[ v02 p604 ]
02:0604(77)NG
The decision of the Authority follows:
2 FLRA No. 77
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
(Union)
and
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR
FORCE BASE, OHIO
(Activity)
Case No. 0-NG-40
DECISION ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
UNION PROPOSAL I /1/
ARTICLE 36 DAY CARE FACILITIES
THE EMPLOYER WILL PROVIDE ADEQUATE SPACE AND FACILITIES FOR A DAY
CARE CENTER AT EACH
ALC. THE UNION AGREES TO OPERATE THE DAY CARE CENTER IN A FAIR AND
EQUITABLE MANNER. THE USE
OF THE FACILITIES TO BE AVAILABLE TO ALL BASE EMPLOYEES UNDER THE
TERMS AND CONDITIONS OF THE
CONSTITUTION AND BY-LAWS OF SUCH FACILITY. THE DAY CARE CENTER WILL
BE SELF SUPPORTING,
EXCLUSIVE OF THE SERVICES AND FACILITIES PROVIDED BY THE EMPLOYER.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, CONTRARY TO THE AGENCY'S ALLEGATION, UNION
PROPOSAL I CONCERNS "CONDITIONS OF EMPLOYMENT" AND, THEREFORE, IS WITHIN
THE GENERAL SCOPE OF THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. /2/ IF SO, THE
FURTHER QUESTION IS WHETHER THE PROPOSAL IS INCONSISTENT WITH THE RIGHT
OF THE AGENCY TO DETERMINE ITS BUDGET UNDER SECTION 7106(A) OF THE
STATUTE, AS ALLEGED BY THE AGENCY. /3/
OPINION
CONCLUSION: UNION PROPOSAL I CONCERNS A CONDITION OF EMPLOYMENT AND
DOES NOT VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER
SECTION 7106(A) OF THE STATUTE. THEREFORE, IT IS WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (45
FED.REG. 3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATION THAT THE DISPUTED
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE. /4/
REASONS: THE AGENCY TAKES THE POSITION THAT THE REQUIREMENT OF THE
PROPOSAL THAT THE AGENCY PROVIDE SPACE AND FACILITIES FOR A DAY CARE
CENTER TO BE RUN BY THE UNION IS NOT A CONDITION OF EMPLOYMENT AFFECTING
UNIT EMPLOYEES WITHIN THE MEANING OF THE STATUTE BECAUSE THE USE OF
AGENCY SPACE FOR DAY CARE FACILITIES HAS NO CONNECTION WITH THE
EMPLOYMENT RELATIONSHIP.
ON THE CONTRARY, THE AVAILABILITY OF DAY CARE FACILITIES AFFECTS THE
WORK SITUATION AND EMPLOYMENT RELATIONSHIP IN A VARIETY OF SIGNIFICANT
WAYS. FOR EXAMPLE, THE EXISTENCE AND AVAILABILITY OF SUCH FACILITIES
CAN BE DETERMINATIVE OF WHETHER AN INDIVIDUAL WILL BE ABLE TO ACCEPT A
JOB WITH AN EMPLOYER AND OF WHETHER AN EMPLOYEE WILL BE ABLE TO CONTINUE
EMPLOYMENT WITH AN EMPLOYER. THUS, IN ADDITION TO BEING AN ASSET TO
MANAGEMENT IN RECRUITING AND KEEPING A STABLE WORKFORCE, /5/ SUCH
FACILITIES CAN BE A DECISIVE FACTOR IN THE MAINTENANCE BY UNIT EMPLOYEES
OF AN EMPLOYMENT RELATIONSHIP. FURTHERMORE, PROBLEMS WITH CHILD CARE
ARRANGEMENTS CAN RESULT IN EMPLOYEE TARDINESS AND ABSENTEEISM. /6/
THUS, THEY HAVE A DETRIMENTAL EFFECT ON EMPLOYEE USE OF LEAVE AND ON
EMPLOYEE PRODUCTIVITY, RESULTING IN LOWERED MORALE AND LESSENED ABILITY
TO PERFORM SATISFACTORILY IN RELATION TO ESTABLISHED EXPECTATIONS. IT
IS ALSO NOTED THAT, BECAUSE OF THE INCREASED NUMBER OF FAMILIES IN WHICH
BOTH PARENTS WORK, AS WELL AS THE NECESSITY FOR SINGLE PARENTS TO WORK,
THE SIGNIFICANCE OF DAY CARE FACILITIES TO THE EMPLOYMENT RELATIONSHIP
HAS INCREASED OVER RECENT YEARS. /7/
FOR THE FOREGOING REASONS, IT IS CONCLUDED THAT USE OF AGENCY SPACE
FOR DAY CARE FACILITIES IS A CONDITION OF EMPLOYMENT. IT IS DIRECTLY
RELATED TO THE PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS OF UNIT EMPLOYEES AND IS WITHIN THE SCOPE OF
BARGAINING UNDER SECTION 7117 OF THE STATUTE.
THE AGENCY NEXT ALLEGES THAT UNION PROPOSAL I VIOLATES ITS RIGHT TO
DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1) OF THE STATUTE BECAUSE IT
WOULD REQUIRE THE AGENCY TO BEAR THE COST OF THE SPACE AND FACILITIES
PROVIDED FOR THE DAY CARE CENTER. THE UNDERLYING ASSUMPTION OF THIS
POSITION APPEARS TO BE THAT A PROPOSAL IS INCONSISTENT WITH THE
AUTHORITY OF THE AGENCY TO DETERMINE ITS BUDGET WITHIN THE MEANING OF
SECTION 7106(A)(1) IF IT IMPOSES A COST UPON THE AGENCY WHICH REQUIRES
THE EXPENDITURE OF APPROPRIATED AGENCY FUNDS. SUCH A CONSTRUCTION OF
THE STATUTE, HOWEVER, COULD PRECLUDE NEGOTIATION ON VIRTUALLY ALL
OTHERWISE NEGOTIABLE PROPOSALS, SINCE, TO ONE EXTENT OR ANOTHER, MOST
PROPOSALS WOULD HAVE THE EFFECT OF IMPOSING COSTS UPON THE AGENCY WHICH
WOULD REQUIRE THE EXPENDITURE OF APPROPRIATED AGENCY FUNDS. NOTHING IN
THE RELEVANT LEGISLATIVE HISTORY INDICATES THAT CONGRESS INTENDED THE
RIGHT OF MANAGEMENT TO DETERMINE ITS BUDGET TO BE SO INCLUSIVE AS TO
NEGATE IN THIS MANNER THE OBLIGATION TO BARGAIN.
THERE IS NO QUESTION BUT THAT CONGRESS INTENDED THAT ANY PROPOSAL
WHICH WOULD DIRECTLY INFRINGE ON THE EXERCISE OF MANAGEMENT RIGHTS UNDER
SECTION 7106 OF THE STATUTE WOULD BE BARRED FROM NEGOTIATION. /8/
WHETHER A PROPOSAL DIRECTLY AFFECTS THE AGENCY'S DETERMINATION OF ITS
BUDGET DEPENDS UPON THE DEFINITION OF "BUDGET" AS USED IN THE STATUTE.
THE STATUTE AND LEGISLATIVE HISTORY DO NOT CONTAIN SUCH A DEFINITION.
IN THE ABSENCE OF A CLEARLY STATED LEGISLATIVE INTENT, IT IS APPROPRIATE
TO GIVE THE TERM ITS COMMON OR DICTIONARY DEFINITION. /9/ AS DEFINED BY
THE DICTIONARY, "BUDGET" MEANS A STATEMENT OF THE FINANCIAL POSITION OF
A BODY FOR A DEFINITE PERIOD OF TIME BASED ON DETAILED ESTIMATES OF
PLANNED OR EXPECTED EXPENDITURES DURING THE PERIOD AND PROPOSALS FOR
FINANCING THEM. /10/ IN THIS SENSE, THE AGENCY'S AUTHORITY TO DETERMINE
ITS BUDGET EXTENDS TO THE DETERMINATION OF THE PROGRAMS AND OPERATIONS
WHICH WILL BE INCLUDED IN THE ESTIMATE OF PROPOSED EXPENDITURES AND THE
DETERMINATION OF THE AMOUNTS REQUIRED TO FUND THEM. UNDER THE STATUTE,
THEREFORE, AN AGENCY CANNOT BE REQUIRED TO NEGOTIATE THOSE PARTICULAR
BUDGETARY DETERMINATIONS. THAT IS, A UNION PROPOSAL ATTEMPTING TO
PRESCRIBE THE PARTICULAR PROGRAMS OR OPERATIONS THE AGENCY WOULD INCLUDE
IN ITS BUDGET OR TO PRESCRIBE THE AMOUNT TO BE ALLOCATED IN THE BUDGET
FOR THEM WOULD INFRINGE UPON THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET
UNDER SECTION 7106(A)(1) OF THE STATUTE.
MOREOVER, WHERE A PROPOSAL WHICH DOES NOT BY ITS TERMS PRESCRIBE THE
PARTICULAR PROGRAMS OR AMOUNTS TO BE INCLUDED IN AN AGENCY'S BUDGET,
NEVERTHELESS IS ALLEGED TO VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS
BUDGET BECAUSE OF INCREASED COST, CONSIDERATION MUST BE GIVEN TO ALL THE
FACTORS INVOLVED. THAT IS, RATHER THAN BASING A DETERMINATION AS TO THE
NEGOTIABILITY OF THE PROPOSAL ON INCREASED COST ALONE, THAT ONE FACTOR
MUST BE WEIGHED AGAINST SUCH FACTORS AS THE POTENTIAL FOR IMPROVED
EMPLOYEE PERFORMANCE, INCREASED PRODUCTIVITY, REDUCED TURNOVER, FEWER
GRIEVANCES, AND THE LIKE. ONLY WHERE AN AGENCY MAKES A SUBSTANTIAL
DEMONSTRATION THAT AN INCREASE IN COSTS IS SIGNIFICANT AND UNAVOIDABLE
AND IS NOT OFFSET BY COMPENSATING BENEFITS CAN AN OTHERWISE NEGOTIABLE
PROPOSAL BE FOUND TO VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET
UNDER SECTION 7106(A) OF THE STATUTE.
UNION PROPOSAL I DOES NOT ON ITS FACE PRESCRIBE THAT THE AGENCY'S
BUDGET WILL INCLUDE A SPECIFIC PROVISION FOR SPACE AND FACILITIES FOR A
DAY CARE CENTER OR A SPECIFIC MONETARY AMOUNT TO FUND THEM.
FURTHERMORE, THE AGENCY HAS NOT DEMONSTRATED THAT UNION PROPOSAL I WILL
IN FACT RESULT IN INCREASED COSTS. ON THE CONTRARY, THE RECORD IS THAT
THE MATTER OF THE COST TO THE UNION FOR SPACE AND FACILITIES IS SUBJECT
TO FURTHER NEGOTIATION. IT IS NOT NECESSARY, THEREFORE, TO REACH THE
ISSUE OF WHETHER THE ALLEGED COSTS ARE OUTWEIGHED BY COMPENSATING
BENEFITS. CONSEQUENTLY, UNION PROPOSAL I DOES NOT VIOLATE THE RIGHT OF
THE AGENCY TO DETERMINE ITS BUDGET UNDER SECTION 7106(A) OF THE STATUTE.
FINALLY, IT IS NOTED THAT THE AGENCY HAS NOT ADVERTED TO PROBLEMS
WHICH MIGHT ARISE IN CONNECTION WITH IMPLEMENTATION AND ADMINISTRATION
OF AN AGREEMENT, SHOULD IT INCLUDE UNION PROPOSAL I, VIS A VIS
PROVISIONS OF APPLICABLE LAW AND GOVERNMENT-WIDE RULE OR REGULATION /11/
GOVERNING, E.G., THE USE OR ALLOCATION OF SPACE. THEREFORE, THE
AUTHORITY MAKES NO RULING AS TO WHETHER UNION PROPOSAL I IS CONSISTENT
WITH SUCH LAW OR REGULATION.
UNION PROPOSAL II
ARTICLE 28 USE OF OFFICIAL FACILITIES
SECTION 2. AF TELEPHONE SYSTEM
FOR PURPOSES OF ADMINISTERING THIS NATIONWIDE AGREEMENT AND OTHER
APPROPRIATE OFFICIAL
BUSINESS, THE LOCAL PRESIDENT, CHIEF STEWARD OR THEIR DESIGNEES WILL
HAVE THE USE OF
NATIONWIDE AIR FORCE TELEPHONE SYSTEMS AT THE UNION OFFICE. IT IS
UNDERSTOOD THAT THIS
TELEPHONE WILL BE USED FOR CONDUCTING PROPER LABOR-MANAGEMENT
RELATIONS ACTIVITIES. IT WILL
NOT BE USED FOR SOLICITATION OF MEMBERSHIP OR DUES OR OTHER INTERNAL
BUSINESS OF AFGE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL II IS OUTSIDE THE AGENCY'S
DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /12/ BECAUSE IT DOES
NOT RELATE TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES AND, IF
NOT, WHETHER IT CONCERNS A MATTER RELATED TO THE TECHNOLOGY OF
PERFORMING THE WORK OF THE AGENCY, WHICH UNDER SECTION 7106(B)(1), IS
NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY. /13/
OPINION
CONCLUSION: UNION PROPOSAL II IS WITHIN THE AGENCY'S DUTY TO BARGAIN
UNDER SECTION 7117 OF THE STATUTE AND DOES NOT VIOLATE THE AGENCY'S
RIGHT TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK UNDER SECTION
7106(B)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)),
THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN IS SET ASIDE. /14/
REASONS: THE AGENCY CONTENDS, FIRST OF ALL, THAT UNION USE OF THE
AGENCY'S INTERNAL PHONE SYSTEM FOR CONTRACT ADMINISTRATION PURPOSES AND
OTHER APPROPRIATE OFFICIAL BUSINESS AS PROVIDED IN UNION PROPOSAL II IS
OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE BECAUSE IT
DOES NOT RELATE TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES. THE
CONTENTION IS WITHOUT MERIT.
IT IS CLEAR FROM THE LANGUAGE OF THE PROPOSAL THAT THE BASIC PURPOSE
FOR WHICH THE PHONE SYSTEM WOULD BE USED BY THE UNION RELATES TO THE
ADMINISTRATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. AS SUCH,
THE PHONE SYSTEM WOULD BE A TOOL TO ASSIST IN THE IMPLEMENTATION OF THE
CONDITIONS OF EMPLOYMENT ESTABLISHED IN THAT AGREEMENT. THUS, SINCE THE
AGENCY PHONE SYSTEM IS TO BE USED FOR LABOR-MANAGEMENT RELATIONS
PURPOSES, PARTICULARLY, CONTRACT ADMINISTRATION, WHICH ARE MATTERS
DIRECTLY RELATED TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES,
UNION PROPOSAL II IS WITHIN THE SCOPE OF THE DUTY TO BARGAIN UNDER
SECTION 7117 OF THE STATUTE.
THE AGENCY ALSO CONTENDS THAT UNION PROPOSAL II INTERFERES WITH ITS
RIGHT UNDER SECTION 7106(B)(1) OF THE STATUTE TO ELECT WHETHER IT WILL
NEGOTIATE OVER THE TECHNOLOGY BY WHICH WORK IS PERFORMED. THIS
CONTENTION CANNOT BE SUSTAINED. THE PROPOSAL WOULD NOT DETERMINE
WHETHER THE AGENCY WILL ADOPT A PARTICULAR TECHNOLOGY OF PERFORMING
WORK, E.G., UTILIZE TELEPHONE AS OPPOSED TO SOME OTHER COMMUNICATIONS
TECHNOLOGY IN THE PERFORMANCE OF ITS WORK. IT MERELY PROVIDES THAT THE
UNION WILL HAVE ACCESS TO THE SYSTEM WHICH THE AGENCY SELECTED, AND
WHICH IS IN EXISTENCE, FOR USE IN CONNECTION WITH CONTRACT
ADMINISTRATION AND OTHER LABOR-MANAGEMENT RELATIONS MATTERS. THUS,
UNION PROPOSAL II DOES NOT CONCERN A MATTER WHICH IS NEGOTIABLE ONLY AT
THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1). IT IS WITHIN THE
DUTY TO BARGAIN.
UNION PROPOSALS III-- VI
ARTICLES 20 & 21 DETAILS & LOANS
UNION PROPOSAL III
SECTION 2. DETAILS TO HIGHER OR SAME GRADED POSITIONS
B. UNLESS THE EMPLOYER DECIDES TO USE COMPETITIVE PROCEDURES AS
OUTLINED IN ARTICLE
. . . (PROMOTIONS), TEMPORARY ASSIGNMENT TO HIGHER OR SAME
GRADE/DIFFERENT DUTY POSITIONS
SHALL BE OFFERED TO QUALIFIED AND AVAILABLE EMPLOYEES WITH REQUISITE
SKILLS ON THE BASIS OF
SENIORITY WITHIN THE LOWEST ORGANIZATIONAL SEGMENT. IF SENIOR
EMPLOYEES DECLINE AND IT IS
NECESSARY TO DETAIL AN EMPLOYEE, THE LEAST SENIOR EMPLOYEE SHALL BE
ASSIGNED.
UNION PROPOSAL IV
SECTION 3. DETAILS TO LOWER GRADED POSITIONS
DETAILS TO LOWER GRADE POSITIONS WILL BE ROTATED AMONG QUALIFIED AND
AVAILABLE EMPLOYEES IN
INVERSE ORDER OF SENIORITY.
UNION PROPOSAL V
SECTION 4. LOANS
B. SELECTION OF EMPLOYEES FOR LOANS WILL BE EQUITABLY ROTATED AMONG
QUALIFIED AND
AVAILABLE EMPLOYEES WITH REQUISITE SKILLS IN INVERSE ORDER OF
SENIORITY.
UNION PROPOSAL VI
SECTION 5. TEMPORARY ASSIGNMENTS OUTSIDE THE BARGAINING UNIT
B. WHERE CONDITIONS ARE LESS AT THE RECEIVING LOCATION THAN IS
PROVIDED FOR BY THIS
CONTRACT, THE EMPLOYEE'S WISHES TO DECLINE SUCH ASSIGNMENT WILL BE
CONSIDERED. SELECTION FOR
SUCH ASSIGNMENTS WILL BE EQUITABLY ROTATED IN ACCORDANCE WITH SECTION
(3) OF THIS ARTICLE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSALS VIOLATE THE RIGHT OF
THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE AND, WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE. /15/ WITH
RESPECT TO UNION PROPOSAL III, IN PARTICULAR, THE QUESTION IS ALSO
WHETHER IT IS OUTSIDE THE SCOPE OF BARGAINING UNDER SECTION 7117 OF THE
STATUTE /16/ TO THE EXTENT THAT IT APPLIES TO SUPERVISORY POSITIONS
OUTSIDE THE UNIT.
OPINION
CONCLUSION: UNION PROPOSAL III IS WITHIN THE SCOPE OF BARGAINING
UNDER SECTION 7117 AND DOES NOT VIOLATE EITHER THE RIGHT OF THE AGENCY
TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OR ITS RIGHT TO MAKE
SELECTIONS FOR APPOINTMENTS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE.
UNION PROPOSALS IV-- VI VIOLATE THE RIGHT OF THE AGENCY TO ASSIGN
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (45
FED.REG. 3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATION THAT UNION
PROPOSAL III IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE AND ITS
ALLEGATIONS THAT UNION PROPOSALS IV-- VI ARE NOT WITHIN ITS DUTY TO
BARGAIN ARE SUSTAINED. /17/
REASONS: THE AGENCY ALLEGES THAT UNION PROPOSAL III IS OUTSIDE THE
SCOPE OF BARGAINING UNDER SECTION 7117 OF THE STATUTE BECAUSE THE PHRASE
"HIGHER GRADE POSITIONS" AS USED IN THE PROPOSAL WOULD INCLUDE
SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT. THE AGENCY HAS
MISUNDERSTOOD THE PROPOSAL. IN THE FIRST PLACE, UNION PROPOSAL III DOES
NOT ON ITS FACE APPLY TO SUPERVISORY POSITIONS. MOREOVER, THE RECORD
DOES NOT SUPPORT THE ALLEGATION THAT IT DOES. SPECIFICALLY, THE UNION
STATES THAT ITS PROPOSAL IS INTENDED TO APPLY ONLY TO HIGHER GRADED
POSITIONS WITHIN THE BARGAINING UNIT. THUS, WITHOUT DECIDING WHETHER A
PROPOSAL RELATING TO DETAILS TO SUPERVISORY POSITIONS WOULD BE OUTSIDE
THE DUTY TO BARGAIN UNDER THE STATUTE, THE AGENCY IN THIS CASE HAS NOT
SHOWN THAT UNION PROPOSAL III APPLIES TO SUCH POSITIONS.
