[ v15 p798 ]
15:0798(152)NG
The decision of the Authority follows:
15 FLRA No. 152
NATIONAL LABOR RELATIONS BOARD
UNION, LOCAL 21
Union
and
NATIONAL LABOR RELATIONS BOARD
Agency
Case No. O-NG-708
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 issues
concerning the negotiability of a ten part Union proposal which is set
forth in an Appendix to this decision. /1/ Upon careful consideration
of the entire record, including the parties' contentions, the Authority
makes the following determinations.
Sections 1-5, the disputed portion of section 6, and section 9 of the
Union's proposal establish a procedure for selecting bargaining unit
employees to fill supervisory positions on a temporary basis. It is
well established that a proposal concerning the filling of supervisory
positions, including temporary appointments, is negotiable only at the
election of the agency since it does not concern a condition of
employment of bargaining unit employees. National Union of Compliance
Officers, Ind. and U.S. Department of Labor, Labor-Management Services
Administration, 9 FLRA 735 (1982), International Association of Fire
Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980)
(Proposal III). Since the Agency in this case has elected not to
bargain on this issue, sections 1-5, the disputed portion of section 6
and section 9 of the proposal are outside the duty to bargain.
The Agency contends, without controversion, that Section 7 of the
Union's proposal would prevent management from considering an employee's
lack of supervisory experience when evaluating him or her. In this
regard, the Authority has held in several cases that proposals which
prevent management from considering certain factors when evaluating
employees violate management's rights to direct employees and assign
work pursuant to sections 7106(a)(2)(A) and (B) of the Statute. E.g.,
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 6 and 7); National Treasury Employees Union and
Internal Revenue Service, 6 FLRA 522 (1981) (Union Proposal 7) and the
cases cited therein. Thus based on the rationale set out in the cited
cases, section 7 of the Union's proposal herein is outside the duty to
bargain.
The disputed portions of section 10 of the Union's proposal expressly
provide that management will not require employees to perform bargaining
unit work during the time that they are substituting for supervisory
personnel. The Authority held in International Association of Fire
Fighters, Local F-215 and Headquarters, 15th Infantry Division
(Mechanized), Fort Polk, Louisiana, 8 FLRA 417 (1982) that a proposal
which prevents management from assigning certain duties to employees is
inconsistent with the Agency's right to assign work pursuant to section
7106(a)(2)(B) of the Statute. Thus, the disputed portions of section 10
of the Union's proposal are also outside the duty to bargain because
they would prevent the Agency from assigning work to employees during
temporary assignments.
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.
Issued, Washington, D.C., August 29, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
SUBSTITUTION OF SUPERVISORY POSITIONS BY UNIT EMPLOYEES
1. Two lists shall be maintained for field examiners and attorneys
for substitution for supervisory positions. One list shall be long-term
substitution and one list for short-term substitution.
2. Long-term substitution is defined as an assignment of eleven (11)
or more working days. Short-term substitution is defined as an
assignment of from five (5) to ten (10) working days. With respect to
substitution of four (4) or fewer working days, management shall be
entitled, consistent with the operating needs of the office, to select a
substitute from the short-term list without regard to, or effect upon,
an employee's position on that list.
3. The long-term substitution list shall include only those GS-12 or
13 field examiners and GS-13 or 14 attorneys who are rated
well-qualified for supervisory positions. Any attorney who was
converted from field examiner status and was rated well-qualified for
supervisory positions shall be placed upon the long-term list.
4. The short-term substitution list shall include all GS-12 or 13
field examiners and GS-13 or 14 attorneys not rated well-qualified for
supervisory positions.
5. Initial selection of employees for the short- or long-term lists
shall be based upon seniority, with seniority beginning with the date an
employee is promoted to GS-12, in the case of field examiners, or GS-13,
in the case of field attorneys, for the short-term list. Seniority for
the long-term list will begin with the date an employee is rated
well-qualified. Following initial selection for the lists, employees
will be added to the bottom of the respective lists as they become
eligible therefor. In filling supervisory substitution opportunities,
management will first offer, consistent with the operating needs of the
office, such opportunities to the first person on the applicable list.
If that person declines, the next person shall be asked, and so forth.
If any person declines an opportunity to substitute twice in succession,
such person's name shall be moved to the bottom of the list. Upon
request, an employee may delete his or her name from the substitution
list and may, upon request, be reinstated to the appropriate list, in
which event, his or her name shall be placed at the bottom of the list.
6. Management shall be responsible for maintaining the short- and
long-term lists and shall record the dates each employee was requested
to substitute and if and when an employee declined to substitute and the
reasons therefor. Upon request, the Local shall have access to such
records for purposes of inspection. In addition, on a yearly basis
coinciding with the individual employee's appraisal year, management
shall prepare a record in memorandum form, setting forth, for each
eligible employee, the dates of any supervisory substitution assignments
and for whom the employee substituted, with copies to the employee, the
employee's supervisor, NLRBU Local 21, and one copy to be placed in the
employee's personnel file. (Only the underscored portion of section 6
is in dispute.)
7. It is agreed that management will refrain from any negative
comment on or consideration of supervisory potential based upon lack of
supervisory experience with respect to the managerial or personnel
elements of supervisory potential.
8. In commenting upon the timeliness of an employee's case-handling
performance, management will take into account any periods during which
the employee served as an acting supervisor.
9. It is expressly understood that employees on the short- and
long-term substitution lists should be given meaningful opportunities to
serve as acting group supervisors, consistent with the operating needs
of the office. Accordingly, management agrees that for purposes of
long-term substitution for group supervisors, it will exhaust the list
of employees eligible for long-term substitution before using other
supervisory personnel. Likewise, management agrees that it will exhaust
the short-term eligibility list before using other supervisory personnel
for that purpose. Further, in the event that a short-term substitution
is required, management will first exhaust the short-term list, and then
the long-term list, before using supervisory personnel for such
substitution, consistent with the operating needs of the office.
10. It is expressly understood that, consistent with the operating
needs of the office an employee who is designated to act as a supervisor
for a period of five (5) working days or more will not be expected or
required to perform case-handling assignments or other bargaining-unit
work. To this end, management will notify the person selected for
substitution as a supervisor far enough in advance of that assignment so
that the employee may complete his usual case-handling work before
assuming such assignment, and the employee will not be expected or
required to perform bargaining-unit work for the duration of the
assignment. In the event that the employee selected for substitution as
a supervisor cannot complete his or her bargaining-unit duties prior to
the assumption of supervisory duties, such work will be transferred to
other bargaining-unit employees, consistent with the operating needs of
the office. (Only the underscored portions of section 10 are in
dispute.)
--------------- FOOTNOTES$ ---------------
/1/ Since the Agency did not allege that section 8 of the Union's
proposal was outside the duty to bargain, the Authority makes no
determination as to the negotiability of this section.