20:0531(64)NG - NFFE Local 29 and Army Corps of Engineers, Kansas City, MO -- 1985 FLRAdec NG



[ v20 p531 ]
20:0531(64)NG
The decision of the Authority follows:


 20 FLRA No. 64
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 29 
 Union 
 
 and 
 
 U.S.ARMY CORPS OF ENGINEERS, 
 KANSAS CITY DISTRICT, KANSAS 
 CITY, MISSOURI
 Agency 
 
                                            Case No. 0-NG-1085
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority (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 three Union proposals.
 Upon careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Article 4, Section 3, (a) The employer shall within 30 days of
       signing this Agreement, inform and instruct all levels of
       management of the provisions of this Agreement.
 
    It is well established that the duty to bargain under the Statute
 extends only to those conditions of employment, i.e., personnel
 policies, practices, and matters affecting working conditions, which
 affect bargaining unit employees.  See e.g., National Council of Field
 Labor Locals, American Federation of Government Employees, AFL-CIO, and
 U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292(1980).
 However, pursuant to section 7112(b)(1) of the Statute, /1/ supervisory
 and management officials are specifically excluded from inclusion in
 appropriate bargaining units.  Thus, proposals which concern such
 management and supervisory positions are generally negotiable only at
 the election of management.  E.g., International Association of
 Firefighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438,
 445(1980).  As relevant herein, Proposal 1 expressly concerns actions
 management will be obligated to undertake with regard to nonbargaining
 unit employees, specifically "all levels of management." That is, in
 agreement with the Agency, as the proposal concerns the manner in which
 the Agency communicates with its management and supervisory officials it
 does not involve a condition of employment of bargaining unit employees
 within the meaning of section 7103(a)(14) of the Statute.  /2/
 Therefore, the Authority concludes that since the Agency has elected not
 to bargain on this proposal it is outside the duty to bargain.
 
                             Union Proposal 2
 
          Article 4, Section 3, (c) The employer shall provide the Union,
       in writing, a list containing the names, telephone numbers, title
       and area of responsibility of all management and supervisory
       personnel, the first week of October and April of each year and at
       such other times whenever a change occurs.  If a management or
       supervisory official is not so designated, the Union or the
       employees have no obligation to recognize that individual(s) as
       agency representatives.
 
    It appears from the record that the Agency objects only to the second
 part of the proposal which would permit the Union or employees to refuse
 to recognize a management or supervisory official as such until that
 official has been identified to the Union pursuant to the first part of
 the proposal.  /3/
 
    In this regard, the Authority has determined that in certain
 circumstances a proposal which requires management to identify to an
 employee management or supervisory personnel on its face constitutes a
 negotiable "procedure" within the meaning of section 7106(b)(2) of the
 Statute.  American Federation of Government Employees, AFL-CIO, Local
 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA
 76, 91(1983).  However, a proposal which requires similar identification
 would not constitute a negotiable procedure to the extent that it places
 limitations on management's ability to act pursuant to its reserved
 management rights.  See Association of Civilian Technicians, Inc.,
 Pennsylvania State Council and the Adjutant General, Department of
 Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346,
 348-50(1981), rev'd as to other aspects sub nom. Adjutant General,
 Department of Military Affairs, Pennsylvania v. FLRA, 685 F.2d 93(3rd
 Cir. 1982).
 
    As relevant herein, and in agreement with the Agency, the Authority
 concludes that Proposal 2 does not merely require the Agency to identify
 certain management or supervisory personnel but rather, places
 limitations on the Agency's right to "direct" employees and to "assign
 work" pursuant to section 7106(a)(2)(A) and (B) of the Statute.  That
 is, contrary to the Union's claim that the proposal is intended to apply
 only to labor relations matters, this proposal expressly permits
 employees to refuse to recognize a management or supervisory official
 unless that official has been identified according to the first portion
 of the proposal.  /4/ As a result, if the Agency does not identify a
 management or supervisory official as specified therein, an employee
 could refuse to recognize that individual as a management or supervisory
 official for any purpose, including the ability to assign work or direct
 employees.  Thus, the Authority concludes that this proposal places a
 limitation on the Agency's right to "direct" employees and to "assign
 work." In addition, if for any reason the Agency had not identified a
 management or supervisory official according to the first portion of the
 proposal the Agency effectively would be precluded from assigning work
 to that official, including duties involving labor relations matters,
 since the Union would be able to refuse to recognize that official as
 the Agency's chosen representative.  Thus, as this proposal directly
 interferes with the Agency's right to "direct" employees and to "assign
 work" it is outside the duty to bargain.
 
                             Union Proposal 3
 
          Article 4, Section 3(d) The employer shall report to the Union,
       in writing, at the end of each pay period the amount of official
       duty time used, by each management or supervisory official, for
       the following types of activities, as they relate to bargaining
       unit employees:
 
          1.  Representation of the agency in complaints, disciplinary
       actions, adverse actions, discrimination complaints, statutory
       appeals, and/or grievances;
 
          2.  Receipt, investigation, preparation and/or response to
       complaints, disciplinary actions, adverse actions, discrimination
       complaints, statutory appeals, and/or grievances;
 
          3.  Observation of or participation in a complaint,
       disciplinary action, adverse action, discrimination complaint,
       statutory appeal, and/or grievance;
 
          4.  Representation of the agency at an adjustment of a
       complaint, disciplinary action, adverse action, discrimination
       complaint, statutory appeal, and/or grievance;
 
          5.  Attendance at a committee/panel meeting(s) as an agency
       representative or observer;
 
          6.  Review of and/or response to memos, DFs, letters,
       complaints, new or proposed changes in working conditions or
       conditions of employment of unit employees;
 
          7.  Receipt of and/or response to data request, complaints,
       and/or letters from the Union;
 
          8.  Attendance or presentation at any hearing or meeting which
       affects labor-management relations, including training seminars;
 
          9.  Representation of the agency in matter to or before the
       FLRA, FMCS, FSIP, EEOC, MSPB, OSC, and/or the courts;
 
          10.  Preparation and filing of reports required by this
       Agreement or higher headquarters relative to labor-management
       relations;
 
          11.  Attendance at meetings/consultations with employees,
       pursuant to section 7114(a)(2) of the Statute, or with the Union;
 
          12.  Preparations for and negotiations;  and
 
          13.  Cost associated with any of the above (i.e., travel and
       per diem).
 
          This information will be provided as total number of hours
       used, to nearest quarter hour, for each individual;  except time
       spent in preparation for negotiations shall be reported separate
       from the total.  This information will be provided no later than
       two days after the end of each pay period.  Supporting
       documentation shall be attached.
 
    Union Proposal 3, by its express terms, does not directly involve
 personnel policies, practices or matters affecting working conditions of
 bargaining unit employees but rather, the use of official time for a
 variety of specified labor relations activities by nonbargaining unit
 employees, i.e., management and supervisory officials.  Moreover, in
 this connection, the Agency contends that it does not maintain such
 information in the regular course of its operations.  Thus, this
 proposal would have the effect of requiring management and supervisory
 officials to create and maintain records relating to their use of
 official time.  In this regard, Union Proposal 3 is to the same effect
 as Union Proposal 2 found nonnegotiable in National Treasury Employees
 Union, Chapter 91 and Department of the Treasury, Internal Revenue
 Service, Southwest Region, 17 FLRA No. 77(1985).  There, the Authority
 determined that as the disputed proposal required supervi