32:1006(144)NG - - AFGE Local 2761 and Army, Army Publications Distribution Center, St. Louis, MO - - 1988 FLRAdec NG - - v32 p1006



[ v32 p1006 ]
32:1006(144)NG
The decision of the Authority follows:


32 FLRA No. 144

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2761

Union

and 

DEPARTMENT OF THE ARMY

ARMY PUBLICATIONS DISTRIBUTION

CENTER, ST. LOUIS, MISSOURI

Agency

Case No. 0-NG-1514

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)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of seven provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. The Agency has withdrawn its disapproval of an eighth provision. The Union did not file a response to the Agency's statement of position.

We find that Provision 1, which relates to the level of performance necessary for an employee to be eligible for assignment to overtime; Provision 2, which relates to rotating overtime assignments; and Provision 3, which relates to the cancellation of annual leave, are nonnegotiable because they conflict with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Provision 4, which allows duty time for a Union representative to attend funerals, is nonnegotiable because it does not concern a purpose for which official time may be authorized under section 7131(d) and because it conflicts with the right to assign work under section 7106(a)(2)(B). Provision 5, which relates to providing performance ratings to employees, is a negotiable procedure under section 7106(b)(2) and does not conflict with law or Government-wide regulation. Provision 6, which relates to employee attendance at award ceremonies, is nonnegotiable because it conflicts with the rights to direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). Provision 7, which relates to circumstances under which promotions may be made noncompetitively, is nonnegotiable because it conflicts with Federal Personnel Manual Chapter 335, 1-5b(1)--a Government-wide regulation.

II. Provision 1

[The Employer agrees to establish and utilize a rotational system for assigning overtime to Employees. In order to be eligible for overtime,] an Employee must be: c. performing at the Fully Successful level or better. In order for an Employee to be considered as performing less than the Fully Successful level for overtime eligibility, previous management action/documentation must exist. [Only the underscored portion is in dispute. The bracketed portion is from the Agency's statement of position; the remainder is from the Union's petition.]

A. Positions of the Parties (1)

The Union asserts that this provision does not directly interfere with the Agency's right to assign work. It describes the provision as (1) indicating to employees that they must be performing at the fully successful level or better in order to be assigned overtime work; and (2) preventing the Agency from denying an employee overtime based on performance level without supporting documentation. Union petition at 1.

The Agency contends that this provision conflicts with its right under section 7106(a)(2)(B) to assign work. The Agency argues that the provision prohibits assigning overtime work to an employee whose overall performance has been determined to be less than fully successful even though management may: (1) deem the employee to be qualified and able to perform the particular overtime work; or (2) want to afford the employee an opportunity to demonstrate acceptable performance.

B. Analysis and Conclusion

The right to assign work includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications. See, for example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119, 1121 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, Nos. 87-3395/3524 (6th Cir. Apr. 27, 1987). The right to assign work encompasses work which is performed on overtime. See, for example, American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986) (Proposal 4), aff'd as to other matters sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987).

Provision 1 establishes that an employee's performance must be at the fully successful level or better in order for the employee to be eligible for overtime work. The provision prescribes a particular level of overall performance as a qualification needed to perform overtime work. It thereby conflicts with management's right to determine the particular qualifications needed and directly interferes with section 7106(a)(2)(B). Consequently, Provision 1 is outside the duty to bargain. See Social Security Administration, Office of Hearings and Appeals and National Treasury Employees Union, Chapter 224, 31 FLRA 1172 (1988).

III. Provision 2

Exceptions to the rotational system for assigning overtime will be made by mutual agreement should specific projects arise requiring Employees with specific expertise.

A. Positions of the Parties

The Union describes this provision, which was imposed by the Federal Service Impasses Panel (FSIP), as requiring mutual agreement in order for the Agency to deviate from the normal rotational system for overtime assignments when special circumstances are involved. The Union states that rather than seeking to prevent the Agency from performing its mission during overtime situations, this provision is intended only to prevent the Agency from arbitrarily assigning overtime. Union petition at 1.

The Agency contends that by subjecting the determination as to which employee will be assigned overtime work to joint union-management agreement, Provision 2 directly interferes with management's right under section 7106(a)(2)(B) to assign work.

B. Analysis and Conclusion

In resolving an impasse between the Agency and the Union, the FSIP ordered the parties to adopt the overtime provision set forth in their previous contact, as modified to include the wording which appears as Provision 2. The overtime provision includes a rotation procedure.

