09:0703(84)NG - Laborers International Union of North America Local l276 and VA National Cemetery Office, San Francisco, CA -- 1982 FLRAdec NG
[ v09 p703 ]
09:0703(84)NG
The decision of the Authority follows:
9 FLRA No. 84
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, AFL-CIO,
LOCAL 1276
Union
and
VETERANS ADMINISTRATION,
NATIONAL CEMETERY OFFICE,
SAN FRANCISCO, CALIFORNIA
Agency
Case No. O-NG-356
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).
THE ISSUES PRESENTED ARE THE NEGOTIABILITY OF TWO UNION PROVISIONS
CONTAINED IN A LOCALLY EXECUTED AGREEMENT WHICH, UPON REVIEW PURSUANT TO
SECTION 7114(C) OF THE STATUTE, /1/ WERE DISAPPROVED BY THE VETERANS
ADMINISTRATION AS NOT BEING IN ACCORDANCE WITH APPLICABLE LAW.
PROVISION 1
SECTION 7 THE EMPLOYER AGREES THAT, TO THE EXTENT CONSISTENT WITH
WORK REQUIREMENTS, EVERY
POSSIBLE EFFORT WILL BE MADE TO DETAIL EMPLOYEE(S) TO HIGHER LEVEL
DUTIES IN THE FOLLOWING
MANNER:
A. WHEN MAKING ASSIGNMENTS TO DETAILS FOR BOTH THIRTY (30) DAYS OR
LESS AND IN EXCESS OF
THIRTY (30) DAYS, THE EMPLOYER WILL SELECT ONLY QUALIFIED (BY OFFICE
OF PERSONNEL MANAGEMENT
STANDARDS) EMPLOYEES IN THE NEAREST GRADE TO THE POSITION TO BE
FILLED. WHEN TWO (2) OR MORE
EMPLOYEES ARE EQUALLY WELL QUALIFIED AND CAPABLE OF PERFORMING THE
DETAIL WORK IN THE MOST
EXPEDITIOUS AND EFFICIENT MANNER, THE EMPLOYER AGREES THAT THE
EMPLOYEE ASSIGNED SHALL BE THE
EMPLOYEE WITH THE GREATEST FEDERAL EMPLOYMENT SERVICE (BASED ON
SERVICE COMPUTATION DATE.)
B. EMPLOYEES DETAILED TO HIGHER LEVEL DUTIES ON AN INTERMITTENT
BASIS SHALL BE QUALIFIED
AND WILL BE SELECTED ON THE BASIS OF SECTION 7A ABOVE. WHEN SUCH AN
INTERMITTENT DETAIL IS
USED AND THE AGGREGATE NUMBER OF DAYS DETAILED EXCEEDS THIRTY (30)
DAYS DURING A PERIOD OF 120
CALENDAR DAYS BEGINNING WITH THE FIRST DAY OF DETAIL, THE EMPLOYEE
WILL BE TEMPORARILY
PROMOTED TO THE HIGHER GRADE ON THE 31ST DAY OF DETAIL FOR THE
PROJECTED NUMBER OF DAYS TO BE
ACTUALLY WORKED IN EXCESS OF 30 DAYS BUT NOT TO EXCEED 120 DAYS.
TIME RECORDS FOR THIS
PURPOSE WILL BE KEPT BY THE DIRECTOR OF NATIONAL CEMETERY.
PROVISION 2
SECTION 9 THE EMPLOYER AGREES THAT:
A. WHEN IT BECOMES NECESSARY TO ASSIGN AN EMPLOYEE TO LOWER GRADED
WORK WHICH HAS BEEN
DETERMINED BY THE EMPLOYER TO BE UNUSUALLY DIRTY OR ARDUOUS AND WHEN
THERE ARE TWO (2) OR MORE
EMPLOYEES WHO ARE EQUALLY QUALIFIED AND CAPABLE OF PERFORMING THE
WORK IN THE MOST EXPEDITIOUS
AND EFFICIENT MANNER, THE EMPLOYER AGREES THAT THE EMPLOYEE ASSIGNED
SHALL BE THE EMPLOYEE IN
THE NEAREST GRADE TO THE WORK TO BE PERFORMED WITH THE LAST FEDERAL
EMPLOYMENT SERVICE (BASED
ON SERVICE COMPUTATION DATE).
