American Federation of Government Employees, AFL-CIO, Local 695 (Union) and Department of the Treasury, U.S. Mint, Denver, Colorado (Activity)

 



[ v03 p43 ]
03:0043(7)NG
The decision of the Authority follows:


 3 FLRA No. 7
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 695
 (Union)
 
 and
 
 DEPARTMENT OF THE TREASURY,
 U.S. MINT, DENVER, COLORADO
 (Activity)
 
                                            Case No. 0-NG-114
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C 7101 ET SEQ.).
 
                             UNION PROPOSAL I
 
    ARTICLE VI.  WORK ASSIGNMENTS
 
    SECTION 2.  WORK AND POSITION ROTATION IN THE COIN PRESS BRANCH:
 WORK ASSIGNMENTS SHALL BE
 
    ROTATED WEEKLY.
 
    SECTION 4.  WORK AND POSITION ROTATION IN THE COIN BLANKING SEC:
 WORK ASSIGNMENTS SHALL BE
 
    ROTATED WEEKLY.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE OR IS OUTSIDE THE DUTY TO BARGAIN UNDER
 SECTION 7106(A)(2)(A), /1/ AS ALLEGED BY THE AGENCY.
 
    PRELIMINARILY, IT IS NOTED THAT THE AGENCY, AFTER THE UNION FILED ITS
 RESPONSE TO THE AGENCY'S STATEMENT PURSUANT TO SECTION 2424.7 OF THE
 AUTHORITY'S REGULATIONS, REQUESTED PERMISSION, IN EFFECT, TO MAKE AN
 ADDITIONAL SUBMISSION HEREIN AND THE UNION OBJECTED TO THAT REQUEST.
 
    NEITHER THE STATUTE NOR THE AUTHORITY'S RULES OF PROCEDURE PROVIDES
 FOR ANY SUBMISSIONS BY THE PARTIES TO A NEGOTIABILITY CASE BEFORE THE
 AUTHORITY BEYOND THE UNION'S PETITION, THE AGENCY'S STATEMENT, AND THE
 UNION'S RESPONSE TO THAT STATEMENT.  FURTHER, THE STATUTE AND THE
 AUTHORITY'S REGULATIONS PROVIDE THE AGENCY 30 DAYS FROM THE DATE OF THE
 AGENCY HEAD'S RECEIPT OF A COPY OF THE UNION'S APPEAL TO SET FORTH IN
 FULL THE AGENCY'S POSITION ON ANY MATTERS RELEVANT TO THE PETITION WHICH
 IT WISHES THE AUTHORITY TO CONSIDER IN REACHING A DECISION.  THEREFORE,
 IT IS THE POLICY OF THE AUTHORITY, AS REFLECTED IN SECTION 2424.8 OF ITS
 REGULATIONS (45 FED.REG. 3512-3513), NOT TO CONSIDER SUBMISSIONS IN
 NEGOTIABILITY CASES OTHER THAN THOSE PRESCRIBED IN THE STATUTE AND THE
 AUTHORITY'S REGULATIONS, UNLESS ADDITIONAL INFORMATION IS EITHER
 REQUESTED BY THE AUTHORITY OR THE AUTHORITY, IN ITS DISCRETION, GRANTS
 PERMISSION TO FILE SUCH SUBMISSION.
 
    NO ADDITIONAL INFORMATION, BEYOND THAT CONTAINED IN THE APPEAL, THE
 AGENCY'S STATEMENT, AND THE UNION'S RESPONSE, IS DEEMED NECESSARY IN THE
 INSTANT CASE.  ACCORDINGLY, THE AGENCY'S REQUEST TO FILE SUCH ADDITIONAL
 SUBMISSION IS HEREBY DENIED, AND NOTHING SUBMITTED WITH THAT REQUEST HAS
 BEEN CONSIDERED BY THE AUTHORITY IN REACHING ITS DECISION HEREIN.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONFLICTS WITH MANAGEMENT'S RIGHT TO ASSIGN
 EMPLOYEES WITHIN THE MEANING OF SECTION 7106(A)(2)(A) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE AGENCY'S ALLEGATION
 THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
 SUSTAINED.
 
