09:1025(142)NG - AFGE Local 1760 and HHS, SSA, Northeast Program Service Center -- 1982 FLRAdec NG

 9 FLRA No. 142
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1760
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY ADMINISTRATION
 NORTHEAST PROGRAM SERVICE CENTER
 Activity
 
                                            Case No. O-NG-443
 
                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).
 UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    THE EMPLOYER AGREES THAT NO EMPLOYEE WILL BE DEMOTED, TERMINATED OR
 THREATENED WITH SUCH
 
    ACTION BASED UPON WORK PERFORMANCE IN THE RESTRUCTURED POSITIONS
 WITHOUT FIRST PROVIDING THE
 
    EMPLOYEE AN OPPORTUNITY TO PERFORM SATISFACTORILY AT A LIKE-GRADED
 POSITION
 
    THE AUTHORITY CONCLUDES THAT UNION PROPOSAL 1 IMPROPERLY WOULD
 ESTABLISH A CONDITION (PROVIDING AN EMPLOYEE PERFORMING UNSATISFACTORILY
 THE "OPPORTUNITY TO PERFORM SATISFACTORILY AT A LIKE-GRADED POSITION")
 UPON THE AGENCY'S ABILITY TO TERMINATE OR DEMOTE, I.E., TO "REMOVE" OR
 TO "REDUCE IN GRADE" EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE
 STATUTE.  SEE NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND
 NATIONAL LABOR RELATIONS BOARD, REGION 19, 2 FLRA 775(1980) (PROPOSAL
 ESTABLISHING A CONDITION UPON MANAGEMENT'S ABILITY TO ASSIGN SPECIFIED
 DUTIES TO AN IDENTIFIED EMPLOYEE IS INCONSISTENT WITH THE AGENCY'S RIGHT
 "TO ASSIGN WORK").  FURTHERMORE, THE CONDITION PRESCRIBED IN THE
 PROPOSAL WOULD ITSELF INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHT
 UNDER SECTION 7106(A)(2)(A) TO "ASSIGN" EMPLOYEES.  CF. NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1624 AND AIR FORCE CONTRACT
 MANAGEMENT DIVISION, HAGERSTOWN, MARYLAND, 3 FLRA 142(1980) (PROPOSAL TO
 DETAIL TEMPORARILY INCAPACITATED EMPLOYEES TO COMPATIBLE DUTIES IS
 INCONSISTENT WITH MANAGEMENT'S SECTION 7106(A)(2)(A) RIGHT TO "ASSIGN"
 EMPLOYEES).  THEREFORE, UNION PROPOSAL 1 WOULD DIRECTLY INTERFERE WITH
 THESE MANAGEMENT RIGHTS, NOT ONLY INDIVIDUALLY, BUT ALSO COLLECTIVELY BY
 CONDITIONING THE EXERCISE OF ONE RIGHT UPON THE PRIOR EXERCISE OF THE
 OTHER IN A PRESCRIBED MANNER.  THE PROPOSAL CONSEQUENTLY IS INCONSISTENT
 WITH SECTION 7106(A)(2)(A) AND IS OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 3
 
    THE TRAINING OF EMPLOYEES WILL BE ACCOMPLISHED IN SUCH A WAY AS THE
 EMPLOYEES WILL BE ABLE
 
    TO FULLY PARTICIPATE IN FLEXTIME.
 
                             UNION PROPOSAL 4
 
    ATTENDANCE IN CLASSES WILL NOT PRECLUDE ANY EMPLOYEE FROM
 PARTICIPATING IN FLEXTIME.
 
    THESE TWO PROPOSALS, COMBINED FOR CONVENIENCE OF DISCUSSION, REQUIRE
 THAT THE AGENCY NOT SCHEDULE TRAINING IN SUCH A MANNER AS TO INTERFERE
 WITH ATTENDEES' "FLEXTIME" HOURS.  IT IS UNCLEAR ON THEIR FACE WHETHER
 THESE PROPOSALS ARE INTENDED TO ADDRESS TRAINING PROVIDED BARGAINING
 UNIT EMPLOYEES DURING THEIR DUTY HOURS.  HOWEVER, THE AGENCY, IN
 RESPONDING TO THE UNION'S REQUEST FOR AN ALLEGATION OF NONNEGOTIABILITY
 COVERING THESE TWO PROPOSALS, STATED:
 
    (I)T HAS BEEN THE PRACTICE OF THIS OFFICE SINCE THE INCEPTION OF
 FLEXTIME IN NOVEMBER,
 
    1977(AND PRIOR TO THAT AT THE COLLEGE POINT WORKSITE) TO SUSPEND
 FLEXTIME WHEN CONDUCTING
 
    FORMAL CLASSROOM TRAINING.
 
