15:0798(152)NG - NLRBU Local 21 and NLRB -- 1984 FLRAdec NG

[ v15 p798 ]
The decision of the Authority follows:

 15 FLRA No. 152
                                            Case No. O-NG-708
    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 a ten part Union proposal which is set
 forth in an Appendix to this decision.  /1/ Upon careful consideration
 of the entire record, including the parties' contentions, the Authority
 makes the following determinations.
    Sections 1-5, the disputed portion of section 6, and section 9 of the
 Union's proposal establish a procedure for selecting bargaining unit
 employees to fill supervisory positions on a temporary basis.  It is
 well established that a proposal concerning the filling of supervisory
 positions, including temporary appointments, is negotiable only at the
 election of the agency since it does not concern a condition of
 employment of bargaining unit employees.  National Union of Compliance
 Officers, Ind. and U.S. Department of Labor, Labor-Management Services
 Administration, 9 FLRA 735 (1982), International Association of Fire
 Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980)
 (Proposal III).  Since the Agency in this case has elected not to
 bargain on this issue, sections 1-5, the disputed portion of section 6
 and section 9 of the proposal are outside the duty to bargain.
    The Agency contends, without controversion, that Section 7 of the
 Union's proposal would prevent management from considering an employee's
 lack of supervisory experience when evaluating him or her.  In this
 regard, the Authority has held in several cases that proposals which
 prevent management from considering certain factors when evaluating
 employees violate management's rights to direct employees and assign
 work pursuant to sections 7106(a)(2)(A) and (B) of the Statute.  E.g.,
 American Federation of Government Employees, National Council of Social
 Security Payment Center Locals and Social Security Administration,
 Office of Program Service Centers, Baltimore, Maryland, 7 FLRA 818
 (1982) (Union Proposals 6 and 7);  National Treasury Employees Union and
 Internal Revenue Service, 6 FLRA 522 (1981) (Union Proposal 7) and the
 cases cited therein.  Thus based on the rationale set out in the cited
 cases, section 7 of the Union's proposal herein is outside the duty to
    The disputed portions of section 10 of the Union's proposal expressly
 provide that management will not require employees to perform bargaining
 unit work during the time that they are substituting for supervisory
 personnel.  The Authority held in International Association of Fire
 Fighters, Local F-215 and Headquarters, 15th Infantry Division
 (Mechanized), Fort Polk, Louisiana, 8 FLRA 417 (1982) that a proposal
 which prevents management from assigning certain duties to employees is
 inconsistent with the Agency's right to assign work pursuant to section
 7106(a)(2)(B) of the Statute.  Thus, the disputed portions of section 10
 of the Union's proposal are also outside the duty to bargain because
 they would prevent the Agency from assigning work to employees during
 temporary assignments.
    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., August 29, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
    1.  Two lists shall be maintained for field examiners and attorneys
 for substitution for supervisory positions.  One list shall be long-term
 substitution and one list for short-term substitution.
    2.  Long-term substitution is defined as an assignment of eleven (11)
 or more working days.  Short-term substitution is defined as an
 assignment of from five (5) to ten (10) working days.  With respect to
 substitution of four (4) or fewer working days, management shall be
 entitled, consistent with the operating needs of the office, to select a
 substitute from the short-term list without regard to, or effect upon,
 an employee's position on that list.
    3.  The long-term substitution list shall include only those GS-12 or
 13 field examiners and GS-13 or 14 attorneys who are rated
 well-qualified for supervisory positions.  Any attorney who was
 converted from field examiner status and was rated well-qualified for
 supervisory positions shall be placed upon the long-term list.
    4.  The short-term substitution list shall include all GS-12 or 13
 field examiners and GS-13 or 14 attorneys not rated well-qualified for
 supervisory positions.
    5.  Initial selection of employees for the short- or long-term lists
 shall be based upon seniority, with seniority beginning with the date an
 employee is promoted to GS-12, in the case of field examiners, or GS-13,
 in the case of field attorneys, for the short-term list.  Seniority for
 the long-term list will begin with the date an employee is rated
 well-qualified.  Following initial selection for the lists, employees
 will be added to the bottom of the respective lists as they become
 eligible therefor.  In filling supervisory substitution opportunities,
 management will first offer, consistent with the operating needs of the
 office, such opportunities to the first person on the applicable list.
 If that person declines, the next person shall be asked, and so forth.
 If any person declines an opportunity to substitute twice in succession,
 such person's name shall be moved to the bottom of the list.  Upon
 request, an employee may delete his or her name from the substitution
 list and may, upon request, be reinstated to the appropriate list, in
 which event, his or her name shall be placed at the bottom of the list.
    6.  Management shall be responsible for maintaining the short- and
 long-term lists and shall record the dates each employee was requested
 to substitute and if and when an employee declined to substitute and the
 reasons therefor.  Upon request, the Local shall have access to such
 records for purposes of inspection.  In addition, on a yearly basis
 coinciding with the individual employee's appraisal year, management
 shall prepare a record in memorandum form, setting forth, for each
 eligible employee, the dates of any supervisory substitution assignments
 and for whom the employee substituted, with copies to the employee, the
 employee's supervisor, NLRBU Local 21, and one copy to be placed in the
 employee's personnel file.  (Only the underscored portion of section 6
 is in dispute.)
    7.  It is agreed that management will refrain from any negative
 comment on or consideration of supervis