Association of Civilian Technicians (Union) and State of Georgia National Guard (Activity) 

 



[ v02 p581 ]
02:0581(75)NG
The decision of the Authority follows:


 2 FLRA No. 75
 
 ASSOCIATION OF CIVILIAN TECHNICIANS
 (Union)
 
 and
 
 STATE OF GEORGIA NATIONAL GUARD
 (Activity)
 
                                            Case No. 0-NG-35
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    TECHNICIANS MAY BE RESPONSIBLE FOR MAINTAINING HIS/HER IMMEDIATE WORK
 AREA, HOWEVER WILL NOT BE UTILIZED FOR GROUNDS MAINTENANCE, OR
 ACTIVITIES WHICH ARE NOT JOB RELATED.  AN EXCEPTION TO THIS IS
 RECOGNIZED WHEN A GENERAL CLEANUP IS REQUIRED.  TECHNICIANS WILL NOT BE
 DIRECTED TO ASSIGNMENTS OUTSIDE HIS/HER POSITION DUTIES WITHOUT HIS/HER
 CONSENT.  SEE FLRC 76A-139;  JUN. 77, FLRC 73A-21;  JAN. 74, FLRC
 76A-44;  JUL. 77.
 
    WHEN A GENERAL CLEANUP IS REQUIRED, ASSIGNMENT WILL BE MADE ON AN
 EQUITABLE BASIS WITHOUT REGARD TO RANK OR GRADE OR SEX.  EXCEPTION WILL
 BE RECOGNIZED FOR PHYSICAL INFIRMITIES WHICH MAY PRECLUDE PARTICIPATION
 OR ENDANGER THE HEALTH OF THE TECHNICIAN.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 (FSLMR) STATUTE OR, AS ALLEGED BY THE AGENCY, VIOLATES SECTION 7106(A)
 OF THE STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  (1) THE FIRST PARAGRAPH OF THE PROPOSAL CONFLICTS WITH
 SECTION 7106(A)(2)(B) OF THE STATUTE.  (2) THE SECOND PARAGRAPH OF THE
 PROPOSAL DOES NOT VIOLATE SECTION 7106(A)(2)(B) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44740ET SEQ.(1979)), THE AGENCY'S ALLEGATION
 THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
 SUSTAINED IN PART AND SET ASIDE IN PART.  /2/
 
