[ v27 p801 ]
27:0801(86)NG
The decision of the Authority follows:
27 FLRA No. 86
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, SEIU, AFL-CIO
Union
and
STATE OF CONNECTICUT, ADJUTANT
GENERAL OFFICE
Agency
Case No. 0-NG-1289
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of three proposals.
II. Proposal 1
Article VI, Section 1 -- Alternative Work Schedules
A. 5 4/9 Workweek
B. Flextour
C. 4 ten hour days
A. Positions of the Parties
The Agency contends that Proposal 1, to the extent that it proposes
alternative work schedules under the Work Schedules Act, is
nonnegotiable because National Guard technicians are not subject to the
Work Schedules Act. /1/ Specifically, the Agency claims that National
Guard technicians are excluded from the Act by 32 U.S.C. Section 709(g),
which provides that the Secretaries of the Army and the Air Force shall
prescribe technicians' hours of work "(n)otwithstanding sections 5544(a)
or 6101(a) of title 5 or any other provision of law(.)" /2/
In addition, the Agency argues that Proposal 1 is outside the duty to
bargain (1) under section 7117(a)(1) of the Statute because it is
inconsistent with 5 U.S.C. Section 6132; and (2) under section
7117(a)(2) because it conflicts with Technician Personnel Regulation
(TRP) 600 (610.1), Section 1-1(a) and 1-4(b), an Agency regulation for
which a compelling need exists under the Authority's regulations.
Finally, the Agency contends that the proposal directly interferes with
management's rights to assign work under section 7106(a)(2)(B) and to
determine the numbers, types and grades of employees and positions
assigned to a work project or tour of duty under section 7106(b)(1).
The Union contends that the Work Schedules Act specifically applies
to National Guard technicians, and to the extent that there is a
conflict, the Work Schedules Act supersedes the Technicians Act. In
support of this claim the Union cites 5 U.S.C. Sections 6121(2) and
2105. The Union also contends, contrary to the Agency, that there is no
compelling need for TPR 600 (610.1) and that Proposal 1 does not
infringe on management's rights to assign work.
B. Analysis and Conclusion
Proposal 1 has the same effect as the last sentence of Proposal 2 and
Proposal 5 in National Federation of Federal Employees, Local 1655 and
Illinois National Guard, 26 FLRA No. 81 (1987). In that case, we found
that since the Work Schedules Act applies to National Guard technicians
and is not inconsistent with 32 U.S.C. Section 709(g)(2), those laws are
capable of being applied together. We therefore found that because
National Guard technicians are subject to the Work Schedules Act the
proposals in that case concerning alternate work schedules were
negotiable. We also held that because alternate work schedules are
"fully negotiable" within the limits set by the Work Schedules Act,
there are no issues pertaining to the negotiability of those schedules
which are considered by the Authority under section 7117 of the Statute,
except whether a proposed schedule is consistent with the Act. See
American Federation of Government Employees, Local 1934 and Department
of the Air Force, 3215 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986).
Therefore we found that the Agency's contentions as to sections 7106
and 7117(a)(2) of the Statute were not properly before us. For the
reasons set forth in Illinois National Guard and Department of the Air
Force, we find that Proposal 1 is within the duty to bargain.
III. Proposal 2
Article XVI, Section 3
"All other duties as assigned" is construed to mean those
duties for which the employee is technically qualified to perform.
They must be within the general framework of the employee's
current position description.
A. Positions of the Parties
The Agency contends that Proposal 2 violates its right to assign work
pursuant to section 7106(a)(2)(B) of the Statute. The Agency argues
that the proposal would directly interfere with management's right to
assign work by preventing it from requiring employees to perform duties
that are not included in their position descriptions or are outside
their regular field of work.
The Union contends that the purpose of Proposal 2 is to ensure the
accuracy of employees' position descriptions. In particular, the Union
states that the intent of Proposal 2 is to limit the assignment of
lower-graded duties to employees on a regular basis because those duties
would tend to demean employees and jeopardize their position or grade.
The Union also contends that its earlier explanation of Proposal 2 to
the Agency, namely, that it is intended to prevent employees from being
assigned menial tasks on a recurring basis, does not render the proposal
nonnegotiable.
B. Analysis and Conclusion
For the following reasons, we find that Proposal 2 is not within the
duty to bargain.
The Union states that the proposal would not prevent management from
amending employees' position descriptions to include any duties which it
intends to assign to them and claims, therefore, that the proposal is to
the same effect as Proposal II in American Federation of Government
Employees, AFL-CIO, Local 1999 and Army Air Force Exchange Service,
Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153, 159-61 (1979),
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 (1982). That proposal permitted the regular assignment of
duties unrelated to the employees' basic job descriptions as long as
employees' position descriptions were amended to reflect that
assignment, and was found to be negotiable.
