[ v16 p578 ]
16:0578(82)NG
The decision of the Authority follows:
16 FLRA No. 82
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1622
Union
and
DEPARTMENT OF THE ARMY,
HEADQUARTERS, VINT HILL
FARMS STATION,
WARRENTON, VIRGINIA
Agency
Case No. O-NG-752
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 questions
relating to the negotiability of four provisions of a negotiated
agreement disapproved by the Agency head pursuant to section 7114(c) of
the Statute. /1/ Upon careful consideration of the entire record,
including the parties' contentions, the Authority makes the following
determinations.
Union Provision 1
Article XVI, Section 10(b)
Details shorter than thirty (30) Calendar days to positions
which have a higher grade or provide qualifying experience shall
be rotated among qualified employees to the fullest extent
feasible.
The Agency asserts that Union Provision 1 directly interferes with
management's right to assign employees pursuant to section 7106(a)(2)(A)
of the Statute because it would require assignment of employees to
details "on the basis of seniority on a rotational basis." However,
contrary to the Agency's argument, neither the express language of the
provision nor the Union's stated intent indicated that seniority was to
be utilized as the criterion for assigning employees to details.
Rather, this provision merely provides that details be "rotated among
qualified employees to the fullest extent feasible."
Further, as the provision does not in any way limit management's
discretion to establish the particular qualifications and skills needed
to perform the work on the detail or limit management's judgment in
determining whether a particular employee meets those qualifications, it
is not inconsistent with management's right to assign employees pursuant
to section 7106(a)(2)(A) of the Statute. See Laborers International
Union of North America, AFL-CIO, Local 1276 and Veterans Administration
National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982).
Moreover, contrary to the Agency's contention that the provision
would mandate the rotation of employees to details unless it literally
was not possible to do so, the Union has indicated that the provision is
to be interpreted in a reasonable manner, as follows: /2/
It is obvious from this language (of the provision) that
deviations from (the rotation requirement) may be necessary for a
variety of reasons. If the detail is only for two days, rotation
would scarcely be feasible. If the time is longer but continuity
is essential for the proper completion of a particular detail,
rotation might not be feasible.
It is clear that Union Provision 1, by its intended meaning as well
as its explicit language, establishes a general, nonquantitative
standard by which the Agency's exercise of its reserved authority to
assign employees could be evaluated in a subsequent grievance. See,
e.g., 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 268 (1982) (Union
Proposal 5), wherein the Authority found within the duty to bargain
under section 7106(b)(2) /3/ a proposal which provided that certain
temporary assignments would not be made as a reward or penalty or be
arbitrary or capricious. The Authority determined that as the proposal
established a general, nonquantitative standard by which management's
work assignments could be evaluated it was within the duty to bargain
pursuant to section 7106(b)(2).
Since Union Provision 1, herein, similarly would not interfere with
the exercise of a management right but would establish a procedure by
which the right to assign would be exercised it is within the duty to
bargain. /4/
Union Provision 2
Article XXII, Section 6
The phrase "performs other related duties as assigned" on
position descriptions is not to be construed to require the
employee to perform duties outside his/her regular field of work,
nor for which he/she is not physically able or which might result
in injury to the employee due to lack of training or experience in
the specifically assigned task. Supervisors shall avoid, insofar
as possible, assigning additional or incidental duties to
employees which are inappropriate to their positions or
qualifications.
Union Provision 2 is not within the duty to bargain because it
violates the Agency's right "to assign work" pursuant to section
7106(a)(2)(B) of the Statute. Management's right "to assign work"
pursuant to section 7106(a)(2)(B) 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 Authority, 691 F.2d 553 (D.C. Cir. 1982). In this
respect, a position description does not constitute a limitation on the
assignment of duties but merely reflects the duties which have been
assigned to a particular position or employee. E.g., National
Federation of Federal Employees, Local 1497 and Department of the Air
Force, Lowry Air Force Base, Colorado, 9 FLRA 151 (1982). Union
Provision 2 however, directly interferes with management's right to
assign work by expressly preventing the Agency from requiring employees
to perform certain duties such as when the duties to be assigned are
outside the employee's regular field of work or are inappropriate to the
employee's position or qualifications. Thus, while proposals which
require management to consider health and safety factors in assigning
work are not inconsistent with the Statute, proposals, like proposal 2
herein, which would actually preclude the assignment of work are
nonnegotiable. See American Federation of Government Employees,
AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio,
Texas, 12 FLRA No. 26 (1983) (Proposal 37 and cases cited therein).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review relating to the
two provisions of the negotiated agreement concerning which the Agency
withdrew its allegations of nonnegotiability and to Union Provision 2
be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency
shall rescind the disapproval of Union Provision 1 which was bargained
on and agreed to by the parties at the local level. Issued, Washington,
D.C., November 27, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ During the pendency of this case, the Agency withdrew its
allegations of nonnegotiability with respect to two of these provisions
of the negotiated agreement. The issues as to these two provisions,
therefore, have been rendered moot and will not be considered further
herein.
/2/ Union Reply Brief at 2.
/3/ Section 7106(b)(2) of the Statute provides:
Sec. 7106. Management rights
* * * *
(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(.)
/4/ In deciding that Union Provision 1 is within the duty to bargain,
the Authority, of course, makes no judgment as to its merits.