27:0801(86)NG - NAGE, SEIU and State of Connecticut, Adjutant General Office -- 1987 FLRAdec NG



[ v27 p801 ]
27:0801(86)NG
The decision of the Authority follows:


 27 FLRA No. 86
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, SEIU, AFL-CIO
 Union
 
 and
 
 STATE OF CONNECTICUT, ADJUTANT
 GENERAL OFFICE
 Agency
 
                                            Case No. 0-NG-1289
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of three proposals.
 
                              II.  Proposal 1
 
          Article VI, Section 1 -- Alternative Work Schedules
 
          A.  5 4/9 Workweek
 
          B.  Flextour
 
          C.  4 ten hour days
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 1, to the extent that it proposes
 alternative work schedules under the Work Schedules Act, is
 nonnegotiable because National Guard technicians are not subject to the
 Work Schedules Act.  /1/ Specifically, the Agency claims that National
 Guard technicians are excluded from the Act by 32 U.S.C. Section 709(g),
 which provides that the Secretaries of the Army and the Air Force shall
 prescribe technicians' hours of work "(n)otwithstanding sections 5544(a)
 or 6101(a) of title 5 or any other provision of law(.)" /2/
 
    In addition, the Agency argues that Proposal 1 is outside the duty to
 bargain (1) under section 7117(a)(1) of the Statute because it is
 inconsistent with 5 U.S.C. Section 6132;  and (2) under section
 7117(a)(2) because it conflicts with Technician Personnel Regulation
 (TRP) 600 (610.1), Section 1-1(a) and 1-4(b), an Agency regulation for
 which a compelling need exists under the Authority's regulations.
 Finally, the Agency contends that the proposal directly interferes with
 management's rights to assign work under section 7106(a)(2)(B) and to
 determine the numbers, types and grades of employees and positions
 assigned to a work project or tour of duty under section 7106(b)(1).
 
    The Union contends that the Work Schedules Act specifically applies
 to National Guard technicians, and to the extent that there is a
 conflict, the Work Schedules Act supersedes the Technicians Act.  In
 support of this claim the Union cites 5 U.S.C. Sections 6121(2) and
 2105.  The Union also contends, contrary to the Agency, that there is no
 compelling need for TPR 600 (610.1) and that Proposal 1 does not
 infringe on management's rights to assign work.
 
                        B.  Analysis and Conclusion
 
    Proposal 1 has the same effect as the last sentence of Proposal 2 and
 Proposal 5 in National Federation of Federal Employees, Local 1655 and
 Illinois National Guard, 26 FLRA No. 81 (1987).  In that case, we found
 that since the Work Schedules Act applies to National Guard technicians
 and is not inconsistent with 32 U.S.C. Section 709(g)(2), those laws are
 capable of being applied together.  We therefore found that because
 National Guard technicians are subject to the Work Schedules Act the
 proposals in that case concerning alternate work schedules were
 negotiable.  We also held that because alternate work schedules are
 "fully negotiable" within the limits set by the Work Schedules Act,
 there are no issues pertaining to the negotiability of those schedules
 which are considered by the Authority under section 7117 of the Statute,
 except whether a proposed schedule is consistent with the Act.  See
 American Federation of Government Employees, Local 1934 and Department
 of the Air Force, 3215 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986).
  Therefore we found that the Agency's contentions as to sections 7106
 and 7117(a)(2) of the Statute were not properly before us.  For the
 reasons set forth in Illinois National Guard and Department of the Air
 Force, we find that Proposal 1 is within the duty to bargain.
 
                             III.  Proposal 2
 
          Article XVI, Section 3
 
          "All other duties as assigned" is construed to mean those
       duties for which the employee is technically qualified to perform.
        They must be within the general framework of the employee's
       current position description.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 2 violates its right to assign work
 pursuant to section 7106(a)(2)(B) of the Statute.  The Agency argues
 that the proposal would directly interfere with management's right to
 assign work by preventing it from requiring employees to perform duties
 that are not included in their position descriptions or are outside
 their regular field of work.
 
