[ v15 p825 ]
The decision of the Authority follows:
15 FLRA No. 158 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. O-NG-907 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 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 bargain. 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.