The Union's contentions are contradicted by its statements in the
record as to the proposal's intent. The Union states that the proposal
is intended "(t)o prevent employees from being assigned menial tasks on
a recurring basis." Petition for Review at 1. As the Union has
clarified the meaning of its proposal, "'(o)ther duties' should not be
such that they tend to demean an employee or jeopardize his position
grade by assigning lower grade duties on a regular basis." Union letter
of clarification dated July 3, 1986, at 2. Consistent with the Union's
explanation, Proposal 2 appears to be intended to absolutely prevent the
Agency from regularly requiring an employee to perform certain duties,
such as duties which the employee is not "technically qualified to
perform."
As described by the Union,the proposal does not merely seek to limit
the definition of the phrase "other duties as assigned" to include only
those which are within the "general framework of the employee's current
position description." Rather, the proposal would prevent the Agency
from assigning "menial" or "lower grade" duties to employees on a
recurring basis or duties which employees were not "technically
qualified to perform," whether or not the Agency amended their position
descriptions to reflect those assignments. Proposal 2 therefore is
distinguishable from the proposal in Dix-McGuire Exchange. Rather, it
has the same effect as Provision 2 found nonnegotiable in National
Federation of Federal Employees, Local 1622 and Department of the Army,
Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578
(1984). Provision 2 in that case provided, among other things, that
supervisors should avoid assigning additional duties to employees which
were inappropriate to their positions and qualifications. The Authority
found that Provision 2 interfered with management's right to assign work
pursuant to section 7106(a)(2)(B) of the Statute because it expressly
prevented the Agency from assigning duties to employees which were
outside their regular field of work or inappropriate to their position
or qualifications. We find that Proposal 2, like Provision 2 in Vint
Hill Farms Station, directly interferes with management's right to
assign work. See also National Federation of Federal Employees and
Haskel Indian Junior College, Bureau of Indian Affairs, Department of
the Interior, Lawrence, Kansas, 22 FLRA No. 57 (1986) (Proposal 5).
IV. Proposal 3
The Members disagree over the negotiability of this proposal. The
Decision and Order on Proposal 3 and Chairman Calhoun's dissent
immediately follow this decision.
V. Order
The petition for review as to Proposal 2 is dismissed. The Agency
must upon request, or as otherwise agreed to by the parties, bargain on
Proposal 1. /3/
Issued, Washington, D.C., June 26, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Decision and Order on Proposal 3
Proposal 3
Article XIX, Section 12
The employer agrees that all technicians who do not have
recruiting as a part of their position description will not be
required to recruit. Every effort will be made to obtain
volunteers for recruiting drives.
A. Positions of the Parties
The Agency contends that Proposal 3 violates its right to assign work
pursuant to section 7106(a)(2)(B) of the Statute. The Agency argues
that the proposal would directly interfere with management's right to
assign work by preventing it from requiring employees to perform duties
that are not included in their position description or are outside their
regular field of work.
The Union contends that the purpose of Proposal 3 is to ensure the
accuracy of employees' position descriptions.
B. Analysis and Conclusion
We find that Proposal 3 is negotiable. Section 7106 of the Statute
establishes management's right to assign work to employees. 5 U.S.C.
Section 7106(a)(2)(B). However, section 7106 also provides that
agencies and labor organizations may negotiate procedures relating to
management's implementation of its rights under section 7106, including
the right to assign work. 5 U.S.C. Section 7106(b)(2). These
procedures are mandatory subjects of bargaining between the parties even
if the procedures delay the exercise of a management right that is
itself nonbargainable. For example, Department of Defense v. FLRA, 659
F.2d 1140, 1153-58 (D.C. Cir. 1981), enforcing American Federation of
Government Employees, AFL-CIO, Local 1999 and Army Air Force Exchange
Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979),
cert. denied sub nom., AFGE v. FLRA, 455 U.S. 945 (1982). Such
procedures which delay the exercise of a particular management right may
not prevent the agency from acting at all in exercising that right. Id.
The effect of Proposal 3 is merely to require management to amend
employee position descriptions to include recruiting duties where
management intends to assign those duties to employees. As the
Authority has held on numerous occasions, employee position descriptions
are not themselves the assignment of work; they merely reflect the
duties and responsibilities which an agency has decided to assign to a
position. For example, American Federation of Government Employees,
AFL-CIO, Local 2849 and Office of Personnel Management, New York
Regional Office, 7 FLRA 571, 573 (1982). Proposal 3 assures that
employee position descriptions accurately reflect the fact that
recruiting duties have been assigned to the employees involved.
