American Federation of Government Employees, AFL-CIO (Union) and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (Agency)

 



[ v05 p83 ]
05:0083(15)NG
The decision of the Authority follows:


 5 FLRA No. 15
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
 and
 
 AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO
 Agency
 
                                            Case No. 0-NG-70
 
                 DECISION AND ORDER 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 RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                               PROVISION /1/
 
                                ARTICLE 22
 
                              TRAVEL AND TDY
 
                    SECTION 22.10 SELECTION PROCEDURES
 
    TDY WILL BE OFFERED TO QUALIFIED AND AVAILABLE EMPLOYEES WITH
 REQUISITE SKILLS ON THE BASIS
 
    OF SENIORITY.  IF THERE ARE NO VOLUNTEERS, TDY ASSIGNMENTS WILL BE
 ROTATED AMONG QUALIFIED AND
 
    AVAILABLE EMPLOYEES WITH REQUISITE SKILLS IN INVERSE ORDER OF
 SENIORITY.
 
    A.  SEPARATE OVERSEAS AND STATESIDE TDY ROSTERS WILL BE MAINTAINED.
 
    B.  EXCEPTIONS WILL BE MADE FOR COMPASSIONATE REASONS.
 
    C.  THIS SECTION DOES NOT APPLY TO TRAINING ASSIGNMENT INVOLVING TDY.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PROVISION OF THE LOCAL PARTIES'
 AGREEMENT, WHICH WAS DISAPPROVED BY THE HEAD OF THE AGENCY, SUPRA, NOTE
 1, CONCERNS THE RIGHTS OF AGENCY MANAGEMENT UNDER SECTION 7106(A)(2)(A)
 AND (B) OF THE STATUTE;  AND, IF SO, WHETHER THE PROVISION IS
 INCONSISTENT WITH SUCH RIGHTS, OR ESTABLISHES A PROCEDURE UNDER SECTION
 7106(B)(2) OF THE STATUTE WHICH AGENCY MANAGEMENT WILL OBSERVE IN
 EXERCISING SUCH RIGHTS.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PROVISION OF THE LOCAL PARTIES'
 AGREEMENT DOES NOT CONCERN THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES
 IN THE AGENCY UNDER SECTION 7106(A)(2)(A) OF THE STATUTE OR TO ASSIGN
 WORK UNDER SECTION 7106(A)(2)(B) AND, THEREFORE, IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN.  /2/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575, IT IS ORDERED THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF
 THIS PROVISION, WHICH WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT
 THE LOCAL LEVEL.  /3/
 
    REASONS:  THE HEAD OF THE AGENCY DISAPPROVED THIS PROVISION OF THE
 LOCAL PARTIES' AGREEMENT AS INCONSISTENT WITH THE AUTHORITY OF AGENCY
 MANAGEMENT TO ASSIGN EMPLOYEES AND ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE.  /4/ IN RESPONSE, THE UNION
 CONTENDS ESSENTIALLY, WITHOUT CONTRADICTION BY THE AGENCY, THAT THE TDY
 ASSIGNMENTS WHICH ARE THE SUBJECT MATTER OF THE DISPUTED PROVISION
 MERELY INVOLVE THE TEMPORARY PERFORMANCE BY AN EMPLOYEE OF THE DUTIES OF
 HIS OR HER POSITION AT A DIFFERENT DUTY STATION.  SINCE NOTHING IN THE
 RECORD IS TO THE CONTRARY, THAT INTERPRETATION IS ADOPTED FOR PURPOSES
 OF THIS DECISION.  /5/ THE UNION ARGUES, FURTHER, THAT IN THIS REGARD
 THE PROVISION IS DISTINGUISHABLE FROM PROPOSALS CONCERNING THE RIGHTS OF
 MANAGEMENT TO ASSIGN EMPLOYEES IN THE AGENCY AND TO ASSIGN WORK WHICH
 HAVE BEEN FOUND TO BE OUTSIDE THE DUTY TO BARGAIN.  THE AUTHORITY
 AGREES.
 
