14:0438(69)NG - AFGE Local 2761 and Army, Army Adjutant General Publication Center, St. Louis, MO -- 1984 FLRAdec NG
[ v14 p438 ]
14:0438(69)NG
The decision of the Authority follows:
14 FLRA No. 69
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2761
Union
and
U.S. DEPARTMENT OF THE ARMY,
U.S. ARMY ADJUTANT GENERAL
PUBLICATION CENTER, ST. LOUIS,
MISSOURI
Agency
Case No. O-NG-411
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 concerns the
negotiability of one Union proposal. /1/ Upon careful consideration of
the entire record, including the parties' contentions, the Authority
makes the following determinations.
Union Proposal
A. The training program will be developed with a committee,
comprised of three (3) representatives from Management, and three
(3) from the Union.
B. The committee will report annually, after a formal review
of the training provided for the past year.
C. The committee will establish goals which are consistent with
the projected needs of the Center.
D. The committee will meet at least quarterly.
In agreement with the Union, the Authority finds this proposal for a
joint labor-management committee to develop the Agency's training
program to be a negotiable procedure under section 7106(b)(2) of the
Statute. /2/ Insofar as appears from the record, the committee is
intended to serve as a forum for Union participation in the evaluation
of training needs and in the formulation of programs to meet those
needs, but not to negotiate the content of the Agency's training. /3/
That is, the proposal would only provide the Union an opportunity to
express its views regarding the Agency's training programs, rather than
mandating joint determination of the substantive aspects of those
programs. Thus, similar to Union Proposal 2 which the Authority held to
be negotiable in International Brotherhood of Electrical Workers,
AFL-CIO, Local 121 and U.S. Government Printing Office, Washington,
D.C., 8 FLRA No. 35 (1982) (proposal to negotiate retraining programs
incident to reductions in force), the present proposal would not require
the retraining of any employee. Cf. National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA No. 106 (1981) (Proposals I-III) (proposals
requiring management to provide training at stated intervals held
nonnegotiable); U.S. Government Printing Office, supra, (Proposal 1)
(proposal requiring management to provide training to unit employees
held nonnegotiable). Furthermore, the present proposal would not limit
or prescribe the duration of training assignments and the scheduling
thereof, cf. International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438, 439 (1980) (proposal specifying
length of training sessions and limiting time periods for training held
nonnegotiable); International Association of Fire Fighters, AFL-CIO,
CLC, Local F-116 and Department of the Air Force, Vandenberg Air Force
Base, California, 7 FLRA No. 122 (1982) (proposal limiting training to
certain time periods held nonnegotiable); and would not mandate
specific training assignments to particular employees upon request, cf.
Federal Aviation Administration, supra. Rather, Section A of the
proposal would only obligate the Agency to consider the Union's views in
planning the training program.
Thus, the Authority concludes from the record that the proposal would
not interfere with the Agency's discretion concerning whether to assign
employees to training programs. The Authority concludes further that
the proposed committee is a negotiable procedure under section
7106(b)(2) since it would not prevent the Agency from acting at all to
assign training in its discretion, pursuant to its right to assign work
under section 7106(a)(2)(B) of the Statute.
Moreover, the Agency's remaining arguments in support of its claim
that the proposal is outside the duty to bargain do not require a
different result. First, for the reasons stated in National Federation
of Federal Employees, Local 541 and Veterans Administration Hospital,
Long Beach, California, 12 FLRA No. 62 (1983), the present proposal
would not, by requiring negotiation regarding Union participation on the
committee, interfere with management's right to assign work under the
Statute. In the cited decision, the Authority rejected this claim with
respect to a proposal, to the same effect as the one disputed herein,
which required negotiation regarding union participation on a committee
to design, develop and administer an incentive awards program.
Second, the Agency contention that the Union's designation of members
of the committee interferes with its right to assign employees under
section 7106(a)(2)(A) of the Statute /5/ is inapposite. As the
Authority has consistently held, the right to assign employees means to
assign them to positions in the agency, see, e.g., American Federation
of Government Employees, AFL-CIO, Local 987 and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 15 (1981);
American Federation of Government Employees, AFL-CIO, Local 916 and
Tinker Air Force Base, Ohio, 7 FLRA No. 45 (1981) (Union Provision III).
Designation of an employee to serve as a representative on the
committee, however, would not constitute an assignment to a position
and, hence, would not concern the right to assign employees under the
Statute. /6/
Third, contrary to the Agency's contention that the proposed Union
representation on the committee interferes with its right to determine
the personnel by which Agency operations shall be conducted under
section 7106(a)(2)(B), /7/ the Authority finds that, in this respect,
the proposal is to the same effect as the proposal in American
Federation of Government Employees, AFL-CIO, Local 1786 and Marine Corps
Development and Education Command, Quantico, Virginia, 2 FLRA 423
(1980), providing for union representation on wage survey teams, which
was held not to prevent the agency from determining the personnel to
represent it on those teams. For the reasons fully discussed in Marine
Corps Development and Education Command, therefore, the Authority finds
that the proposal at issue herein does not directly interfere with the
Agency's rights under section 7106(a)(2)(B) of the Statute.
Finally, the Agency's contention that the disputed proposal herein
concerns the "means" of performing work under section 7106(b)(1), /8/
about which it may elect but cannot be required to negotiate, cannot be
sustained, for the reasons stated in Veterans Administration Hospital,
Long Beach, supra, in which the Authority rejected the same argument in
connection with a proposal to the same effect. Under section
7106(b)(1), a joint labor-management committee which reports annually on
goals established to meet the Agency's training needs would not
constitute a "means" of performing the work of the Agency, i.e., its
publications work.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed as to the "absences" proposal, with respect to
which the Agency withdrew its allegation of nonnegotiability. IT IS
FURTHER ORDERED that the Agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning the "committee" proposal.
Issued, Washington, D.C., May 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its response to the petition for review, the Agency withdrew
its allegation that a second proposal concerned with the manner of
charging absences is nonnegotiable. Accordingly, there is no longer an
issue as to whether that proposal is within the duty to bargain.
/2/ In deciding that the Union's proposal is within the duty to
bargain, the Authority, of course, makes no judgment as to its merits.
/3/ Union Response at 3.
/4/ Section 7106 of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(B) to assign work(.)
(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(.)
/5/ Section 7106(a)(2)(A) provides, in relevant part, as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
(A) to . . . assign . . . employees in the agency(.)
/6/ Similarly, the Agency's claim that it could be required to
reclassify the positions of employees serving as Union representatives
due to their additional responsibilities on the committee and as a
consequence to assign them to higher-graded positions, is inapposite.
The committee-related tasks performed by Union representatives would not
be a part of such employees' jobs and would not need to be reflected in
their position descriptions. See National Federation of Federal
Employees, Local 541 and Veterans Administration Hospital, Long Beach,
California, 12 FLRA No. 62 (1983) at 5 of opinion.
/7/ Section 7106(a)(2)(B) provides, in relevant part, as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(B) . . . to determine the personnel by which agency operations
shall be conducted(.)
/8/ Section 7106(b)(1) provides, in relevant part, as follows:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the technology,
methods, and means of performing work(.)