[ v26 p515 ]
26:0515(62)NG
The decision of the Authority follows:
26 FLRA No. 62
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, SEIU, AFL-CIO
Union
and
NATIONAL GUARD BUREAU
ADJUTANT GENERAL
Agency
Case No. 0-NG-1226
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of ten proposals.
II. Proposal 1
ARTICLE 4
The FLRA Members disagree over the negotiability of this proposal.
The Decision and Order on Proposal 1 and Chairman Calhoun's dissent
appear below.
III. Proposal 2
ARTICLE 5
Section 7. The employer agrees to allow necessary time
immediately preceding the lunch period and at the end of each
workday to permit those employees engaged in work involving dirty,
toxic or hazardous substances time for personal clean up. Such
time will not normally exceed 10 minutes in the same day.
A. Positions of the Parties
The Agency contends that Proposal 2 would prohibit it from assigning
other duties to employees during the time set aside for personal clean
up in violation of the Agency's right under section 7106(a)(2)(B) to
assign work. The Union disputes the Agency's contention and argues that
its proposal primarily concerns the health and safety of employees as
required by Occupational Safety and Health Administration (OSHA)
regulations and 29 U.S.C. Section 651.
B. Analysis and Conclusions
We find that Proposal 2 is to the same effect as Proposal 7 which was
held to be outside the duty to bargain in National Treasury Employees
Union and NTEU Chapter 80 and Department of the Treasury, Internal
Revenue Service, Central Region, 8 FLRA 197 (1982). The proposal in
that case would have required that the first and last 15 minutes of each
workday be devoted to packing and unpacking files. The Authority found
that the proposal violated the agency's right to assign work in that the
agency would have been prohibited from assigning other duties to
employees during those time periods. Proposal 2 in dispute here would
similarly violate the Agency's right to assign work by requiring it to
refrain from assigning other duties to employees during the time periods
set aside for personal cleanup. See also National Treasury Employees
Union, Chapter 153 and Department of the Treasury, U.S. Customs Service,
21 FLRA No. 128 (1986) (Proposal 7) (a proposal giving employees time
during their hours of duty to clean up and change uniforms interfered
with management's right to assign work).
As to the Union's contention that finding the proposal nonnegotiable
would place the Agency in conflict with OSHA requirements, we find that
the Union's position is not supported in the record. The Union cites to
the general Congressional policy in 29 U.S.C. Section 651 to provide
safe and healthful working conditions. It does not however demonstrate
how the Agency acts contrary to that policy by failing to set aside duty
time for employees to clean up and change uniforms. Likewise, the Union
has not identified any OSHA regulations which include a requirement that
employees engaged in work involving dirty, toxic or hazardous substances
must be allowed time during their tour of duty for personal clean up.
See for example 29 C.F.R. Section 1910.141 (OSHA standards relating to
environmental controls and sanitation standards for the handling of
chemicals); 29 C.F.R. Section 1926.58 (OSHA standards relating to
environmental controls and sanitation standards for construction
projects. Accordingly, for the reasons set forth more fully in
Department of the Treasury, we find that Proposal 2 violates the
Agency's right to assign work and is outside the duty to bargain.
We also find, for the reasons stated in American Federation of
Government Employees, AFL-CIO, Local 3231 and Department of Health and
Human Services, Social Security Administration, 25 FLRA No. 45 (1987),
that Proposal 2 conflicts with federal law and is nonnegotiable because
it would require counting time set aside for non-work activity i.e.,
personal clean up, in the 40 hours of "work" required by 5 U.S.C.
Section 6101.
IV. Proposal 3
ARTICLE 5
Section 18. Grade inversion policies will be equally enforced.
Bargaining unit members will not be discriminated against.
A. Positions of the Parties
The Agency contends that Proposal 3 is concerned with the military
aspect of technician employment, and consequently, does not concern a
condition of employment within the meaning of the Statute. The Agency
further argues that the proposal is also concerned with supervisory
positions and that it has no bargaining obligation for that reason also.
The Union contends that the proposal does not conflict with internal
agency regulations. It argues that a proposal is not outside the duty
to bargain simply because it has an impact upon the military aspect of
civilian employment if the proposal is consistent with relevant
statutory or regulatory provisions.
B. Analysis and Conclusions
Proposal 3 is to the same effect as the proposal which the Authority
held to be outside the duty to bargain in National Federation of Federal
Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA No. 103
(1985). The third section of the proposal in that case concerned
military grade inversion and required that grade inversion be
prohibited. The Authority found that the proposal concerned the
military aspects of civilian technician employment and, therefore, did
not concern a condition of employment within the meaning of the Statute.
