16:0352(54)NG - AFGE Local 1409 and Army Adjutant General Publications Center, Baltimore, MD -- 1984 FLRAdec NG

 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.