[ v15 p333 ]
The decision of the Authority follows:
15 FLRA No. 71 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL COUNCIL OF MARSHALS SERVICE LOCALS Union and U.S. MARSHALS SERVICE Agency Case No. O-NG-652 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). The issue presented is the negotiability of four Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Article 21, Paternity Leave A male employee may be on annual leave or leave without pay for up to thirty (30) consecutive days to aid in the care of his wife or minor children. The record indicates that the proposal would require that under specified circumstances, the Agency grant an employee's request for annual leave or leave without pay without regard to the necessity for the employee's service during the period covered by the request. As the Authority noted, in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), the right "to assign work" pursuant to section 7106(a)(2)(B) of the Statute "includes the right to assign general continuing duties, to make specific periodic work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed." Since Union Proposal 1 removes management's discretion to deny requested leave in the circumstances described, it would effectively nullify the Agency's ability to determine when assigned work will be performed and thus violates management's right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work." /2/ Union Proposal 2 Article 27, Section 9, Reduction-In-Force In the event a RIF occurs: Existing vacancies will be used to the maximum extent possible to place employees in continuing positions, who would otherwise be separated from the Employer, provided the employee is qualified and can properly perform the duties of the position. The Union states that this proposal is not intended to require either the filling of vacant positions or placement of bargaining unit employees who would otherwise be separated in vacant positions. Hence, it maintains that the proposal is hortatory rather than mandatory. Given the Union's explanation as to the intent of the proposal and given that neither the proposal on its face nor the accompanying record indicates that the proposal is intended to be applied in a manner which is not in compliance with law or regulation, the Authority finds that the proposal is materially to the same effect as Provision 2 in American Federation of Government Employees, AFL-CIO, Local 1692 and Department of the Air Force, Mather Air Force Base, California, 8 FLRA 194 (1982). Like the provision in Mather AFB, under this proposal the Agency would retain its full statutory discretion with respect to whether to utilize existing vacancies in order to retain employees who would otherwise be separated. Thus, contrary to the Agency's contentions, Union Proposal 2 does not interfere with the Agency's right to assign, hire, layoff and retain employees pursuant to section 7106(a)(2)(A) of the Statute, or fill positions from other appropriate sources pursuant to section 7106(a)(2)(C). Nor does the proposal violate 5 CFR 7.1 and FPM Chapter 335, Subchapter 1-4, which require retention of discretion by agencies with respect to making selections from various appropriate sources of candidates. As noted, under the proposal the Agency retains full discretion in this regard. Based on the foregoing, the Authority finds that Union Proposal 2 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is within the duty to bargain. /3/ Union Proposal 3 Article 33, Section 3, Health and Safety When an employee is injured on the job and is sent to a medical facility for treatment, the Employer and the affected employee agree to accept the determination made by competent medical authority at the facility as to whether the employee should return to work. However, the Employer retains the right to require an employee to undergo a fitness-for-duty examination, at the Employer's expense, at a later time. If the employee does not agree with the determination of a competent medical authority, then it will be at the employee's expense and time to dispute this finding, subject to the regulations of the OWCP. The Union characterizes this proposal as being conceptually no different than a proposal that an injured employee be assigned to "light duties." Thus, the intent of the proposal is that where an employee has been deemed able to return to work by competent medical authority, the Agency must assign the employee his/her regular duties or, alternatively, duties which are compatible with the employee's condition. However, in National Federation of Federal Employees, Local 1624 and Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142 (1982), the Authority held a proposal which would under certain circumstances require the Agency to tailor the duties assigned to an employee to be outside the duty to bargain. Based upon the Union's characterization, this proposal is materially to the same effect as the proposal in that case. For the reasons expressed in Air Force Contract Management Division, Hagerstown, the Authority finds that Union Proposal 3 would interfere with the Agency's right pursuant to section 7106(a)(2)(B) to assign work and is not within the duty to bargain. /4/ Union Proposal 4 Article 35, Section 2, Assignment of Personnel Collateral duty assignments such as Motor Pool Officer, Property Officer, etc., shall be made in accordance with the procedures set out in Section 3. Section 3 of Article 35, to which this proposal makes reference, essentially provides that if the Agency does not utilize the competitive procedures outlined in Section 1 of that Article, assignments will be made on the basis of seniority. The competitive procedures established by that Article provide as follows: (a). All qualified employees in an office shall be considered for the assignment. (b). Qualified employees shall be ranked in accordance with the annual performance rating. (c). The selecting official may select any rated employee or no employee at all. Among other things, the Agency contends, without controversion, that the proposal would prevent it from assigning such work to nonunit personnel. The Agency's interpretation as to the effect of the proposal is neither incompatible with the language of the proposal, nor, as noted, is it controverted by the Union. In view of this, it is adopted for purposes of this decision. In view of this interpretation, the proposal is materially to the same effect as Union Proposal VI in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981), which the Authority found to be inconsistent with management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute. For the reasons expressed in FAA, Union Proposal 4 is not within the duty to bargain. /5/ 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 with respect to Union Proposals 1, 3, 4 and the 23 proposals referred to in note 1, supra. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on Union Proposal 2. Issued, Washington, D.C., July 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's petition originally included 27 proposals. However, based upon the record, the parties have resolved their dispute as to 23 of those proposals since the filing of the petition. Accordingly, there is no longer an issue as to whether those proposals are within the duty to bargain. /2/ In view of this disposition, it is unnecessary to discuss the various other contentions as to the nonnegotiability of this proposal which were raised by the Agency. /3/ In determining that this proposal is within the duty to bargain, the Authority makes no judgment as to its merits. /4/ In view of this disposition, it is unnecessary to address the Agency's other contentions as to the nonnegotiability of the proposal. /5/ In view of this disposition, it is unnecessary to address the Agency's other contentions as to the nonnegotiability of the proposal.