The Authority also stated that its conclusion was not altered by the
existence of either agency regulations concerning the subject matter of
the proposal or a law dealing with military aspects of civilian
technician employment which the union's proposal paralleled.
Accordingly, for the reasons set forth more fully in Adjutant General of
Illinois, we conclude that Proposal 3, which also concerns the military
aspects of civilian technician employment, does not concern a condition
of employment and is outside the duty to bargain. In view of this
decision, we need not determine whether or not the proposal concerns a
condition of employment because it deals with supervisory positions.
V. Proposal 4
ARTICLE 9
Section 1. Performance ratings will not include a numerical
rating. The ratings will consist only of categories:
a. Unacceptable
b. Marginally acceptable
c. Fully acceptable
d. Outstanding
A. Positions of the Parties
The Agency contends that Proposal 4 would prescribe the number of
performance rating levels in violation of its right under section
7106(a)(2)(A) to direct the work force. The Union argues in its
Petition for Review that there is no compelling need for the Agency's
performance regulation to deviate from Federal Personnel Manual, Chapter
430. The Union does not expound upon this contention in its Response to
the Agency's Statement of Position.
B. Analysis and Conclusion
Proposal 4 would establish four levels for rating employees'
performance. This proposal is to the same effect as the proposal that
the Authority held to be outside the duty to bargain in American
Federation of State, County and Municipal Employees, AFL-CIO, Council 26
and U.S. Department of Justice, 13 FLRA 578, 580-81 (1984). In that
case, the Authority found that a proposal which would have established
the number of rating levels for appraising an employee's performance
violated the agency's rights under section 7106(a)(2)(A) and (B) to
direct employees and assign work through the establishment of
performance standards. See also National Treasury Employees Union and
Department of the Treasury, 21 FLRA No. 123 (1986) (Provision 6).
Accordingly, for the reasons set forth more fully in Department of
Justice, we conclude that Proposal 4 violates management's rights to
direct employees and assign work and is outside the duty to bargain.
VI. Proposal 5
ARTICLE 9
Section 12. The labor organization shall be allowed one member
on the State Review and Appeal Board. The member shall be
selected by the Union.
A. Positions of the Parties
The Agency states that the purpose of the State Review and Appeals
Board is to provide impartial review of performance appraisal appeals
not only from unit employees but from supervisors and nonunit
technicians as well. It argues that allowing the Union to appoint a
member to this board would involve the Union in deliberations concerning
performance appraisals of nonunit employees. The Agency further argues
that, in the absence of a specific provision in the parties' agreement
excluding performance appraisal appeals, the negotiated grievance
procedure would be the exclusive method of performance appraisal appeals
for unit employees and the Union therefore would be involved in deciding
appeals solely from nonunit employees. Even if the matter were excluded
from the grievance procedure, the Agency contends that the proposal
would violate management's rights by including the Union in the Agency's
deliberations over performance ratings. Additionally, the Agency argues
that selecting an employee to serve on the Appeals Board constitutes an
assingment of duties and, therefore, allowing the Union to make the
selection violates the Agency's right under section 7106(a)(2)(B) to
assign work.
The Union states that the Appeals Board neither establishes
performance standards nor resolves differences between supervisors and
employees concerning the standards to be applied. Rather, the Union
argues that the Board merely hears performance appraisal appeals and
makes recommendations to the Adjutant General as to whether the
appraisal should be sustained or changed. It contends that its
participation, therefore, does not interfere with the Agency's right to
make a decision involving performance appraisals. Additionally, the
Union argues that the Appeals Board rather than the grievance procedure
is the procedure by which unit employees are to appeal performance
appraisals and that the Union representative need not participate in
appeals from nonunit employees. Finally, the Union argues that the
member it selects is serving as a Union representative pursuant to
section 7131 of the Statute and, consequently, the proposal does not
involve the assignment of official duties.
