[ v17 p427 ]
The decision of the Authority follows:
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.