17:0427(68)NG - NFFE Local 1 and EPA and EPA Region 9 -- 1985 FLRAdec NG

 17 FLRA No. 68
 
 NATIONAL FEDERATION OF 
 FEDERAL EMPLOYEES, LOCAL 1 
 Union 
 
 and
 
 ENVIRONMENTAL PROTECTION AGENCY 
 AND ENVIRONMENTAL PROTECTION 
 AGENCY REGION 9 
 Agency
 
                                            Case No. 0-NG-901
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 an issue
 concerning the negotiability of the following Union proposal.  /1/ Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
 
                              Union Proposal
 
          When the supervisor determines that a work assignment is of
       such importance that the employee's leave which was properly and
       timely scheduled in writing, must be cancelled, and the
       cancellation will result in the leave being forfeited because it
       cannot be rescheduled prior to the end of the leave year, the
       supervisor must then obtain approval of the exigency of the work
       from the Regional Administrative prior to the cancellation of the
       employee's leave.  (Only the underscored portion is in dispute.)
 
    This proposal, by requiring the Regional Administrator to make an
 "exigency of work" determination prior to the cancellation of approved
 employee leave, prescribes a specific duty which a particular
 non-bargaining unit employee would perform.  In this regard, the
 proposal is to the same effect as the Union's proposal in American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, 14 FLRA 278 (1984), appeal docketed sub nom. Local
 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir. June 15, 1984), which also
 prescribed a specific duty which a particular non-bargaining unit
 employee would perform.  In that case, the Authority found the proposal
 to be outside the duty to bargain since it would directly interfere with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute by eliminating the discretion inherent in that right.  Contrary
 to the Union's argument, the instant proposal would absolutely prohibit
 the Agency from assigning the duty of making "exigency of work"
 determinations prior to the cancellation of approved employee leave to
 any person other than the specified management official, thereby
 eliminating the discretion inherent in management's right to assign
 work.  Therefore, based on Office of Personnel Management and the case
 cited therein, the instant proposal is likewise outside the 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 be, and
 it hereby is, dismissed.  Issued, Washington, D.C., April 9, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its Statement of Position, the Agency withdrew its disapproval
 of an additional proposal concerning temporary promotions which the
 Union had originally included in its appeal.  Consequently, there is no
 longer an issue as to whether that proposal is within the duty to
 bargain.