National Labor Relations Board Union (Labor Organization) and National Labor Relations Board, Washington, D.C. (Activity)  

 3 FLRA No. 81
 
 NATIONAL LABOR RELATIONS BOARD UNION
 (Labor Organization)
 
 and
 
 NATIONAL LABOR RELATIONS BOARD,
 WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-147
 
                      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 (5 U.S.C. 7101 ET SEQ.).
 
                            PRELIMINARY MATTER
 
    THE LABOR ORGANIZATION IN THE ABOVE-CAPTIONED MATTER FILED A PETITION
 FOR REVIEW BY THE AUTHORITY OF TWO PROPOSALS WHICH HAD BEEN ALLEGED BY
 THE ACTIVITY TO BE OUTSIDE THE DUTY TO BARGAIN UNDER FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), 5 U.S.C.  7101 ET SEQ.
  SUBSEQUENTLY, ON MAY 27, 1980, THE LABOR ORGANIZATION FILED AN
 AMENDMENT TO THE PETITION FOR REVIEW REQUESTING THAT IT BE PERMITTED TO
 WITHDRAW ITS REQUEST THAT THE AUTHORITY ISSUE A DECISION ON THE
 NEGOTIABILITY OF ITS "BROADEST POSSIBLE GROUP" PROPOSAL.  THE LABOR
 ORGANIZATION STATES THAT IT HAS MODIFIED ITS POSITION WITH RESPECT TO
 THAT PROPOSAL AND THAT AGREEMENT HAS BEEN REACHED WITH THE ACTIVITY ON
 THE MODIFIED PROPOSAL.  THE UNION CONTINUES TO REQUEST AN AUTHORITY
 DECISION CONCERNING THE NEGOTIABILITY OF ITS "NO DUAL LODGING EXPENSE"
 PROPOSAL.
 
    IN VIEW OF THE FOREGOING AGREEMENT BETWEEN THE PARTIES CONCERNING THE
 SUB SUBJECT OF THE "BROADEST POSSIBLE GROUP" PROPOSAL, THE REQUEST BY
 THE LABOR ORGANIZATION TO AMEND ITS PETITION FOR REVIEW IS GRANTED.
 
                              UNION PROPOSAL
 
    "NO DUAL LODGING EXPENSE" PROPOSAL
 
    CONSISTENT WITH OPERATING NEEDS, EMPLOYEES DETAILED (TO TEMPORARY
 DUTY STATIONS AWAY FROM
 
    THEIR PERMANENT DUTY STATIONS) PURSUANT TO THE TERMS OF THIS
 SUPPLEMENTAL AGREEMENT, WILL NOT
 
    BE OBLIGED TO INCUR OR SUFFER DUAL LODGING EXPENSES WHICH WOULD CAUSE
 THEIR TOTAL TRAVEL
 
    EXPENSES FOR ANY PARTICULAR DAY TO EXCEED THE MAXIMUM $50 PER DIEM
 RATE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS A MATTER
 WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY
 THE AGENCY, IS EXCLUDED FROM THE OBLIGATION TO BARGAIN BY REASON OF
 SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL DOES NOT VIOLATE SECTION 7106 OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS, 45 FED. REG.  3513(1980), THE AGENCY'S ALLEGATION
 THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET
 ASIDE.  /2/
 
