[ v44 p1405 ]
44:1405(116)NG
The decision of the Authority follows:
44 FLRA No. 116
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1923
(Union)
and
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
HEALTH CARE FINANCING ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)
0-NG-1710
DECISION AND ORDER ON NEGOTIABILITY ISSUES
May 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a petition for review 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 32 proposals.(1)
Proposal 1, which requires the Agency to provide equal employment opportunities and treatment to all prospective employees, is negotiable because it vitally affects unit employees' working conditions and is not inconsistent with applicable law and regulations.
Proposal 2 provides that managers, supervisors, Equal Employment Opportunity (EEO) Officers, and personnelists will be held accountable for successful implementation of the Agency's affirmative employment program (AEP). The portions of Proposal 2 relating to managers, supervisors, and personnelists are nonnegotiable because they do not concern the conditions of employment of bargaining unit employees. The portion of Proposal 2 relating to EEO officers is dismissed because the record is insufficient for us to make a negotiability determination.
Proposals 3 and 4, which require the Agency to identify and describe the duties of officials responsible for the implementation of the EEO and AEP programs, concern the conditions of employment of bargaining unit employees and are negotiable.
Proposal 5 requires the Personnel Director to certify in writing that the qualifications of officials responsible for implementing the EEO program have been reviewed and meet appropriate standards. Proposal 5 is nonnegotiable because it directly interferes with management's right to assign work.
Proposal 6 provides that the Agency shall conduct a training session on sexual harassment each year for Union representatives and EEO counselors. The portion of Proposal 6 requiring the Agency to conduct a training session for Union representatives is negotiable because it does not directly interfere with the Agency's right to assign work. The portion of Proposal 6 requiring the Agency to conduct a training session for EEO counselors is nonnegotiable because it directly interferes with the Agency's right to assign work.
Proposals 7, 8, and 16 require the Agency, or the Agency and the Union jointly, to conduct studies and prepare reports concerning the operation and implementation of the Agency's AEP. Proposal 9 requires the Agency to: (1) meet with the Union semiannually to review and discuss the implementation of the Agency's affirmative action plan; and (2) provide knowledgeable personnel to facilitate the discussions. Proposals 7, 8, 9, and 16 constitute negotiable procedures.
Proposal 10, which requires the Agency and the Union to review all requests for personnel action targeted by the Agency's AEP, is a negotiable procedure under section 7106(b)(2) of the Statute.
Proposal 12 requires: (1) a joint Agency and Union analysis of the composition of the workforce and an evaluation of the personnel system; (2) an Agency study of how its selection procedures are implemented; and (3) the Agency to remedy barriers to affirmative employment by modifying or eliminating qualification procedures. Proposal 12 constitutes a negotiable procedure.
Proposal 13 requires the Agency to use "tools," such as bridge positions, to achieve a fair distribution of women and minorities in all job series and at all grade levels. We find that Proposal 13 is negotiable because it does not directly interfere with management's rights to determine its organization, under section 7106(a)(1) of the Statute, or to determine the types of positions assigned to an organizational subdivision, under section 7106(b)(1).
Proposal 15, which provides for the continued development of transitional or bridge positions, is negotiable because it does not excessively interfere with the Agency's rights to determine its organization and to determine the types of positions assigned to an organizational subdivision.
Proposal 17 requires the Agency to: (1) increase the number of employees in the administrative series from a specific underrepresented group by five per year; and (2) increase the number of employees in the clerical series from a specific underrepresented group by three per year. Proposal 17 is nonnegotiable because it excessively interferes with the Agency's rights to hire, assign, and select employees.
Proposal 18 requires the Agency to fill 13 General Schedule (GS) 13 to 15 positions annually with internal recruits from a specific group of underrepresented employees. Proposal 28 requires that: (1) whenever possible, 50 percent of all vacancies will be filled from internal pools of individuals from underrepresented groups; and (2) 65 positions will be filled with 60 percent of the selectees from underrepresented groups. Proposals 18 and 28 are nonnegotiable because they excessively interfere with the Agency's rights to hire and assign employees and to make selections from any appropriate source.
Proposal 19 consists of 7 parts. Part 1, which consists of statements of intent, does not directly interfere with management's rights and is negotiable. Parts 2 and 3 are not in dispute. Part 4, which requires the Agency to review technical positions, is negotiable because it does not directly interfere with the Agency's rights to determine its organization or assign work. Part 5, which requires the Agency to waive certain qualification requirements "where appropriate" and to satisfy the requirements with training, is negotiable. Part 6, which requires the Agency to fill vacancies in GS-5 to 7 and GS-9 to 11 administrative and professional positions from certain existing positions, is nonnegotiable because it excessively interferes with management's right to make selections from any appropriate source. Part 7, which requires that certain potential applicants be recruited through the Agency's continuing education program, is not sufficiently specific and delimited to permit a determination as to its negotiability.
Proposal 20 provides that the Agency will "fully utilize" internal applicant pools as defined by Proposals 21 through 27. Proposal 20 is nonnegotiable because it provides that the Agency will take action required by other nonnegotiable proposals.
Proposal 21, which requires the Agency to advise its offices that professional and administrative entry-level positions are bridge positions, is nonnegotiable because it excessively interferes with the Agency's rights to determine its organization and to determine the types of positions assigned to an organizational subdivision.
Proposal 22 requires the Agency to provide training to help certain employees reach the journeyman level. Proposal 22 is negotiable because it does not excessively interfere with management's right to assign work.
Proposal 23 provides that the Agency will utilize internal applicants at appropriate grade levels rather than external recruitment at higher grade levels. Proposal 23 is nonnegotiable because it excessively interferes with management's right to select from any appropriate source.
Proposal 24 requires the Agency to return selectees from internal pools who fail to reach satisfactory performance to their prior position or to a comparable position. Proposal 24 is nonnegotiable because it excessively interferes with the Agency's right to assign employees to positions.
Proposal 25, which requires the Agency to give first preference for certain positions to individuals from identified pools, does not directly interfere with the Agency's right to select from any appropriate source and is a negotiable procedure.
Proposal 26, which provides that the Agency will identify each bridge position as a bridge position when the position is posted, is a negotiable procedure.
Proposal 27 requires the Agency to assure that bridge positions will be used to fill certain positions. Proposal 27 is negotiable because it does not excessively interfere with management's rights to determine its organization and to determine the types of positions assigned to an organizational subdivision.
The first part of Proposal 29, which requires the Union and the Agency to agree to waive contractual and other obligations to facilitate the inclusion of minorities on Best Qualified Lists, is negotiable only as it applies to a waiver of contractual obligations. The second part of Proposal 29 requires that the Agency not exclude certain applicants from Best Qualified Lists on the basis of appraisal and award points. The second part of Proposal 29 is negotiable because it does not excessively interfere with management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute.
Proposal 30, which establishes various procedures for filing an EEO complaint, does not directly interfere with management's rights and is negotiable.
Proposal 31 requires management to: (1) give priority consideration to all potential qualified internal candidates for certain positions; (2) waive qualification requirements for certain positions for individuals from certain underrepresented groups; and (3) establish a targeted percentage of certain underrepresented groups for projected outside hires. The portions of Proposal 31 requiring the Agency to give priority consideration are dismissed because the record is insufficient for us to determine to which employees those portions apply. The portions of Proposal 31 requiring the Agency to establish a targeted percentage of certain underrepresented groups for projected outside hires are negotiable procedures to the extent that the positions involved are unit positions. The portions of Proposal 31 requiring the Agency to waive qualification requirements are nonnegotiable because they excessively interfere with management's rights to assign employees and select employees for appointment.
Proposal 32 requires the Agency to: (1) eliminate undue delay in considering the requests of employees with handicapping conditions for reasonable accommodations; and (2) consider requests for reasonable accommodations as exceptions to general budgetary constraints. Proposal 32 does not directly interfere with management's right to determine its budget and is negotiable.
Proposal 33 states that leave without pay shall be granted for the illness or disability of employees with handicapping conditions. Proposal 33 is nonnegotiable because it excessively interferes with management's right to assign work.
Proposal 34 requires the Agency to provide the following reasonable accommodations to qualified employees with handicapping conditions during training: (1) modified training and reference materials; (2) a qualified interpreter for hearing-impaired trainees; and (3) a mentor to provide individualized training. Proposal 34 is negotiable because it does not excessively interfere with management's rights to hire and assign employees.
II. Background
The parties negotiated a Multi-Year Affirmative Action Plan for Fiscal Year (FY) 1982 through FY 1986. By letter dated May 1, 1986, the Union requested the Agency to provide the Union with a copy of its procedures for developing an affirmative action plan (AAP) beginning at the start of FY 1987 and "declared its intention to bargain [over] the AAP." Union's Response at 3. Pursuant to a notice from the Equal Employment Opportunity Commission (EEOC) that the EEOC was extending its instructions for agencies' affirmative employment plans for 1 year pending the development of new directives for FY 1988 through FY 1992, the Agency unilaterally extended the parties' AAP for 1 year.
After the Agency unilaterally extended the parties' AAP for 1 year, the Union filed a grievance over the Agency's failure to bargain before extending the parties' AAP. Ultimately, the matter was submitted to arbitration, where the Arbitrator framed the issue as:
"[W]hether the Agency failed to perform its contractual duty to bargain when it interpreted the EEOC's direction to extend the [EEOC's] Instructions for one year as a requirement that its AAP be extended without allowing for change or negotiation."
Id. at 4 (quoting Arbitrator's Award at 7). In an award dated August 25, 1987, the Arbitrator sustained the grievance and directed the Agency to negotiate over a new AAP. No exceptions were filed to the award. On October 6, 1987, the EEOC issued the Equal Employment Opportunity Management Directive 714 (MD-714), entitled "Instructions for the Development and Submission of Federal Affirmative Employment Multi-Year Program Plans, Annual Accomplishment Reports, and Annual Plan Updates for FY 1988 through FY 1992." See Union's Response, Appendix B. On April 15, 1988, the parties executed an agreement containing, in part, the procedures for bargaining over an affirmative employment program (AEP) for FY 1988 through FY 1992.
The Agency refused to negotiate over the AEP, and the Union filed an unfair labor practice charge. The agreement settling the unfair labor practice case provided that the Agency would negotiate over the AEP for FY 1988 through FY 1992. On October 4, 1988, the Agency presented the Union with a copy of a revised AEP. Subsequently, the parties held several negotiating sessions which "necessitated the assistance of the Federal Mediation and Conciliation Service. Following impasse, a Request for Assistance was filed by [the Union] with the Federal Service Impasses Panel [the Panel]." Id. at 7. On April 17, 1989, the Panel declined without prejudice to assert jurisdiction over the case "because of the presence of questions concerning the obligation to bargain which were, in the Panel's view, unresolvable using the Panel's authority." Id. Subsequently, on May 11, 1989, the Union requested from the Agency a written allegation of nonnegotiability concerning the proposals at issue in this case. The Union was served with the allegation on May 19, 1989, and filed its petition for review with the Authority on May 25, 1989.
III. Preliminary Matters
A. Timeliness
The Agency requests that the Authority dismiss the Union's petition as untimely. The Agency acknowledges that "under the Authority's current decisions and regulations, the Union's petition would be considered timely[.]" Agency's Statement of Position at 3. However, the Agency requests that the Authority "review its determination that unions may ignore unsolicited [a]gency allegations of nonnegotiability." Id. at 4.
The Agency contends that the Union presented proposals at the bargaining table identical to the proposals in this case and that the Agency repeatedly offered to present a written allegation that the proposals were nonnegotiable, but "the Union rejected the offer." Id. at 5. The Agency argues that "it is not reasonable to handcuff an [a]gency which has genuine concerns regarding the negotiability of certain [u]nion proposals by requiring it to continually be faced with those same proposals . . . until and unless the [u]nion decides to pursue the matter." Id. at 6. According to the Agency, the "date on which the Union received its service copy of the Agency's statement to the Panel, containing, in detail, the Agency's allegations of nonnegotiability, should be considered 'the date on which the [A]gency first' made its allegations of nonnegotiability" within the meaning of section 7117(c)(2) of the Statute. Id. (emphasis in original). As the Union received its service copy of the Agency's statement to the Panel on or about March 10, 1989, the Agency argues that the Union's petition should have been filed within 15 days of March 10, 1989. As the Union's petition was not filed until May 25, 1989, the Agency maintains that the petition should be dismissed as untimely.
The Union argues that the Authority should continue to follow the rule that "the timing of negotiability appeals is predicated on the solicitation of allegations by a labor organization." Union's Response at 8-9.
Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the time limit for filing a petition for review of a negotiability issue is 15 days after the union has been served with the requested allegation of nonnegotiability from the agency. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic Center, Washington, D.C., 41 FLRA 265 (1991). A union may ignore unsolicited allegations of nonnegotiability. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723 (1990).
In this case, the Union requested the Agency's allegation of nonnegotiability on May 11, 1989, and was served with the allegation on May 19, 1989. To be timely, the Union's petition for review must have been filed by June 12, 1989. See 5 C.F.R. §§ 2424.3, 2429.21, and 2429.22. As the Union's petition for review was filed on May 25, 1989, we find that the Union's petition for review is timely.
We note the Agency's request that the Authority review its interpretation of section 7117(c)(2) of the Statute. We decline to change the Authority's longstanding interpretation. Accordingly, for the reasons noted above, we conclude that the Union's petition for review is timely.
B. Appropriate Arrangements
The Union argues that to the extent that any of the proposals "might otherwise be construed to interfere . . . with [the] exercise of a management right, it is an appropriate arrangement . . . ." Union's Response at 17. The Union states that minorities and women are underrepresented in specific grades and occupations within the Agency. According to the Union, underrepresentation is "a conclusion drawn from comparing the actual extent of employment within [the Agency] as a whole, as well as in specific grades or occupations, to the distribution of minorities and women in the civilian workforce." Id. See also 5 U.S.C. § 7201. The Union asserts that "underrepresentation has become prevalent and permanent" due to the Agency's personnel actions and that the proposals are intended to alleviate such adverse effects of underrepresentation as barriers and conspicuous absences. Union's Response at 18. According to the Union, the proposals will "ameliorate the adverse effects in specified and limited ways, such as eliminating barriers, using innovative staffing techniques, and reviewing requests for personnel action[s]." Id.
The Agency filed a motion requesting that the Authority consider its supplemental submission on the issue of appropriate arrangements. According to the Agency, the Union "has only for the first time, in its 'Position' statement, raised arguments in support of an assertion that the proposals are 'appropriate arrangements'" under section 7106(b)(3) of the Statute. Agency's Supplemental Submission at 1. The Union opposes the Agency's motion because, according to the Union, there is no basis in the Authority's rules, regulations, or procedures to allow for the submission of such a response. As the Union raised arguments in support of its appropriate arrangements contention for the first time in its response to the Agency's statement of position, we will consider the Agency's supplemental submission addressing the Union's arguments. See 5 C.F.R. § 2424.8. See also National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711 n.1 (1990).
The Agency challenges the Union's assertion that underrepresentation constitutes an adverse effect within the meaning of section 7106(b)(3) of the Statute. The Agency argues that it "is difficult to determine the nature and extent of the 'adverse impact' that the Union claims." Agency's Supplemental Submission at 9. The Agency also argues that the Union has failed to identify the particular exercise of management's rights which produces the adverse effect and has not explained how the proposals offer solutions to the "real or anticipated problems that will arise." Id. at 8-9. As the Union has not shown that there is a direct link between the adverse impact and the exercise of a management right, the Agency contends that the proposals cannot be appropriate arrangements.
To the extent that the Union argues that employees are adversely affected by the Agency's failure to exercise its right to select those employees for positions, the Agency contends that the "notion of adverse impact . . . is not intended to" include such a situation. Id. at 9. According to the Agency, if the Union is alleging that the selection process is inequitable, "the appropriate forum for calling the Agency to task is not a negotiability appeal." Id.
The Agency further contends that the Union's proposals offer "no special benefits to non-minority employees comparable to those which it seeks for minority employees" and that, therefore, implementing the Union's proposals involving preferential treatment for minority employees "will have a significantly detrimental effect on employee morale." Id. at 10, 11. The Agency argues that the Union's proposals "set not 'objectives,' but requirements" and "send the message to any who are not members of the designated groups that they are not on an equal footing with their coworkers in terms of employment opportunities[.]" Id. at 4 (emphasis in original).
We will analyze the parties' arguments on appropriate arrangements in the context of the particular proposals before us. In determining whether a particular proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, we will apply the framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Specifically, to determine whether a proposal constitutes an appropriate arrangement, we will examine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights.
In determining whether a proposal is an arrangement for employees adversely affected by the exercise of management's rights, we will look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Id. at 31. In deciding whether a proposal excessively interferes with the exercise of a management right, we will weigh the benefits conferred on employees by the proposal against the burden imposed on the exercise of management's rights.
IV. Proposal 1
Section 1 POLICY
(A) It is the policy of the Administration to provide equal employment opportunities and treatment for all current or prospective employees and to: prohibit discrimination because of race, color, religion, sex, national origin, mental or physical handicap, age, marital status, or political affiliation. Toward this end the Administration agrees to maintain a work environment that assures employees fair and impartial treatment in all employment actions with special consideration for the effect and not merely the intent of management decisions.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency argues that the "duty to bargain does not extend to conditions of employment of individuals other than those who meet the statutory definition of 'employee.'" Agency's Statement of Position at 11 (citing American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA 899, 907 (1985) (U.S. Army Adjutant General Publication Center)). As applicants or prospective employees do not meet the statutory definition of "employee," the Agency contends that it has no duty to bargain over Proposal 1.
2. Union
The Union argues that Proposal 1 is negotiable because it restates requirements imposed on the Agency by the EEOC. Specifically, the Union states that under MD-714, the requirement for equal employment opportunity applies to prospective employees because MD-714 covers all employment practices, including hiring. The Union also argues that to the extent that the proposal covers nonunit positions, "the AEP vitally affects working conditions of employees in the bargaining unit" and, therefore, is negotiable. Union's Response at 9.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 1 vitally affects the conditions of employment of bargaining unit employees and is negotiable.
During the pendency of this case, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point), where it examined the Authority's application of the vitally affects test.(2) The court approved the Authority's adoption of the private sector test but determined that the Authority had misapplied the test in certain circumstances. In the court's view, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Cherry Point, 952 F.2d at 1440. The court added that the test "is not implicated, however, merely because a union proposal, which is otherwise within the scope of mandatory bargaining, would, if accepted, have some impact on persons outside the bargaining unit." Id. (emphasis in original). The court recognized that most union bargaining demands would have some "extra-unit effects" on non-unit personnel but held that such effects would not alter an employer's duty to bargain over mandatory subjects of bargaining. Id. at n.6. The court found that "proposals that principally relate to the conditions of employment of bargaining unit personnel are within the traditional scope of mandatory bargaining." Id. at 1441. The vitally affects test is not relevant to such proposals.
In addressing the applicability of the vitally affects test, the court differentiated among four groups of nonunit personnel: employees not in any bargaining unit, non-employees, management personnel, and employees in other bargaining units. The court held that the vitally affects test does not apply in circumstances where a union seeks to regulate through collective bargaining the conditions of employment of employees in other bargaining units and of management personnel who are excluded by the Statute from bargaining units. Id. at 1441. With respect to employees not in any bargaining unit and non-employees, the court held that the vitally affects test applies when the interests of such individuals are "directly implicated" by a union proposal or when a proposal "purports to regulate the terms and conditions of employment" of such non-bargaining unit employees or non-employees. Id. In these circumstances, the proposal would fall outside the mandatory scope of bargaining absent a showing that the proposal vitally affects conditions of employment of bargaining unit employees.
As noted above, under the court's analysis in Cherry Point, proposals purporting to regulate the working conditions of non-employees are negotiable if the proposals vitally affect the conditions of employment of bargaining unit employees. The court's decision applies to Proposal 1 because Proposal 1 addresses outside applicants, who are non-employees. The Authority has not ruled on the negotiability of proposals affecting outside applicants or prospective employees under the vitally affects test. Compare National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1246 n.3 (1991), petition for review filed as to other matters sub nom. United States Department of Energy, Washington, D.C. v. FLRA, No. 91-1514 (D.C. Cir. Oct. 21, 1991) (where the Authority interpreted the term "employee applicants" used in drug testing provisions to mean applicants who are existing unit employees).
However, the National Labor Relations Board (NLRB or the Board) has examined whether matters relating to applicants vitally affected the terms and conditions of employment of unit employees under the standard articulated in Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179 (1971). In Star Tribune, 295 NLRB 543 (1989), the Board held that the employer did not violate the National Labor Relations Act (the Act) when it refused to bargain over its drug and alcohol testing policy for applicants because the matter did not vitally affect the terms and conditions of employment of unit employees. The Board noted that although the employer's applicant drug and alcohol testing policy may affect the composition of the bargaining unit, that fact "does not, standing alone, support the conclusion that [the policy] vitally affects the terms and conditions of unit employees." Id. at 548 (emphasis in original). The Board concluded that "drug and alcohol testing of applicants for employment is not a mandatory subject of bargaining . . . ."
Id.
Notwithstanding that conclusion, however, the Board further found that the employer violated the Act by failing to provide the union with information on the applicants who participated in the drug testing program. The union had requested the information to determine whether the program had been applied to the applicants in a discriminatory manner. The Board stated that the "elimination of actual or suspected . . . discrimination is a mandatory subject of bargaining, and an employer's refusal to engage in bargaining over such elimination violates . . . the Act." Id. (footnote omitted). The Board distinguished its conclusion that the drug and alcohol testing of applicants does not vitally affect unit employees' terms and conditions of employment. The Board stated that:
one reason for finding that testing of applicants does not vitally affect unit employees' terms and conditions of employment is [that] a union's legitimate concerns about a safe and drug-free working environment can be effectively addressed in union proposals that seek physical examination, including drug testing, of newly hired employees at the very outset of their employment.
Id. at 549.
In distinguishing the union's concerns over the provision of information about applicants in order to eliminate discrimination and the union's concerns over the drug and alcohol testing of applicants, the Board found that, unlike the situation involving the drug and alcohol testing of applicants,
considerations of a union's concerns about eliminating . . . discrimination in the employment relationship cannot so easily exclude the hiring process. If an employer engages in discrimination at that stage, the discriminatee will never enter into the employment relationship, and will not become a member of the work force.
Id. at 549. Moreover, the Board noted that barring a union from investigating the hiring process "could bar it from effectively seeking elimination of discrimination in the employment relationship" because "discrimination in the hiring process is so intertwined with possible discrimination in the employment relationship[.]" Id. Accordingly, the Board found that the employer violated the Act by refusing to provide the union with information about applicants who participated in the drug testing program.
We note that, unlike this case, Star Tribune involved providing information to a union to determine whether the employer's drug and alcohol testing program had been applied to applicants in a discriminatory manner. Nevertheless, in distinguishing its finding that applicant testing is not a mandatory subject of bargaining from its finding on providing information on discrimination against applicants, the Board emphasized the difference between a union's concerns about discrimination against applicants and its concerns about drug and alcohol testing of applicants. While both matters involve the hiring process, the Board found that "considerations of a union's concerns about eliminating . . . discrimination in the employment relationship cannot so easily exclude the hiring process." Id. Citing Tanner Motor Livery, 148 NLRB 1402 (1964) (Tanner), enforcement denied on other grounds 419 F.2d 216 (9th Cir. 1969), the Board stated that it agreed with the conclusion in Tanner that "employee picketing to protest discriminatory hiring policies and practices is concerted activity protected by . . . the Act." Star Tribune, 295 NLRB at 549 n.20. However, the Board stated that it would reject "certain broad language [in Tanner] suggesting that in general an employer's hiring practices are a mandatory subject of bargaining." Id. The Board further noted that it would not follow previous Board cases relating to the provision of information to the extent that those cases can be read "to provide for furnishing information regarding hiring practices in all circumstances . . . ." Id.
As we noted previously, the elimination of actual or suspected discrimination is a mandatory subject of bargaining under the Act. See id. at 548. Nothing in the Statute warrants a different conclusion here. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 617 (1980), 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) ("matters related to discrimination in employment . . . are within the scope of the duty to bargain under section 7117 of the Statute").
The first sentence of Proposal 1 states in part: "It is the policy of the Administration to provide equal employment opportunities and treatment for all current or prospective employees . . . ." When read in conjunction with the remainder of the first sentence of Proposal 1, it appears that the Union seeks to negotiate over not only equal employment opportunities, but also over the elimination or prohibition of discrimination in the workplace. We agree with the Board's conclusion in Star Tribune that discrimination in the hiring process is intertwined with possible discrimination in the employment relationship and that the Union's legitimate efforts, as the exclusive representative of unit employees, to seek to eliminate discrimination in the employment relationship "would be severely impeded . . . if it were required to wait until the hiring process is complete . . . ." Star Tribune, 295 NLRB at 549.
We note that Star Tribune involved the provision of information to the union concerning possible discrimination against applicants in the hiring process. Nevertheless, we find that similar concerns over eliminating discrimination in the hiring process are present in this case and, therefore, we extend the Board's reasoning to cover bargaining over the elimination of possible discriminatory treatment of applicants. As we have found that discrimination in the hiring process is intertwined with possible discrimination in the workplace, we conclude that unit employees have a significant and material interest in the elimination of employment discrimination in the hiring process. By requiring management to provide equal employment opportunities and treatment to prospective employees, Proposal 1 constitutes an attempt by the Union to seek the elimination of discrimination in the hiring process. As Proposal 1 relates to unit employees' significant and material interest in eliminating discrimination in the unit, we conclude that Proposal 1 vitally affects the conditions of employment of unit employees.
We note that this case is distinguishable from National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 745-47 (1991) (Proposal 4) (U.S. Department of the Navy, Newport). In U.S. Department of the Navy, Newport, one of the proposals stated that "all contractors coming onto [agency] grounds, who are performing work the same or similar to that which would be designated [for drug testing by the agency,]" are required to test their own employees as a condition of the contract. U.S. Department of the Navy, Newport, 42 FLRA at 743. We found that the proposal did not vitally affect bargaining unit employees' conditions of employment. In reaching this conclusion, we noted that the record did "not contain any information as to the nature or duration of contact between bargaining unit employees and . . . contract employees who perform the same or similar work[,]" and that the proposal had "at best, an indirect or incidental effect on unit employees' working conditions." Id. We also noted that the proposal could be read to apply to individuals who come onto the agency's premises, "regardless of whether they work at the [agency's] worksite or elsewhere." Id. at 747.
