National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (Union) and U.S. Department of Labor, Washington, D.C. (Agency)
[ v03 p290 ]
03:0290(44)NG
The decision of the Authority follows:
3 FLRA No. 44
NATIONAL COUNCIL OF FIELD LABOR LOCALS,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union
and
U.S. DEPARTMENT OF LABOR,
WASHINGTON, D.C.
Agency
Case No. 0-NG-79
DECISION ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101-7135.
THE THREE UNION PROPOSALS IN ISSUE AROSE FROM NEGOTIATIONS TO
ESTABLISH A SPECIAL PLACEMENT PLAN TO PROVIDE PLACEMENT OPPORTUNITIES
FOR OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS EMPLOYEES IN THE
UNION'S BARGAINING UNIT WHO WERE ADVERSELY AFFECTED BY THE CONSOLIDATION
OF THE E.O. 11246 CONTRACT COMPLIANCE FUNCTION IN THE DEPARTMENT OF
LABOR.
UNION PROPOSAL I
E. BASIC REQUIREMENTS
. . . .
2. AREA OF ELIGIBILITY
A. IN RECOGNITION OF THE MERIT PRINCIPLES ESTABLISHED BY THE CIVIL
SERVICE REFORM ACT OF
1978, AND THE INHERENT DIFFERENCES BETWEEN A SUPERVISORY AND A
NONSUPERVISORY POSITION, THE
PARTIES AGREE THAT THE COMPETITIVE PROCEDURES OF THE DEPARTMENT'S
MERIT PROMOTION PLAN WILL BE
UTILIZED WHEN FILLING SUPERVISORY OR MANAGEMENT POSITIONS WITH
BARGAINING UNIT EMPLOYEES.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL I IS OUTSIDE THE AMBIT OF THE
DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ AS ALLEGED BY THE
AGENCY.
CONCLUSION: UNION PROPOSAL I IS OUTSIDE THE SCOPE OF THE DUTY TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 35123,
THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN ITS
DUTY TO BARGAIN IS SUSTAINED. /2/
REASONS: THE AGENCY ASSERTS THAT UNION PROPOSAL I IS OUTSIDE
MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE
BECAUSE IT RELATES TO THE METHOD THAT MANAGEMENT WILL USE IN FILLING
SUPERVISORY AND MANAGEMENT POSITIONS, WHICH ARE NON-BARGAINING UNIT
POSITIONS. THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION. THE
PROPOSAL PUTS CONDITIONS ON FILLING SUPERVISORY AND MANAGEMENT POSITIONS
WHICH ARE OUTSIDE THE UNIT AND MAY NOT BE INCLUDED IN APPROPRIATE UNITS
BY OPERATION OF SECTION 7112(B)(1) OF THE STATUTE. AN EXCLUSIVE
REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS, HOWEVER, EXTEND ONLY
TO EMPLOYEES IN THE UNIT, UNDER SECTION 7114(A)(1). /3/ FURTHERMORE,
THE DEFINITION OF "COLLECTIVE BARGAINING" FOUND IN SECTION 7103(A)(12)
AND SET OUT AT FOOTNOTE 1, SUPRA, RESTRICTS THE SCOPE OF THE OBLIGATION
TO BARGAIN IN GOOD FAITH TO MATTERS AFFECTING THE CONDITIONS OF
EMPLOYMENT OF EMPLOYEES IN AN APPROPRIATE UNIT. CONSEQUENTLY, THE
AGENCY HAS NO OBLIGATION TO BARGAIN OVER MATTERS RELATING TO THE
NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL. THUS, AS THE
PROPOSAL GOES BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE
REPRESENTATIVE AND DOES NOT DIRECTLY RELATE TO CONDITIONS OF EMPLOYMENT
OF UNIT EMPLOYEES, IT IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
UNION PROPOSALS II
E. BASIC REQUIREMENTS
2. AREA OF ELIGIBILITY
. . . .
B. BARGAINING UNIT EMPLOYEES TO BARGAINING UNIT POSITIONS
. . . .
THE PROCEDURES FOR REASSIGNMENT ARE AS FOLLOWS:
. . . .
THE MOST SENIOR QUALIFIED VOLUNTEER IN TERMS OF SCD (SERVICE
COMPUTATION DATE) WILL BE
OFFERED THE REASSIGNMENT. IF NO ELIGIBLE QUALIFIED EMPLOYEE
VOLUNTEERS FOR THE PARTICULAR
VACANT POSITION, THE POSITION, IF TO BE FILLED, WILL THEN BE FILLED
THROUGH THE NORMAL
STAFFING PROCEDURES OUTLINED IN ARTICLE 20 OF THE MASTER COLLECTIVE
BARGAINING AGREEMENT.
