09:0663(74)NG - AFGE, National Joint Council of Food Inspection Locals and Agriculture, Food Safety and Quality Service, Washington, DC -- 1982 FLRAdec NG

 9 FLRA No. 74
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, NATIONAL
 JOINT COUNCIL OF FOOD INSPECTION
 LOCALS
 Union
 
 and
 
 DEPARTMENT OF AGRICULTURE,
 FOOD SAFETY AND QUALITY SERVICE,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-236
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND RAISES THE QUESTION
 OF THE NEGOTIABILITY OF TWO UNION PROPOSALS.  UPON CAREFUL CONSIDERATION
 OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY
 MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    THE PARTIES AGREE THAT THE MISSION OF THE SERVICE SHOULD ORDINARILY
 BE ACCOMPLISHED WITHIN
 
    A FORTY (40) HOUR WORKWEEK.  HOWEVER, IT IS RECOGNIZED THAT PERIODIC
 USE OF OVERTIME IS
 
    SOMETIMES NECESSARY TO THE CONDUCT OF OPERATIONS.  IF SLAUGHTER
 OVERTIME IS REQUIRED, IT WILL
 
    BE WORKED BY THE INSPECTOR COVERING THE ASSIGNMENT DURING THE REGULAR
 TOUR OF DUTY EXCEPT WHEN
 
    A QUALIFIED UNIT EMPLOYEE IS NOT AVAILABLE OR IN CASES OF EMERGENCY.
 
    IF PROCESSING OVERTIME IS REQUIRED, IT WILL BE WORKED BY THE
 INSPECTOR COVERING THE
 
    ASSIGNMENT DURING THE NORMAL TOUR OF DUTY EXCEPT IF OTHERWISE
 PROVIDED IN THE EQUALIZATION OF
 
    OVERTIME PROVISIONS OF AN AREA AGREEMENT OR THE COMBINATION OF
 ASSIGNMENTS IN SITUATIONS OF
 
    REDUCED INSPECTION REQUIREMENTS.  HOWEVER, A SUPERVISORY EMPLOYEE
 SHALL NOT BE UTILIZED TO
 
    COVER A PROCESSING ASSIGNMENT EXCEPT WHEN A QUALIFIED UNIT EMPLOYEE
 IS NOT AVAILABLE OR IN
 
    CASES OF EMERGENCY.  (THE UNDERSCORED LANGUAGE IS IN DISPUTE.)
 
                                 QUESTION
 
    THE QUESTION IS WHETHER THE UNDERSCORED PORTIONS OF THE PROPOSAL ARE
 OUTSIDE THE DUTY TO BARGAIN BECAUSE THEY CONFLICT WITH THE AGENCY'S
 RIGHTS TO ASSIGN EMPLOYEES OR WORK UNDER SECTION 7106 OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE LAST SENTENCE OF THE PROPOSAL CONFLICTS
 WITH THE AGENCY'S RIGHT TO ASSIGN WORK TO EMPLOYEES PURSUANT TO SECTION
 7106(A)(2)(B) OF THE STATUTE AND, THEREFORE, IS OUTSIDE THE DUTY TO
 BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS, IT IS ORDERED THAT THE PETITION FOR REVIEW AS
 REGARDS THE LAST SENTENCE OF THE PROPOSAL BE, AND IT HEREBY IS,
 DISMISSED.  THE REMAINDER OF PROPOSAL 1 IS WITHIN THE DUTY TO BARGAIN.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, IT IS ORDERED THAT AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE REMAINDER OF
 THE PROPOSAL.  /1/
 
    REASONS:  THE PROPOSAL EXPRESSLY PROVIDES IN THE LAST UNDERSCORED
 SENTENCE THAT MANAGEMENT COULD NOT ASSIGN DUTIES NORMALLY PERFORMED BY
 EMPLOYEES IN THE BARGAINING UNIT TO SUPERVISORS, EXCEPT IN SPECIFIC
 CIRCUMSTANCES.  IT WOULD, IN THIS REGARD, IMPROPERLY LIMIT AND THEREBY
 DIRECTLY INTERFERE WITH THE DISCRETION, INHERENT IN MANAGEMENT'S RIGHT
 TO "ASSIGN WORK," TO DETERMINE WHICH EMPLOYEES WILL RECEIVE PARTICULAR
 WORK ASSIGNMENTS.  CONSEQUENTLY, THE PROPOSAL TO THAT EXTENT IS
 INCONSISTENT WITH SECTION 7106(A)(2)(B) AND IS THUS OUTSIDE THE DUTY TO
 BARGAIN.  NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS AND DEPARTMENT
 OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, 6 FLRA NO. 106(1981)
 (PROPOSAL VI).  /2/
 
