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11 FLRA NO. 113

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
INTERNATIONAL COUNCIL OF
U.S. MARSHALS SERVICE LOCALS

     Union

     and

DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE

     Agency

Case No. 0-NG-413

 

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 raises the question of the negotiability of five Union proposals. 1

Union Proposal 1

Employees will not be required to carry out tasks that are not assigned by a supervisor or management official. [ v11 p672 ]

Question Before the Authority

The question is whether Union Proposal 1 is inconsistent with the rights of management under section 7106(a) of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposal 1 is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. 2 Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review with respect to Union Proposal 1 be, and it hereby is, dismissed.

Reasons: The record in the instant case indicates 3 that the Union intends the disputed proposal to preclude the agency from designating certain bargaining unit employees, i.e., Deputy U.S. Marshals, as Deputy-In-Chief and assigning them responsibility for supervision of other unit employees in connection with certain work projects. 4 In this regard, the proposal is substantively identical to Union Proposal [ v11 p673 ] 1 in American Federation of Government Employees, AFL - CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No. 58 (1981), which prevented the agency from requiring unit employees who had been designated "Examiners-In-Charge" to evaluate the performance of other employees in the unit. In that case, the Authority held that Union Proposal I directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute by prohibiting the agency from assigning evaluation duties to bargaining unit members. Similarly, by preventing the Agency from assigning duties connected with supervision of certain work projects to unit employees the proposal herein would directly interfere with management's right to assign work and, thus, for the reasons more fully set forth in the Federal Home Loan Bank Board decision, is outside the duty to bargain under section 7106(a)(2)(B) of the Statute.

Furthermore, the record indicates the proposal is also intended to preclude, among others, Federal judges, from making work assignments to those unit employees who are assigned to their courts. 5 In this regard as well, the proposal would directly interfere with management's right to assign work under section 7106(a)(2)(B) by preventing the Agency from requiring unit employees serving as marshals, e.g., in Federal courts, to carry out tasks assigned them by judges. Thus, the proposal is outside the duty to bargain under section 7106(a)(2)(B). Cf. International Association of Firefighters, AFL - CIO, Local F-116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg Air Force Base, California, 9 FLRA No. 83 (1982) (Union Proposal 1) (wherein the Authority held a proposal preventing management from assigning certain duties to unit employees violative of right to assign work).

Union Proposal 2

Bargaining unit overtime work will only be performed by unit employees when unit employees are ready, willing and able to work.

Union Proposal 3

Overtime work will be distributed fairly and equally. Overtime rosters will be maintained by the supervisors and may be reviewed by union officials. The overtime rosters will reflect all overtime worked and refused. Employees will not be skipped on the overtime roster unless the employee agrees. Employees that are skipped on the roster will be paid overtime even though they didn't work. The overtime rosters will be established locally subject to the approval by the parties at the level of recognition. [ v11 p674 ]

Question Before the Authority

The question is whether Union Proposals 2 and 3 are inconsistent with the rights of management under section 7106 of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposals 2 and 3 are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. 6 Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review with respect to Union Proposals 2 and 3 be, and it hereby is, dismissed.

Reasons: Union Proposal 2 by its language and intent as indicated in the record would preclude the Agency from assigning work normally performed by unit employees to supervisors, beyond their normal duty hours, where the work otherwise would be performed by unit employees on overtime. In this regard, the proposal is substantively identical to the last sentence of Union Proposal 1 in 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 No. 74 (1982), which provided that the agency could not assign duties normally performed by employees in the unit to supervisors when those duties could be performed by unit employees on overtime. The Authority held that the proposal in that case directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute by improperly limiting management's discretion to determine which employees will receive particular work assignments and, thus, was outside the duty to bargain. Therefore, for the reasons set forth in the Food Safety and Quality Service decision, Union Proposal 2 in this case is likewise outside the duty to bargain.