B. Analysis and Conclusion
Proposal 5 would allow the Union to appoint one member to serve as
its representative on the State Review and Appeals Board. The Board
reviews appeals by employees concerning their performance appraisals and
recommends to the Adjutant General whether the appraisal should be
upheld. We find that the Board's function constitutes an integral part
of the process by which the Agency exercises its rights under section
7106(a)(2)(A) and (B) to direct employees and assign work by appraising
the performance of its employees. By placing a Union representative on
the Appeals Board, the proposal would allow the Union to interject
itself into the Agency's decision-making process and prevent the
management officials on the Board from engaging in free and open
deliberations among themselves. The Authortiy has held that such
deliberations are an essential part of management's right to make
decisions under section 7106 of the Statute. See National Federation of
Federal Employees, Local 943 and Department of the Air Force, Keesler
Air Force Base, Mississippi, 16 FLRA 313, 315-16 (1984) (Section D), in
which the Authority held that a proposal requiring performance
appraisals to be reviewed by a Performance Standards Panel that included
a representative of the union interfered with the agency's rights to
direct employees and assign work. See also American Federation of
Government Employees, Local 2094, AFL-CIO and Veterans Administration
Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 2),
petition for review filed sub nom. American Federation of Government
Employees, AFL-CIO, Local 2094 v. FLRA, Case No. 86-1521 (D.C. Cir.
Sept. 22, 1986), in which the Authority held that allowing union
representation on the agency's Position Management Committee would
violate management's rights. Accordingly, we conclude that Proposal 5
would interfere with the Agency's rights to direct employees and assign
work and is outside the duty to bargain.
In view of this determination, it is unnecessary for us to decide
whether Proposal 5 is also outside the duty to bargain because it would
determine conditions of employment of nonunit employees or because
membership on the Board would constitute an assignment of official
duties.
VII. Proposals 6 and 7
(Proposal 6)
ARTICLE 22
Section 1. Union officials will not be required to wear the
military uniform under the following conditions:
a. Negotiations of any kind with management officials.
b. Labor/management meetings with management officials.
c. Labor/management seminars at Massachusetts National Guard
installations or armories.
d. Performing representational duties for bargaining unit
members.
e. When representing the union on committees, at hearings or
at third party proceedings.
(Proposal 7)
Section 2. Union officials will be allowed reasonable time to
change clothes prior to and subsequent to any of the situations
contained in Section 1 of the Article.
A. Positions of the Parties
The Agency contends that the wearing of uniforms by National Guard
technicians concerns the methods and means of performing work and that
Proposal 6 is, therefore, negotiable only at the election of the Agency
under section 7106(b)(1) of the Statute, citing the Authority's decision
in Division of Military and Naval Affairs, State of New York, Albany,
New York and New York Council, Association of Civilian Technicians, 15
FLRA 288 (1984), aff'd New York Council, Association of Civilian
Technicians v. FLRA, 757 F.2d 502 (2d Cir.), cert. denied, 106 S.Ct. 137
(1985). The Agency further argues that Proposal 6 is inconsistent with
Technician Personnel Regulation 300 which requires technicians to wear
the military uniform when performing technician duties or attending
certain courses of instruction. The Agency notes that its regulation
also provided that the wearing of the military uniform is
"inappropriate" for labor organization representative engaged in labor
agreement negotiations, but contends that Proposal 6 includes matters
beyond labor management negotiations. It contends that the regulation
is essential to the accomplishment of its mission and to the
requirements of an effective and efficient government and that its
regulation is, therefore, supported by a compelling need under section
2424.11(a) of the Authority's Rules.
The Union contends that the Authority's decision in Division of
Military and Naval Affairs applies only to wearing the uniform while
performing technician duties. It argues that Proposal 6 concerns
employees performing their duties as Union representatives rather than
as technicians. The Union also contends that the proposal does not
conflict with the Agency's regulation in that the proposal concerns the
performance of Union representational functions consistent with the
exception in the regulation. Additionally, the Union argues that the
Agency has not demonstrated that its regulation is supported by a
compelling need.
The Agency contends that Proposal 7 is outside the duty to bargain
for the same reasons as Proposal 6. It further argues that Proposal 7
is also outside the duty to bargain because it would prevent the Agency
from assigning other work at the times set aside for changing clothes in
violation of management's right under section 7106(a)(2)(B) to assign
work. The Union contends that Proposal 7 is concerned with its rights
to negotiate official time for the conduct of Union business and does
not violate the Agency's right to assign work.
