19:0640(81)NG - AFGE, Mint Council 157 and Treasury, Bureau of the Mint -- 1985 FLRAdec NG
[ v19 p640 ]
19:0640(81)NG
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.