    UNDER THE DISPUTED PROVISION, TDY ASSIGNMENTS ARE LIMITED TO
 ASSIGNMENTS WHICH DO NOT INVOLVE A POSITION CHANGE BY AN EMPLOYEE AND
 WHICH MERELY REQUIRE THAT THE EMPLOYEE TEMPORARILY PERFORM THE REGULAR
 DUTIES OF HIS OR HER POSITION IN A DIFFERENT GEOGRAPHICAL LOCATION FOR
 HIS OR HER NORMAL DUTY STATION.  /6/ THEREFORE, THE PROVISION DOES NOT
 IN THE FIRST PLACE INVOLVE AN ASSIGNMENT OF WORK, BUT CONCERNS MERELY
 THE LOCATION WHERE WORK WHICH HAS ALREADY BEEN ASSIGNED TO AN EMPLOYEE
 WILL BE PERFORMED.  THAT IS, IN THE CIRCUMSTANCES ADDRESSED BY THE
 PROVISION, THE AGENCY ALREADY WILL HAVE EXERCISED ITS DISCRETION TO
 ASSIGN THE WORK INVOLVED TO PARTICULAR EMPLOYEES OR POSITIONS AND WILL
 ONLY BE DECIDING THE PARTICULAR EMPLOYEE AMONG THOSE WHO ARE DOING THAT
 WORK WHO WILL BE SELECTED FOR THE TDY ASSIGNMENT.  FOR THIS REASON, THE
 PROVISION HEREIN IS DISTINGUISHABLE FROM THE PROPOSALS FOUND TO BE
 OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(B) IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 695 AND DEPARTMENT OF
 THE TREASURY, U.S. MINT, DENVER, COLORADO, 3 FLRA NO. 7(1980) AND
 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA
 NAVAL SHIPYARD, 3 FLRA NO. 66(1980).  THE PROPOSAL IN THE U.S. MINT CASE
 REQUIRED WEEKLY ROTATION OF WORK ASSIGNMENTS AND THE AUTHORITY HELD IT
 VIOLATED SECTION 7106(A)(2)(B) INSOFAR AS IT WOULD REQUIRE ALL EMPLOYEES
 TO BE ROTATED THROUGH THE DUTIES LISTED IN THEIR POSITION DESCRIPTION
 EACH WEEK REGARDLESS OF WHETHER ANY WORK WAS AVAILABLE WHICH
 NECESSITATED THE PERFORMANCE OF THOSE DUTIES OR WHETHER THE WORK
 PREVIOUSLY ASSIGNED HAD BEEN COMPLETED.  THE INSTANT PROVISION, IN
 CONTRAST, ONLY TAKES EFFECT WHEN THE AGENCY HAS DETERMINED THAT IT IS
 NECESSARY TO TEMPORARILY ASSIGN AN EMPLOYEE TO PERFORM THE DUTIES OF HIS
 OR HER POSITION AT A DIFFERENT DUTY STATION;  IT WOULD NOT REQUIRE SUCH
 AN ASSIGNMENT IN THE ABSENCE OF WORK TO BE PERFORMED.  MOREOVER, UNLIKE
 UNION PROPOSALS I AND II IN PHILADELPHIA NAVAL SHIPYARD, WHICH PRECLUDED
 THE AGENCY FROM ASSIGNING WORK AT PARTICULAR TIMES, THE PROVISION HEREIN
 WOULD IN NO WAY LIMIT THE AGENCY'S DECISION AS TO WHEN THE DUTIES
 INVOLVED IN THE TDY ASSIGNMENT WOULD BE PERFORMED.
 
    LIKEWISE, THE PROVISION DOES NOT INVOLVE AN ASSIGNMENT OF EMPLOYEES
 TO POSITIONS IN THE AGENCY.  THAT IS, THE PROVISION DOES NOT AFFECT THE
 AGENCY'S DISCRETION TO ASSIGN EMPLOYEES TO PARTICULAR POSITIONS, BUT
 ONLY CONCERNS THE SELECTION OF THE INDIVIDUAL EMPLOYEE TO TEMPORARILY
 PERFORM HIS OR HER ASSIGNED WORK IN A DIFFERENT LOCATION.  UNDER THE
 PROVISION, THE AGENCY SIMPLY DETERMINES WHICH EMPLOYEE FROM AMONG THOSE
 PREVIOUSLY ASSIGNED TO CERTAIN POSITIONS TEMPORARILY WILL PERFORM THE
 WORK OF HIS OR HER POSITION AT A DIFFERENT DUTY STATION.  THE DECISION
 OF THE AGENCY IN THIS REGARD IN NO WAY CHANGES THE DUTIES WHICH THE
 EMPLOYEE WILL PERFORM.  FOR THIS REASON, THE PROVISION IS
 DISTINGUISHABLE FROM THE PROPOSALS FOUND BY THE AUTHORITY TO BE OUTSIDE
 THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) IN AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77(1980).  EACH OF THE
 PROPOSALS IN THAT CASE WHICH WERE FOUND TO INFRINGE UPON THE RIGHT OF
 MANAGEMENT OFFICIALS TO ASSIGN EMPLOYEES INVOLVED A DECISION BY THE
 AGENCY TO ASSIGN AN EMPLOYEE TO A DIFFERENT POSITION RATHER THAN, AS
 HERE, A DECISION AS TO WHERE THE WORK OF A GIVEN POSITION IS TO BE
 PERFORMED.  THUS, THE AUTHORITY STATED WITH RESPECT TO CERTAIN PROPOSALS
 CONCERNING SELECTION OF EMPLOYEES FOR DETAILS, LOANS, AND TEMPORARY
 ASSIGNMENTS (AT 10 OF AUTHORITY DECISION):
 
