National Association of Air Traffic Specialists (Union) and Department of Transportation, Federal Aviation Administration (Agency)



[ v06 p588 ]
06:0588(106)NG
The decision of the Authority follows:


 6 FLRA No. 106
 
 NATIONAL ASSOCIATION OF AIR TRAFFIC
 SPECIALISTS
 Union
 
 and
 
 DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 Agency
 
                                            Case No. O-NG-244
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN 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.).  THE ISSUES PRESENTED ARE THE NEGOTIABILITY OF THE
 FOLLOWING UNION PROPOSALS.
 
                       UNION PROPOSALS I THROUGH III
 
    ARTICLE 42-- TRAINING AND CAREER DEVELOPMENT
 
    SECTION 9.  IN EVERY TWELVE (12) MONTH PERIOD EACH AIR TRAFFIC
 CONTROL SPECIALIST SHALL BE GIVEN AT LEAST EIGHTY (80) HOURS OF
 REFRESHER AND SUPPLEMENTAL TRAINING.  THIS TRAINING SHALL BE PROVIDED IN
 RESPONSE TO THE NEEDS OF THE EMPLOYEES AT INDIVIDUAL FACILITIES AS A
 MEANS OF MAINTAINING PROFICIENCY AND CURRENCY IN ALL MAJOR JOB
 ASSIGNMENTS.  THE FACILITY TRAINING PROGRAM SHALL BE PREPARED BY THE
 FACILITY CHIEF IN CONSULTATION WITH THE FACILITY REPRESENTATIVE.  THE
 FACILITY REPRESENTATIVE WILL PROVIDE THE UNION'S REGIONAL DIRECTOR WITH
 A COPY OF THE FACILITY TRAINING PLAN.  THE FACILITY CHIEF WILL PROVIDE A
 COPY OF THE FACILITY TRAINING PLAN TO THE OPERATIONS BRANCH OF THE
 REGIONAL OFFICE.  THE TRAINING REFERRED TO IN THIS SECTION SHALL BE
 ACCOMPLISHED IN AT LEAST EIGHT (8) HOUR INCREMENTS AND SHALL NOT BE ON A
 SELF-STUDY BASIS.  THE HOURLY TRAINING INCREMENTS MAY BE NEGOTIATED
 BETWEEN THE FACILITY REPRESENTATIVE AND THE FACILITY CHIEF.
 
    SECTION 10.  IN EVERY TWENTY-FOUR (24) MONTH PERIOD, THE EMPLOYER
 WILL PROVIDE FORMAL PILOT BRIEFING AND WEATHER TRAINING FOR ALL UNIT
 MEMBERS.  THIS FORMAL TRAINING PROGRAM SHALL BE CONDUCTED AT THE
 TRAINING ACADEMY AND SHALL INCLUDE NO LESS THAN EIGHTY (80) HOURS OF
 ACTUAL TRAINING.  ATTENDEES WILL BE ON OFFICIAL TIME WITH TRAVEL AND PER
 DIEM PAID BY THE EMPLOYER.  ATTENDANCE SHALL BE ROTATED ON AN EQUITABLE
 BASIS IN EACH STATION WITH PRIORITY OF ATTENDANCE DETERMINED IN
 CONSULTATION BETWEEN THE UNION REPRESENTATIVE AND THE FACILITY CHIEF.
 THIS TRAINING SHALL NOT BE CONSIDERED PART OF THE EIGHTY (80) HOURS OF
 TRAINING OUTLINED IN SECTION 9.  TRAINING IN THIS COURSE SHALL COMMENCE
 AT THE SIGNING OF THIS AGREEMENT.  THE FACILITY CHIEF SHALL MAINTAIN A
 ROSTER TO INSURE THAT THERE IS COMPLIANCE WITH THE PROVISIONS OF THIS
 SECTION.
 