NEXT, THE AGENCY ALLEGES WITH RESPECT TO EACH OF THE ABOVE-QUOTED
PROPOSALS THAT IT VIOLATES THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES
UNDER SECTION 7106(A)(2)(A) OF THE STATUTE BECAUSE EACH PROPOSAL COMPELS
THE SELECTION ON THE BASIS OF SENIORITY OF AN INDIVIDUAL EMPLOYEE FOR
THE PARTICULAR TYPE OF ASSIGNMENT SPECIFIED IN THE PROPOSAL. THIS
ALLEGATION HAS MERIT IN CONNECTION WITH UNION PROPOSALS IV, V, AND VI.
UNION PROPOSALS IV, V, AND VI EACH ESTABLISH A PROCEDURE FOR THE
SELECTION OF INDIVIDUAL EMPLOYEES FOR ASSIGNMENT BY THE AGENCY. IN
PARTICULAR, UNDER EACH OF THE PROPOSALS, ONCE THE AGENCY HAS DETERMINED
THE PARTICULAR QUALIFICATIONS /18/ AND SKILLS NEEDED TO PERFORM THE WORK
OF THE POSITION TO WHICH THE EMPLOYEE WILL BE ASSIGNED, AND IDENTIFIED
THE EMPLOYEES IN THE UNIT WHO MEET THOSE REQUIREMENTS AND WOULD BE
AVAILABLE FOR ASSIGNMENT, SELECTION FROM AMONG THE EMPLOYEES SO
IDENTIFIED OF THE PARTICULAR EMPLOYEE WHO WILL BE ASSIGNED MUST BE ON
THE BASIS OF SENIORITY. THAT IS, DEPENDING ON THE CIRCUMSTANCES, THE
MOST SENIOR OR THE LEAST SENIOR EMPLOYEE FROM AMONG THE GROUP OF
QUALIFIED, SKILLED, AND AVAILABLE EMPLOYEES MUST BE SELECTED FOR THE
ASSIGNMENT. IN THUS COMPELLING THE SELECTION OF A PARTICULAR INDIVIDUAL
FOR TEMPORARY ASSIGNMENT TO ANOTHER POSITION, UNION PROPOSALS IV, V, AND
VI EACH DIRECTLY INTERFERE WITH THE RIGHT OF THE AGENCY TO ASSIGN
EMPLOYEES. THE RIGHT TO ASSIGN EMPLOYEES IN THE AGENCY UNDER SECTION
7106(A)(2)(A) OF THE STATUTE IS MORE THAN MERELY THE RIGHT TO DECIDE TO
ASSIGN AN EMPLOYEE TO A POSITION. AN AGENCY CHOOSES TO ASSIGN AN
EMPLOYEE TO A POSITION SO THAT THE WORK OF THAT POSITION WILL BE DONE.
UNDER SECTION 7106(A)(2)(A) OF THE STATUTE, THE AGENCY RETAINS
DISCRETION AS TO THE PERSONNEL REQUIREMENTS OF THE WORK OF THE POSITION,
I.E., THE QUALIFICATIONS AND SKILLS NEEDED TO DO THE WORK, AS WELL AS
SUCH JOB-RELATED INDIVIDUAL CHARACTERISTICS AS JUDGMENT AND RELIABILITY.
THEREFORE, THE RIGHT TO ASSIGN AN EMPLOYEE TO A POSITION INCLUDES THE
DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED. (CLEARLY, THE
ASSIGNMENT OF AN EMPLOYEE TO A POSITION IS DISTINGUISHABLE FROM THE
ASSIGNMENT OF AN EMPLOYEE TO A SHIFT.) A PROCEDURE FOR SELECTING AN
EMPLOYEE FOR ASSIGNMENT SOLELY ON THE BASIS OF SENIORITY REMOVES FROM
THE AGENCY THAT DISCRETION WHICH, AS INDICATED ABOVE, IS AN ESSENTIAL
PART OF THE DECISION TO ASSIGN. UNION PROPOSALS IV, V, AND VI COMPEL
THE CHOICE OF THE PARTICULAR EMPLOYEE TO RECEIVE AN ASSIGNMENT SOLELY ON
THE BASIS OF SENIORITY AND THEREBY DIRECTLY INTERFERE WITH THE
DISCRETION TO DETERMINE WHICH EMPLOYEE TO ASSIGN, IN VIOLATION OF
SECTION 7106(A)(2)(A) OF THE STATUTE.
UNION PROPOSAL III IS DISTINGUISHABLE FROM UNION PROPOSALS IV, V, AND
VI. IT SPECIFICALLY WOULD ALLOW THE AGENCY THE OPTION OF UTILIZING
COMPETITIVE PROCEDURES TO MAKE THE SELECTION. SUCH COMPETITIVE
PROCEDURES RESERVE THE AGENCY'S RIGHT TO SELECT THE EMPLOYEE FOR
PROMOTION OR ASSIGNMENT FROM AMONG THOSE AVAILABLE THROUGH ANY
APPROPRIATE SOURCE. /19/ THUS, UNDER UNION PROPOSAL III, THE AGENCY
RETAINS THE OPTION OF EXERCISING ITS DISCRETION TO SELECT A PARTICULAR
EMPLOYEE FOR ASSIGNMENT. ONLY IF THE AGENCY CHOOSES NOT TO USE
COMPETITIVE PROCEDURES MUST IT SELECT THE INDIVIDUAL ON THE BASIS OF
SENIORITY. BECAUSE UNION PROPOSAL III PRESERVES IN THIS MANNER THE
AGENCY'S DISCRETION TO SELECT, THE PROPOSAL DOES NOT DIRECTLY INTERFERE
WITH THE AGENCY'S BASIC RIGHT TO ASSIGN EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE.
SIMILARLY, UNION PROPOSAL III WOULD NOT BE INCONSISTENT WITH THE
RIGHT OF THE AGENCY, IN FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS UNDER SECTION 7106(A)(2)(C). THAT IS, ASSUMING, WITHOUT
DECIDING THAT THE SECTION APPLIES TO TEMPORARY ASSIGNMENTS SUCH AS ARE
INVOLVED IN THIS PROPOSAL, UNION PROPOSAL III, AS ALREADY STATED,
RESERVES TO THE AGENCY THE OPTION OF EXERCISING ITS RIGHT TO SELECT AN
EMPLOYEE FOR ASSIGNMENT, FROM AMONG THOSE AVAILABLE, THROUGH ANY
APPROPRIATE SOURCE.
IN SUMMARY, UNION PROPOSAL III DOES NOT CONFLICT WITH THE RIGHT OF
THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OR WITH THE
AGENCY'S RIGHT TO SELECT UNDER SECTION 7106(A)(2)(C) OF THE STATUTE AND,
THUS, IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE. UNION PROPOSALS
IV-- VI CONFLICT WITH THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE AND, THUS, ARE EXCLUDED FROM THE
DUTY TO BARGAIN.
UNION PROPOSAL VII
ARTICLE 37 MISCELLANEOUS
SECTION MOBILITY
PRIOR TO INVOKING THE EMPLOYMENT MOBILITY REQUIREMENT, THE EMPLOYER
WILL SEEK VOLUNTEERS
FROM AMONG EMPLOYEES OF THE SAME TITLE, SERIES AND GRADE. IF THERE
ARE NO VOLUNTEERS, AND THE
EMPLOYER IS REQUIRED TO UNILATERALLY TRANSFER EMPLOYEES WITHIN THE
UNIT, THE EMPLOYEE WITH THE
LEAST AMOUNT OF SENIORITY SHALL BE SELECTED FIRST. THE REMAINING
EMPLOYEES SHALL BE
TRANSFERRED IN ASCENDING SENIORITY ORDER.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VII VIOLATES THE RIGHT OF THE
AGENCY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
/20/
OPINION
CONCLUSION: UNION PROPOSAL VII VIOLATES THE AGENCY'S RIGHT TO ASSIGN
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (45
FED.REG. 3482 ET SEQ. 1980)), THE AGENCY'S ALLEGATION THAT THE PROPOSAL
IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
REASONS: THE EMPLOYMENT MOBILITY REQUIREMENT AS STATED IN THE
PROPOSAL REFERS TO THE AGENCY PROGRAM UNDER WHICH EMPLOYEES MAY BE
PERMANENTLY REASSIGNED FROM ONE DUTY STATION TO ANOTHER. THE PROPOSAL
REQUIRES THE AGENCY, IN THE ABSENCE OF A VOLUNTEER FOR SUCH
REASSIGNMENT, TO SELECT THE EMPLOYEE TO BE REASSIGNED ON THE BASIS OF
INVERSE SENIORITY. THAT IS, THE AGENCY IS REQUIRED UNDER THE PROPOSAL,
WITHOUT THE OPTION TO DO OTHERWISE, AS IN THE CASE OF UNION PROPOSAL
III, TO SELECT FOR REASSIGNMENT THE LEAST SENIOR EMPLOYEE OF THE TITLE,
SERIES, AND GRADE OF THE POSITION TO BE FILLED. FOR THE REASONS STATED
IN THE DISCUSSION OF UNION PROPOSALS III-VI, BY THUS REQUIRING THE
AGENCY TO SELECT AN EMPLOYEE FOR ASSIGNMENT ON THE BASIS OF SENIORITY
THE PROPOSAL OBVIATES THE DISCRETION AS TO SELECTION WHICH IS AN
ESSENTIAL PART OF THE RIGHT TO ASSIGN UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE. ACCORDINGLY, UNION PROPOSAL VII CONFLICTS WITH THE RIGHT OF
THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND, THUS, IS
EXCLUDED FROM THE DUTY TO BARGAIN.
UNION PROPOSALS VIII AND IX
ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY
UNION PROPOSAL VIII
SECTION 2. AIR FORCE POLICY AND PROGRAM OBJECTIVES
. . . (T)HE EMPLOYER WILL ESTABLISH COMPREHENSIVE PLANS AND PROGRAMS,
BOTH AT COMMAND AND
INSTALLATION LEVELS, TO ATTAIN THE AIR FORCE OBJECTIVES.
UNION PROPOSAL IX
SECTION 3. EEO PLANS OF ACTION
SECTION 3 OF ARTICLE 19 IS A MULTIPART PROPOSAL WHICH ESTABLISHES
GUIDELINES FOR THE DEVELOPMENT OF AFFIRMATIVE ACTION PLANS AT THE
COMMAND AND INSTALLATION LEVELS. (THE PROPOSAL IS SET FORTH IN ITS
ENTIRETY IN APPENDIX A. THE DISPUTED PORTIONS ARE UNDERSCORED.)
