19:0234(25)NG - NTEU Chapter 204 and Federal Election Commission -- 1985 FLRAdec NG



[ v19 p234 ]
19:0234(25)NG
The decision of the Authority follows:


 19 FLRA No. 25
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 204
 Union
 
 and
 
 FEDERAL ELECTION COMMISSION
 Agency
 
                                            Case No. O-NG-756
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 an issue
 concerning the negotiability of the following Union proposal.  /1/
 
                              Union Proposal
 
          3.C.(1) The Employer will provide to the Union a list of all
       positions in the three participating units.  Reasonable
       restrictions regarding staffing requirements may be included by
       the Employer pursuant to 5 U.S.C. 7106(b)(1) and Article 25, Sec.
       8(C)(2) of the contract.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 /2/
 
    The disputed proposal arises out of midterm bargaining over the
 establishment of a trial compressed workweek program.  The parties have
 agreed upon a plan wherein an employee's ten day, 80 hour pay period is
 comprised of eight nine hour work days, one eight hour day and one day
 off.  The disputed proposal concerns the determination of when the eight
 hour day and day off will occur.
 
    With regard to its method of operation, the Agency states:
 
          The (Agency) conducts its decision-making process by means of
       two formal weekly meetings.  These sessions are normally held on
       Tuesday and Thursday of each week.  Depending on the subjects to
       be discussed, a variety of (Agency) staff members will attend the
       meetings as a result of having drafted papers, reports or
       memoranda for discussion at a particular meeting, or will have
       work responsibilities attendant to preparation for the meetings,
       or as a result of projects assigned during the course of the
       meeting.  /3/ (Footnote added.)
 
 The Agency contends that, because of its operating method, it must have
 unfettered authority to determine which employees or groups of employees
 will at at work on certain days or for certain hours.  The Agency
 asserts that subjecting these determinations to arbitral scrutiny,
 applying a "reasonableness" test as provided in the Union's proposal,
 improperly interferes with its rights, pursuant to section 7106(a)(2)(B)
 and (b)(1) of the Statute, "to assign work" and to determine "the
 numbers, types, and grades of employees . . . assigned to any
 organizational subdivision, work project, or tour of duty(.)"
 
    The Agency argues, in essence, that the possibility of an
 arbitrator's disagreeing that the Agency exercised its rights in a
 "reasonable" manner has the effect of negating those rights reserved to
 management, and, consequently, the proposal is outside the duty to
 bargain.  The Authority agrees with the Agency's position that the
 proposal is inconsistent with the right, pursuant to section
 7106(a)(2)(B) of the Statute, "to assign work."
 
    In National Treasury Employees Union and Department of the Treasury,
 Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v.
 FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority analyzed the right to
 assign work.  Among the elements comprising that right, the Authority
 noted, were:  the discretion to determine "the particular employees to
 whom or positions to which (work) will be assigned" and "to determine
 when the work which has been assigned will be performed." The disputed
 proposal herein clearly concerns these elements of the right to assign
 work.  That is, the proposal concerns the granting of days off to
 employees on compressed work schedules.  The decision on when these days
 off will occur affects both whether employees will be able to
 participate in the two weekly formal decision-making meetings described
 by management and/or whether employees can be given assignments relating
 to the preparation for the meetings.  The occurrence of days off would
 dictate to whom work could be given and when the work could be
 performed.
 
    The instant proposal would subject the Agency's exercise of its
 reserved right to assign work to arbitral scrutiny on the basis of its
 reasonableness as opposed to the application of those rights to
 employees.  /4/ In this respect, this broad standard proposal would have
 the net effect of permitting the substitution of an arbitrator's
 judgment for that of management's in deciding to whom and when work will
 be assigned.  That is, the proposed standards would bring into question
 such matters as the timing of assignments, the identification of the
 employees who received an assignment, and the numbers of employees
 necessary to accomplish a specific assignment.  Moreover, the proposed
 standard is open to an interpretation which would permit a challenge
 based on an employee's view that assignments are unreasonable because he
 or she is frequently prevented from taking more desirable days off.  In
 this regard, the Authority has consistently held that proposals
 substantively restricting management in the establishment of performance
 standards interfere with the rights to assign work and to direct
 employees.  Thus, in American Federation of Government Employees, Local
 32 and Office of Personnel Manageme