09:0723(87)NG - AFGE Local 3004 and Air Force, Otis AFB, MA -- 1982 FLRAdec NG



[ v09 p723 ]
09:0723(87)NG
The decision of the Authority follows:


 9 FLRA No. 87
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3004
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 OTIS AIR FORCE BASE,
 MASSACHUSETTS
 Agency
 
                                            Case No. O-NG-427
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND RAISES ISSUES
 CONCERNING THE NEGOTIABILITY OF A SINGLE UNION PROPOSAL.  UPON CAREFUL
 CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
 THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                              UNION PROPOSAL
 
    IT IS AGREED BY THE EMPLOYER THAT MR./MRS./MISS/MS/ . . .  WILL NOT
 BE EVALUATED ON THOSE
 
    DUTIES THAT WERE ADDED TO HIS/HER OFFICIAL POSITION DESCRIPTION,
 EFFECTIVE 1 JUNE 1979 FOR
 
    REASONS OF ANNUAL PERFORMANCE APPRAISAL OR ANY OTHER REASON THAT MAY
 CAUSE AN ADVERSE ACTION
 
    AGAINST THE EMPLOYEE(S) UNTIL SUCH TIME AS THE EMPLOYER PROVIDES
 FORMAL TRAINING TO THE
 
    EMPLOYEES ON THOSE DUTIES AND RESPONSIBILITIES WHICH WERE ADDED AND
 THE EMPLOYEE(S) COMPLETE
 
    SUCH TRAINING.
 
    BASED ON THE EXPRESS LANGUAGE OF THE PROPOSAL AND THE EXPLANATIONS OF
 ITS INTENT IN THE RECORD, IN ESSENCE THE PROPOSAL PROVIDES THAT
 EMPLOYEES WHO ARE ASSIGNED DUTIES WHICH ARE NOT COVERED IN THEIR
 POSITION DESCRIPTIONS WILL NOT BE EVALUATED ON SUCH DUTIES IN CONNECTION
 WITH AN ANNUAL PERFORMANCE APPRAISAL OR FOR OTHER REASONS RELATED TO A
 POTENTIAL ADVERSE ACTION UNTIL MANAGEMENT PROVIDES, AND THE EMPLOYEES
 COMPLETE, FORMAL TRAINING IN THOSE DUTIES.
 
    IN THIS CONNECTION, THE AUTHORITY OF MANAGEMENT OFFICIALS TO
 DETERMINE WHICH EMPLOYEE DUTIES AND FUNCTIONS ARE TO BE INCLUDED IN
 PERFORMANCE APPRAISALS IS ENCOMPASSED BY MANAGEMENT'S RIGHT TO DIRECT
 AND ASSIGN WORK TO EMPLOYEES PURSUANT TO SECTION 7106(A)(2)(A) AND (B)
 OF THE STATUTE.  SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS AND SOCIAL
 SECURITY ADMINISTRATION, OFFICE OF PROGRAM SERVICE CENTERS, BALTIMORE,
 MARYLAND, 7 FLRA NO. 139 (1982);  NATIONAL TREASURY EMPLOYEES UNION AND
 DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768,
 775-78 (1980).  ACCORDINGLY, THE AUTHORITY HELD IN THE ABOVE-CITED
 DECISIONS, THAT PROPOSALS WHICH WOULD REQUIRE MANAGEMENT TO NEGOTIATE
 THE SUBSTANCE OF SUCH DETERMINATIONS WERE OUTSIDE THE DUTY TO BARGAIN.
 SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
 ILLINOIS, 7 FLRA NO. 34 (1981) (PROPOSAL 1);  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF CSA LOCALS AND
 COMMUNITY SERVICES ADMINISTRATION, 5 FLRA NO. 98 (1981);  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT
 OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION,
 MASSENA, NEW YORK, 5 FLRA NO.  14 (1981) (PROPOSALS 1 AND 3);  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
 PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA 783, 788-89 (1980).
 FURTHERMORE, PROPOSALS WHICH WOULD CONTRACTUALLY OBLIGATE AN AGENCY TO
 PROVIDE FORMAL TRAINING, TO PERIODICALLY ASSIGN EMPLOYEES TO SPECIFIC
 TYPES OF TRAINING PROGRAMS, AND TO MAKE SPECIFIC TRAINING ASSIGNMENTS
 UPON EMPLOYEE REQUESTS ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE THE
 ASSIGNMENT OF TRAINING UNDER SUCH CIRCUMSTANCES CONSTITUTES AN
 ASSIGNMENT OF WORK THE NEGOTIATION OF WHICH IS INCONSISTENT WITH
 MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B).  SEE
 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 121 AND
 U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON, D.C., 8 FLRA NO. 35 (1982)
 (PROPOSAL 1);  INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, CLC,
 LOCAL F-116 AND DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR FORCE BASE,
 CALIFORNIA, 7 FLRA NO.  122 (1982);  NATIONAL ASSOCIATION OF AIR TRAFFIC
 SPECIALISTS AND DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
 ADMINISTRATION, 6 FLRA NO. 106 (1981) (PROPOSALS I - III);
 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA
 NAVAL SHIPYARD, 3 FLRA 437, 439 (1980).
 
    THE INSTANT PROPOSAL IS INTENDED TO AND WOULD CONDITION MANAGEMENT'S
 EXERCISE OF ITS RIGHT TO DETERMINE THE DUTIES AND FUNCTIONS TO BE
 INCLUDED IN PERFORMANCE APPRAISALS ON THE PRIOR EXERCISE OF MANAGEMENT'S
 RIGHT TO DETERMINE WHETHER EMPLOYEES ARE TO BE ASSIGNED FORMAL TRAINING.
  THAT IS, THE PROPOSAL WOULD HAVE THE PRACTICAL EFFECT OF REQUIRING
 MANAGEMENT TO EXERCISE ITS STATUTORY RIGHT IN A PARTICULAR WAY AS
 REGARDS ONE MATTER UNDER SECTION 7106(A), I.E., THE DECISION TO PROVIDE
 FORMAL TRAINING, SO THAT IT COULD EXERCISE ITS RIGHT AS REGARDS ANOTHER
 MATTER UNDER SECTION 7106(A), I.E., THE DETERMINATION OF WHICH DUTIES
 AND FUNCTIONS SHALL BE INCLUDED AS PART OF AN EMPLOYEE'S PERFORMANCE
 APPRAISAL.  THUS, THE PROPOSAL WOULD DIRECTLY INTERFERE WITH
 MANAGEMENT'S RIGHTS TO DETERMINE WHETHER TO ASSIGN TRAINING AND TO
 DETERMINE THE DUTIES AND FUNCTIONS WHICH WILL BE SUBJECT TO PERFORMANCE
 APPRAISALS.  THAT IS, CONTRARY TO THE UNION'S VIEW, THIS PROPOSAL
 CONCERNS THE SUBSTANTIVE EXERCISE OF MANAGEMENT'S RIGHTS AND NOT A
 "PROCEDURE" OR AN "APPROPRIATE ARRANGEMENT" WHICH IS NEGOTIABLE UNDER
 SECTION 7106(B)(2) AND (3) OF THE STATUTE.  SEE DEPARTMENT OF DEFENSE V.
 FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140, 1150-52 (D.C. CIR.
 1981), CERT. DENIED SUB NOM., AFGE V. FLRA, 50 U.S.L.W. 3669 (FEB. 23,
 1982