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE, FIRST OF ALL, WHETHER MATTERS RELATING TO
DISCRIMINATION IN EMPLOYMENT, WHICH ARE THE SUBJECT OF UNION PROPOSALS
VIII AND IX, ARE CONDITIONS OF EMPLOYMENT AND, HENCE, ARE WITHIN THE
SCOPE OF THE DUTY TO BARGAIN UNDER SECTION 7117 OF OF THE STATUTE; /21/
IF SO, WHETHER SUCH MATTERS PERTAIN TO THE METHODS AND MEANS OF
PERFORMING THE WORK OF THE AGENCY, WHICH, UNDER SECTION 7106(B)(1) OF
THE STATUTE, ARE NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY; AND,
FINALLY, WHETHER PARTICULAR PORTIONS OF THE PROPOSALS VIOLATE THE RIGHT
OF THE AGENCY TO DETERMINE ITS ORGANIZATION UNDER SECTION 7106(A)(1) OF
THE STATUTE. /22/
OPINION
CONCLUSION: UNION PROPOSALS VIII AND IX RELATE TO THE CONDITIONS OF
EMPLOYMENT OF UNIT EMPLOYEES AND ARE WITHIN THE SCOPE OF THE AGENCY'S
DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE. MOREOVER, THE
PROPOSALS DO NOT CONCERN MATTERS RELATED TO THE METHODS AND MEANS OF
PERFORMING THE WORK OF THE AGENCY AND, THEREFORE, DO NOT VIOLATE SECTION
7106(B)(1) OF THE STATUTE. FINALLY, THE PROPOSALS DO NOT VIOLATE THE
RIGHT OF THE AGENCY TO DETERMINE ITS ORGANIZATION UNDER SECTION
7106(A)(1). ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE AGENCY'S
ALLEGATIONS THAT THE DISPUTED PROPOSALS ARE NOT WITHIN THE DUTY TO
BARGAIN IS SET ASIDE. /23/
REASONS: THE AGENCY ALLEGES, FIRST OF ALL, THAT THE SUBJECT MATTER
OF UNION PROPOSALS VIII AND IX, I.E., DISCRIMINATION IN EMPLOYMENT, IS
NOT A CONDITION OF EMPLOYMENT AND THEREFORE IS OUTSIDE THE DUTY TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE. THE AGENCY'S POSITION IS
WITHOUT SUPPORT IN THE LEGISLATIVE HISTORY OF THE STATUTE.
TITLE VII OF THE BILL REPORTED OUT OF THE HOUSE COMMITTEE (H.R.
11280) CONTAINED A DEFINITION OF THE TERM "CONDITIONS OF EMPLOYMENT"
WHICH SPECIFICALLY EXCLUDED "POLICIES, PRACTICES, AND MATTERS RELATING
TO DISCRIMINATION IN EMPLOYMENT . . . " /24/ THE BILL PASSED BY THE
HOUSE (THE "UDALL SUBSTITUTE") DID NOT CHANGE THIS PORTION OF TITLE VII
OF THE COMMITTEE BILL INSOFAR AS RELEVENT TO THE ISSUE HEREIN. /25/
TITLE VII OF THE BILL INTRODUCED IN AND PASSED BY THE SENATE (S. 2640)
DID NOT CONTAIN THIS PROVISION OR ANY PROVISION HAVING A SIMILAR EFFECT.
/26/ THE BILL WHICH WAS REPORTED OUT OF THE HOUSE-SENATE CONFERENCE
COMMITTEE, AND WHICH WAS SUBSEQUENTLY PASSED BY CONGRESS AND SIGNED INTO
LAW BY THE PRESIDENT, DELETED THE PORTION OF THE HOUSE BILL WHICH
EXCLUDED MATTERS RELATED TO DISCRIMINATION IN EMPLOYMENT FROM THE
DEFINITION OF "CONDITIONS OF EMPLOYMENT." /27/ THE CONFERENCE COMMITTEE
REPORT CONTAINS NO EXPLANATION AS TO WHY THIS PROVISION OF THE HOUSE
BILL WAS DELETED. NEVERTHELESS, IT IS REASONABLE TO CONCLUDE THAT THE
DELETION OF THIS EXCLUSION IN THE BILL WHICH WAS ENACTED INTO LAW
INDICATES THAT CONGRESS INTENDED SUCH MATTERS TO BE WITHIN THE SCOPE OF
THE DUTY TO BARGAIN. IF CONGRESS HAD INTENDED TO EXCLUDE MATTERS
RELATED TO DISCRIMINATION IN EMPLOYMENT FROM THE DUTY TO BARGAIN IT
SIMPLY COULD HAVE ENACTED THE HOUSE PROVISION UNCHANGED.
THUS, CONTRARY TO THE AGENCY'S ALLEGATION, MATTERS RELATED TO
DISCRIMINATION IN EMPLOYMENT, SUCH AS ARE INVOLVED IN UNION PROPOSALS
VIII AND IX AT ISSUE HEREIN, ARE WITHIN THE SCOPE OF THE DUTY TO BARGAIN
UNDER SECTION 7117 OF THE STATUTE.
THE AGENCY NEXT ALLEGES THAT UNION PROPOSALS VIII AND IX, BY
REQUIRING THE AGENCY TO ESTABLISH EQUAL EMPLOYMENT OPPORTUNITY PLANS AND
SPECIFYING THE CONTENTS OF THOSE PLANS, VIOLATE MANAGEMENT'S RIGHT,
UNDER SECTION 7106(B)(1) TO ELECT WHETHER IT WILL NEGOTIATE ON THE
METHODS AND MEANS BY WHICH IT PERFORMS ITS WORK. IN PARTICULAR, THE
AGENCY ARGUES THAT THESE PROPOSALS INTERFERE WITH ITS RIGHT UNDER
SECTION 7106(B)(1) TO ELECT WHETHER IT WILL BARGAIN OVER THE WAYS IN
WHICH IT WILL FULFILL ITS OBLIGATION UNDER LAW /28/ AND REGULATION /29/
TO IMPLEMENT AN EQUAL EMPLOYMENT OPPORTUNITY PROGRAM. HOWEVER, ASSUMING
WITHOUT DECIDING THAT AN AGENCY EQUAL EMPLOYMENT OPPORTUNITY PROGRAM
CONSTITUTES A "METHOD" OR "MEANS" WITHIN THE MEANING OF THE STATUTE, IT
IS CLEAR THAT AN AGENCY'S DEVELOPMENT OF SUCH A PROGRAM IS NOT WHAT IS
MEANT IN SECTION 7106(B)(1) BY THE PHRASE "PERFORMING WORK." THE
HOUSE-SENATE CONFERENCE COMMITTEE REPORT DISCUSSED AT LENGTH THE
LANGUAGE REGARDING METHODS AND MEANS OF PERFORMING WORK IN SECTION
7106(B)(1) OF THE STATUTE. THAT DISCUSSION IS OF INTEREST INSOFAR AS IT
ILLUSTRATES SOME AGENCY ACTIVITIES-- E.G., AUDITING, AWARDING GRANTS,
AND RESEARCH AND DEVELOPMENT-- WHICH THE CONFEREES CONSIDERED TO
CONSTITUTE AGENCY WORK;" /30/
. . . BY INCLUSION OF THIS LANGUAGE, HOWEVER, IT IS NOT INTENDED THAT
AGENCIES WILL DISCUSS
GENERAL POLICY QUESTIONS DETERMINING HOW AN AGENCY DOES ITS WORK. IT
MUST BE CONSTRUED IN
LIGHT OF THE PARAMOUNT RIGHT OF THE PUBLIC TO AS EFFECTIVE AND
EFFICIENT A GOVERNMENT AS
POSSIBLE. FOR EXAMPLE, THE PHRASE "METHODS AND MEANS" IS NOT
INTENDED TO AUTHORIZE IRS TO
NEGOTIATE WITH A LABOR ORGANIZATION OVER HOW RETURNS SHOULD BE
SELECTED FOR AUDIT, OR HOW
THOROUGH THE AUDIT OF THE RETURNS SHOULD BE. IT DOES NOT SUBJECT TO
THE COLLECTIVE BARGAINING
AGREEMENT THE JUDGMENT OF EPA ABOUT HOW TO SELECT RECIPIENTS FOR THE
AWARD OF ENVIRONMENTAL
GRANTS. IT DOES NOT AUTHORIZE THE ENERGY DEPARTMENT TO NEGOTIATE
WITH UNIONS ON WHICH OF THE
RESEARCH AND DEVELOPMENT PROJECTS BEING CONDUCTED BY THE DEPARTMENT
SHOULD RECEIVE TOP
PRIORITY AS PART OF THE DEPARTMENT'S EFFORTS TO FIND NEW SOURCES OF
ENERGY.
THE EXAMPLES USED HAVE A COMMON CHARACTERISTIC: THEY ARE EACH
DIRECTLY AND INTEGRALLY RELATED TO THE ACCOMPLISHMENT OF THE MISSION OF
THE AGENCY, I.E., THOSE PARTICULAR OBJECTIVES WHICH THE AGENCY WAS
ESTABLISHED TO ACCOMPLISH. IN THE INSTANT CASE, THE MISSION OF THE
ORGANIZATIONAL SEGMENT OF THE AGENCY INVOLVED IS LOGISTICAL SUPPORT.
THE UNION PROPOSALS DO NOT GO TO DETERMINING THE WAY IN WHICH THE AGENCY
WILL PERFORM THE PARTICULAR ACTIVITIES BY WHICH IT ACCOMPLISHES THAT
MISSION. THAT IS, SINCE THE EQUAL EMPLOYMENT OPPORTUNITY PROGRAMS WHICH
ARE THE SUBJECT MATTER OF THESE PROPOSALS ARE NOT DIRECTLY OR INTEGRALLY
RELATED TO THE PROVISION OF LOGISTICAL SUPPORT TO THE AIR FORCE, THERE
IS NO CONFLICT BETWEEN THESE PROPOSALS AND THE RIGHT OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE TO DETERMINE THE METHODS AND MEANS OF
PERFORMING ITS WORK. THUS, THE AGENCY DOES NOT HAVE THE RIGHT TO ELECT
WHETHER TO BARGAIN ON THE PROPOSALS.
