22:0539(57)NG - NFFE and Haskell Indian Junior College, Bureau of Indian Affairs, DOI, Lawrence, KS -- 1986 FLRAdec NG
[ v22 p539 ]
22:0539(57)NG
The decision of the Authority follows:
22 FLRA No. 57
FEDERAL FEDERATION OF
FEDERAL EMPLOYEES
Union
and
HASKELL INDIAN JUNIOR COLLEGE,
BUREAU OF INDIAN AFFAIRS,
DEPARTMENT OF THE INTERIOR,
LAWRENCE, KANSAS
Agency
Case No. 0-NG-1113
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). The appeal concerns
the negotiability of eleven Union proposals. /1/ The proposals cover
the impact of the Agency's institution of a pre-college program,
assignment of work space, introduction of Indian-related materials into
class instruction, and changing of work schedules.
II. Union Proposal 1
ACT scores as well as placement tests shall be used to
initially place students in the pre-college program.
A. Position of the Parties
The Agency contends the Union Proposal 1 would require it to
negotiate concerning the educational policy of Haskell Indian Junior
College in violation of its right under section 7106(b)(1) of the
Statute to determine the means and manner by which its mission will be
carried out. The Agency also contends that the proposal exceeds the
scope of its obligation to negotiate over the impact and implementation
of a change in conditions of employment and does not concern a condition
of employment of unit employees.
The Union states that the intent of the proposal is to more
accurately place students in the appropriate level of course work.
Since, according to the Union, the improper placement of students
increases an instructor's workload, the Union contends that the Agency's
placement policy has an adverse impact on bargaining unit employees and
that the Agency is therefore required to negotiate concerning the impact
of its policy.
B. Analysis and Conclusions
Section 7106(b)(1) of the Statute provides that, unless the agency
elects to do so, an agency's duty to bargain with a labor organization
over conditions of employment does not extend to those matters which
involve the technology, methods, and means of performing work. National
Treasury Employees Union and U.S. Customs Service, Region VIII, San
Francisco, California, 2 FLRA 254, 258-59 (1979). The Authority has
consistently held that those matters which directly and integrally
relate to the accomplishment of the mission of the agency fall within
the meaning of performing work under section 7106(b)(1). Panama Canal
Federation of Teachers, Local 29 and Department of Defense Dependents
Schools, Panama Region, 19 FLRA No. 99, slip op. at 2-3 (1985);
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603
(1980) (Union Proposals VIII and IX), 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).
The Union's proposal would require the Agency to use ACT scores in
addition to the current method of using placement tests to place
students in the pre-college program. The record in this case indicates
that the mission of Haskell Indian Junior College is the education of
its students. This mission necessarily requires the Agency to determine
the appropriate level of course work in which to place students in order
to best educate them. The Agency has determined that the establishment
of a pre-college program to address the deficiencies of developmental
students would help it to better accomplish its mission. Agency's
Statement of Position at 1-5. The criteria used to place students in
the pre-college program thus directly and integrally relate to the
accomplishment of the Agency's mission, and, therefore, constitute
methods and means of performing the Agency's work under sections
7106(b)(1). Since the Union's proposal would require the Agency to
negotiate concerning its placement policy, the Authority concludes the
Union Proposal 1 is contrary to the Agency's right under Section
7106(b)(1) to determine the methods and means of performing work.
The Union contends that the proposal is intended to place students
more accurately. The Union has not presented any evidence that the
Agency's current placement policy results in students being improperly
placed; therefore, it has not demonstrated that the policy adversely
impacts upon bargaining unit employees. Accordingly, the Authority
concludes that Union Proposal 1 is outside the duty to bargain. In view
of our decision that the proposal violates management's right, it is
unnecessary to determine whether the proposal is also outside the duty
to bargain because it does not concern a condition of employment.
III. Union Proposals 2 and 3
Proposal 2
Enrollment statistics should not be used to evaluate
instructional positions.