    BASED ON THE RECORD, HOWEVER, THE DISPUTED PORTIONS OF THE REMAINDER
 OF THE PROPOSAL ARE NOT INCONSISTENT WITH THE STATUTE.  THESE PORTIONS
 SOLELY CONCERN WHICH PARTICULAR EMPLOYEE, AMONG THOSE IN THE BARGAINING
 UNIT TO WHOM MANAGEMENT IN ITS DISCRETION HAS ALREADY ASSIGNED THE
 "SLAUGHTER" OR "PROCESSING" WORK INVOLVED, WILL BE SELECTED TO PERFORM
 SUCH WORK IN AN OVERTIME STATUS WHEN MANAGEMENT DETERMINES THAT OVERTIME
 IS REQUIRED.  TO THAT EXTENT, THE PROPOSAL IS CONCERNED ONLY WITH WHEN
 SUCH EMPLOYEES WILL PERFORM THE PREVIOUSLY ASSIGNED DUTIES OF THEIR
 POSITIONS.  HENCE, IT DOES NOT CONCERN THE ASSIGNMENT OF WORK OR THE
 ASSIGNMENT OF EMPLOYEES TO POSITIONS.  CF. AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916 AND TINKER AIR FORCE BASE,
 OKLAHOMA, 7 FLRA NO. 45(1981) (PROVISION III) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 5 FLRA NO.  15(1981) (PROVISIONS
 PRESCRIBING CRITERIA FOR SELECTION OF PARTICULAR EMPLOYEES TO
 TEMPORARILY PERFORM THEIR PREVIOUSLY ASSIGNED DUTIES AT DIFFERENT
 LOCATIONS ARE WITHIN THE DUTY TO BARGAIN).
 
                             UNION PROPOSAL 2
 
    ARTICLE XIX-- EMPLOYEE RESPONSIBILITIES AND CONDUCT
 
    SECTION A-- POLICY:
 
    THE PARTIES AGREE THAT THE MAINTENANCE OF UNUSUALLY HIGH STANDARDS OF
 HONESTY, INTEGRITY,
 
    IMPARTIALITY AND CONDUCT BY INSPECTIONAL EMPLOYEES IS ESSENTIAL TO
 ASSURE THE PROPER
 
    PERFORMANCE OF THE SERVICE BUSINESS AND TO RETAIN THE CONFIDENCE OF
 THE GENERAL PUBLIC IN
 
    SERVICE OPERATIONS.  THE PARTIES FURTHER AGREE THAT IT IS THE
 RESPONSIBILITY OF EMPLOYEES TO
 
    ACQUAINT THEMSELVES WITH THE CONTENTS OF APPENDIX I OF THE
 DEPARTMENT'S EMPLOYEE HANDBOOK
 
    WHICH FULLY DETAILS PROHIBITED CONDUCT AND OTHER RESPONSIBILITIES OF
 EMPLOYEES.  THE
 
    PROVISIONS OF LAW, HIGHER LEVEL REGULATIONS, AND THE CONTENTS OF SAID
 APPENDIX I AND THE
 
    PROVISIONS OF THIS ARTICLE CONSTITUTE THE SOLE REQUIREMENTS TO BE
 APPLIED TO EMPLOYEES OF THE
 
    UNIT IN RESPECT TO CONDUCT AND RESPONSIBILITY.
 