THE REMAINING AGENCY ALLEGATION IS THAT THESE PROPOSALS CONFLICT WITH
ITS RIGHT TO DETERMINE ITS "ORGANIZATION" UNDER SECTION 7106(A)(1) OF
THE STATUTE. IN PARTICULAR, THE AGENCY CONTENDS THAT THE PROPOSALS
PURPORT TO ASSIGN SPECIFIC RESPONSIBILITIES IN THE AREA OF EQUAL
EMPLOYMENT OPPORTUNITY PROGRAMS TO SPECIFIC AGENCY ORGANIZATIONAL
LEVELS. AS A CONSEQUENCE, THE AGENCY ARGUES, THE PROPOSALS ARE
DETERMINATIVE OF THE FUNCTIONAL STRUCTURE OF THE AGENCY.
ON THE CONTRARY, AS INDICATED ABOVE, MATTERS RELATED TO
DISCRIMINATION IN EMPLOYMENT ARE WITHIN THE AGENCY'S DUTY TO BARGAIN
UNDER THE STATUTE. THAT IS, AN AGENCY IS OBLIGATED TO NEGOTIATE WITH AN
EXCLUSIVE REPRESENTATIVE ON THOSE MATTERS, UNLESS OTHERWISE PROHIBITED
BY LAW AND REGULATION, AT THE LEVEL OF THE EXCLUSIVE RECOGNITION. /31/
MOREOVER, IN CIRCUMSTANCES WHICH INVOLVE A COMPREHENSIVE UNIT, SUCH AS
THE PRESENT CASE, /32/ THE AGENCY IS ALSO UNDER AN OBLIGATION TO
NEGOTIATE AT THE LEVEL OF THE EXCLUSIVE RECOGNITION WITH RESPECT TO THE
PARTICULAR CONDITIONS OF EMPLOYMENT WHICH WILL APPLY AT SUBORDINATE
ACTIVITIES WITHIN THE UNIT. THAT IS, THE PARTIES MAY PROVIDE IN A
MASTER AGREEMENT AT THE LEVEL OF RECOGNITION FOR THE NEGOTIATION OF
SUPPLEMENTAL AGREEMENTS AT THE LOCAL LEVEL REGARDING MATTERS PERTAINING
TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES AT THE LOCAL LEVEL.
FOR EXAMPLE, IF THE PARTICULAR AGENCY ACTIONS AT ISSUE IN A PROPOSAL
COULD BE NEGOTIATED, AS RELEVANT HEREIN, AT THE COMMAND LEVEL, TO BE
PERFORMED BY THE AGENCY AT THE COMMAND LEVEL, THE STATUTE DOES NOT
PRECLUDE THE PARTIES FROM PROVIDING IN A MASTER AGREEMENT AT THE COMMAND
LEVEL FOR THESE ACTIONS TO BE PERFORMED AT THE LEVEL OF SUBORDINATE
ACTIVITIES WITHIN THE UNIT.
THUS, THE PROPOSALS AT ISSUE HEREIN RATHER THAN DETERMINING THE
ORGANIZATIONAL STRUCTURE OF THE AGENCY MERELY REQUIRE THE AGENCY TO
NEGOTIATE THE PARTICULAR ACTIVITIES IT WILL PERFORM AT THE COMMAND
LEVEL, WHICH IS THE LEVEL OF EXCLUSIVE RECOGNITION, IN THE AREA OF EQUAL
EMPLOYMENT OPPORTUNITY AND AT SUBORDINATE LEVELS OF THE COMMAND WITHIN
THE UNIT. THEREFORE, THESE PROPOSALS DO NOT CONFLICT WITH THE RIGHT OF
THE AGENCY TO DETERMINE ITS "ORGANIZATION" UNDER SECTION 7106(A)(1) OF
THE STATUTE AND ARE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
UNION PROPOSAL X
ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY
SECTION 5. UTILIZATION OF WORKFORCE SKILLS
THE EMPLOYER WILL STRIVE TO UTILIZE, UNDER CURRENT REGULATIONS AND
CIRCUMSTANCES, THE
PRESENT SKILL OF EACH MEMBER OF THE WORKFORCE.
A. PROCEDURES FOR SKILLS UTILIZATION WILL INCLUDE THE REDESIGNING OF
JOBS WHERE FEASIBLE.
. . . .
C. WHERE AUTHORIZED, INSTALLATION COMMANDERS WILL PROVIDE AN
ADEQUATE NUMBER OF OVERHIRES,
WHICH WILL PERMIT INDIVIDUALS WITH PHYSICAL OR MENTAL HANDICAPS,
CHRONIC AILMENTS, ILLNESSES
OR INJURIES, AND SINGLE HEADS OF FAMILIES WHO HAVE DEPENDENTS, TO
UTILIZE SICK OR ANNUAL
LEAVE, OR LWOP, TO HANDLE THEIR RESPONSIBILITIES TO THEMSELVES AND/OR
DEPENDENTS WITHOUT UNDUE
IMPACT UPON THE ORGANIZATIONAL MISSION. SUPERVISORS WILL GRANT LEAVE
IN ALL CASES WHERE THE
NEED IS CLEARLY DOCUMENTED ON THE REQUEST FOR LEAVE; AND USE OF
LEAVE FOR THESE PURPOSES WILL
NOT CONSTITUTE A BASIS FOR LEAVE ABUSE CHARGES.
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER, AS ALLEGED BY THE AGENCY, SUBSECTION A OF
UNION PROPOSAL X VIOLATES THE RIGHT OF THE AGENCY TO ASSIGN WORK UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE AND WHETHER, AS FURTHER ALLEGED BY
THE AGENCY, SUBSECTION C OF THE PROPOSAL CONCERNS A MATTER PERTAINING TO
THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY,
WHICH, UNDER SECTION 7106(B)(1) OF THE STATUTE, IS NEGOTIABLE SOLELY AT
THE ELECTION OF THE AGENCY. /33/
OPINION
CONCLUSION: SUBSECTION A OF UNION PROPOSAL X WHICH RELATES TO THE
REDESIGN OF JOBS DOES NOT VIOLATE THE AGENCY'S RIGHT TO ASSIGN WORK
UNDER SECTION 7106(A)(2)(B), AND IS WITHIN THE DUTY TO BARGAIN; /34/
BUT SUBSECTION C OF THE PROPOSAL WHICH RELATES TO AN ADEQUATE NUMBER OF
OVERHIRES VIOLATES THE AGENCY'S RIGHT TO DETERMINE THE NUMBERS, TYPES,
AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY UNDER SECTION
7106(B)(1) OF THE STATUTE AND, THUS, IS OUTSIDE THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATION
THAT UNION PROPOSAL X IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE IN
PART AND SUSTAINED IN PART.
REASONS: THE ASSIGNMENT OF WORK TO EMPLOYEES OR POSITIONS IS A RIGHT
RESERVED TO MANAGEMENT UNDER SECTION 7106(A) OF THE STATUTE. THE
REDESIGN OF A POSITION OR A JOB REQUIRES, AMONG OTHER THINGS, A
DETERMINATION OF THE WORK WHICH WILL BE ASSIGNED TO THE POSITION OR
EMPLOYEE INVOLVED. THUS, A PROPOSAL TO REDESIGN A POSITION OR JOB IN A
PARTICULAR MANNER WOULD CONFLICT WITH MANAGEMENT'S RIGHT TO ASSIGN WORK
BY PRESCRIBING THE WORK TO BE ASSIGNED. SUBSECTION A OF UNION PROPOSAL
X, HOWEVER, DOES NOT REQUIRE THE AGENCY TO ASSIGN OR REFRAIN FROM
ASSIGNING ANY PARTICULAR WORK. RATHER, SUBSECTION A MERELY PROVIDES
THAT JOB REDESIGN WOULD BE USED AS ONE OF THE PROCEDURES FOR BEST
UTILIZING THE PRESENT SKILLS OF UNIT EMPLOYEES, WHERE THIS WOULD BE
FEASIBLE. THIS GENERAL OPERATING PRINCIPLE, IDENTIFYING JOB REDESIGN AS
ONE OF THE ALTERNATIVE PROCEDURES WHICH MAY BE FOLLOWED WHERE IT IS
FEASIBLE TO DO SO, CLEARLY DOES NOT INFRINGE ON THE RIGHT OF THE AGENCY
TO ASSIGN WORK AND, THUS, IS WITHIN THE DUTY TO BARGAIN. /35/
TURNING NOW TO SUBSECTION C OF UNION PROPOSAL X RELATING TO AN
ADEQUATE NUMBER OF OVERHIRES, THE EXPRESS LANGUAGE OF THIS PORTION OF
THE PROPOSAL WOULD DETERMINE THAT EACH INSTALLATION MUST HAVE SUCH
OVERHIRES AND, THEREFORE, DIRECTLY CONCERNS THE NUMBER OF EMPLOYEES
ASSIGNED TO ORGANIZATIONAL SUBDIVISIONS OF THE AGENCY. IN THIS REGARD,
SECTION 7106(B)(1) OF THE STATUTE PROVIDES THAT THE NUMBER OF EMPLOYEES
MAY BE NEGOTIATED ONLY AT THE ELECTION OF THE AGENCY. IN THIS CASE, THE
AGENCY HAS ELECTED NOT TO NEGOTIATE ON SUCH MATTERS AND, THUS, THE
AGENCY'S ALLEGATION THAT THIS PORTION OF THE PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN IS SUSTAINED. /36/
UNION PROPOSAL XI
ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY
SECTION 6. EEO COUNSELORS
THE EMPLOYER AGREES TO PROVIDE AT EACH INSTALLATION TRAINED EEO
COUNSELORS, WHO WILL BE
AVAILABLE AND ACCESSIBLE TO ALL EMPLOYEES, WHEREVER THEIR WORK
STATION. HALF OF THE
COUNSELORS WILL BE SELECTED FROM A LIST PROVIDED BY THE UNION.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE DISPUTED PORTION OF UNION PROPOSAL XI
VIOLATES MANAGEMENT RIGHTS UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
AND IS, THEREFORE, AS THE AGENCY ALLEGES, NOT WITHIN THE DUTY TO
BARGAIN.
