09:1033(145)NG - NAGE LOCAL Rl4-89 and HQ, Army Air Defense Center and Fort Bliss, TX -- 1982 FLRAdec NG

 9 FLRA No. 145
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL R14-89
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY
 AIR DEFENSE CENTER AND
 FORT BLISS, TEXAS
 Agency
 
                                            Case No. O-NG-266
 
                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 TWO PROPOSALS ADVANCED BY
 THE UNION IN CONNECTION WITH BARGAINING OVER THE "IMPACT" ON UNIT
 EMPLOYEES OF A PROPOSED REORGANIZATION BY THE AGENCY.  UPON CAREFUL
 CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
 THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    PROPOSAL 5D.  - CHANGES WILL NOT BE ACCOMPLISHED UNTIL BOTH EMPLOYER
 AND EMPLOYEE AGREE TO
 
    THE STANDARDS/CRITICAL ELEMENTS.
 
    UNION PROPOSAL 1, AS EXPLAINED BY THE UNION, IN ESSENCE WOULD
 CONDITION THE AGENCY'S ABOLISHING POSITIONS AND REDISTRIBUTING THE
 DUTIES THEREOF TO OTHER POSITIONS ON THE AGREEMENT OF THE INCUMBENTS OF
 THE OTHER POSITIONS TO THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
 DEVELOPED PURSUANT TO 5 U.S.C. 4302 FOR THOSE POSITIONS.  /1/ THE
 ASSIGNMENT OF DUTIES TO POSITIONS, HOWEVER, IS AN EXERCISE OF
 MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(1)(2)(B) OF THE
 STATUTE.  SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
 THE TREASURY, INTERNAL REVENUE SERVICE, 7 FLRA NO. 35(1981)(UNION
 PROPOSAL6).  THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE
 ESTABLISHMENT OF PERFORMANCE STANDARDS, FURTHERMORE, ARE MANAGEMENT
 RIGHTS UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  SEE, E.G.,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF SOCIAL
 SECURITY PAYMENT CENTER LOCALS AND SOCIAL SECURITY ADMINISTRATION,
 OFFICE OF PROGRAM SERVICE CENTERS, BALTIMORE, MARYLAND, 7 FLRA NO.
 139(1982)(UNION PROPOSALS 6 AND 7).  IN THESE REGARDS, THE PROPOSAL AT
 ISSUE IS NOT MATERIALLY DISTINGUISHABLE FROM THE PROPOSAL BEFORE THE
 AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3004 AND DEPARTMENT OF THE AIR FORCE, OTIS AIR FORCE BASE,
 MASSACHUSETTS, 9 FLRA NO. 87(1982), WHICH CONDITIONED MANAGEMENT'S
 EXERCISE OF ITS RIGHT TO DETERMINE THE DUTIES AND FUNCTIONS TO BE
 INCLUDED IN PERFORMANCE APPRAISALS ON THE PRIOR EXERCISE OF MANAGEMENT'S
 RIGHT TO ASSIGN FORMAL TRAINING TO THE EMPLOYEES INVOLVED.  THE
 AUTHORITY HELD THAT PROPOSAL NONNEGOTIABLE UNDER THE STATUTE BECAUSE IT
 DIRECTLY INTERFERED WITH MANAGEMENT'S RIGHTS TO DETERMINE WHETHER TO
 ASSIGN TRAINING UNDER SECTION 7106(A)(2)(B) AS WELL AS TO DETERMINE THE
 DUTIES SUBJECT TO PERFORMANCE APPRAISAL UNDER SECTION 7106(A)(2)(A) AND
 (B).  THUS, FOR THE REASONS FULLY SET FORTH IN OTIS AIR FORCE BASE, THE
 PROPOSAL AT ISSUE HEREIN DIRECTLY WOULD INTERFERE WITH MANAGEMENT'S
 RIGHTS AND, THEREFORE, IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 
                             UNION PROPOSAL 2
 
    PROPOSAL 6.  -IMMEDIATELY FOLLOWING ANY REDISTRIBUTION OF WORK OR
 REALIGNMENT OF DUTIES,
 
    MANAGEMENT WILL REQUEST A FULL MANAGEMENT REVIEW STUDY BY THE
 COMPTROLLER FULLY UTILIZING
 
    THOSE EMPLOYEES WHOSE DUTIES/RESPONSIBILITIES ARE ALTERED IN THE DATE
 GATHERING REVIEW AND
 
    PROCEDURE DEVELOPMENT.  SUCH DUTIES WILL TAKE PRECEDENCE OVER ALL
 OTHER ASSIGNED DUTIES.
 