B. Analysis
1. Proposal 6 Does Not Concern the Methods and Means of
Performing Work
We find that Proposal 6 concerns the wearing of military uniforms by
National Guard technicians when engaged in labor-management activities
rather than technician duties. This proposal is to the same effect as
the proposal that we held to be within the duty to bargain in National
Association of Government Employees, Local R3-84, SEIU, AFL-CIO and
District of Columbia Air National Guard, 23 FLRA No. 73 (1986). In
District of Columbia Air National Guard, we found that a proposal which
provided that technicians would not be required to wear uniforms while
engaged in labor-management activities did not violate the agency's
right to determine the methods and means of performing work. We
concluded that the proposal differed from the situation in the Division
of Military and Naval Affairs case cited by the agency in that (1) the
labor-management activities with which the proposal was concerned did
not involve the performance of the agency's work within the meaning of
section 7106(b)(1), and (2) the agency's purpose in imposing the uniform
requirement on technicians when performing their technician duties would
not be furthered by also imposing the requirement on technicians
involved in labor-management activities. We found that the exceptions
to the agency's uniform requirement in District of Columbia Air National
Guard concerned labor-management activities -- the joint efforts of
employees, the Union, and the agency's management officials in setting
and administering technicians' conditions of employment. See American
Federation of Government Employees, AFL-CIO, Local 2761 and U.S.
Department of the Army, U.S. Army Adjutant General Publication Center,
St. Louis, Missouri, 14 FLRA 438, 440-41 (1984); National Federation of
Federal Employees, Local 541 and Veterans Administration Hospital, Long
Beach, California, 12 FLRA 270, 274 (1983).
Similarly, Proposal 6 in dispute here is concerned with Union
officials acting in their representational capacity instead of
performing technician duties. The purpose in requiring technicians to
wear military uniforms would not be furthered in this situation.
Consequently, for the reasons set forth more fully in District of
Columbia Air National Guard, we conclude that Proposal 6 does not
concern the methods and means of performing the Agency's work.
2. The Proposal Does Not Conflict With the Agency's
Regulation
The Agency contends that the proposal conflicts with Technician
Personnel Regulation 300 which requires technicians in the excepted
service to wear the military uniform "when performing technician
duties." However, as we discussed above, Proposal 6 is concerned with
technicians engaged in labor-management activities rather than
performing technician duties. The Agency's regulation itself recognizes
that the uniform requirement is "inappropriate" for labor organization
representatives when they are engaged in "labor agreement negotiations."
See Technician Personnel Regulation, Section 302.7. Accordingly, we
conclude that Proposal 6 is not inconsistent with the Agency's
regulation. In view of this determination, it is unnecessary for us to
decide whether the Agency's regulation is supported by a compelling
need.
3. Proposal 7 Concerns Official Time to be Negotiated By
the Parties
Proposal 7 provides that union officials will be given reasonable
time to change clothes both before and after performing the
representational duties set forth in Proposal 6. In District of
Columbia Air National Guard, we held that a proposal which provided
union officials reasonable time to change from and into their uniforms
before and after engaging in labor-management activities was within the
duty to bargain. We found that the proposal was concerned with the use
by union officials of official time to prepare for labor-management
activity and was, therefore, negotiable. See id., slip op. at 5.
Because Proposal 7 in dispute here is also concerned with official time
rather than duty time, the proposal does not violate the Agency's right
to assign work. Additionally, for the reasons discussed with respect to
Proposal 6, we find that Proposal 7 does not concern the methods and
means of performing work and is not inconsistent with Technician
Personnel Regulation 300.
C. Conclusion
For the reasons set forth above, we conclude that Proposals 6 and 7
are within the duty to bargain.
VIII. Proposal 8
ARTICLE 22
Section 3. Technicians will be authorized ten minutes at the
start and end of their work tour to change clothes.
A. Positions of the Parties
The Agency contends that Proposal 8 violates its right under section
7106(a)(2)(B) to assign work in that the proposal would prohibit it from
assigning other duties to military technicians during the 20 minutes
each day set aside for changing clothes. The Union makes no argument
with respect to the proposal in its response.
B. Analysis and Conclusion
Unlike Proposal 7, Proposal 8 is concerned with setting aside time
for changing clothes, time that would otherwise be used for official
technician duties. This proposal is to the same effect as the proposal
the Authority held to be outside the duty to bargain in National
Treasury Employees Union and NTEU Chapter 80 and Department of the
Treasury, Internal Revenue Service, Central Region, 8 FLRA 197 (1982)
(Proposal 7), discussed above with respect to Proposal 2. We find that
Proposal 8 would prohibit the Agency from assigning other duties to
technicians during the 20 minutes set aside for changing clothes.
Consequently, for the reasons set forth more fully in Department of the
Treasury, we conclude that Proposal 8 violates the Agency's right under
section 7106(a)(2)(B) to assign work and is outside the duty to bargain.
