18:0241(31)NG - AFSCME Local 2910 and Library of Congress -- 1985 FLRAdec NG



[ v18 p241 ]
18:0241(31)NG
The decision of the Authority follows:


 18 FLRA No. 31
 
 AMERICAN FEDERATION OF STATE, 
 COUNTY AND MUNICIPAL EMPLOYEES, 
 LOCAL 2910 
 Union 
 
 and 
 
 LIBRARY OF CONGRESS 
 Agency
 
                                            Case No. 0-NG-948
 
                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 presents issues
 concerning the negotiability of six Union proposals.  /1/ Upon careful
 consideration of the entire record, /2/ including the parties'
 contentions, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          3.  All GS-12 Subject Catalogers and GS-12 Reference
       Specialists not under an oral or written warning, adverse action,
       or denial of within-grade, shall be eligible for selection to a
       program that will offer an opportunity for the exchange of a
       reference specialist and a subject cataloger between the Subject
       Cataloging Division of the Processing Services and the General
       Reading Rooms Division of the Research Services Department.  All
       applicants will be interviewed.  Article XI, Section 9 and Article
       XI, Section 5, parts n and o, are waived to eliminate the need for
       rating panels and quality ranking factors in the selection process
       for this detail.
 
                             Union Proposal 2
 
          4.  Qualifications determination will be based on the commonly
       posted requirements of each position at the GS-9 level.  As part
       of the final decision as to the selectees, consideration will be
       given to the actual subject area needs resulting from the effect
       of the exchange, e.g., there may be some effort to match the
       skills and knowledges of the exchanges.  (Only the underlined
       portions of those two proposals are in dispute.)
 
    The record in this case indicates that the Union sought to negotiate
 procedures implementing a job exchange program whereby GS-12 employees
 in designated portions of the Agency would compete under a posted
 announcement for a one-year detail.  This program was established,
 pursuant to provisions in the parties' master agreement, for the purpose
 of job enrichment and career development.
 
    It is well established that the right to assign employees, pursuant
 to section 7106(a)(2)(A) of the Statute, includes not only the right to
 decide to assign an employee to a position but also the discretion to
 determine the personnel requirements of the work of the position, i.e.,
 the discretion to determine the qualifications and skills needed to do
 the work as well as such job related individual characteristics as
 judgment and reliability.  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, 455 U.S. 945
 (1982).  Union Proposals 1 and 2, however, would limit the Agency's
 discretion to determine the qualifications and skills necessary to
 perform the work of the positions in the job exchange program.
 Specifically, Union Proposal 1 expressly provides that all "GS-12
 Subject Catalogers and GS-12 Reference Specialists . . . shall be
 eligible for selection . . . ." In this regard, it is axiomatic that in
 order to be "eligible for selection" an employee must have been found to
 have met the qualifications and skills necessary to do the work,
 including such job related individual characteristics as judgment and
 reliability.  Thus, by providing that all of the subject employees
 "shall be eligible for selection," Union Proposal 1 prevents the Agency
 from determining whether any of the subject employees possesses all the
 necessary qualifications and skills.
 
    Similarly, Union Proposal 2 would also prevent the Agency from
 evaluating employees according to the actual personnel requirements of
 the positions in the exchange program.  That is, even though the record
 establishes that the positions in the exchange program are at the GS-12
 level, Union Proposal 2 expressly provides "(q)ualifications
 determination will be based on the commonly posted requirements of each
 position at the GS-9 level."
 
    Consequently, as Union Proposals 1 and 2 prevent the Agency from
 exercising its right to assign employees pursuant to section
 7106(a)(2)(A) of the Statute they are outside the duty to bargain.
 
                             Union Proposal 3
 
          2.  These details will be for a one-year period.
 
    Union Proposal 3 would establish that a detail in the job exchange
 program would last one year.  In this regard, Union Proposal 3 herein is
 to the same effect as paragraph 3 of Union Provision II in American
 Federation of Government Employees, AFL-CIO, Local 916 and Tinker Air
 Force Base, Oklahoma, 7 FLRA 292 (1981), which limited the length of a
 detail in that case to 60 days.  In finding that portion of the
 provision in Tinker Air Force Base to be inconsistent with the right to
 assign employees pursuant to section 7106(a)(2)(A) of the Statute, the
 Authority stated as follows:
 
          Inherent in the right of management to assign employees is the
       right to decide when such an assignment should begin and end, that
       is, its duration, so that the work involved will be accomplished.
       Thus, the provision, which directly would restrict this aspect of
       the right to assign employees is inconsistent with the Agency's
       authority to assign employees under section 7106(a)(2)(A) of the
       Statute . . . .
 
 Consequently, since Union Proposal 3 herein, likewise would restrict the
 Agency's right to determine that the duration of a detail in the job
 exchange program would last for a period of time other than one year, it
 is, based upon Tinker Air Force Base and the reasons stated therein, not
 within the duty to bargain.
 
                             Union Proposal 4
 
          9.  The annual performance rating will be prepared by the
       supervisor of the employee's appointed position in consultation
       with the detail supervisor if the participant's performance rating
       is due during the first 6 months of his/her detail.  If the
       participant's performance rating is due during the last six months
       of the detail then his/her rating will be prepared by the detail
       supervisor in consultation with his/her supervisor.  (Only the
       underscored portions are in dispute.)
 