Union Proposal 3 would require the Agency to establish rosters for the distribution of overtime work and to assign overtime work "fairly and equally" among employees strictly on the basis of their standing on these rosters. Moreover, the record indicates that bargaining unit employees do not all perform the same duties. 7 Thus, the effect of Union Proposal 3 would be to require management to assign employees to overtime work in circumstances where the work to be performed is different from that to which the employees normally are assigned. 8 [ v11 p675 ] In this regard, Union Proposal 3 is substantively identical to Union Proposals 1-4 in American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and U.S. Department of Justice, U.S. Marshals Service, 8 FLRA No. 62 (1982), which required the agency to make assignments to the air lift program from seniority rosters. 9 In that case, the Authority relied upon its decision in American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 630-32 (1980), 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), to find those proposals outside the duty to bargain since they removed management's discretion to assign work to employees under section 7106(a)(2)(B) of the Statute. Thus, for the reasons set forth in the Wright - Patterson Air Force Base decision, the Authority finds that Union Proposal 3 is outside the duty to bargain because it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. 10

Union Proposal 4

Involuntary reassignments will only be made to promote the efficiency of the service, and will not be made to discriminate or punish, or for any reason that would violate law, rule, regulation, or this agreement.

Question Before the Authority

The question is whether Union Proposal 4 is inconsistent with section 7106 of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposal 4 is inconsistent with section 7106 of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 4. 11 [ v11 p676 ]

Reasons: The Agency contends that Union Proposal 4 is outside the duty to bargain because the criteria governing management action established there in directly interfere with management's rights to assign and discipline employees under section 7106(a)(2)(A) of the Statute. The Union contends 12 however, that Union Proposal 4 merely requires management to exercise its rights under section 7106(a) of the Statute in accordance with law, regulation, and the contract. Based on its language and intended meaning, the Authority interprets the proposal, in agreement with the Union, as essentially requiring the Agency, in exercising its statutory management rights, to do so in a manner consistent with law, i.e., based on legitimate management considerations, and according to the procedural safeguards of the contract. 13

The Authority has consistently held that general provisions requiring management to exercise its statutory rights under section 7106 in compliance with law are within the duty to bargain. National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, 9 FLRA No. 20 (1982) (Union Proposal 2). See also American Federation of Government Employees, AFL - CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA No. 1 (1982) (Union Proposal 1), appeal docketed sub nom. Equal [ v11 p677 ] Employment Opportunity Commission v. Federal Labor Relations Authority, No. 82-2310 (D.C. Cir. Nov. 1, 1982). Therefore, since the purpose and effect of Union Proposal 4 herein is to require that management exercise its statutory rights in accordance with applicable law, regulation, and contractual procedures, it likewise is within the duty to bargain under the Statute. 14

Union Proposal 5

These supplemental local agreements may cover the personnel policies, practices, procedures, working conditions, and conditions of employment that are within the discretionary authority of the U.S. Marshals Director in districts for which he is (they are) appointed. Matters which may be included in supplemental agreements are:

2. Rotation of work assignments;

4. Fair and equitable distribution of overtime; [ v11 p678 ]

7. Day-care centers.

Section 5. The parties agree to develop a mutually acceptable system for rotating work assignments at the local level where necessary.

Question Before the Authority

The question is whether Union Proposal 5 is inconsistent with management's rights under section 7106 of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposal 5 is not inconsistent with management's rights under section 7106 of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 5. 15

Reasons: Union Proposal 5 would require the Agency to negotiate supplemental agreements covering certain specified subject matters at the level of the U.S. Marshals' district offices. In this regard, the Authority has consistently held that, under the Statute, the duty to bargain at the level of exclusive recognition within an agency extends to proposals which authorize the negotiation of supplemental agreements at a sub-level. See American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 619 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S. Ct. 1443 (1982). See also American Federation of Government Employees, AFL - CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43, 47 (1980); Department of Health and Human Services, Social Security Administration and Local 1346, American Federation of Government Employees, AFL - CIO, 6 FLRA No. 33 (1981) at 3 of decision; Interpretation and Guidance, 7 FLRA No. 105 (1982) at 3 of opinion.

