48:1323(137)NG - - National Assoc. of Agriculture Employees and Agriculture, Animal and Plant Health Inspection Service, Washington, DC - - 1994 FLRAdec NG - - v48 p1323



[ v48 p1323 ]
48:1323(137)NG
The decision of the Authority follows:


48 FLRA No. 137

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

WASHINGTON, D.C.

(Agency)

0-NG-2152

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

January 5, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a proposal limiting the assignment of work to a Union official. For the reasons which follow, we find that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.

II. Background

The Union represents approximately 1,100 Plant Protection and Quarantine (PPQ) Officers in a nationwide unit, including employees located at the Agency's Fort Lauderdale worksite. Nine PPQ Officers, including the Union's National President, are assigned to the Fort Lauderdale work site. After promoting three of the nine PPQ Officers from GS-9 to GS-11, the Agency changed certain work assignments of the PPQ officers in that office. The Union submitted proposals to the Agency in response to the change in work assignments. Only the proposal involved in this case remains in dispute.

III. The Proposal (*)

The National President of [the Union] will be an "officer of last resort" in the assignment of inspectional duties (other than overtime) within the work unit. All other officers, including GS-11, will be assigned these duties first.

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it directly interferes with the Agency's rights to assign work and to determine the personnel by which Agency operations shall be conducted under section 7106(a)(2)(B) of the Statute. The Agency notes the Union's statements that the proposal "'is intended to maximize the amount of time the National President may spend on his representational duties by minimizing the time required for inspectional duties in the local work unit'" and that "'all other inspectional personnel . . . are to be assigned inspectional duties before the . . . President is to be given such assignment.'" Statement at 6 (quoting petition at 3). The Agency asserts that, by these statements, the Union indicates that the proposal is intended to prevent management from assigning the Union President any inspectional work until all other inspection personnel are assigned work.

The Agency contends that, by establishing a condition on management's ability to exercise its right to assign work, the proposal eliminates the discretion inherent in management's exercise of that right. To explain its understanding of the effect of the proposal, the Agency postulates a hypothetical situation where "an employee has just completed an exhaustive outdoor assignment in 95 degree weather" and another similar assignment must be completed. Id. at 7. According to the Agency, under the proposal, in that situation, management would be precluded from assigning the Union President to perform the work because the employee who completed the first assignment would be available to perform the work. The Agency claims that because the proposal would limit management's ability to assign that work to the Union President, the proposal directly interferes with management's right to assign work under the Statute. The Agency also states that, under section 7106(a)(2)(B) of the Statute, management has the right to assign work to all employees regardless of whether they are Union officials.

The Agency also asserts that the Union "has not raised the issue of an appropriate arrangement" under section 7106(b)(3) of the Statute. Id. at 8.

B. Union

In its petition for review, the Union states that, under a recent proposal agreed to by the parties in connection with the change in PPQ Officers' work assignments, the Union President normally receives a minimum of 4 hours of official time per day to conduct Union activities. According to the Union, the recent staffing changes have created a situation "where official time for the National President even at . . . the 4-hour minimum will be eliminated or severely curtailed." Petition at 2. The Union contends that the promotions of the PPQ Officers to the positions of Senior Inspector GS-11 "dictate that a minimum of 51% of their time be devoted to duties outside of normal inspectional activity." Id. The Union also states that 100% of the time of one Senior Inspector will be used to staff a newly created Desk Officer position. The Union asserts that these changes in staffing equate to a loss of two PPQ Officers for inspections.

The Union asserts that, because there has been no increase in inspectional staff and because the workload volume continues to increase, it is "inevitable" that management will elect to supplement the shortage in inspectional staffing by decreasing the amount of official time made available to the Union President. Id. at 3. The Union contends that the proposal is intended "to maximize the amount of time the National President may spend on his representational duties." Id. According to the Union, under the proposal, "all other available inspectional personnel (including GS-11 Senior Inspectors) are to be assigned inspectional duties before the National President is to be given such assignment." Id.

The Union asserts that the proposal is "predicated on [section] 7131(d) [of the Statute], which has been held to mitigate or diminish [section] 7106 of the Statute." Id. at 4.

V. Analysis and Conclusions

We find that the proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The proposal requires that inspectional work be assigned to other PPQ Officers, including GS-11 PPQ Officers, before that work is assigned to the Union's National President. As worded, the proposal does not distinguish among the grade levels of PPQ Officers with respect to the assignment of inspectional duties. More specifically, by its terms, the proposal makes the assignment of inspectional duties to the Union President conditional on the unavailability of all other PPQ Officers. In addition, we note that the Union's explanation of the effect of the proposal is consistent with the plain wording of the proposal. The Union explains that the proposal is intended to ensure that all "available inspectional personnel (including GS-11 Senior Inspectors) . . . be assigned inspectional duties before the National President is to be given such assignment." Petition at 3. Based on the wording of the proposal and the Union's explanation, we conclude that the proposal is intended to require the assignment of inspectional duties to PPQ Officers, rather than to the Union's National President, when any other officer, including a GS-11 PPQ Officer, is available to perform that work.