    REASONS:  THE AGENCY CONTENDS, AMONG OTHER THINGS THAT THE UNION'S
 PROPOSAL WOULD PREVENT THE ACTIVITY FROM ASSIGNING ANY EMPLOYEE IN
 EITHER THE COIN PRESS BRANCH OR COIN BLANKING SECTION TO ANY APPROPRIATE
 WORK AT ANY TIME AND THEREFORE VIOLATES SECTION 7106(A)(2)(A) OF THE
 STATUTE.  IN ITS SUBMISSIONS TO THE AUTHORITY, THE UNION DOES NOT
 SPECIFY THE INTENT OF ITS PROPOSAL.  HOWEVER, FOR THE REASONS STATED
 BELOW, IT IS CONCLUDED THAT THE PROPOSAL VIOLATES MANAGEMENT'S RIGHT TO
 ASSIGN AND THEREFORE IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    ON ITS FACE, THE DISPUTED PROPOSAL REQUIRES THAT "(W)ORK ASSIGNMENTS
 SHALL BE ROTATED WEEKLY" IN THE COIN PRESS BRANCH AND THE COIN BLANKING
 SECTION OF THE ACTIVITY.  HOWEVER, IT IS UNCLEAR WHETHER THE PROPOSAL
 WOULD COMPEL THE ACTIVITY TO ASSIGN EMPLOYEES TO DIFFERENT POSITIONS
 WITHIN THESE OPERATIONS (EACH POSITION REQUIRING PARTICULAR SKILLS AND
 QUALIFICATIONS IN THE PERFORMANCE OF SPECIFIC DUTIES IDENTIFIED WITH
 THAT POSITION) OR WOULD MERELY REQUIRE EMPLOYEES TO BE ROTATED THROUGH
 THE VARIETY OF DUTIES CONTAINED IN HIS OR HER OWN POSITION DESCRIPTION.
 IN THE INSTANT CASE, IT IS IMMATERIAL WHICH INTERPRETATION OF THE
 PROPOSAL WAS INTENDED, FOR IN EITHER CASE THE LANGUAGE OF THE DISPUTED
 PROPOSAL WOULD CONFLICT WITH MANAGEMENT'S RESERVED RIGHT TO ASSIGN
 WITHIN THE MEANING OF SECTION 7106(A)(2)(A) OF THE STATUTE.  THAT IS,
 EVEN IF THE UNION INTENDED ONLY THAT EMPLOYEES BE ROTATED TO THE VARIOUS
 DUTIES WITHIN THEIR OWN POSITION DESCRIPTION, THE SPECIFIC LANGUAGE OF
 THE PROPOSAL AT ISSUE WOULD REQUIRE ALL EMPLOYEES TO BE ROTATED EACH
 WEEK REGARDLESS WHETHER ANY WORK WERE AVAILABLE WHICH REQUIRED THE
 PERFORMANCE OF SUCH DUTIES OR WHETHER THE WORK PREVIOUSLY ASSIGNED HAD
 BEEN COMPLETED.  IN OTHER WORDS, MANAGEMENT WOULD BE RESTRICTED IN
 MAKING NEW ASSIGNMENTS, OR IN MODIFYING, TERMINATING, OR CONTINUING
 EXISTING ONES AS DEEMED NECESSARY OR DESIRABLE.  ACCORDINGLY, THE
 SPECIFIC PROPOSAL AT ISSUE HEREIN IS OUTSIDE THE DUTY TO BARGAIN UNDER
 THE STATUTE.
 
                             UNION PROPOSAL II
 
    ARTICLE VII.  DETAILS
 
    SECTION 1.  NECESSITY OF A DETAIL
 
    MANAGEMENT WILL DETERMINE WHEN DETAILS ARE NECESSARY, THE NUMBER OF
 EMPLOYEES TO BE DETAILED AND THE AREA FROM WHICH THEY WILL BE DETAILED.
 
    (THIS PORTION OF THE PROPOSAL WAS FOUND NEGOTIABLE BY THE AGENCY AND
 IS THEREFORE NOT IN DISPUTE.)
 
    SECTION 2.  GENERAL DETAILS
 
    IN SITUATIONS WHERE DETAILS OF EMPLOYEES TO POSITIONS OUTSIDE THEIR
 BRANCH ARE EXPECTED TO BE REGULAR OR RECURRING AND WHERE NO SPECIAL
 SKILLS OR QUALIFICATIONS ARE REQUIRED, THE EMPLOYEE SELECTED FOR THE
 DETAIL WILL BE THE SENIOR EMPLOYEE WITHIN THE BRANCH WHO HAS VOLUNTEERED
 FOR THE ASSIGNMENT.  WHEN ASKING FOR VOLUNTEERS, MANAGEMENT WILL INFORM
 EMPLOYEES OF THE TYPE OF WORK TO BE PERFORMED AND THE DURATION OF THE
 ASSIGNMENT.  IF THERE ARE NO VOLUNTEERS, THE LEAST SENIOR EMPLOYEE
 WITHIN THE BRANCH WILL BE SELECTED.
 