Our conclusion that the proposal in U.S. Department of the Navy, Newport did not vitally affect unit employees' conditions of employment is consistent with the Board's finding in Star Tribune that drug and alcohol testing of applicants for employment did not vitally affect unit employees' conditions of employment. Moreover, to the extent that the proposal in U.S. Department of the Navy, Newport required contractors to be tested regardless of whether they worked at the agency's worksite, our conclusion would also be consistent with the Board's finding that similar testing of applicants would "not vitally affect workplace safety" and would have a "speculative and insubstantial" impact on unit employees. Star Tribune, 295 NLRB at 548, 548 n.16.
Finally, the Agency's reliance on U.S. Army Adjutant General Publication Center is misplaced because that case was decided before the Authority adopted the private sector vitally affects test and did not analyze whether the proposal at issue vitally affected the working conditions of unit employees.
Accordingly, we find that Proposal 1 is negotiable.
V. Proposal 2
[Section 1](C)
The Administration shall hold managers, supervisors, EEO Officers, and personnelists accountable for successful implementation of the affirmative employment program.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is nonnegotiable because it does not concern matters which directly relate to the conditions of employment of bargaining unit employees. The Agency further contends that the proposal "would subject management's right to determine 'successful implementation' to arbitral review and place substantive requirements on management's right to take action to achieve this goal." Agency's Statement of Position at 12.
2. Union
The Union contends that the proposal restates the requirements of MD-714, paragraph 9.a.1. and 3. The Union also contends that to the extent that the proposal covers nonunit positions, "the AEP vitally affects working conditions of employees in the bargaining unit" and, therefore, is negotiable. Union's Response at 9.
B. Analysis and Conclusions
For the following reasons, we find that, as applied to managers, supervisors, and personnelists, Proposal 2 does not concern the conditions of employment of bargaining unit employees and, therefore, is nonnegotiable. We also find that the record is insufficient for us to determine the negotiability of the portion of Proposal 2 applying to EEO officers. Accordingly, we will dismiss that portion of the proposal.
As we noted with respect to Proposal 1, in Cherry Point the U.S. Court of Appeals for the District of Columbia Circuit examined the Authority's application of the vitally affects test. As relevant here, the court held that the vitally affects test does not apply in circumstances where a union seeks to regulate through collective bargaining the conditions of employment of management personnel who are excluded by the Statute from bargaining units. Cherry Point, 952 F.2d at 1441. The court noted that pursuant to section 7112 of the Statute, managers "are legally disabled from belonging to any bargaining unit[.]" Id. at 1442. Therefore, the court stated that permitting a union to seek to negotiate to regulate the conditions of employment of management personnel would "violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only." Id. (emphasis in original), citing National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292 (1980) (where the Authority held nonnegotiable a proposal specifying procedures for filling management and supervisory positions).
Proposal 2 requires, in part, that the Agency hold managers and supervisors accountable for the successful implementation of the AEP. By requiring the Agency to hold managers and supervisors accountable for the successful implementation of the AEP, Proposal 2 seeks to regulate the conditions of employment of management personnel who are excluded by the Statute from bargaining units. Accordingly, based on the court's reasoning in Cherry Point, we are constrained to conclude that the portion of Proposal 2 requiring the Agency to hold managers and supervisors accountable for the successful implementation of the AEP does not concern the conditions of employment of bargaining unit employees and is nonnegotiable.
Proposal 2 also requires the Agency to hold personnelists accountable for the successful implementation of the AEP. An employee who engages in personnel work in other than a purely clerical capacity, such as a "personnelist," is excluded by law from bargaining units under section 7112 of the Statute. Accordingly, consistent with the court's reasoning in Cherry Point, we conclude that this portion of Proposal 2 does not concern the conditions of employment of bargaining unit employees and, therefore, is nonnegotiable.
Finally, Proposal 2 also requires the Agency to hold EEO officers accountable for the successful implementation of the AEP. EEO officers may be either unit employees or management officials. We are unable to determine from the record whether the EEO officers referenced in Proposal 2 are unit employees or management officials. The parties bear the burden of creating a record on which we can base a negotiability determination. American Federation of Government Employees, Local 2031 and U.S. Department of Veterans Affairs Medical Center, Cincinnati, Ohio, 39 FLRA 1155, 1161 (1991) (Department of Veterans Affairs Medical Center). Because the record here does not contain information sufficient for us to determine whether the EEO officers referenced in Proposal 2 are unit employees or management officials, we are unable to decide, under Cherry Point, whether the proposal would determine the conditions of employment of management officials and, thus, be nonnegotiable. Accordingly, we will dismiss the petition for review as to this portion of Proposal 2.
Having found that the portions of Proposal 2 applying to managers, supervisors, and personnelists do not concern the conditions of employment of bargaining unit employees, we need not address the Agency's argument that the proposal places substantive requirements on management's right to take action to successfully implement the AEP or the Union's argument that the proposal is negotiable because it restates certain requirements of MD-714.
VI. Proposal 3
Section 2 DELEGATION OF AUTHORITY
(A) The Administration shall identify all EEO/AEP Officials and provide a clear delineation of their specific duties and responsibilities (see attachment 1). The Union will be timely notified of any changes.
Proposal 4
Section 4 CERTIFICATION OF QUALIFICATION
(A) The Administration shall identify the name, position and principal duties of all staff officials, full or part time, responsible for implementing the EEO and AEP programs. (See attachment 3). The Union shall be timely notified of any changes.
A. Positions of the Parties
1. Agency
The Agency contends that the proposals are nonnegotiable because they do not directly concern the conditions of employment of bargaining unit employees. In this regard, the Agency argues that the proposals relate to "managers and supervisors, rather than employees at large." Agency's Statement of Position at 13. Further, with respect to these and other proposals referring to attachments, the Agency asserts that no attachments were included in the Union's proposals.
2. Union
The Union contends that the proposals restate the requirements of MD-714. The Union further states that the references to attachments were meant to keep the proposals open-ended so that the Agency could identify the relevant information noted in the proposals. However, because "bargaining never reached a conclusion on [these] Proposal[s], [the Agency] did not identify" the relevant information and the references to attachments "ha[ve] no operative effect[.]" Union's Response at 20.(3)
B. Analysis and Conclusions
Proposals 3 and 4 require the Agency to identify the names, duties, and responsibilities of the officials responsible for implementing the EEO and AEP programs. The Agency has not shown, and it is not otherwise apparent to us, that the proposals require the Agency to do anything more than that. Accordingly, we interpret the proposals as requiring the Agency simply to furnish information to the Union concerning the specified individuals.
The duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the disclosure is not contrary to law or regulation. For example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1423 (1991) (Provision 3); National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 68 (1988) (Provisions 9 and 10). The Agency argues that Proposals 3 and 4 do not concern the conditions of employment of bargaining unit employees because the proposals relate to management officials.
In determining whether a matter involves the conditions of employment of bargaining unit employees, we must consider whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).
We find that the proposals pertain to bargaining unit employees because the proposals require the Agency to furnish information to the Union regarding the operation of the EEO and AEP programs, programs which cover and directly apply to bargaining unit employees. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1395 (1987) (Proposal 3), affirmed sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1492-93 (D.C. Cir. 1989).
We further find that there is a direct connection between the information covered by the proposals and the work situation or employment relationship of bargaining unit employees. EEO and AEP programs directly affect the conditions of employment of bargaining unit employees by, for example, affecting promotions, training programs, and the treatment of employees. See National Federation of Federal Employees, Local 1256 and K.I. Sawyer Air Force Base, Michigan, 29 FLRA 171, 173 (Provision 1) (1987). We note that by requiring the Agency to provide information concerning the names, duties, and responsibilities of the officials responsible for implementing the EEO and AEP programs, the proposals inform employees of the Agency's EEO and AEP programs and thereby facilitate employees' access to the programs. Accordingly, we find that there is a direct connection between the proposals and the work situation or employment relationship of bargaining unit employees. Therefore, we find that the proposals concern the conditions of employment of bargaining unit employees. See National Federation of Federal Employees, Local 1430 and U.S. Department of the Navy, Naval Facilities Engineering Command, Northern Division, Philadelphia, Pennsylvania, 39 FLRA 581, 589 (Proposal 3) (1991) (Department of the Navy) (information concerning an agency's EEO resources "clearly concerns conditions of employment").
The Agency does not contend, and it is not otherwise apparent, that the disclosure of information concerning the names, duties, and responsibilities of the officials responsible for implementing the EEO and AEP programs is contrary to law or regulation. Accordingly, we conclude that Proposals 3 and 4 are negotiable.
VII. Proposal 5
(B) The Personnel Director shall certify in writing that the qualifications of all identified staff officials have been reviewed by competent authority and meet the qualification standards in the handbook X118 [sic].
A. Positions of the Parties
1. Agency
The Agency argues that the proposal does not concern the conditions of employment of unit employees. The Agency also argues that Proposal 5 is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute because it "seeks to designate a particular individual within the Agency who would make the referenced certification." Agency's Statement of Position at 13. The Agency contends that the Union's explanation of the term "Personnel Director," as described below, is misleading and "at odds with the common usage of that term in Federal agencies in general and in the [Agency] in particular." Id. at 14.
2. Union
The Union defines "Personnel Director" as "any official acting with the authority of the agency who is designated by the Employer to administer the AEP." Union's Petition for Review at 3; Union's Response at 21. The Union states that the proposal merely restates the requirement in MD-714 that the Agency's AEP "must include a policy statement in which certification of qualifications is made." Union's Response at 22.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 5 concerns the conditions of employment of bargaining unit employees.
As noted by the Union, Proposal 5 is intended to require the Agency to include in its AEP a policy statement indicating that a "certification of qualifications" of all identified staff officials responsible for implementing the EEO program has been made. Id. at 22. We interpret Proposal 5 as an attempt to provide unit employees with assurance that staff officials who are responsible for administering the EEO program are qualified for that responsibility. Accordingly, we find that the proposal is designed to assure unit employees that the EEO program is administered by qualified officials. As we found in connection with Proposals 3 and 4, EEO programs directly affect the conditions of employment of bargaining unit employees. Consequently, we find that Proposal 5 is directed at the conditions of employment of unit employees and concerns the conditions of employment of unit employees.
Having found that Proposal 5 concerns unit employees' conditions of employment, we next address the Agency's argument that the proposal conflicts with management's right to assign work. Proposals that involve the assignment of specific duties to particular individuals, or preclude management from assigning particular functions to particular individuals, directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1488 (D.C. Cir. 1989), affirming sub nom. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (Proposal 1, third sentence); Defense Mapping Agency, 39 FLRA at 1179 (Proposal 1); and National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 35 FLRA 642 (1990).
Proposal 5 requires the "Personnel Director" to certify that the officials responsible for implementing the EEO program are qualified to do so. The Union defines the term "Personnel Director" as any official designated by management to administer the EEO program. The Agency disputes the Union's definition. The Union provides no source for its definition other than MD-714. We reject the Union's assertion that by requiring the "Personnel Director" to certify that the officials responsible for implementing the EEO program are qualified to do so, the proposal merely restates MD-714. Contrary to the Union's assertion, the relevant section of MD-714 does not require an agency's Personnel Director to certify such officials' qualification requirements. The effect of the proposal is to preclude management from exercising its discretion to require an official other than the "Personnel Director" to certify that particular officials are qualified. As Proposal 5 specifies a particular management official to perform a specified task, we conclude that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138 (1991) (Proposal 2) (U.S. Department of Agriculture) (a proposal requiring management to assign first-line supervisors the task of signing and issuing forms to affected employees directly interfered with management's right to assign work).
Proposal 5 is distinguishable from International Federation of Professional and Technical Engineers, Local No. 1 and U.S. Department of the Navy, Norfolk Naval Shipyard, 38 FLRA 1589, 1602-03 (1991) (Proposal 3) (Norfolk Naval Shipyard), where we found negotiable a proposal requiring performance appraisal forms to include a space for endorsement by the "Activity head designee." In Norfolk Naval Shipyard, we noted that the agency's regulations provided that the "Activity head designee" could be any military officer or civilian official at the activity and, therefore, we did not interpret the proposal as specifying the particular agency official to perform the task.
We note that the defect in Proposal 5 may be easily cured by the Union. If the Union does not intend to restrict the Agency's authority to designate officials to submit the required certification, the Union could, among other things, delete the portion of the proposal referring specifically to the "Personnel Director." See U.S. Department of Agriculture.
We note the Union's assertion that to the extent that any one of the proposals is construed to interfere with the exercise of a management right, the proposal is intended as an appropriate arrangement. However, the Union has not shown how requiring the "Personnel Director" to submit the certification would benefit employees or, conversely, how submission of the certification by another Agency official would adversely affect employees. Therefore, we find that the Union has not provided a record sufficient for us to determine whether Proposal 5 constitutes an appropriate arrangement. See American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas, 42 FLRA 1295 (1991) (Federal Bureau of Prisons).
The parties bear the burden of creating a record on which we can base a negotiability determination. Department of Veterans Affairs Medical Center. Because the record here does not contain information sufficient for us to determine whether Proposal 5 constitutes an appropriate arrangement, we are unable to make such a determination. Accordingly, as we have concluded that Proposal 5 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, we will dismiss the petition for review as to Proposal 5.
VIII. Proposal 6
Section 5 PREVENTION OF SEXUAL HARASSMENT
The Administration shall conduct a training session on sexual harassment each year for Union representatives and EEO counselors.
New Employees shall be advised of their right to a work environment free of sexual harassment, counseling, and the complaints procedures, at the time of their entrance on duty. A revised copy of "Not for Women Only, Guide to the Prevention and Elimination of Sexual Harassment in the Workplace" shall be distributed to all managers and employees.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 6 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because the proposal requires training on a particular subject matter, for specified individuals, and at specified intervals. The Agency also contends that the Union's interpretation of the proposal "is in clear conflict with the plain language of the proposal itself." Agency's Statement of Position at 14.
2. Union
The Union states that the purpose of Proposal 6 is to permit Union representatives to attend the EEO training session on sexual harassment that the Agency offers to its EEO counselors. The Union asserts that such training furthers the purpose of the AEP and does not concern the work of the Agency.
B. Analysis and Conclusions
We find that, as applied to Union representatives, Proposal 6 does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. However, we further find that, as applied to EEO counselors, the proposal directly interferes with management's right to assign work. Accordingly, as applied to Union representatives, Proposal 6 is negotiable; as applied to EEO counselors, Proposal 6 is nonnegotiable.
An agency's right to assign work includes the right to assign employees to training during duty hours and the right to determine what type of training is appropriate. See, for example, Department of Veterans Affairs Medical Center, 39 FLRA at 1157-58 (1991).
On the other hand, proposals which obligate an agency only to provide information to employees are negotiable if the information concerns conditions of employment and is otherwise disclosable. Department of the Navy, 39 FLRA at 589; American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 561 (1991) (DMA). Further, we have found that proposals which required an agency to provide classes or training were negotiable where the classes: (1) constituted only the vehicle by which information would be conveyed to employees; (2) did not encompass instruction on employees' duties and responsibilities; and (3) were not intended to increase the knowledge, proficiency, ability, skill, and qualifications of unit employees in the performance of their official duties within the meaning of the definition of training under 5 U.S.C. § 4101(4). See DMA.
Proposal 6 requires the Agency to conduct a training session on sexual harassment each year for Union representatives and EEO counselors. The Union states that Proposal 6 is intended to require the Agency to permit Union representatives to attend the EEO training session on sexual harassment that the Agency offers to its EEO counselors. The Union's statement of intent is inconsistent with the plain wording of the proposal. The plain wording of the proposal requires the Agency to conduct a training session on sexual harassment each year for Union representatives and EEO counselors, not merely to permit Union representatives to attend any such EEO training session that the Agency offers to its EEO counselors. Because the Union's statement of intent is inconsistent with the plain wording of the proposal, we will not base our negotiability determination on the Union's statement of the meaning of the proposal. See U.S. National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991) (U.S. Department of Agriculture). Consistent with the plain wording of the proposal, we interpret Proposal 6 to require the Agency to conduct a training session each year on sexual harassment for Union representatives and EEO counselors.
1. The Portion of Proposal 6 Requiring the Agency to Conduct a Training Session for Union Representatives Does Not Directly Interfere with Management's Right to Assign Work
There is no indication that the training session for Union representatives is intended to encompass anything other than providing information to Union representatives concerning sexual harassment. Further, the record does not indicate that the proposal is intended to encompass instruction to Union representatives on facets of their duties and responsibilities. As in DMA, there is no indication that the information conveyed by the "training" referred to in Proposal 6 is intended to increase the knowledge, proficiency, ability, skill, and qualifications of the Union representatives in the performance of their non-Union official duties. Moreover, the information conveyed by the "training" clearly concerns conditions of employment and there is no assertion, or other basis on which to conclude, that the information is not disclosable. See Department of the Navy.
Accordingly, insofar as the proposal requires the Agency to conduct a training session on sexual harassment for Union representatives, Proposal 6 does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and is negotiable.
2. The Portion of Proposal 6 Requiring the Agency to Conduct a Training Session for EEO Counselors Directly Interferes with Management's Right to Assign Work
The Agency does not assert that the EEO counselors referred to in the proposal engage in Federal personnel work within the meaning of section 7112(b)(3) of the Statute or are otherwise excluded by law from the bargaining unit. Accordingly, for the purposes of this decision, we find that the Agency's EEO counselors are bargaining unit employees whose EEO duties and responsibilities are collateral to their primary employment duties and responsibilities.
Assigning employees to perform collateral duties as EEO counselors constitutes an assignment of work under section 7106(a)(2)(B) of the Statute. See Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA 3, 12 (1987). Accordingly, unlike the portion of Proposal 6 relating to Union representatives, the portion of Proposal 6 requiring the Agency to conduct a training session on sexual harassment for EEO counselors encompasses instruction to EEO counselors on facets of their duties and responsibilities. By encompassing instruction on certain duties and responsibilities of EEO counselors, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Department of Veterans Affairs Medical Center.
In accordance with our discussion in section III.B., we will examine whether the portion of Proposal 6 requiring the Agency to conduct a training session for EEO counselors is an appropriate arrangement. However, we find that the record does not contain information sufficient for us to determine whether this portion of Proposal 6 constitutes an arrangement. See Federal Bureau of Prisons.
The parties bear the burden of creating a record on which we can base a negotiability determination. Department of Veterans Affairs Medical Center. Because the record here does not contain information sufficient for us to determine whether this portion of Proposal 6 constitutes an arrangement, we are unable to make such a determination. Accordingly, as we have concluded that this portion of Proposal 6 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, we will dismiss the petition for review as to this portion of Proposal 6.
IX. Proposal 7
Section 6 MONITORING AND EVALUATION SYSTEM
(A) The Administration shall produce periodic status reports on work force profile and affirmative employment efforts. These reports shall also fully identify all personnel actions and shall include information on separations, accession, promotions, demotions, reassignment, awards, training, demotions, and terminations.
Proposal 8
(C) The Administration shall timely provide the Union with a copy of any studies, conducted by the Equal Opportunity Office [EOO].
Whenever the EOO prepares a report on matters covered by this agreement, a copy will be timely furnished the Union. The Union may initiate EEO/AEP studies through the EOO.
[Only the underlined portion is in dispute.]
Proposal 9
(D) Semi-annually the Administration and the Union shall meet for at least 5 working days to review and discuss problems, progress, and accomplishments in meeting EEO/AEP goals and objectives. The Administration shall provide suitable accommodations for this meeting and make available knowledgeable resource personnel as needed.
[Only the underlined portion is in dispute.]
Proposal 16
The Administration recognizes that discrimination on the basis of age comprises the second largest volume of EEO complaints. Therefore, the Administration and the Union shall conduct a joint study to identify any problems or barriers with special emphasis on hiring and promotion actions, performance appraisals, and awards. This study shall begin no later than 30 days from the effective date of this Agreement.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 7 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency maintains that "the proposal would permit the Union to determine not only that a particular function would be performed by Agency employees, [but] also how they would perform it." Agency's Statement of Position at 15.
With respect to Proposal 8, the Agency states that it has an EOO which is responsible for the Equal Employment Opportunity program. Id. at 16. The Agency argues, therefore, that the requirement that the EOO produce status reports is inconsistent with management's right to assign work because it would permit the Union to "determin[e] and assign[] an unspecified portion of the workload of" EOO employees. Id.
The Agency contends that Proposal 9 has the same effect as Proposals 1 and 2 in American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Fort Bragg). The proposals in that case prescribed the requirements for appointment to program coordinator positions in the Federal Women's Program and the Hispanic Program. The Authority held that the proposals directly interfered with management's right, under section 7106(b)(1) of the Statute, to determine the types of employees who could fill those positions. The Agency argues that the requirement of the proposal that "knowledgeable" personnel attend the sessions establishes a limitation on the types of employees that the Agency could choose to have present and concludes that the proposal is nonnegotiable under Fort Bragg. Id. at 17.
As to Proposal 16, the Agency claims that the first sentence is a misstatement of fact and does not concern matters affecting conditions of employment. The Agency argues that the disputed portion of Proposal 16 would require it to participate in a study whether it deemed such a study to be necessary or warranted. The Agency concludes, therefore, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Id. at 27.
2. Union
The Union argues that Proposal 7 does not specify who will perform the work entailed in producing the periodic status reports. According to the Union, the proposal does not prescribe who will prepare the reports or the manner in which the reports will be prepared. Rather, the Union asserts, Proposal 7 is a restatement of MD-714, paragraph 14.a.(6)(a) and, therefore, is required by Government-wide regulation.
The Union states that the studies required by Proposal 8 are included among the kinds of information that the Agency is required to provide the Union under the parties' collective bargaining agreement. The Union maintains that the studies provided for under the proposal do not involve the work of the Agency. According to the Union, the proposal does not prescribe, or proscribe, the duties of employees and does not affect the manner in which employees perform their duties. The Union concludes, therefore, that the proposal does not directly interfere with management's right to assign work.
The Union explains that Proposal 9 requires the Agency to make available the resources needed to enable the parties to understand the information discussed at the semi-annual meetings required by the proposal. The Union argues that the proposal does not interfere with the Agency's determination of the types of employees assigned to a work project. The Union distinguishes Fort Bragg on the ground that the proposals in that case were found to interfere with management's right to assign employees to "coordinator" positions. Union's Response at 26-27. The Union argues that Proposal 9 does not concern the positions, identities, qualifications, or other characteristics of the resource persons.
The Union contends that the Agency's allegations as to the first and third sentences of Proposal 16 concern the merits of the proposal and not its negotiability. The Union explains that the second sentence of the proposal concerns a joint study to identify barriers to hiring or promotion that are based on age. The Union maintains that Proposal 16 is negotiable for the reasons stated in Proposal 13. That is, the Union claims that the Agency has an affirmative obligation under applicable regulations to remove barriers, restructure positions, establish new positions, and create opportunities for promotion so as to alleviate underrepresentation. The Union concludes that the actions required by the proposal are a way that the Agency can meet its obligations in the area of AEP.
B. Analysis and Conclusions
We find that Proposals 7, 8, 9, and 16 constitute procedures within the meaning of section 7106(b)(2) of the Statute and conclude, therefore, that the proposals are negotiable.
Proposals 7, 8, and 16 require the Agency itself, or the Agency in conjunction with the Union, to prepare reports or conduct studies relating to the implementation of the Agency's AEP. Proposal 9 requires the Agency to hold semi-annual meetings with the Union to review and discuss the implementation of that plan and to provide knowledgeable personnel to facilitate the discussions at those meetings.
The Authority has held that proposals relating to the conduct of agency studies concern "matters of a procedural nature" within the meaning of section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 227-28 (1981) (Chicago Region). The Authority has also held that proposals requiring management to conduct studies do not directly interfere with the exercise of management's rights where the proposals do not require management to take, or refrain from taking, any action involving the exercise of those rights. National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 576-79 (1988) (Nuclear Regulatory Commission), enforcement granted in part and denied in part as to other matters sub nom. United States Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). On the other hand, where proposals establish restrictions on management action pursuant to section 7106 of the Statute based on the results of the required studies, the proposals directly interfere with the exercise of the management rights involved. See American Federation of Government Employees, AFL-CIO, Local 1923 and Health Care Financing Administration, Baltimore, Maryland, 17 FLRA 661 (1985); American Federation of Government Employees, AFL-CIO, Local 1622 and The Directorate Facilities and Engineering Department of the Army, Fort George G. Meade, Maryland, 17 FLRA 429 (1985).
Moreover, joint labor-management activities to evaluate agency programs have been held to constitute negotiable procedures under section 7106(b)(2) where the joint activity--for example, a labor-management committee--does not involve the union in management's decision-making process pursuant to the exercise of a management right, but rather enables the union to express its views or make recommendations regarding the programs involved. See, for example, Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700, 705-08 (1987) (Proposal 3) (Chairman Calhoun dissenting as to other matters), reversed and remanded as to other matters sub nom. Overseas Education Association v. FLRA, 876 F.2d 960 (D.C. Cir. 1989), decision on remand as to other matters, 39 FLRA 153 (1991); Chicago Region, 7 FLRA at 729-30. In particular, proposals establishing joint labor-management committees relating to the implementation of an agency's EEO program are negotiable procedures under section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1256 and K.I. Sawyer Air Force Base, Michigan, 29 FLRA 171, 172-73 (1987) (K.I. Sawyer Air Force Base); 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, 138 (1987) (Bureau of Engraving and Printing).
In sum, to the extent that proposals do not limit the exercise of management's rights under section 7106 of the Statute, proposals that require management to make studies and prepare reports concerning matters that affect conditions of employment, including matters pertaining to EEO, constitute negotiable procedures within the meaning of section 7106(b)(2) of the Statute. Similarly, to the extent that joint labor-management evaluation does not involve a union in management's decision-making process pursuant to the exercise of management's rights under section 7106, proposals that require the agency and the union jointly to evaluate agency programs related to conditions of employment, including the EEO program, also constitute negotiable procedures under section 7106(b)(2).
Proposals 7 and 8 require management to produce reports and conduct studies but do not require management to take any particular action based on the findings made or conclusions reached in those studies. Proposals 9 and 16 require, respectively, joint labor-management discussion of the progress achieved toward the accomplishment of EEO program goals and joint labor-management study of any barriers to hiring and promotion that exist in the Agency's personnel system. Proposals 9 and 16 do not require specific management actions based on the results of the joint review or the joint study. Moreover, Proposals 9 and 16 do not involve the Union in management's decision-making process pursuant to the exercise of management's rights under section 7106. At most, Proposals 9 and 16 would permit the Union to express its views and make recommendations to management as to the accomplishment of the goals of the EEO program in the Agency's hiring and promotion practices.
Consequently, consistent with Chicago Region, Nuclear Regulatory Commission, K.I. Sawyer Air Force Base, and Bureau of Engraving and Printing, we find that Proposals 7, 8, 9, and 16 do not directly interfere with management's rights under section 7106 of the Statute, but constitute negotiable procedures within the meaning of section 7106(b)(2) of the Statute. We note, in this regard, that proposals establishing procedures that management will follow in exercising its rights under section 7106 of the Statute do not directly interfere with management's right to assign work under section 7106(a)(2)(B) simply because they require the assignment of someone to implement the procedure. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 185 (1991) (Forest Service); U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 473-74 (1990) (Northeastern Program Service Center).
We also conclude that Proposal 9 in this case is distinguishable from the proposal at issue in Fort Bragg. Proposal 9 requires management to provide "knowledgeable" personnel to facilitate the parties' meetings to review and discuss the Agency's progress toward accomplishing the goals of its EEO program. The proposals in Fort Bragg concerned the appointment of "trained" coordinators to program coordinator positions in the Federal Women's Program and the Hispanic Program. The Authority noted that, although the proposal did not specify courses that the coordinators should have taken, it required that the coordinators be trained in EEO and other procedures. The Authority found that the proposal prescribed the type of employee to be assigned to the coordinator positions and concluded that the proposal directly interfered with management's right, under section 7106(b)(1), to determine the type of employee assigned to a position.
Proposal 9 merely requires management to bring to the joint labor-management meetings employees who have information about the EEO program. Proposal 9 does not require employees to have received any particular training and it does not concern the assignment of those employees to positions. Accordingly, the proposal does not affect the exercise of management's right to determine the types of employees assigned to positions under section 7106(b)(1) of the Statute. We conclude, therefore, that Proposal 9 does not directly interfere with the exercise of management's right, under section 7106(b)(1), to determine the types of employees assigned to positions.
Accordingly, for the foregoing reasons, we find that Proposals 7, 8, 9 and 16 are negotiable.
X. Proposal 10
(E) The Administration shall analyze the impact of personnel actions upon the representation of minorities and women in order to insure that AEP objectives are being met. Towards this end the EOO and the Union shall jointly review all requests for personnel action targeted by the AEP.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 10 directly interferes with its rights to assign and select employees under section 7106(a)(2)(A) and (C) of the Statute. The Agency argues that the proposal is an attempt by the Union to become involved in the process that concerns "the Agency's 'requests for personnel action' - i.e., requests from the Agency's operating components to the Agency's personnel office that some personnel action (such as a request to promote a particular employee, or a request to reassign a particular employee) be taken." Agency's Statement of Position at 18. According to the Agency, even though the Union's use of the phrase "requests for personnel action" is unclear, the proposal would involve Union participation in the process for making personnel selections and assignments before management has determined what its final action concerning such requests will be.
The Agency also argues that the Union's participation in the review of proposed Agency actions is a substantive interference with management's right to freely discuss and deliberate concerning the exercise of its rights to assign and select employees under section 7106(a)(2)(A) and (C) prior to the exercise of those rights. Noting that "the Union intends that its role in the 'review' process would be more than a perfunctory one[,]" the Agency states that joint review of requests for personnel action "would not involve a retroactive look at Agency decisions that had been effected, but, rather, a critical look at proposed Agency actions." Id.
The Agency also contends that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Because the proposal requires participation by the Agency's EOO, the Agency argues that the proposal would prevent management from assigning the function of reviewing personnel action requests to other subcomponents. In support, the Agency cites New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706 (1987).
2. Union
The Union argues that Proposal 10 "has its facial meaning" and constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Union's Response at 27. The Union argues that the proposal does not permit Union involvement in the Agency's selection process because: (1) if a request for personnel action is initiated, management's internal deliberations "are nearly always long-since completed" and (2) the request itself is an indication that management has already determined the personnel action that it will take. Id. at 27-28. The Union also argues that the proposal would have a minimal effect on personnel actions "targeted by the AEP . . . unless the action items can be monitored." Id. at 28 (emphasis in original).
B. Analysis and Conclusions
We conclude that Proposal 10 is negotiable because it does not directly interfere with management's right to select from among candidates for appointment or from any other appropriate source under section 7106(a)(2)(C) of the Statute.
1. Meaning of Proposal 10
Proposal 10 requires that the EOO and the Union review all requests for personnel actions that are subject to the AEP. Although the Union does not define the phrase "personnel action," at a minimum, in the context of this case, we interpret the phrase to include Agency actions related to the filling of positions. In other words, the proposal concerns the Agency's decision, when filling a vacant position, to select from among properly ranked and certified candidates for promotion or from any other appropriate source, such as hiring external candidates or reassigning employees. Consequently, we conclude that the proposal concerns requests that the Agency select someone to fill a vacant position.
The Agency interprets the proposal as pertaining to "requests from the Agency's operating components to the Agency's personnel office that some personnel action (such as a request to promote a particular employee, or a request to reassign a particular employee) be taken." Agency's Statement of Position at 18. The Union claims that, under the proposal, by the time the request is made management's deliberations have been completed and the decision as to the action has been made. Because a request for a personnel action can be reviewed at any time, either before or after final action is taken on the request, we do not need to resolve the differing interpretations of the parties as to when the proposal would take effect. The dispositive issue as to Proposal 10 is whether the requirement that the parties jointly review requests for personnel actions would directly interfere with management's right under section 7106(a)(2)(C) of the Statute.
2. The Proposal Does Not Directly Interfere with Management's Rights under Section 7106(a)(2)(C) of the Statute
Proposals that provide for union participation in the discussions and deliberations leading to decisions involving the exercise of management's rights directly interfere with the exercise of those rights. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1061-62 (1990) (Picatinny Arsenal). Specifically, where management has established a decision-making process through which to exercise its rights under section 7106 of the Statute, a proposal requiring that union representatives participate in that process directly interferes with those rights. See Picatinny Arsenal, 35 FLRA at 1066-68.
Typically, the decision-making process will involve a committee established by management, a panel established by management, or a meeting convened by management. See, for example, id.; National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982) (committees); Service Employees International Union, AFL-CIO, Local 100 and Department of Health and Human Services, Gillis W. Long Hansen's Disease Center, Carville, Louisiana, 34 FLRA 704 (1990) (rating and ranking panel); 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, 579-81 (1981), affirmed sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (bid-opening conferences).
However, proposals or provisions that establish committees involving union participation that are outside, or are not an integral part of, management's decision-making process relating to the exercise of its rights under section 7106 do not directly interfere with those rights. See, for example, American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 211-14 (1991). Such committees are parallel to, and supplement, management's decision-making process, usually functioning in an advisory capacity or as a source of nonbinding recommendations to management. See id. at 212.
Proposal 10 provides for the EOO and the Union to review requests for personnel actions. The proposal does not identify, and the record contains no evidence indicating the existence of, a management decision-making process for the review of requests for personnel actions. Specifically, there is no indication in the record that the EOO reviews requests for personnel actions as a part of management's decision-making process with respect to those actions. By its terms, and based on the record, therefore, we find that the proposal would not provide Union participation in the process whereby management discusses and deliberates on requests for personnel actions. Rather, we find that the proposal would establish a joint labor-management review procedure outside management's decision-making process whereby the Union would be able to comment on or make nonbinding recommendations with respect to whether, and the extent to which, a requested personnel action is consistent with the objectives of the AEP.
Therefore, we find that, by providing for a joint labor-management review procedure that is separate from and advisory to management's decision-making process with respect to requests for personnel actions, Proposal 10 does not directly interfere with management's right to select from among properly certified candidates for promotion or from any other appropriate source, under section 7106(a)(2)(C) of the Statute. See id. Because Proposal 10 does not directly interfere with management's right to select, we conclude that the proposal is a negotiable procedure, under section 7106(b)(2) of the Statute, governing the exercise of those rights. See id. at 212-13.
Moreover, because the joint labor-management review of requests for personnel actions that is required by Proposal 10 constitutes a negotiable procedure governing the exercise of management's rights, the fact that the proposal requires the EOO, representing management, to implement that procedure does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See id. at 213-14. Proposals that establish negotiable procedures under section 7106(b)(2) do not directly interfere with management's right to assign work simply because they require the assignment of someone to implement the procedure. See also Forest Service and Northeastern Program Service Center.
XI. Proposal 12 (4)
(B) [1] The Administration and the Union shall jointly conduct annually a program analysis of the current status of affirmative employment. [2] This shall include at a minimum, (a) analysis of the Administration workforce by PATCOB [Professional, Administrative, Technical, Clerical, Other, and Blue-Collar] category, grade groupings, and major occupations, (b) comparison of the Administration workforce with the previous years [sic] workforce, (c) comparison of the Administrative workforce with the SMSA [Standard Metropolitan Statistical Area] Civilian Labor Force (CLF).
[3] The Administration and the Union shall jointly evaluate [A]gency personnel and management policies, practices, systems and procedures which operate as problems and barriers to employment for each EEO group.
(C) [4] The Administration shall conduct an adverse impact analysis on the filling of posted vacancies and make the results available to the [U]nion. [5] These studies will determine if there is an underrepresentation of minorities and women among the applicants, among those qualifying, and among those selected for promotion by major occupations, PATCOB groups, and wage-band groups. [6] If underrepresentation is found, a formal validation of selection procedures and qualification criteria must be performed to identify barriers to affirmative employment. [7] Barriers will be remedied through modification or elimination of existing qualification procedures.
A. Positions of the Parties
1. Agency
The Agency notes that the Union appears to consider only half of the first sentence and the last sentence of Section (C) to be in dispute. Agency's Statement of Position at 22. The Agency claims that the first two sentences of Proposal 12 directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute because those sentences "would impose on the Administration the obligation to conduct a particular study, setting not only the frequency, but also the specific content of the study." Agency's Statement of Position at 20. In addition, the Agency asserts that the first two sentences of the proposal directly interfere with management's right under section 7106(b)(1) of the Statute to determine the methods and means by which its operations will be conducted, a matter that is negotiable only at the election of the Agency, and that the Agency has elected not to negotiate on this proposal.
The Agency maintains that the third sentence of Proposal 12 is nonnegotiable because, by requiring joint evaluation of personnel policies, practices, systems and procedures, as well as determining the specific content of the study to be performed, this portion of the proposal would involve the Union in deliberations concerning "such management rights as the filling of positions, awards policies, assignment to and evaluation of employees and managers." Id. at 21. The Agency also contends that, because this sentence relates to the process of evaluating personnel and management practices, policies and systems, the sentence directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.
According to the Agency, the fourth, fifth, and sixth sentences of Proposal 12 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because those sentences would dictate the work that will be performed by Agency personnel. The Agency also argues that, by determining the particular content and method to be used in conducting the study, these sentences would be determinative of the methods and means by which the Agency performs its work.
The Agency asserts that, "by impeding or eliminating the Agency's ability to determine the qualifications of its employees," the last sentence of Proposal 12 directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. Id. at 23. According to the Agency, although the proposal uses the term "qualifications procedures," the reference is, in fact, to "qualifications requirements . . . ." Id. (emphasis in original). The Agency claims that "the only possible effect of the elimination of qualifications procedures would be to eliminate the Agency's ability to assess that which is measured by those procedures: qualifications." Id.
2. Union
The Union states that Proposal 12 concerns matters that "vitally affect conditions of employment, i.e., the status of affirmative employment as prescribed by 29 C.F.R. [§§] 1610[-1613] and MD-714." Union's Response at 30. The Union contends that the joint study and evaluation of workforce composition and personnel practices does not concern the assignment of work by management. Rather, according to the Union, the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.
The Union claims that Proposal 12 merely implements Article 18, Section 2.C of the parties' agreement, which requires "corrective action when 'adverse impact' is present." Id. (5) According to the Union, Article 18, Section 2.C "binds the parties to set specific and measurable objectives to correct the adverse impact conditions, 'includ[ing] but not limited to: 1. validating existing selection procedures, or 2. modifying or substituting selection procedures to alleviate [the] adverse impact.'" Id. (emphasis and brackets in original). The Union also notes that, pursuant to an arbitration award, the parties are required to negotiate specific corrective action to address adverse impact.
The Union concludes that because Proposal 12 is procedural, the proposal does not interfere with the Agency's "determinations as to qualifications, or with evaluation of personnel, or with selections." Id. at 31.
B. Analysis and Conclusions
At the outset, we find that Proposal 12 as a whole is in dispute. Proposal 12 includes subsections B and C of Section 7 of the Union's proposals regarding the Agency's affirmative employment plan. The Union stated in its petition for review that only the underscored portions of the proposals that it was appealing to the Authority were in dispute. Although the Union did not underscore parts of subsection C of Section 7, the Agency had alleged that both subsections B and C were nonnegotiable. The Agency also maintained in its Statement of Position that those subsections were nonnegotiable and the Union, in its Response, did not dispute the Agency's position. Because the Agency claims that all of Proposal 12 is in dispute, including all of subsection 7, and the Union does not dispute that claim, we conclude that Proposal 12 as a whole is before us for review. For the following reasons, we find that Proposal 12 is negotiable.
1. The First Six Sentences of Proposal 12
The first two sentences of Proposal 12 require the Agency to participate in an annual joint labor-management analysis of the Agency's AEP, including an analysis of the composition of the workforce and a comparison of the current workforce with previous workforces and with a statistical profile of the workforce in the local area. The third sentence requires a joint labor-management evaluation of the Agency's personnel policies and practices to identify aspects of the personnel procedures that constitute barriers to the employment of underrepresented groups.
The fourth and fifth sentences of Proposal 12 require the Agency to conduct an adverse impact analysis of selection actions to determine whether there has been an underrepresentation of minority groups and women among candidates for vacant positions, among those who were found to be qualified, and among those selected. The sixth sentence requires the Agency, if underrepresentation is found, to conduct a formal validation of its qualification criteria and selection procedures to identify barriers to affirmative employment.
In sum, the first six sentences of Proposal 12 require the Agency, jointly with the Union, to analyze the composition of the workforce and to evaluate the personnel system and, on its own, to study selection procedures in order to identify barriers to affirmative employment.
As we noted in connection with our discussion of Proposals 7, 8, 9 and 16, proposals that require joint labor-management activity, such as the analysis and evaluation of an agency program, are negotiable procedures under section 7106(b)(2) of the Statute, unless the proposals would involve the union in management's decision-making process pursuant to the exercise of a section 7106 right. See K.I. Sawyer Air Force Base and Bureau of Engraving and Printing. We also noted above that proposals that require management to conduct studies of agency programs are negotiable procedures within the meaning of section 7106(b)(2) of the Statute, unless those proposals would, based on the results of the studies, otherwise affect the exercise of management's rights. See Chicago Region and Nuclear Regulatory Commission.
The joint labor-management analysis and evaluation required by the first three sentences of Proposal 12 would not involve the Union in management's decision-making process pursuant to the exercise of a section 7106 right. The first three sentences of Proposal 12 require the Union and the Agency jointly to analyze and evaluate the composition of the Agency's workforce and the hiring and promotion policies and practices that produced that workforce. For example, in analyzing the makeup of the current workforce and comparing that workforce to the previous workforces, the Union and management would be evaluating the consequences of the Agency's hiring and promotion actions on the composition of the current workforce. Moreover, in evaluating the Agency's personnel and management policies, the Union and management would be determining whether any of the Agency's policies and practices constituted barriers to equal employment opportunities for minorities and women. Under the proposal, the Union would not be involved in the Agency's hiring and promotion decisions.
Because the first three sentences of Proposal 12 provide for joint labor-management analysis and evaluation of the composition of the workforce, but do not involve the Union in the hiring and promotion decisions that produced that workforce, we find, consistent with K.I. Sawyer Air Force Base and Bureau of Engraving and Printing, that the first three sentences of Proposal 12 do not involve the Union in management's decision-making process pursuant to the exercise of its rights under section 7106 of the Statute. Thus, those sentences do not directly interfere with the exercise of management's rights under section 7106, but, rather, constitute negotiable procedures under section 7106(b)(2) of the Statute.
Sentences four and five require the Agency to analyze the results of Agency decisions to fill vacant positions and to determine if those decisions resulted in an underrepresentation of minorities and women among applicants, applicants determined to be qualified, and candidates finally selected for those vacancies. Sentence six requires the Agency, when it finds that underrepresentation has resulted, to conduct formal validation studies of the selection procedures and qualification criteria used to fill vacant positions.
The Union does not define the term "validation." However, we note that Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, prohibits selection policies or practices that have a discriminatory effect on a protected class, including racial and ethnic minorities and women. 42 U.S.C. § 2000e-2(a)(2) and (h). See also Griggs, 401 U.S. at 431; Uniform Guidelines on Employee Selection Procedures (Guidelines), 29 C.F.R. § 1607.3.A. A selection policy or practice that has an adverse impact may nonetheless be justified on the grounds of business necessity. See Griggs, 401 U.S. at 431.(6) Such justification may be provided by a validation process that demonstrates the relationship between the policy or practice and performance on the job. See Guidelines, 29 C.F.R. §§ 1607.2.A-C, 1607.3.A, 1607.5, 1607.14-.15. See also, for example, MD-714, Paragraph 13.a.(6), Promotions, and Appendix D. Where a selection policy or practice that has an adverse impact is determined to be invalid, that policy or practice may not be used as part of an employer's selection procedures. See Griggs, 401 U.S. at 431. See also Guidelines, 29 C.F.R. § 1607.3.A.
In the absence of any evidence to the contrary in the record of this case, we interpret the sixth sentence of Proposal 12 as incorporating the requirements of Title VII of the Civil Rights Act of 1964 governing the use of selection procedures that are determined to have an adverse impact on protected groups of employees. Specifically, we interpret the requirement of sentence six as incorporating the validation requirements under Title VII that we have discussed above.
Based on the foregoing analysis of their effect, we find that sentences four and five require the Agency to develop information as to underrepresentation and selection procedures and qualification criteria and to report that information to the Union. The sentences do not require the Agency to take any action based on that information. Sentence six requires the Agency, where it finds underrepresentation, to validate its selection procedures and qualification criteria, but does not require specific action if the Agency determines that there are procedures and criteria that are barriers to equal employment. Because the Agency studies required by the fourth, fifth and sixth sentences of Proposal 12 would not require the exercise of a management right based on the results of those studies, we find, consistent with Chicago Region and Nuclear Regulatory Commission, that the fourth, fifth and sixth sentences of Proposal 12 do not directly interfere with management's rights under section 7106(a), but, rather, constitute negotiable procedures under section 7106(b)(2) of the Statute. Moreover, as noted previously, negotiable procedures do not directly interfere with management's right to assign work simply because they require the assignment of someone to implement the procedure. See Forest Service and Northeastern Program Service Center.
We turn next to the Agency's argument that the first six sentences of Proposal 12, by requiring management to conduct studies and engage in joint labor-management analysis and evaluation of the affirmative employment plan, directly interfere with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. We reject the Agency's argument.
In order to demonstrate that a proposal directly interferes with management's right to determine the methods and means of performing work within the meaning of section 7106(b)(1), an agency must show that: (1) there is a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1066 (1991) (National Veterans Administration Council).
The Agency has made no attempt to demonstrate a direct and integral relationship between the requirement for joint labor-management analysis and evaluation of the Agency's AEP, or for management studies, and the accomplishment of its mission and none is apparent to us. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. Northeastern Program Service Center, 36 FLRA at 475. We find, therefore, that the Agency has failed to provide a record to support a conclusion that requiring the Agency to conduct a joint labor-management analysis and evaluation of the AEP, or management studies, constitutes a determination of the methods and means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute. Consequently, we conclude that the first six sentences of Proposal 12 do not directly interfere with management's rights under section 7106(b)(1). Id. at 474-75. Therefore, the first six sentences of Proposal 12 are negotiable.
2. The Seventh Sentence of Proposal 12
After underrepresentation has been identified by management studies, and management has conducted a formal validation of selection procedures and qualification criteria to identify barriers to equal employment, the seventh sentence of Proposal 12 requires management to modify or eliminate the qualification procedures that create those barriers. In the absence of evidence to the contrary in the record of this case, we interpret the term "qualification procedure" in the seventh sentence as meaning the same as the term "selection procedure" in the Guidelines. See Guidelines, 29 U.S.C. § 1607.16.Q. The term "selection procedure" includes, among other things, educational and experience requirements for a job. Id. We intepret sentence seven, therefore, as requiring, for example, the modification or elimination of educational or experience requirements that are identified as unnecessary barriers to equal employment as a result of the validation of the Agency's selection procedures and qualification criteria.
As we noted above in our discussion of Proposals 7, 8, 9 and 16, a proposal that restricts management's exercise of its rights under section 7106 of the Statute based on the results of a management study directly interferes with those rights. See also Nuclear Regulatory Commission, 31 FLRA at 578-79. The Agency's argument, in essence, is that the seventh sentence requires management to modify or eliminate any qualification procedures that have been identified as barriers to equal employment. The Agency claims, therefore, that the seventh sentence directly interferes with its right, under section 7106(a)(2)(C) of the Statute, to determine the qualifications that employees need to be selected for a vacant position. The Union, however, contends that the whole of Proposal 12 is "procedural" and does not interfere with management's "determinations as to qualifications . . . ." Union's Response at 31.
Under section 7106(a)(2)(C) of the Statute, management's right, in filling vacant positions, to select from among properly ranked and certified candidates for promotion or from any other appropriate source includes the right to determine the qualifications employees need to be able to perform the work of the position. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990); National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 568 (1983). Thus, under section 7106(a)(2)(C), management has the right to establish, among other requirements, the educational and experience qualifications that employees need for a position. The issue, therefore, is whether, by requiring management to modify or eliminate qualification procedures used for filling positions because those procedures have been identified as unwarranted barriers to equal employment as a result of validation studies, the seventh sentence of Proposal 12 directly interferes with management's right under section 7106(a)(2)(C) of the Statute.
The exercise of management's rights under section 7106(a)(2) of the Statute is subject to "applicable laws," that is, to laws outside the Statute. Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990). The term "applicable laws" in section 7106(a)(2) of the Statute includes, among other things, "relevant provisions of the United States Code or other lawfully enacted statutes," "regulations having the force and effect of law," and "controlling judicial decisions . . . ." National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389 (1991), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991).
The seventh sentence of Proposal 12 requires management to modify or eliminate selection procedures that it has determined through validation studies are unwarranted barriers to equal employment. As described above, under the requirements of Title VII of the Civil Rights Act of 1964, validation is a process whereby the job-relatedness of an agency's selection procedures and qualification requirements are assessed in order to determine whether those procedures constitute impermissible barriers to equal employment. By requiring management to modify or eliminate qualification procedures that it has determined, through validation studies, are impermissible barriers to equal employment, we conclude that the seventh sentence of the proposal requires management to modify or eliminate qualification procedures that it has determined are not consistent with the requirements of Title VII of the Civil Rights Act of 1964.
We find that Title VII of the Civil Rights Act of 1964, as applied and enforced in the Federal courts, constitutes "applicable law" within the meaning of section 7106(a)(2) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389 (1991), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service, No. 91-1573 (D.C. Cir. Nov. 25, 1991). Consequently, because the seventh sentence of Proposal 12 would require management to modify or eliminate qualification procedures, including educational and experience requirements, consistent with the requirements of Title VII of the Civil Rights Act of 1964, we find that the seventh sentence requires management to exercise its rights under section 7106(a)(2)(C) in accordance with applicable law within the meaning of section 7106(a)(2) of the Statute. Further, because we find that the seventh sentence of Proposal 12 requires management to exercise its right under section 7106(a)(2)(C) in accordance with applicable law, we conclude that the seventh sentence does not directly interfere with that right. See American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, 42 FLRA 527, 536 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1510 (D.C. Cir. Oct. 18, 1991). Therefore, we find that the seventh sentence of Proposal 12 is negotiable.
Accordingly, because we find that Proposal 12 does not directly interfere with management's rights under section 7106 of the Statute, we conclude that Proposal 12 is negotiable. In reaching this conclusion, we note that Proposal 12 is consistent with the Guidelines.
XII. Proposal 13
Section 8 PROBLEM AND BARRIER IDENTIFICATION
B. The Administration will use tangible tools such as the creation of bridge positions, use of the stride program, numerical goals and approved training agreements to correct the underrepresentation of minorities in the work force and to achieve a fair distribution of women and minorities at all grade levels and in all occupational series.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that the first disputed portion of Proposal 13 excessively interferes with management's right to determine its organization under section 7106(a)(1) of the Statute. In support of its position, the Agency cites American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA 93, 95 (1985) (OPM).
According to the Agency, the first disputed portion of the proposal would: (1) require the Agency to create undefined bridge positions "whether the Agency wanted or needed them, or not"; and (2) subject to an arbitrator's determination the "question of when and how many bridge positions must be 'created' to correct the underrepresentation." Agency's Statement of Position at 24.
The Agency contends that the second disputed portion of Proposal 13 does not concern the conditions of employment of bargaining unit employees. The Agency argues that not all employees in all grade levels and occupational series are members of the bargaining unit. The Agency also contends that the second disputed portion of the proposal directly interferes with management's right, under section 7106(b)(1) of the Statute, to determine the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty. According to the Agency, the language contained in the proposal--"at all grade levels and in all occupational series"--would dictate "what positions (bridge positions and all organizational series), how many positions (all occupational series), and grade level (all grade levels) of the positions which will be filled to correct underrepresentation in the workforce." Id. at 25.
2. Union
The Union contends that the use of bridge positions is a matter that is negotiable when viewed in the context of the development of an AEP. Noting that the establishment of numerical objectives for the AEP is a requirement placed on the Agency by MD-714, the Union argues that "the use of bridge positions is a method to improve the underrepresentation of identified groups" and "imposes no further requirement for meeting numerical objectives." Union's Response at 31-32.
The Union also contends that the decision in OPM is distinguishable. According to the Union, Proposal 13, unlike the proposal in OPM, applies only if underrepresentation of minorities and women has been demonstrated in all grade levels and occupational series. The Union argues that, under those circumstances, there is "an affirmative obligation on the [Agency] to remove barriers and to restructure positions, create new positions, and opportunities for promotion" in accordance with the requirements of MD-714. Id. at 32. The Union also asserts that, because the proposal merely involves an appropriate method for the reduction of identified underrepresentation, there is no requirement that the Agency use bridge positions without taking its organizational needs into account. The Union states that "[l]ike goals, which do not mandate action in each case, bridge positions are a way of meeting the [Agency's] extrinsic obligations to achieve results in the area of AEP/EEO." Id. at 33.
B. Analysis and Conclusions
We find that Proposal 13 does not require the use of bridge positions. Accordingly, Proposal 13 does not directly interfere with management's right, under section 7106(a)(1) of the Statute, to determine its organization and its right, under section 7106(b)(1) of the Statute, to determine the types of positions assigned to an organizational subdivision. Similarly, the proposal does not purport to determine the conditions of employment of individuals not employed in the bargaining unit. Therefore, we find that Proposal 13 is negotiable.
1. Meaning of Proposal 13
Proposal 13 requires the Agency to use tools "such as" the creation of bridge positions and other tools to achieve a fair distribution of women and minorities in all job series and at all grade levels. The record does not contain a description or definition of the term "bridge position." Generally speaking, however, bridge positions are positions designated or created by agencies as an upward mobility measure in order to "enable lower level employees to qualify for pre- or paraprofessional jobs . . . ." Federal Personnel Manual (FPM) Letter 713-27 (Jun. 28, 1974) at 2-3. That is, the term refers to positions that are designed to enable employees who would not qualify, based on training or experience, for positions in a different job series to work in positions in that job series and gain the training and experience that would qualify them for those positions. See id.
As worded, Proposal 13 does not require the use of bridge positions. Rather, it merely lists bridge positions as an example of one of the tools that management may use to correct an underrepresentation of women and minorities in various job series or at various grade levels. Accordingly, consistent with the plain wording of the proposal, we find that Proposal 13 allows the Agency discretion as to whether to use bridge positions. Moreover, because Proposal 13 does not require the use of those positions in job series or at grade levels that are outside the unit, we find, contrary to the Agency's argument, that Proposal 13 does not seek to determine the conditions of employment of employees in nonunit positions.
2. Proposal 13 Does Not Directly Interfere with Management's Right to Determine Its Organization under Section 7106(a)(1)
An agency's right to determine its organization under section 7106(a)(1) of the Statute includes the right to determine "how an agency's grade level organizational structure will be designed . . . ." National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 409-10 (1990) (Treasury, IRS). In Treasury, IRS, the Authority stated that management's right to determine its organization refers to "the administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties." Id. at 409. An integral part of this right includes an agency's discretion to determine "how positions will be structured in terms of grade levels." Naval Plant Representative Office, 35 FLRA at 368-69.
In OPM, the Authority found that a proposal requiring the agency to create bridge positions was nonnegotiable. In reaching that conclusion, the Authority determined that, because the proposal prevented the agency from deciding that it would not create bridge positions, the proposal directly interfered with management's right to determine its organization under section 7106(a)(1) of the Statute. OPM, 19 FLRA at 96.
However, as we found above, Proposal 13 does not require the creation of bridge positions. Proposal 13, therefore, does not preclude management from deciding that it would not use bridge positions in order to reduce underrepresentation of minorities and women. Consequently, we find that Proposal 13 does not directly interfere with management's right to determine its organization under section 7106(a)(1).
3. Proposal 13 Does Not Directly Interfere with Management's Right to Determine the Types of Positions Assigned to an Organizational Subdivision under Section 7106(b)(1) of the Statute
Section 7106(b)(1) of the Statute provides that an agency may, at its election, negotiate concerning the "numbers, types, and grades of employees or positions" assigned to an organizational subdivision, work project, or tour of duty. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 211, 215-20 (1990) (Medical Center, Newington). The Agency contends that because Proposal 13 dictates the use of bridge positions in all grade levels in all organizational series, the proposal directly interferes with management's right under section 7106(b)(1).
We have defined the term "types" of employees as used in section 7106(b)(1) to encompass "the right to make determinations based on work or job-related differences between employees." See Medical Center, Newington, 38 FLRA at 216. See also Defense Mapping Agency, 39 FLRA at 1188-90. Specifically, we have found that the right to determine the types of employees is related to management's right to determine the necessary qualifications and experience for work assignments. See Medical Center, Newington, 38 FLRA at 217. We see no reason to define the term differently where the issue is the "type" of position within the meaning of section 7106(b)(1) rather than the "type" of employee.
Because, as defined above, bridge positions are positions that are designed to enable employees who would not otherwise qualify for positions to work in those positions to gain the necessary training and experience, bridge positions into a job series have different requirements than regular positions in that series. Moreover, because bridge positions have different job requirements than regular positions, we find that bridge positions are a type of position within the meaning of section 7106(b)(1). See, for example, American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 1015-17 (1987), rev'd as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Aug. 9, 1990) ("entry level" or "entry grade" employees are a type of employee within the meaning of section 7106(b)(1) of the Statute).
However, Proposal 13 does not require the use of bridge positions. Consequently, we conclude that Proposal 13 does not directly interfere with management's right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute.
Accordingly, we find that Proposal 13 is negotiable.
XIII. Proposal 15
The Administration will continue to develop transitional positions that will enable minorities and female employees to move from clerical and technical positions into Administrative and professional ones.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 15 is nonnegotiable for the reasons stated with respect to Proposal 13. The Agency argues that the language of Proposal 15 is misleading because it implies that developing transitional positions is a regular Agency activity. The Agency states that the utility of Proposal 15 to the overall employee population is uncertain because "this proposal would be directed at only some employees, to the exclusion of others." Agency's Statement of Position at 27.
2. Union
The Union contends that Proposal 15 is negotiable for the reasons stated as to Proposal 13. The Union states that the terms "transitional positions" and "bridge positions" are synonymous. Union's Response at 33.
B. Analysis and Conclusions
We find that Proposal 15 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
1. Meaning of Proposal 15
Proposal 15, as explained by the Union, requires the Agency to continue to develop transitional positions that permit qualified minorities and women to move into administrative and professional positions. We note that, according to the Union, the term "transitional position" means a bridge position. Based on the Union's explanation, we conclude that the proposal requires the Agency to continue to develop bridge positions designed to permit minorities and women to gain experience and training necessary to qualify for entry into administrative and professional positions.
2. Proposal 15 Directly Interferes with Management's Right to Determine Its Organization under Section 7106(a)(1)
In our disposition of Proposal 13 above, we found, consistent with OPM, that proposals requiring the use of bridge positions directly interfered with management's right to determine its organization under section 7106(a)(1) of the Statute. Because Proposal 15 requires management to continue to develop transitional or bridge positions that will enable minorities and female employees to move from clerical and technical positions into administrative and professional positions, we find, consistent with OPM, that Proposal 15 directly interferes with management's right to determine its organization under section 7106(a)(1). See OPM, 19 FLRA at 96.
3. Proposal 15 Directly Interferes with Management's Right to Determine the Types of Positions Assigned to an Organizational Subdivision under Section 7106(b)(1) of the Statute
In our disposition of Proposal 13 above, we also found that proposals requiring the use of bridge positions directly interfered with management's right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute. Because Proposal 15 requires the Agency to continue to create transitional or bridge positions into administrative and professional job series, we find that Proposal 15 directly interferes with management's right to determine the types of positions that the Agency will assign to organizational subdivisions containing administrative and professional job series.
4. Proposal 15 Is an Appropriate Arrangement under Section 7106(b)(3)
The Union states that the use of bridge positions is "one appropriate method of reducing . . . identified underrepresentation." Union's Response at 33. By requiring management to use bridge positions as one way of reducing underrepresentation of minorities and women, therefore, the proposal would mitigate the adverse effects, including underrepresentation, that may result from management's hiring and selection decisions. We note the Agency's contention that adverse effect, within the meaning of section 7106(b)(3), is not intended to include a situation where the Agency fails to exercise its right to select. We disagree and find that it is reasonably foreseeable that minorities and women would be adversely affected by the Agency's exercise of its right to select by choosing candidates other than women and minorities for positions in the administrative and professional series.
Applying the analytical framework set forth in KANG, we find that Proposal 15 would benefit minorities and women in the unit by providing those employees with promotional opportunities in the form of bridge positions. We find, therefore, that Proposal 15 is intended as an arrangement for employees adversely affected by the exercise of management's rights to hire and select within the meaning of section 7106(b)(3).
The Agency contends that the Union's proposal is not an appropriate arrangement because it offers "no special benefits to non-minority employees comparable to those which it seeks for minority employees." Agency's Supplemental Submission at 10. Section 7106(b)(3) of the Statute requires management to negotiate over appropriate arrangements for employees adversely affected by the exercise of management's rights. As worded, an agency's obligation to negotiate under section 7106(b)(3) extends to proposals that are appropriate arrangements for employees who would be adversely affected by the exercise of a management right. Nothing in section 7106(b)(3) requires that every unit employee be adversely affected by the exercise of a management right in order for a proposal to constitute an appropriate arrangement. See United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Apr. 14, 1992), slip op. at 6-7. Consequently, as long as "some employees" would foreseeably be adversely affected by the exercise of a management right, the agency is obligated under section 7106(b)(3) to negotiate on a proposal that constitutes an appropriate arrangement to mitigate that adverse effect. Id. at 7.
Because Proposal 15 is intended to benefit employees who are adversely affected by the exercise of management's rights to hire and to select employees, we find that the Agency's contention provides no basis for challenging the proposal.
As to whether Proposal 15 is an appropriate arrangement, we note that the burden imposed by the proposal on management is that management would be precluded from choosing not to use bridge positions as a way to correct underrepresentation. By requiring the use of bridge positions, Proposal 15 would impose a burden on management's ability to organize its workforce to accomplish the Agency's mission and its decision as to the types of employees it will use to accomplish the Agency's work. Because bridge positions are positions designed to enable employees to gain qualifying training and experience, the requirement that management use such positions may affect the overall productivity of the workforce. However, Proposal 15 does not restrict management's judgment as to the use of means other than transitional or bridge positions to reduce underrepresentation in administrative or professional positions or as to when or how it will use those positions for that purpose. Consequently, the effect of the requirement to use bridge positions on management's ability to structure its workforce to accomplish its workload is minimal.
We find that the benefit to employees, under Proposal 15, of the availability of transitional or bridge positions to provide upward mobility to professional and administrative positions outweighs the minimal burden that the proposal imposes on management. We note, moreover, that the proposal would also benefit the Agency by providing opportunities for developing the skills and abilities of its workforce. We find, therefore, that Proposal 15 does not excessively interfere with management's rights to determine its organization and to determine the types of positions assigned to organizational subdivisions. Thus, we find that Proposal 15 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Accordingly, we find that Proposal 15 is negotiable.
XIV. Proposal 17
(A) BLACK MALES ARE UNDERREPRESENTED IN THE ADMINISTRATIVE AND CLERICAL PATCOB.
Corrective Action:
The Administration will increase the number of black males in the administrative series by 5 a year (total 15) thus reaching a UI [underrepresentation index] of at least 80 by the end of the plan.
The Administration shall increase the number of black males in the clerical series by 3 per year (total 15) in order to achieve a UI of at least 80 by the end of the plan.
Proposal 18
(B) BLACK FEMALES ARE UNDERREPRESENTED IN THE GS-13-15 GRADE LEVELS, SPECIFICALLY WHEN REVIEWED AGAINST THEIR CONCENTRATION IN THE ENTRY AND MIDDLE LEVELS.
Corrective Action:
The Administration will increase the representation through internal recruitment by filling 13 positions annually for the duration of the AEP.
Proposal 28
Career Opportunity Training Programs
The Career Opportunity Training Agreement will be utilized whenever possible and 50% of all vacancies will be selected from internal pools of underrepresented groups.
Stride
The Stride agreement will be utilized as another primary tool to correct underrepresentation. 65 positions will be filled under stride with 60% of the selectees from the underrepresented groups of women, blacks, aged, Hispanic, Asian Americans and Native Americans.
A. Positions of the Parties
1. Agency
The Agency argues that part (A) of Proposal 17 and part (B) of Proposal 18 are factual statements which "may or may not be true" and which do not constitute proposals relating to the conditions of employment of bargaining unit employees. Agency's Statement of Position at 28.
The Agency contends that Proposals 17 and 18 directly and excessively interfere with the Agency's right to hire and assign employees because the proposals "would mandate the selection of a set number of employees in particular job categories, irrespective of the Agency's need to have any positions filled." Id. at 28. The Agency also contends that Proposals 17 and 18 violate management's rights to determine its organization, to make selections, and to determine the number and types of employees assigned to positions. Further, the Agency maintains that "it is clear that the plain language of the Union's proposal[s] is not couched in terms of 'objectives'" but "unquestionably sets forth a mandate for selection of a specified number of individuals . . . ." Id. at 29.
As to Proposal 28, the Agency argues that the proposal directly and excessively interferes with the Agency's right to hire and assign employees, "or to choose not to do so," and with the Agency's right to make selections from any appropriate source. Id. at 43.
2. Union
The Union notes the Agency's objection to the inclusion of certain factual statements in Proposals 17 and 18. The Union contends that the statements are "hortatory, [and] do[] not interfere with any management right, law, or applicable government-wide regulation[.]" Union's Response at 11.
The Union argues that Proposals 17 and 18 state a "numerical objective as opposed to a quota" and therefore, are consistent with MD-714, which "permits agencies to establish numerical objectives . . . ." Id. at 36 (emphasis in original). The Union contends that Proposal 28 preserves the Agency's ability to "meet its mission requirements" and "establishes numeric goals in specific existing programs . . . to reduce underrepresentation." Union's Petition for Review at 12; Union's Response at 47. According to the Union, the Agency "has clearly mis-read the effect" of the proposals because the numerical objectives in these proposals "are not mandatory" and, thus, the proposals do not interfere with management's rights. Union's Response at 36 (emphasis in original).
B. Analysis and Conclusions
For the following reasons, we find that Proposal 17 is nonnegotiable because it excessively interferes with management's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute. We also find that Proposals 18 and 28 are nonnegotiable because they excessively interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to make selections from any appropriate source under section 7106(a)(2)(C).
1. Preliminary Matter
We note the Agency's argument that Proposals 17 and 18 contain factual statements which "may or may not be true" and which do not constitute proposals relating to the conditions of employment of bargaining unit employees. Agency's Statement of Position at 28. An argument that a proposal may or may not be true is not an allegation that a proposal violates law, rule, or regulation and, thus, such an argument does not address the negotiability of a proposal. Rather, such an argument addresses the merits of the proposal, a matter that we do not consider when resolving the negotiability of a proposal. Therefore, we reject the Agency's argument because the argument goes to the merits of the proposals and not to their negotiability.
2. Proposal 17 Excessively Interferes with Management's Rights to Hire and Assign Employees under Section 7106(a)(2)(A) of the Statute
The decision as to whether to fill vacant positions is encompassed within management's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute. Bureau of Engraving and Printing, 25 FLRA at 145-46 (Provision 35). Proposals requiring an agency to fill a certain percentage of positions with certain types of employees directly interfere with management's rights to hire and assign employees, or to decide not to take such actions. See Federal Employees Metal Trades Council of Charleston and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 29 FLRA 1422, 1425 (1987) (Proposal 1, third sentence) (Charleston Naval Shipyard) (proposal establishing a percentage cap on the total number of on-call employees which the agency may employ in the bargaining unit was inconsistent with management's rights to hire and assign employees); Bureau of Engraving and Printing, 25 FLRA at 144-46 (provision obligating management to hire a specific number of applicants responding to certain vacancy announcements violated management's rights to hire and assign employees); National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281, 282-83 (1979) (proposal, second sentence) (Internal Revenue Service) (portion of the proposal requiring the agency to fill a specific percent of certain available positions within specific fiscal years violated management's rights to hire and assign employees or to decide not to take such actions).
In addition, the discretion to decide whether to fill vacancies is a component of management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute. See National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 850 (Provision 3) (1990).
The Union argues that Proposal 17 is consistent with management's rights because, consistent with MD-714, the proposal merely states a numerical objective. We reject this argument. Contrary to the Union's statement of intent, the proposal is not stated in terms of goals or objectives, but clearly states that management "will increase the number of black males in the administrative series by 5 a year" and "shall increase the number of black males in the clerical series by 3 per year . . . ." Because the Union's statement of intent is inconsistent with the plain wording of the proposal, we will not base our negotiability determination on the Union's statement of the meaning of the proposal. See U.S. Department of Agriculture, 40 FLRA at 1141. Consistent with the plain wording of the proposal, we interpret Proposal 17 to require the Agency to place at least five black males in the administrative series and three black males in the clerical series per year. See Bureau of Engraving and Printing, 25 FLRA at 146 and Internal Revenue Service, 2 FLRA at 283 (where the Authority rejected the unions' statements that the provision and the proposal were intended to be permissive and found, instead, that the provision and the proposal required management to fill positions).
Proposal 17, like the proposals in Charleston Naval Shipyard and Internal Revenue Service, requires the Agency to employ a specific number of people in certain positions within a specific period of time, regardless of whether management has vacancies or wishes to fill the vacancies that may be available. Therefore, we find that Proposal 17 directly interferes with the Agency's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute, or to refrain from taking such actions. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 632 (management's rights under section 7106 of the Statute include not only the right to act, but also the right not to act). Further, because Proposal 17 requires the Agency to fill vacancies, the proposal precludes management from deciding not to fill vacancies. Accordingly, Proposal 17 directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute.
Having found that Proposal 17 directly interferes with the Agency's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute and to select under section 7106(a)(2)(C), we next turn to the Union's argument that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3).
The Union states that the proposal is intended to mitigate the adverse effect of underrepresentation that has occurred in specific grades and occupations within the Agency. Although it is not specifically stated in the record, we infer that Proposal 17 is intended to address the effects of management's selection actions on employees specified in the proposal who were not hired for, or assigned to, positions in the administrative and clerical series. We note the Agency's contention that an analysis of adverse effects under KANG is not intended to include a situation where the Agency fails to exercise its right to select. We find, however, that it is reasonably foreseeable that employees specified in the proposal would be adversely affected by the Agency's exercise of its rights to hire, assign, and select employees for positions in the administrative and clerical series and by any underrepresentation that results. Accordingly, applying the framework set forth in KANG, we find that the proposal is intended as an arrangement for employees adversely affected by management's exercise of its rights to hire, assign, and select employees.
We turn, then, to the question of whether Proposal 17 constitutes an appropriate arrangement or whether it excessively interferes with management's rights to hire, assign, and select employees.
While Proposal 17 benefits a particular group of employees who are allegedly underrepresented in clerical and administrative positions by increasing their representation in those positions, it provides this benefit by requiring management to increase the number of people from the underrepresented group by five in the administrative series and three in the clerical series. Further, the proposal would require management to make these increases every year during the AEP, regardless of whether that number of vacancies existed in those positions. By requiring the Agency to place a specific number of individuals in specific positions, the proposal prevents the Agency from determining whether there are positions available that need to be filled and places a substantial burden on the Agency's ability to hire or select individuals for those positions. In our view, the burden placed on management's rights outweighs the benefit conferred on employees by the proposal. Accordingly, we find that the proposal excessively interferes with management's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute and to select under section 7106(a)(2)(C), therefore, is nonnegotiable.
Having found that Proposal 17 is nonnegotiable because it excessively interferes with the Agency's rights to hire, assign, and select employees, we do not address the Agency's remaining arguments on the negotiability of Proposal 17.
3. Proposal 18 Excessively Interferes with Management's Rights to Assign Employees and Make Selections from Any Appropriate Source
Provisions or proposals that require management to fill vacancies from a single source directly interfere with management's right to select from any appropriate source. See National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25 (1991) (Provision 3) (Naval Air Station) (a provision stating that it was the employer's policy, "where possible," to promote from within was found to directly interfere with management's right to select from any appropriate source); International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 357 (1988) (Provisions 3 and 4) (U.S. Army Engineer District) (provisions requiring the agency to fill vacancies from internal candidates in classifications where a surplus of employees existed were found to conflict with management's right in filling vacancies to select from any appropriate source). Moreover, as we noted with respect to Proposal 17, proposals requiring an agency to fill a certain number of positions with certain employees directly interfere with management's rights to hire and assign employees, or to decide not to take such actions. See Charleston Naval Shipyard and Internal Revenue Service.
Proposal 18 requires management to fill thirteen GS-13 to 15 positions annually with internal recruits. Proposal 18 limits the sources from which management will make selections for positions. Because the proposal precludes management from selecting a candidate from outside the Agency when filling thirteen GS-13 to 15 positions, and thereby dictates the source for selection to those positions, the proposal directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. See Naval Air Station and U.S. Army Engineer District.
Further, we reject the Union's claim that Proposal 18 merely states a numerical objective. Proposal 18 specifically states that the Agency "will increase the representation . . . by filling 13 positions annually for the duration of the AEP." Therefore, we interpret Proposal 18 to require the Agency to fill thirteen GS-13 to 15 positions annually with members from the underrepresented group. Because Proposal 18 requires the Agency to fill a specific number of positions within a specific period of time, regardless of whether management has vacancies or wishes to fill the vacancies that may be available, we find, consistent with our determination on Proposal 17 above, that Proposal 18 also directly interferes with the Agency's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute, or to refrain from taking such action. See Charleston Naval Shipyard and Internal Revenue Service.
Accordingly, for the reasons noted above, we find that Proposal 18 directly interferes with management's rights to select from any appropriate source under section 7106(a)(2)(C) of the Statute and to hire and assign employees under section 7106(a)(2)(A).
We next turn to the question of whether Proposal 18 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Applying the analysis set forth in KANG, we find that the proposal addresses the adverse effects on employees of the Agency's exercise of its rights to hire, assign, and select candidates for GS-13 to 15 positions who are not members of the underrepresented group addressed by Proposal 18. It is reasonably foreseeable that the group of individuals addressed by Proposal 18 would be adversely affected by the Agency's exercise of its rights to hire, assign, and select employees for GS-13 to 15 positions, and by any underrepresentation that may be created as a result, and that filling those positions with internal applicants from a group that is underrepresented in those occupations would ameliorate such adverse effects. Accordingly, we find that Proposal 18 is intended as an arrangement for employees adversely affected by management's exercise of its rights to hire, assign, and select employees.
As to whether Proposal 18 constitutes an appropriate arrangement, we note that Proposal 18 requires management to select an internal candidate for thirteen GS-13 to 15 positions and requires management to fill thirteen such positions every year through the end of the AEP, regardless of whether that number of vacancies existed in those positions or whether management wished to fill the available vacancies. Although the proposal benefits employees by ensuring that they will be selected, we find, for the reasons noted more fully with respect to Proposal 17, that the benefit to employees is outweighed by the burden placed on management's rights to select from any appropriate source under section 7106(a)(2)(C) of the Statute and to hire and assign employees under section 7106(a)(2)(A). Accordingly, we conclude that Proposal 18 excessively interferes with management's rights to select from any appropriate source and to hire and assign employees and, thus, is nonnegotiable.
Having found that Proposal 18 is nonnegotiable because it excessively interferes with the Agency's rights to select from any appropriate source and to hire and assign employees, we do not address the Agency's remaining arguments on the negotiability of Proposal 18.
4. Proposal 28 Excessively Interferes with Management's Rights to Hire and Assign Employees and to Make Selections from Any Appropriate Source
Proposal 28 requires in part that the Agency: (1) select 50 percent of all candidates for vacancies from internal pools of underrepresented groups; and (2) fill 65 positions under the Stride agreement with 60 percent of the selectees from underrepresented groups. The Stride agreement is a tool for correcting underrepresentation. See Union's Response at 47. According to the Union, "'Stride' is a specific sub-program under the COTA [Career Opportunity Training Agreement], which waives qualification requirements for initial entry into positions, and then provides accelerated 'credit' toward required experience for promotional positions." Id. at 39. Because Proposal 28 requires the Agency to fill a specific percentage of vacancies from a single source, the proposal directly interferes with management's right to select from any appropriate source. See Naval Air Station and U.S. Army Engineer District. Further, because Proposal 28 requires management to fill a stated number of positions with a stated percentage of people from a certain group, the proposal directly interferes with management's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute, or to refrain from taking such actions. See Charleston Naval Shipyard and Internal Revenue Service.
Consistent with our determination on Proposals 17 and 18, we reject the Union's claim that Proposal 28 establishes numeric goals. The Union's interpretation of the proposal is inconsistent with the plain wording of the proposal, and the Authority does not base a negotiability determination on a statement of intent which is inconsistent with a proposal's plain wording. See U.S. Department of Agriculture.
Moreover, for the reasons noted with respect to Proposals 17 and 18, we find that Proposal 28 excessively interferes with management's rights to hire and assign employees and to select from any appropriate source. Proposal 28 completely bars management from selecting an outside candidate for a specific percentage of vacancies and requires management to place a specific number of individuals in positions, regardless of whether that number of vacancies exists or whether management wished to fill the available vacancies. Accordingly, Proposal 28 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and, therefore, is nonnegotiable.
XV. Proposal 19
(C) [1] A MAJOR INITIATIVE OF THE ADMINISTRATION IS TO PROVIDE TRANSITIONAL OPPORTUNITIES FOR EMPLOYEES IN CLERICAL AND TECHNICAL POSITIONS TO ADVANCE TO ADMINISTRATIVE AND PROFESSIONAL POSITIONS AT A RATE WHICH WILL ASSIST IN MEASURABLY CORRECTING UNDERREPRESENTATION.
THE LARGEST EXISTING POOL OF MINORITIES AND WOMEN WITHIN HCFA [HEALTH CARE FINANCING ADMINISTRATION]
ARE [sic] LOCATED IN TECHNICAL POSITIONS WITHIN DMOS AND CLERICAL/SECRETARIAL POSITIONS THROUGHOUT THE AGENCY.