    SECTION 18.  THE EMPLOYER SHALL PROVIDE FORMAL EFAS TRAINING AT THE
 FAA ACADEMY FOR ALL BARGAINING UNIT MEMBERS EMPLOYED AT EFAS FACILITIES
 FOR EMPLOYEES WHO DESIRE SUCH TRAINING.  THIS TRAINING SHALL BE
 PROVIDED, BASED ON SPACE AVAILABILITY AT THE ACADEMY, TO JOURNEYMEN
 ASSIGNED TO FACILITIES PROVIDING EFAS SERVICE.  THIS TRAINING MAY BE
 CONSIDERED IN LIEU OF THE PILOT WEATHER BRIEFING TRAINING REQUIRED IN
 SECTION 10.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THESE THREE UNION PROPOSALS ARE INCONSISTENT
 WITH THE RIGHTS GRANTED THE AGENCY UNDER SECTION 7106(A) OF THE STATUTE
 AND ARE, THEREFORE, OUTSIDE THE DUTY TO BARGAIN, AS ALLEGED BY THE
 AGENCY.  /1/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSALS I THROUGH III ARE INCONSISTENT
 WITH THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE AND ARE, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE
 UNION'S PETITION FOR REVIEW RELATING TO THESE THREE PROPOSALS BE, AND IT
 HEREBY IS, DISMISSED.  /2/
 
    REASONS:  THE UNION ASSERTS THAT PROPOSALS I THROUGH III MERELY
 PROVIDE PROCEDURES TO IMPLEMENT THE AGENCY'S PREVIOUSLY ESTABLISHED
 TRAINING PROGRAMS.  IT CLAIMS THAT THE PROPOSALS DO NOT INTERFERE WITH
 MANAGEMENT'S STATUTORY RIGHTS, BUT "REFER INSTEAD TO TIME FRAMES WITHIN
 WHICH THE AGENCY IS TO ACT AFTER HAVING MADE A DECISION WITHIN ITS
 RESERVED MANAGEMENT RIGHTS." THIS POSITION CANNOT BE SUSTAINED.
 
    THE PROPOSALS, AS CLAIMED BY THE AGENCY, "WOULD EACH REQUIRE
 MANAGEMENT TO PROVIDE SPECIFIC TRAINING TO BARGAINING UNIT EMPLOYEES."
 IN THIS REGARD, THE THREE PROPOSALS, IN ADDITION TO PRESCRIBING WHEN
 TRAINING WILL BE GIVEN TO COVERED EMPLOYEES, ALSO DESCRIBE THE SPECIFIC
 TYPE OF TRAINING TO BE PROVIDED, AND, IN SECTION 9 AND 10, SET THE
 MINIMUM DURATION OF SUCH TRAINING.  IN SECTION 18 IT IS STATED THAT THE
 TRAINING DESCRIBED THEREIN MAY BE SUBSTITUTED FOR THE TYPE OF TRAINING
 SET FORTH IN SECTION 10.
 
    IN INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
 PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66(1980), THE AUTHORITY HELD
 THAT A PROPOSAL LIMITING THE DURATION AND DAYS OF THE WEEK OF ASSIGNED
 FIRE FIGHTER TRAINING WAS OUTSIDE THE BARGAINING OBLIGATION, STATING
 THAT:
 
    AN AGENCY RETAINS THE RIGHT UNDER SECTION 7106 (A)(2)(B) TO ASSIGN
 WORK.  SUCH RIGHT
 
    CLEARLY ENCOMPASSES THE TRAINING INVOLVED IN THIS CASE, I.E.,
 TRAINING ASSIGNED DURING THE
 
    DUTY HOURS OF FIRE FIGHTERS . . .  (T)HE UNION'S PROPOSAL HOWEVER
 WOULD PLACE ABSOLUTE LIMITS
 
    ON THE ABILITY OF THE AGENCY TO ASSIGN SUCH TRAINING AT ALL AFTER
 SPECIFIED HOURS OR ON
 
    CERTAIN DAYS OF A FIREFIGHTER'S WORK WEEK.  TO THAT EXTENT THE
 PROPOSAL VIOLATES MANAGEMENT'S
 
    RIGHT TO ASSIGN WORK.
 
    FURTHER, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS AND DEPARTMENT OF
 JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA NO. 52(1980), THE AUTHORITY HELD
 THAT A PROPOSAL TO, INTER ALIA, REQUIRE MANAGEMENT TO ASSIGN WEAPONS
 PRACTICE AND QUALIFICATION FIRING ON A CERTAIN SCHEDULE WAS OUTSIDE THE
 DUTY TO BARGAIN, STATING THAT:
 
    (THE PROPOSAL) . . . WOULD VIOLATE MANAGEMENT'S RIGHT TO ASSIGN WORK
 UNDER SECTION
 
    7106(A)(2)(B) (OF THE STATUTE) BY CONTRACTUALLY PRESCRIBING CERTAIN
 ASSIGNMENTS AT SPECIFIED
 
    TIMES FOR SPECIFIC EMPLOYEES IN THE BARGAINING UNIT.
 
    LIKE THE PROPOSAL IN THE PHILADELPHIA NAVAL SHIPYARD CASE, THE
 INSTANT PROPOSALS CONCERN TRAINING TO BE UNDERTAKEN DURING DUTY HOURS
 /3/ AND, LIKE THE PROPOSAL IN THE MARSHALS SERVICE CASE, THESE PROPOSALS
 WOULD CONTRACTUALLY OBLIGATE THE AGENCY PERIODICALLY TO ASSIGN COVERED
 EMPLOYEES TO SPECIFIED TYPES OF TRAINING PROGRAMS OR TO MAKE SPECIFIC
 TRAINING ASSIGNMENTS UPON EMPLOYEE REQUESTS.  THUS, AN ASSIGNMENT OF
 TRAINING DURING DUTY HOURS IS AN ASSIGNMENT OF WORK, COVERED BY SECTION
 7106(A)(2)(B).  A PROPOSAL WHICH WOULD PRESCRIBE THE TYPE OF TRAINING TO
 BE ASSIGNED AS WELL AS ITS FREQUENCY AND DURATION IS NOT MERELY
 PROCEDURAL.  RATHER IT IS A DIRECT INTERFERENCE WITH THE AGENCY'S RIGHT
 TO ASSIGN WORK.  MORE SPECIFICALLY, A FINDING THAT THESE PROPOSALS ARE
 NEGOTIABLE WOULD MANDATE NEGOTIATIONS ON SUBSTANTIVE MATTERS, NAMELY THE
 SPECIFIC TYPE OF TRAINING TO BE PROVIDED TO BARGAINING UNIT EMPLOYEES
 DURING DUTY HOURS, WHICH WOULD DIRECTLY INTERFERE WITH MANAGEMENT'S
 RIGHT TO ASSIGN WORK.
 
    THE FACT THAT THE PROPOSALS MIGHT CONCERN TRAINING PROGRAMS
 PREVIOUSLY ESTABLISHED BY THE AGENCY, AS THE UNION ASSERTS, IS WITHOUT
 CONTROLLING SIGNIFICANCE.  THE AUTHORITY TO ASSIGN WORK MUST NECESSARILY
 INCLUDE THE ABILITY TO DISCONTINUE OR MODIFY SUCH ASSIGNMENTS;  HOWEVER,
 THE UNION PROPOSALS WOULD, IN EFFECT, REQUIRE MANAGEMENT TO CONTINUE THE
 DESCRIBED TRAINING IN THE PRESCRIBED MANNER OVER THE LIFE OF THE
 NEGOTIATED AGREEMENT.  THUS, UNION PROPOSALS I THROUGH III, FOR THE
 REASONS FULLY SET FORTH IN THE TWO CITED CASES, ARE INCONSISTENT WITH
 THE AGENCY'S AUTHORITY TO ASSIGN WORK AND, THEREFORE, ARE NONNEGOTIABLE.
 
                             UNION PROPOSAL IV
 
    ARTICLE 77-- POLITICAL ACTION FUND
 
    SECTION 1.  PROVIDING ALL LEGAL AND REGULATORY REQUIREMENTS ARE
 COMPLIED WITH, THE EMPLOYER AGREES TO HONOR POLITICAL ACTION FUND
 CONTRIBUTION DEDUCTION AUTHORIZATIONS FROM BARGAINING UNIT MEMBERS
 COVERED BY THIS AGREEMENT.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER UNION PROPOSAL
 IV IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE BECAUSE IT CONCERNS
 MATTERS THAT ARE NOT CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
 EMPLOYEES, AS ALLEGED BY THE AGENCY.  /4/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL IV DOES NOT CONCERN CONDITIONS
 OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES WITHIN THE MEANING OF THE
 STATUTE.  THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S
 PETITION FOR REVIEW RELATING TO PROPOSAL IV BE, AND IT HEREBY IS,
 DISMISSED.
 
    REASONS:  THE AGENCY TAKES THE POSITION THAT THE MATTER OF ALLOTMENTS
 FROM PAY FOR THE PROPOSED "POLITICAL ACTION FUND" IS NOT A CONDITION OF
 EMPLOYMENT AFFECTING WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES
 WITHIN THE MEANING OF THE STATUTE BECAUSE IT DOES NOT DIRECTLY ADDRESS
 THE EMPLOYMENT RELATIONSHIP.  THE UNION ASSERTS TO THE CONTRARY,
 EMPHASIZING THE AGENCY'S STATUTORY AUTHORITY UNDER 5 U.S.C. 5525 TO
 ESTABLISH PAYROLL ALLOTMENTS, AS FOLLOWS:
 
    SEC. 5525.  ALLOTMENT AND ASSIGNMENT OF PAY
 
    THE HEAD OF EACH AGENCY MAY ESTABLISH PROCEDURES UNDER WHICH EACH
 EMPLOYEE OF THE AGENCY IS PERMITTED TO MAKE ALLOTMENTS AND ASSIGNMENTS
 OF AMOUNTS OUT OF HIS PAY FOR SUCH PURPOSE AS THE HEAD OF THE AGENCY
 CONSIDERS APPROPRIATE.
 
