American Federation of Government Employees, Local 1302, Council of Prison Locals C-33 and U.S. Department of Justice, Federal Bureau of Prisons, Florence, Colorado

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55 FLRA No. 175







November 18, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves the negotiability of one proposal concerning assignment of overtime. The Agency filed a Statement of Position. The Union did not file a Response.

      For the reasons that follow, we find the proposal is outside the duty to bargain because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we dismiss the petition for review, pursuant to section 2424.10 of the Authority's Regulations. [n2] 

II.     The Proposal

Except in emergency situations, over-time procedures will be utilized prior to vacating any post.

III.      Positions of the Parties

A.     Agency

      The Agency claims that "by directing the manning of posts and the payment of overtime for that duty," the proposal conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute "because it limits the right of management to determine when work assignments will occur and when overtime work will be performed." Statement of Position at 5. The Agency also claims that the proposal is inconsistent with its right to determine its security practices under section 7106(a)(1) because it "limits [the Agency's] judgment regarding the degree of staffing necessary to carry out its security function[.]" Id. at 7.

      The Agency argues that, because the proposal affects its rights under section 7106(a), it does not constitute a procedure under section 7106(b)(2). In addition, the Agency claims that the proposal is not an appropriate arrangement under section 7106(b)(3) because it is not sufficiently tailored and because it excessively interferes with its management rights. The Agency argues that the Union makes only a "bare assertion that the proposal addresses its safety and security concerns," and that the Union has made "no specific arguments and cites no specific authority" regarding whether the proposal constitutes an appropriate arrangement. Id. at 9, 10.

B.     Union

      In its Petition for Review, the Union asserts that the proposal "deals with the utilization of overtime procedures prior to vacating posts[,]" and that the language of the proposal is "clear." Petition at 1. The Union claims that "the vacating of posts causes an unnecessary health and safety risk to bargaining unit employees." Id. The Union states that "[t]he United States Penitentiary Administrative Maximum (ADX) houses the most dangerous and violent Federal inmates in the system[, and that t]he mission of the ADX is to be the most secure Federal prison in the country." Id. The Union makes no other claims with respect to the negotiability of the proposal and, as noted above, the Union did not file a Response to the Agency's Statement of Position. [ v55 p1079 ]

IV.     Meaning of the Proposal

      The proposal states that, absent an emergency, overtime "procedures" will be used prior to "vacating a post." Consistent with its wording, the proposal would require the Agency -- in circumstances that do not constitute an emergency -- to maintain employee coverage at all posts by using overtime procedures. That is, the proposal would require the Agency to assign overtime to employees in order to ensure that all posts remain staffed at all times except emergencies.

V.     The Proposal Is Outside the Duty to Bargain Because It Affects Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

      The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996). Management's right to assign work includes the right to assign overtime and "to determine when the overtime will be performed." American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570, 1596 (1992) (Federal Grain Inspection Service) (citing National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 670-71 (1991)).

      As the proposal in this case requires the Agency -- in all circumstances except emergencies -- to assign employees to maintain coverage at staffed posts on an overtime basis prior to leaving such posts unstaffed, it prevents the agency from determining when work assignments will occur, as well as when overtime will be assigned. Accordingly, consistent with Federal Grain Inspection Service, 44 FLRA at 1596, we find that the proposal affects management's right to assign work under section 7106(a)(2)(B) of the Statute.

      The Union does not assert that the proposal constitutes a procedure or an appropriate arrangement. The Union makes only a general statement that the proposal "deals with the utilization of overtime p