The amendment of a position description is in many instances a simple
matter. To the extent, however, that Proposal 3 involves the
possibility of imposing some delay on the exercise of management's right
to assign work, such delay by itself is not sufficient to render the
proposal nonnegotiable. See Department of Defense v. FLRA, 659 F.2d at
1153-58. We find that Proposal 3 thus sets forth a negotiable procedure
for the agency to follow in assigning recruiting duties. Unlike
Proposal 2, there is no indication in the record that Proposal 3 is
intended to prevent management from amending employees' position
descriptions to include particular duties, in this instance, recruiting.
Our determination that Proposal 3 is negotiable is consistent with
Authority precedent. In Dix-McGuire Exchange and subsequent cases, the
Authority has considered a variety of proposals dealing with the
relationship between the duties assigned to employees and employees'
position descriptions. In Dix-McGuire Exchange, the Authority held to
be negotiable a proposal intended "to prevent the agency from expanding
the work regularly required of the incumbent of a position by assigning
work which is not reasonably related to the duties spelled out in the
position description . . ." Dix-McGuire Exchange, 2 FLRA at 160. In
reaching this conclusion, the Authority stated that an agency intent on
making such an assignment merely "would need to change the position
description in order to do so." Id., 2 FLRA at 160-61. See also
American Federation of Government Employees, AFL-CIO, Local 2849 and
Office of Personnel Management, New York Regional Office, 7 FLRA at
573-74. This reasoning is equally applicable here.
With respect to an arbitrator's role in resolving grievances under
section 7122 of the Statute, it is well established that an arbitrator
may not substitute his or her judgment for that of the agency in the
exercise of management rights. See Bureau of Prisons, Department of
Justice and American Federation of Government Employees, Local 148, 21
FLRA No. 15, slip op. at 6 (1986). Specifically, as to grievances
arising out of circumstances such as those addressed by Proposal 3,
consistent with the above holdings and section 7106(a)(2)(B) of the
Statute, it is clear that an arbitrator may order an agency to change an
employee's position description to include the disputed additional
duties. See Federal Aviation Administration, Department of
Transportation, Tampa, Florida and Federal Aviation Science and
Technology Association, National Association of Government Employees,
Tampa, Florida, 8 FLRA 532, 533 n.3 (1982). However, an arbitrator
could not render an award substituting his or her judgment concerning
the assignment of work for that of management. See Department of the
Air Force, Carswell Air Force Base and American Federation of Government
Employees, Local 1364, 19 FLRA 386 (1985), where the Authority
overturned an arbitrator's award which ordered an agency to cease and
desist from assigning certain duties to particular personnel.
Moreover, the fact that Proposal 3 is negotiable would not insulate
an employee in appropriate circumstances from discipline relating to a
refusal to perform work assigned prior to the amendment of the
employee's position description. For example, section 7106(a)(2)(D) of
the Statute establishes management's right to take necessary actions
during emergencies. /4/
For the reasons set forth above, we find that Proposal 3 does not
interfere with management's right to assign work under section
7106(a)(2)(B) and is within the Agency's duty to bargain.
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 3. /5/
Issued, Washington, D.C., June 26, 1987.
/s/ Henry B. Frazier III,
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissenting Opinion of Chairman Calhoun On Proposal 3
Proposal 3 provides that technicians who do not have recruiting
included in their position descriptions will not be required to recruit.
The majority states that the effect of the proposal is to require the
Agency to "amend employee position descriptions to include recruiting
duties where management intends to assign those duties to employees,"
and relies on the Authority's decision on Proposal II in American
Federation of Government Employees, AFL-CIO, Local 1999 and Army Air
Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2
FLRA 153, 159-61 (1979), enforced as to other matters sub nom., AFGE v.
FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v.
FLRA, 455 U.S. 945 (1982). In my view, Proposal 3 directly interferes
with the Agency's right to assign work and is nonnegotiable.
In Dix-McGuire, the proposal stated that the phrase "other related
duties as assigned" would "not be used to regularly assign work to an
employee which is not reasonably related to his basic job description."
Id. at 159. The Authority found that the proposal was "designed to
insure the accuracy of employee position descriptions," and that the
proposal would not "foreclose the agency from adding such unrelated
duties to a position." Id. at 160. That description of the proposal is
consistent with its plain working; it concerned the revision of
position descriptions to accurately reflect the duties which are
regularly assigned to that position.
The Authority noted in Dix-McGuire that a position description is the
basis of the classification and pay systems for Federal employees, and
stated that "(c)hanges in the kinds and the level of responsibility of
the duties assigned an employee may necessitate changes in the position
description(.)" Id. at 160 (emphasis added). That finding is consistent
with Federal Personnel Manual (FPM) Chapter 511, Subchapter 4-2(b),
which provides in pertinent part:
The principal duties, responsibilities, and supervisory
relationships of a position are those significant for
classification purposes. This includes those which are operative
during a substantial part of the time and any others which affect
the qualifications required to perform the work.