    PURSUANT TO THIS AUTHORITY, AS THE UNION POINTS OUT, THE AGENCY
 UNILATERALLY ADMINISTERS VOLUNTARY ALLOTMENTS FOR A WIDE VARIETY OF
 PURPOSES.  /5/ THUS, THE UNION CONCLUDES THAT ITS PROPOSAL FOR
 ALLOTMENTS TO A POLITICAL ACTION FUND INVOLVES MATTERS AFFECTING WORKING
 CONDITIONS "IN THE SAME WAY AND TO THE SAME EXTENT" AS DO ALLOTMENTS
 COLLECTED BY THE AGENCY FOR VARIOUS OTHER PURPOSES.  THE UNION ARGUES
 THEREFORE THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.  THIS CONCLUSION
 CANNOT BE SUSTAINED.
 
    THE MERE FACT THAT AN AGENCY MAY, PURSUANT TO STATUTORY AUTHORITY,
 PERMIT AN ALLOTMENT FOR ANY LEGAL PURPOSE DOES NOT MEAN THAT IT HAS A
 DUTY TO BARGAIN REGARDING ALL PROPOSED ALLOTMENTS WITH LEGAL PURPOSES.
 THE PURPOSES OF ALLOTMENTS ESTABLISHED UNILATERALLY BY AN AGENCY
 PURSUANT TO ITS STATUTORY AUTHORITY NEED NOT, PER SE, RELATE TO
 CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL POLICIES OR PRACTICES OR
 MATTERS AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE BARGAINING
 UNIT.  LIKEWISE, OF COURSE, THE PURPOSES OF ALLOTMENTS ESTABLISHED BY AN
 AGENCY BECAUSE IT IS REQUIRED TO DO SO UNDER REGULATIONS OF THE OFFICE
 OF PERSONNEL MANAGEMENT /6/ NEED NOT, PER SE, RELATE TO CONDITIONS OF
 EMPLOYMENT.  IN CONTRAST, HOWEVER, THE DUTY TO BARGAIN UNDER THE STATUTE
 EXTENDS ONLY TO CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES
 (SEE NOTE 4 SUPRA).  CONSEQUENTLY, A PROPOSED ALLOTMENT IS WITHIN THE
 DUTY TO BARGAIN ONLY IF ITS PURPOSE DIRECTLY RELATES TO CONDITIONS OF
 EMPLOYMENT.
 
    TURNING TO THE ALLOTMENT PROPOSED BY THE UNION IN THE PRESENT CASE,
 ITS PURPOSE, AS STATED BY THE UNION, IS TO PROVIDE FUNDS TO BE USED IN
 "POLITICAL EFFORTS TO IMPROVE WORKING CONDITIONS." HOWEVER, THE
 RELATIONSHIP BETWEEN EXPENDITURES TO EXERT POLITICAL INFLUENCE, ON THE
 ONE HAND, AND CHANGES IN PERSONNEL POLICIES OR PRACTICES OR MATTERS
 AFFECTING WORKING CONDITIONS, ON THE OTHER HAND, IS, AT BEST, REMOTE AND
 SPECULATIVE.  /7/
 
    ACCORDINGLY, WHILE THE AGENCY IS NOT PROHIBITED FROM BARGAINING ON
 THE PROPOSAL AND MAY DO SO IF IT WISHES, THE PROPOSAL DOES NOT DIRECTLY
 RELATE TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES AND, THEREFORE, IS
 NOT WITHIN THE DUTY TO BARGAIN.  /8/
 