C. THE PROCEDURES OUTLINED ABOVE WILL BE USED ON A CONTINUING BASIS
UNTIL ALL ELIGIBLE
EMPLOYEES HAVE BEEN PLACED IN A PERMANENT POSITION OR UNTIL THE
EXTENDED DETAIL AUTHORITY
EXPIRES, WHICHEVER IS EARLIER.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL II
VIOLATES THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. /4/
OPINION
CONCLUSION: UNION PROPOSAL II VIOLATES THE RIGHT OF THE AGENCY TO
ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE DISPUTED
PROPOSAL IS NOT WITHIN ITS DUTY TO BARGAIN IS SUSTAINED.
REASONS: THE AGENCY CONTENDS THAT UNION PROPOSAL II VIOLATES ITS
RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE
BECAUSE UNDER THE PROPOSAL, THE SELECTION OF EMPLOYEES FOR REASSIGNMENT
WOULD BE BASED TOTALLY ON AN EMPLOYEE'S SERVICE COMPUTATION DATE, WHICH
WOULD CLEARLY INTERFERE WITH THE AGENCY'S AUTHORITY TO DECIDE UPON THE
SELECTION OF AN INDIVIDUAL ONCE A DECISION HAD BEEN MADE TO FILL A
POSITION. THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION. IN THIS
REGARD, THE AUTHORITY STATED WHEN RULING ON A SIMILAR PROPOSAL THAT THE
DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED IS IMPLICIT IN
THE RIGHT TO ASSIGN. /5/ IT FOLLOWS THAT A PROCEDURE FOR SELECTING
EMPLOYEES FOR REASSIGNMENT SOLELY ON THE BASIS OF THE MOST SENIOR
QUALIFIED VOLUNTEER IN TERMS OF SERVICE COMPUTATION DATE REMOVES FROM
MANAGEMENT THE DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE
REASSIGNED, AN ESSENTIAL PART OF THE DECISION TO REASSIGN. THUS,
BECAUSE UNION PROPOSAL II INTERFERES WITH THE AGENCY'S RIGHT TO REASSIGN
EMPLOYEES, IT IS IN VIOLATION OF SECTION 7106(A)(2)(A).
UNION PROPOSAL III
H. THE CITED PERMANENT REASSIGNMENTS WHICH THE DEPARTMENT HAS
ORDERED PRIOR TO FINAL
AGREEMENT OF THIS PLAN SHALL BE RESCINDED AND HANDLED IN ACCORDANCE
WITH THE PROVISIONS OF
THIS PLAN.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS THE AGENCY ALLEGES, UNION PROPOSAL III IS
OUTSIDE THE AMBIT OF THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
STATUTE. /6/
OPINION
CONCLUSION: UNION PROPOSAL III IS OUTSIDE THE SCOPE OF THE DUTY TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513,
THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN ITS
DUTY TO BARGAIN IS SUSTAINED.
REASONS: THE AGENCY ASSERTS THAT UNION PROPOSAL III IS OUTSIDE
MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE
BECAUSE THE CLEAR INTENT OF THE PROPOSAL IS TO NEGOTIATE THE
CRITERIA/METHOD THAT WILL BE USED IN FILLING NON-BARGAINING UNIT
POSITIONS. FOR THE REASONS DISCUSSED IN CONNECTION WITH UNION PROPOSAL
I, HEREIN, THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION TO THE
EXTENT THAT THE LANGUAGE OF THE PROPOSAL WOULD REQUIRE THE RESCISSION OF
ASSIGNMENTS INVOLVING NON-BARGAINING UNIT EMPLOYEES. THUS, TO THE
EXTENT THAT THE SCOPE OF UNION PROPOSAL III AFFECTS NON-BARGAINING UNIT
EMPLOYEES, IT IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
ISSUED, WASHINGTON, D.C., MAY 29, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . .
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . .
/2/ IN VIEW OF THE DECISION HEREIN THAT THE UNION'S PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN, IT IS UNNECESSARY TO CONSIDER THE REMAINING
CONTENTION OF THE AGENCY THAT THE PROPOSAL CONFLICTS WITH SECTION
7106(A)(2)(C) OF THE STATUTE.
/3/ SECTION 7114(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART:
SECTION 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
THE UNIT.
/4/ SECTION 7106(A)(2)(A) OF THE STATUTE PROVIDES, IN RELEVANT PART:
SECTION 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO . . . ASSIGN . . . EMPLOYEES IN THE AGENCY . . .
/5/ 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 (JANUARY 31, 1980).
/6/ NOTE 1, SUPRA.