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 DETERMINE
 WHETHER AN EMPLOYEE MEETS THOSE QUALIFICATIONS.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 603, 612-13 (1980),
 ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
 AUTHORITY, 659 F.2D 1140, 1148-49 (D.C. CIR. 1981), CERT. DENIED SUB
 NOM. AFGE V. FLRA, . . . U.S. . .  ., 102 S.CT. 1443 (1982).
 
    SIMILARLY, MANAGEMENT'S RIGHT TO ASSIGN WORK PURSUANT TO SECTION
 7106(A)(2)(B) ENCOMPASSES DISCRETION TO ESTABLISH THE PARTICULAR
 QUALIFICATIONS AND SKILLS NEEDED TO PERFORM THE WORK TO BE DONE, AND TO
 EXERCISE JUDGMENT IN DETERMINING WHETHER A PARTICULAR EMPLOYEE MEETS
 THOSE QUALIFICATIONS.  THUS, WHEN MANAGEMENT DETERMINES THAT ONLY ONE
 EMPLOYEE POSSESSES THE REQUISITE QUALIFICATIONS TO DO CERTAIN WORK,
 SECTION 7106(A)(2)(B) RESERVES TO MANAGEMENT THE RIGHT TO ASSIGN THE
 WORK TO THAT PARTICULAR EMPLOYEE.  WRIGHT-PATTERSON, 2 FLRA AT 631.
 WHERE, HOWEVER, IN MANAGEMENT'S JUDGMENT, TWO OR MORE EMPLOYEES ARE
 EQUALLY QUALIFIED AND CAPABLE OF PERFORMING THE WORK, THE SELECTION OF
 ANY ONE OF THOSE EMPLOYEES TO PERFORM THE WORK WOULD BE CONSISTENT WITH
 MANAGEMENT'S EXERCISE OF ITS DISCRETION.  UNDER SUCH CIRCUMSTANCES, THE
 PROCEDURE BY WHICH EMPLOYEES PREVIOUSLY JUDGED BY MANAGEMENT TO BE
 EQUALLY QUALIFIED WILL BE SELECTED TO PERFORM THE WORK IS NEGOTIABLE
 UNDER SECTION 7106(B)(2).  /4/ SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, 5 FLRA NO. 15 (1981).
 
    IN THE INSTANT CASE, PROVISION 1 OBLIGATES THE AGENCY ONLY TO "MAKE
 EVERY POSSIBLE EFFORT" TO ASSIGN EMPLOYEES IN THE PRESCRIBED MANNER, "TO
 THE EXTENT CONSISTENT WITH ITS WORK REQUIREMENTS." MOREOVER, WITH REGARD
 TO THE GRADE AND SENIORITY ELEMENTS, THEY BECOME EFFECTIVE ONLY WHEN, IN
 MANAGEMENT'S JUDGMENT, TWO OR MORE EMPLOYEES ARE EQUALLY WELL QUALIFIED
 AND CAPABLE OF PERFORMING THE WORK IN THE MOST EXPEDITIOUS AND EFFICIENT
 MANNER.  THAT IS, IF, IN MANAGEMENT'S VIEW, NO TWO EMPLOYEES ARE EQUALLY
 QUALIFIED AND CAPABLE, THIS PROVISION WOULD PERMIT MANAGEMENT TO SELECT
 AN EMPLOYEE FOR THE ASSIGNMENT WITHOUT REFERENCE TO GRADE OR SENIORITY.
 FINALLY, NOTHING IN THE RECORD INDICATES THAT THE PROVISION WOULD
 INTERFERE WITH THE AGENCY'S DETERMINING ITS WORK REQUIREMENTS, OR WOULD
 PERMIT AN EMPLOYEE TO REFUSE A WORK ASSIGNMENT.  CONSEQUENTLY, CONTRARY
 TO THE AGENCY'S CONTENTIONS, THE PROVISION IS NOT INCONSISTENT WITH
 SECTION 7106(A)(2)(A) OR (B) OF THE STATUTE.  INTERNATIONAL ASSOCIATION
 OF FIRE FIGHTERS, LOCAL F-48, AFL-CIO AND NAVAL SUPPORT ACTIVITY, MARE
 ISLAND STATION, CALIFORNIA, 3 FLRA 488 (1980);  NATIONAL LABOR RELATIONS
 BOARD UNION AND NATIONAL LABOR RELATIONS BOARD, WASHINGTON, D.C., 3 FLRA
 507 (1980).
 
    SIMILARLY, PROVISION 2 WOULD OBLIGATE THE AGENCY TO MAKE A SELECTION
 BASED UPON GRADE AND SENIORITY ONLY WHEN TWO OR MORE EMPLOYEES HAVE BEEN
 DETERMINED BY THE AGENCY TO BE EQUALLY QUALIFIED AND CAPABLE OF
 PERFORMING THE WORK.  THUS, CONTRARY TO THE AGENCY'S ASSERTION, THE
 PROVISION LEAVES TO MANAGEMENT'S DISCRETION THE DETERMINATION OF THE
 RELATIVE ABILITIES, QUALIFICATIONS, AND CAPABILITIES OF ITS EMPLOYEES.
 IF, IN THE AGENCY'S JUDGMENT, ONLY ONE EMPLOYEE IS QUALIFIED AND CAPABLE
 OF PERFORMING THE WORK, MANAGEMENT WOULD RETAIN THE RIGHT UNDER THIS
 PROVISION TO ASSIGN THE WORK TO THAT PARTICULAR EMPLOYEE.  ACCORDINGLY,
 PROVISION 2 IS NOT INCONSISTENT WITH THE AGENCY'S RIGHT UNDER SECTION
 7106(A)(2)(B) TO ASSIGN WORK, AND THE AGENCY'S CONTENTION TO THE
 CONTRARY CANNOT BE SUSTAINED.  NATIONAL TREASURY EMPLOYEES UNION AND
 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, 6 FLRA NO. 97
 (1981).  
 
 ISSUED, WASHINGTON, D.C., AUGUST 3, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7114(C) 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/ SECTION 7106(A)(2)(A) AND (B) PROVIDES 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--
 
   .          .          .          .
 
 
    (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 DISCIP