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER PROVISIONS 1 AND 2 OF THE LOCAL PARTIES'
AGREEMENT ARE INCONSISTENT WITH THE RIGHTS OF MANAGEMENT TO ASSIGN
EMPLOYEES IN THE AGENCY AND/OR TO ASSIGN WORK PURSUANT TO SECTION
7106(A)(2)(A) OR (B) OF THE STATUTE. /2/
OPINION
CONCLUSION AND ORDER: PROVISIONS 1 AND 2 ARE NOT INCONSISTENT WITH
SECTION 7106(A)(2)(A) OR (B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10
(1981)), IT IS ORDERED THAT THE AGENCY HEAD SHALL RESCIND THE
DISAPPROVAL OF PROVISIONS 1 AND 2, WHICH WERE BARGAINED ON AND AGREED TO
BY THE PARTIES AT THE LOCAL LEVEL. /3/
REASONS: THE RIGHT TO ASSIGN EMPLOYEES WHICH IS RESERVED TO
MANAGEMENT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE ENCOMPASSES
MANAGEMENT'S DISCRETION TO ESTABLISH THE QUALIFICATIONS NECESSARY TO
PERFORM THE DUTIES GENERALLY ASSIGNED TO THE POSITION AND TO DETERMINE
WHETHER AN EMPLOYEE MEETS THOSE QUALIFICATIONS. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 603, 612-13 (1980),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140, 1148-49 (D.C. CIR. 1981), CERT. DENIED SUB
NOM. AFGE V. FLRA, . . . U.S. . . ., 102 S.CT. 1443 (1982).
SIMILARLY, MANAGEMENT'S RIGHT TO ASSIGN WORK PURSUANT TO SECTION
7106(A)(2)(B) ENCOMPASSES DISCRETION TO ESTABLISH THE PARTICULAR
QUALIFICATIONS AND SKILLS NEEDED TO PERFORM THE WORK TO BE DONE, AND TO
EXERCISE JUDGMENT IN DETERMINING WHETHER A PARTICULAR EMPLOYEE MEETS
THOSE QUALIFICATIONS. THUS, WHEN MANAGEMENT DETERMINES THAT ONLY ONE
EMPLOYEE POSSESSES THE REQUISITE QUALIFICATIONS TO DO CERTAIN WORK,
SECTION 7106(A)(2)(B) RESERVES TO MANAGEMENT THE RIGHT TO ASSIGN THE
WORK TO THAT PARTICULAR EMPLOYEE. WRIGHT-PATTERSON, 2 FLRA AT 631.
WHERE, HOWEVER, IN MANAGEMENT'S JUDGMENT, TWO OR MORE EMPLOYEES ARE
EQUALLY QUALIFIED AND CAPABLE OF PERFORMING THE WORK, THE SELECTION OF
ANY ONE OF THOSE EMPLOYEES TO PERFORM THE WORK WOULD BE CONSISTENT WITH
MANAGEMENT'S EXERCISE OF ITS DISCRETION. UNDER SUCH CIRCUMSTANCES, THE
PROCEDURE BY WHICH EMPLOYEES PREVIOUSLY JUDGED BY MANAGEMENT TO BE
EQUALLY QUALIFIED WILL BE SELECTED TO PERFORM THE WORK IS NEGOTIABLE
UNDER SECTION 7106(B)(2). /4/ SEE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, 5 FLRA NO. 15 (1981).
IN THE INSTANT CASE, PROVISION 1 OBLIGATES THE AGENCY ONLY TO "MAKE
EVERY POSSIBLE EFFORT" TO ASSIGN EMPLOYEES IN THE PRESCRIBED MANNER, "TO
THE EXTENT CONSISTENT WITH ITS WORK REQUIREMENTS." MOREOVER, WITH REGARD
TO THE GRADE AND SENIORITY ELEMENTS, THEY BECOME EFFECTIVE ONLY WHEN, IN
MANAGEMENT'S JUDGMENT, TWO OR MORE EMPLOYEES ARE EQUALLY WELL QUALIFIED
AND CAPABLE OF PERFORMING THE WORK IN THE MOST EXPEDITIOUS AND EFFICIENT
MANNER. THAT IS, IF, IN MANAGEMENT'S VIEW, NO TWO EMPLOYEES ARE EQUALLY
QUALIFIED AND CAPABLE, THIS PROVISION WOULD PERMIT MANAGEMENT TO SELECT
AN EMPLOYEE FOR THE ASSIGNMENT WITHOUT REFERENCE TO GRADE OR SENIORITY.
FINALLY, NOTHING IN THE RECORD INDICATES THAT THE PROVISION WOULD
INTERFERE WITH THE AGENCY'S DETERMINING ITS WORK REQUIREMENTS, OR WOULD
PERMIT AN EMPLOYEE TO REFUSE A WORK ASSIGNMENT. CONSEQUENTLY, CONTRARY
TO THE AGENCY'S CONTENTIONS, THE PROVISION IS NOT INCONSISTENT WITH
SECTION 7106(A)(2)(A) OR (B) OF THE STATUTE. INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL F-48, AFL-CIO AND NAVAL SUPPORT ACTIVITY, MARE
ISLAND STATION, CALIFORNIA, 3 FLRA 488 (1980); NATIONAL LABOR RELATIONS
BOARD UNION AND NATIONAL LABOR RELATIONS BOARD, WASHINGTON, D.C., 3 FLRA
507 (1980).
SIMILARLY, PROVISION 2 WOULD OBLIGATE THE AGENCY TO MAKE A SELECTION
BASED UPON GRADE AND SENIORITY ONLY WHEN TWO OR MORE EMPLOYEES HAVE BEEN
DETERMINED BY THE AGENCY TO BE EQUALLY QUALIFIED AND CAPABLE OF
PERFORMING THE WORK. THUS, CONTRARY TO THE AGENCY'S ASSERTION, THE
PROVISION LEAVES TO MANAGEMENT'S DISCRETION THE DETERMINATION OF THE
RELATIVE ABILITIES, QUALIFICATIONS, AND CAPABILITIES OF ITS EMPLOYEES.
IF, IN THE AGENCY'S JUDGMENT, ONLY ONE EMPLOYEE IS QUALIFIED AND CAPABLE
OF PERFORMING THE WORK, MANAGEMENT WOULD RETAIN THE RIGHT UNDER THIS
PROVISION TO ASSIGN THE WORK TO THAT PARTICULAR EMPLOYEE. ACCORDINGLY,
PROVISION 2 IS NOT INCONSISTENT WITH THE AGENCY'S RIGHT UNDER SECTION
7106(A)(2)(B) TO ASSIGN WORK, AND THE AGENCY'S CONTENTION TO THE
CONTRARY CANNOT BE SUSTAINED. NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, 6 FLRA NO. 97
(1981).
ISSUED, WASHINGTON, D.C., AUGUST 3, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7114(C) PROVIDES IN RELEVANT PART AS FOLLOWS:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
. . . .
(C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
REPRESENTATIVE SHALL BE SUBJECT TO
APPROVAL BY THE HEAD OF THE AGENCY.
(2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
FROM THE DATE THE
AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
HAS GRANTED AN EXCEPTION
TO THE PROVISION).
(3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
AGREEMENT WITHIN THE
30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
ON THE AGENCY AND THE
EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE
LAW, RULE, OR REGULATION.
/2/ SECTION 7106(A)(2)(A) AND (B) 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--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
/3/ IN DECIDING THAT PROVISIONS 1 AND 2 ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.
/4/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION (.)