As discussed in conjunction with Provision 1, the right to assign work includes: (1) the right to determine the qualifications and skills necessary to perform the work and to make judgments in determining whether particular employees meet those qualifications; and (2) the right to assign work performed while on overtime. Provision which provide a procedure for selecting the particular employee who will perform the work from a group of employees who are determined to be qualified are negotiable. See, for example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 406 (1987).

Provision 2, however, is not a negotiable procedure. Provision 2 requires the Agency to obtain the Union's agreement before the Agency may deviate from the rotational system of overtime assignments when the Agency determines that a particular assignment requires skills or qualifications which the employee scheduled for the assignment under the rotational system does not possess.

The provision conditions the Agency's ability to make work assignments on the Union's agreement. Therefore, the provision directly interferes with the Agency's right to assign work. Compare International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, Ca., 31 FLRA 158 (1988) (Provisions 1 and 2 found to interfere with the agency's right to assign work by conditioning the agency's ability to assign employees to other duties on obtaining the permission of the Union). Consequently, Provision 2 is outside the duty to bargain.

IV. Provision 3

The Employer agrees to restrict the cancellation of approved annual leave to those circumstances involving an unscheduled and unpredictable mission requirement.

A. Positions of the Parties

The Union asserts that this provision "sets only those circumstances in which the [Agency] may cancel approved annual leave." Union petition at 2. The Union intends the provision to prevent the Agency from cancelling annual leave for the purpose of harassing employees.

The Agency contends that Provision 3 conflicts with its right under section 7106(a)(2)(B) to assign work. The Agency argues that the provision restricts its ability to cancel annual leave in circumstances where an employee's presence is necessary to complete scheduled work.

B. Analysis and Conclusion

Proposals which require an agency to grant an employee's request for leave without regard for the agency's need for the employee's services during the period covered by the request, interfere with the right to assign work. See, for example, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1516 (1987), petition for review as to other matters filed sub nom. Department of the Interior, Bureau of Land Management v. FLRA, No. 87-1838 (D.C. Cir. Dec. 29, 1987). Similarly, proposals which place substantive restrictions on an agency's discretion to cancel approved leave based on work considerations also interfere with the right to assign work. See, for example, Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA 212, 239-40 (1987), petition for review as to other matters filed sub nom. Veterans Administration Medical Center, Hines, Illinois v. FLRA, No. 87-1514 (D.C. Cir. Sept. 23, 1987). In comparison, proposals relating to the cancellation of leave which leave intact the agency's discretion to consider its workload and staffing needs do not interfere with the right to assign work. See, for example, National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 371 (1988), petition for review as to other matters filed sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Apr. 22, 1988).

Provision 3 substantively restricts the Agency's ability to cancel leave based on work considerations. It permits the Agency to cancel leave when an "unscheduled and unpredictable mission requirement" is involved, but prohibits cancelling leave based on any other legitimate workload or staffing considerations.

Provision 3 limits the circumstances under which the Agency is able to cancel an employee's approved leave based on its need for the employee's services. Therefore, Provision 3 directly interferes with the Agency's right to assign work and is outside the duty to bargain.

V. Provision 4

The Union representative designated by the Union President will be granted no more than four hours of duty time in order to attend the funeral of an Employee provided the funeral is during duty hours.

A. Positions of the Parties

The Union states that the intent of this provision is to allow a representative of the Union up to 4 hours of duty time to attend the funeral of an employee for the purpose of expressing condolences to the family.

The Agency argues that this provision is inconsistent with (1) a Government-wide regulation--Federal Personnel Manual (FPM) Supplement 990-2, Book 630, Subchapter 11-5(f)--which addresses excused absences for employees representing employee organizations; and (2) the right to assign work under 7106(a)(2)(B) because it deprives the Agency of discretion to assign work to Union representatives during the time they are attending funerals.

B. Analysis and Conclusions

1. Official Time

The Union does not specify whether the "duty time" referred to in the provision is intended to be "official time" under section 7131(d) of the Statute. We find that to the extent that the provision intends to require official time, it is nonnegotiable for the following reasons.

Under section 7131(d), agencies and labor organizations may negotiate amounts of official time which are reasonable, necessary and in the public interest for employees representing an exclusive representative or in connection with matters covered by the Statute. Section 7131(d) "carves out an exception" to management's right to assign work. See, for example, Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 688 (1987).

