16:0578(82)NG - NFFE Local 1622 and Army, HQ, Vint Hill Farms Station, Warrenton, Virginia -- 1984 FLRAdec NG



[ v16 p578 ]
16:0578(82)NG
The decision of the Authority follows:


 16 FLRA No. 82
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES,
 LOCAL 1622
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 HEADQUARTERS, VINT HILL
 FARMS STATION,
 WARRENTON, VIRGINIA
 Agency
 
                                            Case No. O-NG-752
 
                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 questions
 relating to the negotiability of four provisions of a negotiated
 agreement disapproved by the Agency head pursuant to section 7114(c) of
 the Statute.  /1/ Upon careful consideration of the entire record,
 including the parties' contentions, the Authority makes the following
 determinations.
 
                             Union Provision 1
 
          Article XVI, Section 10(b)
 
          Details shorter than thirty (30) Calendar days to positions
       which have a higher grade or provide qualifying experience shall
       be rotated among qualified employees to the fullest extent
       feasible.
 
    The Agency asserts that Union Provision 1 directly interferes with
 management's right to assign employees pursuant to section 7106(a)(2)(A)
 of the Statute because it would require assignment of employees to
 details "on the basis of seniority on a rotational basis." However,
 contrary to the Agency's argument, neither the express language of the
 provision nor the Union's stated intent indicated that seniority was to
 be utilized as the criterion for assigning employees to details.
 Rather, this provision merely provides that details be "rotated among
 qualified employees to the fullest extent feasible."
 
    Further, as the provision does not in any way limit management's
 discretion to establish the particular qualifications and skills needed
 to perform the work on the detail or limit management's judgment in
 determining whether a particular employee meets those qualifications, it
 is not inconsistent with management's right to assign employees pursuant
 to section 7106(a)(2)(A) of the Statute.  See Laborers International
 Union of North America, AFL-CIO, Local 1276 and Veterans Administration
 National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982).
 
    Moreover, contrary to the Agency's contention that the provision
 would mandate the rotation of employees to details unless it literally
 was not possible to do so, the Union has indicated that the provision is
 to be interpreted in a reasonable manner, as follows:  /2/
 
          It is obvious from this language (of the provision) that
       deviations from (the rotation requirement) may be necessary for a
       variety of reasons.  If the detail is only for two days, rotation
       would scarcely be feasible.  If the time is longer but continuity
       is essential for the proper completion of a particular detail,
       rotation might not be feasible.
 
    It is clear that Union Provision 1, by its intended meaning as well
 as its explicit language, establishes a general, nonquantitative
 standard by which the Agency's exercise of its reserved authority to
 assign employees could be evaluated in a subsequent grievance.  See,
 e.g., American Federation of Government Employees, AFL-CIO,
 International Council of U.S. Marshals Service Locals and U.S.
 Department of Justice, U.S. Marshals Service, 8 FLRA 268 (1982) (Union
 Proposal 5), wherein the Authority found within the duty to bargain
 under section 7106(b)(2) /3/ a proposal which provided that certain
 temporary assignments would not be made as a reward or penalty or be
 arbitrary or capricious.  The Authority determined that as the proposal
 established a general, nonquantitative standard by which management's
 work assignments could be evaluated it was within the duty to bargain
 pursuant to section 7106(b)(2).
 
    Since Union Provision 1, herein, similarly would not interfere with
 the exercise of a management right but would establish a procedure by
 which the right to assign would be exercised it is within the duty to
 bargain.  /4/
 
                             Union Provision 2
 
          Article XXII, Section 6
 
          The phrase "performs other related duties as assigned" on
       position descriptions is not to be construed to require the
       employee to perform duties outside his/her regular field of work,
       nor for which he/she is not physically able or which might result
       in injury to the employee due to lack of training or experience in
       the specifically assigned task.  Supervisors shall avoid, insofar
       as possible, assigning additional or incidental duties to
       employees which are inappropriate to their positions or
       qualifications.
 
    Union Provision 2 is not within the duty to bargain because it
 violates the Agency's right "to assign work" pursuant to section
 7106(a)(2)(B) of the Statute.  Management's right "to assign work"
 pursuant to section 7106(a)(2)(B) includes the right to determine the
 particular duties to be assigned and the particular employee to whom or
 position to which duties will be assigned.  National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769, 775 (1980) aff'd sub nom. National Treasury Employees Union v.
 Federal Labor Authority, 691 F.2d 553 (D.C. Cir. 1982).  In this
 respect, a position description does not constitute a limitation on the
 assignment of duties but merely reflects the duties which have been
 assigned to a particular position or employee.  E.g., National
 Federation of Federal Employees, Local 1497 and Department of the Air
 Force, Lowry Air Force Base, Colorado, 9 FLRA 151 (1982).  Union
 Provision 2 however, directly interferes with management's right to
 assign work by expressly preventing the Agency from requiring employees
 to perform certain duties such as when the duties to be assigned are
 outside the employee's regular field of work or are inappropriate to the
 employee's position or qualifications.  Thus, while proposals which
 require management to consider health and safety factors in assigning
 work are not inconsistent with the Statute, proposals, like proposal 2
 herein, which would actually preclude the assignment of work are
 nonnegotiable.  See American Federation of Government Employees,
 AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio,
 Texas, 12 FLRA No. 26 (1983) (Proposal 37 and cases cited therein).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review relating to the
 two provisions of the negotiated agreement concerning which the Agency
 withdrew its allegations of nonnegotiability and to Union Provision 2
 be, and it hereby is, dismissed.  IT IS FURTHER ORDERED that the Agency
 shall rescind the disapproval of Union Provision 1 which was bargained
 on and agreed to by the parties at the local level.  Issued, Washington,
 D.C., November 27, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ During the pendency of this case, the Agency withdrew its
 allegations of nonnegotiability with respect to two of these provisions
 of the negotiated agreement.  The issues as to these two provisions,
 therefore, have been rendered moot and will not be considered further
 herein.
 
 
    /2/ Union Reply Brief at 2.
 
 
    /3/ Section 7106(b)(2) of the Statute provides:
 
    Sec. 7106.  Management rights
 
                                  * * * *
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
                                  * * * *
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority un