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The decision of the Authority follows:
19 FLRA No. 25 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 204 Union and FEDERAL ELECTION COMMISSION Agency Case No. O-NG-756 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 presents an issue concerning the negotiability of the following Union proposal. /1/ Union Proposal 3.C.(1) The Employer will provide to the Union a list of all positions in the three participating units. Reasonable restrictions regarding staffing requirements may be included by the Employer pursuant to 5 U.S.C. 7106(b)(1) and Article 25, Sec. 8(C)(2) of the contract. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. /2/ The disputed proposal arises out of midterm bargaining over the establishment of a trial compressed workweek program. The parties have agreed upon a plan wherein an employee's ten day, 80 hour pay period is comprised of eight nine hour work days, one eight hour day and one day off. The disputed proposal concerns the determination of when the eight hour day and day off will occur. With regard to its method of operation, the Agency states: The (Agency) conducts its decision-making process by means of two formal weekly meetings. These sessions are normally held on Tuesday and Thursday of each week. Depending on the subjects to be discussed, a variety of (Agency) staff members will attend the meetings as a result of having drafted papers, reports or memoranda for discussion at a particular meeting, or will have work responsibilities attendant to preparation for the meetings, or as a result of projects assigned during the course of the meeting. /3/ (Footnote added.) The Agency contends that, because of its operating method, it must have unfettered authority to determine which employees or groups of employees will at at work on certain days or for certain hours. The Agency asserts that subjecting these determinations to arbitral scrutiny, applying a "reasonableness" test as provided in the Union's proposal, improperly interferes with its rights, pursuant to section 7106(a)(2)(B) and (b)(1) of the Statute, "to assign work" and to determine "the numbers, types, and grades of employees . . . assigned to any organizational subdivision, work project, or tour of duty(.)" The Agency argues, in essence, that the possibility of an arbitrator's disagreeing that the Agency exercised its rights in a "reasonable" manner has the effect of negating those rights reserved to management, and, consequently, the proposal is outside the duty to bargain. The Authority agrees with the Agency's position that the proposal is inconsistent with the right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work." In National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority analyzed the right to assign work. Among the elements comprising that right, the Authority noted, were: the discretion to determine "the particular employees to whom or positions to which (work) will be assigned" and "to determine when the work which has been assigned will be performed." The disputed proposal herein clearly concerns these elements of the right to assign work. That is, the proposal concerns the granting of days off to employees on compressed work schedules. The decision on when these days off will occur affects both whether employees will be able to participate in the two weekly formal decision-making meetings described by management and/or whether employees can be given assignments relating to the preparation for the meetings. The occurrence of days off would dictate to whom work could be given and when the work could be performed. The instant proposal would subject the Agency's exercise of its reserved right to assign work to arbitral scrutiny on the basis of its reasonableness as opposed to the application of those rights to employees. /4/ In this respect, this broad standard proposal would have the net effect of permitting the substitution of an arbitrator's judgment for that of management's in deciding to whom and when work will be assigned. That is, the proposed standards would bring into question such matters as the timing of assignments, the identification of the employees who received an assignment, and the numbers of employees necessary to accomplish a specific assignment. Moreover, the proposed standard is open to an interpretation which would permit a challenge based on an employee's view that assignments are unreasonable because he or she is frequently prevented from taking more desirable days off. In this regard, the Authority has consistently held that proposals substantively restricting management in the establishment of performance standards interfere with the rights to assign work and to direct employees. Thus, in American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 127 (1984) (Union Proposal 3) the Authority held to be outside the duty to bargain a proposal requiring that performance standards "be fair and equitable." In so holding, the Authority noted particularly that the proposal "would permit arbitrators to substitute their judgments as to the proper content of performance standards for that of the Agency." Similarly the disputed proposal herein would substitute an arbitrator's view of what is "reasonable" for management's determination of what is necessary, in terms of who will receive work and when it will be performed, to accomplish the Agency's objectives. Consequently the proposal is inconsistent with the Agency's right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work." Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., July 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's motion to dismiss the petition for review on the basis that the Union failed to comply with the requirement in section 2424.4(a)(2) of the Authority's Rules and Regulations that the petition for review include a statement of the meaning attributed to the proposal by the proponent is denied. The Union did, upon request of the Authority, file such a statement, averring, in effect, that the proposal is self-explanatory and that as a result of extensive discussions between the parties they were both well aware of the meaning of the proposal. /2/ The Union was granted an extension of time for filing its Reply Brief. However, the Union failed to file its brief within the time limit set by the extension. Consequently the Reply Brief has not been considered in reaching a decision herein. /3/ Agency Statement of Position at 4. /4/ Cf. American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service, 8 FLRA 268 (1982) (wherein the Authority, citing American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980), found a proposal negotiable which would have established a general, nonquantitative requirement by which management's exercise of a reserved right could subsequently be evaluated. In that case, the proposal concerned application of the right to affected employees, whereas, here, the proposal concerns the actual exercise of the right to assign work itself).