American Federation of Government Employees, International Council of U.S. Marshals Service Locals (Union) and U.S. Department of the Justice, U.S. Marshals Service (Agency) 

 8 FLRA No. 62
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, INTERNATIONAL
 COUNCIL OF U.S. MARSHALS SERVICE LOCALS
 Union
 
 and
 
 U.S. DEPARTMENT OF JUSTICE
 U.S. MARSHALS SERVICE
 Agency
 
                                            Case No. O-NG-309
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN 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 RAISES ISSUES CONCERNING THE NEGOTIABILITY OF THE FOLLOWING FIVE
 UNION PROPOSALS.  UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
 INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
                           UNION PROPOSALS 1 - 4
 
    THE EMPLOYER AGREES TO REQUEST VOLUNTEERS TO SERVE ON THE AIR LIFT
 PROGRAM.  THESE
 
    VOLUNTEERS WILL BE PLACED ON A VOLUNTEER BASIS AND ASSIGNMENTS WILL
 BE ROTATED EQUITABLY.
 
    WHEN THERE ARE NO VOLUNTEERS OR NOT ENOUGH VOLUNTEERS TO STAFF A
 FLIGHT, DEPUTIES WILL BE
 
    SELECTED FROM THE SENIORITY WORKED.  THE DEPUTY WITH THE LEAST AMOUNT
 OF OVERTIME WILL BE
 
    ASSIGNED.
 
    DEPUTIES MAY SWITCH ASSIGNMENTS WITH OTHER DEPUTIES TO ACCOMMODATE
 PERSONAL EMERGENCIES,
 
    HARDSHIPS, ETC., PROVIDED BOTH DEPUTIES AGREE.
 
    NO ONE WILL BE SELECTED MORE THAN ONCE FOR ASSIGNMENT TO THE AIR LIFT
 PROGRAM UNTIL ALL
 
    OTHER EMPLOYEES ON THE SENIORITY ROSTER HAVE BEEN SELECTED OR
 EXEMPTED BY THEIR REQUEST UNLESS
 
    THE EMPLOYEE IS SELECTED FROM THE VOLUNTEER ROSTER.
 
    THE PROPOSALS HERE IN DISPUTE BEAR NO MATERIAL DIFFERENCE FROM
 PROPOSALS CONCERNING THE ROTATION OF ALTERNATE FOREMEN/SUPERVISORS IN
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE
 LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604,
 630-32 (1980), ENFORCED AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
 1981).  IN THAT CASE, THE AUTHORITY FOUND THAT THOSE PROPOSALS WOULD
 ELIMINATE THE DISCRETION TO ASSIGN WORK TO PARTICULAR EMPLOYEES WHICH IS
 INHERENT IN THE RIGHT "TO ASSIGN WORK" UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE.  THEREFORE, FOR THE REASONS FULLY SET FORTH IN THAT
 DECISION, THE AUTHORITY FINDS THAT THE INSTANT PROPOSALS CONFLICT WITH
 MANAGEMENT'S RIGHT TO ASSIGN WORK AND THEREFORE ARE OUTSIDE THE DUTY TO
 BARGAIN.  CF.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 916 AND TINKER AIR FORCE BASE, OKLAHOMA, 7 FLRA NO. 45 (1981)
 (UNION PROVISIONS I, PARAGRAPH (3) AND II CONCERNING DETAILS PREVENTED
 MANAGEMENT FROM DETERMINING WHICH PARTICULAR EMPLOYEE WOULD BE DETAILED
 AND, THEREFORE, WERE INCONSISTENT WITH MANAGEMENT'S RIGHT TO ASSIGN
 EMPLOYEES).
 
                             UNION PROPOSAL 5
 
    ASSIGNMENTS TO THE AIR LIFT PROGRAM WILL NOT BE MADE AS A REWARD OR
 PENALTY, NOR WILL THEY
 
    BE ARBITRARY OR CAPRICIOUS.
 
    SECTION 7106(B)(2) OF THE STATUTE /1/ MANDATES THAT THE EXISTENCE OF
 MANAGEMENT RIGHTS NOT PRECLUDE NEGOTIATIONS CONCERNING PROCEDURES
 WHICH
 MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS.  BASED
 UPON THE RECORD IN THE INSTANT CASE, THE ESSENCE OF THE UNION'S PROPOSAL
 IS TO ENSURE THAT ASSIGNMENTS TO THE AIR LIFT PROGRAM WILL BE NEITHER
 ARBITRARY NOR CAPRICIOUS, AS OPPOSED TO BARGAINING ABOUT WHICH EMPLOYEES
 WILL TAKE PART IN THE PROGRAM.  THAT IS, ON ITS FACE, CONTRARY TO THE
 AGENCY'S CONTENTIONS, THE PROPOSAL DOES NOT INTERFERE WITH MANAGEMENT'S
 DISCRETION TO MAKE ASSIGNMENTS BASED ON THE PERSONNEL REQUIREMENTS OF
 THE WORK.  SEE WRIGHT-PATTERSON, SUPRA, AY 613.  RATHER, IT ESTABLISHES
 A GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH MANAGEMENT'S ASSIGNMENT
 OF WORK MAY SUBSEQUENTLY BE EVALUATED.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 3 FLRA 784, 789-94 (1980).  THEREFORE, THE
 PROPOSAL IN QUESTION IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7106(B)(2) OF THE STATUTE.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW AS TO PROPOSALS 1 - 4 BE, AND IT HEREBY IS,
 DISMISSED.  IT IS FURTHER ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR
 AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON PROPOSAL 5.  /2/
 
    ISSUED, WASHINGTON, D.C., MARCH 26, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B, APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7106(B)(2) OF THE STATUTE 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 (.)
 
    /2/ IN SO FINDING THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS THEREOF.