THE TECHNICAL JOBS WITHIN DMOS PROVIDE A SOLID BACKGROUND IN THE BUSINESS OF VARIOUS OFFICES WITHIN HCFA AND OVERALL PROGRAM COMPREHENSION. HOWEVER, THESE JOBS HAVE BECOME TECHNICAL DEAD ENDS RATHER THAN PROVIDING A POOL OF CANDIDATES FOR INTERNAL SELECTIONS INTO ADMINISTRATIVE AND PROFESSIONAL POSITIONS IN SERIES SUCH AS 345, 343 AND 334. BACKFILLING THE VACANCIES IN THESE TECHNICAL JOBS WITH MINORITIES AND WOMEN FROM CLERICAL/SECRETARIAL POSITIONS WOULD PROVIDE A TRUE UPWARD MOBILITY PATH.
Corrective Action:
[2] The Administration agrees to use available tools, such as the Stride and COTA programs and other Agency upward mobility programs, to work toward eliminating the underrepresentation of minorities and impediments to career advancement.
[3] The Administration will provide a class on filling out the SF-171 to DMOS employees on an annual basis, if there is sufficient interest shown among employees. In addition, the Administration will provide such a class for other interested employees on an annual basis.
[4] Current technical positions within DMOS will be reviewed with the purpose of adding duties and responsibilities conducive to providing minimal X-118 experience for eligibility to 343, 334, and 345 administrative and professional positions;
[5] Where appropriate, X-118 experience will be waived initially and satisfied by on the job training under OPM [Office of Personnel Management] training agreements;
[6] Vacancies at the GS-5-7, GS-9-11 levels in Administrative/Professional positions will be considered bridge positions to be filled from the existing GS-5-7, 8-9, 10-11 technical positions within DMOS.
[7] Should specific X-118 requirements in series, such as 510, require specialized education, potential applicants from the DMOS technical pool as well as from the Secretarial/Clerical pool, will be recruited through the continuing education program. The courses shall be set to accomplish the minimal criteria set forth in the X-118 requirement.
[Only the underlined portions are in dispute. Sections of this proposal have been numbered for the convenience of discussion.]
A. Positions of the Parties
1. Agency
The Agency states that the first section of Proposal 19 is a factual representation and not a proposal concerning the conditions of employment of unit employees. Assuming that the first section of Proposal 19 constitutes a proposal, the Agency argues that it is nonnegotiable because it "violates management's right to determine its mission, organization, assignees, [to] select employees, and determine the types of positions within its organizational subdivision." Agency's Statement of Position at 32. According to the Agency, the proposal violates management's rights because it "dictates the types of positions (technical) to which employees should be assigned" and "prescribes that the mission of the Agency will include a specific 'major initiative' of the Union's design." Id.
The Agency argues that part 4 of the proposal directly interferes with the Agency's rights to determine organization and to assign work because it "'requires management to redesign jobs to create promotion opportunities . . . .'" Id. at 33 (quoting American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1608 (1987) (Provision 8) (Marine Corps Logistics Base)).
The Agency contends that part 5 of the proposal directly interferes with management's rights to assign work and assign employees because it "would require the Agency to waive basic qualifications requirements for unspecified individuals in unspecified circumstances . . . ." Id. at 34 (citing Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119, 1121 (1987), reversed as to other matters sub nom. Fort Knox Dependent Schools v. FLRA, 875 F.2d 1179 (6th Cir. 1989), vacated and remanded, 110 S. Ct. 2580 (1990)). As to part 6 of the proposal, the Agency argues that requiring "the designation of specific positions as 'bridge' positions" conflicts with management's rights to determine its organization and to determine the numbers, types, and grades of positions in a specific operational subdivision. Id. at 35. The Agency further argues that requiring the Agency to fill vacancies conflicts with management's rights to hire and make selections from any appropriate source because the proposal "limit[s] the pool of candidates for any and all vacancies" in certain job series. Id.
Finally, the Agency maintains that part 7 of the proposal excessively interferes with management's rights to assign work and determine the qualifications of candidates for positions because the proposal requires the Agency to select certain individuals who may "not possess the requisite educational qualifications" and then requires "that specific training be provided to fill the qualifications shortfall." Id. at 36. The Agency also contends that part 7 of the proposal excessively interferes with its right to select because the proposal "limit[s] the pool of candidates from which the Agency can draw . . . ." Id. Further, the Agency states that, contrary to the statement in the proposal, "the Agency does not have a 'continuing education program'" and notes that the "Union's reference is not otherwise explained." Id.
2. Union
The Union states that the first part of the proposal contains "factual or hortatory statements [which] do not interfere with" management's rights and that nothing in part 1 "would require filling vacancies by a limited group of employees . . . ." Union's Response at 39, 40. The Union contends that the remaining parts of the proposal constitute appropriate arrangements "for employees adversely affected by the exercise of the management right to require specialized (i.e., X-118) education and/or experience as a prerequisite to advancement" in the positions listed in the proposal. Id. at 40. According to the Union, employees are adversely affected by being "prevented from entering into administrative and professional positions irrespective of their tenure, performance level, or ability to succeed in the specified job series." Id.
Even assuming that the proposal interferes with management's rights, the Union argues that the interference is "slight." Id. at 41. The Union notes that the plain wording of the proposal requires only that: (1) management review the technical positions and does not require management to add duties or responsibilities to the positions; (2) management waive qualification requirements "where the [Agency] determines that can be done because there are acceptable prospects for successful on-the-job training"; and (3) recruitment be done through the continuing education program. Id.
The Union maintains that the proposal benefits management because "internal promotion rates . . . sav[e] the expense of recruiting, training, and developing persons without pre-existing experience and knowledge of the organization." Id. Moreover, the Union asserts that any interference with a management right is offset by the following benefits to employees: "increased advancement opportunities, personal development, more income, and improved employee morale and productivity." Id.
B. Analysis and Conclusions
1. Part 1 of Proposal 19 Does Not Directly Interfere with Management's Rights
Like the introductory statements in Proposals 17 and 18, part 1 of Proposal 19 consists of introductory statements to the proposal's requirements for corrective action. Therefore, for the reasons noted with respect to Proposals 17 and 18, we reject the Agency's argument that part 1 of Proposal 19 is not a proposal concerning the conditions of employment of bargaining unit employees.
The Agency argues that even assuming that part 1 of Proposal 19 is a proposal, part 1 is nonnegotiable because it: (1) "prescribes that the mission of the Agency will include a specific 'major initiative' of the Union's design"; (2) "dictates the types of positions (technical) to which employees should be assigned"; and (3) "requires that vacancies in the technical positions be filled by a limited group of employees." Agency's Statement of Position at 32. According to the Agency, these requirements "violate[] management's right to determine its mission, organization, assignees, select employees, and determine the types of positions within its organizational subdivision." Id.
We find that part 1 of Proposal 19 does not require the Agency to take any action inconsistent with management's rights. By merely stating that "a major initiative" of the Agency "is to provide" certain opportunities for certain employees, part 1 of Proposal 19 does not specify the actions that the Agency will take to implement that initiative. Further, although part 1 provides that backfilling certain vacancies from various positions "would provide a true upward mobility path[,]" part 1 does not require such backfilling to occur. Therefore, contrary to the Agency's arguments, we find that part 1 of Proposal 19 does not prescribe the Agency's mission, dictate the types of positions to which employees will be assigned, or require a limited group of employees to fill vacancies in technical positions. Accordingly, we reject the Agency's assertion that part 1 of the proposal directly interferes with management's rights.
2. Part 4 of Proposal 19 Does Not Directly Interfere with Management's Rights to Determine Its Organization or Assign Work
The Agency contends that part 4 of Proposal 19 directly interferes with management's rights to determine its organization and assign work because that portion of the proposal "'requires management to redesign jobs to create promotion opportunities . . . .'" Agency's Statement of Position at 33 (quoting Marine Corps Logistics Base, 29 FLRA at 1068).
In U.S. Marine Corps Logistics Base, the Authority found nonnegotiable a provision stating in part: "The Employer agrees to provide opportunities for employees to improve their skills through . . . other training programs including redesigning jobs . . . ." Id. Unlike the provision at issue in U.S. Marine Corps Logistics Base, part 4 of Proposal 19 requires the Agency to "review" current technical positions within an operational subdivision "with the purpose of" adding duties and responsibilities that may provide minimal X-118 experience for certain administrative and professional positions. The Union states that this portion of the proposal requires only that management review the technical positions and does not require management to add duties or responsibilities to the positions. We conclude that the Union's interpretation is consistent with the plain wording of the proposal. Although the proposal states that the review will be done for a stated purpose, the proposal does not require the Agency to take further action to achieve that purpose. Because the proposal does not require that action be taken to achieve the purpose, we find that part 4 of Proposal 19 does not directly interfere with management's rights to determine its organization or assign work under section 7106(a)(1) and (a)(2)(B) of the Statute.
3. Part 5 of Proposal 19 Does Not Directly Interfere with Management's Rights to Assign or Select Employees
Management's rights to assign employees and to select employees for appointment encompass the right to determine the requirements and qualifications necessary to perform the work of a position and the right to determine which employees meet those qualifications. Proposals that deprive management of this discretion directly interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to select employees for appointment under section 7106(a)(2)(C) of the Statute. American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 531 (1991) (Immigration and Naturalization Service) (Proposal 1, first sentence), petition for review filed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. June 25, 1991); Picatinny Arsenal, 35 FLRA at 1060-61. See National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041 (Proposal 5). Further, as we noted with respect to Proposal 6, an agency's right to assign work includes the right to assign employees to work-related training during duty hours. See Department of Veterans Affairs Medical Center; DMA.
Part 5 of Proposal 19 requires management, "where appropriate," to initially waive the X-118 experience requirement and to provide on-the-job training to satisfy that requirement.(7) We interpret the first portion of part 5 to require the Agency to waive the X-118 experience requirement where the Agency deems it is appropriate to do so. We find that this portion of part 5 preserves the Agency's discretion to determine which employees meet the qualifications for the positions covered by the proposal and, therefore, does not directly interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute or to select employees for appointment under section 7106(a)(2)(C) of the Statute.
Part 5 of Proposal 19 also requires the Agency to provide training to employees in the responsibilities of their jobs where appropriate. Although there is a direct connection between the training for employees required by part 5 and the duties of employees' positions, we find that this portion of part 5 does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because the Agency is only required to provide training where the Agency deems it is appropriate.
Accordingly, part 5 of Proposal 19 is negotiable.
4. Part 6 of Proposal 19 Excessively Interferes with Management's Right to Make Selections from Any Appropriate Source
As we noted with respect to Proposal 18, provisions or proposals that require management to fill vacancies from a single source directly interfere with management's right to make selections from any appropriate source. See Naval Air Station and U.S. Army Engineer District. Part 6 of Proposal 19 requires management to fill vacancies in GS-5-7 and GS-9-11 administrative and professional positions from the existing GS-5-7, 8-9, 10-11 technical positions within a specific operational division. Like Proposal 18, part 6 of Proposal 19 limits the sources from which management will make selections for positions. Because part 6 precludes management from selecting a candidate from outside the Agency when filling vacancies in GS-5 to 7 and GS-9 to 11 administrative and professional positions, and thereby dictates the source for selection to those positions, the proposal directly interferes with management's right to make selections from any appropriate source under section 7106(a)(2)(C) of the Statute.
We next turn to the question of whether part 6 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Applying the analytical framework set forth in KANG, we find that part 6 is an arrangement for employees adversely affected by the Agency's exercise of its right to select in such a way that certain employees were "prevented from entering into administrative and professional positions irrespective of their tenure, performance level, or ability to succeed in the specified job series." Union's Response at 40.
As to whether part 6 constitutes an appropriate arrangement, we note that part 6 completely bars management from selecting an outside candidate when filling vacancies in GS-5 to 7 and GS-9 to 11 administrative and professional positions. Therefore, for the reasons noted more fully with respect to Proposal 18, we find that the benefit to employees is outweighed by the burden placed on management's right to make selections from any appropriate source and, thus, part 6 is nonnegotiable.
Having found that part 6 is nonnegotiable because it excessively interferes with management's right to make selections from any appropriate source, we do not address the Agency's remaining arguments.
5. Part 7 of Proposal 19 Is Not Sufficiently Specific and Delimited
Part 7 of Proposal 19 states that should specific X-118 requirements be called for in certain job series, the Agency will recruit potential internal applicants for those positions "through the continuing education program." The Agency asserts, however, that "the Agency does not have a 'continuing education program . . . .'" Agency's Statement of Position at 36. The Union does not respond to the Agency's assertion and does not further explain the reference in the proposal to the "continuing education program."
We conclude that the Union has not sufficiently explained the term "continuing education program" and, therefore, we are unable to determine how part 7 of the proposal is intended to operate and whether it is consistent with law, rule, and regulation. Thus, part 7 is not sufficiently specific and delimited to permit a determination as to its negotiability. A petition for review which does not present a proposal sufficiently specific and delimited to enable the Authority to make a negotiability determination does not meet the conditions for review set forth in 5 U.S.C. § 7117(c) and 5 C.F.R. § 2421.1. National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Houston, Texas, 32 FLRA 1265 (1988). Accordingly, the petition for review as to part 7 of Proposal 19 is dismissed.
XVI. Proposal 20
Since selections from the pools for entry level administration/Professional positions and backfilling with Secretary/Clerical employees will offer a long range solution to many underrepresentation problems, as well as providing clear practical upward mobility paths, it is critically important that selecting officials fully utilize these internal applicant pools.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 20 "is not sufficiently specific and delimited so as to allow a negotiability determination." Agency's Statement of Position at 37. The Agency further contends that "if [Proposal 20] requires that management fill positions with internal applicants[,]" Proposal 20 directly and excessively interferes with management's rights to assign employees and to make selections from any appropriate source. Id.
2. Union
The Union argues that Proposal 20 states a "Corrective Action to be taken to reduce underrepresentation" in positions in the administrative, secretarial, and clerical series. Union's Response at 42. According to the Union, the requirement to "fully utilize" the internal applicant pools is explained in Proposals 21 through 27.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 20 is nonnegotiable.
As a preliminary matter, we find, contrary to the Agency's contention, that Proposal 20 is sufficiently specific and delimited so that we may make a negotiability determination.
Proposal 20 requires the Agency to "fully utilize" internal applicant pools. The Union specifically notes that "the requirement to 'fully utilize' those pools is explained in sub-sections [to] Proposal 20, namely, Proposals 21 through 27." Union's Response at 42. As the Union explains the term "fully utilize" as requiring the Agency to act in a manner that is consistent with the requirements of Proposals 21 through 27, the negotiability of Proposal 20 depends on whether Proposals 21 through 27 are negotiable. Therefore, if any one of those proposals is nonnegotiable, Proposal 20 would similarly be nonnegotiable because Proposal 20 requires the Agency to "fully utilize" internal applicant pools pursuant to the requirements of Proposals 21 through 27.
For the reasons noted in our discussion of Proposals 21, 23, and 24 below, those proposals are nonnegotiable. Because Proposal 20 would require the Agency to take action required by Proposals 21, 23, and 24, and because those proposals are nonnegotiable, we conclude that Proposal 20 is, therefore, nonnegotiable.
XVII. Proposal 21
a) Each office will be advised that entry level jobs in Professional/Administrative positions are bridge positions.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 21 is nonnegotiable for the same reasons as Proposal 13. That is, the Agency argues that, because Proposal 21 requires that entry-level positions in Professional/Administrative job series be bridge positions, the proposal directly interferes with management's right to determine its organization under section 7106(a)(1) of the Statute.
2. Union
The Union contends that Proposal 21 is negotiable for the same reasons as Proposal 13. That is, the Union argues that, because the Agency is required to remove barriers to employment where there is underrepresentation of minorities and women, the Agency has an affirmative obligation to bargain over the use of bridge positions to reduce that underrepresentation. The Union claims that the use of bridge positions is like the use of goals to reduce underrepresentation and that the proposal does not require the Agency to use bridge positions without taking its organizational needs into account.
B. Analysis and Conclusions
We find that Proposal 21 is nonnegotiable because it excessively interferes with management's rights under section 7106(a)(1) and section 7106(b)(1) of the Statute.
Proposal 21 requires that entry-level administrative and professional positions in all offices be bridge positions. The Union describes the use of bridge positions as being like the use of goals for reducing underrepresentation in that they do not mandate action. To the extent that the Union is claiming that Proposal 21 does not mandate the use of bridge positions, we find that the Union's statement is inconsistent with the wording of the proposal. As worded, Proposal 21 states that entry-level administrative and professional positions are bridge positions. The proposal does not establish an objective but, rather, specifically provides that entry-level positions are bridge positions.
In our disposition of Proposal 15 above we found that, because that proposal required the use of bridge positions, the proposal directly interfered with management's right to determine its organization under section 7106(a)(1) and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute. Consequently, because Proposal 21 would require entry-level administrative and professional positions in all offices to be bridge positions, we find, consistent with our disposition of Proposals 13 and 15, that Proposal 21 directly interferes with management's right to determine its organization under section 7106(a)(1) and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1).
Moreover, applying the analytical framework set forth in KANG and consistent with our disposition of Proposal 15, we find that Proposal 21 is an arrangement for employees adversely affected by management's exercise of its rights to hire and select. However, as distinguished from Proposal 15, we find that Proposal 21 excessively interferes with management's rights under section 7106(a)(1) and section 7106(b)(1).
In particular, we concluded that Proposal 15 did not excessively interfere with management's right to determine its organization under section 7106(a)(1) and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) because the burden of the requirement that management use bridge positions imposed by the proposals was outweighed by the benefits of increased upward mobility afforded employees by the proposals. Specifically, we found that the burden imposed on management by the requirement to use bridge positions was minimal because management retained the discretion to determine when and how to use those positions.
Proposal 21, on the other hand, requires that all entry-level administrative and professional positions in all offices be bridge positions. Proposal 21, therefore, requires management to designate as bridge positions all entry-level positions and would require the use of that type of position in all offices. Consequently, we find that Proposal 21 would preclude management from deciding that entry-level positions would not be bridge positions and from deciding that it would not use that type of position in any or all organizational subdivisions.
We find that the burden imposed by Proposal 21 on the exercise of management's rights under section 7106(a)(1) and section 7106(b)(1) outweighs the benefit to employees. We find, therefore, that Proposal 21 excessively interferes with management's rights under section 7106(a)(1) and section 7106(b)(1) of the Statute and conclude that Proposal 21 is not an appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we find that Proposal 21 is nonnegotiable.
XVIII. Proposal 22
b) Supervisory and training support will be provided to help trainees reach journeyman levels upon demonstration of acceptable performance.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 22 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because the proposal describes the type, duration, and frequency of training of employees. The Agency further argues that the proposal is not an appropriate arrangement because "trainees who can demonstrate acceptable performance are not 'adversely affected.'" Agency's Statement of Position at 38.
2. Union
The Union contends that Proposal 22 concerns on-the-job training, which "is an externally mandated part of the AEP." Union's Petition for Review at 10. The Union also contends that the proposal does not interfere with the Agency's right to assign work, but constitutes an appropriate arrangement.
B. Analysis and Conclusions
1. Proposal 22 Directly Interferes with the Agency's Right to Assign Work under Section 7106(a)(2)(B)
As we noted with respect to Proposal 6, an agency's right to assign work includes the right to assign employees to training during duty hours and the right to determine what type of training is appropriate.
Read in connection with Proposals 20 through 27, Proposal 22 requires the Agency to provide training for trainees in bridge positions to help the employees "reach journeyman levels . . . ." The training required by Proposal 22 would enable those employees to ultimately qualify for positions at the journeyman level. We find, therefore, that the training required by Proposal 22 is work-related training. By requiring such training, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Department of Veterans Affairs Medical Center.
2. Proposal 22 Is an Appropriate Arrangement under Section 7106(b)(3) of the Statute
Applying the analytical framework set forth in KANG, we find that the proposal constitutes an appropriate arrangement. The Union states that the proposal is designed to address underrepresentation in administrative and professional positions that resulted from the Agency's exercise of its rights to hire and select. See Union's Response at 18. As we noted in our discussion of Proposal 15, bridge positions are an arrangement for employees adversely affected by the exercise of management's rights to hire and select and the underrepresentation that may result from the exercise of those rights. We also noted that, by their nature, such positions ameliorate these adverse effects by allowing employees to gain experience and training necessary to qualify for entry into administrative and professional positions.
By requiring management to train employees in bridge positions to enable them to reach journeymen levels, Proposal 22 mitigates the adverse effects that may result from management's hiring and selection decisions by providing employees in bridge positions with training to enable them to qualify for promotional opportunities at the journeyman level. We find, therefore, that Proposal 22 is intended as an arrangement for employees adversely affected by the exercise of management's rights to hire and select within the meaning of section 7106(b)(3) and the underrepresentation at journeyman levels that may result.
We note the Agency's claim that the proposal does not address the adverse effects on employees because "trainees who can demonstrate acceptable performance are not 'adversely affected.'" Agency's Statement of Position at 38. The Agency's argument is misplaced. As we noted above, Proposal 22 mitigates the adverse effects of management's exercise of its rights to hire and select, particularly the resultant underrepresentation of certain groups at journeyman-level administrative and professional positions. The proposal is intended to assist employees from underrepresented groups to develop the skills that would enable them to advance to the journeyman level of administrative and professional positions. Therefore, we find, contrary to the Agency's argument, that the proposal addresses the adverse effects on employees of management's exercise of its rights to hire and select individuals for administrative and professional positions. Accordingly, we find that, under KANG, the proposal constitutes an arrangement.
We turn, then, to the question of whether Proposal 22 constitutes an appropriate arrangement or whether it excessively interferes with management's right to assign work. Proposal 22 applies after the Agency has made a decision to fill a bridge position. The proposal requires the Agency, after it has exercised its discretion and has filled positions with employees from underrepresented groups, to provide those employees with training to ensure that they progress satisfactorily to the journeyman level. The proposal is broadly worded so that the Agency retains the discretion to determine the precise content of the training as well as when, where, and how often training will be provided. Moreover, the proposal does not specify the type of training that the Agency must provide, such as formal classes or on-the-job training. Finally, the proposal does not dictate the scheduling of training or specify who is to provide the training.
Proposal 22 benefits employees by enabling them, with training, to remove barriers to their progress to the journeyman level. The proposal achieves this benefit by requiring management to provide training to employees from underrepresented groups so that the employees may reach the journeyman level.
We conclude that the benefit to employees of having assistance provided for their job progress outweighs the burden the proposal imposes on management's right to assign work by providing training. Therefore, we find that Proposal 22 does not excessively interfere with management's right to assign work.
Accordingly, because we find that Proposal 22 does not excessively interfere with management's right to assign work under section 7106(a)(2)(B), we conclude that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 836-38 (1991) (proposal requiring the agency to provide job-related training constituted an appropriate arrangement under section 7106(b)(3) of the Statute).
XIX. Proposal 23
c) Internal applicants will be utilized at appropriate grade levels rather than external recruitment at usually higher grade levels.
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 23 directly interferes with the Agency's right to hire under section 7106(a)(2)(A) of the Statute and its right to select under section 7106(a)(2)(C) of the Statute because what the proposal "is seeking is the selection of internal applicants before any external applicants can be selected." Agency's Statement of Position at 39. The Agency notes that the proposal "is not written in terms of a 'goal' . . . ." Id. Further, the Agency argues that the proposal "seeks to determine the grade levels of Agency employees" and thereby directly interferes with management's right to determine its organization under section 7106(a)(1) of the Statute and its right to determine the grade levels of Agency employees under section 7106(b)(1) of the Statute. Id.
2. Union
The Union contends that Proposal 23 "state[s] goals of the AEP and do[es] not mandate the achievement of the enumerated actions." Union's Response at 43. The Union states that "appropriate" means that:
within the AEP's purpose of reducing underrepresentation, [the Agency will] have as a goal the internal recruitment of employees for vacancies the employer determines to fill, at a lower grade of an established career ladder, provided doing so is consistent with the grade level of work required by the [Agency's] mission.
Id.
B. Analysis and Conclusions
We find that Proposal 23 directly and excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute.
Provisions or proposals that require management to fill vacancies from a single source directly interfere with management's right to select from any appropriate source. See Naval Air Station, 43 FLRA at 35-36 (Provision 3) (a provision stating that it was the employer's policy, "where possible," to promote from within was found to directly interfere with management's right to select from any appropriate source); U.S. Army Engineer District, 32 FLRA at 357 (1988) (Provisions 3 and 4) (provisions requiring the agency to fill vacancies from internal candidates in classifications where a surplus of employees existed were found to directly interfere with management's right, in filling vacancies, to select from any appropriate source).
We interpret Proposal 23 to mean that, when considering applicants for entry-level administrative or professional positions, the Agency will select an internal applicant for the position who can be placed in an appropriate grade level for the position, rather than recruit from outside the Agency and fill the position at a higher grade level. The effect of Proposal 23 is to preclude management from selecting candidates from outside the Agency when an internal candidate is available who can be placed in an appropriate grade level for the position. As did the proposals in Naval Air Station and U.S. Army Engineer District, Proposal 23 in this case limits the sources from which management will make selections for positions. Because the proposal precludes management from "utilizing," that is, selecting, a candidate from outside the Agency when there is an internal applicant for a position who can be placed in an appropriate grade level for the position, and thereby dictates the source for selection, the proposal directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute.
The Union claims that Proposal 23 "state[s] goals of the AEP and do[es] not mandate the achievement of the enumerated actions." Union's Response at 43. However, Proposal 23 is not worded in terms of "goals" but clearly states that internal applicants "will be utilized . . . rather than external recruitment[.]" Therefore, we find that the Union's claim is inconsistent with the plain wording of the proposal. Because the Authority does not base a negotiability determination on a statement of intent which is inconsistent with a proposal's plain wording, we reject the Union's claim. See U.S. Department of Agriculture.
