15:0014(4)NG - NAGE Local R14-89 and Army, HQ, Army Air Defense Center and Fort Bliss, TX -- 1984 FLRAdec NG

 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.