[ v55 p830 ]
55 FLRA No. 143
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
(Union)
and
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION, IRVING, TEXAS
(Agency)
0-NG-2459
_____
DECISION AND ORDER ON
NEGOTIABILITY ISSUES
September 24, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains two proposals. The Agency filed a statement of position, to which the Union did not respond.
For the reasons that follow, we find that the proposals excessively interfere with management's right to determine its organization under section 7106(a)(1) of the Statute, and we dismiss the Union's petition for review.
II. Background
The Agency notified the Union that it planned to transfer certain personnel functions from the Defense Contract Audit Agency (DCAA) Central Region human resources staff to the Defense Finance and Accounting Service (DFAS). See Enclosure 1 to Petition. The Agency and the Union reached agreement on a number of proposals, but disagreed on one subsection, subsection 1C. See Enclosure 4 at 2 to Petition. [n1] Under the Agency's plan, the staffing function performed for employees graded GS-13 and higher would remain at the DCAA Central Region; the staffing function for employees graded GS-12 and lower would be transferred to DFAS.
The Union responded to the Agency's plan by proposing the two alternative proposals at issue.
III. Proposals
A. Proposal 1
1. The following functions, currently performed by DCAA Central Region Human Resources personnel, will be transferred to DFAS no earlier than 2 August 1998:
C. Staffing Function (announcement, rating and ranking, development of referral lists, requesting OPM certificates) for all positions
Petition at 3.
B. Proposal 2
1. The following functions, currently performed by DCAA Central Region Human Resources personnel, will be transferred to DFAS no earlier than 2 August 1998:
C. Staffing Function (announcement, rating and ranking, development of referral lists, requesting OPM certificates) for all bargaining unit positions.
Id. at 4.
IV. Positions of the Parties
A. Union
The Union states that both proposals would transfer the staffing function currently being performed by DCAA Central Region Human Resources staff to DFAS. The sole difference between the two proposals is that Proposal 1 would transfer the staffing function performed for both bargaining unit and non-bargaining unit positions, while Proposal 2 would transfer the staffing function performed for bargaining unit positions only.
The Union explains that, under the Agency's plan, the GS-12 and below employees whose staffing functions are transferred to DFAS will receive slower, lower quality service than the GS-13 Technical Specialists [ v55 p831 ] whose staffing functions will remain at DCAA. The Union maintains that this unequal service will exacerbate the existing tension between these two groups of bargaining unit employees, and will thereby "create an adverse impact on those positions." [n2] Id.
The Union argues that because the proposals would not change the Agency's organization in any way, they would not affect management's right to determine its organization under section 7106(a)(1) of the Statute. According to the Union, the Agency stated during negotiations that the proposed transfer of functions would not result in a decrease in personnel at DCAA. On this basis, the Union contends that the proposals would not require the Agency to transfer any personnel. The Union also asserts that the proposals do not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute, and to the extent that they do interfere with that right, they do not do so "in an excessive manner." Id. at 3, 4.
Additionally, the Union argues that the proposals concern matters within section 7106(b)(1) of the Statute because "the [A]gency wants to transfer personnel functions by grade of employee[,]" and because the proposals concern the methods and means of performing work. Id. at 3. The Union asserts that the Agency agreed, in section 4.02A. of the parties' collective bargaining agreement, to negotiate over all section 7106(b)(1) matters, and that, as a result, the Authority should direct the Agency to bargain over the proposals.
B. Agency
The Agency asserts that because its proposed transfer of personnel functions to DFAS does not change conditions of employment of GS-13 unit positions, the Agency has no bargaining obligation with respect to them.
The Agency also asserts that the proposals interfere with management's right to determine its organization under section 7106(a)(1) of the Statute. In addition, according to the Agency, the proposals require the Agency to assign certain work functions to particular individuals or organizational subdivisions and, as such, affect management's right to assign work under section 7106(a)(2)(B). In support of this assertion, the Agency cites International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813 (1996) (South Pacific Division). The Agency maintains that the Union's contention that the proposals concern 7106(b)(1) matters constitutes a bare assertion and should be rejected by the Authority.
Finally, the Agency argues that Proposal 1 is non-negotiable because it affects the conditions of employment of non-bargaining unit employees. In this connection, the Agency maintains that, unlike Proposal 2, Proposal 1 concerns the staffing function for all employees, not only bargaining unit employees.