    UNION PROPOSAL 2, AS EXPLAINED BY THE UNION, PRESCRIBES THAT
 BARGAINING UNIT EMPLOYEES WHO HAVE BEEN AFFECTED BY CERTAIN MANAGEMENT
 ACTIONS WILL PARTICIPATE IN REVIEW STUDIES CONDUCTED BY MANAGEMENT, AND
 THAT SUCH PARTICIPATION WILL TAKE PRECEDENCE OVER ALL OTHER ASSIGNED
 DUTIES.
 
    THE AUTHORITY FINDS THAT THE DISPUTED PROPOSAL, RATHER THAN
 ESTABLISHING A "PROCEDURE" OR AN "APPROPRIATE ARRANGEMENT," /2/ WOULD,
 IN TWO DIFFERENT WAYS, SUBSTANTIVELY INFRINGE ON MANAGEMENT'S RIGHTS
 UNDER THE STATUTE.  IN THE FIRST PLACE, THE PROPOSAL WOULD REQUIRE THE
 FORT BLISS COMPTROLLER TO CONDUCT A "REVIEW STUDY." IN THIS REGARD, THE
 PROPOSAL IS NOT MATERIALLY DISTINGUISHABLE FROM UNION PROPOSAL 6 IN
 NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, 7 FLRA NO. 35(1981) WHICH REQUIRED THAT A
 SPECIFIC DUTY BE PERFORMED BY A PARTICULAR EMPLOYEE AND WHICH THE
 AUTHORITY HELD DIRECTLY INTERFERED WITH THE AGENCY'S RIGHT TO ASSIGN
 WORK UNDER SECTION 7106(A)(2)(B) BECAUSE IT DEPRIVED MANAGEMENT OF THE
 DISCRETION TO DETERMINE THE EMPLOYEE TO WHOM WORK WOULD BE ASSIGNED.
 THEREFORE, FOR THE REASONS SET FORTH IN DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, SUPRA, THE DISPUTED PROPOSAL HEREIN WOULD
 DIRECTLY INTERFERE WITH THE AGENCY'S RIGHT TO ASSIGN WORK TO EMPLOYEES
 UNDER SECTION 7106(A)(2)(B) AND, THUS, IT OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE.
 
    SECONDLY, THE PROPOSAL AT ISSUE REQUIRES THAT PARTICIPATION IN REVIEW
 STUDIES WILL TAKE PRECEDENCE OVER ALL OTHER DUTIES ASSIGNED TO THE
 EMPLOYEES INVOLVED.  IT THEREBY WOULD PREVENT MANAGEMENT FROM REQUIRING
 THAT THE NORMAL DUTIES ASSIGNED TO EMPLOYEES BE PERFORMED WHEN
 PERFORMANCE OF THOSE DUTIES WOULD CONFLICT WITH SUCH EMPLOYEES
 PARTICIPATING IN THE REVIEW STUDY.  THUS, UNION PROPOSAL 2 DIRECTLY
 INTERFERES WITH MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.  SEE NATIONAL TREASURY EMPLOYEES UNION AND
 NTEU CHAPTER 80 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, CENTRAL REGION, 8 FLRA NO.  38(1982) (UNION PROPOSAL 7).
 
    ACCORDINGLY, 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 AS TO UNION PROPOSALS 1 AND 2 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 4302(A) PROVIDES FOR THE ESTABLISHMENT OF PERFORMANCE
 APPRAISAL SYSTEMS, INCLUDING CRITICAL ELEMENTS AND PERFORMANCE
 STANDARDS, BY EACH AGENCY.
 
    /2/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
 ILLINOIS, 7 FLRA NO.  34(1981)(UNION PROPOSAL 6) AND NATIONAL TREASURY
 EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO,
 CALIFORNIA, 2 FLRA 254(1979).