    REASONS:  (1) UNDER THE LANGUAGE OF SECTION 7106(A)(2)(B) OF THE
 STATUTE (AND IN THE ABSENCE OF ANY CONTRARY INDICATION IN THE
 LEGISLATIVE HISTORY OF SUCH LANGUAGE) IT IS CLEAR THAT MANAGEMENT HAS
 THE RIGHT "TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO DETERMINE THE PERSONNEL BY WHICH AGENCY
 OPERATIONS SHALL BE CONDUCTED . . . " THE FOREGOING PROVISION AS ENACTED
 IS IDENTICAL TO SECTION 7106(A)(2)(B) OF THE BILL (H.R. 11280) REPORTED
 OUT OF THE HOUSE COMMITTEE /3/ AND THE FINAL VERSION OF THE BILL PASSED
 BY THE HOUSE (THE "UDALL SUBSTITUTE").  /4/ NEITHER THE REPORT WHICH
 ACCOMPANIED THE HOUSE COMMITTEE BILL /5/ NOR ANY SUBSEQUENT DISCUSSION
 LEADING TO THE ENACTMENT OF THIS PROVISION /6/ DEFINES OR EXPLAINS THE
 EXTENT OF MANAGEMENT'S RESERVED RIGHT "TO ASSIGN WORK." AT THE LEAST,
 HOWEVER, IT CLEARLY ENCOMPASSES THE CIRCUMSTANCES OF THE PRESENT CASE
 INSOFAR AS THE FIRST PARAGRAPH OF THE PROPOSAL PROVIDES THAT
 "(T)ECHNICIANS . . . WILL NOT BE UTILIZED FOR GROUNDS MAINTENANCE, OR
 ACTIVITIES WHICH ARE NOT JOB RELATED," AND "WILL NOT BE DIRECTED TO
 ASSIGNMENTS OUTSIDE (THEIR) POSITION DUTIES WITHOUT (THEIR) CONSENT."
 THAT IS, THIS EXPRESS LANGUAGE WOULD CONSTITUTE AN ABSOLUTE PROHIBITION
 AGAINST MANAGEMENT'S ASSIGNING GROUNDS MAINTENANCE OR OTHER NON-JOB
 RELATED DUTIES TO TECHNICIAN POSITIONS AND, AS WELL, WOULD PREVENT
 MANAGEMENT FROM ASSIGNING SUCH WORK TO TECHNICIANS WITHOUT THEIR
 CONSENT, APPARENTLY WHETHER OR NOT THE DUTIES WERE REFLECTED IN THEIR
 POSITION DESCRIPTIONS.  THE INSTANT CASE IS THEREFORE DISTINGUISHABLE
 FROM AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
 JERSEY, CASE NO. O-NG-20, 2 FLRA NO. 16(NOV. 29, 1979), REPORT NO.  . .
 . , IN WHICH THE AUTHORITY FOUND (AG 7-9 OF DECISION) THAT MANAGEMENT'S
 RIGHT "TO ASSIGN WORK" UNDER SECTION 7106(A)(2)(B) OF THE STATUTE WAS
 NOT VIOLATED BY A UNION PROPOSAL WHICH WOULD REQUIRE AGENCY MANAGEMENT
 TO AMEND AN EMPLOYEE'S POSITION DESCRIPTION IF IT DECIDED TO REQUIRE THE
 PERFORMANCE, ON A REGULAR BASIS, OF ADDITIONAL DUTIES NOT REASONABLY
 RELATED TO THE DUTIES SET FORTH IN THE POSITION DESCRIPTION, AND WOULD
 THEREFORE PREVENT MANAGEMENT FROM RELYING ON THE GENERAL PHRASE "OTHER
 RELATED DUTIES AS ASSIGNED" FOR SUCH PURPOSE.  BY CONTRAST, THE UNION
 PROPOSAL HEREIN WOULD APPEAR TO PREVENT THE ACTIVITY FROM ASSIGNING
 CERTAIN DUTIES TO TECHNICIANS EVEN IF THEIR POSITION DESCRIPTIONS WERE
 AMENDED TO INCLUDE SUCH DUTIES.
 
    ACCORDINGLY, THE FIRST PARAGRAPH OF THE UNION'S PROPOSAL CONFLICTS
 WITH SECTION 7106(A)(2)(B) OF THE STATUTE, AND THE AGENCY'S ALLEGATION
 THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED.
 
    (2) THE SECOND PARAGRAPH OF THE UNION'S PROPOSAL ESSENTIALLY PROVIDES
 THAT, WITH CERTAIN LIMITED EXCEPTIONS, "(W)HEN A GENERAL CLEANUP IS
 REQUIRED, ASSIGNMENT WILL BE MADE ON AN EQUITABLE BASIS . . . " THE
 UNION ASSERTS THAT ITS PROPOSAL IS NOT INTENDED TO LIMIT OR RESTRICT
 MANAGEMENT'S RIGHT TO ASSIGN WORK, BUT MERELY SEEKS "AN EQUITABLE
 SOLUTION TO CLEANUP AND GROUNDS KEEPING . . . "
 
