American Federation of Government Employees, AFL-CIO, Local 3529 (Labor Organization) and Defense Contract Audit Agency (Activity) 



[ v03 p301 ]
03:0301(46)NG
The decision of the Authority follows:


 3 FLRA No. 46
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 AFL-CIO, LOCAL 3529
 (Labor Organization)
 
 and
 
 DEFENSE CONTRACT AUDIT AGENCY
 (Activity)
 
                                            Case No. 0-NG-14
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    THE DESCRIPTION OF THE PROPOSAL AT ISSUE CONTAINED IN A LETTER FROM
 RONALD D. KING, DIRECTOR, CONTRACT AND APPEALS DIVISION, AFGE TO
 FREDERICK NEUMAN, DIRECTOR OF THE DCAA, DATED DECEMBER 12, 1978, IS:
 
    . . . TO HAVE THE DCAA AUDITOR ROTATION POLICY NOT APPLY TO THE
 BARGAINING UNIT . . .
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE AGENCY'S
 DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 (FSLMR) STATUTE, AS ALLEGED BY THE AGENCY.
 
    THE UNION RAISED A THRESHOLD ISSUE OBJECTING TO THE AUTHORITY'S
 REQUESTING THE AGENCY TO SUPPLEMENT ITS INITIAL SUBMISSION.  ADDITIONAL
 INFORMATION WAS REQUESTED FROM BOTH PARTIES TO COMPLETE THE CASE FILE
 SINCE NEITHER PARTY IN ITS INITIAL SUBMISSION GAVE AN ACCURATE OR
 COMPLETE DESCRIPTION OF THE PRESENT STATUS OF THE PARTIES' DISPUTE.
 THEREFORE, THE UNION'S OBJECTION CANNOT BE SUSTAINED.
 
    CONCLUSION:  THE SUBJECT PROPOSAL VIOLATES SECTION 7106(A)(2)(A) OF
 THE FSLMR STATUTE.  /1/ 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 THE DUTY TO BARGAIN IS
 SUSTAINED.
 
    REASONS:  THE RECORD BEFORE THE AUTHORITY INDICATES THAT THE AGENCY'S
 AUDITOR ROTATION POLICY ESTABLISHES A MAXIMUM PERIOD FOR THE CONTINUOUS
 ASSIGNMENT OF AN AUDITOR AT ONE LOCATION, AFTER WHICH AN AUDITOR WOULD
 BE SUBJECT TO A CHANGE IN ASSIGNMENT.  THE AGENCY MEMORANDUM
 ESTABLISHING THIS POLICY, IN ESSENCE DESCRIBES SUCH "CHANGES IN
 ASSIGNMENT" AS CHANGES WITHIN THE ORGANIZATIONAL STRUCTURE OF THE
 AGENCY, SPECIFICALLY:
 
    (1) MOVES (LATERAL OR BY PROMOTION) TO OTHER DUTY STATIONS SUCH AS
 REASSIGNMENT BETWEEN
 
    FAOS, SUBOFFICES, PLA ACTIVITIES AND/OR REGIONAL HEADQUARTERS.
 
    (2) MAJOR WORK ASSIGNMENT CHANGES WITH OR WITHOUT CHANGE OF DUTY
 STATION WHICH COMPLETELY
 
    CHANGE THE CONTRACTOR CONTACTS AND WORK RELATIONSHIPS OF THE
 EMPLOYEE.  SOME EXAMPLES ARE,
 
    MOVES WITHIN AN FAO BETWEEN MOBILE AUDIT WORK AND PERMANENT OFFICES
 OR SUBOFFICES, BETWEEN
 
    MOBILE AUDIT TEAMS INVOLVING A COMPLETELY NEW GROUP OF CONTRACTORS,
 AND CHANGE OF FAO
 
    COGNIZANCE FOR PERSONNEL AT REGIONAL HEADQUARTERS LEVEL.
 
    THE UNION'S PROPOSAL ESSENTIALLY WOULD PRECLUDE THE AGENCY FROM
 APPLYING THIS MANDATORY REASSIGNMENT POLICY TO BARGAINING UNIT
 EMPLOYEES.  THE AGENCY CONTENDS, INSOFAR AS IS RELEVANT HEREIN, THAT THE
 PROPOSAL VIOLATES SECTION 7106(A)(2)(A) OF THE STATUTE.  IN VIEW OF THE
 DECISION THAT THE PROPOSAL VIOLATES SECTION 7106 OF THE STATUTE, THE
 AUTHORITY FINDS IT UNNECESSARY TO CONSIDER THE AGENCY'S ADDITIONAL
 CONTENTIONS.
 
    SECTION 7106(A)(2)(A) RESERVES TO MANAGEMENT THE RIGHT TO "ASSIGN .
 . . EMPLOYEES IN THE AGENCY." THE AUTHORITY RECENTLY CONSIDERED THE
 MEANING OF THE TERM "ASSIGN . . . EMPLOYEES" IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, NO. O-NG-40, 2 FLRA NO. 77 (JAN.
 31, 1980), STATING AT 10:
 
    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.
 
    THUS, THE AUTHORITY HAS DETERMINED THAT A PROPOSAL WHICH DIVESTS
 MANAGEMENT OF ITS DISCRETION TO ASSIGN EMPLOYEES WOULD BE IN VIOLATION
 OF SECTION 7106(A)(2)(A) OF THE STATUTE.
 
    IN THIS INSTANCE, MANAGEMENT'S RIGHT TO ASSIGN IS MANIFESTED IN ITS
 MANDATORY REASSIGNMENT POLICY.  THE PRESENT PROPOSAL WOULD PROHIBIT
 MANAGEMENT FROM APPLYING THE POLICY TO BARGAINING UNIT EMPLOYEES AND,
 THEREFORE, WOULD PROHIBIT MANAGEMENT FROM CHANGING THE ASSIGNMENT OF
 AUDITORS WHO HAVE COMPLETED DESIGNATED PERIODS OF CONTINUOUS ASSIGNMENT
 AT SINGLE LOCATIONS.  SINCE THE PROPOSAL THEREFORE CONSTITUTES A BAR TO
 MANAGEMENT'S MAKING ROTATIONAL ASSIGNMENTS WITHIN THE BARGAINING UNIT,
 IT CLEARLY DIVESTS MANAGEMENT OF ANY DISCRETION TO ASSIGN EMPLOYEES IN
 THAT REGARD, AND THUS VIOLATES SECTION 7106(A)(2)(A).
 
    IN SO DECIDING, THE AUTHORITY NOTES THAT PROCEDURES WHICH MANAGEMENT
 WILL OBSERVE IN EXERCISING ITS AUTHORITY TO REASSIGN, AS WELL AS
 APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
 REASSIGNMENT, WOULD BE PROPER MATTERS FOR NEGOTIATION UNDER SECTION
 7106(B)(2) AND (3) OF