Proposals which impose a substantive condition on management's ability to assign particular duties to specific agency employees directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285 (1993) (Office of Hearings and Appeals) (provision obligating agency to free employees from their hearing assignments so that they could take their morning breaks and to reassign hearing duties to an available employee found nonnegotiable because it directly interfered with management's right to assign work); American Federation of Government Employees, AFL-CIO, Social Security Local No. 1760 and Department of Health and Human Services, Social Security Administration, 9 FLRA 813 (1982) (Proposal 1) (proposal that conditioned the assignment of duties to certain operators currently assigned to modules upon the assignment of all such operators to modules, found nonnegotiable because it directly interfered with management's right to assign work).

The proposal in this case requires the assignment of inspectional duties to PPQ Officers, rather than to the Union's National President, when other PPQ Officers, including GS-11 PPQ Officers, are available to perform that work. The proposal, therefore, establishes a criterion governing the Agency's decision to assign inspectional duties to PPQ Officers other than the National President and, therefore, imposes a substantive condition on management's ability to assign work. Accordingly, we find, consistent with Office of Hearings and Appeals, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 403-04 (1987).

We note that in National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339 (1992) (BATF) (Member Armendariz concurring in part and dissenting in part), we reexamined the relationship between management's right to assign work under section 7106(a)(2)(B) of the Statute and the authorization to negotiate official time for representational purposes under section 7131(d) of the Statute. See BATF, 45 FLRA at 346-48. Specifically, we considered the effect of the Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA) on the Authority's holding, in Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685 (1987) (MEPS), that section 7131(d) carves out an exception to section 7106(a) of the Statute. We found that matters pertaining to official time are distinguishable from the matters pertaining to negotiated grievance procedures that were involved in IRS v. FLRA and concluded that we would "continue to carve out an exception to section 7106 in order to maintain the negotiability, where otherwise warranted, of matters involving official time." BATF, 45 FLRA at 348.

In particular, matters that pertain to "'the use of official time under section 7131(d)--that is, its amount, allocation and scheduling--are negotiable absent an emergency or other special circumstances . . . .'" Id. at 347 (citing MEPS, 25 FLRA at 689). See, for example, National Federation of Federal Employees, Local 466 and U.S. Department of Agriculture, Forest Service, Regional Office, Atlanta, Georgia, 45 FLRA 1063 (1992) (Forest Service) (proposal allocating official time by requiring an agency to authorize official time for a minimum of five union representatives for the period of a fire camp fell within the exception to section 7106(a)(2)(B) that is provided under section 7131(d) of the Statute); BATF, 45 FLRA at 344-48 (provisions that established conditions under which employees and union representatives would be released from their duties to use official time concerned the scheduling of official time and fell within the carve out exception of section 7131(d)); MEPS (agency decision to change its policy regarding amounts of official time to be available to employees to meet with non-employee union representatives was negotiable under section 7131(d)).

As discussed above, the proposal in this case establishes a criterion governing the Agency's decision to assign inspectional duties to PPQ Officers other than the National President. The proposal in this case, unlike the proposals or provisions involved in Forest Service, BATF, and MEPS, concerns limitations on the Agency's right to assign work to PPQ Officers, rather than the allocation, scheduling, or amount of official time used by the National President to perform representational duties. Therefore, we find that this case is distinguishable from those cases.

Accordingly, consistent with Office of Hearings and Appeals, we conclude that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Because the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, we find that the proposal does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188 (1991); Department of Defense v. FLRA, 659 F.2d 1140, 1151-52 (D.C. Cir. 1981), cert. denied 455 U.S. 945 (1982). Moreover, in the absence of a claim by the Union that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we do not address that issue. See, for example, American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 175 and 181 (1993). Consequently, we conclude that the proposal is nonnegotiable. Because we find that the proposal directly interferes with management's right to assign work, we do not need to reach the Agency's additional contention that the proposal directly interferes with management's right to determine the personnel by which Agency operations shall be conducted.

VI. Order

The petition for review is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The record reflects that after the Union submitted the proposal to the Agency and the Agency alleged that it was nonnegotiable, the Union submitted a substantively modified version of the proposal to the Agency and the Agency alleged that the modified proposal was also nonnegotiable. However, we note that: (1) the Union did not file a petition for review as to the modified proposal; (2) the modified proposal differs substantively from the proposal set forth in the petition for review; and (3) the Agency did not address the negotiability of the modified proposal in its statement of position. Accordingly, we find that the modified proposal is not properly before us and will n