The legislative history of the Statute confirms that official time which is negotiated under section 7131(d) is to be used for labor-management relations activity. See H.R. Rep. No. 1403, 95th Cong., 2d Sess. 59 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print 96-7, at 705 (1979) (Legislative History); S. Rep. No. 969, 95th Cong., 2d Sess. 112, 113 (1978), Legislative History at 772, 773. Examples of representational activities for which official time may be used include the investigation and attempted informal resolution of employee grievances; participation in formal grievance resolution procedures; attendance at, or preparation for, meetings of committees on which both the labor organization and management are represented; and discussion of problems in contract administration with management officials. S. Rep. No. 95-969 at 113.

The Union does not show, and it is not apparent to us, that the use of official time to attend an employee's funeral relates to any labor-management activities under the Statute. We conclude that official time for such purpose cannot be authorized under section 7131(d). See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 27 FLRA 391, 392-93 (1987) (official time for representing a former employee in an unemployment compensation hearing cannot be authorized under section 7131(d)); National Archives and Records Administration and American Federation of Government Employees, Council 236, Local 2928, 24 FLRA 245 (1986) (official time for the purpose of assisting an employee in a private matter with the police cannot be authorized under section 7131(d)).

2. Right to Assign Work

We find that the provision conflicts with the Agency's right to assign work. It requires the Agency to allow an employee designated by the Union president to attend a funeral on duty time. The Agency would not be able to assign work to the employee during that time even if the Agency determined that it had need of the employee's services to accomplish the Agency's mission. See American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Provisions 5, 6 and 7).

In view of this conclusion, it is unnecessary to address the Agency's contention that the provision conflicts with FPM Supplement 990-2, Book 630, Subchapter 11-5(f), which concerns excused absences or administrative leave for brief periods of time. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 15). Also, it is unnecessary to address whether attendance at an employee's funeral by a representative of the Union is an appropriate use of the "excused absence" provisions of the FPM. See FDIC, Madison Region, 21 FLRA at 896-97.

VI. Provision 5

The rating will be due not later than forty-five (45) calendar days following the end of the rating period.

A. Positions of the Parties

The Union contends that this provision mirrors the Agency's own regulation, which provide that performance ratings are due no later than 45 calendar days following the end of the rating period.

The Agency asserts that because this provision prevents the extension of the rating period, the provision is inconsistent with portions of title 5, United States Code, and title 5, Code of Federal Regulations, which govern performance appraisal systems. The Agency also asserts that the provision conflicts with the right to assign work under section 7106(a)(2)(B) because the provision assigns work to supervisors by dictating when the preparation of performance appraisals will be done.

B. Analysis and Conclusions

1. The Provision Does Not Conflict with Law or Government-wide Regulation Concerning Appraisal Systems

The Agency's contention that this provision conflicts with law and regulation is based on its assertion that the provision precludes an extension of the established rating period. In our view, there is nothing in the provision, as worded, which would prevent the Agency from extending a rating period to comply with any legal or regulatory requirement. Rather, the proposal requires only that a rating be given within the specified time limits following the end of a rating period. Consequently, we reject the Agency's argument that the provision conflicts with law or Government-wide regulations because it would prevent the extension of rating periods.

2. The Provision Does Not Conflict with the Right to Assign Work: It Is a Negotiable Procedure under Section 7106(b)(2)

The right to assign work under section 7106(a)(2)(B) includes the discretion to determine when work which has been assigned will be performed. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 628, 630 (1987), petition for review filed sub nom. Overseas Education Association, Inc., v. FLRA, No. 87-1575 (D.C. Cir. Oct. 14, 1987); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980) affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The right to assign work encompasses the assignment of work to supervisors and management officials. See, for example, American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69 (1987) (Provisions 6, 8 and 10).

A proposal which prescribes when a performance appraisal must be completed constitutes a procedure negotiable under section 7106(b)(2). American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697 (1984) (Proposal 4).

The Agency argues that Provision 5 interferes with the right to assign work by dictating when performance appraisals will be prepared. We have previously noted that: (1) most proposals require management to take some action and necessitate the assignment of the "work" involved in carrying out that action to someone within the agency; and (2) if section 7106(a)(2)(B) were construed as barring the negotiability of any proposal which requires an agency to take some action, the duty to bargain could be nullified. See National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 564 (1988); Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA 714 (1987) (Proposal 4), petition for review as to other matters filed sub nom. Veterans Administration Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Aug. 17, 1987).

The Agency does not claim and the record does not support the conclusion that Provision 5 substantively interferes with management's rights to direct employees and to assign work. See, for example, Bureau of the Public Debt, 3 FLRA 769. Rather, Provision 5 establishes a procedure--a time limit for providing performance appraisals to employees following the end of the rating period--by which the Agency carries out its authority with respect to performance appraisals. Similar time limits have been found to be procedures negotiable under section 7106(b)(2). See, for example, Alaska Area Native Health Service, 13 FLRA at 701 (requirement to complete rating within 5 days of anniversary date); National Federation of Federal Employees, Local 1467 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 568-69 (1983) (requirement to prepare a promotion roster within 10 days of a request to fill a position by promotion).