    ACCORDINGLY, IT IS CONCLUDED THAT THE TWO PROPOSALS ARE INTENDED TO
 CHANGE THE ABOVE MANAGEMENT PRACTICE OF SUSPENDING FLEXTIME FOR
 EMPLOYEES ATTENDING TRAINING DURING DUTY HOURS.  IN THIS RESPECT, THE
 PROPOSALS ARE NOT MATERIALLY DIFFERENT FROM SECTION 1 OF PROPOSAL I
 WHICH WAS BEFORE THE AUTHORITY IN INTERNATIONAL ASSOCIATION OF FIRE
 FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA 438(1980),
 AND HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.  IN THAT
 CASE, THE AUTHORITY RULED THAT THE UNION'S PROPOSAL TO LIMIT THE ABILITY
 OF THE AGENCY TO ASSIGN TRAINING AT ALL AFTER SPECIFIED HOURS DURING THE
 WORKDAY OR ON CERTAIN DAYS OF A FIRE FIGHTER'S WORKWEEK WAS INCONSISTENT
 WITH MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) "TO ASSIGN WORK" TO
 EMPLOYEES.  HENCE, FOR THE REASONS STATED IN THE PHILADELPHIA NAVAL
 SHIPYARD DECISION, UNION PROPOSALS 3 AND 4, HEREIN, MUST ALSO BE HELD TO
 BE OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 5
 
    AN EMPLOYEE MAY REQUEST REVIEW OF ANY ERROR HE RECEIVES FROM THE
 BRANCH TECHNICAL ASSISTANT
 
    WHO SHALL RESPOND TO THE REQUEST FOR REVIEW IN WRITING.
 
    UNION PROPOSAL 5 WOULD REQUIRE, FOR THE TERM OF THE AGREEMENT, THAT A
 DESIGNATED EMPLOYEE RESPOND IN WRITING TO REQUESTS MADE BY EMPLOYEES IN
 THE BARGAINING UNIT FOR REVIEW OF ERRORS.  THIS PROPOSAL IS THEREFORE
 SIMILAR IN ALL MATERIAL ASPECTS TO UNION PROPOSAL VII, WHICH THE
 AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN, IN NATIONAL TREASURY
 EMPLOYEES UNION AND DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, 6
 FLRA NO. 97(1981).  THAT PROPOSAL WOULD LIKEWISE HAVE SPECIFIED DUTIES
 TO BE PERFORMED BY A NAMED EMPLOYEE DURING THE LIFE OF THE AGREEMENT.
 IN FINDING THE PROPOSAL VIOLATED THE MANAGEMENT RIGHT "TO ASSIGN WORK"
 UNDER SECTION 7106(A)(2)(B), THE AUTHORITY STATED, " . . . TO THE EXTENT
 THE PROPOSAL WOULD REQUIRE THE ASSIGNMENT OF THE WORK OF PREPARING THE
 SUMMARY OF REVIEW RESULTS TO A SPECIFIED AGENCY EMPLOYEE AND,
 IMPLICITLY, WOULD PRECLUDE THE ASSIGNMENT OF THOSE DUTIES TO OTHER
 EMPLOYEES, IT IS NONNEGOTIABLE." THUS, FOR THE REASONS STATED IN THE
 CITED INTERNAL REVENUE SERVICE DECISION, UNION PROPOSAL 5, HEREIN, IS
 LIKEWISE OUTSIDE THE DUTY TO BARGAIN.
 
    FINALLY, WITH REGARD TO UNION PROPOSAL 2 WHICH CONCERNS STAYS OF
 DISCIPLINARY ACTION PENDING THE EXHAUSTION BY THE AFFECTED EMPLOYEES OF
 ALL APPEAL RIGHTS, THE AGENCY DOES NOT ASSERT THAT THE PROPOSAL IS
 NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW OR REGULATION.  RATHER, IT
 CONTENDS THAT BARGAINING ON THE PROPOSAL IS PRECLUDED EITHER BY CURRENT
 NEGOTIATIONS ON THE SAME SUBJECT AT THE NATIONAL LEVEL OR BY THE CURRENT
 NATIONAL AGREEMENT.  THUS THE DISPUTE OVER UNION PROPOSAL 2 IS
 IMPROPERLY BEFORE THE AUTHORITY AS A NEGOTIABILITY ISSUE FOR RESOLUTION
 PURSUANT TO SECTION 7117 OF THE STATUTE.  RATHER, SINCE THE AGENCY HAS
 NEVER ASSERTED THAT THE PROPOSAL IS NOT NEGOTIABLE UNDER THE STATUTE BUT
 ONLY THAT NEGOTIATIONS ARE PRECLUDED BY MATTERS RELATING TO THE NATIONAL
 AGREEMENT, THE DISPUTE SHOULD BE RESOLVED EITHER BY RESORT TO THE UNFAIR
 LABOR PRACTICE PROCEDURES OF THE STATUTE OR THROUGH THE PARTIES'
 NEGOTIATED GRIEVANCE PROCEDURE.  SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF
 PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, 2 FLRA
 412(1980);  AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 7 FLRA
 NO. 91(1982).
 
    ACCORDINGLY, IN VIEW OF THE ABOVE FINDINGS, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS(5 CFR 2424.10(1981)),
 IT IS ORDERED THAT THE PETITION FOR REVIEW BE, AND IT HEREBY IS,
 DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY