31:1053(84)NG - ACTION Employees Local, AFSCME and ACTION -- 1988 FLRAdec NG

31 FLRA No. 84

ACTION EMPLOYEES LOCAL
AMERICAN FEDERATION OF STATE
COUNTY AND MUNICIPAL EMPLOYEES

                   Union

      and

ACTION

                   Agency

                                    Case No. 0-NG-1460

       DECISION AND ORDER ON NEGOTIABILITY ISSUE

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of two Union proposals.
The proposals were submitted in response to a proposed
reorganization by the Agency. We conclude that the first proposal
is outside the duty to bargain because it would eliminate the
Agency's right to determine the staffing levels of particular
offices. As such, the proposal involves the numbers, types, and
grades of employees assigned to a particular office, a matter
which is negotiable only at the Agency's election. We conclude
that the second proposal, which would require that the workload
be equally shared by the Agency's State Offices, is outside the
duty to bargain as it interferes with the Agency's right to
assign work under section 7106(a)(2)(B).

     II. Proposal 1

     Agency agrees to clearly define the criteria upon which it
     has identified offices from which employees will be relocated
     (WA, NE, and MN). 

     Assuming the Agency's criteria can be met in other offices,
     the agency will conduct a survey to locate employees who will
     voluntarily transfer. If more than one volunteer is identified,
     the senior employee with the agency will have preference. The
     survey will require a verifiable response from all unit
     employees. No  employee will be officially reassigned until the
     survey findings have been reviewed by and discussed with the
     Union.

     (Only the second paragraph of the proposal is in dispute.)

     A. Positions of the Parties

     The Agency contends that the proposal involves the numbers,
types, and grades of employees to be assigned to its offices, a
matter which is negotiable only at the election of the Agency
under section 7106(b)(1) of the Statute.

     The Agency's State Program Offices normally have from three
to five employees including a supervisor and a secretary. The
Agency decided to reassign one State Program Specialist from each
of its Washington, Minnesota and Nebraska State Offices to
offices in California, Illinois and Kansas where additional
personnel were needed. The Agency concedes that most State
Program Specialists are qualified to work in any office. However,
the Agency asserts that the proposal does not concern the
question of the Agency's right to reassign employees from a pool
of equally qualified employees. Rather, the Agency maintains that
given the small size of its offices, the proposal directly
affects the staffing levels of its individual offices. Therefore,
the Agency concludes that the proposal is so directly and
integrally related to the numbers, types and/or grades of
employees assigned to its offices as to be determinative of them.
Thus, the proposal concerns a matter involving section 7106(b)(1)
of the Statute, which is negotiable only at the election of the
Agency.

     The Union asserts that its proposal merely provides a
procedure by which the Agency will select from a pool of equally
qualified candidates those employees to be transferred to the
offices identified by the Agency as needing additional staffing.


     B. Analysis and Conclusions

     We find that the proposal interferes with the Agency's right
under section 7106(b)(1) to determine the numbers, types, and
grades of employees assigned to a particular State Office.

     The proposal would require the Agency to determine whether
there are offices other than the three offices already identified
by the Agency which could afford to lose an employee. This
determination would be based on the criteria already used by the
Agency in deciding which offices could afford to lose an
employee. The Union's proposal presumes that other State Offices
would also meet those criteria. Therefore, the pool of offices
from which employees could be reassigned to the three offices
which need an additional employee would be expanded from the
three offices selected by the Agency. The proposal would then
require the Agency to conduct a survey among the employees in all
the eligible losing offices to determine whether there were
volunteers interested in being reassigned to the gaining State
Offices. Finally, the proposal requires that the senior employee
within any pool of volunteers would have preference in selecting
a reassignment.

     An agency must establish that a proposal is directly and
integrally related to the numbers, types and/or grades of
employees or positions assigned to an organizational subdivision,
work project or tour of duty in order to sustain an argument that
a matter is negotiable only at the agency's election under
section 7106(b)(1) of the Statute. National Treasury Employees
Union and Internal Revenue Service, 28 FLRA  40 (1987).

     We conclude that the Union's proposal would have a direct
impact on the Agency's staffing patterns within the meaning of
section 7106(b)(1) because the effect of the Union's proposal
would be to shift the determination as to the number of employees
to be assigned to particular offices from the Agency to the
"lottery" system encompassed by the proposal. The Agency has the
right to determine the number of employees to be assigned to any
particular State Office. See American Federation of Government
Employees, AFL - CIO, Council 236 and General Services
Administration, 9 FLRA  825, 825 (1982) (Proposal 1), where the
Authority held that a proposal requiring an Agency to negotiate
over the numbers and grades of employees who will remain in their
present organization and of those who will relocate to another
subdivision of the Agency was negotiable only at the
election of the Agency.