    The Union contends that the purpose of Proposal 2 is to ensure the
 accuracy of employees' position descriptions.  In particular, the Union
 states that the intent of Proposal 2 is to limit the assignment of
 lower-graded duties to employees on a regular basis because those duties
 would tend to demean employees and jeopardize their position or grade.
 The Union also contends that its earlier explanation of Proposal 2 to
 the Agency, namely, that it is intended to prevent employees from being
 assigned menial tasks on a recurring basis, does not render the proposal
 nonnegotiable.
 
                        B.  Analysis and Conclusion
 
    For the following reasons, we find that Proposal 2 is not within the
 duty to bargain.
 
    The Union states that the proposal would not prevent management from
 amending employees' position descriptions to include any duties which it
 intends to assign to them and claims, therefore, that the proposal is to
 the same effect as Proposal II 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, 159-61 (1979),
 enforced as to other matters sub nom., Department of Defense v. FLRA,
 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 455
 U.S. 945 (1982).  That proposal permitted the regular assignment of
 duties unrelated to the employees' basic job descriptions as long as
 employees' position descriptions were amended to reflect that
 assignment, and was found to be negotiable.
 
    The Union's contentions are contradicted by its statements in the
 record as to the proposal's intent.  The Union states that the proposal
 is intended "(t)o prevent employees from being assigned menial tasks on
 a recurring basis." Petition for Review at 1.  As the Union has
 clarified the meaning of its proposal, "'(o)ther duties' should not be
 such that they tend to demean an employee or jeopardize his position
 grade by assigning lower grade duties on a regular basis." Union letter
 of clarification dated July 3, 1986, at 2.  Consistent with the Union's
 explanation, Proposal 2 appears to be intended to absolutely prevent the
 Agency from regularly requiring an employee to perform certain duties,
 such as duties which the employee is not "technically qualified to
 perform."
 
    As described by the Union,the proposal does not merely seek to limit
 the definition of the phrase "other duties as assigned" to include only
 those which are within the "general framework of the employee's current
 position description." Rather, the proposal would prevent the Agency
 from assigning "menial" or "lower grade" duties to employees on a
 recurring basis or duties which employees were not "technically
 qualified to perform," whether or not the Agency amended their position
 descriptions to reflect those assignments.  Proposal 2 therefore is
 distinguishable from the proposal in Dix-McGuire Exchange.  Rather, it
 has the same effect as Provision 2 found nonnegotiable in National
 Federation of Federal Employees, Local 1622 and Department of the Army,
 Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578
 (1984).  Provision 2 in that case provided, among other things, that
 supervisors should avoid assigning additional duties to employees which
 were inappropriate to their positions and qualifications.  The Authority
 found that Provision 2 interfered with management's right to assign work
 pursuant to section 7106(a)(2)(B) of the Statute because it expressly
 prevented the Agency from assigning duties to employees which were
 outside their regular field of work or inappropriate to their position
 or qualifications.  We find that Proposal 2, like Provision 2 in Vint
 Hill Farms Station, directly interferes with management's right to
 assign work.  See also National Federation of Federal Employees and
 Haskel Indian Junior College, Bureau of Indian Affairs, Department of
 the Interior, Lawrence, Kansas, 22 FLRA No. 57 (1986) (Proposal 5).
 
                              IV.  Proposal 3
 
    The Members disagree over the negotiability of this proposal.  The
 Decision and Order on Proposal 3 and Chairman Calhoun's dissent
 immediately follow this decision.
 
                                 V.  Order
 
    The petition for review as to Proposal 2 is dismissed.  The Agency
 must upon request, or as otherwise agreed to by the parties, bargain on
 Proposal 1.  /3/
 
    Issued, Washington, D.C., June 26, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                     Decision and Order on Proposal 3
 
                                Proposal 3
 
          Article XIX, Section 12
 
          The employer agrees that all technicians who do not have
       recruiting as a part of their position description will not be
       required to recruit.  Every effort will be made to obtain
       volunteers for recruiting drives.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 3 violates its right to assign work
 pursuant to section 7106(a)(2)(B) of the Statute.  The Agency argues
 that the proposal would directly interfere with management's right to
 assign work by preventing it from requiring employees to perform duties
 that are not included in their position description or are outside their
 regular field of work.
 