Proposal 3
Enrollment statistics should not be used negatively against
employees in the performance appraisal process.
A. Positions of the Parties
The Agency treats these proposals separately. It argues that
Proposal 2 addresses the assignment of instructors to courses and design
of curriculum. It maintains that such a proposal preempts its right to
determine that means and methods by which the mission will be
accomplished. The Agency also states that the proposal would affect the
number of employees assigned to a shift or tour of duty or a project.
The Agency contends that Proposal 3 requires negotiation over
performance elements and standards in violation of management's right.
The Union's contentions on both proposals concentrate on the use of
statistics in the performance context. The Union maintains that course
enrollment tends to be a matter beyond an instructor's control. It
states declines in enrollment should not be used against employees in
the appraisal process. It argues that the proposals do not violate
management's rights.
B. Analysis and Conclusions
The Authority had held that proposals which would have prohibited an
agency from considering backlogs as a factor in rating and evaluating
employee performance were outside the duty to bargain since they would
eliminate a specific element from the performance appraisal process in
violation of management's rights to direct employees and assign work
under section 7106(a)(2)(A) and (B) of the Statute. American Federation
of Government Employees, National Council of Social Security Payment
Center Locals and Social Security Administration, Office of Program
Service Centers, Baltimore, Maryland, 7 FLRA 818, 820-21 (1982) (Union
Proposals 6 and 7), citing the reasoning set forth in National Treasury
Employees Union and Department of the Treasury, Breau of the Public
Dept, 3 FLRA 768 (1980), aff'd sub nom. National Treasury Employees
Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Proposals 2 and 3 would
effectively prohibit the Agency from considering enrollment statistics
as a factor in evaluating an instructor's performance.
The Union contends that the proposal can be distinquished from the
proposals in SSA, Office of the Program Service Centers because the word
"should" in the present proposals vests the Agency with discretion on
whether and how the provisions should be applied. However, the
proposals would still violate management's rights under section
7106(a)(2)(A) and (B) to identify cretical elements and establish
performance standards by imposing a substantive limitation of the
Agency's exercise of those rights. In American Federation of Government
Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New
York District Office, 13 FLRA 446, 450-52 (1983), the Authority rejected
the union's contention that the phrase "to the extent practicable"
removes the substantive limitation that the proposal would have placed
on agency's right to identify critical elements. Similarly, the
Authority rejected a union contention that the phrase "to the maximum
extent possible" leaves the agency with discretion to exercise its right
to assign work "without inhibition." American Federation of Government
Employees, AFL-CIO, National Border Patrol Council and Department of
Justice, Immigration and Naturalization Service, 16 FLRA 251, 252
(1984).
The Union also contends that the duty to bargain extends to the
proposals because course enrollment tends to be a matter beyond the
control of the individual instructor and should, therefore, not be used
to evaluate performance. The Authority has held in American Federation
of Government Employees, AFL-CIO, Local 2849 and Office of Personnel
Management, New York Regional Office, 7 FLRA 571, 575-76 (1982) (Union
Proposal 3) and American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217, 223-25 (1981) (Union Proposal 2) that proposals
requiring performance standards to make allowances for factors beyond
the control of employees are within the duty to bargain. However, the
Authority also found that the language of the proposals in those cases
would have provided a general, nonquantitative standard by which the
application of performance standards established by management could be
evaluated in a subsequent grievance. OPM, New York Regional Office, 7
FLRA at 576; FDIC, Chicago Region, 7 FLRA at 224. In terms of this
case, rather than establishing such a "general nonquantitative
standard," Union Proposals 2 and 3 would require the Agency to negotiate
concerning a specific element of its performance standards -- whether
enrollment statistics should be a factor. Since the proposal would
prohibit the Agency from considering course enrollment statistics in
appraising an instructor's performance whether or not enrollment in a
relevant factor, the Union's proposals are materially different from the
proposals found negotiable in OPM, New York Regional Office and FDIC,
Chicago Region.
