National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (Union) and U.S. Department of Labor, Washington, D.C. (Agency) 

 

 3 FLRA No. 44
 
 NATIONAL COUNCIL OF FIELD LABOR LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
 and
 
 U.S. DEPARTMENT OF LABOR,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. 0-NG-79
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135.
 
    THE THREE UNION PROPOSALS IN ISSUE AROSE FROM NEGOTIATIONS TO
 ESTABLISH A SPECIAL PLACEMENT PLAN TO PROVIDE PLACEMENT OPPORTUNITIES
 FOR OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS EMPLOYEES IN THE
 UNION'S BARGAINING UNIT WHO WERE ADVERSELY AFFECTED BY THE CONSOLIDATION
 OF THE E.O. 11246 CONTRACT COMPLIANCE FUNCTION IN THE DEPARTMENT OF
 LABOR.
 
                             UNION PROPOSAL I
 
    E.  BASIC REQUIREMENTS
 
   .          .          .          .
 
 
    2.  AREA OF ELIGIBILITY
 
    A.  IN RECOGNITION OF THE MERIT PRINCIPLES ESTABLISHED BY THE CIVIL
 SERVICE REFORM ACT OF
 
    1978, AND THE INHERENT DIFFERENCES BETWEEN A SUPERVISORY AND A
 NONSUPERVISORY POSITION, THE
 
    PARTIES AGREE THAT THE COMPETITIVE PROCEDURES OF THE DEPARTMENT'S
 MERIT PROMOTION PLAN WILL BE
 
    UTILIZED WHEN FILLING SUPERVISORY OR MANAGEMENT POSITIONS WITH
 BARGAINING UNIT EMPLOYEES.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL I IS OUTSIDE THE AMBIT OF THE
 DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ AS ALLEGED BY THE
 AGENCY.
 
    CONCLUSION:  UNION PROPOSAL I IS OUTSIDE THE SCOPE OF THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 35123,
 THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN ITS
 DUTY TO BARGAIN IS SUSTAINED.  /2/
 
    REASONS:  THE AGENCY ASSERTS THAT UNION PROPOSAL I IS OUTSIDE
 MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE
 BECAUSE IT RELATES TO THE METHOD THAT MANAGEMENT WILL USE IN FILLING
 SUPERVISORY AND MANAGEMENT POSITIONS, WHICH ARE NON-BARGAINING UNIT
 POSITIONS.  THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION.  THE
 PROPOSAL PUTS CONDITIONS ON FILLING SUPERVISORY AND MANAGEMENT POSITIONS
 WHICH ARE OUTSIDE THE UNIT AND MAY NOT BE INCLUDED IN APPROPRIATE UNITS
 BY OPERATION OF SECTION 7112(B)(1) OF THE STATUTE.  AN EXCLUSIVE
 REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS, HOWEVER, EXTEND ONLY
 TO EMPLOYEES IN THE UNIT, UNDER SECTION 7114(A)(1).  /3/ FURTHERMORE,
 THE DEFINITION OF "COLLECTIVE BARGAINING" FOUND IN SECTION 7103(A)(12)
 AND SET OUT AT FOOTNOTE 1, SUPRA, RESTRICTS THE SCOPE OF THE OBLIGATION
 TO BARGAIN IN GOOD FAITH TO MATTERS AFFECTING THE CONDITIONS OF
 EMPLOYMENT OF EMPLOYEES IN AN APPROPRIATE UNIT.  CONSEQUENTLY, THE
 AGENCY HAS NO OBLIGATION TO BARGAIN OVER MATTERS RELATING TO THE
 NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL.  THUS, AS THE
 PROPOSAL GOES BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE
 REPRESENTATIVE AND DOES NOT DIRECTLY RELATE TO CONDITIONS OF EMPLOYMENT
 OF UNIT EMPLOYEES, IT IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 
                            UNION PROPOSALS II
 
    E.  BASIC REQUIREMENTS
 
    2.  AREA OF ELIGIBILITY
 
   .          .          .          .
 
 
    B.  BARGAINING UNIT EMPLOYEES TO BARGAINING UNIT POSITIONS
 
   .          .          .          .
 
 
    THE PROCEDURES FOR REASSIGNMENT ARE AS FOLLOWS:
 
   .          .          .          .
 
 
    THE MOST SENIOR QUALIFIED VOLUNTEER IN TERMS OF SCD (SERVICE
 COMPUTATION DATE) WILL BE
 
    OFFERED THE REASSIGNMENT.  IF NO ELIGIBLE QUALIFIED EMPLOYEE
 VOLUNTEERS FOR THE PARTICULAR
 
    VACANT POSITION, THE POSITION, IF TO BE FILLED, WILL THEN BE FILLED
 THROUGH THE NORMAL
 
    STAFFING PROCEDURES OUTLINED IN ARTICLE 20 OF THE MASTER COLLECTIVE
 BARGAINING AGREEMENT.
 
    C.  THE PROCEDURES OUTLINED ABOVE WILL BE USED ON A CONTINUING BASIS
 UNTIL ALL ELIGIBLE
 
    EMPLOYEES HAVE BEEN PLACED IN A PERMANENT POSITION OR UNTIL THE
 EXTENDED DETAIL AUTHORITY
 
    EXPIRES, WHICHEVER IS EARLIER.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL II
 VIOLATES THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE.  /4/
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL II VIOLATES THE RIGHT OF THE AGENCY TO
 ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN ITS DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  THE AGENCY CONTENDS THAT UNION PROPOSAL II VIOLATES ITS
 RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE
 BECAUSE UNDER THE PROPOSAL, THE SELECTION OF EMPLOYEES FOR REASSIGNMENT
 WOULD BE BASED TOTALLY ON AN EMPLOYEE'S SERVICE COMPUTATION DATE, WHICH
 WOULD CLEARLY INTERFERE WITH THE AGENCY'S AUTHORITY TO DECIDE UPON THE
 SELECTION OF AN INDIVIDUAL ONCE A DECISION HAD BEEN MADE TO FILL A
 POSITION.  THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION.  IN THIS
 REGARD, THE AUTHORITY STATED WHEN RULING ON A SIMILAR PROPOSAL THAT THE
 DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED IS IMPLICIT IN
 THE RIGHT TO ASSIGN.  /5/ IT FOLLOWS THAT A PROCEDURE FOR SELECTING
 EMPLOYEES FOR REASSIGNMENT SOLELY ON THE BASIS OF THE MOST SENIOR
 QUALIFIED VOLUNTEER IN TERMS OF SERVICE COMPUTATION DATE REMOVES FROM
 MANAGEMENT THE DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE
 REASSIGNED, AN ESSENTIAL PART OF THE DECISION TO REASSIGN.  THUS,
 BECAUSE UNION PROPOSAL II INTERFERES WITH THE AGENCY'S RIGHT TO REASSIGN
 EMPLOYEES, IT IS IN VIOLATION OF SECTION 7106(A)(2)(A).
 
                            UNION PROPOSAL III
 
    H.  THE CITED PERMANENT REASSIGNMENTS WHICH THE DEPARTMENT HAS
 ORDERED PRIOR TO FINAL
 
    AGREEMENT OF THIS PLAN SHALL BE RESCINDED AND HANDLED IN ACCORDANCE
 WITH THE PROVISIONS OF
 
    THIS PLAN.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS THE AGENCY ALLEGES, UNION PROPOSAL III IS
 OUTSIDE THE AMBIT OF THE DUTY TO BARGAIN UNDER SECTION 7117 OF TH