17:0538(78)NG - AFGE Local 3488 and FDIC New York Region -- 1985 FLRAdec NG



[ v17 p538 ]
17:0538(78)NG
The decision of the Authority follows:


 17 FLRA No. 78
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 3488
 Union 
 
 and 
 
 FEDERAL DEPOSIT INSURANCE 
 CORPORATION, 
 NEW YORK REGION
 Agency
 
                                            Case No. 0-NG-703
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises issues
 relating to the negotiability of two Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Employees who are assigned to Puerto Rico or the Virgin Islands
       for periods in excess of three weeks will be allowed to return to
       their residence every second weekend.  Employees will be permitted
       to depart from their temporary assignment at a sufficient time to
       allow arrival at their residence by 6:00 p.m. on the same day and
       depart their residence no sooner than 7:00 a.m. on the next
       business day following such weekend.
 
    By its plain language, Union Proposal 1 requires the Agency to grant
 employees on temporary duty assignment in Puerto Rico or the Virgin
 Islands, on every other weekend, that amount of duty time, i.e., time
 which would otherwise be spent performing the work of their positions,
 for use in traveling to and returning from their place of residence.  As
 the Agency indicated, depending on such variable factors as flight
 schedules and commuting time to and from points of departure and
 destination, the amount of duty time which would be "sufficient" to
 complete such travel, given the time limitations stated in the proposal,
 could amount to as much as an entire eight hour workday.  /1/ In any
 event, the effect of the proposal is to preclude the Agency from
 assigning work to employees during that portion of the workday which is
 required for travel.
 
    In this regard, Union Proposal 1 herein has the same effect as Union
 Proposal 1 in American Federation of Government Employees, AFL-CIO,
 Local 3424 and Federal Home Loan Bank Board, San Francisco, California,
 14 FLRA 79 (1984).  In that case, the proposal at issue required the
 agency to grant a maximum of three hours of duty time for traveling,
 each way, when employees on temporary duty assignment returned to their
 residences on the weekends.  The Authority held, based on its decisions
 in American Federation of Government Employees, AFL-CIO, Local 3483 and
 Federal Home Loan Bank Board, New York District Office, 13 FLRA 446
 (1983) and National Treasury Employees Union and NTEU Chapter 80 and
 Department of the Treasury, Internal Revenue Service, Central Region, 8
 FLRA 197 (1982), that because the proposal would preclude the assignment
 of work to employees during the duty time on which they were traveling
 to their residences, or returning to their temporary duty assignments,
 it directly interfered with management's right to assign work under
 section 7106(a)(2)(B) of the Statute.  /2/ Thus, as Union Proposal 1 at
 issue herein similarly would preclude the Agency from assigning work to
 employees during that portion of the workday which they are using for
 travel to and from their residences, for the reasons set forth in the
 FHLBB, San Francisco, FHLBB, New York District Office, and IRS, Central
 Region decisions, it directly interferes with management's right to
 assign work under section 7106(a)(2)(B) and is outside the Agency's duty
 to bargain.  /3/
 
                             Union Proposal 2
 
          The Union has the right to participate in any stage in the
       ranking process and specifically to have a representative on the
       ranking panel.  Transportation expenses incurred to enable a Union
       representative to participate on a ranking penal will be borne by
       the employer.
 
    Based on the express language of the proposal, and in the absence of
 any persuasive evidence of contrary intent in the record, the Authority
 interprets the proposal as requiring Union participation in every phase
 of the process whereby management selects an individual to fill a vacant
 position, exclusive of the decision to select itself.  Under applicable
 regulation, /4/ this process involves, among other things, analysis of
 the job to be filled to determine the knowledges, skills, and abilities
 needed to successfully perform the duties of the position, i.e.,
 identification of selective factors;  the development of criteria used
 to determine whether, and the extent to which, candidates possess those
 knowledges, skills, and abilities, i.e., a crediting plan;  the rating
 of candidates, i.e., the application of the crediting plan or rating
 schedule to the information contained in candidate applications to
 determine each candidate's "score" or degree of qualification;  ranking
 the candidates by their "scores";  and preparing a certificate listing
 the candidates by ranking for submission to the selecting official.  /5/
 
