19:0640(81)NG - AFGE, Mint Council 157 and Treasury, Bureau of the Mint -- 1985 FLRAdec NG



[ v19 p640 ]
19:0640(81)NG
The decision of the Authority follows:


 19 FLRA No. 81
 
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 MINT COUNCIL 157
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 BUREAU OF THE MINT
 Agency
 
                                            Case No. O-NG-686
 
                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 four provisions /1/ of an agreement
 disapproved by the Agency head pursuant to section 7114(c) of the
 Statute.  Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 
                                Provision 1
 
          Article 11, Section 11-5(b)
 
          Scheduled Overtime (Outside of Basic Workweek).  If necessary
       to utilize an employee on the days outside of his/her basic
       workweek for scheduled overtime work, the employee will be
       guaranteed a minimum of four hours work at the applicable overtime
       rate.  (Only the underlined portion is in dispute.)
 
                                Provision 2
 
          Article 13, Section 13-2
 
          For the purpose of definition only, the statement "other
       related duties as assigned" in a job/position description will be
       other duties reasonably related to the job/position,
       qualifications, and grade/wage level.  However, unrelated work may
       be assigned when cleanup of the employee's general work area is
       required, or when work specified in the job/position description
       is not available.  This section does not apply to details (loans).
        (Only the underlined portion is in dispute.)
 
    Provision 1 would require that a minimum of four hours work be
 guaranteed to an employee scheduled overtime outside the basic workweek.
  Thus, the express language of the provision would prevent management
 from assigning less than four hours of overtime work.  The Union asserts
 that the provision is only a procedure which management will adhere to
 when scheduling overtime work and, thus, within the duty to bargain
 under section 7106(b)(2) of the Statute.  /2/ In this regard, the
 Authority held in American Federation of Government Employees, AFL-CIO,
 Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange,
 Fort Dix, New Jersey, 2 FLRA 153, 155 (1979), enforced as to other
 matters sub nom. Department of Defense v. Federal Labor Relations
 Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
 FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982), that section 7106(b)(2) "is
 intended to authorize an exclusive representative to negotiate fully on
 procedures, except to the extent that such negotiations would prevent
 agency management from acting at all." Provision 1 would prevent the
 Agency from acting at all with respect to assigning an employee less
 than four hours of overtime work.  Management's right "to assign work"
 pursuant to section 7106(a)(2)(B) /3/ 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 Relations Authority, 691 F.2d 553 (D.C. Cir.
 1982).  Furthermore, management's right "to assign work" includes the
 right to assign work on overtime.  See American Federation of Government
 Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
 Department of Agriculture, Food Safety and Quality Service, Washington,
 D.C., 9 FLRA 663 (1982).  See also American Federation of Government
 Employees, Local 1409, AFL-CIO and U.S. Army Adjutant General
 Publications Center, Baltimore, Maryland, 16 FLRA No. 54 (1984).  Thus,
 the Authority concludes that the provision is inconsistent with
 management's right under section 7106(a)(2)(B) and does not constitute a
 negotiable procedure under section 7106(b)(2).
 
    As to Provision 2, as noted above, it is well established that the
 right to assign work includes the right to assign particular duties to
 particular employees.  Proposals which would have restricted
 management's discretion to assign work consistently have been found to
 be outside the duty to bargain.  E.g., National Federation of Federal
 Employees, Local 1622 and Department of the Army, Headquarters, Vint
 Hill Farms Station, Warrenton, Virginia, 16 FLRA No. 82 (1984) (Union
 Provision 2);  International Association of Firefighters, AFL-CIO, Local
 F-116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg
 Air Force Base, California, 9 FLRA 700 (1982);  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 818 (1982) (Union Proposals 2, 4
 and 5) and cases cited therein.
 
    In the instant case, work unrelated to the position description could
 only be assigned when "cleanup of employee's work area is required, or
 when work specified in the job/position description is not available."
 Thus, the effect of Provision 2 would be to preclude the Agency from
 assigning work "unrelated" to an employee's position description under
 certain circumstances thereby restricting management's right to assign
 particular duties.  Consequently, Provision 2 is inconsistent with
 management's right to assign work and is therefore outside the duty to
 bargain.  Cf. American Federation of Government Employees, AFL-CIO,
 Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange,
 Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced as to other matters
 sub nom. Department of Defense v. Federal Labor Relations Authority, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
 945, 102 S.Ct. 1443 (1982) (Proposal 2 requiring position descriptions
 to accurately reflect duties regularly assigned to employees held within
 the duty to bargain).
 
                                Provision 3
 
          Article 16, Section 16-16(a)(3)
 
          a.  Composition and Establishment.  Each promotion rating panel
       for specific unit vacancies shall have three (3) members appointed
       as follows:
 
          3.  One member appointed by the Local Union, within three
       workdays from the time of request for such appointment.  Should
       the union fail to appoint a member within the prescribed time
       limit, management shall appoint the third panel member.  (Only the
       underlined portion of subsection 3 is in dispute.)
 