    The Union contends that the purpose of Proposal 3 is to ensure the
 accuracy of employees' position descriptions.
 
                        B.  Analysis and Conclusion
 
    We find that Proposal 3 is negotiable.  Section 7106 of the Statute
 establishes management's right to assign work to employees.  5 U.S.C.
 Section 7106(a)(2)(B).  However, section 7106 also provides that
 agencies and labor organizations may negotiate procedures relating to
 management's implementation of its rights under section 7106, including
 the right to assign work.  5 U.S.C. Section 7106(b)(2).  These
 procedures are mandatory subjects of bargaining between the parties even
 if the procedures delay the exercise of a management right that is
 itself nonbargainable.  For example, Department of Defense v. FLRA, 659
 F.2d 1140, 1153-58 (D.C. Cir. 1981), enforcing 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),
 cert. denied sub nom., AFGE v. FLRA, 455 U.S. 945 (1982).  Such
 procedures which delay the exercise of a particular management right may
 not prevent the agency from acting at all in exercising that right.  Id.
 
    The effect of Proposal 3 is merely to require management to amend
 employee position descriptions to include recruiting duties where
 management intends to assign those duties to employees.  As the
 Authority has held on numerous occasions, employee position descriptions
 are not themselves the assignment of work;  they merely reflect the
 duties and responsibilities which an agency has decided to assign to a
 position.  For example, American Federation of Government Employees,
 AFL-CIO, Local 2849 and Office of Personnel Management, New York
 Regional Office, 7 FLRA 571, 573 (1982).  Proposal 3 assures that
 employee position descriptions accurately reflect the fact that
 recruiting duties have been assigned to the employees involved.
 
    The amendment of a position description is in many instances a simple
 matter.  To the extent, however, that Proposal 3 involves the
 possibility of imposing some delay on the exercise of management's right
 to assign work, such delay by itself is not sufficient to render the
 proposal nonnegotiable.  See Department of Defense v. FLRA, 659 F.2d at
 1153-58.  We find that Proposal 3 thus sets forth a negotiable procedure
 for the agency to follow in assigning recruiting duties.  Unlike
 Proposal 2, there is no indication in the record that Proposal 3 is
 intended to prevent management from amending employees' position
 descriptions to include particular duties, in this instance, recruiting.
 
    Our determination that Proposal 3 is negotiable is consistent with
 Authority precedent.  In Dix-McGuire Exchange and subsequent cases, the
 Authority has considered a variety of proposals dealing with the
 relationship between the duties assigned to employees and employees'
 position descriptions.  In Dix-McGuire Exchange, the Authority held to
 be negotiable a proposal intended "to prevent the agency from expanding
 the work regularly required of the incumbent of a position by assigning
 work which is not reasonably related to the duties spelled out in the
 position description . . ." Dix-McGuire Exchange, 2 FLRA at 160.  In
 reaching this conclusion, the Authority stated that an agency intent on
 making such an assignment merely "would need to change the position
 description in order to do so." Id., 2 FLRA at 160-61.  See also
 American Federation of Government Employees, AFL-CIO, Local 2849 and
 Office of Personnel Management, New York Regional Office, 7 FLRA at
 573-74.  This reasoning is equally applicable here.
 