Union Proposals 2 and 3 are outside the duty to bargain in that they
would require the Agency to negotiate concerning the identification or
critical elements and content of performance standards in violation of
management's rights to assign work and direct employees under section
7106(a)(2)(A) and (B) of the Statute. Again, because of our findings,
it is unnecessary to address the Agency's remaining arguments.
IV. Union Proposals 4 and 5
Proposal 4
If a case has five students or less in enrollment, then the
instructor shall have the option of closing that section of the
course with the approval of their supervisor.
Proposal 5
If instructors end up with lower than their normal teaching
assignment due to low enrollment, then any assignment or
additional duties shall be related to their position and shall be
made as fairly as possible.
A. Position of the Parties
The Agency contends that proposals 4 and 5 interfere with
management's right to assign work and determine the means and methods by
which its mission will be carried out.
The Union maintains that the proposals assure equitable assignments.
It also states that the "fairly as possible" language mirrors language
in the furlough section of the Master Agreement.
B. Analysis and Conclusions
In National Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, 3 FLRA 768, 775 (1980), aff'd sub nom.
National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir.
1982), the Authority stated that management's right under section
7106(a) of the Statute to assign work encompasses duties and work to be
assigned as well as the particular employees to whom or positions to
which the work will be assigned. Union Proposal 4 would delegate to the
instructor the discretion otherwise vested in the Agency to initiate the
process of deciding whether a particular class should be offered and,
consequently, what duties and work will be assigned to that employee.
The Authority has held that proposals which would involve an exclusive
representative in the deliberative process by which management makes
decisions on matters within the discretion of the agency themselves
violates management's rights. A proposal involving the exclusive
representative in the deliberative process on contracting out
determinations was rejected in National Federation of Federal Employees,
Local 1167 and Department of the Air Force, Headquarters, 31st Combat
Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574,
579-80 (1981), aff'd sub nom. National Federation of Federal Employees,
Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). In National
Association of Government Employees, Local R14-89 and Department of the
Army, Headquarters, U.S. Army Defense Center and Fort Bliss, Texas, 15
FLRA 14, 15 (1984), the Authority rejected a proposal permitting union
participation in the process of determining when additional work will be
assigned as a violation of the agency's rights to direct employees and
assign work. Proposal 4 would delegate to employees the decisions
otherwise reserved to management on whether a class section would be
offered. This violates the Agency's right under section 7106(a) to
determine the particular duties and work to be assigned and is outside
the duty to bargain.
Union Proposal 5 would require the Agency to ensure that duties
beyond an instructor's normal teaching assignment be related to the
instructor's position. In National Federation of Federal Employees,
Local 1622 and Department of the Army, Headquarters, Vint Hill Farms
Station, Warrenton, Virginia, 16 FLRA 578, 580-81 (1984), the Authority
held that a proposal which would have prevented the agency from
assigning "additional or incidental duties to employees which are
inappropriate to their positions or qualifications" violated
management's right to assign work in that the agency would be prohibited
from requiring employees to perform certain duties.
The addition of the "as fairly as possible" language to Proposal 5
does not alter the conclusion that the Proposal is outside the duty to
bargain. A proposal requiring that the assignment of additional duties
be made "fairly" would include a general, nonquantitative standard by
which an agency's exercise of its reserved authority to assign work
could be evaluated in a subsequent grievance. See National Association
of Air Traffic Specialists and Department of Transportation, Federal
Aviation Administration 6 FLRA 588, 597-99 (1981) (Union Proposal VII).
Union Proposal 5, however, is not limited to such a "general
nonquantitative standard," but would also expressly prohibit the Agency
from assigning duties to an instructor which are not related to the
instructor's position in violation of the Agency's right under section
7106(a) of the Statute to assign work.
V. Union Proposal 6
The addition of staff in the Skills Center has resulted in a
lack of adequate working space for those employees involved.
