15:0333(71)NG - AFGE International Council of Marshals Service Locals and Marshals Service -- 1984 FLRAdec NG

 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.