[ v19 p949 ]
The decision of the Authority follows:
19 FLRA No. 113 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 943 Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS KEESLER TECHNICAL TRAINING CENTER, KEESLER AIR FORCE BASE, MISSISSIPPI Agency Case No. O-NG-771 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 raises issues concerning the negotiability of four Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Article XII, Section 3, first sentence: Management agrees to avoid assignment whether voluntary or involuntary of janitorial and other related custodial duties, either on a temporary or continuing basis, be(ing) given to civilian employees who are officially assigned to clerical, technical administrative or professional positions. Union Proposal 2 Article XII, Section 5, second sentence: Employees who are unable to perform their regular assigned duties because of illness or injury, but who are capable of returning to or remaining in a duty status; management agrees to assist employees in finding assignments compatible with their medical condition if such a position is available, and vacant, or their regular assigned duties may be temporarily tailored to temporary medical limitations. The Agency argues that Union Proposals 1 and 2 are outside the duty to bargain under section 7106(a)(2) of the Statute because they directly interfere with management's rights. The Authority agrees. As to Union Proposal 1, in providing that management will avoid assigning janitorial or other custodial duties to certain types of employees, the proposal has the same effect as the proposal at issue in New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983). The proposal at issue in that case provided that certain tasks were not ordinarily intended to be a part of a nurse's normal duties. The Authority held, relying on its decision in Association of Civilian Technicians and State of Georgia National Guard, 2 FLRA 581 (1980), that the disputed proposal was outside the duty to bargain under section 7106(a)(2)(B) because it placed restrictions on management's ability to assign certain duties to nurses unless the requisite circumstances existed. /1/ Contrary to the Union's contention that the proposal does not preclude the assignment of janitorial duties but merely provides for management to avoid such assignments where possible, the Authority concludes that the proposal herein, like that in Veterans Administration Medical Center, Bronx, restricts management's ability to assign work in specified circumstances, i.e., wherever and whenever it can be avoided. Thus, for the reasons set forth in Veterans Administration Medical Center, Bronx and State of Georgia National Guard, the Authority finds that Union Proposal 1 herein directly interferes with management's right, under section 7106(a)(2)(B), to assign work and is outside the Agency's duty to bargain under the Statute. See Laborers' International Union of North America, AFL-CIL-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 691-92 (1984) (Union Proposal 5). With respect to Union Proposal 2, it requires management to attempt to find, for employees who are unable to perform their regular duties due to illness or injury, work assignments which are compatible with their medical condition or to reshape the regular duties of the positions of those employees. In this regard, the proposal has essentially the same effect as the proposal at issue in National Federation of Federal Employees, Local 1624 and Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980). The proposal at issue in that case required the agency to assign employees who were unable to perform their regular duties due to illness or injury to work assignments which were compatible with their physical conditions or to tailor their jobs to fit their physical limitations. The Authority held that the proposal, by requiring management to detail employees to particular types of positions, directly interfered with management's right to assign employees in the agency under section 7106(a)(2)(A) of the Statute, /2/ and, by requiring management to redesign the duties of a position, directly interfered with management's right to assign work under section 7106(a)(2)(B). Contrary to the Union, however, the fact that the instant proposal requires management to attempt to undertake such actions does not substantially distinguish this case from Contract Management Division. The implication of the proposal at issue herein is, nevertheless, that where management determines the reassignment of the employee or the redesign of the job is possible it must take those actions. Cf. American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 450-452 (1983) (Union Proposal 3) (proposal requiring critical elements of position to be related to grade-controlling duties of position "to the extent practicable" violative of management's rights under section 7106(a)(2)(A) and (B). That is, in order to make a good faith attempt to comply with the proposal, management would have to reassign employees or redesign jobs wherever and whenever it determines it could do so. Thus, for these reasons, and the reasons set forth in the Contract Management Division decision, Union Proposal 2 herein directly interferes with management's right under section 7106(a)(2)(A) to assign employees in the agency and under section 7106(a)(2)(B) to assign work and, therefore, is outside the Agency's duty to bargain under the Statute. See American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA No. 71 (1984) (Union Proposal 3); Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 695 (1984). Union Proposal 3 /3/ In Center Regulation 40-2, paragraph 4-6(c) AWARDS, the classes I and II should be amended as follows: Class I-- Meritorious Civilian Service award, Outstanding Performance Rating, and Superior Rating on most recent JPAS form. Class II-- Sustained Superior Performance Award, Quality step increase, and Excellent rating on most recent JPAS form. Union Proposal 4 In Center Regulation 40-2, paragraph 4-4 B(3) should be amended to add: Education and training courses which are determined to be job-related will be used to rank employees for promotional purpose. Education will be applied as the second sort factor in the PPRS. Education will be credited at a rate of one (1) point per semester hour, for past-secondary educational courses. Training courses will be credited at a rate of one (1) point for every thirty (30) hours of training. A maximum of 105 points will be credited for training or education combined. Local 943 will be represented on the panel, committee or other group which determines which courses will be credited for promotional purposes. The work of this group will be completed prior to 1 December 1982. Union Proposals 3 and 4 purport to modify an Agency regulation which establishes a promotion plan for use in the identification and selection of candidates to fill all positions which are subject to the regulation. In particular, the proposals would amend the regulation to prescribe certain abilities and accomplishments for which credit will be given, and the amount of such credit, to candidates in the rating process. Essentially, therefore, the proposals would establish portions of the Agency's "crediting plan." In this regard, the proposals have the same effect as the proposal at issue in The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA No. 112 (1985). In that case, the Authority held, adopting the decision of the United States Court of Appeals for the District of Columbia Circuit in Department of the Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762 F.2d 1119 (D.C. Cir. 1985), that a proposal which assigned points for crediting plan purposes solely on the basis of seniority was inconsistent with 5 CFR 300.103(a) because it was not derived from a job analysis which linked seniority to success in the particular position(s) in question. /4/ The proposals at issue in the instant case similarly are not based on a job analysis which demonstrates a connection between performance in a current position or of job-related training and success in the position(s) for which candidates are applying. /5/ Thus, for the reasons set forth in the Montana Air National Guard decision, the Authority finds that Union Proposals 3 and 4 at issue herein are inconsistent with 5 CFR 300.103(a) and outside the duty to bargain under section 7117(a)(1) of the Statute. /6/ 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., August 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7106 of the Statute provides, in relevant part, 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(.) /2/ Section 7106(a)(2) of the Statute provides, in relevant part, 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-- (A) to . . . assign . . . employees in the agency(.) /3/ Center Regulation 40-2, Paragraph 4-6(3), Awards, involved herein provides as follows: Para 4-6(3) Awards. Awards are used as the second sort factor. They must have been conferred at the same, higher, or next lower grade as shown in (a), (b), or (c) below. For positions classified at two-grade intervals, the award must have been confirmed at the next lower qualifying grade. A maximum of 3 points may be credited for awards. Credit is given only when related to the positions being filled and conferred within the last 5 years. When performance was recognized by both a monetary and honorary award, only one of the two will be credited. Civilian service awards and suggestion awards will be given credit as follows: AWARDS 1 - 3 Years 3 - 5 Years Class I 3 pts 2 pts Class II 2 pts 1 pts Class III 1 pt 0 pts (a) Class I - Meritorious Civilian Service Award. (b) Class II - Sustained Superior Performance Award and Quality Step Increase and Suggestion Cash Award ($50 or more) (c) Class III - Special Act Award Promotion Career Briefs will be included upon issuance of a certificate to the selecting official and the awards data (Items 31-36) must be considered in making the selection. Attachment to Agency Statement of Position. /4/ 5 CFR 300.103(a) reads in pertinent part: Sec. 300.103 Basic requirements. (a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics. The Authority has determined that Office of Personnel Management requirements codified at title 5 of the Code of Federal Regulations are Government-wide regulations within the meaning of section 7117(a) of the Statute. Professional Air Traffic Controllers Organization, AFL-CIO and Department of Transportation, Federal Aviation Administration, 4 FLRA 232, 233 (1980). /5/ In this regard, the Court stated in the Customs Service decision, 762 F.2d 1119, 1122-23, as follows: Exclusion of non-job-related education and experience is not the same as a job analysis before the measurement scheme is adopted, and cannot reasonably be said to assure the same results. The latter is apparent from the fact that, even as so limited, the proposal establishes the number of points to be awarded for each level of the various factors without any reference to the demands of specific occupations. It requires, for example, that boards grant the same number of points for a (job-related) bachelor's degree in all positions; and that they grant the same number of points for a sustained superior performance award as for a bachelor's degree in all positions. /6/ In view of the decision herein, the Authority finds it unnecessary to consider the Agency's additional contentions as to the nonnegotiability of the proposals.