    With respect to an arbitrator's role in resolving grievances under
 section 7122 of the Statute, it is well established that an arbitrator
 may not substitute his or her judgment for that of the agency in the
 exercise of management rights.  See Bureau of Prisons, Department of
 Justice and American Federation of Government Employees, Local 148, 21
 FLRA No. 15, slip op. at 6 (1986).  Specifically, as to grievances
 arising out of circumstances such as those addressed by Proposal 3,
 consistent with the above holdings and section 7106(a)(2)(B) of the
 Statute, it is clear that an arbitrator may order an agency to change an
 employee's position description to include the disputed additional
 duties.  See Federal Aviation Administration, Department of
 Transportation, Tampa, Florida and Federal Aviation Science and
 Technology Association, National Association of Government Employees,
 Tampa, Florida, 8 FLRA 532, 533 n.3 (1982).  However, an arbitrator
 could not render an award substituting his or her judgment concerning
 the assignment of work for that of management.  See Department of the
 Air Force, Carswell Air Force Base and American Federation of Government
 Employees, Local 1364, 19 FLRA 386 (1985), where the Authority
 overturned an arbitrator's award which ordered an agency to cease and
 desist from assigning certain duties to particular personnel.
 
    Moreover, the fact that Proposal 3 is negotiable would not insulate
 an employee in appropriate circumstances from discipline relating to a
 refusal to perform work assigned prior to the amendment of the
 employee's position description.  For example, section 7106(a)(2)(D) of
 the Statute establishes management's right to take necessary actions
 during emergencies.  /4/
 
    For the reasons set forth above, we find that Proposal 3 does not
 interfere with management's right to assign work under section
 7106(a)(2)(B) and is within the Agency's duty to bargain.
 
                                 C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 3.  /5/
 
    Issued, Washington, D.C., June 26, 1987.
                                       /s/ Henry B. Frazier III,
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
           Dissenting Opinion of Chairman Calhoun On Proposal 3
 
    Proposal 3 provides that technicians who do not have recruiting
 included in their position descriptions will not be required to recruit.
  The majority states that the effect of the proposal is to require the
 Agency to "amend employee position descriptions to include recruiting
 duties where management intends to assign those duties to employees,"
 and relies on the Authority's decision on Proposal II 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, 159-61 (1979), enforced as to other matters sub nom., AFGE v.
 FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v.
 FLRA, 455 U.S. 945 (1982).  In my view, Proposal 3 directly interferes
 with the Agency's right to assign work and is nonnegotiable.
 
    In Dix-McGuire, the proposal stated that the phrase "other related
 duties as assigned" would "not be used to regularly assign work to an
 employee which is not reasonably related to his basic job description."
 Id. at 159.  The Authority found that the proposal was "designed to
 insure the accuracy of employee position descriptions," and that the
 proposal would not "foreclose the agency from adding such unrelated
 duties to a position." Id. at 160.  That description of the proposal is
 consistent with its plain working;  it concerned the revision of
 position descriptions to accurately reflect the duties which are
 regularly assigned to that position.
 
    The Authority noted in Dix-McGuire that a position description is the
 basis of the classification and pay systems for Federal employees, and
 stated that "(c)hanges in the kinds and the level of responsibility of
 the duties assigned an employee may necessitate changes in the position
 description(.)" Id. at 160 (emphasis added).  That finding is consistent
 with Federal Personnel Manual (FPM) Chapter 511, Subchapter 4-2(b),
 which provides in pertinent part:
 
          The principal duties, responsibilities, and supervisory
       relationships of a position are those significant for
       classification purposes.  This includes those which are operative
       during a substantial part of the time and any others which affect
       the qualifications required to perform the work.
 
    That finding is consistent also with FPM Chapter 511, Subchapter
 4-3(b), which requires a certification that a position description "is
 an accurate statement of the major duties and responsibilites" of the
 position.  See National Federation of Federal Employees, Local 1497 and
 Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151,
 152-54 (1982).
 
    Subsequently, in National Federation of Federal Employees, Local 1622
 and Department of the Army, Headquarters, Vint Hill Farms Station,
 Warrenton, Virginia, 16 FLRA 578, 580-81 (1984), the Authority found
 Provision 2 to be nonnegotiable.  That provision provided, in pertinent
 part:
 
          The phrase "performs other related duties as assigned" on
       position descriptions is not to be construed to require the
       employee to perform duties outside his/her regular field of work,
       nor for which he/she is not physically able or which might result
       in injury to the employee due to lack of training or experience in
       the specifically assigned task.
 
