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49 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

OVERSEAS FEDERATION OF TEACHERS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

MEDITERRANEAN REGION

(Agency)

0-NG-2166

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 9, 1994

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). This appeal involves the negotiability of a single provision which was disapproved by the Agency head under section 7114(c) of the Statute, and which concerns priority reassignment for certain employees. For the following reasons, we conclude that the provision is negotiable.

II. Background and Provision

In response to the Agency's decision to limit tours of duty at the Lajes Air Base Schools (Lajes) to 3 years, the Union proposed that involuntarily reassigned employees be given priority to return to Lajes. The parties requested the assistance of the Federal Service Impasses Panel, which ordered them to adopt the following provision:

Current employees who were involuntarily reassigned from the Lajes Air Base Schools at the end of School Year 1991-92 shall be given priority to return to Lajes if: (1) a vacancy occurs; (2) the Employer decides to fill the vacancy; (3) the Employer decides to fill the vacancy through a reassignment of an employee from outside of Lajes; and (4) those employees wishing to return to Lajes are fully qualified and have a current performance rating of at least fully successful.

Statement of Position at 2.

The Agency head subsequently disapproved the provision under section 7114(c) of the Statute.

III. Positions of the Parties

A. Agency

The Agency argues that the provision interferes with its rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because, according to the Agency, the provision requires it to reassign specific employees to vacant positions at Lajes.⁽¹⁾ The Agency also argues that the provision does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Agency contends that the provision would excessively interfere with its rights because a substantial number of employees were reassigned from Lajes at the end of the 1991-92 school year and would be entitled to priority placement under the provision. In addition, the Agency maintains that, as employees are required to be mobile as a condition of employment and are reimbursed for the costs of relocation, they are not adversely affected by involuntary reassignments away from Lajes. According to the Agency, in view of the isolated location of Lajes, a reassignment to another location would improve an employee's working conditions.⁽²⁾

B. Union

The Union argues that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union claims that the Agency requires employees who have completed a 3-year tour of duty at Lajes to accept reassignment or face termination. The Union asserts that such reassignment necessitates a substantial adjustment in both the professional and personal lives of the affected employees. The Union also asserts that reassigning employees back to Lajes would benefit not only affected employees but also the Agency by providing the Agency with a group of employees who are willing to be reassigned to Lajes and who will be able to adjust to the conditions there.

IV. Analysis and Conclusions

The right to assign employees under section 7106(A)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of a position and the right to determine whether individual employees meet those qualifications. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). The provision here, by its plain wording, applies only after the Agency has determined to fill a vacant position at Lajes by reassignment of an employee from outside Lajes and only after the Agency has determined the qualifications required for the reassignment and whether an employee requesting reassignment meets those qualifications. As such, we conclude that the provision does not directly interfere with the Agency's right to assign employees. See American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884, 907 (1993) (Member Talkin dissenting as to other matters) petition for review filed as to other matters, No. 93-1488 (D.C. Cir. Aug. 10, 1993).

In so concluding, we find that the Agency's reliance on Fort Knox Dependent Schools, Chief Counsel, Internal Revenue Service and Customs Service is misplaced. In those cases, the disputed proposals limited management's discretion to determine the position to which an employee would be reassigned. In contrast, the provision here preserves the Agency's discretion to determine the position which will be filled by a reassignment, the qualifications necessary for reassignment, and whether individual employees meet those qualifications.

We also reject the Agency's assertion that the provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The right to assign work includes the right to determine to whom or to what position duties will be assigned. See Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 44 FLRA 821, 834 (1992). Nothing in the provision prevents the Agency from determining the duties to be assigned to any position, or to whom those duties will be assigned. Consequently, we conclude that the provision does not interfere with management's right to assign work under section 7106(a)(2)(B).

As the provision does not interfere with management's rights, we need not address the Agency's arguments that the provision is not an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, as no other basis on which to find the provision nonnegotiable has been asserted, we conclude that the provision is negotiable.

V. Order

The Agency shall rescind its disapproval of the disputed provision.⁽³⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency relies on Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA 934 (1987) (Fort Knox Dependent Schools); National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991) (Chief Counsel, Internal Revenue Service) enforced in part, vacated in part, and remanded in part as to other matters, 960 F.2d 1068 (1992), decision on remand, 45 FLRA 1256 (1992); and National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington D.C., 46 FLRA 696 (1992) (Customs Service).

2. The record indicates that Lajes is located on an island 20 miles in circumference located approximately 1000 miles west of Portugal in the Atlantic Ocean.

3. In finding the provision negotiable, we make no judgment as to its merits.

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