National Labor Relations Board Union, Local 19 (Union) and National Labor Relations Board, Region 19 (Activity) 

 2 FLRA No. 98
 
 NATIONAL LABOR RELATIONS BOARD UNION,
 LOCAL 19
 (Union)
 
 and
 
 NATIONAL LABOR RELATIONS BOARD,
 REGION 19
 (Activity)
 
                                            Case No. 0-NG-131
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    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) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
   .          .          .          .
 
 
    2.  UNTIL SUCH TIME AS THE OFFICE OF THE GENERAL COUNSEL AND THE
 NATIONAL LABOR RELATIONS
 
    BOARD UNION AGREE TO EXCLUDE THE CLERICAL ASSISTANT FROM THE CLERICAL
 UNIT OR AN APPROPRIATE
 
    "PETITION" IS FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY, IT IS
 AGREED THAT ASSIGNMENTS
 
    OF WORK TO THE CLERICAL ASSISTANT WILL BE LIMITED TO CLERICAL DUTIES
 AND ROUTINE
 
    ADMINISTRATIVE DETAIL INCIDENT TO THE OFFICE MANAGER'S EXERCISE OF
 HIS OR HER RESPONSIBILITIES
 
    UNLESS THE CLERICAL ASSISTANT IS DULY APPOINTED THE ACTING OFFICE
 MANAGER IN THE ABSENCE OF
 
    THE OFFICE MANAGER.
 
    3.  THE CLERICAL ASSISTANT WILL NOT, UNLESS DULY DESIGNATED AS ACTING
 OFFICE MANAGER, HE
 
    REQUIRED TO PERFORM OR PARTICIPATE IN THE FOLLOWING RESPONSIBILITIES
 OF THE OFFICE MANAGER.
 
    (A) DETERMINE THE PRESENCE AND ABSENCE OF EMPLOYEES IN CONNECTION
 WITH THEIR ARRIVAL AND
 
    DEPARTURE;
 
    (B) ASCERTAIN THE REASONS FOR, OR PRESCRIBE THE APPROPRIATE ACTION TO
 BE TAKEN INCONNECTION
 
    WITH, THE LATE ARRIVAL OR EARLY DEPARTURE OF CLERICAL EMPLOYEES
 (WHICH IS NOT TO SAY THAT THE
 
    CLERICAL ASSISTANT MAY NOT BE ASSIGNED TO PERFORM THE ROUTINE
 ADMINISTRATIVE AND CLERICAL
 
    FUNCTION OF RECORDING TIME AND ATTENDANCE);
 
    (C) THE CONDUCT OF PRE-HIRE INTERVIEWS OF PROSPECTIVE EMPLOYEES OR
 VIEWS OF QUALIFICATIONS
 
    FOR HIRE SOLICITED;
 
    (D) THE CONDUCT OF CORRECTIVE, DISCIPLINARY AND/OR APPRAISAL
 INTERVIEWS OF EMPLOYEES OR
 
    COMMENTS ON EMPLOYEE WORK PERFORMANCE SOLICITED;
 
    (E) MAKE ASSIGNMENTS OF WORK OF A MANDATORY NATURE AS OPPOSED TO
 ROUTINE WORK COORDINATION
 
    DISTRIBUTION OF WORK;
 
    (F) THE FORMULATION OR CONDUCT OF LABOR RELATIONS.
 
    4.  IF IN CONNECTION WITH THE FOREGOING A QUESTION SHOULD ARISE
 REGARDING THE
 
    APPROPRIATENESS OF DUTIES ASSIGNED THE CLERICAL ASSISTANT, THE
 PARTIES WILL DISCUSS THE
 
    ASSIGNMENT BEFORE IT IS IMPLEMENTED.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL, THAT THE AGENCY ASSIGN
 CERTAIN DUTIES TO THE CLERICAL ASSISTANT TO THE OFFICE MANAGER, ONLY IF
 THE CLERICAL ASSISTANT IS DULY APPOINTED ACTING OFFICE MANAGER IN THE
 ABSENCE OF THE OFFICE MANAGER, WOULD VIOLATE THE STATUTE, AS ALLEGED BY
 THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONFLICTS WITH SECTION 7106(A)(2)(B) OF THE
 STATUTE.  /1/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE
 AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN IS SUSTAINED.
 
    REASONS:  THE RECORD INDICATES THAT THE UNION'S PROPOSAL WOULD
 PROHIBIT THE ASSIGNMENT OF CERTAIN DUTIES AND WORK TO THE CLERICAL
 ASSISTANT TO THE OFFICE MANAGER, EXCEPT IN THE ABSENCE OF THE OFFICE
 MANAGER.  THAT IS, THE PROPOSAL EXPRESSLY WOULD CONDITION MANAGEMENT'S
 ASSIGNING OF SUCH DUTIES AND WORK TO THE CLERICAL ASSISTANT UPON THE
 ABSENCE OF THE OFFICE MANAGER.  THE AGENCY RETAINS THE RIGHT UNDER
 SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK TO POSITIONS OR
 EMPLOYEES.  /2/ THE DISPUTED PROPOSAL, HOWEVER, WOULD ESTABLISH A
 CONDITION (THE ABSENCE OF THE OFFICE MANAGER) UPON MANAGEMENT'S ABILITY
 TO ASSIGN THE WORK INVOLVED.  THE PROPOSAL THEREBY WOULD ELIMINATE THE
 DISCRETION INHERENT IN MANAGEMENT'S RIGHT TO ASSIGN WORK, I.E., WHICH
 POSITION OR EMPLOYEE THE WORK WILL BE ASSIGNED TO, AND WHEN IT WILL BE
 ASSIGNED.  /3/ THUS, CONTRARY TO THE UNION'S CONTENTIONS THE DISPUTED
 PROPOSAL WOULD NOT BE LIMITED TO ESTABLISHING THE ESSENTIALLY PROCEDURAL
 REQUIREMENT THAT WHEN THE CLERICAL ASSISTANT TO THE OFFICE MANAGER IS
 ASSIGNED TO PERFORM OFFICE MANAGER DUTIES, THAT INDIVIDUAL WILL BE
 DESIGNATED AS ACTING OFFICE MANAGER.  RATHER, IT WOULD ESTABLISH A
 CONDITION ON MANAGEMENT'S RIGHT TO ASSIGN CERTAIN DUTIES AND WORK TO THE
 CLERICAL ASSISTANT TO THE OFFICE MANAGER IN VIOLATION OF SECTION
 7106(A)(2)(B) OF THE STATUTE.
 
    BASED ON THE FOREGOING, THE DISPUTED PROPOSAL WOULD VIOLATE SECTION
 7106(A)(2)(B) OF THE STATUTE.  ACCORDINGLY, THE AGENCY'S ALLEGATION THAT
 THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 /4/
 
    ISSUED, WASHINGTON, D.C., MARCH 7, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2)(B) OF THE STATUTE (92 STAT. 1198) 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 AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (B) TO ASSIGN WORK, . . .
 
    /2/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO CASE NO.
 O-NG-40, 2 FLRA NO. 77, (JAN. 31, 1980), AT 20 OF THE DECISION.
 
    /3/ ID. AT 28 OF THE DECISION.
 
    /4/ SINCE THE DISPUTED PROPOSAL VIOLATES SECTION 7106(A)(2)(B) OF THE
 STATUTE, IT IS UNNECESSARY TO CONSIDER THE AGENCY'S ADDITIONAL
 CONTENTION THAT THE PROPOSAL CONFLICTS WITH A CONTROLLING NATIONAL
 AGREEMENT BETWEEN THE PARTIES.