[ v15 p798 ]
The decision of the Authority follows:
15 FLRA No. 152 NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 21 Union and NATIONAL LABOR RELATIONS BOARD Agency Case No. O-NG-708 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 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 bargain. 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 APPENDIX SUBSTITUTION OF SUPERVISORY POSITIONS BY UNIT EMPLOYEES 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 supervisory potential based upon lack of supervisory experience with respect to the managerial or personnel elements of supervisory potential. 8. In commenting upon the timeliness of an employee's case-handling performance, management will take into account any periods during which the employee served as an acting supervisor. 9. It is expressly understood that employees on the short- and long-term substitution lists should be given meaningful opportunities to serve as acting group supervisors, consistent with the operating needs of the office. Accordingly, management agrees that for purposes of long-term substitution for group supervisors, it will exhaust the list of employees eligible for long-term substitution before using other supervisory personnel. Likewise, management agrees that it will exhaust the short-term eligibility list before using other supervisory personnel for that purpose. Further, in the event that a short-term substitution is required, management will first exhaust the short-term list, and then the long-term list, before using supervisory personnel for such substitution, consistent with the operating needs of the office. 10. It is expressly understood that, consistent with the operating needs of the office an employee who is designated to act as a supervisor for a period of five (5) working days or more will not be expected or required to perform case-handling assignments or other bargaining-unit work. To this end, management will notify the person selected for substitution as a supervisor far enough in advance of that assignment so that the employee may complete his usual case-handling work before assuming such assignment, and the employee will not be expected or required to perform bargaining-unit work for the duration of the assignment. In the event that the employee selected for substitution as a supervisor cannot complete his or her bargaining-unit duties prior to the assumption of supervisory duties, such work will be transferred to other bargaining-unit employees, consistent with the operating needs of the office. (Only the underscored portions of section 10 are in dispute.) --------------- FOOTNOTES$ --------------- /1/ Since the Agency did not allege that section 8 of the Union's proposal was outside the duty to bargain, the Authority makes no determination as to the negotiability of this section.