American Federation of Government Employees, Council 214, AFL-CIO (Union) and Air Force, HQ, Air Force Logistics Command, Wright- Patterson Air Force Base, Ohio (Agency)

 



[ v08 p425 ]
08:0425(92)NG
The decision of the Authority follows:


 8 FLRA No. 92
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, COUNCIL 214
 Union
 
 and
 
 DEPARTMENT OF THE AIR
 FORCE, HEADQUARTERS,
 AIR FORCE LOGISTICS
 COMMAND, WRIGHT-
 PATTERSON AIR FORCE
 BASE, OHIO
 Agency
 
                                            Case Nos. O-NG-385 and O-NG-424
 
          CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITIONS FOR REVIEW IN THESE CASES COME 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).
 UPON CAREFUL CONSIDERATION OF THE RECORDS IN THEIR ENTIRETY, INCLUDING
 THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
    THE ISSUES PRESENTED ARE (1) WHETHER THE PETITIONS ARE PROPERLY
 BEFORE THE AUTHORITY, AND (2) THE NEGOTIABILITY OF THREE UNION
 PROPOSALS.  /1/ THE AGENCY REQUESTS THAT THE UNION'S PETITION FOR REVIEW
 IN CASE NO. O-NG-385 BE DISMISSED AS UNTIMELY FILED, CLAIMING THAT IT
 WAS FILED MORE THAN FIFTEEN DAYS AFTER THE AGENCY FIRST ALLEGED THAT THE
 PROPOSALS IN DISPUTE ARE NOT WITHIN THE DUTY TO BARGAIN.  SECTION 2424.3
 OF THE AUTHORITY'S RULES AND REGULATIONS SPECIFIES THAT THE FIFTEEN DAY
 TIME LIMIT BEGINS TO RUN WHEN AN AGENCY RENDERS ITS ALLEGATION OF
 NONNEGOTIABILITY IN RESPONSE TO THE UNION'S WRITTEN REQUEST.  IN THIS
 CASE, IT IS UNDISPUTED THAT THE ALLEGATIONS WITH RESPECT TO WHICH THE
 AGENCY CLAIMS THE PETITION WAS UNTIMELY FILED WERE NOT REQUESTED IN
 WRITING BY THE UNION.  THUS, UNDER THE RULES, THOSE ALLEGATIONS DID NOT
 START THE RUNNING OF THE FIFTEEN DAY TIME LIMIT FOR THE FILING OF THE
 APPEAL.  /2/ SUBSEQUENT TO THOSE ALLEGATIONS, HOWEVER, THE UNION IN
 WRITING REQUESTED AN ALLEGATION AND TIMELY FILED ITS APPEAL FROM THE
 AGENCY'S RESPONSE THERETO.  THEREFORE, THE AGENCY'S REQUEST TO DISMISS
 THIS PETITION AS UNTIMELY FILED IS DENIED.
 
    SINCE THE APPEAL IN CASE NO. O-NG-385 IS PROPERLY BEFORE THE
 AUTHORITY FOR DECISION, IT IS UNNECESSARY TO CONSIDER THE AGENCY'S
 CONTENTIONS THAT THE APPEAL IN CASE NO. O-NG-424 WAS UNTIMELY FILED.  IN
 THIS REGARD, BOTH PARTIES ACKNOWLEDGE THAT THE APPEAL IN CASE NO.
 O-NG-424 INVOLVES SUBSTANTIALLY THE SAME PROPOSALS AS ARE AT ISSUE IN
 CASE NO. O-NG-385.  /3/ THEREFORE, THE FOLLOWING NEGOTIABILITY
 DETERMINATION WITH RESPECT TO THE PROPOSALS AT ISSUE IN CASE NO.
 O-NG-385 RENDERS MOOT ALL ISSUES IN DISPUTE IN CASE NO. O-NG-424.
 ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION IN CASE. NO.
 O-NG-424 BE, AND IT HEREBY IS, DISMISSED.
 