    In this regard, in providing for the Union to participate, among
 other things, in that stage of the evaluative process which involves the
 identification of the "selective factors" to be used in rating and
 ranking candidates for a position, Union Proposal 2 herein has the same
 effect as Union Proposals 1 and 2 in National Federation of Federal
 Employees, Local 1497 and Headquarters, Lowry Technical Training Center
 (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983).  The
 proposals at issue in that case provided for a joint labor-management
 committee to develop "promotion evaluation patterns," which included
 both "selective factors" and "crediting plans." Relying on its decisions
 in National Federation of Federal Employees, Local 1167 and Department
 of the Air Force, Headquarters, 31st Combat Support Group (TAC),
 Homestead Air Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom.
 National Federation of Federal Employees, Local 1167 v. Federal Labor
 Relations Authority, 681 F.2d 886 (D.C. Cir. 1982), National Federation
 of Federal Employees, Local 1431 and Veterans Administration Medical
 Center, East Orange, New Jersey, 9 FLRA 998 (1982), and American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980),
 enforced sub nom. Department of Defense v. Federal Labor Relations
 Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.
 American Federation of Government Employees v. Federal Labor Relations
 Authority, 455 U.S. 945 (1982), the Authority held that those proposals,
 by providing for union participation in the decision-making process
 whereby management determines the knowledges, skills, and abilities
 which are necessary for successful performance of the work of a
 position, would directly interfere with management's right to make
 selections for appointments to vacant positions under section
 7106(a)(2)(C) of the Statute.  /6/ As indicated above, Union Proposal 2
 at issue in this case similarly would require Union participation in
 that stage of the process of evaluation of candidates, prior to
 selection, wherein management determines the requisite "selective
 factors" to be used in rating and ranking candidates for the vacant
 position.  Thus, apart from other considerations and for the reasons set
 forth in the Lowry Air Force Base decision, and the cases cited therein,
 Union Proposal 2 herein directly interferes with management's rights
 under section 7106(a)(2)(C) of the Statute and is outside the duty to
 bargain.  Cf. National Federation of Federal Employees, Local 1001 and
 Department of the Air Force, Vandenberg Air Force Base, California, 15
 FLRA No. 154 (1984) (Provisions 2 and 3) (provisions providing for union
 representative on selection panels to participate both in the
 deliberations and discussions attendant upon the decision to select a
 particular candidate and in the decision to select itself nonnegotiable
 under section 7106(a)(2)(C)).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Union Proposals 1 and 2 be, and it hereby is, dismissed.  /7/ Issued,
 Washington, D.C., April 15, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Agency Brief at 4-5.  The Union tacitly admits to this
 interpretation of the proposal when it argues that a "sufficient" amount
 of time is whatever amount of duty time is necessary to allow employees
 to reach their destinations given the time limitation in the proposal.
 Union Brief at 5.
 
 
    /2/ Section 7106(a)(2)(B) provides, in relevant part:
 
          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--
 
                                .  .  .  .
 
          (B) to assign work(.)
 
 
    /3/ Both parties argue as to the compelling need for an Agency
 regulation, FDIC General Travel Regulation, paragraph 1208(c), which
 provides that employees on temporary duty assignments outside the
 continental United States may be authorized to return to their
 residences on every third weekend and will be authorized up to eight
 hours of official time for purposes of such travel.  However, in light
 of its decision, the Authority finds it unnecessary to address the
 compelling need for the cited regulation.  Such an agency regulatory
 provision constitutes an exercise of management's authority to assign
 work under section 7106(a)(2)(B) of the Statute and, therefore, is not
 subject to negotiation.  American Federation of Government Employees,
 AFL-CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent
 River, Maryland, 9 FLRA 1039, 1040 (1982).
 
 
    /4/ See Federal Personnel Manual Supplement 335-1, Appendix B.
 
 
    /5/ See also National Treasury Employees Union and NTEU Chapters 153,
 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983),
 enforcement denied sub nom. U.S. Customs Service, Region II v. Federal
 Labor Relations Authority, 739 F.2d 829 (2nd Cir. 1984).
 
 
    /6/ Section 7106(a)(2)(C) provides:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this