Having found that Proposal 23 directly interferes with management's right to select from any appropriate source, we next consider, applying the analytical framework set forth in KANG, the Union's argument that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Even assuming that Proposal 23 is an arrangement, we find that the proposal excessively interferes with management's right to select from any appropriate source and, therefore, is not an appropriate arrangement. Proposal 23 requires that when there is an internal applicant for a position who can be placed in an appropriate grade level for the position, management is to select that applicant at an appropriate grade level, rather than recruit from outside the Agency at a higher grade level. The proposal benefits employees by eliminating competition from outside the Agency for entry-level administrative or professional positions. The proposal provides this benefit, however, by preventing management from recruiting candidates, including candidates from underrepresented groups, from outside the Agency whenever there is an internal applicant who can fill the position at an appropriate grade level. Therefore, the proposal precludes management from selecting an outside candidate except in narrow circumstances.
Because management is barred from selecting an outside candidate for entry-level administrative or professional positions except in narrow circumstances, we find that the benefit to employees is outweighed by the burden placed on management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. Accordingly, we find that Proposal 23 excessively interferes with management's right to select from any appropriate source and is nonnegotiable.
Having found that Proposal 23 excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute, we need not address the Agency's additional arguments on the negotiability of the proposal.
XX. Proposal 24
d) Internal selectees who fail to reach satisfactory performance may return to their prior or comparable position.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 24 directly and excessively interferes with its rights, under section 7106(a)(2)(A) of the Statute, to assign employees, reduce employees in grade or pay, or take other disciplinary action. The Agency states that the language of the proposal, specifically the word "may," is used in the sense of requiring that all unsuccessful applicants be permitted to return to their prior or to a comparable position. Therefore, the Agency argues that the proposal would require it to "return an unsatisfactory performer to his/her previous position, or a comparable one, rather than taking any other action which the Agency determines appropriate . . . ." Agency's Statement of Position at 40. In support of its position, the Agency relies on American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Council and U.S. Immigration and Naturalization Service, 27 FLRA 467, 480-82 (1987) (Immigration and Naturalization Service) and National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel, 18 FLRA 320 (1985).
The Agency also contends that Proposal 24 is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency argues that employees are not adversely affected by the exercise of management's right to assign employees under section 7106(a)(2)(A). The Agency also asserts that: (1) satisfactory performance in the new position is a matter that is within the control of the selected employees; and (2) there is no indication in the proposal that employees selected for the new positions would be unqualified to perform the work of those positions.
2. Union
The Union asserts that the language contained in Proposal 24 is clear. The Union contends that the proposal constitutes an appropriate arrangement, under section 7106(b)(3) of the Statute, "for employees adversely affected by the . . . underrepresentation of minorit[ies] and women in the positions described in Proposal 20." Union's Response at 44. The Union argues that any interference with management's exercise of its section 7106(a) rights is limited because the Agency still retains the right to assess the performance of, and to promote, the selected employees. According to the Union, the proposal does not require the Agency to hold the employees' former positions open for them. The Union states that Proposal 24 only requires that "somewhere within [the] organization, the employee be offered a position comparable in grade to the position from which the promotion occurred." Id.
The Union disputes the Agency's argument that the proposal concerns matters solely within the control of the employees. The Union argues that Proposal 24 does not prevent the Agency from evaluating the performance of the selected employees. Further, the Union states that "the inability of an individual employee . . . to perform satisfactorily is a possibility that [F]ederal sector employers are required to take as an inherent part of MD-714[.]" Id. at 45.
B. Analysis and Conclusions
We conclude that Proposal 24 is nonnegotiable because it excessively interferes with the exercise of management's rights under section 7106 of the Statute.
1. The Proposal Directly Interferes with Management's Right to Assign Employees
Proposal 24 concerns the positions referenced in Proposal 20. Proposal 20 specifically applies to entry-level administrative and professional positions. Proposal 21 requires that the entry level administrative and professional positions referenced in Proposal 20 be bridge positions. We find, therefore, that Proposal 24 concerns the rights of internal candidates who are selected for entry-level administrative and professional bridge positions. The proposal requires the Agency to return the selected employees to their former positions, or comparable positions, if those employees fail to attain satisfactory performance levels in those entry-level bridge positions.
An agency's right to assign employees under section 7106(a)(2)(A) includes the discretion to determine which employees will be assigned to a particular position. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 50-51 (1991) (Treasury, Office of Chief Counsel) (Provision 10) (provision requiring the agency to attempt to place employees returning from leaves of absence in their former position, or in a comparable position, directly interfered with management's right to assign employees under section 7106(a)(2)(A)), decision on reconsideration as to other matters, 40 FLRA 849 (1991), petition for review filed sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25, 1991)). See also Immigration and Naturalization Service. In Treasury, Office of Chief Counsel, the Authority found that, by requiring management to place employees returning from a leave of absence in their former position or a comparable position, the provision restricted the agency's ability to determine which employee would be assigned to a position. See Treasury, Office of Chief Counsel, 39 FLRA at 51.
Similarly, Proposal 24 requires the Agency to return selectees to their prior positions, or a comparable position, if those employees fail to perform satisfactorily. Because the proposal restricts the Agency's ability to determine which employee will be assigned to a position, we find, consistent with Treasury, Office of Chief Counsel, that Proposal 24 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.
2. The Proposal Is Not an Appropriate Arrangement under Section 7106(b)(3)
In determining whether a proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute, we apply the analytical framework set forth in KANG. As to whether Proposal 24 constitutes an arrangement for employees adversely affected by the exercise of a management right, the Union argues that the proposal would benefit "employees adversely affected by the . . . underrepresentation of minorit[ies] and women" in administrative and professional positions. Union's Response at 44. We find, in agreement with the Union, that the proposal would benefit women and minority employees who are adversely affected by management's exercise of its right to select by choosing candidates other than women and minorities for administrative and professional positions and by any underrepresentation in those positions that results. The proposal would benefit women and minority employees who are selected for entry-level administrative and professional bridge positions by providing that those employees will be returned to their former positions, or comparable positions, if their performance in the new positions is not satisfactory.
We note that under 5 U.S.C. §§ 4302(b)(6) and 4303, and 5 C.F.R. § 430.204(j), an agency is authorized to reassign, reduce in grade, or remove an employee whose performance is unacceptable. Consequently, the proposal would protect the affected employees by requiring that they be reassigned, rather than disciplined, for less than satisfactory performance. We find, therefore, that Proposal 24 is an arrangement, within the meaning of section 7106(b)(3), for employees adversely affected by the exercise of management's right to select.
As to whether the proposal is an appropriate arrangement, we note that Proposal 24 concerns the performance of employees in administrative and professional bridge positions. The nature of those positions means that the employees who have been selected for those positions lack the requisite training and experience that would otherwise qualify them for selection. Consequently, there is a risk of marginal or unacceptable performance in those positions that is a result of that lack of training or experience. The benefit afforded employees by Proposal 24, therefore, is that the proposal reassures employees that they can attempt to move into administrative and professional bridge positions without risking the loss of their current position if they are unable to perform at a satisfactory level in those positions.
However, we find that Proposal 24 imposes a significant burden on the exercise of management's right to assign employees under section 7106(a)(2)(A). Under the terms of Proposal 24, the Agency would be required to reassign all employees selected for entry-level administrative or professional bridge positions whose performance in those positions is less than satisfactory to their former, or to comparable, positions. The proposal would require the reassignment of those employees to their former, or to comparable, positions regardless of whether there are vacant positions available or whether management wishes to fill any vacant positions or whether the employees are qualified for comparable positions in which there are vacancies. We find, therefore, that Proposal 24 imposes a significant burden on management's right, under section 7106(a)(2)(A), to assign employees by requiring management to place employees in their prior positions, or in comparable positions, without consideration as to whether there are vacancies in their previous positions or whether management wishes to fill vacant positions or whether they are qualified for comparable vacant positions.
On balance, we find that the benefit afforded by the proposal to employees who are selected for entry-level administrative and professional bridge positions, but who are unable to perform at a satisfactory level in those positions, is outweighed by the burden imposed by the proposal on management's ability to assign employees to positions. The absolute guarantee of reassignment is a significant limitation on management's discretion to determine which employee to assign to a position. Consequently, we find that the proposal excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. We find, therefore, that Proposal 24 is not an appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we conclude that Proposal 24 is nonnegotiable.
XXI. Proposal 25
e) Individuals from the identified pools will be given first preference for all entry level positions in these bridge series.
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 25 directly and excessively interferes with management's right to select from any appropriate source because the proposal requires "'first' or 'preferential' consideration" of employees in identified pools. Agency's Statement of Position at 40-41 (citing Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (Treasury, BATF), reversing National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987) (Proposal 2) (Chairman Calhoun dissenting)).
2. Union
The Union states that Proposal 25 "merely provides that prior to making the selection, the [Agency] will consider the minorities and women in the identified pools of underrepresented internal applicants before determining whether to select from that pool." Union's Response at 45-46. Therefore, the Union contends that the proposal does not directly interfere with management's right to select but is a procedure that the Agency would observe when exercising that management right.
B. Analysis and Conclusions
We find that Proposal 25 does not directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute and is a negotiable procedure.
A proposal that requires first consideration of employees within a bargaining unit when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining unit employees have been considered, does not directly interfere with management's right to select from any appropriate source. American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128, 1132 (1990) (Proposal 2) (Naval Weapons Station). Such a proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute. National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1288 (Proposal 1) (Nuclear Regulatory Commission).
The Union explains that, in stating that certain individuals are to be given first preference, Proposal 25 requires the Agency to give first consideration to minorities and women in identified pools of internal applicants when selecting candidates for entry-level administrative or professional positions. We find that the Union's statement of intent is consistent with the plain wording of the proposal, and, therefore, we will adopt the Union's interpretation of the proposal. Although Proposal 25 requires the Agency to give first consideration to certain bargaining unit candidates, the proposal would not prevent the Agency from concurrently soliciting candidates from other appropriate sources. Compare Treasury, BATF, 857 F.2d at 820-23 (a proposal that prohibited the agency from soliciting applications from outside the agency until it had finished ranking and considering eligible agency applicants placed a substantive limit on management's right to select employees from any appropriate source and was nonnegotiable).
Proposal 25 would not prevent the Agency from simultaneously processing or considering applications from outside the Agency and places no substantive limit on the Agency's right to select employees from any appropriate source under section 7106(a)(2)(C) of the Statute. Accordingly, we find that the Agency's reliance on Treasury, BATF is misplaced and that Proposal 25 does not directly interfere with management's right to select, but constitutes a procedure under section 7106(b)(2) of the Statute. See Nuclear Regulatory Commission. Therefore, the proposal is negotiable.
XXII. Proposal 26
f) Every posting of such bridge positions will be identified as "bridge." Notification will be given to the Union within 10 working days of the selectee identified by position of origin and EEO Group status.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 26 is nonnegotiable for the reasons stated with respect to Proposal 13. The Agency argues that, if the Authority determines that Proposal 13 is nonnegotiable, Proposal 26 should also be nonnegotiable because it depends on, or is related to, a nonnegotiable proposal. In support, the Agency cites American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1029 (1988), review denied mem. sub nom. American Federation of Government Employees Council 213 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988).
2. Union
The Union asserts that Proposal 26: (1) applies only in circumstances in which underrepresentation has been identified; and (2) concerns the goal of reducing underrepresentation through the use of bridge positions. The Union states that "even the goal of using bridge positions for that purpose would not require the [Agency] to do so in a particular promotion or selection action, and would not require the [Agency] to structure its organization by utilizing particular bridge positions." Union's Response at 46-47.
B. Analysis and Conclusions
We conclude that Proposal 26 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.
Proposal 26 concerns the posting of bridge positions. The proposal simply requires the Agency to identify each bridge position as a bridge position when that position is posted.
We reject the Agency's claim that the proposal directly interferes with its right to determine its organization under 7106(a)(1) of the Statute and with its right to determine the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty under section 7106(b)(1). The Agency has not demonstrated, and it is not otherwise apparent from the record, that Proposal 26 places any limitation on the exercise of any management right under section 7106 of the Statute.
The proposal does nothing more than require the Agency to identify positions designated as bridge positions when they are posted. Accordingly, because Proposal 26 merely requires the Agency to identify positions as bridge positions when those positions are posted, we find that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.
XXIII. Proposal 27
g) The Administration will assure that vacancies to be filled will be accomplished through bridge positions to eliminate underrepresentation.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 27 is nonnegotiable for the reasons stated with respect to Proposal 19. Further, because Proposal 27 requires that vacancies be filled, the Agency also argues that the proposal directly and excessively interferes with management's rights to hire and assign employees and to make selections from any appropriate source under sections 7106(a)(2)(A) and 7106(a)(2)(C)(ii) of the Statute. The Agency states that the proposal limits "the pool of candidates for any and all vacancies in the Administrative and Professional series at the Grade 5 through 11 levels to 'technical' employees in the Division of Medicare Operations Support (DMOS), without regard to whether such employees qualify or are eligible for the vacancies." Agency's Statement of Position at 35. In support, the Agency cites Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306 (1987) and Bureau of Engraving and Printing.
The Agency also contends that Proposal 27 directly interferes with its right to determine the numbers, types, and grades of employees or positions under section 7106(b)(1) of the Statute. In support, the Agency cites District No. 1, Pacific Coast District, Marine Engineers Beneficial Association and Panama Canal Commission, 26 FLRA 390 (1987).
The Agency asserts that the meaning that the Union attributes to the term "accomplish" as used in Proposal 27 is unclear. According to the Agency, however, "it is apparent that the Union is seeking to ensure that all Agency vacancies will be designated, and filled at grade levels consistent with the designation, as 'bridge' positions." Id. at 42.
2. Union
The Union contends that Proposal 27 is negotiable for the reasons stated with respect to Proposals 20 and 26. The Union also argues that Proposal 27 concerns the goal of reducing underrepresentation. The Union asserts that "even the goal of using bridge positions for that purpose would not require the [Agency] to do so in a particular promotion or selection action, and would not require the [Agency] to structure its organization by utilizing particular bridge positions." Union's Response at 46-47.
B. Analysis and Conclusions
We conclude that Proposal 27 does not excessively interfere with management's right to determine its organization under section 7106(a)(1) of the Statute and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1).
Proposal 27 requires the Agency to "assure" that bridge positions will be used to fill vacant positions. The Union explains that the proposal requires the Agency to use bridge positions to fill vacant positions, but does not require the use of those positions in any given promotion or selection action or to achieve any particular organizational structure. The Union's explanation is consistent with the wording of the proposal and we will adopt that explanation for purposes of this decision. Consequently, we find that, while the proposal requires the Agency to use bridge positions, the proposal does not require the Agency to use bridge positions to fill all vacant positions. Rather, the proposal allows the Agency discretion as to when and how to use bridge positions in filling vacant positions for the purpose of eliminating underrepresentation.
1. Proposal 27 Directly Interferes with Management's Right to Determine Its and Its Right to Determine the Types of Positions Assigned to an Organizational Subdivision under Section 7106(b)(1)
In our analysis of Proposal 13, we noted that the decision to create bridge positions is a matter that is within an agency's discretion under section 7106(a)(1) and section 7106(b)(1) of the Statute. Further, because Proposal 15 required management to use bridge positions as one way to reduce underrepresentation, we found that that proposal directly interfered with management's right to determine its organization under section 7106(a)(1) and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute. By requiring the Agency to use bridge positions to fill vacant positions, Proposal 27 likewise requires the Agency to create bridge positions. Consequently, consistent with our disposition of Proposal 15, we find that Proposal 27 directly interferes with management's right to determine its organization under section 7106(a)(1) and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute.
2. Proposal 27 Does Not Excessively Interfere with Management's Rights to Determine Its Organization or to Determine the Types of Positions Assigned to an Organizational Subdivision
Applying the analytical framework set forth in KANG, and consistent with our disposition of Proposals 15 and 21, we find that Proposal 27 is an arrangement for any adverse effects on employees that result from management's exercise of its rights to hire and select. However, consistent with our disposition of Proposal 15, and as distinguished from Proposal 21, we find that Proposal 27 is an appropriate arrangement.
In particular, we concluded that Proposal 15 did not excessively interfere with management's right to determine its organization under section 7106(a)(1) and its right to determine the types of positions assigned to an organizational subdivision under section 7106(b)(1) because the burden of the proposal on management's ability to structure its workforce to accomplish the Agency's workload was minimal and did not outweigh the benefits to employees of increased upward mobility. Specifically, we found that, although Proposal 15 required the Agency to use bridge positions as one way of filling vacant positions, the proposal allowed management discretion to decide when and how those positions would be used.
By requiring the Agency to "assure" that it will use bridge positions, Proposal 27, like Proposal 15, would impose a burden on management's ability to organize its workforce to accomplish the Agency's mission and its decision as to the types of employees it will use to accomplish the Agency's work. However, as we found above, Proposal 27 does not require the use of bridge positions to fill all, or any particular, vacant positions, but preserves managment's discretion to decide when and how to use bridge positions when filling vacant positions. Consistent with our disposition of Proposal 15, therefore, we find that the burden imposed by Proposal 27 on management's rights under sections 7106(a)(1) and 7106(b)(1) is minimal and is outweighed by the benefits of increased opportunities for upward mobility afforded employees through the use of bridge positions. Consequently, we conclude that Proposal 27 does not excessively interfere with management's rights under sections 7106(a)(1) and 7106(b)(1) of the Statute and that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3).
We note that Proposal 27 is distinguishable in effect from Proposal 21, which required the Agency to fill all entry-level administrative and professional positions with bridge positions and which we found to require the use of bridge positions as the exclusive instrument for filling entry-level administrative and professional positions. Because Proposal 27 preserves management's discretion to decide when and how to use bridge positions, the proposal would not preclude management from deciding that vacant positions would not be bridge positions and that it would not use that type of position in an organizational subdivision. We find, therefore, that the burden imposed by Proposal 27 on the exercise of management's rights under section 7106(a)(1) and section 7106(b)(1) is more limited than the burden imposed on those rights by Proposal 21.
Accordingly, we find that Proposal 27 is negotiable.
XXIV. Proposal 29
D) MINORITIES RECEIVE PROPORTIONATELY FEWER OUTSTANDING APPRAISALS AND AWARDS THAN NON-MINORITIES WHICH ADVERSELY IMPACTS THEIR ABILITY TO COMPETE FOR PROMOTIONS AND CAREER ADVANCEMENT.
Corrective Action:
The Union and Management agree to waive contractual and other obligations to facilitate minorities inclusion on BQLs [Best Qualified Lists]. Those minorities who apply and meet X-118 qualifications will not be excluded from BQLs on the basis of appraisal and award points.
A. Positions of the Parties
1. Agency
The Agency contends that the first portion of Proposal 29 is a factual statement that does not constitute a proposal. The Agency contends that the remainder of Proposal 29 is nonnegotiable because: (1) the Union is seeking to renegotiate the terms of an existing collective bargaining agreement; (2) the proposal is not sufficiently delimited as the Union offers no explanation as to what "other obligations" the Union wishes to have waived; (3) the proposal is inconsistent with merit system principles under 5 U.S.C. § 2301; (4) the proposal precludes the Agency from considering appraisals in conjunction with the selection process in conflict with 5 U.S.C. § 4302(a)(3) and with management's rights under section 7106(a)(2)(A) and (B) of the Statute.
2. Union
The Union maintains that corrective action is required by the parties' agreement but that "the kind of corrective action which is taken must be agreed to by [the Union and the Agency] in order to modify the terms of an effective agreement." Union's Response at 48. The Union states that:
[w]here other established selection criteria (experience, education, and training) would place an individual who is in an underrepresented group on the Best Qualified List, that individual will be included on the Best Qualified List without regard to the individual's performance appraisal or awards.
Union's Petition for Review at 12.
According to the Union, the proposal "is procedural and does not mandate that the [Agency] select any particular individual on the Best Qualified List for promotion." Union's Response at 48-49.
B. Analysis and Conclusions
1. Preliminary Matter
For the reasons stated more fully with respect to Proposals 17 and 18, we conclude that the portions of Proposal 29 containing factual statements are properly considered as part of the proposal.
2. The Portion of Proposal 29 Requiring the Parties to Waive Contractual and Other Obligations Is Negotiable in Part
Proposal 29 requires the Union and management to agree to waive contractual and other obligations to facilitate the inclusion of minorities on Best Qualified Lists. The Agency argues that through this portion of Proposal 29, the Union is seeking to renegotiate the terms of an existing collective bargaining agreement by requiring the Agency to waive contractual obligations which it has not agreed to waive.
The Agency's argument as to whether it must bargain over waiving any contractual rights addresses the Agency's duty to bargain in specific circumstances, not the negotiability of the proposal. To the extent that there are issues in dispute between the parties regarding the duty to bargain in the specific circumstances of this case, these issues may be pursued in the context of other appropriate proceedings, such as unfair labor practice proceedings. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 44 FLRA 356, 359 (1992), petition for review filed sub nom. U.S. Department of Veterans Affairs v. FLRA, No. 92-**** (D.C. Cir. May 12, 1992); International Federation of Professional and Technical Engineers, Local 12 and Department of the Navy, Puget Sound Naval Shipyard, 24 FLRA 178, 179 (1986). Accordingly, in the context of this negotiability decision, we will not consider the Agency's argument on waiver.
The Agency further argues that the proposal is not sufficiently delimited because the Union offers no explanation as to what "other obligations" the Union wishes to have waived. The Union does not explain, and we are unable to determine, the meaning of "other obligations" noted in the proposal. Waiving "other obligations" could include disregarding requirements imposed by law or Government-wide regulation. If the proposal is interpreted in this manner, it would be contrary to law and regulation. We are unable to determine the meaning of the phrase "other obligations." Therefore, we conclude that the Union has not sustained its burden of creating a record which is sufficient for the Authority to make a negotiability determination. See U.S. Department of Education, 38 FLRA at 1107. Because the Union requested that we "sever any language" that may be nonnegotiable, we will dismiss the portion of Proposal 29 relating to the waiver by management and the Union of "other obligations." Union's Response at 7. We will next consider the remainder of the proposal.
3. The Portion of Proposal 29 Relating to Management's Use of Performance Awards and Appraisals Is Negotiable
The Agency argues that the portion of Proposal 29 stating that management will not use performance appraisals or awards to exclude minorities from Best Qualified Lists is nonnegotiable because the proposal: (1) is inconsistent with merit system principles; (2) precludes the Agency from considering appraisals in conjunction with the selection process in conflict with 5 U.S.C. § 4302(a)(3); and (3) conflicts with management's rights under section 7106(a)(2)(A) and (B) of the Statute.
We reject the Agency's argument that the proposal is inconsistent with merit system principles under 5 U.S.C. § 2301. The Authority has held, on the basis of the legislative history of the Civil Service Reform Act of 1978, that a merit system principle alone is not a basis on which the Authority will find a proposal nonnegotiable as conflicting with law. National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 854-55 (1991). A proposal that implicates a merit system principle is nonnegotiable only if it is established that the proposal conflicts with a law, rule or regulation implementing or directly concerning the merit system principle. For example, Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, AFL-CIO, Local 1364, 35 FLRA 754, 761-62 (1990); National Treasury Employees Union and Internal Revenue Service, 21 FLRA 730 (1986). The Agency has failed to refer to any regulation implementing merit system principles with which the proposal is inconsistent. Therefore, we reject the Agency's argument that Proposal 29 is nonnegotiable because it is inconsistent with merit system principles under 5 U.S.C. § 2301.
We also reject the Agency's argument that the proposal conflicts with 5 U.S.C. § 4302(a)(3) by precluding management from considering appraisals in conjunction with the selection process. Under 5 U.S.C. § 4302(a)(3), each agency must develop one or more appraisal systems which "use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees . . . ." As stated by the Union, Proposal 29 requires only that:
[w]here other established criteria (experience, education, and training) would place an individual who is in an underrepresented group on the Best Qualified List, that individual will be included on the Best Qualified List without regard to the individual's performance appraisal or awards.
Union's Response at 48. The proposal does not relate to what action the Agency may take regarding candidates who are on the Best Qualified List. Therefore, the proposal does not limit management's ability to use the performance appraisals of candidates on the Best Qualified List as a basis for promoting employees. Further, there is no indication that the proposal conflicts with 5 U.S.C. § 4302(a)(3) in any other manner. Accordingly, we conclude that the Agency's argument that Proposal 29 conflicts with 5 U.S.C. § 4302(a)(3) is without merit.
Finally, we must determine whether this portion of Proposal 29 is consistent with management's rights. Under section 7106 of the Statute, agencies retain the right to determine the qualifications of a position and the skills and job-related individual characteristics needed to perform the work. This authority is encompassed in the rights to assign employees and work under section 7106(a)(2)(A) and (B). See National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1187 (1991) (Fort Jackson) (proposal preventing the agency from implementing what the agency determined was a qualification for a position excessively interfered with management's rights to assign employees and work). Moreover, an agency's right to determine personnel requirements is not limited to qualifications specifically set forth in OPM's X-118 Qualifications Standards. See National Federation of Federal Employees, Local 738 and Department of the Army, Headquarters, USA Medical Department Activity, Fort Leonard Wood, Missouri, 34 FLRA 809, 812-14 (1990) (Fort Leonard Wood) (proposal preventing the agency from implementing a qualification requirement was nonnegotiable despite the fact that the proposal did not eliminate the OPM X-118 qualifications).
The Agency argues that Proposal 29 directly interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute. The proposal prevents the Agency from determining that individuals must have a specific rating to qualify for inclusion on the Best Qualified List. We find that by preventing the Agency from making such determinations, the proposal precludes the Agency from establishing certain appraisal ratings as qualifications for selecting individuals for a position. Accordingly, we find that the proposal directly interferes with management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute. See Fort Jackson and Fort Leonard Wood.
We next determine whether the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The proposal addresses the adverse effects on employees of management's exercise of its rights to hire and select and of any underrepresentation that may have resulted. The proposal also addresses the adverse effects on employees flowing from management's exercise of its right to appraise the performance of employees, that is, management's rights to direct employees and assign work. In this regard, the proposal ensures that individuals from underrepresented groups, who would otherwise be qualified for inclusion on Best Qualified Lists for certain positions, will not be excluded from Best Qualified Lists based on performance ratings or awards. Accordingly, the proposal is an arrangement for employees adversely affected by management's exercise of its rights to direct employees and assign work as well as its rights to hire and select.
