U.S. Federal Labor Relations Authority

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15:0825(158)NG - AFGE Local 32 and OPM -- 1984 FLRAdec NG

[ v15 p825 ]
The decision of the Authority follows:

 15 FLRA No. 158
                                            Case No. O-NG-907
    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 presents issues
 concerning the negotiability of two Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          The employee has a right to union representation in all phases
       of the classification review process, including desk audits.
    Union Proposal 1 herein is to the same effect as Union Proposal 1 in
 American Federation of State, County, and Municipal Employees, AFL-CIO,
 Local 2027 and Action, Washington, D.C., 12 FLRA No. 128 (1983) which
 provided that employees have the right to union representation in all
 meetings with management involving classification matters, including
 desk audits.  The Authority determined that proposal to be within the
 duty to bargain.  Specifically, the Authority held that the proposal in
 Action was not excluded from the definition of "conditions of
 employment" by section 7103(a)(14)(B) of the Statute /1/ because it only
 concerned an employee's right to union representation in meetings with
 management concerning classification matters, including desk audits,
 rather than classification itself.  /2/ Hence, based on Action, and the
 reasons stated therein, Union Proposal 1 herein is within the duty to
                             Union Proposal 2
          Employees will get at least 10 workdays notice of any change in
       duties or work assignments.
    The Agency's first contention that Union Proposal 2 directly
 interferes with management's right pursuant to section 7106(a)(2)(B) of
 the Statute to "assign work" cannot be sustained.  That is, the proposal
 merely would require the Agency to give a specified amount of advance
 notice of changes in work assignments.  In this regard, the proposal is
 to the same effect as Union Proposal 11 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), which
 also required management to give prior notice of a change in work
 assignments.  The Authority found the proposal therein to be a procedure
 which management would observe in the exercise of its rights to assign
 work, and thus, within the duty to bargain pursuant to section
 7106(b)(2) of the Statute.
    In that case, the Authority cited American Federation of Government
 Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service,
 Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152, 155 (1979),
 enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
 Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982),
 which stated that section 7106(b)(2) "is intended to authorize an
 exclusive representative to negotiate fully on procedures, except to the
 extent that such negotiations would prevent agency management from
 acting at all." With respect to the case at issue, contrary to the
 Agency's assertion, there is no indication that meeting the proposal's
 notice requirement would in any manner prevent it from acting at all to
 assign work to employees.  Hence, unless this proposal would, as claimed
 by the Agency, prevent management from taking "whatever actions may be
 necessary to carry out the agency mission during emergencies" pursuant
 to section 7106(a)(2)(D) of the Statute, it would for the reasons and
 case cited in U.S. Marshals Service, constitute a negotiable procedure.
 Accord National Association of Government Employees and Department of
 the Interior, 14 FLRA No. 52 (1984).
    Turning now to the question of whether Union Proposal 2 would limit
 management's right to take necessary actions to carry out the Agency's
 mission during emergencies we conclude that it would not.  Section
 7106(a)(2)(D) of the Statute explicitly provides that "nothing in this
 chapter (of the Statute) shall affect the authority of any management
 official of any agency . . . to take whatever actions may be necessary
 to carry out the agency mission during emergencies." In this respect the
 Authority previously determined in Association of Civilian Technicians,
 Inc., Pennsylvania State Council and the Adjutant General, Department of
 Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346 (1981) (Union
 Proposal 1) that a provision which explicitly required verification and
 a declaration by a specified supervisor before taking emergency action
 would violate section 7106(a)(2)(D).  Similarly, in Laborers'
 International Union of North America, AFL-CIO-CLC, Local 1267 and
 Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14
 FLRA No. 91 (1984) (Proposal 2), the Authority concluded that a proposal
 which specifically provided that even in emergencies the agency would be
 required to provide "three working days advance notice" of certain
 reassignments also violated section 7106(a)(2)(D).  Unlike the language
 in dispute in the two cited cases, however, Union Proposal 2 herein does
 not expressly concern emergency situations.  Such silence as to the
 effect of Union Proposal 2 in an emergency does not thereby render the
 proposal nonnegotiable.  That is, pursuant to the language of section
 7106(a)(2)(D) nothing "shall affect the authority of any management
 official . . . to take whatever action may be necessary . . . during
 emergencies." Thus, negotiation of Union Proposal 2 would not prevent
 the Agency from suspending the notice requirement of such proposal in an
 emergency.  Since Union Proposal 2 would not prevent the Agency from
 acting at all with respect to assigning work to employees or from taking
 "whatever action may be necessary . . . during emergencies" it is a
 procedure negotiable pursuant to section 7106(b)(2) of the Statute.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposals 1
 and 2.  /3/
    Issued, Washington, D.C., August 30, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7103(a)(14)(B) of the Statute provides as follows:
          Sec. 7103.  Definitions;  application
          (a) For the purpose of this chapter--
                                .  .  .  .
          (14) "conditions of employment" means personnel policies,
       practices, and matters, whether established by rule, regulation,
       or otherwise, affecting working conditions, except that such term
       does not include policies, practices, and matters--
                                .  .  .  .
          (B) relating to the classification of any position(.)
    /2/ While the Agency refers to a Government-wide regulation
 concerning employee representation rights during desk audits conducted
 by OPM in furtherance of its Government-wide responsibilities, the
 Agency concedes that such regulation is not applicable in the
 circumstances of this case.  Thus, it is unnecessary for the Authority
 to consider such regulation in this decision.
    /3/ In finding Union Proposals 1 and 2 to be within the duty to
 bargain, the Authority makes no judgment as to their merits.