See also National Treasury Employees Union, Chapter 153 and Department
of the Treasury, U.S. Customs Service, 21 FLRA No. 128 (1986) (Proposal
7 requiring agency to give employees time during hours of duty to clean
up and change uniforms nonnegotiable).
IX. Proposal 9
ARTICLE 22
Section 4. Technicians will be furnished an allowance for
cleaning and maintenance equal the uniform allowance received by
AGR personnel.
A. Positions of the Parties
The Agency contends that Proposal 9 conflicts with 5 U.S.C. Section
5901 which permits the payment of uniform allowances only where
personnel are not furnished with an appropriate uniform. It claims that
the technicians are furnished with uniforms and that funds cannot be
provided to pay for the cleaning and maintenance of the uniform as
required by the proposal. The Union makes no argument with respect to
the proposal in its response.
B. Analysis and Conclusion
We find that the proposal is not within the duty to bargain because
the matter of uniform allowances as proposed by the Union is
specifically provided for in Federal statute.
Subchapter I of 5 U.S.C. chapter 59, which includes section 5901
cited by the Agency, expressly provides for annual appropriations by
Congress to agencies which require employees to wear a prescribed
uniform in the performance of official duties and which do not furnish
that uniform. The provisions of the subchapter further provide that
these funds in specified amounts will be used to either furnish the
employee the prescribed uniform or pay the employee an allowance for a
uniform. The subchapter was originally enacted as the Federal Employees
Uniform Allowance Act of 1954, Pub. L. No. 83-763, 68 Stat. 1114 (1954).
The legislative history of this provision indicates that the allowance
was appropriated for both the purchase and "upkeep" of the prescribed
uniform. S. Rep. No. 1992, 83rd Cong., 1954 U.S. Code Cong. & Ad. News
3816, 3826. The provisions of the subchapter further provide that when
the prescribed uniform is furnished, or a uniform allowance is paid by
the agency under another statute or regulation in existence on Spetember
1, 1954, a uniform may not be furnished or an allowance paid under
subchapter I. The subchapter finally provides for regulations for the
administration of the payment of allowances.
From our examination of these provisions, we conclude that 5 U.S.C.
chapter 59, subchapter I, deals comprehensively with the payment of a
uniform allowance by an agency for the maintenance of the uniform which
the agency requires employees to wear. Because all bargaining unit
employees are required to wear the military uniform, regardless of
military rank or grade, we find that the proposal pertains to a matter
which is specifically provided for by Federal statute. Thus, under
section 7103(a)(14)(C) of the Statute, the proposal concerns a matter
which is excluded from those "conditions of employment" over which an
agency can be required to bargain. See American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 1). In
view of our conclusion, it is not necessary to decide whether payment of
the proposed uniform allowance is consistent with the subchapter. See
id., slip op. at 3.
X. Proposal 10
ARTICLE 22
Section 5. Grooming standards will not apply during the
technician work week.
A. Positions of the Parties
The Agency contends that the maintenance of grooming standards is
integrally related to the requirement that National Guard technicians
wear uniforms when performing technician duties. It argues that
grooming standards, like the requirement that technicians wear uniforms,
constitute a methods and means of performing the Agency's work under
section 7106(b)(1) of the Statute and are negotiable only at the
election of the Agency.
The Union contends that grooming standards interfere with the
technicians' off-the-job privacy rights to a greater degree than the
requirement that technicians wear uniforms. It argues that requiring
technicians to adhere to grooming standards when in civilian status
bears no direct relationship to the employees' accomplishment of their
duties and does not constitute a methods and means of performing work.
The Union also contends that regulations concerning grooming standards
cited by the Agency do not apply to technicians and that the Agency has
not demonstrated a compelling need for its regulations.
B. Analysis and Conclusions
In Division of Military and Naval Affairs, State of New York, 23 FLRA
No. 73 (1986), discussed above with respect to Proposal 6, the Authority
held that the requirement that National Guard technicians wear the
military uniform was integrally related to the duties the technicians
perform in furtherance of the overall military mission of the National
Guard. We found that, because of the unique status of technicians as
civilian employees who are also essential to achieving rapid
mobilization of the part-time Guard into a military force, the
technicians must possess a highly developed sense of esprit de corps and
military discipline. The uniform requirement was found to be
indispensable as a constant reminder to technicians of this role. We
therefore concluded that the requirement constituted a method and means
of performing work within the meaning of section 7106(b)(1) of the
Statute.
