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 3 FLRA No. 44
 
 NATIONAL COUNCIL OF FIELD LABOR LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
 and
 
 U.S. DEPARTMENT OF LABOR,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. 0-NG-79
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135.
 
    THE THREE UNION PROPOSALS IN ISSUE AROSE FROM NEGOTIATIONS TO
 ESTABLISH A SPECIAL PLACEMENT PLAN TO PROVIDE PLACEMENT OPPORTUNITIES
 FOR OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS EMPLOYEES IN THE
 UNION'S BARGAINING UNIT WHO WERE ADVERSELY AFFECTED BY THE CONSOLIDATION
 OF THE E.O. 11246 CONTRACT COMPLIANCE FUNCTION IN THE DEPARTMENT OF
 LABOR.
 
                             UNION PROPOSAL I
 
    E.  BASIC REQUIREMENTS
 
   .          .          .          .
 
 
    2.  AREA OF ELIGIBILITY
 
    A.  IN RECOGNITION OF THE MERIT PRINCIPLES ESTABLISHED BY THE CIVIL
 SERVICE REFORM ACT OF
 
    1978, AND THE INHERENT DIFFERENCES BETWEEN A SUPERVISORY AND A
 NONSUPERVISORY POSITION, THE
 
    PARTIES AGREE THAT THE COMPETITIVE PROCEDURES OF THE DEPARTMENT'S
 MERIT PROMOTION PLAN WILL BE
 
    UTILIZED WHEN FILLING SUPERVISORY OR MANAGEMENT POSITIONS WITH
 BARGAINING UNIT EMPLOYEES.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL I IS OUTSIDE THE AMBIT OF THE
 DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ AS ALLEGED BY THE
 AGENCY.
 
    CONCLUSION:  UNION PROPOSAL I IS OUTSIDE THE SCOPE OF THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 35123,
 THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN ITS
 DUTY TO BARGAIN IS SUSTAINED.  /2/
 
    REASONS:  THE AGENCY ASSERTS THAT UNION PROPOSAL I IS OUTSIDE
 MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE
 BECAUSE IT RELATES TO THE METHOD THAT MANAGEMENT WILL USE IN FILLING
 SUPERVISORY AND MANAGEMENT POSITIONS, WHICH ARE NON-BARGAINING UNIT
 POSITIONS.  THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION.  THE
 PROPOSAL PUTS CONDITIONS ON FILLING SUPERVISORY AND MANAGEMENT POSITIONS
 WHICH ARE OUTSIDE THE UNIT AND MAY NOT BE INCLUDED IN APPROPRIATE UNITS
 BY OPERATION OF SECTION 7112(B)(1) OF THE STATUTE.  AN EXCLUSIVE
 REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS, HOWEVER, EXTEND ONLY
 TO EMPLOYEES IN THE UNIT, UNDER SECTION 7114(A)(1).  /3/ FURTHERMORE,
 THE DEFINITION OF "COLLECTIVE BARGAINING" FOUND IN SECTION 7103(A)(12)
 AND SET OUT AT FOOTNOTE 1, SUPRA, RESTRICTS THE SCOPE OF THE OBLIGATION
 TO BARGAIN IN GOOD FAITH TO MATTERS AFFECTING THE CONDITIONS OF
 EMPLOYMENT OF EMPLOYEES IN AN APPROPRIATE UNIT.  CONSEQUENTLY, THE
 AGENCY HAS NO OBLIGATION TO BARGAIN OVER MATTERS RELATING TO THE
 NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL.  THUS, AS THE
 PROPOSAL GOES BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE
 REPRESENTATIVE AND DOES NOT DIRECTLY RELATE TO CONDITIONS OF EMPLOYMENT
 OF UNIT EMPLOYEES, IT IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 
                            UNION PROPOSALS II
 
    E.  BASIC REQUIREMENTS
 
    2.  AREA OF ELIGIBILITY
 
   .          .          .          .
 
 
    B.  BARGAINING UNIT EMPLOYEES TO BARGAINING UNIT POSITIONS
 
   .          .          .          .
 
 
    THE PROCEDURES FOR REASSIGNMENT ARE AS FOLLOWS:
 
   .          .          .          .
 
 
    THE MOST SENIOR QUALIFIED VOLUNTEER IN TERMS OF SCD (SERVICE
 COMPUTATION DATE) WILL BE
 
    OFFERED THE REASSIGNMENT.  IF NO ELIGIBLE QUALIFIED EMPLOYEE
 VOLUNTEERS FOR THE PARTICULAR
 
    VACANT POSITION, THE POSITION, IF TO BE FILLED, WILL THEN BE FILLED
 THROUGH THE NORMAL
 
    STAFFING PROCEDURES OUTLINED IN ARTICLE 20 OF THE MASTER COLLECTIVE
 BARGAINING AGREEMENT.
 
    C.  THE PROCEDURES OUTLINED ABOVE WILL BE USED ON A CONTINUING BASIS
 UNTIL ALL ELIGIBLE
 
    EMPLOYEES HAVE BEEN PLACED IN A PERMANENT POSITION OR UNTIL THE
 EXTENDED DETAIL AUTHORITY
 
    EXPIRES, WHICHEVER IS EARLIER.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL II
 VIOLATES THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE.  /4/
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL II VIOLATES THE RIGHT OF THE AGENCY TO
 ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN ITS DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  THE AGENCY CONTENDS THAT UNION PROPOSAL II VIOLATES ITS
 RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE
 BECAUSE UNDER THE PROPOSAL, THE SELECTION OF EMPLOYEES FOR REASSIGNMENT
 WOULD BE BASED TOTALLY ON AN EMPLOYEE'S SERVICE COMPUTATION DATE, WHICH
 WOULD CLEARLY INTERFERE WITH THE AGENCY'S AUTHORITY TO DECIDE UPON THE
 SELECTION OF AN INDIVIDUAL ONCE A DECISION HAD BEEN MADE TO FILL A
 POSITION.  THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION.  IN THIS
 REGARD, THE AUTHORITY STATED WHEN RULING ON A SIMILAR PROPOSAL THAT THE
 DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED IS IMPLICIT IN
 THE RIGHT TO ASSIGN.  /5/ IT FOLLOWS THAT A PROCEDURE FOR SELECTING
 EMPLOYEES FOR REASSIGNMENT SOLELY ON THE BASIS OF THE MOST SENIOR
 QUALIFIED VOLUNTEER IN TERMS OF SERVICE COMPUTATION DATE REMOVES FROM
 MANAGEMENT THE DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE
 REASSIGNED, AN ESSENTIAL PART OF THE DECISION TO REASSIGN.  THUS,
 BECAUSE UNION PROPOSAL II INTERFERES WITH THE AGENCY'S RIGHT TO REASSIGN
 EMPLOYEES, IT IS IN VIOLATION OF SECTION 7106(A)(2)(A).
 
                            UNION PROPOSAL III
 
    H.  THE CITED PERMANENT REASSIGNMENTS WHICH THE DEPARTMENT HAS
 ORDERED PRIOR TO FINAL
 
    AGREEMENT OF THIS PLAN SHALL BE RESCINDED AND HANDLED IN ACCORDANCE
 WITH THE PROVISIONS OF
 
    THIS PLAN.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS THE AGENCY ALLEGES, UNION PROPOSAL III IS
 OUTSIDE THE AMBIT OF THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
 STATUTE.  /6/
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL III IS OUTSIDE THE SCOPE OF THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513,
 THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN ITS
 DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  THE AGENCY ASSERTS THAT UNION PROPOSAL III IS OUTSIDE
 MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE
 BECAUSE THE CLEAR INTENT OF THE PROPOSAL IS TO NEGOTIATE THE
 CRITERIA/METHOD THAT WILL BE USED IN FILLING NON-BARGAINING UNIT
 POSITIONS.  FOR THE REASONS DISCUSSED IN CONNECTION WITH UNION PROPOSAL
 I, HEREIN, THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION TO THE
 EXTENT THAT THE LANGUAGE OF THE PROPOSAL WOULD REQUIRE THE RESCISSION OF
 ASSIGNMENTS INVOLVING NON-BARGAINING UNIT EMPLOYEES.  THUS, TO THE
 EXTENT THAT THE SCOPE OF UNION PROPOSAL III AFFECTS NON-BARGAINING UNIT
 EMPLOYEES, IT IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . .
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS . . .
 
    /2/ IN VIEW OF THE DECISION HEREIN THAT THE UNION'S PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN, IT IS UNNECESSARY TO CONSIDER THE REMAINING
 CONTENTION OF THE AGENCY THAT THE PROPOSAL CONFLICTS WITH SECTION
 7106(A)(2)(C) OF THE STATUTE.
 
    /3/ SECTION 7114(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART:
 
    SECTION 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    (A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION IS THE EXCLUSIVE
 
    REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
 ENTITLED TO ACT FOR, AND
 
    NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
 THE UNIT.
 
    /4/ SECTION 7106(A)(2)(A) OF THE STATUTE PROVIDES, IN RELEVANT PART:
 
    SECTION 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 . . .
 
    /5/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE NO.
 O-NG-40, 2 FLRA NO. 77 (JANUARY 31, 1980).
 
    /6/ NOTE 1, SUPRA.
 
 
 

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