                             UNION PROPOSAL V
 
    ARTICLE 80-- PERFORMANCE OF BARGAINING UNIT WORK
 
    SECTION 1.  THE EMPLOYER RECOGNIZES THAT PERFORMANCE OF DUTIES
 NORMALLY ASSIGNED TO BARGAINING UNIT MEMBERS SHOULD BE PERFORMED BY
 PROPERLY QUALIFIED BARGAINING UNIT MEMBERS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH THE
 AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL V, AS DRAFTED, IS INCONSISTENT
 WITH THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE AND IS, THEREFORE, NONNEGOTIABLE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
 FOR REVIEW RELATING TO PROPOSAL V BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE UNION, IN RESPONSE TO THE AGENCY'S STATEMENT OF
 POSITION ON THE NONNEGOTIABILITY OF PROPOSAL V AND TWO OTHER UNION
 PROPOSALS DISCUSSED IMMEDIATELY BELOW, STATED THAT:
 
    THE CLAUSES OF THE PROPOSAL IN THE INSTANT CASE WOULD FUNCTION AS A
 POLICY TO GUIDE THE
 
    FACILITY MANAGERS IN THE ASSIGNMENT OF UNIT WORK BUT WOULD NOT
 PROHIBIT ALL OR EVEN ANY
 
    PARTICULAR ASSIGNMENT OF UNIT WORK TO NONUNIT PERSONNEL.  PROPER
 IMPLEMENTATION OF THE
 
    PROPOSAL WOULD MERELY INSURE THAT THE UNIT AND NONUNIT PERSONNEL
 CONTINUE TO FUNCTION
 
    PRIMARILY WITHIN THE SPHERES OF THEIR RESPECTIVE POSITION
 DESCRIPTIONS WHICH THE AGENCY HAS
 
    DEFINED AND RETAINS THE RIGHT TO DEFINE.
 
    THIS STATEMENT AS TO THE INTENDED MEANING OF THE PROPOSAL IS
 INCONSISTENT WITH THE PROPOSAL'S PLAIN LANGUAGE WHICH WOULD REQUIRE THE
 CONTINUED ASSIGNMENT OF BARGAINING UNIT WORK TO QUALIFIED BARGAINING
 UNIT EMPLOYEES.  THAT IS, THE PROPOSAL WOULD REQUIRE AGENCY MANAGERS TO
 RECOGNIZE THAT WORK USUALLY ASSIGNED TO THE UNIT SHOULD BE PERFORMED BY
 QUALIFIED EMPLOYEES IN THAT UNIT.  THUS, THE PROPOSAL DIRECTLY CONFLICTS
 WITH THE RIGHT TO ASSIGN WORK RESERVED TO MANAGEMENT BY SECTION
 7106(A)(2)(B) OF THE STATUTE.
 
    IMPLICIT, HOWEVER, IN THE UNION'S STATEMENT SET FORTH ABOVE IS A
 CONNECTION BETWEEN THE INTENDED MEANING OF UNION PROPOSAL V AND PROPOSAL
 II IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
 JERSEY, 2 FLRA NO. 16(1979), ENFORCED AS TO OTHER MATTERS SUB NOM.
 DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D .
 . . (D.C. CIR. 1981).  THE LATTER PREVENTED AGENCY MANAGEMENT FROM USING
 THE TERM "OTHER RELATED DUTIES AS ASSIGNED," AS IT APPEARS IN AN
 EMPLOYEE'S POSITION DESCRIPTION, AS A BASIS FOR REGULARLY ASSIGNING
 DUTIES WHICH ARE NOT REASONABLY RELATED TO THOSE DESCRIBED IN A CURRENT
 POSITION DESCRIPTION.  THE AUTHORITY HELD IN DIX-MCGUIRE THAT:
 
    NOTHING IN THE LANGUAGE OF THE PROPOSAL OR THE RECORD INDICATES THAT
 IT IS INTENDED TO
 
    SHIELD THE EMPLOYEE FROM BEING ASSIGNED ADDITIONAL "UNRELATED"
 DUTIES, I.E., DUTIES WHICH ARE
 
    NOT WITHIN THOSE DESCRIBED IN HIS OR HER EXISTING POSITION
 DESCRIPTION AND WHICH ARE NOT
 
    RELATED TO THOSE WHICH ARE SO DESCRIBED.  RATHER, AS A CONSEQUENCE OF
 THIS PROPOSAL, IF THE
 
    AGENCY DECIDED TO ADD UNRELATED DUTIES, TO BE PERFORMED REGULARLY, TO
 A POSITION, IT WOULD
 
    NEED TO CHANGE THE POSITION DESCRIPTION IN ORDER TO DO SO.
 