    Provision 3 would require the participation of a Union representative
 on a promotion ranking panel for specific unit vacancies.  A promotion
 rating panel is a permanent or ad hoc committee established to evaluate,
 compare and rank employees for promotion.  /4/
 
    The Authority has consistently held that the management rights
 enumerated in section 7106 include more than merely the right to decide
 to take the final actions specified.  Instead, the exercise of these
 rights also encompasses the right to take certain actions integral to
 the exercise of management's rights, such as to discuss and deliberate
 concerning the relevant factors upon which such a determination will be
 made.  In this regard, in National Federation of Federal Employees,
 Local 1431 and Veterans Administration Medical Center, East Orange, New
 Jersey, 9 FLRA 998 (1982), the Authority, based upon the reasoning 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 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982),
 relevantly held that a proposal requiring union representation on a
 Professional Standards Board and a Position Management Committee would
 allow the union to interject itself into the decisionmaking process,
 thereby interfering with management's rights under section 7106 of the
 Statute.
 
    In the present case, the promotion rating panel necessarily involves
 the exercise of managerial judgment in implementing management's
 decision to select employees for promotion under section 7106(a)(2)(C)
 of the Statute.  /5/ That is, the provision would involve the Union in
 the Agency's selection process, allowing the Union to judge the extent
 to which candidates for merit promotion possess the knowledges, skills
 and abilities determined by management to be essential to perform the
 work of the vacant position.  Evaluating and comparing the
 qualifications of applicants is an integral part of management's
 exercise of its right to make selections.  Hence, the provision would
 interject the Union into management's decisionmaking whereby it
 determines which employees are to be selected for promotion.  Thus, the
 provision herein interferes with management's right to select under
 section 7106(a)(2)(C) and is hence outside the duty to bargain.  See
 National Federation of Federal Employees, Local 1745 and Veterans
 Administration, 13 FLRA 543 (1983) (Union Proposal 1), petition for
 review filed sub nom. National Federation of Federal Employees, Local
 1745 and Federal Labor Relations Authority, No. 84-1054 (D.C. Cir. Feb.
 16, 1984), citing National Federation of Federal Employees, Local 1497
 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
 Base, Colorado, 11 FLRA 565 (1983).  See also National Federation of
 Federal Employees, Local 108 and U.S. Department of Agriculture, Farmers
 Home Administration, 16 FLRA No. 111 (1984) (Union Proposal 1).
 
                                Provision 4
 
          Article 16, Section 16-8-- Temporary Promotions
 
          c.  Noncompetitive temporary promotions made under this section
       will be distributed or rotated in 30-day increments, to the extent
       practicable, among eligible employees assigned to the particular
       work unit.
 
    The provision would in essence require the Agency to distribute or
 rotate in 30 day increments noncompetitive temporary promotions among
 eligible employees assigned to that particular work unit.  In this
 respect, the provision is substantively to the same effect as Proposal
 13 in American Federation of Government Employees, AFL-CIO, National
 Immigration and Naturalization Service Council and U.S. Department of
 Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982),
 reversed as to other matters sub nom. Department of Justice, v. FLRA,
 709 F.2d 724 (D.C. Cir. 1983), which would have required management
 under certain circumstances to discontinue or reassign the work involved
 after 35 days regardless of whether it had been completed.  The
 Authority concluded that the proposal violated management's right "to
 assign work" under section 7106(a)(2)(B) of the Statute.
 
    With respect to the phrase "to the extent practicable" in the present
 case which was not involved in Proposal 13 in U.S. Department of
 Justice, this language would not require a different result.  Rather, it
 would have the effect of subjecting management's determinations as to
 work assignments, i.e., management's determination that it is not
 practicable to rotate assignments, to review in an arbitration
 proceeding.  Thus, it would, in effect, subject to arbitral review the
 Agency's assignment of work and permit arbitrators to render awards
 which would require the Agency to rotate work assignments when it did
 not choose to do so.  Thus, the language "to the extent practicable,"
 contrary to the Union's claim, does not remove the limitation imposed on
 management's exercise of its rights by the provision.  See American
 Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home
 Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Union
 Proposal 3).  Therefore, for the reasons stated in U.S. Department of
 Justice, the Authority finds Provision 4 herein violates management's
 right to assign work under section 7106(a)(2)(B) and thus is outside the
 duty to bargain.
 
    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.  /6/ Issued, Washington, D.C., August 12, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ During the pendency of the case, which, when originally filed
 contained 14 provisions, the Union withdrew 11 provisions and ultimately
 amended its petition to effectively reintroduce one of those which it
 had withdrawn.  One of these 11 provisions was not withdrawn until after
 the Agency filed its Statement of Position.  In view of the Union's
 withdrawal of this provision the Authority need not consider the
 Agency's arguments concerning the nonnegotiability of this provision.
 
 
    /2/ Section 7106(b)(2) of the Statute provides as follows:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negot