                                 QUESTION
 
    THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN,
 AS ALLEGED BY THE AGENCY, BECAUSE IT CONFLICTS WITH THE FEDERAL MEAT
 INSPECTION ACT, THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, OR
 SECTION 7106(A) OF THE STATUTE. AUTHORITY'S RULES AND REGULATIONS, IT IS
 ORDERED THAT THE
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL DOES NOT CONFLICT WITH LAW OR
 REGULATION AND, THEREFORE, IS WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, IT
 IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO
 BY THE PARTIES) BARGAIN CONCERNING THE PROPOSAL.  /3/
 
    REASONS:  THE DISPUTE FOCUSES ON THE FAILURE OF THE PROPOSAL TO
 SPECIFICALLY REFERENCE THE RULES OF THE AGENCY WHICH EXIST OR MAY BE
 PROMULGATED IN THE FUTURE.  THE AGENCY ESSENTIALLY ARGUES THAT IT HAS
 THE UNILATERAL RIGHT UNDER THE FEDERAL MEAT INSPECTION ACT, 21 U.S.C.
 601-95, THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, AND SECTION
 7106(A) TO ISSUE ITS OWN RULES WHICH WOULD GOVERN EMPLOYEES' CONDUCT AND
 RESPONSIBILITIES.
 
    AS TO THE FEDERAL MEAT INSPECTION ACT, THE AGENCY ADVERTS TO NO
 PROVISION OF THE ACT WHICH WOULD REQUIRE IT TO ESTABLISH RULES OF
 CONDUCT AND RESPONSIBILITIES UNILATERALLY.  SIMILARLY, WITH RESPECT TO
 THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, THE AGENCY HAS NOT
 CITED ANY PARTICULAR CONFLICT BETWEEN THE REGULATIONS AND THE PROPOSAL.
 /4/ FINALLY, WITH RESPECT TO SECTION 7106(A) OF THE STATUTE, PROPOSALS
 RELATING TO EMPLOYEES' CONDUCT AND RESPONSIBILITIES ARE WITHIN THE DUTY
 TO BARGAIN WHERE THE MATTERS AT ISSUE ARE WITHIN THE AGENCY'S DISCRETION
 AND THE PROPOSALS DO NOT OTHERWISE CONFLICT WITH SECTION 7106(A).  SEE,
 E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385
 AND FEDERAL HOME LOAN BANK BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA
 NO. 58(1981) (PROPOSAL II).  IN THIS CASE THE AGENCY HAS CLAIMED BUT HAS
 NOT SHOWN THAT THE INSTANT PROPOSAL WOULD BE INCONSISTENT WITH ITS RIGHT
 TO DETERMINE ITS INTERNAL SECURITY PRACTICES UNDER SECTION 7106(A)(1),
 OR TO ITS RIGHT TO DISCIPLINE OR REMOVE EMPLOYEES UNDER SECTION
 7106(A)(2)(A).  SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL
 REVENUE SERVICE, 3 FLRA 693(1980) (PROPOSAL I).
 
    ACCORDINGLY, IT IS CONCLUDED THAT, AS THE AGENCY HAS NOT SUPPORTED
 ITS CONTENTIONS THAT THE INSTANT PROPOSAL CONFLICTS WITH LAW OR
 REGULATIONS, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., JULY 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN DECIDING THAT THIS PORTION OF THE PROPOSAL IS WITHIN THE DUTY
 TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /2/ WHILE BOTH PARTIES TO THIS CASE CITE FOOD SAFETY AND QUALITY
 SERVICE, U.S. DEPARTMENT OF AGRICULTURE AND NATIONAL JOINT COUNCIL OF
 FOOD INSPECTION LOCALS, AFGE # 488, 1 FLRA 1013(1979), A DECISION ON
 EXCEPTIONS TO AN ARBITRATION AWARD ARISING UNDER EXECUTIVE ORDER, IN
 SUPPORT OF THEIR RESPECTIVE POSITIONS ON THIS PORTION OF THE PROPOSAL,
 SUCH RELIANCE IS MISPLACED.  SIMPLY STATED, THAT CASE DID NOT INVOLVE
 QUESTIONS CONCERNING NEGOTIABILITY UNDER THE STATUTE.
 
    /3/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /4/ AN AGENCY HAS THE BURDEN UNDER SECTION 7117(C)(2) OF THE STATUTE
 AND SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS OF COMING
 FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS CONTENTIONS THAT REGULATIONS
 BAR NEGOTIATIONS ON CONFLICTING PROPOSALS BASED UPON THE EXISTENCE OF A
 COMPELLING NEED FOR THE REGULATIONS.  SEE, E.G., NATIONAL TREASURY
 EMPLOYEES UNION AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION X,
 SEATTLE, WASHINGTON, 5 FLRA NO. 93 (1981).