Further, we find that the proposal is an appropriate arrangement. The proposal benefits employees by providing that individuals from underrepresented groups who would have been excluded from Best Qualified Lists based on their appraisal ratings or lack of awards will be included on the lists. The proposal imposes a burden on management by increasing the number of individuals on Best Qualified Lists and thereby requiring the Agency to compare and consider more candidates. We note, however, that the Agency does not contend that it may include only a specific or limited number of individuals on Best Qualified Lists. Therefore, the proposal does not prevent the Agency from implementing other qualification requirements for positions or placing a candidate on a Best Qualified List based on the candidate's ability to meet those additional qualifications. Further, nothing in the proposal or in the Union's statement of intent indicates that the Agency may not use performance ratings for purposes other than determining who to include on Best Qualified Lists. Accordingly, we find that the benefit to employees of being included on Best Qualified Lists for certain positions outweighs the burden on management. Therefore, this portion of Proposal 29 is an appropriate arrangement.
Consequently, apart from the portion requiring the parties to waive "other obligations," Proposal 29 is negotiable.
XXV. Proposal 30
E) [1] EMPLOYEE COMPLAINTS OF ALLEGED DISCRIMINATION ARE NOT PROCESSED WITHIN A REASONABLE TIME FRAME.
Corrective Action:
An Employee or designated representative may contact the Equal Employment Office to request pre-complaint EEO Counseling. [2] The EEO shall maintain a log of counseling requests and record the name of the employee and the initial date of contact.
The EEO shall assign a counselor within 2 workdays of the initial contact and notify the employee/representative of the name of the counselor and telephone number. [3] The Administration shall insure that the initial interview occurs within 1 workday unless other arrangements have been mutually agreed to by the employee/representative.
[4] The Administration will insure that the investigation of a formal complaint will begin within 30 days of the date that the complaint was filed.
[5] The final investigative report shall be issued within 60 days of the date that the complaint was formally filed.
Upon receipt of the investigative file the Administration shall provide a copy to the complainant and a copy to the representative, if applicable, within 5 workdays of receipt by the Administration.
At the expiration of the comment period including any extensions, the Administration shall have a settlement meeting with the complainant/representative within 30 calendar days, this time line may be modified by mutual consent.
Within 5 calendar days the Administration shall notify the complainant and his representative of the Administration's position as to any proposed settlement decisions.
If the complaint remains unsettled the Administration shall have 45 calendar days to issue its proposed disposition in accordance with EEOC/HHS rules and regulations.
If the complainant does not accept the proposed disposition and exercises his or her appeal rights, the Administration shall forward the entire file to the Department for appropriate action within 10 calendar days.
[6] If a hearing is requested the Department shall transmit the file to the appropriate EEOC office within 10 calendar days. [7] If a decision without hearing is requested the Administration and/or Department shall issue said decision within 30 calendar days.
[8] When the EEOC transmits the recommended decision to the Department/HCFA the Department/HCFA shall have 60 days to issue the Final Agency Decision (FAD).
If the above time frames are not met, the Administration will provide written explanation to the complainant and representative. Should the delay be attributed to Agency personnel or factors within the control of the Agency corrective measures will be taken to insure compliance with the above time frames.
[Only the underlined portions are in dispute. The disputed sentences in this proposal have been numbered for the convenience of the reader.]
A. Positions of the Parties
1. Agency
The Agency contends that sentence 1 constitutes a factual statement that is either true or false rather than a proposal concerning conditions of employment.
The Agency states that sentences 2 and 3 are negotiable only at the election of the Agency because they concern the methods and means, under section 7106(b)(1) of the Statute, by which the Agency will conduct its operations. The Agency asserts that it does not choose to bargain concerning either sentence. The Agency further argues that sentence 2 would require the maintenance of a log and that specific information will be recorded in that log irrespective of restrictions contained in the Privacy Act and/or the confidentiality requirements contained in 29 C.F.R. Part 1613. The Agency also contends that, because sentence 3 requires counseling within 24 hours and EEO counselors are employees whose collateral duties include EEO counseling, this sentence excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
The Agency contends that sentences 4, 5, 6, 7, and 8 concern the methods and means of performing work under section 7106(b)(1) and involve matters that are not within its authority or control. The Agency argues that private contractors, under contracts with the Department of Health and Human Services (DHHS), conduct EEO complaint investigations. The Agency asserts that: (1) it has no control over the contract terms established by DHHS, its parent organization; and (2) the Union is not the exclusive representative of employees at the department level. The Agency states that "the obligation to bargain on these proposals is based upon factual issues which must be resolved prior to the Authority's being able to make a determination on the negotiability of these proposals." Agency's Statement of Position at 47.
The Agency also contends that sentences 4, 5, 6, 7, and 8 excessively interfere with management's rights to assign work and to make contracting out determinations under section 7106(a)(2)(B) of the Statute. The Agency argues that the sentences do not concern conditions of employment but, rather, involve matters that are provided for under law and Government-wide regulations. According to the Agency, the sentences concern procedures established under 29 C.F.R. Part 1613 "which take effect after formal EEO complaints have been filed." Id. at 48. The Agency also argues that once a case has been assigned to the EEO investigators, pursuant to the terms of their contracts, investigations must be completed within a specified time limit. Moreover, the Agency asserts that DHHS has employees who determine the accuracy and completeness of cases both before and after investigations have been conducted. According to the Agency, therefore, the disputed sentences would "have the effect of prescribing the assignment of work by specifying when and how the work is to be processed and completed." Id.
Alternatively, the Agency asserts that sentences 4, 5, 6, 7, and 8 "prescribe time limits for taking action" and, therefore, are nonnegotiable. Id. Because the sentences prescribe time limitations within which action must be taken, the Agency argues that it "would be precluded from processing EEO complaints and making determinations with respect to contracting out and assigning work." Id. In support of its argument, the Agency cites American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512 (1986).
2. Union
The Union contends that the proposal does not interfere with management's rights to assign work or contract out under section 7106(a)(2)(B) of the Statute. The Union asserts that the Agency does not claim that the proposal is inconsistent with Government-wide regulations, namely, 29 C.F.R. Part 1613, and argues that, unless the Agency can demonstrate that the proposal is in conflict with applicable Government-wide regulation, "the fact that time limits and other procedures are stated in government-wide regulation doesn't affect negotiability." Union's Response at 51. The Union also argues that, because the language contained in the proposal is conjunctive, the disputed portions of the proposal are "subject to the undisputed paragraph which allows for [the] absence of complete control over EEO investigations, and only requires the [Agency] to take corrective action when it does have such control." Id. at 51-52 (emphasis in original). The Union also asserts that the Agency has a duty to bargain over matters affecting the conditions of employment of unit employees that are not completely within the Agency's discretion or control.
The Union further argues that the Agency has not demonstrated that the proposal is inconsistent with either management's right to assign work or the right to make determinations with respect to contracting out. According to the Union, the Agency's "general assertions are not demonstrated and, in fact, are incorrect." Id. at 52. Noting the Agency's contention that Agency employees do not perform EEO complaint investigations and that those employees who do perform such functions are not within the Agency's control, the Union argues that any interference with management's right to assign work or contract out "is a result of the DHHS' use of contract employees and not a result of the [p]roposal." Id.
The Union also contends that the proposal does not concern management's right to determine the methods and means it will use to perform work under section 7106(b)(1) of the Statute. The Union argues that, under the terms of the proposal, the Agency's election to use contract employees as a method for processing discrimination complaints remains unaffected. The Union states that, "[c]onsistent with the [p]roposal, [the use of contract personnel] could be unilaterally continued, modified, or ceased, if [the Agency] chose to do so." Id. at 53. The Union also argues that the Agency has not demonstrated that the proposal involves the methods and means of performing work.
B. Analysis and Conclusions
We conclude that Proposal 30 does not directly interfere with management's exercise of its section 7106(a) rights and is, therefore, negotiable.
For the reasons stated more fully with respect to Proposals 17 and 18, we conclude that the portions of Proposal 30 containing factual statements are properly considered as part of the proposal.
We reject the Agency's contention that the proposal does not concern unit employees' conditions of employment. The Agency claims that the proposal does not concern conditions of employment because the matters covered by the proposal are provided for by 29 C.F.R. Part 1613, a Government-wide regulation.(8) The Agency states, in this regard, that the proposal concerns "matters related to and provided [for] by statute/[G]overnment-wide regulations." Statement of Position at 48. We interpret the Agency's claim as an argument that the proposal concerns matters that are specifically provided for by Government-wide regulations and that the subject matter of the proposal is thus excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute.
Section 7103(a)(14)(C) of the Statute excludes matters that are specifically provided for by Federal statute from the definition of conditions of employment. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1063 (1991), citing Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart Schools). We note, in particular, that the exclusion under section 7103(a)(14)(C) applies only to matters that are specifically provided for by Federal statute. Here, the Agency contends only that the proposal involves matters that are provided for by a Government-wide regulation, 29 C.F.R. Part 1613. Because section 7103(a)(14)(C) exempts from the definition of conditions of employment only those matters that are governed by Federal statute, we reject the Agency's argument that Proposal 30 does not concern the conditions of employment of unit employees.
Moreover, sentences two through eight establish the steps that the Agency will follow in processing EEO complaints in a manner that supplements the requirements of 29 C.F.R. Part 1613. The proposal would merely require the Agency to: (1) maintain a log of EEO counseling requests and record specific information in that log; and (2) adhere to time limits contained in the proposal with respect to various steps of the EEO complaint process. The Agency does not dispute the fact that the proposal constitutes additional contractual requirements that supplement the requirements of 29 C.F.R. Part 1613. See Agency's Statement
of Position at 48. Moreover, the Agency does not contend that the disputed sentences are inconsistent with the requirements of 29 C.F.R. Part 1613.
As to the Agency's claim that sentences two through eight directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute, we note that the proposal concerns record-keeping requirements and time limits governing the processing of EEO complaints. We also note that the Agency does not claim that the processing of EEO complaints constitutes the exercise of a management right under section 7106 of the Statute. Consequently, we find that the requirements governing the processing of EEO complaints established by Proposal 30 do not directly interfere with the exercise of a management right under section 7106. Rather, as we found above, the requirements of the proposal merely establish the steps that the Agency will follow in processing EEO complaints and thus constitute procedures for resolving those complaints.
We find that the complaint processing requirements established by the proposal constitute negotiable procedures. The fact that the proposal would require the assignment of Agency personnel to implement those procedures does not mean that the proposal directly interferes with the exercise of management's right to assign work. See Forest Service and Northeastern Program Service Center. Similarly, the time limits for the completion of the various steps in the procedural process established by the proposal do not directly interfere with the right to assign work by prescribing when work must be done. See American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 206 (1991) (a proposal requiring an agency to provide a 3-day notice of intent to remove an employee does not directly interfere with management's right to assign work). Consequently, we conclude that the procedural requirements established by sentences two through eight of Proposal 30 do not directly interfere with management's right to assign work.
Further, as to the Agency's claim that Proposal 30 directly interferes with management's right to contract out, we agree with the Union that the proposal does not concern the Agency's decision to contract out aspects of its EEO complaint process. The proposal would not by its terms require any change in the Agency's arrangements with contract personnel. Any effect of the proposal on those arrangements is incidental to the requirements of the proposal. Moreover, we note that the proposal explicitly provides that, if the Agency's failure to comply with the time limits results from factors that are within the Agency's control, the Agency would be required to take corrective measures to ensure compliance. The Union also explains that the proposal contains an exception to the time limits for case processing in circumstances where compliance with the time limits may be outside the Agency's control. The Union's explanation is consistent with the wording of the proposal and we will intepret the proposal consistent with that explanation.
Based on the Union's explanation, we find that, under the proposal, where the Agency has control over compliance with the time limits, the Agency will take steps to correct any failure to comply and, where the Agency does not control compliance, it will provide the Union and the complainant with a written explanation as to why compliance was not effected. To the extent that contract personnel are not under the Agency's control, therefore, the proposal would require the Agency only to explain any failure of compliance. The proposal, that is, would require no changes in the Agency's relationship with contract personnel. Moreover, to the extent that contract personnel are under the Agency's control, the requirement of the proposal that the Agency take steps to ensure compliance does not mean that the Agency must take any action that would be inconsistent with its contractual obligations. Consequently, we conclude that the proposal does not directly interfere with management's right to contract out under section 7106(a)(2)(B) of the Statute.
As to the Agency's claim that sentences two through eight directly interfere with management's right to determine the methods and means of performing work under section 7106(b)(1), we find, for the reasons stated in connection with Proposal 12, that the Agency has made no attempt to demonstrate a direct and integral relationship between the time limits and record-keeping requirements of Proposal 30 and the accomplishment of its mission and none is apparent to us. We find, therefore, that the Agency has failed to provide a record to support a conclusion that the time limits and record-keeping requirements of Proposal 30 constitute a determination of the methods and means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute. Consequently, we conclude that sentences two through eight of Proposal 30 do not directly interfere with management's rights under section 7106(b)(1) of the Statute.
Finally, because the proposal does not require the disclosure of any information, we reject the Agency's claim that sentence two is inconsistent with the confidentiality requirements in the Privacy Act and/or with 29 C.F.R. Part 1613.
In sum, the Agency has not alleged that the disputed sentences of Proposal 30 are inconsistent with 29 C.F.R. Part 1613. The disputed sentences of the proposal do nothing more than establish additional procedural requirements, including time limits, for processing EEO complaints. Accordingly, we find that sentences two through eight of the proposal do not interfere with the exercise of management's rights under section 7106(a)(2)(B) and (b)(1) of the Statute and are, therefore, negotiable.
XXVI. Proposal 31
F) HISPANIC MALES REMAIN THE MOST UNDERREPRESENTED GROUP IN THE AGENCY'S WORKFORCE.
Corrective Action:
Waive qualification requirements for all PATCOB categories for which there is a conspicuous absence or manifest imbalance.
Issue priority consideration to all qualified potential internal applicants for positions at the GS/GM 14, 15 and SES level.
Target the sum of percentage of Hispanic males in the CLF plus percentage of underrepresentation in the HCFA workforce of the projected 292 outside hires.
G) HISPANIC FEMALES ARE UNDERREPRESENTED IN THE CLERICAL AND TECHNICAL CATEGORIES: THE 334 SERIES: AND GS/GM 15 AND SES POSITIONS.
Corrective Action:
Waive qualification[] requirements for each PATCOB category demonstrating a conspicuous absence or manifest imbalance.
Issue priority consideration to all qualified potential internal applicants for GS/GM 15 and SES level positions.
Target the sum of percentage of hispanic females in the CLF plus percentage of under representation in the HCFA workforce of the projected 292 outside hires.
H) ASIAN AMERICAN MALES ARE UNDERREPRESENTED IN THE CLERICAL, TECHNICAL, AND PROFESSIONAL CATEGORIES, 301, 343, 345, AND 501 SERIES; GS/GM 15 POSITIONS.
Corrective Action:
Waive qualification requirements for each PATCOB category.
Issue priority consideration to all qualified potential internal candidates for GS/GM 15 positions.
Target the sum of the percentage of Asian American males in the CLF plus percentage of underrepresentation in the HCFA workforce of the projected 292 outside hires.
I) ASIAN AMERICAN FEMALES ARE UNDER REPRESENTED IN THE 510 SERIES: GS/GM POSITIONS.
Corrective Action:
Waive qualification requirements.
Issue priority consideration to all potential internal candidates for the GS/GM 14 positions.
Target the sum of the percentage of Asian American females in the CLF plus percentage of underrepresentation in the workforce of the projected 292 outside hires.
J) AMERICAN INDIAN MALES/FEMALES ARE UNDERREPRESENTED IN THE CLERICAL AND TECHNICAL CATEGORIES; MALES IN THE PROFESSIONAL SERIES; MALES IN THE 334 SERIES; FEMALES IN THE GS/GM 15 AND SES POSITIONS AND MALES IN THE SES POSITIONS.
Corrective Action:
Waive qualification requirements.
Target the sum of the percentage of [American Indian Males/Females] in the CLF plus percentage of underrepresentation in the workforce of the projected 292 outside hires.
A. Positions of the Parties
1. Agency
The Agency contends that the items printed in capital letters are statements of fact and are not proposals relating to the conditions of employment of bargaining unit employees. The Agency argues that the portions of the proposal applying to prospective employees and GM-14 through 15 and SES positions concern individuals outside of the bargaining unit and management "does not choose to negotiate over these matters and is not otherwise obligated to bargain over such conditions of employment for nonunit employees." Agency's Statement of Position at 52.
The Agency argues that the portions of the proposal requiring management to waive qualification requirements conflict with management's rights to determine employee qualifications, to assign employees, and to select from any appropriate source. According to the Agency, those portions of the proposal also conflict with the qualifications set out in OPM's X-118 handbook and "would be a substantial conflict with merit system principles[.]" Id. at 53.
The Agency asserts that the portions of the proposal requiring priority consideration "effectively preclude management from exercising its right to determine the particular qualifications and skills of employees" and also conflict with management's right to assign employees. Id.
Finally, the Agency maintains that the intent of the portions relating to targeting the sums of percentages is not clear. The Agency claims that these portions of the proposal appear to violate the Agency's rights to determine the number of employees and to hire and assign employees. Further, the Agency asserts that because these portions of the proposal relate to applicants or prospective employees, they do not concern the conditions of employment of bargaining unit employees.
2. Union
The Union states that the proposal provides numeric goals and that the proposal "do[es] not mandate complying" with the goals in every case. Union's Response at 55. The Union notes that the proposal's reference to "priority consideration" means that "qualified candidates within the identified underrepresented group are referred first to the selecting official[.]" Id. Contrary to the Agency's contention, the Union contends that "GM as well as GS positions are included in the unit of exclusive recognition." Id.
B. Analysis and Conclusions
As set forth below, we dismiss the portions of Proposal 31 requiring the Agency to give priority consideration to all potential internal candidates or applicants because the record is not sufficient for us to determine to which employees those portions of Proposal 31 apply. Further, we find that the portions of Proposal 31 requiring the Agency to target a percentage of certain underrepresented groups for outside hires are negotiable procedures to the extent that the positions involved are not management positions. Finally, we find that the portions of Proposal 31 requiring the Agency to waive qualification requirements for certain individuals are nonnegotiable.
1. Preliminary Matter
For the reasons stated more fully with respect to Proposals 17 and 18, we conclude that the portions of Proposal 31 containing factual statements are properly considered as part of the proposal.
2. Whether Proposal 31 Concerns the Conditions of Employment of Bargaining Unit Employees
The Agency argues that Proposal 31 does not concern the conditions of employment of bargaining unit employees because: (1) the proposal applies to prospective, not current, employees; and (2) the proposal applies to supervisors.
We reject the Agency's contention that Proposal 31 does not apply to current employees. In particular, we note that Proposal 31 requires the Agency to take action with respect to "internal candidates" and, therefore, clearly applies to current employees.
We note that Proposal 31 also requires the Agency to take action with respect to projected outside hires for bargaining unit positions. We find, consistent with our discussion of Proposal 1, that these portions of the proposal vitally affect the conditions of employment of bargaining unit employees. As we note below, portions of parts F), G), H), I), and J) of Proposal 31 require the Agency to have as a target a percentage of certain allegedly underrepresented groups for projected outside hires. These portions of Proposal 31 set forth a goal for eliminating any underrepresentation of certain groups in the Agency's workplace that may have resulted from discriminatory hiring or selection processes.
We found in Proposal 1 that bargaining unit employees have a significant interest in eliminating or prohibiting discrimination in the workplace. We noted in Proposal 1 that discrimination in the hiring process is intertwined with possible discrimination in the employment relationship and that the Union's legitimate efforts, as the exclusive representative of unit employees, to seek to eliminate discrimination in the employment relationship "would be severely impeded . . . if it were required to wait until the hiring process is complete . . . ." Star Tribune, 295 NLRB at 549.
By requiring the Agency to target a percentage of certain allegedly underrepresented groups for projected outside hires, Proposal 31 seeks to eliminate underrepresentation and possible discriminatory practices. We find that unit employees' interest in eliminating underrepresentation and ameliorating the effects of possible discriminatory practices cannot be accomplished without involving the hiring process. Accordingly, consistent with our decision as to Proposal 1, we conclude that to the extent that the portions of Proposal 31 requiring the Agency to target a percentage of certain allegedly underrepresented groups for projected outside hires seek to regulate the conditions of employment of non-employees, these portions of Proposal 31 vitally affect the conditions of employment of bargaining unit employees.
Portions of parts F), G), H), and I) of Proposal 31 require the Agency to give priority consideration to "all qualified potential internal" candidates or applicants. Because those portions require the Agency to give priority consideration to all such potential internal candidates or applicants, the proposal may be read to apply to employees in the Agency who are not members of the bargaining unit represented by the Union. The record is not sufficient for us to determine whether these portions of Proposal 31 apply to those employees. The parties bear the burden of creating a record on which we can base a negotiability determination. Department of Veterans Affairs Medical Center. Because the record here does not contain information sufficient for us to determine whether these portions of Proposal 31 apply to employees in the Agency who are not members of the bargaining unit represented by the Union, we do not address the applicability of Cherry Point and will dismiss the petition for review as to these portions of Proposal 31.
Proposal 31 applies in part to SES and GS-14 through 15 and GM-14 through 15 level positions. The Agency contends that these are supervisory positions. The Union claims that "GM as well as GS positions are included in the unit of exclusive recognition." Union's Response at 55. To the extent that any of these positions are management or supervisory positions, we conclude that by requiring the Agency to waive qualification requirements for such positions and target a percentage of certain underrepresented groups for projected outside hires for such positions, the proposal "purport[s] to regulate the conditions of employment" of management personnel who are excluded by section 7112 of the Statute from bargaining units. Cherry Point, 952 F.2d at 1442.
Accordingly, to the extent that the portions of Proposal 31 requiring the Agency to waive qualification requirements and target a percentage of certain underrepresented groups for projected outside hires purport to regulate the conditions of employment of management personnel, we conclude, consistent with the court's reasoning in Cherry Point, that such portions of the proposal do not concern the conditions of employment of bargaining unit employees and are nonnegotiable.
3. The Portions of Proposal 31 Requiring the Agency to Target a Percentage of Certain Underrepresented Groups for Projected Outside Hires Are Negotiable
Portions of parts F), G), H), I), and J) of Proposal 31 require the Agency to target a percentage of certain allegedly underrepresented groups for projected outside hires. A proposal setting forth a certain statistical goal for hires into positions does not directly interfere with management's right where the proposal does not require management to take or refrain from taking any specific action toward the achievement of that goal. American Federation of Government Employees, AFL-CIO, Local 2578 and General Services Administration, National Archives and Records Service, Washington, D.C., 3 FLRA 604, 605, 609 (1980) (National Archives and Records Service) (proposal stating in part that "[t]he goal for women and for each minority group shall be the percentage that group constitutes in the local or national population" was negotiable because the proposal merely set forth a goal for eliminating underrepresentation). See also American Federation of State, County and Municipal Employees, Locals 2910 and 2477 and Library of Congress, 15 FLRA 717, 718 (1984) and Internal Revenue Service, 2 FLRA at 283-84 (proposal, first sentence) (proposals setting forth goals for the number of positions to be designated as part-time or upward mobility were negotiable because they did not require management to fill the positions).
Several portions of Proposal 31 require the Agency to target a sum of the percentage of certain individuals in the civilian labor force plus the percentage of those individuals in the Agency's workforce for the projected 292 outside hires stated in the proposal. According to the Union, those portions of Proposal 31 provide numeric goals and "do not mandate complying" with the goals. Union's Response at 55. Consistent with the Union's statement, we interpret the proposal to require the Agency to have, as a target or goal, a certain percentage of outside hires taken from underrepresented groups. Unlike Proposals 17, 18, and 28, these portions of Proposal 31 are phrased in terms of a target or goal as opposed to a requirement to fill a certain number of positions with certain individuals. Therefore, we reject the Agency's argument that the proposal directly interferes with management's right to hire and assign employees or to determine the number of employees. Accordingly, as these portions of Proposal 31 merely set forth a goal for eliminating any underrepresentation in the Agency's workplace, we find that these portions of Proposal 31 are negotiable to the extent that the targets are for positions which are unit positions. See National Archives and Records Service.
4. The Portions of Proposal 31 Requiring the Agency to Waive Qualification Requirements Are Nonnegotiable
Portions of parts F), G), H), I), and J) of Proposal 31 require the Agency to waive qualification requirements. As we noted with respect to Proposal 19, management's rights to assign employees and select employees for appointment encompass both the right to determine the requirements and qualifications necessary to perform a particular job task and the right to determine which employees meet those qualifications. See Immigration and Naturalization Service and HHS.
Certain portions of Proposal 31 require the Agency to waive qualification requirements for individuals in specified groups for categories of positions where individuals from those groups are allegedly underrepresented. As plainly worded, the proposal prohibits the Agency from exercising its discretion to choose to assign or select only employees who meet the qualifications for the positions listed in the proposal. By requiring the Agency to waive qualification requirements in certain circumstances, the proposal precludes the Agency from choosing not to assign or select employees who fail to meet the position qualifications. Accordingly, we find that the portions of Proposal 31 requiring the Agency to waive qualification requirements directly interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to select employees for appointment under section 7106(a)(2)(C) of the Statute.
We note the Union's assertion that to the extent that any one of the proposals is construed to interfere with the exercise of a management right, the proposal is intended as an appropriate arrangement. Even assuming that the portions of Proposal 31 requiring the Agency to waive qualification requirements are intended as arrangements, we find for the following reasons that these portions of Proposal 31 are not appropriate arrangements.
These portions of Proposal 31 do not state which particular qualification requirements must be waived, and the Union does not address this issue in its submissions. The proposal may be interpreted to require the Agency to waive all qualification requirements for individuals from allegedly underrepresented groups who apply for the positions listed in the proposal. Such a requirement would completely bar the Agency from exercising its discretion to determine the qualifications for positions and of individuals seeking those positions. We find that, in such an instance, the burden on management's right to determine the qualifications of positions outweighs the benefit to employees of having qualification requirements waived. Accordingly, these portions of Proposal 31 excessively interfere with management's rights to select and assign employees and are not appropriate arrangements under section 7106(b)(3) of the Statute.