OPINION
CONCLUSION: UNION PROPOSAL XI VIOLATES THE RIGHT OF THE AGENCY TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. /37/
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 FED.REG. 3482 ET SEQ. 1980)), THE AGENCY'S ALLEGATION
THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
REASONS: AGENCY EMPLOYEES SELECTED AS EEO COUNSELORS PERFORM THE
DUTIES ASSOCIATED WITH EEO COUNSELING EITHER AS THEIR TOTAL WORK
ASSIGNMENT OR IN ADDITION TO THE OTHER DUTIES WHICH ARE REGULARLY
ASSIGNED TO THEM AND WHICH COMPRISE THEIR APPOINTED POSITIONS. THUS,
THE DETERMINATION TO SELECT A PARTICULAR EMPLOYEE AS AN EEO COUNSELOR IS
IN REALITY A DECISION TO ASSIGN CERTAIN DUTIES, IN THIS SITUATION EEO
COUNSELOR DUTIES, TO THAT EMPLOYEE.
IN THIS REGARD, THE AGENCY RETAINS THE RIGHT UNDER SECTION
7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK TO POSITIONS OR EMPLOYEES.
THE DISPUTED PORTION OF THE PROPOSAL, HOWEVER, MANDATES THAT THE AGENCY
ASSIGN EEO COUNSELOR DUTIES TO A CERTAIN PERCENTAGE OF EMPLOYEES
SELECTED BY THE UNION, TO THE EXCLUSION OF OTHER AGENCY EMPLOYEES.
THUS, SINCE THE DISPUTED PORTION OF THE PROPOSAL DIRECTLY PRESCRIBES THE
ASSIGNMENT OF CERTAIN DUTIES TO PARTICULAR EMPLOYEES, AND, IN EFFECT,
PRECLUDES THE ASSIGNMENT OF THOSE DUTIES TO OTHER EMPLOYEES, IT
CONFLICTS WITH SECTION 7106(A)(2)(B) OF THE STATUTE. HENCE, THE
AGENCY'S ALLEGATION THAT THE DISPUTED PORTION OF THE PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
UNION PROPOSAL XII /38/
ARTICLE 33 NEGOTIATIONS DURING THE TERM OF THIS AGREEMENT
SECTION 3. MID-TERM NEGOTIATIONS
. . . .
A. MID-TERM NEGOTIATIONS AT COMMAND AFLC LEVEL
. . . .
7. SHOULD THE UNION CHOOSE TO SUBMIT THE ISSUE TO THE FSIP THE
EMPLOYER WILL NOT, EXCEPT
FOR OVERRIDING EXIGENCIES OR UNREASONABLE DELAY OF IMPLEMENTATION OF
MANAGEMENT RIGHTS,
IMPLEMENT THE CHANGE BEFORE THE PANEL HAS COMPLETED ITS WORK.
8. SHOULD THE EMPLOYER UNILATERALLY IMPLEMENT THE CHANGE IN
ACCORDANCE WITH SECTION 7
ABOVE BEFORE THE PANEL HAS COMPLETED ITS WORK THE DECISION OF THE
PANEL WILL BE APPLIED
RETROACTIVELY TO THE DATE OF IMPLEMENTATION.
. . . .
B. MID-TERM NEGOTIATIONS AT LOCAL LEVEL
. . . .
6. SHOULD THE PARTIES FAIL TO REACH AGREEMENT AFTER MEDIATION, THE
EMPLOYER MAY
UNILATERALLY IMPLEMENT CHANGE, PROVIDED A MINIMUM OF 15 DAYS ADVANCE
NOTICE HAS BEEN GIVEN TO
THE UNION. IF THE UNION CHOOSES TO SUBMIT THE ISSUE TO THE FEDERAL
SERVICE IMPASSES PANEL
DURING THIS PERIOD, EXCEPT FOR OVERRIDING EXIGENCIES OR UNREASONABLE
DELAY OF IMPLEMENTATION
OF MANAGEMENT RIGHTS, THE EMPLOYER WILL NOT IMPLEMENT THE CHANGE AND
WILL MAINTAIN THE STATUS
QUO UNTIL THE PANEL HAS COMPLETED ITS DISPUTE RESOLUTION PROCESS.
7. SHOULD THE EMPLOYER UNILATERALLY IMPLEMENT THE CHANGE IN
ACCORDANCE WITH SECTION 6
ABOVE, THE DECISION OF THE PANEL WILL BE APPLIED RETROACTIVELY TO THE
DATE OF IMPLEMENTATION.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PORTIONS OF THE PROPOSED PROCEDURES FOR
MID-TERM NEGOTIATIONS SET FORTH ABOVE WOULD VIOLATE MANAGEMENT RIGHTS
UNDER SECTION 7106 OF THE STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION: THE DISPUTED PORTIONS OF UNION PROPOSAL XII HEREIN
ESTABLISH A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE. /39/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)), THE
AGENCY'S ALLEGATION THAT THOSE PORTIONS OF UNION PROPOSAL XII ARE NOT
WITHIN THE DUTY TO BARGAIN IS SET ASIDE. /40/
REASONS: THE AGENCY OBJECTS, FIRST OF ALL, TO THAT ASPECT OF UNION
PROPOSAL XII WHICH WOULD REQUIRE, IN EFFECT, THAT THE AGENCY HOLD IN
ABEYANCE IMPLEMENTATION OF ANY PROPOSED CHANGE IN CONDITIONS OF
EMPLOYMENT DURING THE TERM OF THE AGREEMENT PENDING THE DECISION OF THE
FEDERAL SERVICE IMPASSES PANEL ON MATTERS REFERRED TO IT BY THE PARTIES,
EXCEPT IN CIRCUMSTANCES INVOLVING AN "OVERRIDING EXIGENCY" OR
"UNREASONABLE DELAY" OF IMPLEMENTATION OF MANAGEMENT RIGHTS. THE AGENCY
ARGUES THAT THIS REQUIREMENT WOULD RESULT IN UNREASONABLE DELAYS IN THE
EXERCISE OF ANY MANAGEMENT RIGHT WHICH MIGHT BE INVOLVED AND THAT, FOR
THIS REASON, THESE PROVISIONS OF THE PROPOSED PROCEDURES ARE CONTRARY TO
THE STATUTE. THE AGENCY POSITION IS WITHOUT MERIT.
FIRST, THE PLAIN LANGUAGE OF THE PROPOSAL WOULD PERMIT THE AGENCY TO
IMPLEMENT ANY CHANGE IN CONDITIONS OF EMPLOYMENT IN CIRCUMSTANCES WHERE
HOLDING THE ACTION IN ABEYANCE AS REQUIRED BY THE PROPOSAL WOULD RESULT
IN UNREASONABLE DELAYS IN THE EXERCISE OF MANAGEMENT RIGHTS. MOREOVER,
CONTRARY TO THE AGENCY'S ARGUMENT THAT THE STATUTE IMPOSES A MORE
STRINGENT STANDARD OF DELAY THAN THAT IN THE PROPOSALS, THE AUTHORITY,
IN THE DIX-MCGUIRE EXCHANGE CASE, /41/ REJECTED THE CONTENTION THAT THE
STATUTORY STANDARD FOR DETERMINING WHETHER A PROPOSED PROCEDURE IS
WITHIN THE DUTY TO BARGAIN IS WHETHER IT WOULD RESULT IN AN UNREASONABLE
DELAY IN THE IMPLEMENTATION OF MANAGEMENT RIGHTS. IN ITS DECISION, THE
AUTHORITY STATED AS FOLLOWS: /42/
. . . THE LEGISLATIVE HISTORY OF THE STATUTE, AS IT PERTAINS TO
SUBSECTION (B)(2), REVEALS,
FIRST OF ALL, THAT THE COMMITTEE ON CONFERENCE, IN ADOPTING THE BILL
WHICH SUBSEQUENTLY WAS
ENACTED BY CONGRESS AND SIGNED INTO LAW BY THE PRESIDENT,
SPECIFICALLY REJECTED A PROVISION OF
THE SENATE BILL (S. 2640) WHICH PROVIDED THAT NEGOTIATION ON
PROCEDURES SHOULD NOT
"UNREASONABLY DELAY" SO AS TO "NEGATE" THE EXERCISE OF MANAGEMENT'S
RESERVED RIGHTS. THE
CONCLUSION IS JUSTIFIED, THEREFORE, THAT CONGRESS DID NOT INTEND
SUBSECTION (B)(2) TO PRECLUDE
NEGOTIATION ON A PROPOSAL MERELY BECAUSE IT MAY IMPOSE ON MANAGEMENT
A REQUIREMENT WHICH WOULD
DELAY IMPLEMENTATION OF A PARTICULAR ACTION INVOLVING THE EXERCISE OF
A SPECIFIED MANAGEMENT
RIGHT. RATHER, AS THE CONFERENCE REPORT INDICATES, SUBSECTION (B)(2)
IS INTENDED TO AUTHORIZE
AN EXCLUSIVE REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT
TO THE EXTENT THAT SUCH
NEGOTIATION WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT ALL. THAT
IS, INSOFAR AS IT IS
CONSISTENT WITH THE RIGHT OF MANAGEMENT ULTIMATELY TO ACT, CONGRESS
INTENDED THE PARTIES TO
WORK OUT THEIR DIFFERENCES WITH REGARD TO PROCEDURES IN NEGOTIATIONS.
(FOOTNOTES OMITTED.)
THUS, THE STATUTORY STANDARD IS WHETHER ADOPTION OF THE PROPOSED
PROCEDURE, THROUGH NEGOTIATIONS, WILL PREVENT THE AGENCY FROM ACTING AT
ALL. THE PROPOSAL IN THE DIX-MCGUIRE EXCHANGE CASE REQUIRED THE AGENCY
TO STAY THE SUSPENSION OR REMOVAL OF AN EMPLOYEE PENDING COMPLETION OF
THE CONTRACTUAL GRIEVANCE PROCEDURE, INCLUDING ARBITRATION. THE
AUTHORITY DETERMINED THAT WHILE THE PROPOSAL WOULD DELAY AGENCY ACTION,
IT WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL AND FOUND THIS
PROPOSAL TO BE WITHIN THE DUTY TO BARGAIN. THE PROPOSAL IN THIS CASE,
LIKE THAT IN DIX-MCGUIRE EXCHANGE, WOULD REQUIRE THE AGENCY TO HOLD IN
ABEYANCE ITS PROPOSED ACTION-- IN THIS INSTANCE, PENDING COMPLETION OF
THE PROCEDURES OF THE PANEL. HOWEVER, THE PROPOSAL HEREIN, AS
DISTINGUISHED FROM DIX-MCGUIRE EXCHANGE, WOULD PERMIT THE AGENCY TO
IMPLEMENT THAT PROPOSED ACTION BEFORE THE COMPLETION OF THE PANEL
PROCEDURES IN CIRCUMSTANCES WHICH INVOLVE AN "OVERRIDING EXIGENCY" OR AN
"UNREASONABLE DELAY" IN THE EXERCISE OF MANAGEMENT RIGHTS. AS SUCH, THE
PROPOSAL AT ISSUE HEREIN IS LESS RESTRICTIVE OF MANAGEMENT RIGHTS THAN
THAT IN DIX-MCGUIRE EXCHANGE AND, A FORTIORI, WOULD NOT PREVENT THE
AGENCY FROM ACTING AT ALL PURSUANT TO THOSE RIGHTS. /43/ IN THIS
RESPECT, THEN, IT IS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF
THE STATUTE.
