09:0703(84)NG - Laborers International Union of North America Local l276 and VA National Cemetery Office, San Francisco, CA -- 1982 FLRAdec NG



[ v09 p703 ]
09:0703(84)NG
The decision of the Authority follows:


 9 FLRA No. 84
 
 LABORERS INTERNATIONAL UNION
 OF NORTH AMERICA, AFL-CIO,
 LOCAL 1276
 Union
 
 and
 
 VETERANS ADMINISTRATION,
 NATIONAL CEMETERY OFFICE,
 SAN FRANCISCO, CALIFORNIA
 Agency
 
                                            Case No. O-NG-356
 
                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).
 THE ISSUES PRESENTED ARE THE NEGOTIABILITY OF TWO UNION PROVISIONS
 CONTAINED IN A LOCALLY EXECUTED AGREEMENT WHICH, UPON REVIEW PURSUANT TO
 SECTION 7114(C) OF THE STATUTE, /1/ WERE DISAPPROVED BY THE VETERANS
 ADMINISTRATION AS NOT BEING IN ACCORDANCE WITH APPLICABLE LAW.
 
                                PROVISION 1
 
    SECTION 7 THE EMPLOYER AGREES THAT, TO THE EXTENT CONSISTENT WITH
 WORK REQUIREMENTS, EVERY
 
    POSSIBLE EFFORT WILL BE MADE TO DETAIL EMPLOYEE(S) TO HIGHER LEVEL
 DUTIES IN THE FOLLOWING
 
    MANNER:
 
    A.  WHEN MAKING ASSIGNMENTS TO DETAILS FOR BOTH THIRTY (30) DAYS OR
 LESS AND IN EXCESS OF
 
    THIRTY (30) DAYS, THE EMPLOYER WILL SELECT ONLY QUALIFIED (BY OFFICE
 OF PERSONNEL MANAGEMENT
 
    STANDARDS) EMPLOYEES IN THE NEAREST GRADE TO THE POSITION TO BE
 FILLED.  WHEN TWO (2) OR MORE
 
    EMPLOYEES ARE EQUALLY WELL QUALIFIED AND CAPABLE OF PERFORMING THE
 DETAIL WORK IN THE MOST
 
    EXPEDITIOUS AND EFFICIENT MANNER, THE EMPLOYER AGREES THAT THE
 EMPLOYEE ASSIGNED SHALL BE THE
 
    EMPLOYEE WITH THE GREATEST FEDERAL EMPLOYMENT SERVICE (BASED ON
 SERVICE COMPUTATION DATE.)
 
    B.  EMPLOYEES DETAILED TO HIGHER LEVEL DUTIES ON AN INTERMITTENT
 BASIS SHALL BE QUALIFIED
 
    AND WILL BE SELECTED ON THE BASIS OF SECTION 7A ABOVE.  WHEN SUCH AN
 INTERMITTENT DETAIL IS
 
    USED AND THE AGGREGATE NUMBER OF DAYS DETAILED EXCEEDS THIRTY (30)
 DAYS DURING A PERIOD OF 120
 
    CALENDAR DAYS BEGINNING WITH THE FIRST DAY OF DETAIL, THE EMPLOYEE
 WILL BE TEMPORARILY
 
    PROMOTED TO THE HIGHER GRADE ON THE 31ST DAY OF DETAIL FOR THE
 PROJECTED NUMBER OF DAYS TO BE
 
    ACTUALLY WORKED IN EXCESS OF 30 DAYS BUT NOT TO EXCEED 120 DAYS.
 TIME RECORDS FOR THIS
 
    PURPOSE WILL BE KEPT BY THE DIRECTOR OF NATIONAL CEMETERY.
 
                                PROVISION 2
 
    SECTION 9 THE EMPLOYER AGREES THAT:
 
    A.  WHEN IT BECOMES NECESSARY TO ASSIGN AN EMPLOYEE TO LOWER GRADED
 WORK WHICH HAS BEEN
 
    DETERMINED BY THE EMPLOYER TO BE UNUSUALLY DIRTY OR ARDUOUS AND WHEN
 THERE ARE TWO (2) OR MORE
 
    EMPLOYEES WHO ARE EQUALLY QUALIFIED AND CAPABLE OF PERFORMING THE
 WORK IN THE MOST EXPEDITIOUS
 
    AND EFFICIENT MANNER, THE EMPLOYER AGREES THAT THE EMPLOYEE ASSIGNED
 SHALL BE THE EMPLOYEE IN
 
    THE NEAREST GRADE TO THE WORK TO BE PERFORMED WITH THE LAST FEDERAL
 EMPLOYMENT SERVICE (BASED
 
    ON SERVICE COMPUTATION DATE).
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER PROVISIONS 1 AND 2 OF THE LOCAL PARTIES'
 AGREEMENT ARE INCONSISTENT WITH THE RIGHTS OF MANAGEMENT TO ASSIGN
 EMPLOYEES IN THE AGENCY AND/OR TO ASSIGN WORK PURSUANT TO SECTION
 7106(A)(2)(A) OR (B) OF THE STATUTE.  /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  PROVISIONS 1 AND 2 ARE NOT INCONSISTENT WITH
 SECTION 7106(A)(2)(A) OR (B) 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 HEAD SHALL RESCIND THE
 DISAPPROVAL OF PROVISIONS 1 AND 2, WHICH WERE BARGAINED ON AND AGREED TO
 BY THE PARTIES AT THE LOCAL LEVEL.  /3/
 
    REASONS:  THE RIGHT TO ASSIGN EMPLOYEES WHICH IS RESERVED TO
 MANAGEMENT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE ENCOMPASSES
 MANAGEMENT'S DISCRETION TO ESTABLISH THE QUALIFICATIONS NECESSARY TO
 PERFORM THE DUTIES GENERALLY ASSIGNED TO THE POSITION AND TO DET