American Federation of Government Employees, Local 3933 and Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Duluth, Minnesota, 0-NG-2706, December 8, 2003, 59 FLRA No. 78.

In a split decision (Chairman Cabaniss dissenting), the Authority found that a proposal requiring the selection of the most senior secretary bidding on a vacant team position excessively interferes with management's rights to assign work and assign employees. "We find particularly burdensome the proposal's requirement that only seniority be considered when assigning and reassigning unit secretaries. In this regard, the proposal provides no circumstance in which the Agency could determine--based on experience, length of service, or some other factor--that one secretary is better qualified for a particular assignment than another."

The disputed proposal reads as follows:

Whenever a Unit secretary vacancy occurs, all unit secretaries will be given an opportunity to submit a request for the vacancy. The most senior Unit secretary submitting a request will be selected first. If no Unit secretary submits a request, the secretary with the least amount of seniority or newly assigned secretary will be assigned to that vacancy. This seniority system shall also apply whenever Management determines a need to reassign a Unit secretary. This agreement shall be applied in accordance with 5 U.S.C. 7106.

The union said that the proposal allows the agency to determine which employees are qualified for the secretary position and that the proposal applies only to secretaries who are "equal in ability to perform the assignments."

Although FLRA adopted the union's explanation of the meaning of the proposal, it distinguished between the secretaries' qualifications for their positions and their qualifications for assignments to particular teams.

[T]he Union claims the secretaries are equally qualified for any team assignment because the Agency has qualified them for the position and because similar work is performed in all the teams. . . . We reject the Union's claim that all of the secretaries affected by its proposal are equally qualified for any unit assignment or reassignment merely because the Agency has determined them to be qualified for the secretary position. Although employees may be equally qualified for a particular position, agencies may consider other factors, such as experience and length of service relative to other team members [emphasis added], when making specific assignments and reassignments.. See, e.g., AFGE, AFL-CIO, Local 738, 33 FLRA 380 (1988) [33 FLRA No. 48]. Consideration of such job-related, individual characteristics is inherent in management's rights to assign work and assign employees under the Statute. See id. at 382.

FLRA noted that the agency said that assignments depend on secretaries' experience and length of service as compared to other team members. FLRA pointed out that it had "found a proposal nonnegotiable because it did not 'not allow the [a]gency to make any judgment on the qualifications of those employees relative to each other or to other employees, to perform the work' of a particular position in a different division." It accordingly concluded the proposal affects management's right to assign work and assign employees.

After assuming without deciding that the proposal was sufficiently tailored to compensate employees adversely affected by management's rights, it found that the proposal excessively interfered with management's rights to assign work and assign employees.

Absent some finding that management's internal security rights were affected (an issue the majority found unnecessary to address), Chairman Cabaniss said she would find the proposal within the duty to bargain because, in her view, the proposal didn't affect management's assignment rights.

From a real-world practicalities standpoint, I doubt that few if any employees will ever be found equally qualified for a particular position after the Agency has had the opportunity to assess candidates against the various factors outlined in its arguments. However, that real-world practicality does not undercut the otherwise negotiable nature of proposals mandating reliance on seniority to choose among equally qualified employees provided the agency has first had the opportunity to determine what employees are equally qualified. [Emphasis added.]

When negotiating language involving the use of seniority in making assignments among equally qualified employees, management negotiators might want to consider, in drafting their counterproposals, using language similar to that italicized above as a condition precedent to the application of the seniority criterion.