V. Meaning of the Proposals
The proposals are intended to be alternatives to the Agency's plan to transfer staffing functions for employees graded GS-12 and below. Both of the proposals would require the Agency to transfer the staffing function -- "announcement, rating and ranking, development of referral lists, requesting OPM certificates" -- from the DCAA Central Region to DFAS. Petition at 1. Proposal 1 would require the transfer of this staffing function for all positions at DCAA, GS-3 through Executive level --including both bargaining unit and non-bargaining unit positions. Proposal 2 would require such transfer only for bargaining unit positions.
VI. Analysis and Conclusions
The Union both disputes the Agency's assertion that the proposals affect management's rights under section 7106(a) of the Statute to determine the organization of the Agency and to assign work, and asserts that the proposals are negotiable under section 7106(b)(1). Accordingly, we first address whether the proposal affects those 7106(a) rights. See American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 178 (1998) (HUD Council of Locals).
A. Proposals 1 and 2 Affect Management's Right to Determine Its Organization under Section 7106(a)(1) of the Statute.
Management's right to determine its organization under section 7106(a)(1) of the Statute encompasses an agency's authority to determine its administrative and functional structure, including the relationship of personnel through lines of control and the distribution of responsibilities for delegated and assigned duties. South Pacific Division, 52 FLRA at 819. The right includes [ v55 p832 ] the authority to determine how the agency will structure itself to accomplish its mission and functions. Id. This determination includes such matters as where organizationally certain functions shall be established and where the duty stations of the positions providing those functions shall be maintained. See National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville District, 32 FLRA 886, 889-90 (1988). The Authority has found that a proposal directed at continuing particular work functions at a particular site, thereby precluding the agency from consolidating the performance of that work function at another site, affects management's right to determine the organization of the agency. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 526, 531-32 (1997) (Proposal 1).
The Union contends that the proposals do not affect management's right to determine its organization because they would transfer only functions performed, and would not transfer any personnel. However, in determining whether a proposal affects management's right to determine the agency's organization, the Authority focuses on whether work functions are transferred, rather than on whether personnel are transferred. For example, the Authority has found that a proposal directed at continuing a particular human resources function at its existing location, when the agency intended to transfer performance of that function to another site, affected management's right to determine the agency's organization, even though the proposal did not address transfer of personnel. See id. at 531-32.
Proposal 1 would require management to transfer all of the staffing function performed for both bargaining unit and non-bargaining unit employees at DCAA Central Region to DFAS. Proposal 2 would require management to transfer all of the staffing function performed for bargaining unit employees at DCAA Central Region to DFAS. Because both proposals would dictate where, organizationally, the Agency's staffing function is established, we find that the proposals affect management's right to determine the organization of the Agency under section 7106(a)(1) of the Statute. In the circumstances of this case, we next address whether the proposals are bargainable at the Agency's election under section 7106(b)(1). [n3] See HUD Council of Locals, 54 FLRA at 178.
B. The Proposals Do Not Concern the Grades of Employees Assigned to an Organizational Subdivision, under Section 7106(b)(1) of the Statute.
Section 7106(b)(1) of the Statute makes bargainable at the election of the agency proposals that concern the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" The Authority has defined this phrase to mean "the establishment of staffing patterns, or allocation of staff, for the purpose of an agency's organization and the accomplishment of its work." National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030-31 (1997).
The Union asserts that "[t]he instant issue is clearly a subject falling under the provisions of 7106(b)(1) in that the [A]gency wants to transfer personnel functions by grade of employee." Petition at 3. We construe this assertion as an argument that the proposals concern the grades of employees assigned to an organizational subdivision within the meaning of section 7106(b)(1) of the Statute.
Proposal 1 would require the Agency to transfer the staffing function for all positions from DCAA Central Region to DFAS, and Proposal 2 would require the Agency to transfer that function for all bargaining unit positions. The proposals do not involve the grade of [ v55 p833 ] staff to be assigned to a particular subdivision. In fact, the Union concedes that no changes in assigned personnel are contemplated by the proposals. Id. The proposals involve personnel work itself, and who should be assigned to perform that work for employees of a particular grade. The grade of employees assigned to do that work is not a subject of the proposals, and as such, we find that the proposals do not concern the grades of employees assigned to an organizational subdivision.