    IT IS PRECISELY THE DIFFERENCE BETWEEN THE DIX-MCGUIRE PROPOSAL AND
 UNION PROPOSAL V HEREIN WHICH UNDERSCORES THE NONNEGOTIABILITY OF THE
 INSTANT PROPOSAL AS DRAFTED.  IN DIX-MCGUIRE, THE PROPOSAL DID NOT
 IMPOSE ANY LIMITATIONS ON THE AGENCY'S AUTHORITY TO ASSIGN WORK.
 RATHER, IT OBLIGATED THE AGENCY TO REFLECT CERTAIN ASSIGNMENT CHANGES IN
 EMPLOYEES' POSITION DESCRIPTIONS.  BY CONTRAST, PROPOSAL V HEREIN, AS
 DRAFTED, WOULD RESTRICT ASSIGNMENT OF WORK BY IMPOSING AN OBLIGATION
 UPON MANAGEMENT TO ASSIGN SPECIFIC WORK TO "QUALIFIED" EMPLOYEES IN THE
 BARGAINING UNIT, NOT TO OTHER EMPLOYEES IN THE UNIT OR TO EMPLOYEES
 OUTSIDE THE UNIT.  HENCE, UNION PROPOSAL V IS NONNEGOTIABLE.  IT SHOULD
 BE NOTED, HOWEVER, THAT IF THE PROPOSAL WERE REDRAFTED CONSISTENT WITH
 THE UNION'S STATED INTENT AND THE DIX-MCGUIRE DECISION, IT WOULD BE AN
 APPROPRIATE MATTER FOR NEGOTIATION.
 
                             UNION PROPOSAL VI
 
    ARTICLE 80-- PERFORMANCE OF BARGAINING UNIT WORK
 
    SECTION 2.  THE PARTIES AGREE THAT SUPERVISORS MAY BE REQUIRED TO
 PERFORM BARGAINING UNIT DUTIES FOR THE PURPOSE OF TRAINING AND
 INSTRUCTING EMPLOYEES, TO PROVIDE RELIEF BREAKS TO BARGAINING UNIT
 MEMBERS, AND IN CASE OF EMERGENCY.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL VI IS OUTSIDE THE DUTY TO
 BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT IS INCONSISTENT WITH THE
 AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
 AND IS NOT CONCERNED WITH CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
 EMPLOYEES.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL VI IS INCONSISTENT WITH THE
 AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE.  FURTHERMORE, INSOFAR AS IT APPLIES TO TO SUPERVISORS, IT DOES
 NOT CONCERN THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.
 THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT
 TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
 FOR REVIEW RELATING TO PROPOSAL VI BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  SECTION 7106(A)(2)(B) OF THE STATUTE PLAINLY RESERVES TO
 MANAGEMENT OFFICIALS THE AUTHORITY TO ASSIGN WORK.  ENCOMPASSED WITHIN
 THAT AUTHORITY IS THE DISCRETION TO DETERMINE WHICH EMPLOYEES WILL
 RECEIVE PARTICULAR WORK ASSIGNMENTS.  /9/ UNION PROPOSAL VI, HOWEVER,
 WOULD PRECLUDE THE ASSIGNMENT OF DUTIES, NORMALLY PERFORMED BY
 EMPLOYEES
 IN THE BARGAINING UNIT, TO SUPERVISORS EXCEPT FOR THE SPECIFIC PURPOSES
 OR IN THE CIRCUMSTANCES DESCRIBED.  THUS, IN VIEW OF THE LIMITATION IT
 IMPOSES ON THE ASSIGNMENT OF WORK TO SUPERVISORY PERSONNEL, UNION
 PROPOSAL VI IS INCONSISTENT WITH THE AGENCY'S AUTHORITY TO MAKE WORK
 ASSIGNMENTS AND IS NONNEGOTIABLE.
 
    IN ADDITION, INSOFAR AS THE INSTANT PROPOSAL APPLIES TO SUPERVISORS,
 IT IS NOT WITHIN THE DUTY TO BARGAIN.  IN THIS CONNECTION, IT WAS STATED
 IN THE PHILADELPHIA NAVAL SHIPYARD CASE, CITED IN THE DISCUSSION OF
 
    THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO THE CONDITIONS
 OF EMPLOYMENT OF
 
    BARGAINING UNIT EMPLOYEES.  IN THIS REGARD, SUPERVISORS ARE
 SPECIFICALLY EXCLUDED FROM
 
    INCLUSION IN COLLECTIVE BARGAINING UNITS.
 
