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U.S. Federal Labor Relations Authority

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19:0234(25)NG - NTEU Chapter 204 and Federal Election Commission -- 1985 FLRAdec NG

[ v19 p234 ]
The decision of the Authority follows:

 19 FLRA No. 25
                                            Case No. O-NG-756
    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.
    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
    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
                                       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
    /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).