This case is distinguishable from American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249 (1990) (Proposal 3), where the Authority addressed a proposal requiring the agency to minimize displacement actions in a reduction-in-force (RIF) by, "to the extent possible," waiving qualifications and standards for some employees. In finding that the proposal constituted an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, the Authority noted that the proposal applied only after management decided to fill a position and did not require the agency to assign unqualified employees. See also HHS, 25 FLRA at 1050 (proposal stating that the agency may waive nonmandatory qualification requirements to facilitate placing employees affected by a RIF was an appropriate arrangement because the proposal allowed the agency to take into account the impact on the efficiency and effectiveness of the agency's operations).
In summary, we dismiss the portions of Proposal 31 requiring the Agency to give priority consideration to all potential internal candidates or applicants because the record is not sufficient for us to determine to which employees those portions of Proposal 31 apply. We further find that the portions of Proposal 31 requiring the Agency to target the percentage of certain underrepresented groups for projected outside hires are negotiable procedures to the extent that the positions involved are unit positions. Finally, we find that the portions of Proposal 31 requiring the Agency to waive qualification requirements are nonnegotiable because they excessively interfere with management's rights to assign employees and select employees for appointment and, thus, do not constitute appropriate arrangements.
XXVII. Proposal 32
[1] K) THE ADMINISTRATION HAS NOT ARTICULATED A COMPREHENSIVE POLICY FOR HANDICAPPED EMPLOYEES.
Corrective Action:
Employee Evaluation
In accordance with Section 501 of the Rehabilitation Act of 1973, as amended, Section 403 of the Vietnam Veterans Readjustment Assistance Act of 1974, as amended, and other government-wide rules and regulations pertaining to the employment of handicapped individuals, HCFA is committed to affirmative action for the employment, and advancement of qualified handicapped individuals and disabled veterans.
HCFA will offer reasonable accommodation to the known physical or mental limitations of a qualified handicapped employee regardless of type of appointment.
The Administration recognizes that individual accommodations will be determined on a case-by-case basis, taking into consideration the employee's specific disability, existing limitations and the work environment.
[A] [1] The Administration agrees that reasonable accommodation means an adjustment made to a job, the work environment, and/or reassignment that enables a qualified handicapped person to perform the duties of that position. [2] The Administration shall eliminate undue delay in considering requests for reasonable accommodations for handicapped employees despite general fiscal constraints. Reasonable accommodations are to be considered as exceptions to the general fiscal restrictions and will be evaluated on a case-by-case basis with regard to the merit of the request.
[Only the underlined portions are in dispute. The disputed parts of the proposal have been numbered for the convenience of the reader.]
A. Positions of the Parties
1. Agency
The Agency contends that the first disputed part of the proposal is not a proposal that concerns the working conditions of unit employees. According to the Agency, part 1 simply constitutes a statement of fact that is either true or false.
The Agency contends that the second disputed part of the proposal excessively interferes with management's right to determine its budget under section 7106(a)(1) of the Statute. The Agency argues that that part of the proposal requires that reasonable accommodations be made for employees with handicapping conditions "whether the Agency has budgeted funds to accommodate such requests or not." Agency's Statement of Position at 55. The Agency claims that, on its face, this aspect of the proposal "is simply not workable." Id.
2. Union
The Union disputes the Agency's claim that the proposal is unworkable. Rather, the Union argues that "[w]orkability, or the absence of it, is a merits consideration" that "does not belong in this proceeding." Union's Response at 57.
The Union contends that the proposal does not interfere with the Agency's right to determine its budget. The Union argues that the proposal does not: (1) require the inclusion of funds for reasonable accommodations in the Agency's budget; or (2) prescribe any amount in any budget item. The Union asserts that the proposal "merely requires the [Agency] to consider making reasonable accommodations on a case-by-case basis during periods of general fiscal restrictions." Id.
The Union also contends that the proposal is negotiable because it restates the requirements contained in 29 C.F.R. § 1613.704, a Government-wide regulation. The Union states that "the requirement to make reasonable accommodations is an extrinsic obligation . . . that the [Agency] must meet whether or not it bargains concerning Proposal 32." Id.
B. Analysis and Conclusions
We conclude that the first part of Proposal 32 operates as merely an introductory statement to the proposal. We further conclude that the second disputed part of the proposal is negotiable because it does not directly interfere with management's right to determine its budget under section 7106(a)(1) of the Statute.
1. Preliminary Matter
For the reasons stated more fully with respect to Proposals 17 and 18, we conclude that the portions of Proposal 32 containing factual statements are properly considered as part of the proposal.
2. The Proposal Does Not Interfere with Management's Right to Determine Its Budget
The second disputed part of the proposal requires the Agency, despite general budgetary constraints, to eliminate undue delay in considering the requests of employees with handicapping conditions for reasonable accommodations and requires the Agency to consider such requests as exceptions to its general budgetary constraints.
To establish that a proposal interferes with management's right to determine its budget, an agency must either demonstrate that the proposal: (1) prescribes the particular programs or operations the agency would include in its budget or prescribes the amount to be allocated in the budget for them; or (2) entails an increase in costs that is significant and unavoidable and that such costs are not offset by compensating benefits. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).
Further, to accommodate those instances in which proposals, by their terms, do not prescribe a particular program or amount to be included in an agency's budget but, nevertheless, are alleged to violate an agency's right to determine its budget because of increased costs, the Authority has established a second budget test. Under this test, in order to establish that a proposal interferes with the right to determine its budget, an agency must demonstrate that the proposal would lead to increased costs that are: (1) significant; (2) unavoidable; and (3) not offset by compensating benefits. With regard to an agency's burden under the second test, the Authority stated:
Only where an agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits can an otherwise negotiable proposal be found to violate the agency's right to determine its budget under section 7106(a) of the Statute.
Id. at 608.
a. The First Budget Test
The first budget test is a narrow one. It withdraws from bargaining only those proposals that are addressed to the budget per se, not those that would result in expenditures by an agency and, consequently, have an impact on the budget process. See, for example, Fort Stewart Schools, 495 U.S. at 657-59 (Marshall, J., concurring) and National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 479-80 (1990), remanded as to other matters sub nom. U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. July 23, 1991), decision on remand, 43 FLRA 47 (1991). Proposals that merely have cost ramifications do not inject a union directly into the budget formulation process that is protected from bargaining under the first budget test. See, for example, American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894, 904 (1990).
Proposal 32 does not involve the Union in the budgetary process itself but is limited to requiring that the Agency: (1) eliminate undue delay in considering requests by employees with handicapping conditions for reasonable accommodations; and (2) consider such requests for reasonable accommodations as exceptions to the Agency's general fiscal restraints. In sum, the proposal does not prescribe a program, operation, or an amount that the Agency must include in its budget.
Moreover, although the implementation of the second disputed part of Proposal 32 might result in the expenditure of funds to provide reasonable accommodations for employees with handicapping conditions, it does not prescribe the manner in which the Agency would make adjustments in its general fiscal restraints to implement the proposal or an amount that the Agency must expend for such accommodations. Consequently, the proposal does not directly interfere with management's right to determine its budget under the first budget test.
b. The Second Budget Test
The Agency fails to provide any evidence as to the budgetary costs that would be incurred as a result of the implementation of Proposal 32. Therefore, the Agency has failed to demonstrate that the increased costs, if any, associated with the proposal are either significant or unavoidable. There also is no evidence in the record as to whether the costs resulting from the implementation of the disputed aspect of the proposal would be offset by compensating benefits. Accordingly, we find that the Agency has not demonstrated that the proposal directly interferes with its right to determine its budget under the second budget test.(9)
We conclude, therefore, that the Agency has not demonstrated that the proposal either: (1) prescribes a particular program or operation to be included in its budget or prescribes the amount to be allocated in the budget for it; or (2) entails significant increases in costs that are not offset by compensating benefits. Accordingly, we conclude that Proposal 32 does not directly interfere with the Agency's right to determine its budget under section 7106(a)(1) of the Statute and is, therefore, negotiable.
XXVIII. Proposal 33
The Administration shall be liberal in granting leave to accommodate the handicapping condition of employees. This policy will cover but not be limited to the following:
a. Supervisors will advise employees with mobility impairments of the Administration's procedures to request administrative leave when weather conditions make it extremely difficult or hazardous to report to work.
b. Leave without pay shall be granted for illness or disability.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 33 excessively interferes with management's right, under section 7106(a)(2)(A) of the Statute, to assign work. The Agency argues that the proposal requires that leave be granted regardless of the Agency's "need for the employee's services." Agency's Statement of Position at 55. In support of its position, the Agency cites American Federation of Government Employees, AFL-CIO, Local 12 and Department of Labor, 18 FLRA 418, 423 (1985).
2. Union
The Union contends that the disputed portion of Proposal 33 is intended to be read in conjunction with the portion of the proposal that establishes a liberal leave policy for employees with handicapping conditions. The Union states that the disputed portion of the proposal is merely an example of a type of accommodation the Agency "would make in the course of applying its liberal leave policy." Union's Response at 58.
The Union also contends that the proposal incorporates or reflects the requirements of applicable Government-wide regulations and, therefore, merely requires the Agency to exercise its rights in accordance with those requirements. The Union argues that: (1) 29 C.F.R. § 1613.704 contains the requirement, applicable to all agencies, that reasonable accommodations be made for employees with handicapping conditions; and (2) 29 C.F.R. § 1613.704(c) enumerates the factors that agencies must consider in making decisions concerning reasonable accommodations. The Union notes that the factors contained in 29 C.F.R. § 1613.704(c) include the operational needs of agencies. The Union also argues that the proposal neither requires the Agency to grant leave in all circumstances nor prevents the Agency, after its operational needs are considered, from granting or denying leave requests.
B. Analysis and Conclusions
We conclude that Proposal 33 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
1. The Proposal Directly Interferes with Management's Right to Assign Work
The Union explains that the proposal does not prevent the Agency from denying leave requests. We conclude, however, that the wording of the proposal is inconsistent with the Union's explanation. By its terms, the proposal would require the Agency to grant every request for leave without pay made by employees with handicapping conditions where the request is based on illness or disability. For purposes of this decision, we interpret the proposal as mandating that the Agency grant leave without pay to employees with handicapping conditions in the circumstances described in the proposal.
Because Proposal 33 establishes a mandatory requirement that leave without pay be granted to employees with handicapping conditions in cases of illness or disability, the proposal could not be reasonably interpreted as incorporating the discretionary factors contained in 29 C.F.R. § 1613.704(c). Therefore, we reject the Union's argument that the proposal merely reflects or incorporates applicable Government-wide regulations concerning reasonable accommodations for employees with handicapping conditions. Proposal 33 would require the Agency to establish a leave policy that would include, among other things, an absolute requirement that the Agency grant leave without pay to employees with handicapping conditions in instances of sickness or disability.
In Treasury, Office of Chief Counsel, 39 FLRA at 46-47, we found that provisions providing employees with an absolute right to leaves of absence without pay when the conditions in the provisions had been met directly interfered with the agency's right to assign work under section 7106(a)(2)(B) of the Statute. In reaching that conclusion, we found that the provisions did not allow the agency the discretion to deny leave if the agency determined that the employee's services were necessary.
Proposal 33 would grant employees with handicapping conditions an absolute right to leave without pay in instances of sickness or disability. Therefore, the proposal prevents the Agency from denying leave to employees with handicapping conditions under those circumstances. Consequently, consistent with Treasury, Office of Chief Counsel, we find that Proposal 33 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
2. The Proposal Is Not an Appropriate Arrangement
The Union argues that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Applying the test set forth in KANG, we find that Proposal 33 is intended as an arrangement for employees who may be adversely affected by management's decisions as to the assignment of work. Because the proposal would establish an automatic grant of leave without pay to employees with handicapping conditions, the proposal would ensure that these employees receive leave without pay in instances of sickness or disability. We conclude, therefore, that the proposal constitutes an arrangement for employees who may be adversely affected by the exercise of a management right within the meaning of section 7106(b)(3).
As to whether Proposal 33 constitutes an appropriate arrangement, we note that the proposal establishes an absolute requirement that the Agency grant leave without pay to employees with handicapping conditions in circumstances of illness or disability. An agency's discretion to deny leave is inherent in the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute. Therefore, by requiring the Agency to grant leave without pay under the conditions noted above, the proposal places a burden on the exercise of management's right to assign work. See, for example, Treasury, Office of Chief Counsel, 39 FLRA at 43 (portions of a provision requiring an absolute grant of administrative leave in certain circumstances did not preserve the agency's discretion to determine whether an employee's absence would conflict with the accomplishment of necessary work). In this case, without regard to any other considerations, the Agency would be absolutely precluded from denying leave without pay under the conditions stated in the proposal. Therefore, we find that the proposal places a significant burden on the Agency's exercise of its right to assign work.
On the other hand, the benefits to employees affected by the operation of Proposal 33 are critical to the continued employment of those employees. We note that the Agency does not argue that the proposal's requirement to grant leave without pay to employees with handicapping conditions is, or would be, based on medical needs that are not legitimate. Consequently, if the employee is denied leave without pay, particularly in the case of a disability and in the absence of any other type of leave that could be used in the circumstances, that employee would be placed in the position of relying on the Agency's discretion as to whether such leave will be granted.
On balance, however, we find that the burden placed by the proposal on the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute outweighs the benefit of providing to employees with handicapping conditions a guarantee that leave without pay will be granted in cases of illness or disability. The proposal absolutely removes any Agency discretion to deny leave without pay in the circumstance stated.
In Campana v. Department of Navy, 873 F.2d 289 (Fed. Cir. 1989) (Campana), the court held that authorization of leave without pay when medical excuses are involved is within an agency's administrative discretion. However, an agency's denial of such leave must be reasonable under the circumstances. Campana, 873 F.2d at 291. In this case, there is no suggestion that the Agency would exercise its discretion to deny leave in a manner that would not be reasonable under the circumstances. Consequently, we find that the absolute grant of leave without pay to employees with handicapping conditions because they are either ill or disabled excessively interferes with the discretion to deny leave inherent in management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we find that Proposal 33 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute and is, therefore, nonnegotiable.
XXIX. Proposal 34
The Administration shall provide handicapped employees full consideration for all training opportunities. Once an employee is selected for training, the Administration shall provide reasonable accommodation to the employee to attend and complete the training. It is the intent of the Administration to provide on-the-job opportunities to qualified handicapped employees consistent with operational needs. Reasonable accommodations for training, both formal and on-the-job opportunities, include such things as:
a. modification of training and reference materials (for example: training guides in Braille);
b. provision for a qualified interpreter for deaf trainees;
c. use of a mentor to provide individualized training; and/or
d. assuring physical access to training facilities, restrooms, and lodging.
[Only the underlined portions are in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that the disputed portions of Proposal 34: (1) are inconsistent with management's rights, under section 7106(a)(2)(A) of the Statute, to hire and assign employees because management's discretion to decide not to provide the accommodations established in the proposal would be restricted; and (2) concern the technology, methods and means of performing work under section 7106(b)(1). In support of its position, the Agency cites American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440, 443-44 (1982) (Redstone Arsenal).
2. Union
The Union contends that the proposal restates or paraphrases the requirements contained in 29 C.F.R. § 1613.704, a Government-wide regulation, and is intended to be applied in accordance with that regulation. The Union states that 29 C.F.R. § 1613.704(a), (b), and (c) "provide an illustrative, but not exclusive, approach to what may be construed as a reasonable accommodation" for employees with handicapping conditions. Union's Response at 60. According to the Union, 29 C.F.R. § 1613.704 requires that determination of what constitutes a reasonable accommodation must be done on a case-by-case basis. The Union argues that the proposal does not "prescribe or proscribe specific actions in specific instances" and that it only requires the Agency to make reasonable accommodations for employees with handicapping conditions. Id.
B. Analysis and Conclusions
We conclude that Proposal 34 does not involve the Agency's right to determine the methods and means of performing work. We also conclude that the proposal directly interferes with management's right to hire and assign employees under section 7106(a)(2)(A) of the Statute. However, we further find that Proposal 34 is an appropriate arrangement for employees adversely affected by the exercise of a management right.
Proposal 34 requires the Agency to make reasonable accommodations for the training of qualified employees with handicapping conditions. Under the proposal, reasonable accommodations for training shall include such things as: (1) modifying training and reference materials; (2) providing deaf trainees with qualified interpreters; and (3) using mentors to provide individualized training.
1. The Proposal Does Not Concern the Exercise of Management's Right to Determine the Methods and Means of Performing Work
To determine whether a proposal interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute, the Authority uses a two-part test. Under this test, an agency must first demonstrate a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Secondly, an agency must also demonstrate that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. Treasury, IRS, 35 FLRA at 406-09 (1990). The term "method" refers to the way in which an agency performs its work. Id. at 406. The term "means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used to further the accomplishment of the agency's work. Id. at 407. Under this test, the method or means adopted does not need to be indispensable to the accomplishment of an agency's mission. The term "performing work" is used to include those matters directly and integrally related to the agency's operations as a whole. Id.
The Agency does not demonstrate that there is any connection between Proposal 34 and the accomplishment of its mission. The Agency's mission is to administer the Medicare and Medicaid Programs and to oversee related Federal medical care quality control staffs.(10) The proposed accommodations for employees with handicapping conditions and the policy concerning reasonable accommodations for these employees are not: (1) related to the performance of the Agency's work; or (2) directly and integrally related to the Agency's operations. The mission of the Agency does not involve the establishment of a policy concerning employees with handicapping conditions or the accommodations that will or will not be made in certain instances. Moreover, even if the proposal did concern the establishment of such a policy, the proposal, by its terms, would still concern the conditions of employment of bargaining unit employees.
The Agency's reliance on Redstone Arsenal is, therefore, misplaced. Even assuming that a proposal establishing certain accommodations that an agency must make for employees with handicapping conditions is a method or a means under section 7106(b)(1) of the Statute, such a proposal, in accordance with the test for determining whether a proposal concerns the methods and means of performing work under section 7106(b)(1), would be negotiable unless the agency demonstrated a direct and integral relationship to the operation of the agency as a whole. See, for example, National Treasury Employees Union, Chapter 250 and Department of Health and Human Services, Family Support Administration Washington, D.C., 33 FLRA 61, 69-70 (1988) (Family Support Administration) (proposal concerning agency's smoking policy found not to concern the methods and means of performing work under section 7106(b)(1) because the agency did not demonstrate a direct and integral relationship between the smoking policy and accomplishment of its mission), enforced, Department of Health and Human Services, Family Support Administration v. FLRA, 920 F.2d 45 (D.C. Cir. 1990). Because the Agency has not established a direct connection between the proposed accommodations for employees with handicapping conditions and the performance of the Agency's work, we find, consistent with the decision in Family Support Administration, that the proposal does not concern the methods and means of performing work within the meaning of section 7106(b)(1).
2. Subsection (a) of the Proposal Does Not Directly Interfere with Management's Rights to Hire and Assign Employees
Subsection (a) requires the Agency, as a reasonable accommodation for employees with handicapping conditions, to modify the training and reference materials used to train those employees. The Agency has not demonstrated that the requirements of the proposal have any connection to its decision to hire or to assign employees under section 7106(a)(2)(A) of the Statute. Specifically, we note that the proposal does not require management to hire or assign any specific individual to accomplish the required modifications. Moreover, the fact that management may need to assign an employee to implement the requirement of the proposal that training and reference materials be modified does not mean that the proposal interferes with management's right to assign employees. We conclude, therefore, that subsection (a) does not directly interfere with management's right to hire or assign employees under section 7106(a)(2)(A) of the Statute.
3. Subsections (b) and (c) of the Proposal Directly Interfere with Management's Rights to Hire and Assign Employees
Proposals that require an agency to provide employees with handicapping conditions with qualified interpreters directly interfere with management's rights, under section 7106(a)(2)(A) of the Statute, to hire and to assign employees. Such proposals prevent the agency from determining that it will not hire or assign a qualified interpreter. See, for example, Redstone Arsenal, 10 FLRA at 443-44. Because Proposal 34 requires the Agency to provide trainees with handicapping conditions with qualified interpreters and mentors to provide individualized training, the proposal prevents the Agency from determining that it will not hire or assign such personnel. Accordingly, consistent with Redstone Arsenal, we find that Proposal 34 directly interferes with management's rights, under section 7106(a)(2)(A) of the Statute, to hire personnel and to assign employees.
3. The Proposal Is an Appropriate Arrangement
The Union claims that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. Applying the test set forth in KANG, we conclude that Proposal 34 is intended to be an arrangement for employees adversely affected by the exercise of management's right to assign work under section 7106(a)(2)(B). When training is assigned to an employee with a handicapping condition, the Agency makes such an assignment with prior knowledge that the handicapping condition exists and that certain accommodations will be required in order to conduct the training of such employees. If the measures prescribed by the proposal to facilitate the assigned training are not provided, an assignment of training to employees with the specific handicapping conditions covered by the proposal would operate to disadvantage those employees in competing for promotion. We find, therefore, that the proposal is an arrangement for employees adversely affected by the exercise of management's right to assign work.
As to whether Proposal 34 is an appropriate arrangement, we note that the proposal would preclude the Agency from assigning other duties to the interpreters and mentors during the period that they are assisting employees with handicapping conditions. Moreover, if the Agency does not have employees qualified to perform the tasks required by the proposal, the Agency would be required to hire such employees. By requiring management to provide mentors and interpreters to assist employees with handicapping conditions, the proposal necessitates a reallocation of the Agency's resources. Namely, the Agency would be required to assign employees to function as mentors and interpreters, thereby foregoing the right to assign other work to those employees during that period of time.
However, employees with handicapping conditions receive benefits from the operation of Proposal 34 that would ensure their participation in, and completion of, the training for which they were selected. If an employee with a disability that requires the use of an interpreter or a mentor is denied access to those resources, the ability of that employee to effectively participate in and/or complete the assigned training would be severely restricted.
The question presented, therefore, is whether the Agency's need to allocate personnel to perform the tasks of interpreters and mentors and to forego the assignment of other work to those employees is outweighed by the benefit to employees with handicapping conditions of effective participation in the assigned training and the increased potential for job advancement. We note that the personnel resources provided by the Agency to assist employees with handicapping conditions to effectively participate in training enhance the Agency's workforce by aiding employees with handicapping conditions to become more skilled and productive.
Moreover, 29 C.F.R. § 1613.704(a) provides that, unless an agency can establish that a reasonable accommodation for an employee with a handicapping condition would impose an undue burden on its program operation, such an accommodation shall be made by that agency. The Agency does not establish, and the record does not indicate, that making reasonable accommodations for employees with handicapping conditions would place an undue burden on the Agency's operations. On balance, we find that the burden on management's right to assign work to employees who will function as mentors and interpreters is outweighed by the benefit to employees with handicapping conditions of ensuring: (1) effective participation in the training program; and (2) increased potential for job advancement. Accordingly, we find that Proposal 34 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
XXX. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 1, Proposals 3 and 4, Proposal 6 (as it pertains to Union officials), Proposals 7 through 9, Proposal 10, Proposals 12 through 16, parts 1, 4, and 5 of Proposal 19, Proposal 22, Proposal 25, Proposal 26, Proposal 27, Proposal 29 (as it pertains to waiving contractual requirements and using performance awards and appraisals), Proposal 30, Proposal 31 (as it pertains to unit positions and targets), Proposal 32, and Proposal 34.(11)
The Union's petition for review as to Proposal 2, Proposal 5, Proposal 6 (as it pertains to EEO counselors), Proposal 17, Proposal 18, parts 6 and 7 of Proposal 19, Proposal 20, Proposal 21, Proposal 23, Proposal 24, Proposal 28, Proposal 29 (as it pertains to supervisory or management positions and waiving other obligations), Proposal 31 (as it pertains to priority consideration, management positions, and waiving qualification requirements), and Proposal 33 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Agency withdrew its allegation of nonnegotiability as to Proposal 11, and the Union withdrew its petition as to Proposal 14. Accordingly, we will not address Proposals 11 and 14.
2. Inasmuch as the record in this case is sufficient for us to decide the applicability of Cherry Point to the issues in this case, we deny the Agency's request to brief the applicability of Cherry Point.
3. As the Union states that its references to attachments have no operative effect, we will disregard all references to attachments found in the proposals.
4. Section A of Proposal 12 is not in dispute. In addition to all of Section B, the Agency alleges that all of Section (C) is nonnegotiable. The sentences in the whole proposal have been numbered for the convenience of the reader.
5. The term "adverse impact" refers to the fact that the consequences of employment policies and practices, rather than the employer's motivation or intent, are the primary concern in determining whether unlawful employment discrimination has occurred. See Schlei and Grossman, Employment Discrimination Law, 2nd ed., (1983), at 1287. The essence of adverse impact theory is the demonstration that an employer's policies or practices, although neutral on their face, have a substantial adverse impact on a protected group. Id. Specifically, in enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit practices, procedures, or tests that are neutral on their face, and even neutral in terms of intent, but which are "artificial, arbitrary and unnecessary barriers" to employment. Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971) (Griggs). See also 29 C.F.R. § 1607.16.B. Title VII of the Civil Rights Act of 1964 applies to Federal employees. 42 U.S.C. § 2000e-16. See Legislative History of the Equal Employment Opportunity Act of 1972 (EEOC Print 1972) at 423-24.
6. We note that the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, is intended to codify the concepts of business necessity and job-relatedness enunciated by the Supreme Court in Griggs. See Section 3.(2) of the Civil Rights Act of 1991. See also Section 105 of Title I of the Civil Rights Act of 1991.
7. Under 5 C.F.R. § 5.1, the OPM Director is authorized to grant a variation from the "strict letter" of an OPM regulation when "there are practical difficulties and unnecessary hardships in complying with the strict letter of the regulation" and "if such a variation is within the spirit of the regulations, and [if] the efficiency of the Government and the integrity of the competitive service are protected and promoted."
8. 29 C.F.R. Part 1613 prescribes the procedures for processing discrimination complaints filed by Federal employees. Effective October 1, 1992, 29 C.F.R. Part 1613 will be replaced by 29 C.F.R. Part 1614 which contains revised procedures governing the processing of Federal employee discrimination complaints. See 57 Fed. Reg. 12674-63 (April 10, 1992).
9. We express no view on the continued viability of the second budget test. See Fort Stewart Schools, 495 U.S. at 657-59. However, the Agency has failed to satisfy either budget test.
10. See United States Government Manual 1991/1992, at 318 (1991) (published as a special edition of the Federal Register, see 1 C.F.R. § 9.1).
11. In finding that these proposals are negotiable, we make no judgment as to their merits.