    SECTION 7106(B)(2) OF THE STATUTE /7/ PROVIDES THAT MANAGEMENT'S
 EXERCISE OF ANY RIGHTS CONTAINED IN SECTION 7106(A) OF THE STATUTE DOES
 NOT PRECLUDE NEGOTIATIONS ON THE PROCEDURES WHICH MANAGEMENT OFFICIALS
 WILL OBSERVE IN EXERCISING THOSE RIGHTS.  IN THIS CONNECTION, THE
 LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE INTENT TO AUTHORIZE
 UNIONS TO NEGOTIATE FULLY ON SUCH PROCEDURES, UNLESS THE NEGOTIATIONS
 WOULD PREVENT MANAGEMENT FROM ACTING AT ALL.  /8/ BASED UPON THE RECORD
 IN THE INSTANT CASE, THE ESSENCE OF THIS PORTION OF THE UNION'S PROPOSAL
 IS TO ENSURE FAIRNESS AND EQUITY IN THE ASSIGNMENT OF GENERAL CLEANUP
 AND GROUNDS MAINTENANCE DUTIES-- NOT TO OBLIGATE MANAGEMENT TO BARGAIN
 ABOUT WHETHER TECHNICIANS, INDIVIDUALLY OR COLLECTIVELY, WILL OR WILL
 NOT PERFORM SUCH GENERAL CLEANUP AND GROUNDS MAINTENANCE.  /9/ THAT IS,
 THE SECOND PARAGRAPH OF THE PROPOSAL MERELY PROVIDES THAT, ONCE
 MANAGEMENT HAS DECIDED TO REQUIRE A GENERAL CLEANUP AND HAS DETERMINED
 WHICH EMPLOYEES WILL PERFORM SUCH DUTIES, MANAGEMENT WILL DISTRIBUTE
 SPECIFIC ASSIGNMENTS TO SUCH DUTIES ON A FAIR AND EQUITABLE BASIS.
 SINCE THERE IS NO SHOWING THAT A PROCEDURE TO DISTRIBUTE CLEANUP
 ASSIGNMENTS EQUITABLY WILL PREVENT MANAGEMENT FROM ACTING AT ALL IN
 ASSIGNING GENERAL CLEANUP DUTIES TO TECHNICIANS, THE PROCEDURE IN
 QUESTION IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE
 STATUTE AND THE AGENCY'S ALLEGATION TO THE CONTRARY MUST BE SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A) OF THE FSLMR STATUTE (92 STAT. 1198) PROVIDES IN
 PERTINENT PART:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY;  AND
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED. . . .
 
    /2/ IN SO DECIDING THAT THE SECOND PARAGRAPH OF THE SUBJECT PROPOSAL
 IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE
 MERITS OF THE PROPOSAL.
 
    /3/ SEE H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 274(1978).
 
    /4/ SEE 124 CONG.REC. H9627(DAILY ED. SEPT. 13, 1978).
 
    /5/ SUPRA N. 3,AT 43.
 
    /6/ SEE, E.G., 124 CONG.REC. H9634(DAILY ED. SEPT. 13, 1978).
 
    /7/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /8/ AS THE AUTHORITY HAS PREVIOUSLY NOTED, SEE NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS
 DISTRICT OFFICE, CASE NO.  O-NG-9, 1 FLRA NO. 102(AUG. 23, 1979), REPORT
 NO. 15, AT N. 9, AND CASE NO. O-NG-20, SUPRA NOTE 7, AT N. 5 OF
 DECISION, THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE
 STATED IN THE CONFERENCE REPORT WHICH ACCOMPANIED THE BILL WHICH WAS
 ENACTED AND SIGNED INTO LAW, AS FOLLOWS:
 
    3.  SENATE SECTION 7218(B) PROVIDES THAT NEGOTIATIONS ON PROCEDURES
 GOVERNING THE EXERCISE
 
    OF AUTHORITY RESERVED TO MANAGEMENT SHALL NOT UNREASONABLY DELAY THE
 EXERCISE BY MANAGEMENT OF
 
    ITS AUTHORITY TO ACT ON SUCH MATTERS.  ANY NEGOTIATIONS ON PROCEDURES
 GOVERNING MATTERS
 
    OTHERWISE RESERVED TO AGENCY DISCRETION BY SUBSECTION (A) MAY NOT
 HAVE THE EFFECT OF ACTUALLY
 
    NEGATING THE AUTHORITY AS RESERVED TO THE AGENCY BY SUBSECTION (A).
 THERE ARE NO COMPARABLE
 
    HOUSE PROVISIONS
 
    THE CONFERENCE REPORT DELETES THESE PROVISIONS.  HOWEVER, THE
 CONFEREES WISH TO EMPHASIZE
 
    THAT NEGOTIATIONS ON SUCH PROCEDURES SHOULD NOT BE CONDUCTED IN A WAY
 THAT PREVENTS THE
 
    EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING FULLY ON PROCEDURES .  . .
 
    S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 158(1978).
 
    /9/ IN THIS CONNECTION, THE AUTHORITY NOTES THAT, WHILE THE FIRST
 PARAGRAPH OF THE UNION'S PROPOSAL RESTRICTED MANAGEMENT'S RIGHT TO
 ASSIGN GROUNDS MAINTENANCE WORK TO TECHNICIANS AND WAS THEREFORE FOUND
 TO BE INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE AND HENCE
 NONNEGOTIABLE, THERE WAS A SPECIFIC "EXCEPTION TO THIS (RESTRICTION) .
 . . WHEN A GENERAL CLEANUP IS REQUIRED."