That finding is consistent also with FPM Chapter 511, Subchapter
4-3(b), which requires a certification that a position description "is
an accurate statement of the major duties and responsibilites" of the
position. See National Federation of Federal Employees, Local 1497 and
Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151,
152-54 (1982).
Subsequently, in National Federation of Federal Employees, Local 1622
and Department of the Army, Headquarters, Vint Hill Farms Station,
Warrenton, Virginia, 16 FLRA 578, 580-81 (1984), the Authority found
Provision 2 to be nonnegotiable. That provision provided, in pertinent
part:
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.
Although the Authority stated that "a position description does not
constitute a limitation on the assignment of duties," it concluded that
the provision was nonnegotiable because it directly interfered with the
right to assign work by "expressly preventing the Agency from requiring
employees to perform certain duties(.)" Id. at 581.
Like the provision in Vint Hill Farms, Proposal 3 in this case would
restrict the Agency's right to assign work. In fact, the Agency could
not assign recruiting duties to a technician unless and until the
technician's position description was amended to include recruiting.
Unlike the proposal in Dix-McGuire, there is no indication in this case
that recruiting duties (1) are regularly assigned; (2) constitute
principal duties or responsibilities, affect qualifications, or are
performed during a substantial part of the time within the meaning of
FPM Chapter 511, Subchapter 4-2; or (3) are major duties and
responsibilities which must be included under the certification required
by FPM Chapter 511, Subchapter 4-3. Rather, under Proposal 3,
recruiting duties must be included in position descriptions for the sole
purpose of enabling the Agency to assign that work. Contrary to the
majority, therefore, I would find that the proposal imposes a
substantive condition on the assignment of work and, thus, that it is
not a procedure under section 7106(b)(2). See my dissent in National
Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54
(1986).
Proposal 2 in this case provides that "(a)ll other duties as
assigned" means those duties for which the employee is technically
qualified and which are "within the general framework of the employee's
position description." We find that this proposal is nonnegotiable
because it conflicts with the Agency's right to assign work. In my
view, Proposal 3 has the same effect.
FPM Chapter 511, Subchapter 4-3(a) states the following:
Position descriptions play a vital role in determining pay
levels and qualification requirements; they are necessary for
authorizing payment of public funds, establishing sources of
recruitment, setting conditions for competition for appointment
and advancement, and determining whether positions should be
excepted from the competitive service.
Under the majority decision on Proposal 3, position descriptions play
another vital role: they limit the work which may be assigned. I do
not believe Congress intended that management could be required to amend
a position description every time it decided to make a particular work
assignment. Accordingly, I do not join the majority opinion.
Issued, Washington, D.C., June 26, 1987.
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Federal Employees Flexible and Compressed Work Schedules Act of
1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Sections
3401, 6101 and note, 6101, 6120-6133), which was made permanent in 1986,
Pub. L. No. 99-196, 99 Stat. 1350.
(2) For the text of 32 U.S.C. Section 709(g) see the Appendix to this
decision.
(3) In finding Proposal 1 to be negotiable, we express no opinion as
to its merits.
(4) Compare General Services Administration and American Federation
of Government Employees, Council 236, 15 FLRA 328 (1984) (violation of a
contract provision by an agency does not necessarily authorize an
employee to act with impunity with respect to the violation).
(5) In finding Proposal 3 to be negotiable, we express no opinion as
to its merits.
APPENDIX
/2/ 32 U.S.C. Section 709(g) provides as follows:
Section 709 Technicians: Employment, use, status
* * * *
(g)(1) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
other provision of law, the Secretary concerned may, in the case of
technicians assigned to perform operational duties at air defense sites
--
(A) prescribe the hours of duties;
(B) fix the rates of basic compensation; and
(C) fix the rates of additional compensation;
to reflect unusual tours of duty, irregular additional duty, and work
on days that are ordinarily nonworkdays. Additional compensation under
this subsection may be fixed on an annual basis and is determined as an
appropriate percentage, not in excess of 12 percent, of such part of the
rate of basic pay for the position as does not exceed the minimum rate
of basic pay for GS-10 of the General Schedule under section 5332 of
title 5.
(2) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
other provision of law, the Secretary concerned may, for technicians
other than those described in clause (1) of this subsection, prescribe
the hours of duty for technicians. Notwithstanding sections 5542 and
5543 of title 5 or any other provision of law, such technicians shall be
granted an amount of compensatory time off from their scheduled tour of
duty equal to the amount of any time spent by them in irregular or
overtime work, and shall not be entitled to compensation for such work.