20:0531(64)NG - NFFE Local 29 and Army Corps of Engineers, Kansas City, MO -- 1985 FLRAdec NG
[ v20 p531 ]
20:0531(64)NG
The decision of the Authority follows:
20 FLRA No. 64
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
U.S.ARMY CORPS OF ENGINEERS,
KANSAS CITY DISTRICT, KANSAS
CITY, MISSOURI
Agency
Case No. 0-NG-1085
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Federal Labor
Relations Authority (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 three Union proposals.
Upon careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations.
Union Proposal 1
Article 4, Section 3, (a) The employer shall within 30 days of
signing this Agreement, inform and instruct all levels of
management of the provisions of this Agreement.
It is well established that the duty to bargain under the Statute
extends only to those conditions of employment, i.e., personnel
policies, practices, and matters affecting working conditions, which
affect bargaining unit employees. See e.g., National Council of Field
Labor Locals, American Federation of Government Employees, AFL-CIO, and
U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292(1980).
However, pursuant to section 7112(b)(1) of the Statute, /1/ supervisory
and management officials are specifically excluded from inclusion in
appropriate bargaining units. Thus, proposals which concern such
management and supervisory positions are generally negotiable only at
the election of management. E.g., International Association of
Firefighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438,
445(1980). As relevant herein, Proposal 1 expressly concerns actions
management will be obligated to undertake with regard to nonbargaining
unit employees, specifically "all levels of management." That is, in
agreement with the Agency, as the proposal concerns the manner in which
the Agency communicates with its management and supervisory officials it
does not involve a condition of employment of bargaining unit employees
within the meaning of section 7103(a)(14) of the Statute. /2/
Therefore, the Authority concludes that since the Agency has elected not
to bargain on this proposal it is outside the duty to bargain.
Union Proposal 2
Article 4, Section 3, (c) The employer shall provide the Union,
in writing, a list containing the names, telephone numbers, title
and area of responsibility of all management and supervisory
personnel, the first week of October and April of each year and at
such other times whenever a change occurs. If a management or
supervisory official is not so designated, the Union or the
employees have no obligation to recognize that individual(s) as
agency representatives.
It appears from the record that the Agency objects only to the second
part of the proposal which would permit the Union or employees to refuse
to recognize a management or supervisory official as such until that
official has been identified to the Union pursuant to the first part of
the proposal. /3/
In this regard, the Authority has determined that in certain
circumstances a proposal which requires management to identify to an
employee management or supervisory personnel on its face constitutes a
negotiable "procedure" within the meaning of section 7106(b)(2) of the
Statute. American Federation of Government Employees, AFL-CIO, Local
3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA
76, 91(1983). However, a proposal which requires similar identification
would not constitute a negotiable procedure to the extent that it places
limitations on management's ability to act pursuant to its reserved
management rights. See Association of Civilian Technicians, Inc.,
Pennsylvania State Council and the Adjutant General, Department of
Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346,
348-50(1981), rev'd as to other aspects sub nom. Adjutant General,
Department of Military Affairs, Pennsylvania v. FLRA, 685 F.2d 93(3rd
Cir. 1982).
As relevant herein, and in agreement with the Agency, the Authority
concludes that Proposal 2 does not merely require the Agency to identify
certain management or supervisory personnel but rather, places
limitations on the Agency's right to "direct" employees and to "assign
work" pursuant to section 7106(a)(2)(A) and (B) of the Statute. That
is, contrary to the Union's claim that the proposal is intended to apply
only to labor relations matters, this proposal expressly permits
employees to refuse to recognize a management or supervisory official
unless that official has been identified according to the first portion
of the proposal. /4/ As a result, if the Agency does not identify a
management or supervisory official as specified therein, an employee
could refuse to recognize that individual as a management or supervisory
official for any purpose, including the ability to assign work or direct
employees. Thus, the Authority concludes that this proposal places a
limitation on the Agency's right to "direct" employees and to "assign
work." In addition, if for any reason the Agency had not identified a
management or supervisory official according to the first portion of the
proposal the Agency effectively would be precluded from assigning work
to that official, including duties involving labor relations matters,
since the Union would be able to refuse to recognize that official as
the Agency's chosen representative. Thus, as this proposal directly
interferes with the Agency's right to "direct" employees and to "assign
work" it is outside the duty to bargain.