C. The Proposals Do Not Concern the Methods and Means of Performing Work, under Section 7106(b)(1) of the Statute.
The Authority applies a two-pronged test to determine whether a proposal concerns the methods and means of performing work, within the meaning of section 7106(b)(1) of the Statute. [n4] First, the proposal must concern a "method" or "means" as defined by the Authority. In this regard, the Authority construes "method" to refer to "the way in which an agency performs its work." South Pacific Division, 52 FLRA at 818. The term "means" refers to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. Second, it must be shown that (1) there is a direct and integral relationship between the particular methods 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, e.g., Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 420 (1993).
Both proposals would transfer the staffing function performed for certain employees from one location to another. Neither proposal prescribes the way in which the Agency must perform its work. Nor does either proposal concern the means that the Agency will use in performing its work, as that term is defined above. Accordingly, we find that the proposals do not concern the methods and means of performing work under section 7106(b)(1) of the Statute. Cf. National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1438 (1998) (proposals preventing an agency from implementing its decision to change the geographic location of two offices do not concern the methods and means of performing work); South Pacific Division, 52 FLRA at 818 (a proposal requiring the establishment of organizational subdivisions does not concern the methods or means of performing work).
Because the proposals affect management's right to determine its organization under section 7106(a)(1) of the Statute, the Agency is not obligated to bargain over the proposals, and we dismiss the Union's petition. [n5]
VII. Order
The Union's petition for review is dismissed.
Footnote # 1 for 55 FLRA No. 143
The parties reached agreement on the Agency's planned transfer of the following functions to DFAS: "Automated processing of personnel actions and distribution of SF-50s"; "Maintenance of Official Personnel Folders"; "Benefits functions"; "Work with Central Region Personnel on OWCP (Workers' Comp) Program"; "Process[ing] RIF actions (with assistance of the Central Region Human Resources staff.)"; and "Manage[ment] [of the] Employee Assistance Program." Enclosure 4 at 1 to Petition.
Footnote # 2 for 55 FLRA No. 143
With regard to the existing tension between these two groups of employees, the Union asserts that most of the Technical Specialist positions have been filled via lateral assignments from GS-13 supervisors. As a result, according to the Union, the other bargaining unit employees resent the Technical Specialists because they still consider those Specialists to be affiliated with management.
Footnote # 3 for 55 FLRA No. 143
The Union makes no claim that the proposals are within the duty to bargain as procedures under section 7106(b)(2) of the Statute. To the extent that the Union's assertion that the proposals do not interfere with the Agency's rights "in an excessive manner" can be construed as a claim that the proposals constitute appropriate arrangements under section 7106(b)(3), we reject the claim. Petition at 3, 4. In determining whether a proposal is an appropriate arrangement, the Authority, among other things, weighs the "competing practical needs of employees and managers" to determine whether the proposal excessively interferes with management's right. See National Association of Government Employees, Local R3-76 and U.S. Department of Defense, Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, Pennsylvania, 55 FLRA 509, 512 (1999) (Member Cabaniss dissenting as to other matters). Here, the proposals would afford unit employees the asserted benefit of equalizing personnel services provided as a result of the transfer of various functions. However, the proposals would completely preclude the Agency from determining where certain personnel functions will be performed. The Union provides no support for finding that the potential burden the proposals would have on the Agency's right to determine its organization is outweighed by the potential benefit the proposals would provide to unit employees. Accordingly, we conclude that the Union has not demonstrated that the proposals constitute appropriate arrangements. See American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 205 (1993).
Footnote # 4 for 55 FLRA No. 143
The Authority has noted that this test may no longer be appropriate in cases where the union, rather than the agency, contends that the proposal concerns methods and means. See National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1438 n.3 (1998). As neither party in this case has requested that we reconsider the test, we do not do so here.
Footnote # 5 for 55 FLRA No. 143
Accordingly, we do not address the Agency's assertion that Proposal 1 is nonnegotiable because it directly determines the conditions of employment of non-unit employees. As for the Agency's argument that it has no obligation to bargain over the proposals because it does not intend to change conditions of employment for GS-13 unit employees, pursuant to the Authority's regulations that were in effect at the time this case was filed, the Authority does not resolve issues pertaining to an agency's bargaining obligation in the context of negotiability disputes. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990).