    SECTION 3.  DETAILS INVOLVING SPECIAL QUALIFICATIONS
 
    IN SITUATIONS WHERE IT IS NECESSARY TO SELECT AN EMPLOYEE WITH
 SPECIFIC QUALIFICATIONS FOR A DETAIL OUTSIDE HIS BRANCH, THE EMPLOYEES
 WITHIN THE BRANCH WILL BE INFORMED OF THE TYPE OF WORK TO BE PERFORMED,
 THE LENGTH OF THE DETAIL AND THE QUALIFICATIONS FOR THE ASSIGNMENT.  THE
 SENIOR QUALIFIED EMPLOYEE WITHIN THE BRANCH WHO HAS VOLUNTEERED FOR THE
 DETAIL WILL BE SELECTED.  IF THERE ARE NO VOLUNTEERS, THE LEAST SENIOR
 QUALIFIED EMPLOYEE WITHIN THE BRANCH WILL BE SELECTED.
 
    SECTION 4.  EMERGENCY DETAILS
 
    IT IS UNDERSTOOD THAT THE DETAIL PROCEDURES OUTLINE(D) IN SECTIONS 2
 AND 3 WILL BE FOLLOWED (USE OF SENIORITY AND VOLUNTEERS).  WHERE AN
 UNFORESEEN SITUATION ARISES THAT TEMPORARILY PRECLUDES COMPLIANCE OF THE
 USE OF SENIORITY AND VOLUNTEERS, THE FOLLOWING STEPS AND CONDITIONS WILL
 APPLY:
 
    1.  THE DETAIL WILL NOT EXCEED TWO (2) HOURS DURATION.
 
    2.  THE UNION STEWARD WILL BE INFORMED OF THE REASONS FOR APPLYING
 THIS SECTION (SECTION 4)
 
    WITHIN THIS TWO (2) HOUR PERIOD.
 
    3.  AT THE END OF THE TWO (2) HOUR PERIOD SECTION 2 OR 3 WILL BE
 UTILIZED FOR ANY FURTHER
 
    DETAIL NEEDS.
 
    SECTION 5.  APPLICATION OF THIS ARTICLE
 
    THIS ARTICLE SHALL CONSTITUTE THE SOLE PROCEDURE FOR THE DETAILING OF
 UNIT EMPLOYEES TO POSITIONS WITHIN THE UNIT AT THE UNITED STATES MINT,
 DENVER, COLORADO, AND SHALL SUPERSEDE ANY AND ALL PREVIOUS SUCH
 MEMORANDA AND/OR AGREEMENTS BETWEEN MANAGEMENT AND THE LOCAL UNION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONFLICTS WITH THE
 AGENCY'S RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE
 STATUTE.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONFLICTS WITH THE AGENCY'S RIGHT TO ASSIGN
 UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (45 FED.REG.
 3482 ET SEQ. (1980)), THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  THE AGENCY ALLEGES THAT THE PROPOSAL IS NONNEGOTIABLE
 BECAUSE THE REQUIREMENT THAT VOLUNTEERS BE SOLICITED AND SENIORITY BE
 USED AS THE SOLE FACTOR IN THE SELECTION OF EMPLOYEES FOR DETAILS WOULD
 DIRECTLY INTERFERE WITH THE ACTIVITY'S RIGHT TO ASSIGN EMPLOYEES AND
 WOULD NOT, AS THE UNION ARGUES, CONSTITUTE MERELY A PROCEDURE USED IN
 SELECTION.
 
