bringing the agreement into conformance with Government-wide rules and regulations and Agency regulations for which a compelling need exists. Consequently, the provision conflicts with the above-quoted regulation.

We find that, inasmuch as Provision 9 allows either party the option of seeking renegotiation of the agreement, the Agency has a sufficient opportunity to comply with the requirement of its regulation. We reject the Agency's suggestion that invoking its option would effectively compel it to negotiate matters which are not within the duty to bargain--that is, matters which are inconsistent with applicable regulations. Moreover, we note that the Agency acknowledges that although it does not have any obligation to negotiate over whether to delete provisions which are in conflict with applicable regulations, it does have an obligation to negotiate over "the impact and implementation of the change." We also note that the Union states that nothing in Provision 9 forecloses a renewed agreement from being subjected to agency-head review under section 7114(c) of the Statute. Such review would afford the Agency the opportunity to bring the agreement into conformance with governing regulation. Based on these circumstances we find that the Agency has not established that Provision 9 is inconsistent with the regulatory provisions on which the Agency relies.

In view of the absence of any inconsistency, we do not pass upon the issue of whether there is a compelling need for the regulatory provisions.

The Agency has not established that Provision 9 is inconsistent with an agency regulation for which a compelling need exists. It is, therefore, within the duty to bargain.

XI. Order

The Agency must rescind its disapproval of Provisions 7 (section 5) and 9. 4 The Union's petition for review concerning Provisions 1, 2, 3, 5, 6, 7 (section 3) and 8 is dismissed.

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER ON PROVISION 4

Article XIII, Section 3

Accumulation of Vacation Leave. The maximum amount of accumulated vacation leave that may be carried over from one leave year to the next will be 240 hours. Vacation leave in excess of 240 hours which has not been used by the end of the leave (sic) will be forfeited, except that upon certification by the employer that an eligible employee has been denied the privilege to take vacation leave, he shall be paid cash in lieu of the vacation not taken.

A. Positions of the Parties

The Agency asserts that this provision concerns a money-related fringe benefit and, therefore, does not relate to conditions of employment within the meaning of the Statute. It also contends that it is inconsistent with an agency regulation for which a compelling need exists.

The Union asserts that provision concerns conditions of employment and that the Agency has not demonstrated that a compelling need exists for its regulation.

B. Analysis and Conclusions

1. The Provision Concerns Conditions of Employment

In American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), we held that nothing in the Statute, or its legislative history, bars negotiation of proposals relating to pay and fringe benefits insofar as (1) the matters proposed are not specifically provided for by laws and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exists. Based on the reasons expressed in that decision we reject the Agency's argument here that Provision 4 is not within the duty to bargain simply because it concerns a money-related fringe benefit. 5

2. The Agency Has Not Established That a Compelling Need Exists for Its Regulation.

As to compelling need, the Agency argues that the proposal is inconsistent with paragraph 2b(l) of SECNAV Instruction 5300.22A, Navy and Marine Corps Personnel Policy Manual for Nonappropriated Fund Instrumentalities, which it characterizes as providing for payments for unused annual leave in very limited circumstances.

The Agency contends that its regulatory provision meets the Authority's criterion for determining compelling need which is found 5 CFR 2424.11(a). That is, it claims that the regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission in a manner which is consistent with the requirements of an effective and efficient government. In support it states but does not demonstrate that its regulation is necessary to minimize the overhead employment costs of operating the NAF system and reflects the need to maintain a viable NAF system. See Lexington-Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986), in which the Authority held that effectiveness and efficiency are not to be measured solely in monetary terms.

To establish that a proposal is nonnegotiable on the basis of compelling need, an agency must (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal, and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's illustrative standards set forth in section 2424.11 of its Regulations. Generalized and conclusionary reasoning does not support a finding of compelling need. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA NO. 104 (1986) (Union Proposal 7).

We find that the Agency has presented nothing more than generalized and conclusionary statements to support its contention that a compelling need exists for its regulation. Thus, we must find that the Agency has not met its burden of demonstrating that its regulation is essential, as distinguished from merely being helpful or desirable, under 5 CFR 2424.11(a), as it claims. See American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454 (1980). In view of this finding, it is unnecessary to pass upon the Agency's argument that the provision and its regulation are inconsistent.

3. Conclusion

We find that Provision 4 concerns a condition of employment and does not conflict with an agency regulation for which a compelling need exists. Absent any other basis for finding the provision nonnegotiable, we find it is within the duty to bargain.

C. Order

The Agency shall rescind its disapproval of Provision 4. 6

Issued, Washington, D.C., November 6, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Separate Opinion of Chairman Calhoun on Proposal 4

Proposal 4 concerns accumulation of and cash payments for annual leave, a money-related fringe benefit, for Nonappropriated Fund Instrumentality employees. In my opinion in American Federation of Government Employees. AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377, 390 (1986), I stated that in the absence of a clear expression of Congressional intent to make wages and money-related fringe benefits negotiable, I would find that they are not within the duty to bargain. I found no such expression in that case, which also concerned NAF employees, and I find none here. Accordingly, I would find that Proposal 4 is nonnegotiable.

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: The Authority granted a request by the Agency to supplement its statement of position. The Agency's request was limited to addressing arguments raised by the Union for the first time in its Response, that certain of the provisions in dispute were negotiable as appropriate arrangements under section 7106(b)(3). The Authority provided the Union the opportunity to respond to the Agency's supplemental statement. However, the Union neither responded within the allotted time limit nor requested an extension of time. Subsequent to the expiration of the established time limit the Union requested permission to submit a "supplemental submission," based on its contention that the Agency's supplemental statement introduced several new matters. In view of the fact that the Union had previously been provided an opportunity to respond to the Agency' supplemental statement and failed to do so, we deny the Union's request to submit a "supplemental statement" on the matter.

Footnote 2: The parties have presented arguments regarding the consistency of their positions with the statutory provision in title 5, U.S. Code, governing callback--those found at U.S.C. 5542. Inasmuch as this statutory provision does not apply to non-appropriated fund employees, the arguments are not germane to this proposal. 5 U.S.C. 2105. Consequently, they will not be addressed further in this decision.

Footnote 3: The Agency his Withdrawn its disapproval of "Clause 8." "Clause 9" is Provision 7 (section 3) and "Clause 10" is Provision 7 (section 5).

Footnote 4: In finding that these provisions are within the duty to bargain, we make no judgment as to their merits.

Footnote 5: In view of our decision, we do not reach the issue of whether an agency head in disapproving a provision of a locally negotiated agreement under section 7114(c), is precluded from relying on a contention that the provision at issue does not concern a matter affecting conditions of employment. See generally the decision of the Federal Labor Relations Council in National Federation of Federal Employees, Local 1745 and Veterans Administration Data Processing Center, Austin, Texas, 5 FLRC 784, 786-89 (1977). Cf. 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).

Footnote 6: In finding that this provision is within the duty to bargain, we make no judgment as to its merits.

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