    IN THUS COMPELLING THE SELECTION OF A PARTICULAR INDIVIDUAL FOR
 TEMPORARY ASSIGNMENT TO
 
    ANOTHER POSITION, UNION PROPOSALS IV, V, AND VI EACH DIRECTLY
 INTERFERE WITH THE RIGHT OF THE
 
    AGENCY TO ASSIGN EMPLOYEES.  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.  (CLEARLY, THE
 
    ASSIGNMENT OF AN EMPLOYEE TO A POSITION IS DISTINGUISHABLE FROM THE
 ASSIGNMENT OF AN EMPLOYEE
 
    TO A SHIFT.)
 
    REGARDING MOBILITY ASSIGNMENTS, THE AUTHORITY STATED (AT 11 OF
 AUTHORITY DECISION):
 
    (T)HE AGENCY IS REQUIRED UNDER THE PROPOSAL, WITHOUT THE OPTION TO DO
 OTHERWISE, AS IN THE
 
    CASE OF UNION PROPOSAL III, TO SELECT FOR REASSIGNMENT THE LEAST
 SENIOR EMPLOYEE OF THE TITLE,
 
    SERIES, AND GRADE OF THE POSITION TO BE FILLED.  FOR THE REASONS
 STATED IN THE DISCUSSION OF
 
    UNION PROPOSALS III-- IV, BY THUS REQUIRING THE AGENCY TO SELECT AN
 EMPLOYEE FOR ASSIGNMENT ON
 
    THE BASIS OF SENIORITY THE PROPOSAL OBVIATES THE DISCRETION AS TO
 SELECTION WHICH IS AN
 
    ESSENTIAL PART OF THE RIGHT TO ASSIGN UNDER SECTION 7106(A)(2)(A) OF
 THE STATUTE.
 
    IN SUMMARY, THE SUBJECT MATTER OF THE PROVISION HERE, I.E., TDY
 ASSIGNMENTS, INVOLVES AN EMPLOYEE PERFORMING THE DUTIES OF HIS OR HER
 POSITION IN A DIFFERENT PLACE.  THUS, UNDER THE PROVISION, SELECTION OF
 AN EMPLOYEE FOR SUCH AN ASSIGNMENT WOULD BE FROM AMONG EMPLOYEES
 ALREADY
 PERFORMING THE SAME DUTIES AND WOULD NOT IN ANY WAY CHANGE THOSE DUTIES.
  THE ONLY CHANGE WHICH WOULD RESULT WOULD BE A DIFFERENCE IN WHERE THE
 EMPLOYEE WOULD PERFORM THOSE DUTIES.  ON THE OTHER HAND, THE ASSIGNMENTS
 WHICH ARE THE SUBJECT MATTER OF THE PROPOSALS IN WRIGHT-PATTERSON ARE
 TEMPORARY ASSIGNMENTS TO HIGHER, LOWER, OR SAME GRADED POSITIONS, LOANS,
 TEMPORARY ASSIGNMENT OUTSIDE THE BARGAINING UNIT, AND MOBILITY
 ASSIGNMENTS, ALL OF WHICH INVOLVE A CHANGE OF POSITION FOR THE EMPLOYEE
 ASSIGNED.
 
    IN THIS REGARD, THE AUTHORITY NOTES THAT THE LANGUAGE OF THE
 PROVISION RESTRICTING TDY ASSIGNMENTS TO "QUALIFIED" EMPLOYEES WITH THE
 "REQUISITE SKILLS" DOES NOT REFER TO OPM STANDARDS FOR QUALIFICATIONS TO
 FILL A POSITION ON A PERMANENT BASIS, BUT SIMPLY TO QUALIFICATIONS WITH
 REFERENCE TO THE PARTICULAR WORK INVOLVED IN THE TDY ASSIGNMENT.
 THEREFORE, THIS LANGUAGE, AS THE UNION INDICATES, WOULD NOT LIMIT
 MANAGEMENT'S DECISION TO SELECT AN EMPLOYEE FOR A TDY ASSIGNMENT, BUT
 WOULD SERVE INSTEAD AS A LIMITATION ON THE OPERATION OF THE SENIORITY
 CRITERION UNDER THE PROVISION.  THAT IS, THE TERMS "QUALIFIED" AND
 "REQUISITE SKILLS" WOULD PERMIT THE AGENCY TO DECIDE THAT IT WOULD NOT
 SELECT THE MOST SENIOR EMPLOYEE WHO VOLUNTEERS IF THAT EMPLOYEE WAS NOT
 QUALIFIED OR DID NOT POSSESS THE NEEDED SKILLS.  CORRELATIVELY, IF THERE
 WERE NO VOLUNTEERS, THE AGENCY WOULD NOT BE REQUIRED TO ASSIGN THE LEAST
 SENIOR EMPLOYEE WHERE IT DETERMINED THAT SUCH EMPLOYEE WAS NOT QUALIFIED
 OR DID NOT POSSESS THE NEEDED SKILLS.
 