These Skills Center employees should be involved in discussions
regarding options on how to alleviate their problems.
A. Positions of the Parties
The Agency asserts it has no obligation to negotiate over this matter
because it does not agree that space is inadequate. Even so, the Agency
maintains the issue is moot since ongoing discussions have taken place
with the union and employees.
The Union argues that the addition of staff has resulted in a change
in a condition of employment which is negotiable.
B. Analysis and Conclusion
Union Proposal 6 neither obligates the Agency to agree that a
workspace problem exists nor requires it to remedy any problem should
there be one. Instead, the Union's proposal merely requires the Agency
to provide a forum for discussing with employees the effect of the
hiring of additional workers. See, e.g., American Federation of
Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
674, 676-77 (1985) (Union Proposal 3), petition for review filed sub
nom. Local 12, American Federation of Government Employees v. FLRA, No.
85-1371 (D.C. Cir. June 19, 1985).
In an analogous situation, the Authority held that a union proposal
to establish a joint labor-management committee to develop the agency's
training program was a negotiable procedure under section 7106(b)(2) of
the Statute. American Federation of Government Employees, AFL-CIO,
Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General,
Publication Center, St Louis, Missouri, 14 FLRA 438 (1984). The
Authority found that the committee would serve as a forum through which
the union could express its views regarding the agency's training
programs but would not require the agency to negotiate concerning the
content of those programs.
The discussions which have already taken place with respect to
conditions at the Skills Center do not render the proposal moot. The
Union contends and the Agency does not dispute that the parties have not
reached agreement with respect to continuing discussions concerning the
Skills Center. Thus, the Authority concludes that Union Proposal 6
constitutes a negotiable procedure under section 7106(b)(2) of the
Statute and falls within the Agency's duty to bargain.
VI. Union Proposal 7
If physical moves are necessary with regard to the Skills
Center as determined by management, then management will provide
the necessary manpower to assist in moving heaver items.
A. Position of the Parties
The Agency contends that Union Proposal 7 would prohibit the Agency
from assigning employees at the Skills Center to any duties in
connection with potential moves in violation of management's right under
section 7106(a)(2)(B) of the Statute to assign employees and assign
work. It also contends that the proposal is moot since the Agency is
committed to helping affected employees.
The Union states that the proposal would secure assistance for
employees on moving bulky items.
B. Analysis and Conclusions
The language of the proposal as well as the Union's statement of
intent with regard to Union Proposal 7 /2/ indicate that the proposal
does not preclude management from assigning move-related duties to
Skills Center employees, but merely would require that the Agency
provide any necessary assistance in the event of such a move.
Therefore, the proposal does not interfere with the Agency's exercise of
its discretion with respect to its rights under section 7106 of the
Statute. Rather, the Agency has the discretion to determine whether to
move and, if so, what assistance, if any, is "necessary." Union Proposal
7 constitutes a procedure to be observed by Agency officials in
exercising the aforementioned rights, and is, therefore, negotiable
under section 7106(b)(2) of the Statute. See American Federation of
Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange
Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152, 154
(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).
The Agency's contention that the proposal has been statisfied and is,
therefore, moot, is not substantiated by the record. There is no
evidence of agreement between the parties on the proposal or of
assistance having been rendered in any moves which may have taken place.
VII. Union Proposal 8
If management determines that the Skills Center or other areas
of campus are to remain open for extended periods of time, then
management should take necessary steps to provide for protection
of employees and for property located within these areas.
A. Position of the Parties
The Agency asserts that the proposal concerns internal security
practices which are the sole concern of the Agency under section
7106(a)(1) of the Statute.
The Union maintains that better steps would be developed to avoid
loss of Government property and employee belongings although management
would retain the final decision on what the steps would be.
