19:0949(113)NG - NFFE Local 943 and Air Force, HQ Keesler TTC, Keesler AFB, MS -- 1985 FLRAdec NG



[ v19 p949 ]
19:0949(113)NG
The decision of the Authority follows:


 19 FLRA No. 113
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES,
 LOCAL 943
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS KEESLER TECHNICAL
 TRAINING CENTER, KEESLER AIR
 FORCE BASE, MISSISSIPPI
 Agency
 
                                            Case No. O-NG-771
 
                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 issues
 concerning the negotiability of four Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Article XII, Section 3, first sentence:
 
          Management agrees to avoid assignment whether voluntary or
       involuntary of janitorial and other related custodial duties,
       either on a temporary or continuing basis, be(ing) given to
       civilian employees who are officially assigned to clerical,
       technical administrative or professional positions.
 
                             Union Proposal 2
 
          Article XII, Section 5, second sentence:
 
          Employees who are unable to perform their regular assigned
       duties because of illness or injury, but who are capable of
       returning to or remaining in a duty status;  management agrees to
       assist employees in finding assignments compatible with their
       medical condition if such a position is available, and vacant, or
       their regular assigned duties may be temporarily tailored to
       temporary medical limitations.
 
    The Agency argues that Union Proposals 1 and 2 are outside the duty
 to bargain under section 7106(a)(2) of the Statute because they directly
 interfere with management's rights.  The Authority agrees.
 
    As to Union Proposal 1, in providing that management will avoid
 assigning janitorial or other custodial duties to certain types of
 employees, the proposal has the same effect as the proposal at issue in
 New York State Nurses Association and Veterans Administration Medical
 Center, Bronx, New York, 11 FLRA 578 (1983).  The proposal at issue in
 that case provided that certain tasks were not ordinarily intended to be
 a part of a nurse's normal duties.  The Authority held, relying on its
 decision in Association of Civilian Technicians and State of Georgia
 National Guard, 2 FLRA 581 (1980), that the disputed proposal was
 outside the duty to bargain under section 7106(a)(2)(B) because it
 placed restrictions on management's ability to assign certain duties to
 nurses unless the requisite circumstances existed.  /1/ Contrary to the
 Union's contention that the proposal does not preclude the assignment of
 janitorial duties but merely provides for management to avoid such
 assignments where possible, the Authority concludes that the proposal
 herein, like that in Veterans Administration Medical Center, Bronx,
 restricts management's ability to assign work in specified
 circumstances, i.e., wherever and whenever it can be avoided.  Thus, for
 the reasons set forth in Veterans Administration Medical Center, Bronx
 and State of Georgia National Guard, the Authority finds that Union
 Proposal 1 herein directly interferes with management's right, under
 section 7106(a)(2)(B), to assign work and is outside the Agency's duty
 to bargain under the Statute.  See Laborers' International Union of
 North America, AFL-CIL-CLC, Local 1267 and Defense Logistics Agency,
 Defense Depot Tracy, Tracy, California, 14 FLRA 686, 691-92 (1984)
 (Union Proposal 5).
 
    With respect to Union Proposal 2, it requires management to attempt
 to find, for employees who are unable to perform their regular duties
 due to illness or injury, work assignments which are compatible with
 their medical condition or to reshape the regular duties of the
 positions of those employees.  In this regard, the proposal has
 essentially the same effect as the proposal at issue in National
 Federation of Federal Employees, Local 1624 and Air Force Contract
 Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980).  The
 proposal at issue in that case required the agency to assign employees
 who were unable to perform their regular duties due to illness or injury
 to work assignments which were compatible with their physical conditions
 or to tailor their jobs to fit their physical limitations.  The
 Authority held that the proposal, by requiring management to detail
 employees to particular types of positions, directly interfered with
 management's right to assign employees in the agency under section
 7106(a)(2)(A) of the Statute, /2/ and, by requiring management to
 redesign the duties of a position, directly interfered with management's
 right to assign work under section 7106(a)(2)(B).  Contrary to the
 Union, however, the fact that the instant proposal requires management
 to attempt to undertake such actions does not substantially distinguish
 this case from Contract Management Division.  The implication of the
 proposal at issue herein is, nevertheless, that where management
 determines the reassignment of the employee or the redesign of the job
 is possible it must take those actions.  Cf. American Federation of
 Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank
 Board, New York District Office, 13 FLRA 446, 450-452 (1983) (Union
 Proposal 3) (proposal requiring critical elements of position to be
 related to grade-controlling duties of position "to the extent
 practicable" violative of management's rights under section
 7106(a)(2)(A) and (B).  That is, in order to make a good faith attempt
 to comply with the proposal, management would have to reassign employees
 or redesign jobs wherever and whenever it determines it could do so.
 Thus, for these reasons, and the reasons set forth in the Contract
 Management Division decision, Union Proposal 2 herein directly
 interferes with management's right under section 7106(a)(2)(A) to assign
 employees in the agency and under section 7106(a)(2)(B) to assign work
 and, therefore, is outside the Agency's duty to bargain under the
 Statute.  See American Federation of Government Employees, AFL-CIO,
 International Council of Marshals Service Locals and U.S. Marshals
 Service, 15 FLRA No. 71 (1984) (Union Proposal 3);  Laborers'
 International Union of North America, AFL-CIO-CLC, Local 1267 and
 Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14
 FLRA 686, 695 (1984).
 
