[ v19 p640 ]
The decision of the Authority follows:
19 FLRA No. 81 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, MINT COUNCIL 157 Union and DEPARTMENT OF THE TREASURY, BUREAU OF THE MINT Agency Case No. O-NG-686 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 issues concerning the negotiability of four provisions /1/ of an agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Provision 1 Article 11, Section 11-5(b) Scheduled Overtime (Outside of Basic Workweek). If necessary to utilize an employee on the days outside of his/her basic workweek for scheduled overtime work, the employee will be guaranteed a minimum of four hours work at the applicable overtime rate. (Only the underlined portion is in dispute.) Provision 2 Article 13, Section 13-2 For the purpose of definition only, the statement "other related duties as assigned" in a job/position description will be other duties reasonably related to the job/position, qualifications, and grade/wage level. However, unrelated work may be assigned when cleanup of the employee's general work area is required, or when work specified in the job/position description is not available. This section does not apply to details (loans). (Only the underlined portion is in dispute.) Provision 1 would require that a minimum of four hours work be guaranteed to an employee scheduled overtime outside the basic workweek. Thus, the express language of the provision would prevent management from assigning less than four hours of overtime work. The Union asserts that the provision is only a procedure which management will adhere to when scheduling overtime work and, thus, within the duty to bargain under section 7106(b)(2) of the Statute. /2/ In this regard, the Authority held in American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153, 155 (1979), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982), that section 7106(b)(2) "is intended to authorize an exclusive representative to negotiate fully on procedures, except to the extent that such negotiations would prevent agency management from acting at all." Provision 1 would prevent the Agency from acting at all with respect to assigning an employee less than four hours of overtime work. Management's right "to assign work" pursuant to section 7106(a)(2)(B) /3/ includes the right to determine the particular : duties to be assigned and the particular employee to whom or position to which duties will be assigned. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). Furthermore, management's right "to assign work" includes the right to assign work on overtime. See American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982). See also American Federation of Government Employees, Local 1409, AFL-CIO and U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 16 FLRA No. 54 (1984). Thus, the Authority concludes that the provision is inconsistent with management's right under section 7106(a)(2)(B) and does not constitute a negotiable procedure under section 7106(b)(2). As to Provision 2, as noted above, it is well established that the right to assign work includes the right to assign particular duties to particular employees. Proposals which would have restricted management's discretion to assign work consistently have been found to be outside the duty to bargain. E.g., National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA No. 82 (1984) (Union Provision 2); International Association of Firefighters, AFL-CIO, Local F-116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg Air Force Base, California, 9 FLRA 700 (1982); American Federation of Government Employees, National Council of Social Security Payment Center Locals and Social Security Administration, Office of Program Service Centers, Baltimore, Maryland, 7 FLRA 818 (1982) (Union Proposals 2, 4 and 5) and cases cited therein. In the instant case, work unrelated to the position description could only be assigned when "cleanup of employee's work area is required, or when work specified in the job/position description is not available." Thus, the effect of Provision 2 would be to preclude the Agency from assigning work "unrelated" to an employee's position description under certain circumstances thereby restricting management's right to assign particular duties. Consequently, Provision 2 is inconsistent with management's right to assign work and is therefore outside the duty to bargain. Cf. American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982) (Proposal 2 requiring position descriptions to accurately reflect duties regularly assigned to employees held within the duty to bargain). Provision 3 Article 16, Section 16-16(a)(3) a. Composition and Establishment. Each promotion rating panel for specific unit vacancies shall have three (3) members appointed as follows: 3. One member appointed by the Local Union, within three workdays from the time of request for such appointment. Should the union fail to appoint a member within the prescribed time limit, management shall appoint the third panel member. (Only the underlined portion of subsection 3 is in dispute.) Provision 3 would require the participation of a Union representative on a promotion ranking panel for specific unit vacancies. A promotion rating panel is a permanent or ad hoc committee established to evaluate, compare and rank employees for promotion. /4/ The Authority has consistently held that the management rights enumerated in section 7106 include more than merely the right to decide to