[ v16 p352 ]
The decision of the Authority follows:
16 FLRA No. 54 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1409, AFL-CIO Union and U.S. ARMY ADJUTANT GENERAL PUBLICATIONS CENTER, BALTIMORE, MARYLAND Agency Case No. O-NG-783 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 provisions of a negotiated agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Provision 1 Article X, Overtime, Section The Employer agrees that as a matter of general policy, work will be done by those employees within the scope of whose job descriptions the work would primarily follow. Both parties are in agreement that the instant provision would govern the distribution of overtime work. Specifically with respect to the provision, the Union, relying on American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982), states: (I)t is important to note that the disputed provision pertains to assignment of overtime work. Therefore, it concerns work that management has already determined to be performed by certain bargaining unit employees. /2/ The provision, itself, however, does not specifically state that it would apply only where management has determined both that overtime work is necessary and that it will be performed by bargaining unit employees, the situation existing in Food Safety and Quality Service. Rather, this provision, by its terms, would require that overtime work, when it is deemed necessary, would, as a general rule, be assigned to employees whose job descriptions include the kind of work to be accomplished on overtime. Thus, the provision has the net effect of limiting the assignment of overtime to bargaining unit employees. In this regard, the provision is to the same effect as Union Proposals 1 through 3 in International Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA No. 68 (1984), which also limited management's ability to reassign bargaining unit work and were consequently found to be inconsistent with management's right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. Hence, based on Yuma Proving Ground, and the reasons and cases cited therein, Provision 1 is outside the duty to bargain. Provision 2 Article XI, Shift Changes The Employer and the union agree that position vacancies in the Packaging Branch on the day shift will be filled by transfer from the night shift when requested by employee, provided the employee is qualified to perform the duties of the position. In case more than one employee desires a change of shift, seniority in the Center will determine the employee to be reassigned. The Union asserts with regard to this provision that "such vacant positions subject to this contract must either be an identical position or a position of the same grade and basic duties of the position currently held by the employee requesting a transfer." /3/ The Union's explanation of Provision 2 is not inconsistent with its express language and is accordingly adopted for the purpose of this decision. Consequently, the instant provision is to the same effect as the first disputed sentence of Union Proposal 1 in Laborer's International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 91 (1984) which required that management offer vacancies on the Monday through Friday shift to the most senior shift. Noting that the disputed sentence in that case "provides a procedure for determining when, i.e., on what shift, an employee will perform his previously established assignment," the Authority found it to be within the duty to bargain. Based upon Defense Depot Tracy, and the reasons and case cited therein, Provision 2 herein is within the Agency's duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review, as it relates to Provision 1 be, and hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall rescind its disapproval of Provision 2 which was bargained on and agreed to by the parties. Issued, Washington, D.C., October 31, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The petition for review originally sought review of the Agency head's determination on six contractual provisions. The Union subsequently withdrew its request for review of all but the two provisions examined herein. /2/ Union Reply Brief at 3. /3/ Id. at 6.