B. Analysis and Conclusion
In American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 14 FLRA 6, 8-9 (1984)
(Union Proposal 2), enforced sub nom. FLRA v. Office of Personnel
Management, 778 F.2d 844 (D.C. Cir. 1985), the Authority held that a
proposal which would require management to provide "adequate security to
all employees" was not inconsistent with management's right under
section 7106(a)(1) of the Statute to determine the internal security
practices of the agency. In that case, the Authority found that the
proposal concerned the health and safety of its employees rather than
the internal security of the agency. Additionally, the Authority found
that, even if the proposal in Office of Personnel Management did concern
"internal security," the proposal would vest discretion in the agency to
determine what level of security was "adequate" and, therefore, still
would not be inconsistent with the agency's right to determine its
internal security practices.
Similarly, Union Proposal 8 would require the Agency to take
"necessary" steps to protect employees and property within the
prescribed areas. Like the proposal in Office of Personnel Management,
the Union's proposal leaves to the Agency's sole discretion decisions as
to what level of security satisfies the contractual standard
"necessary." Consequently, the Authority finds that Union Proposal 8
does not violate the Agency's right under section 7106(a)(1) of the
Statute to determine its internal security practices and is within the
duty to bargain.
VIII. Union Proposals 9 and 10
Proposal 9
Any addition of Indian materials into class instruction in
position descriptions should be made on an individual basis,
recognizing that such emphasis may be more appropriate in some
areas than in others.
Proposal 10
Any use of the addition of Indian materials in position
descriptions in the performance appraisal process shall be in
accordance with the Master Labor-Management Agreement.
A. Positions of the Parties
The Agency contends that these proposals interfere with the
educational policy of the college. It also asserts that the proposals
exceed the scope of bargaining. Finally, it states that the Master
Agreement prohibits negotiations at the local level on position
descriptions.
The Union argues that these proposals will draw attention to the
performance appraisal process. Also, it suggests that the degree of
incorporation of Indian-related materials should be determined on a
case-by-case basis.
B. Analysis and Conclusions
The clear language of the proposals considered together with the
submissions of the parties demonstrates that the Union's proposals
constitute an attempt to negotiage concerning the substance of the
Agency's decision to require the use of Indian-related Materials in its
courses. /3/ The determination of what duties and responsibilities are
assigned to a particular position falls within management's right to
assign work under section 7106(a) of the Statute. See National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
debt, above, 3 FLRA at 775. Whether and to what extent Indian-related
materials should be incorporated into the subject matter of each course
and, consequently, into the corresponding position description
constitutes the assignment of particular duties and responsibilities
over which the Agency has discretion.
To the extent that the Union's proposals deal with the content of
position descriptions, the Authority has consistently held that a
position description does not constitute an assignment of duties but
merely reflects the duties which have been assigned to a position or an
employee. However, a position description must also accurately reflect
the duties and responsibilities assigned to the position. See, e.g.,
National Federation of Federal Employees, Local 1497 and Department of
the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 152 (1982)
(Union Proposal 1) and cases cited therein.
Since Union Proposals 9 and 10 would effectively require the Agency
to negotiate concerning the assignment of duties in violation of
management's right under section 7106(a) of the Statute to assign work,
the Union's proposals are outside the duty to bargain.
IX. Union Proposal 11
Any changes in the tours of duties of unit employees shall be
made through the use of volunteers. If there are not enough
volunteers to fill the needed changes, then assignment shall be
made based on reverse seniority with temporaries being assigned
before permanent furloughs.
A. Position of the Parties
The Agency maintains that this proposal would interfere with its
rights under section 7106(a)(2)(B) to assign work and to determine the
numbers, types, and grades of employees assigned to a tour of duty. The
Agency asserts that the proposal effects the utilization of dormitory
counselors.
The Union maintains the Article 26 of the Master Agreement renders
these matters negotiable:
Section 1 hours. The basic workweek shall consist of forty
(40) hours spread over five consecutive eight (8) hour days. The
workweek will be the period for which an employee is paid a
straight-time pay rate. Management recognizes the right of the
Local to impact bargain changes in the hours of work, shifts, or
tours of duty.