    Although the Authority stated that "a position description does not
 constitute a limitation on the assignment of duties," it concluded that
 the provision was nonnegotiable because it directly interfered with the
 right to assign work by "expressly preventing the Agency from requiring
 employees to perform certain duties(.)" Id. at 581.
 
    Like the provision in Vint Hill Farms, Proposal 3 in this case would
 restrict the Agency's right to assign work.  In fact, the Agency could
 not assign recruiting duties to a technician unless and until the
 technician's position description was amended to include recruiting.
 Unlike the proposal in Dix-McGuire, there is no indication in this case
 that recruiting duties (1) are regularly assigned;  (2) constitute
 principal duties or responsibilities, affect qualifications, or are
 performed during a substantial part of the time within the meaning of
 FPM Chapter 511, Subchapter 4-2;  or (3) are major duties and
 responsibilities which must be included under the certification required
 by FPM Chapter 511, Subchapter 4-3.  Rather, under Proposal 3,
 recruiting duties must be included in position descriptions for the sole
 purpose of enabling the Agency to assign that work.  Contrary to the
 majority, therefore, I would find that the proposal imposes a
 substantive condition on the assignment of work and, thus, that it is
 not a procedure under section 7106(b)(2).  See my dissent in National
 Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54
 (1986).
 
    Proposal 2 in this case provides that "(a)ll other duties as
 assigned" means those duties for which the employee is technically
 qualified and which are "within the general framework of the employee's
 position description." We find that this proposal is nonnegotiable
 because it conflicts with the Agency's right to assign work.  In my
 view, Proposal 3 has the same effect.
 
    FPM Chapter 511, Subchapter 4-3(a) states the following:
 
          Position descriptions play a vital role in determining pay
       levels and qualification requirements;  they are necessary for
       authorizing payment of public funds, establishing sources of
       recruitment, setting conditions for competition for appointment
       and advancement, and determining whether positions should be
       excepted from the competitive service.
 
    Under the majority decision on Proposal 3, position descriptions play
 another vital role:  they limit the work which may be assigned.  I do
 not believe Congress intended that management could be required to amend
 a position description every time it decided to make a particular work
 assignment.  Accordingly, I do not join the majority opinion.
 
    Issued, Washington, D.C., June 26, 1987.
                                       Jerry L. Calhoun, Chairman
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Federal Employees Flexible and Compressed Work Schedules Act of
 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Sections
 3401, 6101 and note, 6101, 6120-6133), which was made permanent in 1986,
 Pub. L. No. 99-196, 99 Stat. 1350.
 
    (2) For the text of 32 U.S.C. Section 709(g) see the Appendix to this
 decision.
 
    (3) In finding Proposal 1 to be negotiable, we express no opinion as
 to its merits.
 
    (4) Compare General Services Administration and American Federation
 of Government Employees, Council 236, 15 FLRA 328 (1984) (violation of a
 contract provision by an agency does not necessarily authorize an
 employee to act with impunity with respect to the violation).
 
    (5) In finding Proposal 3 to be negotiable, we express no opinion as
 to its merits.
 
 
                                 APPENDIX
 
    /2/ 32 U.S.C. Section 709(g) provides as follows:
 
    Section 709 Technicians:  Employment, use, status
                                       * * * *
 
    (g)(1) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
 other provision of law, the Secretary concerned may, in the case of
 technicians assigned to perform operational duties at air defense sites
 --
 
          (A) prescribe the hours of duties;
 
          (B) fix the rates of basic compensation;  and
 
          (C) fix the rates of additional compensation;
 
    to reflect unusual tours of duty, irregular additional duty, and work
 on days that are ordinarily nonworkdays.  Additional compensation under
 this subsection may be fixed on an annual basis a