[ v15 p14 ]
The decision of the Authority follows:
15 FLRA No. 4 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-89 Union and DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY AIR DEFENSE CENTER AND FORT BLISS, TEXAS Agency Case No. O-NG-602 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 issues concerning the negotiability of three Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Proposal 14: Prior to accepting military pay records from WSMR (White Sands Missile Range) or any other agency/activity outside the Fort Bliss complex, employer will provide the union with evidence that the D&P (Determinations and Processing) unit is fully capable, without OT (overtime) or detailing additional employees, of assuming additional pay records. Union Proposal 1, in effect, would prevent management from accepting and assigning additional work to bargaining unit employees unless it can be established that such additional work can be accomplished without resort to overtime or to temporary augmentation of the unit workforce. In this respect, Union Proposal 1 is to the same effect as Union Proposal V in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981) which precluded the assignment of additional cases to designated employees who had "unmanageable" workloads. In finding that proposal inconsistent with the management right pursuant to section 7106(a)(2)(B) of the Statute "to assign work," the Authority noted that the proposal would, in certain circumstances, " . . . prevent the Agency from making case assignments to employees." Similarly, Union Proposal 1, herein, would impose a condition upon the assigning of work and is, therefore, for the reasons stated in Internal Revenue Service, not within the Agency's duty to bargain. Union Proposal 2 Proposal 15: Employer and Union will mutually agree upon management indicators utilized to determine capability of the FAD (Finance and Accounting Division), Fort Bliss, to assume additional pay records. Union proposal 2, in effect, would permit the Union to participate in determining when additional work could be assigned to an organizational element of the Agency. In American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982), with regard to Union Proposal 3, the Authority stated: "The right to determine the quantity of work to be performed by employees is encompassed within management's statutory rights to direct employees and assign work." Further, in National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982), involving a proposal which would have placed a union representative on two committees "established by Agency management to review, make recommendations, and take action with respect to matters involving the exercise of management rights under section 7106 of the Statute," the Authority found that union membership on such committees "would thereby impair the flexibility which Congress intended management officials to have under the Statute." In like manner, Union Proposal 2, herein, seeks Union participation in the process of determining when additional work will be assigned to bargaining unit employees, which determination is encompassed within the management rights pursuant to section 7106(a)(2)(A) and (B) to direct employees and to assign work. Thus, based on U.S. Marshals Service and Veterans Administration Medical Center, East Orange, and the reasons and cases cited therein, Union Proposal 2 is outside the Agency's duty to bargain. Union Proposal 3 Proposal 24: All lateral transfers will be assigned on basis of seniority within FAD (Finance and Accounting Division) when there are more applications for transfer than there are positions available. It is clear from the record that Union Proposal 3 concerns the reassignment of bargaining unit employees to other positions within the bargaining unit based on seniority. Substantially similar requirements concerning the use of seniority were involved in Union Proposals IV, V and VI in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), which proposals the Authority held to be inconsistent with management's right pursuant to 7106(a)(2)(A) of the Statute to assign employees. Hence, based on Air Force Logistics Command, and the reasons stated therein, Union Proposal 3 is outside the Agency's duty to bargain. 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. Issued, Washington, D.C., June 6, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency contended that the Union's petition for review was untimely filed and consequently should be dismissed. However, under sections 2424.3 and 2429.22 of the Authority's Rules and Regulations, the petition was timely filed and, therefore, is properly before the Authority.