                            UNION PROPOSALS 1-3
 
    ALL POSITION OFFERS TO EMPLOYEES IN THE PROCESS OF REASSIGNMENT
 AND/OR ETC., WILL BE
    DOCUMENTED AND SIGNED WITH A COPY TO THE EMPLOYEE.  COPIES OF ALL
 LISTS OR LISTINGS OF
    EMPLOYEES TO BE AFFECTED WILL BE FURNISHED TO THE LOCAL.  WHEN
 EMPLOYEES WHOSE POSITIONS HAVE
    BEEN TARGETED FOR DOWNGRADING OR CANCELLATION AND ARE TO BE
 NONCOMPETITIVELY REASSIGNED, THE
    FOLLOWING PROCEDURES WILL APPLY.  (ONLY THE UNDERSCORED LANGUAGE IS
 IN DISPUTE.)
 
 
    1.  WHERE A VACANCY EXISTS AND THERE IS MORE THAN ONE EMPLOYEE TO BE
 CONSIDERED, THE
    EMPLOYEE WITH THE MOST SENIORITY WILL BE ALLOWED TO ACCEPT THE
 VACANCY;
 
    2.  WHERE AN EMPLOYEE IS TO BE REASSIGNED, AND THERE IS MORE THAN ONE
 VACANT POSITION, THE
    EMPLOYEE WILL BE ALLOWED TO SELECT THE POSITION HE/SHE WANTS;
 
    3.  WHERE A VACANT POSITION EXISTS AND THERE IS NO VOLUNTEER FOR THE
 POSITION, THE EMPLOYEE
    WITH THE LEAST AMOUNT OF SENIORITY WILL BE REASSIGNED TO THAT
 POSITION.
 
    IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES THAT EACH OF
 THE DISPUTED PROPOSALS INTERFERES WITH MANAGEMENT'S RIGHT TO "ASSIGN"
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE /4/ BY REQUIRING,
 IF THE CONDITIONS SET FORTH IN THE PROPOSALS ARE PRESENT, REASSIGNMENT
 OF EMPLOYEES ON THE BASIS OF THEIR SENIORITY OR BY EMPLOYEE PREFERENCE.
 
    THE PROPOSALS IN DISPUTE HEREIN ARE NOT MATERIALLY DISTINGUISHABLE
 FROM VARIOUS PROPOSALS (IV-VII, AND XIII) CONSIDERED BY THE AUTHORITY
 AND HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604 (1980), ENFORCED SUB
 NOM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES V. FEDERAL LABOR
 RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981).  THE AUTHORITY
 FOUND THAT THOSE PROPOSALS, WHICH COMPELLED THE SELECTION OF A
 PARTICULAR INDIVIDUAL OR ASSIGNMENT TO A POSITION BASED ON EITHER
 EMPLOYEE SENIORITY, LACK OF SENIORITY, OR BY EMPLOYEE PREFERENCE,
 DIRECTLY INTERFERED WITH THE AGENCY'S DISCRETION TO DETERMINE WHICH
 EMPLOYEE TO ASSIGN AND, THUS, WERE INCONSISTENT WITH SECTION 7106(A)(2)
 (A) OF THE STATUTE.  THEREFORE, FOR THE REASONS SET FORTH IN
 WRIGHT-PATTERSON AIR FORCE BASE, UNION PROPOSALS 1, 2, AND 3 HEREIN MUST
 BE FOUND TO BE OUTSIDE THE DUTY TO BARGAIN.  /5/
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AUTHORITY HEREBY GRANTS THE UNION'S REQUEST TO AMEND ITS
 PETITION IN CASE NO. O-NG-385 TO WITHDRAW ALL PROPOSALS EXCEPT THOSE
 INVOLVING REASSIGNMENT.
 
    /2/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385
 AND FEDERAL HOME LOAN BANK BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA
 NO. 58 (1981).
 
    /3/ THE APPEAL IN CASE NO. O-NG-424, ACCORDING TO THE UNION, WAS
 FILED ONLY TO PROTECT THE UNION'S RIGHT TO APPEAL ON THE ISSUES
 INVOLVED, IN VIEW OF UNCERTAINTY AS TO THE TIMELINESS OF THE PETITION IN
 CASE NO. O-NG-385.
 
    /4/ SECTION 7106(A)(1)(A) PROVIDES:
 
    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--
 
    (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(.)
 
    /5/ IN VIEW OF THE DECISION THAT THE PROPOSALS ARE OUTSIDE THE DUTY
 TO BARGAIN UNDER SECTION 7106(A)(2)(A), THE AUTHORITY FINDS IT
 UNNECESSARY TO CONSIDER THE AGENCY'S OTHER ALLEGATIONS AS TO THE
 NEGOTIABILITY OF THE PROPOSALS.