Union Proposal 3
Article 4, Section 3(d) The employer shall report to the Union,
in writing, at the end of each pay period the amount of official
duty time used, by each management or supervisory official, for
the following types of activities, as they relate to bargaining
unit employees:
1. Representation of the agency in complaints, disciplinary
actions, adverse actions, discrimination complaints, statutory
appeals, and/or grievances;
2. Receipt, investigation, preparation and/or response to
complaints, disciplinary actions, adverse actions, discrimination
complaints, statutory appeals, and/or grievances;
3. Observation of or participation in a complaint,
disciplinary action, adverse action, discrimination complaint,
statutory appeal, and/or grievance;
4. Representation of the agency at an adjustment of a
complaint, disciplinary action, adverse action, discrimination
complaint, statutory appeal, and/or grievance;
5. Attendance at a committee/panel meeting(s) as an agency
representative or observer;
6. Review of and/or response to memos, DFs, letters,
complaints, new or proposed changes in working conditions or
conditions of employment of unit employees;
7. Receipt of and/or response to data request, complaints,
and/or letters from the Union;
8. Attendance or presentation at any hearing or meeting which
affects labor-management relations, including training seminars;
9. Representation of the agency in matter to or before the
FLRA, FMCS, FSIP, EEOC, MSPB, OSC, and/or the courts;
10. Preparation and filing of reports required by this
Agreement or higher headquarters relative to labor-management
relations;
11. Attendance at meetings/consultations with employees,
pursuant to section 7114(a)(2) of the Statute, or with the Union;
12. Preparations for and negotiations; and
13. Cost associated with any of the above (i.e., travel and
per diem).
This information will be provided as total number of hours
used, to nearest quarter hour, for each individual; except time
spent in preparation for negotiations shall be reported separate
from the total. This information will be provided no later than
two days after the end of each pay period. Supporting
documentation shall be attached.
Union Proposal 3, by its express terms, does not directly involve
personnel policies, practices or matters affecting working conditions of
bargaining unit employees but rather, the use of official time for a
variety of specified labor relations activities by nonbargaining unit
employees, i.e., management and supervisory officials. Moreover, in
this connection, the Agency contends that it does not maintain such
information in the regular course of its operations. Thus, this
proposal would have the effect of requiring management and supervisory
officials to create and maintain records relating to their use of
official time. In this regard, Union Proposal 3 is to the same effect
as Union Proposal 2 found nonnegotiable in National Treasury Employees
Union, Chapter 91 and Department of the Treasury, Internal Revenue
Service, Southwest Region, 17 FLRA No. 77(1985). There, the Authority
determined that as the disputed proposal required supervisors to create
and maintain certain records it constituted an assignment of work to
such supervisors and thus conflicted with section 7106(a)(2)(B) of the
Statute. Consequently, based on Internal Revenue Service, Southwest
Region and the reasons and case cited therein, Union Proposal 3, which
also requires supervisors and management officials to create and
maintain records concerns the assignment of specified duties to
supervisors and management officials and is outside the duty to bargain.
/5/
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., October 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7112(b)(1) of the Statute provides, in relevant part:
Section 7112. Determination of appropriate units for labor
organization representation
. . . .
(b) A unit shall not be determined to be appropriate under this
section solely on the basis of the extent to which employees in
the proposed unit have organized, nor shall a unit be determined
to be appropriate if it includes--
(1) . . . any management official or supervisor.
/2/ Section 7103(a)(14) of the Statute provides, in relevant part:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions. . . .
/3/ Agency Statement of Position at 3.
/4/ The Authority has consistently held that it will not base a
negotiability determination on a union's statement of intent which is
inconsistent with the express language of the disputed proposal. See,
e.g., American Federation of Government Employees, Local 2761 and U.S.
Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA
No. 118(1985) at 5 n. 7 of the decision.
/5/ In view of this conclusion, the Authority finds it unnecessary to
address the Agency's contention that the proposal conflicts with section
7114(b)(4) of the Statute.