In this case, we find, in agreement with the Agency, that grooming
standards are so inextricably related to the wearing of the military
uniform that the standards established by the Agency must be considered
an inextricable part of the uniform wearing requirement. Agency
standards determining the proper wear of the military uniform are
integrally related to the Agency's purpose in imposing the uniform
requirement -- that is, the maintenance of a highly developed sense of
esprit de corps and military discipline among technicians -- and
therefore concern the method and means of performing the Agency's work.
We conclude that the Union's proposal concerning grooming standards is
negotiable only at the election of the Agency under section 7106(b)(1).
Since the Agency has elected not to bargain, Proposal 10 is outside the
duty to bargain for the reasons set forth more fully in Division of
Military and Naval Affairs, State of New York. Compare Proposal 3 in
American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Department of
Naturalization Service Council and U.S. Department of Justice,
Immigration and Naturalization Service, 8 FLRA 347, 351-53 (1982), rev'd
on other grounds sub nom. United States Department of Justice,
Immigration and Naturalization Service v. FLRA, 709 F.2d 714 (D.C. Cir.
1983), where the Authority found that although a union proposal
providing for grooming standards which differed from those of the agency
involved the means of performing the agency's work, the proposal
constituted an appropriate arrangement in that it provided an
alternative which still furthered the agency's objectives.
XI. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning Proposals 6 and 7. /1/
The Union's petition for review as to Proposals 2-5 and 8-10 is
dismissed.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 1
Proposal 1
ARTICLE 4
Section 18. a. The union president will be assigned to the
day shift.
b. Union officers and stewards work hours will be adjusted to
permit them to accomplish their representational functions.
A. Positions of the Parties
The Agency contends that Proposal 1 would violate its right under
section 7106(a)(2)(A) to assign employees by (1) requiring it to assign
the union president to the day shift regardless of mission or job
requirements; and (2) requiring it to adjust the work hours of union
officials so that they coincide with the hours of the bulk of the work
force.
The Union contends that Proposal 1 constitutes a negotiable procedure
which does not violate the Agency's rights since it concerns when
employees will perform those duties previously assigned to their
positions. The Union states that the proposal is consistent with
section 7131(d) of the Statute in that it allows officers and stewards
flexibility in processing grievances.
B. Analysis and Conclusion
As the Authority has previously indicated, parties may negotiate
procedures and practices which do not negate an agency's rights but
which would enable a union to implement its statutory rights and duties
with respect to the representation of employees. See American
Federation of Government Employees, AFL-CIO, Local 2272 and Department
of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
1014-15 (1982) (Proposal 7). The Authority has also held that proposals
concerning when employees would perform duties previously assigned to
their positions do not violate management's right to assign employees.
See Laborers' International Union of North America, AFL-CIO-CLC, Local
1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy,
California, 14 FLRA 686, 687 (1984) (first disputed sentence of Proposal
1). The first part of Proposal 1 (section 18(a)) here would require
that the Union president be assigned to only the day shift. The second
part of the Union's proposal (section 18(b)) would require the Agency to
adjust the work hours of Union officers and stewards so that their
"hours of work coincide with the bulk of the work force." Union Petition
for Review at 1.
There is no indication in the record that the Union officials covered
by the proposal would perform duties other than those which the Agency
had already assigned to their positions. Rather, the proposal is merely
concerned with the time when those officials will perform those duties
previously assigned to them by the Agency. The proposal is to the same
effect as Provision 3 in International Plate Printers, Die Stampers and
Engravers Union of North America, AFL-CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA
No. 9 (1987). Therefore, for the reasons stated in our decision on
Provision 3 in Bureau of Engraving and Printing, Proposal 1 in this case
is negotiable. In contrast, see Department of Justice, U.S. Marshals
Service, supra, in which the Authortiy held that Proposal 7, which would
have prohibited the agency from assigning certain duties to employees
who were also union officials, violated management's right to assign
work under section 7106(a)(2)(B).
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning Proposal 1. /2/
Issued, Washington, D.C., March 31, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Chairman Calhoun's Dissenting and Concurring Opinion on Proposal 1
For the reasons in my separate opinion on Provision 3 in
International Plate Printers, Die Stampers and Engravers Union of North
America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987), I find
that section 18(a) of Proposal 1 infringes on the Agency's right to
assign work and is nonnegotiable.
I concur in my colleagues' determination that the second part of
Proposal 1 (section 18(b)) is negotiable.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In finding these proposals to be within the duty to bargain, we
make no judgment as to their merits.
(2) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.