    Union Proposal 4 expressly indicates the specific Agency employee,
 i.e., "the supervisor of the employee's appointed position . . . ," who
 will evaluate the work performance of bargaining unit employees.  In
 this regard, Union Proposal 4, herein, is to the same effect as the
 third disputed sentence of a proposal in American Federation of
 Government Employees, AFL-CIO, Local 1858 and Department of the Army,
 U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982)
 (Union Proposal 2), wherein the Authority found the disputed portion of
 the proposal to be inconsistent with management's right to "assign work"
 pursuant to section 7106(a)(2)(B) of the Statute.  The disputed portion
 of the proposal would in that case have required the employee's
 "immediate supervisor" to make performance appraisals of the employee's
 work, thereby preventing the agency from assigning those functions,
 i.e., making performance appraisals, to other personnel.
 
    Consequently, since Union Proposal 4, herein, would likewise prevent
 the Agency from assigning the function of making performance evaluations
 to other personnel, for the reasons and case cited in Redstone Arsenal,
 it is inconsistent with management's right to "assign work" pursuant to
 section 7106(a)(2)(B) of the Statute.
 
                             Union Proposal 5
 
          7.  Both parties agree to abide by the implementing procedures
       as contained in this document.
 
    The record in this case indicates that Union Proposal 5 was proffered
 in the context of negotiations in which the Union sought to establish
 substantive contractual limitations on management's authority to detail
 employees pursuant to the job exchange program.  See Authority
 determinations with respect to Union Proposals 1, 2, 3, 4 and 6 herein.
 Thus, in agreement with the agency and contrary to the Union statements
 that the proposal is only procedural in nature, the Authority concludes
 that insofar as Union Proposal 5 would require the Agency to agree to
 and abide by procedures which are, in the context of these negotiations,
 inconsistent with management's reserved rights, pursuant to section
 7106(a) of the Statute, it is also outside the duty to bargain.  See
 American Federation of Government Employees, Local 225, AFL-CIO and
 Department of the Army, U.S. Army Armament Research and Development
 Command, Dover, New Jersey, 17 FLRA No. 66 (1985) (Union Proposal 4).
 
                             Union Proposal 6
 
          7.  Employees selected will not be subject to the standard
       review procedure for the respective position, but will receive
       memoranda regarding their performance and progress at six-month
       intervals.  Each memorandum will include a statement regarding the
       new skills and knowledges being acquired by the detail
       participant.  The final memo will, in addition, include the main
       duties performed.  A copy of this memo may be appended to the
       participant's next performance evaluation.  (Only the underlined
       portion is in dispute.)
 
    It appears from the record in this case that the standard review
 procedure referred to in Proposal 6 concerns an annual performance
 evaluation cycle.  Proposal 6 then, by its express terms, establishes
 that employees selected to participate on a one-year detail in the job
 exchange program would not be subject to this standard annual
 performance evaluation procedure but, instead, would receive memoranda
 at six month intervals describing the skills and knowledge acquired and
 the main duties performed while on detail.  In this connection, the
 Union states "(t)he procedure proposed is that detailees be told about
 their level of performance every 6 months instead of every 12 months as
 stated in the contract." /3/
 
    However, while the Authority has determined that the duration of the
 performance appraisal cycle and thus, the frequency of periodic
 performance appraisals, is a matter within the duty to bargain, /4/
 proposals which seek to place limitations on the inclusion of certain
 matters in performance standards have been determined to infringe on
 management's discretion to direct employees and to assign work pursuant
 to section 7106(a)(2)(A) and (B) of the Statute.  /5/
 
    In the instant case, and notwithstanding the Union's statement of
 intent with regard to Proposal 6, it is clear that the net effect of the
 proposal is to prevent management from formally evaluating an employee's
 performance of duties while on detail.  That is, in the place of a
 formal performance evaluation, management would be restricted to
 providing only a memorandum describing the duties performed and the
 skills the employee is acquiring while on detail.
 
    Consequently, as Union Proposal 6 prevents management from
 determining the particular duties to be evaluated, here the duties
 performed while on detail, it directly interferes with the Agency's
 right to direct employees and assign work pursuant to section
 7106(a)(2)(A) and (B) of the Statute and is outside the duty to bargain.
  /6/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., May 24, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union's Petition for Review in this case included three
 additional proposals.  However, the record before the Authority
 indicates that the Agency did not determine these three proposals to be
 nonnegotiable.  Instead, the Agency noted in its written
 nonnegotiability determination that the parties were in agreement on the
 issues not determined to be nonnegotiable.  Consequently, as the Agency
 has not determined these three proposals to be nonnegotiable, the
 Union's petition for review as it relates to these three proposals must
 be dismissed.  See Association of Civilian Technicians and State of
 Georgia, Department of Defense, Military Division, Atlanta, Georgia,
 Department of Defense, Military Division, Atlanta, Georgia, 3 FLRA 686
 (1980).
 
 
    /2/ The Union did not file a Reply Brief in this case.
 
 
    /3/ Union Petition for Review at 2.
 
 
    /4/ E.g., American Federation of Government Employees, AFL-CIO, Local
 2192 and Veterans Administration Regional Office, St. Louis, Missouri, 9
 FLRA 716 (1982) (Union Proposal 3) and cases cited therein.
 
 
    /5/ E.g., American Federation of Government Employees, AFL-CIO, Local
 1708 and Military Ocean Terminal, Sunn