Section 7106(b) provides that "nothing" in section 7106 shall preclude parties from negotiating "procedures which management officials of the agency will observe in exercising any authority" under section 7106. Most procedures require some action and necessitate the assignment to someone of the work involved in carrying out that action. To bar the negotiation of procedures which would otherwise be negotiable under section 7106(b)(2) because they incidentally entail the assignment of work to someone in an agency would nullify section 7106(b)(2) and overlook the explicit purpose and intent of that subsection.

Our decision in U.S. Army Missile Command, 27 FLRA 69, and similar cases is distinguishable. In U.S. Army Missile Command we found that Provisions 6, 8 and 10 were nonnegotiable because they specified which agency personnel would perform specific tasks. Provision 5 in this case does not specify which agency personnel will prepare the performance ratings. We emphasized in U.S. Army Missile Command that the assignment of the tasks to particular individuals was a defect in those otherwise negotiable provisions that easily could have been avoided.

Rather, Provision 5 only establishes a procedural time frame as to when the performance ratings must be given to employees. Therefore, we find that it is negotiable under section 7106(b)(2).

VII. Provision 6

Employee participation in awards ceremonies will be voluntary and, therefore will not impact upon the Employee's receipt of the award.

A. Positions of the Parties

The Union states that this provision is intended to inform employees that their attendance at an awards ceremony is voluntary and that absence from the ceremony will not affect an employee's eligibility for an award. The Union states that if an employee chooses not to attend a ceremony, the employee would be expected to be at his/her normal work area.

The Agency argues that the provision interferes with the rights to assign and direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). The Agency asserts that the provision would prevent the Agency from directing employees to be at a specific work place during duty hours and assigning functions to them during the awards ceremony.

B. Analysis and Conclusions

For the following reasons, we conclude that Provision 6 is outside the duty to bargain because it directly interferes with management's rights to direct employees and to assign work.

The right to assign work under section 7106(a)(2)(B) includes the discretion to determine the particular duties and work to be assigned. This discretion includes the right to assign general continuing duties and to make specific periodic work assignments to employees. 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).

The right to assign work includes the right to require employees to attend or participate in an agency awards ceremony. Compare 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) (proposal to restrict the assignment of "additional or incidental duties to employees which are inappropriate to their positions or qualifications" conflicts with the right to assign work). Provision 6 makes participation in awards ceremonies voluntary on the part of the employee. Provision 6 precludes the Agency from requiring employees to attend or participate in awards ceremonies. Therefore, Provision 6 directly interferes with the Agency's right to assign work. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987) (Proposal 41), petition for review as to other matters filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Oct. 14, 1987); American Federation of Government Employees, AFL-CIO, Local 644 and Department of Labor, Mine Safety and Health Administration, 27 FLRA 375 (1987) (Proposal 3).

The right to direct employees encompasses the right to supervise and guide employees in the performance of their duties on the job. Bureau of the Public Debt, 3 FLRA at 775. Supervising and guiding employees in the performance of their duties on the job includes the supervisory function of requiring them to perform assigned duties. See American Federation of Government Employees, and Army and Air Force Exchange Service, 30 FLRA 909, 911 (1988). By preventing the Agency from requiring employees to perform an assigned duty--attendance at and/or participation in an awards ceremony--Provision 6 also interferes with the Agency's right to direct employees under section 7106(a)(2)(A).

In view of this conclusion, it is unnecessary to address the Agency's contention that Provision 6 interferes with the Agency's right to assign employees under section 7106(a)(2)(A).

VIII. Provision 7

Employees may be noncompetitively promoted under the following circumstances. (2) A promotion resulting from the upgrading of a position without sufficient change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error.

A. Positions of the Parties

The Union argues that Federal Personnel Manual (FPM) Chapter 335, 1-5b(1) permits but does not require an agency to promote an incumbent under the circumstances cited in Provision 7.

The Agency contends that Provision 7 "as written, and clarified by the union...is intended to permit a competitive promotion procedure" under specified circumstances. Agency Statement of Position at 10. The Agency contends that FPM Chapter 335, 1-5b(1)--a Government-wide regulation--requires noncompetitive promotion in the circumstances set forth in Provision 7. By allowing the use of competit