The Union cities National Treasury Employees Union v. Department of
Treasury, Internal Revenue Service, 6 FLRA 508 (1981) to support its
point.
B. Analysis and Conclusions
In American Federation of Government Employees, Local 3669, AFL-CIO
and Veterans Administration Medical Center, Minneapolis, Minnesota, 2
FLRA 640 (1980), the Authority found that a proposal which would have
guaranteed nurses every other weekend off would have interfered with the
agency's ability to schedule nurses on the basis of their professional
skills and specializations as needed "to ensure quality medical care and
treatment of patients" and, consequently, would have forced the agency
"to hire additional nurses with the necessary qualifications in order to
(both) accomplish its mission and comply with such an agreement." Id. at
644. Accordingly, the Authority held that, while the language of the
proposal did not explicitly relate to the numbers, types, and grades of
employees, the proposal nevertheless was directly and integrally related
to, so as to be determinative of, the numbers, types or grades of
employees assigned to a work project or tour of duty. It was,
therefore, negotiable at the election of the agency under section
7106(b)(1) of the Statute.
The Agency contends that Union Proposal 11 would require it to hire
additional dormitory counselors. The Agency asserts that it currently
has five counselors, each assigned to one particular dormitory so that
the counselor can develop a rapport with the students in that dormitory.
It further contends that the ability to develop a rapport with the
students is essential to the provision of effective counseling.
Although the regular tour of duty for these counselors is 8 a.m. to 5
p.m., the Agency determined that the students would be better served by
having counseling available for extended hours, and instituted an
evening and weekend tour of duty to be staffed by each of the five
counselors on a rotating basis. The rotation system would require each
counselor to be available for students not assigned to that counselor's
respective dormitory only every fifth evening or weekend, but would
allow the counselors to spend the majority of their time with the
students in their respective dormitories.
The Union does not dispute the Agency's claim that Union Proposal 11
would require the Agency to place the full-time counselor with the least
seniority on the evening tour of duty without consideration of the
particular qualifications required for that shift, and would leave the
students in that counselor's dormitory without a regular full-time
counselor. The Agency contends that it would be required to hire
additional counselors in order to provide effective counseling for the
students of that dormitory and place a qualified counselor on the
evening tour of duty. Consequently, the Agency contends that the
proposal is integrally related to the numbers of employees assigned to a
tour of duty so as to be determinative of the numbers of employees
assigned to that tour. The Authority agrees. In light of the above,
and for the reasons set forth in Veterans Administration Medical Center,
Minneapolis, the Authority concludes that Union Proposl 11 is integrally
related to, and consequently determinative of, the numbers, types or
grades of employees assigned to a tour of duty and, accordingly,
negotiable at the election of the Agency under section 7106(b)(1) of the
Statute. Since the Agency has elected not to bargain, the Authority
finds that Union Proposal 11 is outside the duty to bargain.
In view of the Authority's conclusion that this proposal is outside
the duty to bargain under section 7106(b)(1) of the Statute, we find it
unnecessary to address the Agency's additional contention that the
proposal also interfers with its right to assign work.
X. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Union Proposals 1-5 and 9-11 is dismissed. IT IS FURTHER ORDERED that
the Agency shall upon request (or as otherwise agreed to by the parties)
bargain concerning Union Proposals 6-8. /4/
Issued, Washington, D.C., July 11, 1986.
/s/ Jerry L. Calhoun Chairman
/s/ Henry B. Frazier III Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Agency agreed to negotiate concerning one additional Union
proposal. After filing its appeal, the Union agreed that another
proposal was nonnegotiable. Consequently, these two proposals are no
longer before the Authority.
(2) Attachment 5 to Union's Petition for Review at 2.
(3) See Attachment 5 to Union's Petition for Review at 2. See also
Agency's Statement of Position at 15-16.
(4) In deciding that these proposals are within the duty to bargain,
the Authority makes no judgement as to their merits.