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29 FLRA NO. 43



INDEPENDENT LETTERMAN HOSPITAL
WORKERS' UNION

                     Union

       and

DEPARTMENT OF THE ARMY,
NUTRITION CARE, LETTERMAN
ARMY MEDICAL CENTER

                     Agency

Case No. 0-NG-1339

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The case concerns the negotiability of four Union proposals.

We conclude that the petition for review should be dismissed as it relates to three of the proposals. We further conclude that Proposal 2, concerning Union representation on the Agency's incentive awards committee, is negotiable.

II. Procedural Issues

Regarding the proposal which is referenced in the Union's petition as "Article 15, Section 1" and which concerns the Agency's merit promotion plan, the Union's petition does not meet the requirements of our Regulations. Section 2424.4(a)(3) of our Regulations requires a union to support its negotiability petition with (1) a copy of the agency's written allegation of nonnegotiability on the proposal at issue or (2) a showing that the agency failed to respond to the union's request for such an allegation.

Based on both parties' submissions to us, the Agency has not alleged that this Union proposal is nonnegotiable. 

Further, the Union's petition does not show that the Agency failed to respond to a Union request for an allegation concerning this proposal. Accordingly, the petition must be dismissed as to this proposal because it is not properly before us.

Finally, insofar as the Agency has only asserted that it sees "problems" in this proposal, these problems should be fully discussed by the parties before a negotiability appeal is brought to us. See Overseas Education Association v. FLRA, No. 86-1491, slip op. at 13 (D.C. Cir. Aug. 28, 1987) ("it is for the Union, not the FLRA, to draft proposals that come fully within the Employer's duty to negotiate").

Regarding a second proposal referenced in the petition as "Article 4, Section 7" and which concerns employee classifications and/or job descriptions, the Union asserts that this proposal should be returned to the parties for further discussions, because they disagree over the proposal's purpose and intent. We interpret the Union's assertion as a motion to withdraw its petition concerning this proposal and grant the motion.

The dismissals concerning these two proposals are without prejudice to the Union's right to file a negotiability petition as to them at a later date--if the conditions governing review of negotiability issues are met and the Union chooses to file such an appeal.

III. Proposal 1

Every effort will be made to assign unit employees to work appropriate to their classification. In the event that it becomes necessary to temporarily assign employees to work at a lower level than the classification held, or where the work is appropriate to the classification but is unusually dirty or arduous, the employer agrees that affected employees within the same work section will be assigned on an inverse seniority basis from the higher classification level most related to the duties required to be performed. Also, management agrees to comply with title 5, U.S.C., Section 2302(2)(A), concerning any bargaining unit employees or responsibilities. (The underscored language is not in dispute.) 

A. Positions of the Parties

The Agency asserts that the requirements of this proposal would prevent it from assigning work to employees based on differences among employees' ability to perform the work which is needed to be done and employees' availability in relation to their performance of other necessary work. In this regard, the Agency argues the proposal conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Union asserts that the proposal is negotiable.

B. Analysis and Conclusion

We conclude that this proposal is nonnegotiable because it conflicts with the right to assign work under section 7106(a)(2)(B) of the Statute.

Based on its wording and the Agency's understanding of its intent--which is not disputed by the Union--the first sentence of the proposal would restrict the duties that management may assign to employees to those duties which

conform to employees' position classifications. The Authority has consistently held that proposals which would preclude management from assigning necessary work to employees if the work does not conform to employees' classifications or qualifications are nonnegotiable because they conflict with management's right to assign work. For example, American Federation of Government Employees, AFL - CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA No. 152 (1987) (Fort Rucker) (provision 8); National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578, 580-81 (1984) (Vint Hill); International Association of Fire Fighters, Local F-109, AFL - CIO and Department of the Army, Headquarters, Carlisle Barracks, Carlisle, Pennsylvania, 8 FLRA 35 (1982).

The language "every effort," which qualifies the requirement in the first sentence of the proposal, does not remove the limitation imposed on management's right to assign work. See Fort Rucker (Provision 8); Vint Hill. With this language, this portion of the proposal would permit arbitrators to substitute their judgment for management's on whether certain work should be assigned to certain employees.

The second sentence of the proposal would require management to assign certain duties--duties below employees' classification levels or duties which are unusually dirty or arduous--to employees based solely on seniority. As we recently explained in National Treasury Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA No. 61 (1987), union proposals which impose such restrictions on management's discretion to assign duties do conflict with the right to assign work so as to be nonnegotiable unless the record concerning the proposal shows that management retains the discretion to determine whether the employees to whom the duties may be assigned are equally capable of performing the duties.

The record in this case concerning this proposal does not show that the proposal satisfies either of these requirements. Accordingly, this proposal conflicts with the right to assign work and is outside the duty to bargain. For example, American Federation of Government Employees, International Council of U.S. Marshals Service Locals and U.S. Department of Justice, U.S. Marshals Service, 8 FLRA 268, 269 (1982).

IV. Proposal 2

The Employer agrees that the Union shall have four (4) representatives on the incentive awards committee. Said representatives will participate in deliberations and discussions with respect to planning the suggestion program, stimulation (sic) participation, establishing goals and targets, evaluating progress, and appraising employee's(,) supervisor, and management reactions. During evaluations and voting procedure with respect to nominees for incentive awards, the Union representatives shall serve as participating members of the committee.

A. Position of the Parties

The Agency asserts that the functions of its incentive awards committee constitute the exercise of management's rights to direct employees and assign work under section 7106 (a)(2)(A) and (B) of the Statute. In this regard, it argues that the proposal is nonnegotiable because it would provide  for Union participation in management's internal deliberative process regarding the exercise of these rights.

The Union argues that the proposal does not conflict with management's rights as argued by the Agency. It also argues that the Agency's response to this proposal indicates that the Agency has failed to bargain in good faith.

B. Analysis and Conclusion

This proposal is negotiable. In Fort Rucker, 28 FLRA No. 152 (1987) (Provision 9) we held that a provision which required that a union shall have representation on an agency incentive awards committee was negotiable because the provision did not interfere with management's rights to direct employees and assign work under section 7106(a) of the Statute. Accord National Federation of Federal Employees, Local 797 and Department of the Navy, 29 FLRA No. 36 (1987) (Provision 2). As explained in Fort Rucker (Provision 9), this conclusion was based on decisions of the United States Court of Appeals for the District of Columbia Circuit which held that agency decisions concerning incentive awards did not involve the exercise of the rights to direct employees and assign work within the meaning of section 7106(a) of the Statute. For example, NTEU v. FLRA, 793 F.2d 371, 374 (D.C. Cir. 1986)

This Agency's objections to Proposal 2, which states that the Agency's incentive awards committee will include Union representatives, are substantively the same as the contentions the agency raised and we rejected in Fort Rucker (Provision 9). Accordingly, since the Agency has not raised other grounds for finding Proposal 2 nonnegotiable and other grounds for such a holding are not apparent to us, we conclude that Proposal 2 is negotiable.

The Union's contentions as to whether the Agency has bargained in good faith concerning this proposal are inappropriate for this proceeding. Under part 2424 of our Regulations, which apply to negotiability appeals, our decisions are limited to whether a matter proposed for bargaining is inconsistent with law, rule, or regulation. Other issues relating to the conduct of a party in negotiations are appropriate for unfair labor practice procedures, as provided for under part 2423 of our Regulations. See American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987). 

V. Order

The Agency must negotiate upon request or as otherwise agreed to by the parties concerning Proposal 2. 1 The petition for review is dismissed as to the remaining proposals.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 In deciding that Proposal 2 is within the duty to bargain, we make no judgment as to its merits.

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