    FOR THE FOREGOING REASONS, THE DISPUTED PROVISION, WHICH PROVIDES FOR
 THE SELECTION OF EMPLOYEES FOR CERTAIN TDY ASSIGNMENTS ON THE BASIS OF
 SENIORITY, DOES NOT CONCERN THE AUTHORITY OF MANAGEMENT TO ASSIGN
 EMPLOYEES OR ASSIGN WORK UNDER SECTION 7106 OF THE STATUTE.
 ACCORDINGLY, THE AGENCY ALLEGATION THAT THE DISPUTED PROVISION IS NOT
 WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AGENCY HEAD DISAPPROVED THE DISPUTED PROVISION IN THE
 PARTIES' AGREEMENT PURSUANT TO REVIEW OF THAT AGREEMENT UNDER SECTION
 7114(C) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 SECTION 7114(C) OF THE STATUTE (92 STAT. 1203) PROVIDES, IN RELEVANT
 PART, AS FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   *          *          *          *
 
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO
 
    APPROVAL BY THE HEAD OF THE AGENCY.
 
    (2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
 FROM THE DATE THE
 
    AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
 PROVISIONS OF THIS CHAPTER
 
    AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
 HAS GRANTED AN EXCEPTION
 
    TO THE PROVISION).
 
    (3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
 AGREEMENT WITHIN THE
 
    30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
 ON THE AGENCY AND THE
 
    EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
 AND ANY OTHER APPLICABLE
 
    LAW, RULE, OR REGULATION.
 
    /2/ IN VIEW OF THE AUTHORITY'S DECISION THAT THE DISPUTED PROVISION
 DOES NOT CONCERN THE RIGHTS OF AGENCY MANAGEMENT UNDER SECTION
 7106(A)(2)(A) AND (B), IT IS UNNECESSARY TO CONSIDER THE AGENCY'S
 ALLEGATIONS REGARDING ITS RIGHTS UNDER SECTION 7106 OR THE UNION'S
 CONTENTIONS AS TO PROCEDURES GOVERNING THE EXERCISE OF THOSE RIGHTS
 UNDER SECTION 7106(B)(2).
 
    /3/ IN DECIDING THAT THE SUBJECT PROVISION WAS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROVISION.
 
    /4/ SECTION 7106 OF THE STATUTE (5 U.S.C. 7106) PROVIDES, IN RELEVANT
 PART, AS FOLLOWS:
 
    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(.)
 
    /5/ DEPARTMENT OF DEFENSE, JOINT TRAVEL REGULATIONS, PART J,
 TEMPORARY DUTY, PROVIDE, IN RELEVANT PART, AS FOLLOWS:
 
    C4451 WHAT CONSTITUTES TEMPORARY DUTY TRAVEL
 
    TEMPORARY DUTY TRAVEL FOR AN EMPLOYEE INCLUDES THE FOLLOWING
 SITUATIONS:
 
    1.  ASSIGNMENT OF A TEMPORARY NATURE IN CONNECTION WITH OFFICIAL
 DEPARTMENT OF DEFENSE
 
    BUSINESS AWAY FROM AN EMPLOYEE'S PERMANENT DUTY STATION (SUCH
 ASSIGNMENTS WILL NOT BE OF SUCH
 
    FREQUENCY OR DURATION THAT A PLACE OF ASSIGNMENT IS, IN FACT, AN
 EMPLOYEE'S PERMANENT DUTY
 
    STATION EVEN THOUGH ADMINISTRATION JURISDICTION IS AT SOME OTHER
 LOCATION) . . . .
 
    /6/ CONSISTENT WITH THE INTERPRETATION OF THE PROVISION ADOPTED
 HEREIN, THE TERM "POSITION" AS USED HEREIN IS GIVEN THE MEANING COMMONLY
 ASCRIBED TO IT IN FEDERAL PERSONNEL PRACTICE.  SEE FEDERAL PERSONNEL
 MANUAL, CHAP. 312, SUBCHAP. 1-3.