    HENCE, EVEN IF IT WERE OTHERWISE NEGOTIABLE, TO THE EXTENT THAT UNION
 PROPOSAL VI CONCERTS AGENCY SUPERVISORS, IT IS NOT WITHIN THE DUTY TO
 BARGAIN.
 
                            UNION PROPOSAL VII
 
    ARTICLE 80-- PERFORMANCE OF BARGAINING UNIT WORK
 
    SECTION 3.  THE EMPLOYER AGREES TO MAKE EVERY REASONABLE EFFORT TO
 INSURE THAT WORK NORMALLY ASSIGNED TO BARGAINING UNIT MEMBERS IS
 PERFORMED BY PROPERLY QUALIFIED BARGAINING UNIT MEMBERS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL VII CONCERNS A MATTER WITHIN
 THE AGENCY'S DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE,
 /10/ OR WHETHER, AS THE AGENCY ALLEGES, IT IS INCONSISTENT WITH THE
 AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL VII CONCERNS A MATTER WITHIN
 THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 7106(B)(3) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING UNION PROPOSAL VII.  /11/
 
    REASONS:  CONTRARY TO THE AGENCY'S ASSERTION, THE PROPOSAL WOULD NOT
 LIMIT THE AGENCY IN ITS ABILITY TO MAKE DECISIONS CONCERNING THE
 ASSIGNMENT OF WORK BUT LEAVES SUCH DETERMINATIONS, AS REQUIRED BY THE
 STATUTE, IN THE DISCRETION OF THE AGENCY.  THE REQUIREMENT OF THE
 PROPOSAL THAT THE AGENCY "MAKE EVERY REASONABLE EFFORT" TO ASSIGN WORK
 WITHIN THE BARGAINING UNIT TO QUALIFIED EMPLOYEES WITHIN THE UNIT WOULD
 ESTABLISH A GENERAL, NONQUANTITATIVE CONTRACTUAL STANDARD BY WHICH THE
 AGENCY'S EXERCISE OF ITS RESERVED AUTHORITY TO ASSIGN WORK COULD BE
 EVALUATED IN A SUBSEQUENT GRIEVANCE.
 
    IN THIS REGARD, UNION PROPOSAL VII IS SIMILAR TO THE PROPOSAL THE
 AUTHORITY HELD TO BE NEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1622 AND DEPARTMENT OF THE ARMY, FORT MEADE,
 MARYLAND, 4 FLRA NO. 66(1980).  IN THAT CASE THE PROPOSAL REQUIRED THAT
 HOURS OF WORK FOR EMPLOYEES NOT BE REDUCED "WITHOUT JUST CAUSE." THE
 AUTHORITY FOUND THAT THE PROPOSAL WOULD NOT SUBSTITUTE THE JUDGMENT OF
 AN ARBITRATOR FOR THAT OF THE AGENCY IN DECIDING TO REDUCE HOURS OF WORK
 FOR EMPLOYEES, NOR WOULD REVIEW BY AN ARBITRATOR PRECLUDE THE AGENCY
 FROM TAKING SUCH ACTION.  RATHER, THE PROPOSAL WOULD SIMPLY ESTABLISH A
 MEANS TO "DETERMINE IF THE (A)GENCY'S DECISION REGARDING THE REDUCTION
 IN HOURS AS APPLIED TO THE GRIEVANT COMPLIED WITH THE 'JUST CAUSE'
 REQUIREMENT OF THE PARTIES' AGREEMENT." THIS REASONING IS EQUALLY
 APPLICABLE TO UNION PROPOSAL VII, WHICH SEEKS TO APPLY "EVERY REASONABLE
 EFFORT" AS A GENERAL STANDARD TO BE APPLIED TO AGENCY ACTIONS IN
 ASSIGNMENTS OF WORK NORMALLY ASSIGNED TO BARGAINING UNIT EMPLOYEES.
 THUS, THE PROPOSAL WOULD NOT SUBSTITUTE THE JUDGMENT OF AN ARBITRATOR
 FOR THAT OF THE AGENCY IN DECIDING WHETHER OR NOT TO ASSIGN THE WORK TO
 BARGAINING UNIT MEMBERS, NOR WOULD REVIEW BY AN ARBITRATOR PRECLUDE THE
 AGENCY FROM TAKING OR NOT TAKING SUCH ACTION.  RATHER, ONCE THE AGENCY
 HAS EXERCISED ITS MANAGEMENT RIGHT TO ASSIGN WORK AND HAS MADE A
 DETERMINATION TO ASSIGN SUCH WORK TO BARGAINING UNIT MEMBERS, THE
 PROPOSAL WOULD PERMIT AN ARBITRATOR TO JUDGE WHETHER THE AGENCY MADE
 "EVERY REASONABLE EFFORT" TO INSURE THAT SUCH WORK, WHEN ASSIGNED WITHIN
 THE BARGAINING UNIT, IS PERFORMED BY "PROPERLY QUALIFIED" PEOPLE.
 