THE AGENCY OBJECTS, FURTHER, TO THAT PORTION OF THE UNION'S PROPOSAL
WHICH (IN THOSE SITUATIONS WHERE THE AGENCY, CONSISTENT WITH THE
"OVERRIDING EXIGENCY" AND "UNREASONABLE DELAY" PROVISIONS, IMPLEMENTS
ITS PROPOSED ACTION PRIOR TO THE COMPLETION OF THE PANEL PROCEDURES)
REQUIRES THAT THE DECISION OF THE PANEL BE APPLIED RETROACTIVELY TO THE
DATE OF THE AGENCY ACTION. SPECIFICALLY, THE AGENCY ARGUES THAT THE
RETROACTIVITY REQUIREMENT WOULD CANCEL THE ACTIONS TAKEN IN THE EXERCISE
OF ANY MANAGEMENT RIGHT INVOLVED. TO THE EXTENT THAT THIS IS AN
ARGUMENT THAT THE RETROACTIVITY REQUIREMENT WOULD HAVE THE EFFECT,
CONTRARY TO THE STATUTE, OF PREVENTING THE AGENCY FROM ACTING AT ALL, IT
MISCONTRUES THE EFFECT OF THE PROPOSAL. THE PLAIN LANGUAGE OF THIS PART
OF THE PROPOSAL AND THE RECORD HEREIN INDICATE THAT THE PROPOSAL IS NOT
INTENDED TO NULLIFY THE ACTION ITSELF, I.E., THE EXERCISE OF THE
MANAGEMENT RIGHT, BUT TO RETROACTIVELY APPLY THE PANEL DECISION AS TO
THE PROCEDURES TO BE FOLLOWED IN THE IMPLEMENTATION OF THE ACTION AND
AND THE APPROPRIATE ARRANGEMENTS TO BE MADE FOR EMPLOYEES ADVERSELY
AFFECTED BY THE ACTION. IN THIS RESPECT, THE EFFECT OF THE
RETROACTIVITY REQUIREMENT WOULD BE ANALOGOUS TO THE EFFECT OF A JUDGMENT
THAT AN AGENCY MUST RE-RUN, E.G., A REDUCTION IN FORCE OR A PROMOTION
ACTION IN ORDER TO COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS. THAT
IS, THE RIGHT OF THE AGENCY TO TAKE THE ACTION IS NOT IN QUESTION, ONLY
THE MANNER IN WHICH THE ACTION WAS IMPLEMENTED. THUS, THE REQUIREMENT
THAT THE DECISION OF THE PANEL BE APPLIED RETROACTIVELY AS OF THE DATE
OF THE AGENCY ACTION WOULD NOT IN AND OF ITSELF PREVENT THE AGENCY FROM
ACTING AT ALL IN THE CIRCUMSTANCES DESCRIBED IN THE PROPOSALS.
MOREOVER, NEITHER THE LANGUAGE OF THE PROPOSAL NOR THE RECORD IN THE
CASE INDICATES AN INTENT FOR THE PROPOSAL TO REQUIRE THAT RETROACTIVE
APPLICATION OF THE DECISION OF THE PANEL MUST OCCUR IF SUCH APPLICATION
WOULD BE INCONSISTENT WITH APPLICABLE LAW AND REGULATION.
THUS, FOR THE FOREGOING REASONS, UNION PROPOSAL XII ESTABLISHES A
NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE WHICH
MANAGEMENT OFFICIALS WILL OBSERVE IN THE EXERCISE OF MANAGEMENT RIGHTS
DURING THE TERM OF THE AGREEMENT.
UNION PROPOSAL XIII
ARTICLE 16 REDUCTION IN FORCE
SECTION 6.
B. PRIOR TO ANY PLACEMENT ACTIONS, THE EMPLOYER WILL ESTABLISH LISTS
OF POSITIONS BY
GRADE, TITLE, SERIES, CAREER POTENTIAL AND LOCATION INTO WHICH
PERSONNEL MAY BE ENTITLED TO
BUMP OR RETREAT. LISTS WILL CONTAIN ALL VACANT POSITIONS AND WILL BE
UPDATED WEEKLY. THESE
LISTS WILL BE MADE AVAILABLE TO ALL INDIVIDUALS DETERMINED TO BE
AFFECTED BY THE RIF. ALL
AFFECTED EMPLOYEES WILL BE OFFERED AN OPPORTUNITY TO LIST THE
PREFERRED POSITIONS DESIRED IN
EACH GRADE, IN ORDER OF PREFERENCE. THE EMPLOYER WILL ASSIGN
EMPLOYEES, IN RETENTION ORDER,
TO POSITIONS OF PREFERENCE FOR WHICH QUALIFIED, IN THE ORDER OF
PREFERENCE, UNLESS THERE ARE
PERSUASIVE MISSION RELATED REASONS FOR NOT DOING SO, IN WHICH CASE
THE EMPLOYER WILL PROVIDE
THE REASONS IN WRITING TO THE UNION AND TO THE EMPLOYEE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL XIII VIOLATES THE RIGHT OF THE
AGENCY TO ASSIGN EMPLOYEES IN THE AGENCY UNDER SECTION 7106(A)(2)(A) OF
THE STATUTE. /44/
OPINION
CONCLUSION: UNION PROPOSAL XIII VIOLATES THE AGENCY'S RIGHT TO
ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATION
THAT THE PROPOSAL IS NOT WITHIN THE AGENCY'S DUTY TO BARGAIN IS
SUSTAINED.
REASONS: UNION PROPOSAL XIII REQUIRES THE AGENCY, WHERE THERE ARE
EMPLOYEES SUBJECT TO A REDUCTION IN FORCE (RIF) WHO ARE ENTITLED UNDER
APPLICABLE REGULATIONS /45/ TO AN OFFER OF ASSIGNMENT TO ANOTHER
POSITION, TO ASSIGN THOSE EMPLOYEES TO THE POSITIONS TO WHICH THEY ARE
ENTITLED ON THE BASIS OF EMPLOYEE PREFERENCE. AS A PRACTICAL MATTER,
THE PROPOSAL WOULD APPLY PRIMARILY IN CIRCUMSTANCES WHERE THERE ARE
VACANT POSITIONS FOR WHICH AN EMPLOYEE IS QUALIFIED /46/ AND WHERE THERE
IS MORE THAN ONE POSITION TO WHICH THE EMPLOYEE HAS ASSIGNMENT RIGHTS,
/47/ SINCE THESE ARE THE CIRCUMSTANCES UNDER APPLICABLE REGULATIONS IN
WHICH THE AGENCY HAS DISCRETION AS TO THE REASSIGNMENT OF EMPLOYEES IN A
REDUCTION IN FORCE. /48/ HOWEVER, IN THESE CIRCUMSTANCES, THE PROPOSAL
WOULD COMPEL THE AGENCY TO ASSIGN AN EMPLOYEE TO A POSITION ON THE BASIS
OF THAT EMPLOYEE'S PREFERENCE. THAT IS, THE AGENCY WOULD BE REQUIRED TO
FOREGO ITS DISCRETION AS TO THE SELECTION OF THE EMPLOYEE TO BE ASSIGNED
TO THAT POSITION. THE AUTHORITY HELD, IN CONNECTION WITH ITS
CONSIDERATION OF UNION PROPOSALS III-VII ABOVE, THAT THE RIGHT OF THE
AGENCY TO ASSIGN EMPLOYEES INCLUDES DISCRETION AS TO THE SELECTION OF
THE PARTICULAR EMPLOYEE TO BE ASSIGNED. THUS, AS DISCUSSED MORE FULLY
IN CONNECTION WITH UNION PROPOSALS III-VII, HEREIN, SINCE UNION PROPOSAL
XIII, IN THE CIRCUMSTANCES DESCRIBED, WOULD COMPEL THE SELECTION OF A
PARTICULAR EMPLOYEE FOR ASSIGNMENT, IT INTERFERES WITH THE DISCRETION
WHICH IS AN ESSENTIAL PART OF THE RIGHT TO ASSIGN UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. THEREFORE, IT IS OUTSIDE THE DUTY TO
BARGAIN.
UNION PROPOSALS XIV AND XV
ARTICLE 13 TEMPORARY PROMOTIONS
UNION PROPOSAL XIV
SECTION 2. TEMPORARY PROMOTION TO ENCUMBERED POSITIONS
WHEN AN EMPLOYEE IS TEMPORARILY ASSIGNED TO AN ENCUMBERED, BUT
TEMPORARILY VACANT
BARGAINING UNIT POSITION OF A HIGHER GRADE FOR 30 DAYS, THE EMPLOYEE
WILL RECEIVE THE RATE OF
PAY FOR THE HIGHER POSITION TO WHICH ASSIGNED, COMMENCING ON THE 31ST
DAY.
UNION PROPOSAL XV
SECTION 3. ASSIGNMENT OF DUTIES OF A HIGHER GRADED POSITION
WHEN AN EMPLOYEE IS TEMPORARILY ASSIGNED THE DUTIES OF A HIGHER
GRADED POSITION FOR 30
CONSECUTIVE DAYS, THE EMPLOYEE WILL RECEIVE THE RATE OF PAY FOR THE
HIGHER POSITION TO WHICH
ASSIGNED, COMMENCING ON THE 31ST DAY.