take the final actions specified. Instead, the exercise of these rights also encompasses the right to take certain actions integral to the exercise of management's rights, such as to discuss and deliberate concerning the relevant factors upon which such a determination will be made. In this regard, in National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982), the Authority, based upon the reasoning 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 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), relevantly held that a proposal requiring union representation on a Professional Standards Board and a Position Management Committee would allow the union to interject itself into the decisionmaking process, thereby interfering with management's rights under section 7106 of the Statute. In the present case, the promotion rating panel necessarily involves the exercise of managerial judgment in implementing management's decision to select employees for promotion under section 7106(a)(2)(C) of the Statute. /5/ That is, the provision would involve the Union in the Agency's selection process, allowing the Union to judge the extent to which candidates for merit promotion possess the knowledges, skills and abilities determined by management to be essential to perform the work of the vacant position. Evaluating and comparing the qualifications of applicants is an integral part of management's exercise of its right to make selections. Hence, the provision would interject the Union into management's decisionmaking whereby it determines which employees are to be selected for promotion. Thus, the provision herein interferes with management's right to select under section 7106(a)(2)(C) and is hence outside the duty to bargain. See National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543 (1983) (Union Proposal 1), petition for review filed sub nom. National Federation of Federal Employees, Local 1745 and Federal Labor Relations Authority, No. 84-1054 (D.C. Cir. Feb. 16, 1984), citing National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983). See also National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Farmers Home Administration, 16 FLRA No. 111 (1984) (Union Proposal 1). Provision 4 Article 16, Section 16-8-- Temporary Promotions c. Noncompetitive temporary promotions made under this section will be distributed or rotated in 30-day increments, to the extent practicable, among eligible employees assigned to the particular work unit. The provision would in essence require the Agency to distribute or rotate in 30 day increments noncompetitive temporary promotions among eligible employees assigned to that particular work unit. In this respect, the provision is substantively to the same effect as Proposal 13 in American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982), reversed as to other matters sub nom. Department of Justice, v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), which would have required management under certain circumstances to discontinue or reassign the work involved after 35 days regardless of whether it had been completed. The Authority concluded that the proposal violated management's right "to assign work" under section 7106(a)(2)(B) of the Statute. With respect to the phrase "to the extent practicable" in the present case which was not involved in Proposal 13 in U.S. Department of Justice, this language would not require a different result. Rather, it would have the effect of subjecting management's determinations as to work assignments, i.e., management's determination that it is not practicable to rotate assignments, to review in an arbitration proceeding. Thus, it would, in effect, subject to arbitral review the Agency's assignment of work and permit arbitrators to render awards which would require the Agency to rotate work assignments when it did not choose to do so. Thus, the language "to the extent practicable," contrary to the Union's claim, does not remove the limitation imposed on management's exercise of its rights by the provision. See American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Union Proposal 3). Therefore, for the reasons stated in U.S. Department of Justice, the Authority finds Provision 4 herein violates management's right to assign work under section 7106(a)(2)(B) and thus is 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. /6/ Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ During the pendency of the case, which, when originally filed contained 14 provisions, the Union withdrew 11 provisions and ultimately amended its petition to effectively reintroduce one of those which it had withdrawn. One of these 11 provisions was not withdrawn until after the Agency filed its Statement of Position. In view of the Union's withdrawal of this provision the Authority need not consider the Agency's arguments concerning the nonnegotiability of this provision. /2/ Section 7106(b)(2) of the Statute provides as follows: (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section(.) /3/ Section 7106(a)(2)(B) of the Statute provides as follows: 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(.) /4/ Federal Personnel Manual, Supplement 335-1, Appendix B, section B-13. /5/ Section 7106(a)(2)(C) of the Statute provides as follows: 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(.) /6/ In view of the decision herein, it is unnecessary to address the additional contentions of the Agency as to the nonnegotiability of the provisions.