American Federation of Government Employees, Local 1622, AFL-CIO (Union) and Department of the Army, Fort Meade, Maryland (Activity) 

 4 FLRA No. 66
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1622
 Union
 
 and
 
 DEPARTMENT OF THE ARMY
 FORT MEADE, MARYLAND
 Activity
 
                                            Case No. 0-NG-128
 
                 DECISION AND ORDER 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) AND (5 U.S.C.
 7101-7135).
 
                           THE UNION'S PROPOSAL
 
    HOURS OF WORK FOR EMPLOYEES IN THE UNIT WILL NOT BE REDUCED WITHOUT
 JUST CAUSE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNS A MATTER WITHIN
 THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, OR WHETHER, AS ALLEGED
 BY THE AGENCY, IT IS DETERMINATIVE OF MATTERS WITHIN THE AMBIT OF
 SECTION 7106(B)(1) OF THE STATUTE AND, THUS, NEGOTIABLE ONLY "AT THE
 ELECTION OF THE AGENCY." /1/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL CONCERNS A MATTER WHICH
 IS WITHIN THE OBLIGATION TO BARGAIN BY REASON OF SECTION 7106(B)(3) OF
 THE STATUTE.  /2/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
 PROPOSAL.  /3/
 
    REASONS:  THE AGENCY CONTENDS THE UNION PROPOSAL WOULD INTERFERE WITH
 THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER SECTION 7106(B)(1).  THE
 AGENCY MAINTAINS, IN THIS CONNECTION, THE PROPOSAL WOULD REQUIRE THE
 AGENCY TO BARGAIN OVER THE "NUMBERS, TYPES, AND GRADES OF EMPLOYEES . .
 . ASSIGNED TO ANY . . . WORK PROJECT, OR TOUR OF DUTY, . . ." CONTRARY
 TO THE AGENCY'S RIGHT TO ELECT WHETHER TO BARGAIN ON THESE MATTERS,
 BECAUSE IT IS INTEGRALLY RELATED TO AND CONSEQUENTLY DETERMINATIVE OF
 SUCH NUMBERS, TYPES, AND GRADES OF EMPLOYEES SO ASSIGNED.
 
    SECTION 7106(B)(1) OF THE STATUTE MAKES THE NUMBERS, TYPES, AND
 GRADES OF EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION, WORK
 PROJECT OR TOUR OF DUTY NEGOTIABLE AT THE ELECTION OF THE AGENCY.
 HOWEVER, SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDES THAT
 MANAGEMENT HAS A DUTY TO BARGAIN ON PROCEDURES WHICH MANAGEMENT
 OFFICIALS WILL OBSERVE IN EXERCISING ITS RIGHT AND ON APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF THE
 RIGHT. /4/
 
    THE PROPOSAL HERE ON ITS FACE DOES NOT EXPLICITLY RELATE TO THE
 AGENCY'S DECISION AS TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 ASSIGNED TO WORK PROJECTS OR TOURS OF DUTIES.  MOREOVER, THE AGENCY HAS
 NOT DEMONSTRATED AND THE RECORD DOES NOT OTHERWISE DISCLOSE, IN WHAT
 MANNER THE PROPOSAL, AS THE AGENCY CONTENDS, IS INTEGRALLY RELATED TO
 AND THEREBY DETERMINATIVE OF THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 SO ASSIGNED.  RATHER, THE DISPUTED PROPOSAL THAT HOURS OF WORK NOT BE
 REDUCED WITHOUT "JUST CAUSE" WOULD ESTABLISH A GENERAL, NONQUANTITATIVE
 CONTRACTUAL REQUIREMENT BY WHICH MANAGEMENT'S REDUCTION OF THE HOURS OF
 WORK OF AN INDIVIDUAL COULD BE EVALUATED IN A SUBSEQUENT GRIEVANCE BY
 THE EMPLOYEE WHO BELIEVES HE OR SHE HAS BEEN ADVERSELY AFFECTED BY THE
 AGENCY ACTION.
 
    THE AUTHORITY ADDRESSED THE ISSUE OF BARGAINING OVER ARRANGEMENTS FOR
 ADVERSELY AFFECTED EMPLOYEES IN NATIONAL TREASURY EMPLOYEE UNION AND
 DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO.
 119(1980), WHERE THE AUTHORITY APPLIED SECTION 7106(A)(2)(A) AND (B) OF
 THE STATUTE CONCERNING THE RIGHTS OF MANAGEMENT TO DIRECT EMPLOYEES AND
 ASSIGN WORK.  ANALYZING THE PURPOSE AND FUNCTION OF CRITICAL ELEMENTS
 AND PERFORMANCE STANDARDS WHICH WERE THERE INVOLVED, THE AUTHORITY
 FOUND
 THE RIGHT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER THE STATUTE INCLUDES
 THE AUTHORITY TO ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE STANDARDS.
 ACCORDINGLY, THE AUTHORITY HELD THAT THE PROPOSAL IN THAT CASE WHICH
 WOULD HAVE IDENTIFIED CRITICAL ELEMENTS AND ESTABLISHED QUANTITATIVE
 PERFORMANCE STANDARDS FOR JOB ELEMENTS WAS NOT WITHIN THE DUTY TO
 BARGAIN.  HOWEVER, THE DECISION EMPHASIZED AN AGENCY HAS A DUTY TO
 BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE ON APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
 OF ITS AUTHORITY UNDER SECTION 7106(A), I.E., ACTIONS TAKEN UNDER SUCH
 STANDARDS.  THUS, THE AUTHORITY STATED (AT 13 OF ITS DECISION) THAT
 NOTHING IN ITS DECISION WOULD PRECLUDE AN EXCLUSIVE REPRESENTATIVE FROM
 NEGOTIATING CRITERIA FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH
 MANAGEMENT HAS ESTABLISHED.
 