     While the Agency submitted to the Union the objective
criteria upon which its decision was based, we conclude,
especially given the small numbers of employees employed in each
of the Agency's State Offices, that there was a direct and
integral relationship between the decision as to which offices
should lose an employee and the number of employees to be
assigned to any particular State Office. The Agency decided that
the State Offices which could best afford to lose an employee
were those in Washington, Minnesota and Nebraska. Washington had
three State Program Specialists and Minnesota and Nebraska had
two apiece. While there may be other State Offices which meet the
criteria for the loss of an employee which the Agency established
and submitted to the Union, the decision as to which offices can
best sustain the loss of one of two or three such employees is a
matter within the province of the Agency under section
7106(b)(1), unless it chooses to negotiate about the matter. The
Agency need only subject its determination that those three State
Offices can best sustain the loss of one employee to negotiation
if it so chooses as this decision involves the number of
employees to be assigned to any particular office, a matter
covered under section 7106(b)(1).

     Therefore, we conclude that the Union's proposal interferes
with the Agency's right under section 7106(b)(1) to determine the
numbers, types, and grades of employees to be assigned to its
State Offices, a matter which is negotiable only at the election
of the Agency.

     III. Proposal 2 

     The Agency will relocate employees after considering the
     workload that will remain in affected offices. Workload will be
     deter-mined and be consistent with the way work is assigned
     (assigned projects, TADs, etc.) to State Program Specialists and
     consistent with existing workloads around the country.

     (Only the underlined portion of the proposal is in
     dispute.)

     A. Positions of the Parties

     The Agency asserts that the proposal seeks to negotiate
workloads in violation of management's right under section
7106(a)(2)(B) to assign work to employees. The Agency cites
the Authority's holding in American Federation of Government
Employees, Local 32 and Office of Personnel Management, 26 FLRA 
612 (1987) (Office of Personnel Management), petition for review
filed sub nom. Office of Personnel Management v. FLRA,  No. 
87-1268 (D.C. Cir. June 18, 1987), that a proposal requiring that
the distribution of assignments among employees be "fair and
consistent" was nonnegotiable. The Agency further asserts that
the proposal does not constitute an "appropriate arrangement"
within the meaning of section 7106(b)(3) because it directly
interferes with management's rights by removing the discretion to
set quality and quantity requirements.

     The Union contends that the proposal constitutes an
appropriate arrangement for employees adversely affected by the
Agency's decision to reorganize. Specifically, the Union
indicates that employees in the State Offices losing employees
will still have to meet the same performance standards as
employees in other State Offices. As such standards will be more
difficult to meet with reduced resources, the Union's proposal
seeks to protect employees in the offices which will lose
employees from the adverse effects of management's
determination.

     B. Analysis and Conclusions

     We find that Proposal 2  is outside the duty to bargain
because it is inconsistent with management's right to assign work
under section 7106(a)(2)(B). The Union indicates that its
proposal is intended to protect those employees in offices which
lose an employee under the Agency's reorganization from having a
heavier workload than identically classified and graded employees
in the other State Offices. In effect, the Union's proposal could
require management to limit the amount of work it assigned to
employees in the offices which have lost an employee. Therefore,
it is inconsistent with management's right to assign work under
section 7106(a)(2)(B). See Office of Personnel Management, 26
FLRA  612, 617-18 (Proposal 3) (a proposal requiring consistency
and equality in work assignments is outside the duty to
bargain).

     Further, we conclude that Proposal 2  is not an appropriate
arrangement under section 7106(b)(3) of the Statute. We assume
for the purpose of this decision that there is an adverse effect
on the remaining employees in the State Offices which will lose
an employee under the Agency's reorganization. These offices will
have one less person to accomplish their work, a significant loss
in offices which even now have fewer than five employees apiece.
While the Union agrees that the Agency has attempted in
the past to mitigate the effect on employees in similar
situations, Proposal 2  would require the equitable distribution
of work assignments throughout the Agency's State Offices.

     The proposal would directly limit the discretion inherent in
management's right under section 7106(a)(2)(B) to make such work
assignments as are necessary to accomplish the work of any
particular office. In our view, the effect of Proposal 2  on
management's rights outweighs the benefit to employees.
Therefore, the proposal excessively interferes with management's
right to assign work and does not constitute an appropriate
arrangement within the meaning of section 7106(b)(3). See
American Federation of Government Employees, AFL - CIO, National
Council of VA Locals and Veterans Administration, 29 FLRA  515,
543-45 (1987) (Proposal 9), petition for review filed sub nom.
Veterans Administration v. FLRA,  No.  87- 727 (D.C. Cir. Nov.
27, 1987), where the Authority held that a proposal which
required that management maintain reasonable staffing levels to
insure employee health and safety excessively interfered with
management's right to assign work under section 7106(a)(2)(B) and
therefore it did not constitute an appropriate arrangement within
the meaning of section 7106(b)(3).

     IV. Order

     The petition for review is dismissed.

     Issued, Washington, D.C., March 28, 1988.

                           Jerry L. Calhoun,        Chairman

                           Jean McKee,                Member

                           FEDERAL LABOR RELATIONS AUTHORITY