    REASONS:  THE AGENCY CONTENDS THAT THE PROPOSAL IS EXCLUDED FROM THE
 DUTY TO BARGAIN BY SECTION 7106(A)(2)(A), WHICH RETAINS TO THE AGENCY
 THE RIGHT TO ASSIGN EMPLOYEES, AND BY SECTION 7106(A)(2)(B), WHICH
 SIMILARLY RETAINS THE RIGHT TO ASSIGN WORK.  IN THAT REGARD, THE AGENCY
 ARGUES THAT THE PHRASE "CONSISTENT WITH OPERATING NEEDS" DOES NOT
 PROVIDE SUFFICIENT DISCRETION TO ASSIGN EMPLOYEES OR WORK.
 SPECIFICALLY, THE AGENCY CONTENDS THAT IT WOULD NOT BE ABLE TO REASSIGN
 A DETAILED EMPLOYEE TO A DUTY STATION AWAY FROM THE SITE OF THE DETAIL
 WHEN SUCH REASSIGNMENT WOULD INVOLVE DUAL LODGING EXPENSES IF ANOTHER
 EMPLOYEE PERMANENTLY ASSIGNED TO THE DETAIL SITE IS AVAILABLE TO DO THE
 WORK.  THE UNION, HOWEVER, CONTENDS THAT THE PROPOSAL FALLS WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2) SINCE IT CONSTITUTES THE
 PROCEDURE WITHIN WHICH MANAGEMENT WILL ASSIGN PERSONS ON DETAILS, AND
 UNDER SECTION 7106(B)(3) AS AN APPROPRIATE ARRANGEMENT FOR PERSONS,
 ADVERSELY AFFECTED BY THE EXERCISE OF THE AGENCY'S AUTHORITY TO ASSIGN
 EMPLOYEES.  IN THIS REGARD, THE UNION CONCEDES THAT MANAGEMENT RETAINS
 THE ULTIMATE DISCRETION TO REASSIGN EMPLOYEES WHO ARE CURRENTLY ON
 DETAIL EVEN THOUGH SUCH EMPLOYEES MAY INCUR DUAL LODGING EXPENSES.
 
    SECTION 7106(A) OF THE STATUTE SPECIFIES VARIOUS RIGHTS RESERVED TO
 AGENCY MANAGEMENT.  SUBSECTION (B), HOWEVER, PROVIDES THAT MANAGEMENT'S
 EXERCISE OF ANY RIGHTS CONTAINED IN SUBSECTION (A) DOES NOT PRECLUDE
 NEGOTIATIONS ON THE PROCEDURES WHICH MANAGEMENT OFFICIALS WILL OBSERVE
 IN EXERCISING THOSE RIGHTS.  /3/
 
    THE PROPOSAL HERE WOULD REQUIRE THAT THE AGENCY NOT MAKE ASSIGNMENTS
 WHICH WOULD OBLIGE AN EMPLOYEE TO INCUR OR SUFFER DUAL LODGING EXPENSES
 IN EXCESS OF $50 PER DAY UNLESS THERE IS AN OPERATING NEED TO DO SO.  IN
 GENERAL, HOWEVER, THE UNION CONCEDES THAT AGENCY MANAGEMENT RETAINS THE
 AUTHORITY TO MAKE FINAL DECISIONS CONCERNING ASSIGNMENT OF EMPLOYEES.
 SPECIFICALLY, THE UNION CONCEDES THAT MANAGEMENT IS NOT REQUIRED TO
 COUNSEL EMPLOYEES CONCERNING ITS "OPERATING NEEDS," THAT THE PROPOSAL
 DOES NOT PERMIT AN EMPLOYEE TO REFUSE AN ASSIGNMENT, AND THAT THE AGENCY
 CAN, IN FACT, ASSIGN EMPLOYEES IN CIRCUMSTANCES WHICH WOULD OBLIGE AN
 EMPLOYEE TO INCUR DUAL LODGING EXPENSES.  FURTHER, THE PROPOSAL HERE
 LEAVES TO MANAGEMENT'S DISCRETION THE DETERMINATION OF ITS OPERATING
 NEEDS.
 
    ACCORDINGLY, THIS PROPOSAL MERELY ESTABLISHES A GENERAL REQUIREMENT
 THAT WHEN MANAGEMENT ASSIGNS DETAILEES IN CIRCUMSTANCES WHICH WOULD
 RESULT IN DUAL LODGING SITUATIONS, THE ASSIGNMENT MUST BE CONSISTENT
 WITH OPERATING NEEDS.  THUS, SINCE THE AGENCY RETAINS THE DISCRETION TO
 DETERMINE ITS OPERATING NEEDS AND, SUBSEQUENTLY, TO ASSIGN EMPLOYEES,
 THE PROPOSAL HERE CONSTITUTES A PROCEDURE WHICH IS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(2), AND DOES NOT VIOLATE MANAGEMENT'S
 RIGHTS UNDER SECTION 7106(A).
 
    ISSUED, WASHINGTON, D.C., JUNE 27, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2) OF THE STATUTE PROVIDES IN PERTINENT 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 HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED
 . . . .
 
    /2/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
 
    /3/ IN THIS REGARD, SECTION 7106(B)(2) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION.