[ v17 p538 ]
The decision of the Authority follows:
17 FLRA No. 78 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3488 Union and FEDERAL DEPOSIT INSURANCE CORPORATION, NEW YORK REGION Agency Case No. 0-NG-703 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises issues relating to 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 Employees who are assigned to Puerto Rico or the Virgin Islands for periods in excess of three weeks will be allowed to return to their residence every second weekend. Employees will be permitted to depart from their temporary assignment at a sufficient time to allow arrival at their residence by 6:00 p.m. on the same day and depart their residence no sooner than 7:00 a.m. on the next business day following such weekend. By its plain language, Union Proposal 1 requires the Agency to grant employees on temporary duty assignment in Puerto Rico or the Virgin Islands, on every other weekend, that amount of duty time, i.e., time which would otherwise be spent performing the work of their positions, for use in traveling to and returning from their place of residence. As the Agency indicated, depending on such variable factors as flight schedules and commuting time to and from points of departure and destination, the amount of duty time which would be "sufficient" to complete such travel, given the time limitations stated in the proposal, could amount to as much as an entire eight hour workday. /1/ In any event, the effect of the proposal is to preclude the Agency from assigning work to employees during that portion of the workday which is required for travel. In this regard, Union Proposal 1 herein has the same effect as Union Proposal 1 in American Federation of Government Employees, AFL-CIO, Local 3424 and Federal Home Loan Bank Board, San Francisco, California, 14 FLRA 79 (1984). In that case, the proposal at issue required the agency to grant a maximum of three hours of duty time for traveling, each way, when employees on temporary duty assignment returned to their residences on the weekends. The Authority held, based on its decisions in American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983) and National Treasury Employees Union and NTEU Chapter 80 and Department of the Treasury, Internal Revenue Service, Central Region, 8 FLRA 197 (1982), that because the proposal would preclude the assignment of work to employees during the duty time on which they were traveling to their residences, or returning to their temporary duty assignments, it directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. /2/ Thus, as Union Proposal 1 at issue herein similarly would preclude the Agency from assigning work to employees during that portion of the workday which they are using for travel to and from their residences, for the reasons set forth in the FHLBB, San Francisco, FHLBB, New York District Office, and IRS, Central Region decisions, it directly interferes with management's right to assign work under section 7106(a)(2)(B) and is outside the Agency's duty to bargain. /3/ Union Proposal 2 The Union has the right to participate in any stage in the ranking process and specifically to have a representative on the ranking panel. Transportation expenses incurred to enable a Union representative to participate on a ranking penal will be borne by the employer. Based on the express language of the proposal, and in the absence of any persuasive evidence of contrary intent in the record, the Authority interprets the proposal as requiring Union participation in every phase of the process whereby management selects an individual to fill a vacant position, exclusive of the decision to select itself. Under applicable regulation, /4/ this process involves, among other things, analysis of the job to be filled to determine the knowledges, skills, and abilities needed to successfully perform the duties of the position, i.e., identification of selective factors; the development of criteria used to determine whether, and the extent to which, candidates possess those knowledges, skills, and abilities, i.e., a crediting plan; the rating of candidates, i.e., the application of the crediting plan or rating schedule to the information contained in candidate applications to determine each candidate's "score" or degree of qualification; ranking the candidates by their "scores"; and preparing a certificate listing the candidates by ranking for submission to the selecting official. /5/ In this regard, in providing for the Union to participate, among other things, in that stage of the evaluative process which involves the identification of the "selective factors" to be used in rating and ranking candidates for a position, Union Proposal 2 herein has the same effect as Union Proposals 1 and 2 in National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983). The proposals at issue in that case provided for a joint labor-management committee to develop "promotion evaluation patterns," which included both "selective factors" and "crediting plans." Relying on its decisions in National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982), National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982), and American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. American Federation of Government Employees v. Federal Labor Relations Authority, 455 U.S. 945 (1982), the Authority held that those proposals, by providing for union participation in the decision-making process whereby management determines the knowledges, skills, and abilities which are necessary for successful performance of the work of a position, would directly interfere with management's right to make selections for appointments to vacant positions under section 7106(a)(2)(C) of the Statute. /6/ As indicated above, Union Proposal 2 at issue in this case similarly would require Union participation in that stage of the process of evaluation of candidates, prior to selection, wherein management determines the requisite "selective factors" to be used in rating and ranking candidates for the vacant position. Thus, apart from other considerations and for the reasons set forth in the Lowry Air Force Base decision, and the cases cited therein, Union Proposal 2 herein directly interferes with management's rights under section 7106(a)(2)(C) of the Statute and is outside the duty to bargain. Cf. National Federation of Federal Employees, Local 1001 and Department of the Air Force, Vandenberg Air Force Base, California, 15 FLRA No. 154 (1984) (Provisions 2 and 3) (provisions providing for union representative on selection panels to participate both in the deliberations and discussions attendant upon the decision to select a particular candidate and in the decision to select itself nonnegotiable under section 7106(a)(2)(C)). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to Union Proposals 1 and 2 be, and it hereby is, dismissed. /7/ Issued, Washington, D.C., April 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Agency Brief at 4-5. The Union tacitly admits to this interpretation of the proposal when it argues that a "sufficient" amount of time is whatever amount of duty time is necessary to allow employees to reach their destinations given the time limitation in the proposal. Union Brief at 5. /2/ Section 7106(a)(2)(B) provides, in relevant part: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- . . . . (B) to assign work(.) /3/ Both parties argue as to the compelling need for an Agency regulation, FDIC General Travel Regulation, paragraph 1208(c), which provides that employees on temporary duty assignments outside the continental United States may be authorized to return to their residences on every third weekend and will be authorized up to eight hours of official time for purposes of such travel. However, in light of its decision, the Authority finds it unnecessary to address the compelling need for the cited regulation. Such an agency regulatory provision constitutes an exercise of management's authority to assign work under section 7106(a)(2)(B) of the Statute and, therefore, is not subject to negotiation. American Federation of Government Employees, AFL-CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039, 1040 (1982). /4/ See Federal Personnel Manual Supplement 335-1, Appendix B. /5/ See also National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983), enforcement denied sub nom. U.S. Customs Service, Region II v. Federal Labor Relations Authority, 739 F.2d 829 (2nd Cir. 1984). /6/ Section 7106(a)(2)(C) provides: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- . . . . (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source(.) /7/ In light of its decision herein, the Authority finds it unnecessary to address the Agency's additional contentions as to the nonnegotiability of the proposals.