    HENCE, FOR THE REASONS SET FORTH IN GREATER DETAIL IN THE DEPARTMENT
 OF THE ARMY, FORT MEADE, MARYLAND CASE, IT IS CONCLUDED THAT UNION
 PROPOSAL VII IS NOT INCONSISTENT WITH THE AGENCY'S RIGHT TO ASSIGN WORK,
 BUT, RATHER, IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF
 THE STATUTE AS AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES WHO MIGHT BE
 ADVERSELY AFFECTED BY THE AGENCY'S EXERCISE OF ITS AUTHORITY UNDER THE
 STATUTE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    MR. LAWRENCE C. CUSHING
 
    PRESIDENT, NATIONAL ASSOCIATION
 
    OF AIR TRAFFIC SPECIALISTS
 
    SUITE 415, WHEATON PLAZA NORTH
 
    WHEATON, MARYLAND 20902
 
    MR. WILLIAM J. BECKHAM, JR.
 
    DEPUTY SECRETARY OF TRANSPORTATION
 
    WASHINGTON, D.C. 20590
 
    MR. ROBERT S. SMITH
 
    DIRECTOR OF PERSONNEL AND TRAINING
 
    DEPARTMENT OF TRANSPORTATION (M-10)
 
    ROOM 9101, NASSIF BUILDING
 
    400 SEVENTH AVENUE, S.W.
 
    WASHINGTON, D.C. 20590
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY ASSERTS THAT THE INSTANT PROPOSALS ARE INCONSISTENT
 WITH, INTER ALIA, THE FOLLOWING PROVISION OF SECTION 7106(A):
 
    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--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (B) TO ASSIGN WORK. . . (.)
 
    /2/ IN VIEW OF THE DECISION THAT THE PROPOSALS ARE INCONSISTENT WITH
 THE STATUTORY AUTHORITY OF THE AGENCY TO ASSIGN WORK, IT IS UNNECESSARY
 TO CONSIDER THE AGENCY'S OTHER CONTENTIONS AS TO THE NONNEGOTIABILITY OF
 THE PROPOSALS.
 
    /3/ WHILE SECTION 18 DOES NOT SPECIFICALLY REQUIRE THAT THE TRAINING
 PRESCRIBED THEREIN BE CONDUCTED DURING DUTY HOURS, SUCH REQUIREMENT
 CLEARLY IS IMPLICIT IN THE STATEMENT THAT SUCH TRAINING "MAY BE
 CONSIDERED IN LIEU OF THE PILOT WEATHER BRIEFING TRAINING REQUIRED IN
 SECTION 10."
 
    /4/ SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA
 NO. 60(1980), IN WHICH THE AUTHORITY ANALYZED THE DUTY TO BARGAIN UNDER
 THE STATUTE AND CONCLUDED THAT:  "(T)HE DUTY TO BARGAIN APPLIES ONLY TO
 THOSE CONDITIONS OF EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE
 BARGAINING UNIT."
 
    /5/ ACCORDING TO THE UNION, AMONG SUCH PURPOSES ARE SAVING BONDS,
 UNION AND PROFESSIONAL SOCIETY DUES, AND CONTRIBUTIONS TO THE COMBINED
 FEDERAL CAMPAIGN.
 
    /6/ SEE 5 CFR 550.301-383(1981).
 
    /7/ CF. ABOOD V. DETROIT BOARD OF EDUCATION, 431 U.S. 209, 228(1977)
 (EFFECT OF EXERCISE OF POLITICAL INFLUENCE ON CHANGES IN CONDITIONS OF
 EMPLOYMENT IS SUBJECT TO MANY INTERVENING VARIABLES).
 
    /8/ BUT SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
 SERVICE, 3 FLRA NO. 112(1980) (PROPOSED PROCEDURES REGARDING OUTSIDE
 EMPLOYMENT ARE DIRECTLY RELATED TO CONDITIONS OF EMPLOYMENT BY VIRTUE OF
 AGENCY REGULATIONS).
 
    /9/ SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
 NO. 77(1980), AT 28, ENFORCED AS TO OTHER MATTERS SU