The Agency alleges that the specific subject matters referenced in the proposal pertain to the exercise of management rights under the Statute and, therefore, that the proposal is nonnegotiable. However, contrary to the Agency, it is clear that [ v11 p679 ] various proposals relating to those subject matters are within the duty to bargain under the Statute; 16 for example, as to rotation of work assignments, see, e.g., American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 5 FLRA No. 15 (1981), Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA No. 84 (1982) (Provision 1); as to distribution of overtime, see, e.g., 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 No. 74 (1982) (Union Proposal 1, exclusive of last sentence); as to the provision of day care, see, e.g., American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604-608 (1980), 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), and American Federation of Government Employees, AFL - CIO, Local 12 and Office of Personnel Management, Washington, D.C., 6 FLRA No. 76 (1981), appeal docketed sub nom. Office of Personnel Management v. Federal Labor Relations Authority, No. 81-2106 (D.C. Cir. October 15, 1981). Moreover, the proposal would not require the Agency to bargain in any manner which would be precluded by the Statute. Thus, it is concluded that Union Proposal 5 is within the Agency's duty to bargain under the Statute. See American Federation of Government Employees and General Services Administration, 11 FLRA No. 54 (1983).

 

Issued, Washington, D.C., March 18, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

[ v11 p680 ]

 

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
INTERNATIONAL COUNCIL OF
U.S. MARSHALS SERVICE LOCALS

     Union

     and

DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE

     Agency

Case No. 0-NG-413
11 FLRA No. 113

 

ORDER DENYING REQUEST FOR RECONSIDERATION OF DECISION ON NEGOTIABILITY ISSUE

This matter is before the Authority on a motion by the Department of Justice for reconsideration of the Authority's decision regarding Union Proposal 5 in American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA No. 113 (1983). In its decision, the Authority held that proposal, which provided for local supplemental agreements covering specified subject matters, to be within the duty to bargain. In seeking reconsideration, the Agency merely states its disagreement with the Authority's decision based upon the same arguments presented in its initial statement of position.

Section 2429.17 of the Authority's Rules and Regulations permits a party to move for reconsideration of a decision of the Authority if, inter alia, it makes and can support a claim of extraordinary circumstances. Here, the Authority concludes that the Agency has not met this requirement. Rather, the arguments made in support of the motion simply indicate the Agency's disagreement with the Authority's holding that the proposal is negotiable. [ v11 p]

Accordingly, IT IS ORDERED that the motion for reconsideration of the Authority's decision be, and it hereby is, dismissed.

 

Issued, Washington, D.C., June 7, 1983

Barbara J. Mahone, Chairman

Ronald W. Haughton, Member

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

[ v11 p]

FOOTNOTES

Footnote 1 The agency filed a motion to dismiss the Union's appeal under section 2424.3 and 4 of the Authority's Rules and Regulations (5 CFR 2424.3 and 4 (1982)) arguing, essentially, that the appeal failed to set forth in full the contents of the proposals as required by the regulations and, thus, did not give the Agency adequate notice as to the matters under appeal. However, the full text of the proposals was attached to the Union's petition for review, and such attachment constituted compliance with the requirements of the Authority's regulations. Therefore, the Agency's motion to dismiss the Union's appeal is denied.

Footnote 2 Section 7106(a) of the Statute provides, in relevant part, as follows: 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, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.)

Footnote 3 See Union Response to Agency Statement of Position at 13-16.

Footnote 4 The Union claims that the Agency's practice of designating unit employees as "Deputy-In-Chief" constitutes an illegal assignment of higher graded duties to nonsupervisory employees and asserts that the practice has been ruled illegal by the Comptroller General. However, the Union cites no decision of the Comptroller General specifically disapproving the Agency's use of Deputies-in-Chief or otherwise supporting its claim that the practice is illegal.