                           Union Proposal 3 /3/
 
          In Center Regulation 40-2, paragraph 4-6(c) AWARDS, the classes
       I and II should be amended as follows:
 
          Class I-- Meritorious Civilian Service award, Outstanding
       Performance Rating, and Superior Rating on most recent JPAS form.
 
          Class II-- Sustained Superior Performance Award, Quality step
       increase, and Excellent rating on most recent JPAS form.
 
                             Union Proposal 4
 
          In Center Regulation 40-2, paragraph 4-4 B(3) should be amended
       to add:
 
          Education and training courses which are determined to be
       job-related will be used to rank employees for promotional
       purpose.  Education will be applied as the second sort factor in
       the PPRS.  Education will be credited at a rate of one (1) point
       per semester hour, for past-secondary educational courses.
       Training courses will be credited at a rate of one (1) point for
       every thirty (30) hours of training.  A maximum of 105 points will
       be credited for training or education combined.
 
          Local 943 will be represented on the panel, committee or other
       group which determines which courses will be credited for
       promotional purposes.  The work of this group will be completed
       prior to 1 December 1982.
 
    Union Proposals 3 and 4 purport to modify an Agency regulation which
 establishes a promotion plan for use in the identification and selection
 of candidates to fill all positions which are subject to the regulation.
  In particular, the proposals would amend the regulation to prescribe
 certain abilities and accomplishments for which credit will be given,
 and the amount of such credit, to candidates in the rating process.
 Essentially, therefore, the proposals would establish portions of the
 Agency's "crediting plan." In this regard, the proposals have the same
 effect as the proposal at issue in The Montana Air Chapter of
 Association of Civilian Technicians and U.S. Department of the Air
 Force, Montana Air National Guard, 19 FLRA No. 112 (1985).  In that
 case, the Authority held, adopting the decision of the United States
 Court of Appeals for the District of Columbia Circuit in Department of
 the Treasury, U.S. Customs Service v. Federal Labor Relations Authority,
 762 F.2d 1119 (D.C. Cir. 1985), that a proposal which assigned points
 for crediting plan purposes solely on the basis of seniority was
 inconsistent with 5 CFR 300.103(a) because it was not derived from a job
 analysis which linked seniority to success in the particular position(s)
 in question.  /4/ The proposals at issue in the instant case similarly
 are not based on a job analysis which demonstrates a connection between
 performance in a current position or of job-related training and success
 in the position(s) for which candidates are applying.  /5/
 
    Thus, for the reasons set forth in the Montana Air National Guard
 decision, the Authority finds that Union Proposals 3 and 4 at issue
 herein are inconsistent with 5 CFR 300.103(a) and outside the duty to
 bargain under section 7117(a)(1) of the Statute.  /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., August 23, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7106 of the Statute provides, in relevant part, as
 follows:
 
          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(.)
 
 
    /2/ Section 7106(a)(2) of the Statute provides, in relevant part, as
 follows:
 
          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--
 
          (A) to . . . assign . . . employees in the agency(.)
 
 
    /3/ Center Regulation 40-2, Paragraph 4-6(3), Awards, involved herein
 provides as follows:
 
          Para 4-6(3) Awards.  Awards are used as the second sort factor.
        They must have been conferred at the same, higher, or next lower
       grade as shown in (a), (b), or (c) below.  For positions
       classified at two-grade intervals, the award must have been
       confirmed at the next lower qualifying grade.  A maximum of 3
       points may be credited for awards.  Credit is given only when
       related to the positions being filled and conferred within the
       last 5 years.  When performance was recognized by both a monetary
       and honorary award, only one of the two will be credited.
       Civilian service awards and suggestion awards will be given credit
       as follows:
 
                                  AWARDS
 
       1 - 3 Years 3 - 5 Years
 
    Class I 3 pts 2 pts
 
    Class II 2 pts 1 pts
 
    Class III 1 pt 0 pts
 
          (a) Class I - Meritorious Civilian Service Award.
 
          (b) Class II - Sustained Superior Performance Award and Quality
       Step Increase and Suggestion Cash Award ($50 or more)
 
          (c) Class III - Special Act Award
 
          Promotion Career Briefs will be included upon issuance of a
       certificate to the selecting official and the awards data (Items
       31-36) must be considered in making the selection.
 
 Attachment to Agency Statement of Position.
 
 
    /4/ 5 CFR 300.103(a) reads in pertinent part:
 
          Sec. 300.103 Basic requirements.
 
          (a) Job analysis.  Each employment practice of the Federal
       Government generally, and of individual agencies, shall be based
       on a job analysis to identify:
 
          (1) The basic duties and responsibilities;
 
          (2) The knowledges, skills, and abilities required to perform
       the duties and responsibilities;  and
 
          (3) The factors that are important in evaluating candidates.
       The job analysis may cover a single position or group of
       positions, or an occupation or group of occupations, having common
       characteristics.
 
 The Authority has determined that Office of Personnel Management
 requirements codified at title 5 of the Code of Federal Regulations are
 Government-wide regulations within the meaning of