    THE AUTHORITY APPLIED THIS PRINCIPLE IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980) AT 6-11 OF THE
 DECISION TO A PROPOSAL WHICH IN PART PROVIDED THAT PERFORMANCE STANDARDS
 "WILL BE FAIR AND EQUITABLE." RELYING ON BUREAU OF THE PUBLIC DEBT, THE
 AUTHORITY CONCLUDED THAT THE PROPOSAL CONSTITUTED A "GENERAL,
 NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF CRITICAL
 ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT MAY
 SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES
 THAT HE HAS BEEN ADVERSELY AFFECTED BY THE APPLICATION OF MANAGEMENT'S
 PERFORMANCE STANDARD TO HIM . . ." HENCE, THE AUTHORITY RULED THE
 PROPOSED REQUIREMENT WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7106(B)(3) OF THE STATUTE.
 
    AS ALREADY STATED, THE DISPUTED PROPOSAL IN THE INSTANT CASE
 SIMILARLY WOULD ESTABLISH A GENERAL NONQUANTITATIVE REQUIREMENT BY WHICH
 MANAGEMENT'S REDUCTION OF THE HOURS OF WORK OF INDIVIDUAL EMPLOYEES
 COULD BE SUBSEQUENTLY EVALUATED IN A GRIEVANCE BY THE EMPLOYEE WHO
 BELIEVES HE OR SHE HAS BEEN ADVERSELY AFFECTED BY THE AGENCY'S ACTION.
 THUS, AN EMPLOYEE WHOSE HOURS OF WORK HAVE BEEN REDUCED MAY, IN A
 GRIEVANCE OF SUCH ACTION PURSUANT TO SECTION 7121 OF THE STATUTE, RAISE
 THE ISSUE OF WHETHER THE AGENCY'S ACTION, AS APPLIED TO HIM OR HER,
 MEETS THE CONTRACTUAL REQUIREMENT.  /5/ REVIEW BY AN ARBITRATOR WOULD
 NOT PRECLUDE THE AGENCY FROM REDUCING HOURS OF WORK IN ACCORDANCE WITH
 THE EMPLOYEE'S JOB DESCRIPTION, NOR WOULD IT RESULT IN THE SUBSTITUTION
 OF AN ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY.  IT WOULD SIMPLY
 DETERMINE IF THE AGENCY'S DECISION REGARDING THE REDUCTION IN HOURS AS
 APPLIED TO THE GRIEVANT COMPLIED WITH THE "JUST CAUSE" REQUIREMENT OF
 THE PARTIES' AGREEMENT.
 
    ACCORDINGLY, BASED ON THE FOREGOING, THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
 7106(B)(1) CANNOT BE SUSTAINED.  THE PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN APPROPRIATE
 ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S AUTHORITY
 UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER ON NEGOTIABILITY ISSUE IN THE
 SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES BELOW:
 
    MR. RONALD D. KING, DIRECTOR
 
    CONTRACT AND APPEALS DIVISION
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C.  20005
 
    MR. CHARLES E. THOMAS, ACTING CHIEF
 
    LABOR AND EMPLOYEE RELATIONS DIVISION
 
    OFFICE OF THE DEPUTY CHIEF OF STAFF
 
    FOR PERSONNEL
 
    DEPARTMENT OF THE ARMY
 
    ROOM 2C655, THE PENTAGON
 
    WASHINGTON, D.C.  20310
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106(B)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1198) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
 
    /2/ 5 U.S.C SECTION 7106(B)(2) AND (3) PROVIDES:
 
                       SEC. 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (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;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /3/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO ITS MERIT.
 
    /4/ NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE
 SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA NO. 106(1979) AT 2 TO 3 OF
 THE DECISION.
 
    /5/ CF. NATIONAL TREASURY EMPLOYEE'S UNION, CHAPTER 6 AND INTERNAL
 REVENUE SERVICE, NEW ORLEANS DISTRICT OFFICE, 1 FLRA NO. 102(1979)
 REQUIREMENT THAT CERTAIN AGENCY DETERMINATIONS "BE MADE IN A FAIR,
 OBJECTIVE AND EQUITABLE MANNER" IS WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7106(B)(2).