Footnote 5 See Agency Statement of Position at 5-6; Union Response to Agency Statement of Position at 16-17.

Footnote 6 See note 2, supra.

Footnote 7 Agency Statement of Position at 8-11.

Footnote 8 Thus, Union Proposal 3 herein is distinguishable from the portions of Union Proposal 1 which the Authority found to be negotiable in Food Safety and Quality Service, supra. In that case, the negotiable portions of the proposal specifically provided for overtime assignments to be given to the employees whom management had already assigned the duties involved on a regular basis.

Footnote 9 Contrary to the Union's contention, it is not a material distinction under section 7106(a)(2)(B) of the Statute that the proposal in the instant case concerns work assignments on an overtime basis.

Footnote 10 In view of the Authority's decision herein, it is unnecessary to reach the issue of the negotiability of the requirement that employees passed over receive payment for overtime which they did not work.

Footnote 11 In deciding that Union Proposal 4 is within the duty to bargain under the Statute, the Authority makes no judgment as to its merits.

Footnote 12 See Union Response to Agency Statement of Position at 23-24.

Footnote 13 As to the requirement in Union Proposal 4 that involuntary reassignments not be made to discriminate or punish, see In re Frazier, et al., 1 MSPB 159 (1979), wherein the Merit Systems Protection Board (MSPB) held that an involuntary reassignment based on, and in retaliation against, an employee's EEO activities constituted a prohibited personnel practice. In this case, MSPB distinguished between reassignments based on sound management considerations and those which are a pretext for retaliatory reasons and, as such, contrary to law. In this regard, see also Motto v. General Services Administration of the United States, 335 F. Supp. 694 (E.D. La. 1971), affirmed, 502 F.2d 1165 (5th Cir. 1974), cert. denied, 420 U.S. 927 (1975). As to the requirement that involuntary reassignments "promote the efficiency of the service," see Jack E. Ketterer v. U.S. Department of Agriculture, Federal Crop Insurance Corporation, 2 MSPB 459 (1980), in which MSPB, reviewing an agency action removing an employee for refusal to accept reassignment, held that the agency must prove by a preponderance of the evidence that the removal will promote the efficiency of the service. Specifically, MSPB held that such proof must include "a demonstration that the agency's decision to reassign the employee was a bona fide determination based on legitimate management considerations in the interest of the service." 2 MSPB 459, 461 (1980). See also American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and U.S. Department of Justice, U.S. Marshals Service, 8 FLRA No. 62 (1982) (Union Proposal 5).

Footnote 14 Cf. Internal Revenue Service, Austin District and National Treasury Employees Union, NTEU Chapter 52, 9 FLRA No. 77 (1982), wherein the Authority considered an arbitrator's award rendered under an agreement provision analogous to Union Proposal 4 herein. In that case, the Authority upheld an award of backpay to an employee who resigned rather than accept reassignment. The arbitrator determined that the reassignment was invalid, concluding that the only purpose of that action was to discipline the employee and, thus, that it was contrary to a contractual provision precluding reassignments in lieu of discipline. The Authority determined, contrary to the agency's exception that the award was inconsistent with management's right under section 7106(a)(2) of the Statute, that the contractual provision in question was solely concerned with insuring that any reassignment intended as discipline be subject to applicable legal, regulatory, and contractual requirements and procedures. That is, the Authority concluded that the provision was intended to assure that management's exercise of its authority under section 7106(a)(2) will be in accordance with law. See also Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 5 FLRA No. 28 (1981).

Footnote 15 In deciding that the proposal is within the duty to bargain under the Statute, the Authority makes no judgment as to its merits.

Footnote 16 In reaching this conclusion, the Authority makes no decision as to any specific proposals which might be advanced by the Union in any subsequent negotiations under this proposal should it be agreed to by the parties. In any event, the Agency's contentions regarding proposals which might possibly be proffered by the Union in subsequent negotiations are speculative and, thus, not dispositive.

 

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