    IN A RECENT DECISION, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO, CASE NO.  O-NG-40, 2 FLRA NO. 77 (JAN. 31, 1980), THE
 AUTHORITY FOUND THAT PROPOSALS REQUIRING THE SELECTION OF A PARTICULAR
 INDIVIDUAL FOR A TEMPORARY ASSIGNMENT ON THE BASIS OF SENIORITY DIRECTLY
 INTERFERED WITH THE RIGHT OF AN AGENCY TO ASSIGN EMPLOYEES.  IN THIS
 REGARD, THE AUTHORITY STATED (AT P. 10 OF THE DECISION):
 
    THE RIGHT TO ASSIGN EMPLOYEES IN THE AGENCY UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE IS
 
    MORE THAN MERELY THE RIGHT TO DECIDE TO ASSIGN AN EMPLOYEE TO A
 POSITION.  AN AGENCY CHOOSES
 
    TO ASSIGN AN EMPLOYEE TO A POSITION SO THAT THE WORK OF THAT POSITION
 WILL BE DONE.  UNDER
 
    SECTION 7106(A)(2)(A) OF THE STATUTE, THE AGENCY RETAINS DISCRETION
 AS TO THE PERSONNEL
 
    REQUIREMENTS OF THE WORK OF THE POSITION, I.E., THE QUALIFICATIONS
 AND SKILLS NEEDED TO DO THE
 
    WORK, AS WELL AS SUCH JOB-RELATED INDIVIDUAL CHARACTERISTICS AS
 JUDGMENT AND
 
    RELIABILITY.  THEREFORE, THE RIGHT TO ASSIGN AN EMPLOYEE TO A
 POSITION INCLUDES THE DISCRETION
 
    TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED . . . A PROCEDURE FOR
 SELECTING AN EMPLOYEE FOR
 
    ASSIGNMENT SOLELY ON THE BASIS OF SENIORITY REMOVES FROM THE AGENCY
 THAT DISCRETION WHICH
 
    . . . IS AN ESSENTIAL PART OF THE DECISION TO ASSIGN . . .
 
    THE PROCEDURE THAT IS OUTLINED IN SECTIONS 2 AND 3 OF THE INSTANT
 PROPOSAL MANDATES THE SELECTION OF A PARTICULAR EMPLOYEE FOR ASSIGNMENT
 TO A DETAIL SOLELY ON THE BASIS OF SENIORITY AND THEREFORE REMOVES FROM
 THE ACTIVITY ANY DISCRETION IN MAKING SUCH ASSIGNMENTS.  ACCORDINGLY,
 FOR THE REASONS FULLY SET FORTH IN THE ABOVE-REFERENCED AIR FORCE
 LOGISTICS COMMAND CASE, THE AUTHORITY FINDS THAT SECTIONS 2 AND 3 OF THE
 UNION'S PROPOSAL DIRECTLY INTERFERE WITH THE DISCRETION TO DETERMINE
 WHICH EMPLOYEE TO ASSIGN, IN VIOLATION OF SECTION 7106(A)(2)(A) OF THE
 STATUTE.  SECTIONS 4 AND 5 OF THE UNION'S PROPOSAL SIMILARLY VIOLATE
 SECTION 7106(A)(2)(A) OF THE STATUTE INASMUCH AS THEY CALL FOR THE USE
 OF THE PROCEDURES CONTAINED IN SECTIONS 2 AND 3 THAT HAVE BEEN FOUND
 NONNEGOTIABLE.  ADDITIONALLY, IT IS NOTED THAT THE AGENCY CONTENDS THAT
 SECTION 5 OF THE UNION'S PROPOSAL VIOLATES THE PARTIES' NATIONAL
 AGREEMENT, WHEREAS THE UNION ASSERTS THAT IT IS "CONSISTENT WITH . . .
 THE MASTER AGREEMENT." AS THE AUTHORITY HAS PREVIOUSLY HELD, WHERE THERE
 IS A DISPUTE AS TO WHETHER A MASTER AGREEMENT, NEGOTIATED AT THE
 NATIONAL LEVEL, AUTHORIZES BARGAINING AT THE LOCAL LEVEL ON CERTAIN
 MATTERS CONTAINED THEREIN, THE PROPER FORUM IN WHICH TO RESOLVE SUCH
 DISPUTES WOULD BE THAT WHICH THE PARTIES THEMSELVES HAVE ADOPTED FOR
 SUCH PURPOSE.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL
 CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, CASE NO. O-NG-RE, 2 FLRA
 NO. 56 (JAN. 9, 1980), AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2272 AND DEPARTMENT OF JUSTICE, U.S. MARSHALS SERVICE,
 DISTRICT OF COLUMBIA, CASE NO. O-NG-101, 2 FLRA NO. 113 (MARCH 14,
 1980).
 
    IN CONCLUSION, SINCE BOTH OF THE UNION'S PROPOSALS CONFLICT WITH
 SECTION 7106(A)(2)(A) OF THE STATUTE, THE AGENCY'S ALLEGATION THAT THEY
 ARE NOT WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., APRIL 14, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2)(A) OF THE S