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER UNION PROPOSAL XV IS OUTSIDE THE SCOPE OF
BARGAINING UNDER SECTION 7117 OF THE STATUTE /49/ TO THE EXTENT THAT IT
APPLIES TO SUPERVISORY POSITIONS AND WHETHER UNION PROPOSALS XIV AND XV,
AS THEY APPLY TO UNIT POSITIONS, ARE CONTRARY TO THE LAW GOVERNING
COMPENSATION OF FEDERAL EMPLOYEES. /50/
OPINION
CONCLUSION: UNION PROPOSAL XV IS WITHIN THE SCOPE OF BARGAINING
UNDER SECTION 7117 OF THE STATUTE AND UNION PROPOSAL XIV AND UNION
PROPOSAL XV DO NOT CONFLICT WITH THE LAW GOVERNING COMPENSATION OF
FEDERAL EMPLOYEES. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)), THE
AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSALS ARE NOT WITHIN THE DUTY
TO BARGAIN IS SET ASIDE. /51/
REASONS: THESE TWO PROPOSALS REQUIRE, RESPECTIVELY, THAT UNIT
EMPLOYEES TEMPORARILY ASSIGNED TO AN ENCUMBERED BUT TEMPORARILY VACANT
HIGHER GRADED POSITION AND TEMPORARILY ASSIGNED TO PERFORM THE DUTIES OF
A HIGHER GRADED POSITION BE COMPENSATED AT THE RATE APPROPRIATE TO SUCH
HIGHER GRADED POSITIONS AFTER CERTAIN SPECIFIED TIME PERIODS. THE
AGENCY ALLEGES WITH RESPECT TO UNION PROPOSAL XV THAT IT IS OUTSIDE THE
DUTY TO BARGAIN TO THE EXTENT THAT THE HIGHER GRADED POSITIONS REFERRED
TO THEREIN ARE INTENDED TO INCLUDE SUPERVISORY POSITIONS OUTSIDE THE
BARGAINING UNIT. THE ALLEGATION CANNOT BE SUSTAINED.
FIRST OF ALL, THE PROPOSAL DOES NOT ON ITS FACE APPLY TO SUPERVISORY
POSITIONS. HOWEVER, EVEN ASSUMING THAT IT DID, THE PROPOSAL WOULD BE
WITHIN THE DUTY TO BARGAIN UNDER THE AUTHORITY'S DECISION IN THE NAVAL
AIR REWORK FACILITY CASE /52/ REGARDING A SUBSTANTIALLY IDENTICAL
PROPOSAL: /53/
IN THIS REGARD, THE ACT CALLED FOR BY THE PROPOSAL, OF PROVIDING
COMPENSATION TO THE
EMPLOYEE AT THE LEVEL COMMENSURATE WITH THE JOB HE OR SHE IS
PERFORMING (I.E., TEMPORARILY
PROMOTING THE EMPLOYEE), SIMPLY IS A MINISTERIAL ACT IMPLEMENTING
MANAGEMENT'S DECISION TO
SELECT AND ASSIGN THE EMPLOYEE INVOLVED TO THE HIGHER GRADED
POSITION. AS PREVIOUSLY
INDICATED, NOTHING IN THE PROPOSAL WOULD INTERFERE WITH MANAGEMENT'S
RIGHT TO MAKE SUCH
DECISION TO SELECT AND ASSIGN. THUS, NOTHING IN THE PROPOSAL WOULD
IMPAIR MANAGEMENT'S RIGHT
TO DETERMINE WHETHER AND WHOM TEMPORARILY TO PROMOTE.
SIMILARLY, THE AGENCY ARGUMENT THAT THESE PROPOSALS, CONTRARY TO LAW,
WOULD REQUIRE THE AGENCY TO COMPENSATE EMPLOYEES, IN THE CIRCUMSTANCES
SPECIFIED IN THE PROPOSALS, AT THE RATE OF PAY OF THE HIGHER GRADED
POSITIONS WITHOUT HAVING TEMPORARILY PROMOTED THEM TO THESE POSITIONS,
IS WITHOUT MERIT.
THE AGENCY IS CORRECT IN ITS STATEMENT OF THE LAW AS REQUIRING
PROMOTION AS A PREREQUISITE TO THE HIGHER COMPENSATION. /54/ HOWEVER,
THE AGENCY HAS FAILED TO SHOW THAT THE PROPOSALS WOULD REQUIRE IT TO PAY
EMPLOYEES THE HIGHER RATE WITHOUT HAVING TEMPORARILY PROMOTED THOSE
EMPLOYEES OR THAT TEMPORARY PROMOTIONS UNDER THE CIRCUMSTANCES
SPECIFIED
IN THE PROPOSALS WOULD BE CONTRARY TO LAW OR REGULATION. ON THE
CONTRARY, ABSENT AN INDICATION IN THE PROPOSAL ITSELF OR IN THE RECORD
IN THE CASE THAT THE UNION INTENDED OTHERWISE, GIVEN THE LAW AS STATED
ABOVE, THE REQUIREMENT THAT THE EMPLOYEE RECEIVE THE HIGHER RATE OF PAY
IS TANTAMOUNT TO A REQUIREMENT THAT THE EMPLOYEE WHO HAS BEEN SELECTED
BY MANAGEMENT BE TEMPORARILY PROMOTED TO THE HIGHER GRADED POSITION.
IN THIS REGARD, AS IS IMPLICIT IN THE NAVAL AIR REWORK FACILITY CASE,
CITED ABOVE, UNLESS THE PROPOSAL SPECIFICALLY PROVIDES OR THE RECORD
INDICATES OTHERWISE, THE REQUIREMENT THAT AN EMPLOYEE TEMPORARILY
SERVING IN OR PERFORMING THE DUTIES OF A HIGHER GRADED POSITION BE PAID
THE RATE OF PAY OF THE HIGHER GRADED POSITION MUST BE INTERPRETED AS
CONSISTENT WITH APPLICABLE LAW, THAT IS, AS REQUIRING THAT THE EMPLOYEE
BE TEMPORARILY PROMOTED TO THAT POSITION.
MOREOVER, THE AGENCY HAS NOT SHOWN THAT A TEMPORARY PROMOTION IN THE
CIRCUMSTANCES DESCRIBED IN THE PROPOSALS IN ANY OTHER MANNER WOULD BE
CONTRARY TO LAW AND REGULATION. IN PARTICULAR, THE AGENCY HAS PROVIDED
NO EVIDENCE TO SUPPORT ITS CLAIM THAT UNION PROPOSAL XIV COULD BE
INTERPRETED TO REQUIRE THE ESTABLISHMENT OF ANOTHER POSITION.
CERTAINLY, THE PROPOSAL ITSELF DOES NOT REQUIRE SUCH ACTION FOR
IMPLEMENTATION AND THE AGENCY PRODUCES NO EVIDENCE TO SUPPORT A
CONCLUSION THAT IT WOULD BE PRECLUDED BY LAW OR REGULATION FROM
TEMPORARILY PROMOTING AN EMPLOYEE TO AN ENCUMBERED BUT TEMPORARILY
VACANT POSITION. IN SHORT, THE AGENCY HAS NOT DEMONSTRATED THAT THE
PROPOSALS, BY REQUIRING THE AGENCY TO COMPENSATE EMPLOYEES AT THE RATE
OF A HIGHER GRADED POSITION UNDER THE CIRCUMSTANCES SPECIFIED, ARE
CONTRARY TO LAW AND REGULATION. THEREFORE, THE PROPOSALS ARE WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
UNION PROPOSAL XVI
ARTICLE 13 TEMPORARY PROMOTIONS
SECTION 5. ALTERNATE FOREMAN SELECTION
AN ALTERNATE FOREMAN/SUPERVISOR IS A PRODUCTION EMPLOYEE OF
JOURNEYMAN GRADE LEVEL SELECTED
BY THE FOREMAN/SUPERVISOR TO ENSURE CONTINUITY OF FUNCTIONS WHILE THE
FOREMAN/SUPERVISOR IS
ABSENT.
(A) SELECTION OF ALTERNATE FOREMAN/SUPERVISORS SHALL BE ROTATED AMONG
JOURNEYMEN AND
WORKLEADER EMPLOYEES VOLUNTEERING TO ACT IN THIS CAPACITY.
DESIGNATIONS WILL BE EQUITABLE
ROTATED ON A SENIORITY BASIS (SERVICE COMPUTATION DATE). THE INITIAL
SELECTION WILL BE THE
EMPLOYEE WITH THE MOST SENIORITY, UNLESS THE EMPLOYEE DECLINES. THE
REMAINING EMPLOYEES WILL
BE UTILIZED IN DESCENDING ORDER ACCORDING TO THEIR SENIORITY.
(B) EACH EMPLOYEE SO DESIGNATED WILL SERVE UNTIL THEY HAVE
ACCUMULATED 30 DAYS OF
EXPERIENCE OF ACTING FOREMAN/SUPERVISOR. EMPLOYEES WHO ARE
DESIGNATED AS AN ALTERNATE
FOREMAN/SUPERVISOR WILL HAVE THIS ASSIGNMENT RECORDED BY THE EMPLOYER
ON THE EMPLOYEE'S AF 971
FILE. EVERY ACCUMULATIVE 30 WORKDAYS IN WHICH THE EMPLOYEE HAS
SERVED AS ACTING
FOREMAN/SUPERVISOR WILL BE CERTIFIED ON AN SF 52 FORM AND RECORDED ON
THE EMPLOYEE'S OFFICIAL
PERSONNEL FILE.
(C) TEMPORARY PROMOTIONS WILL BE MADE WHEN EMPLOYEES PERFORM THE
DUTIES OF THESE POSITIONS
FOR 30 DAYS OR MORE.
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE, FIRST OF ALL, WHETHER SUBSECTIONS (A) AND (B) OF
UNION PROPOSAL XVI VIOLATE MANAGEMENT RIGHTS UNDER SECTION 7106(A)(2) OF
THE STATUTE, AND, SECONDLY, WHETHER SUBSECTION (C) VIOLATES THE LAW
GOVERNING COMPENSATION OF FEDERAL EMPLOYEES, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION: SUBSECTIONS (A) AND (B) OF UNION PROPOSAL XVI VIOLATE
THE RIGHT OF THE AGENCY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE, /55/ AND SUBSECTION (C) OF THE PROPOSAL VIOLATES THE LAW
GOVERNING COMPENSATION OF FEDERAL EMPLOYEES. /56/ ACCORDINGLY, PURSUANT
TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (45 FED.REG.
3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATIONS THAT THE UNION PROPOSAL
XVI IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
REASONS: ACCORDING TO THE RECORD IN THIS CASE, THERE IS NO
ESTABLISHED POSITION OF "ALTERNATE FOREMAN/SUPERVISOR." RATHER, IT
APPEARS THAT THE TERM REFERS TO CIRCUMSTANCES IN WHICH CERTAIN OF THE
DUTIES INCIDENT TO AN ESTABLISHED SUPERVISORY POSITION ARE ASSIGNED TO
UNIT EMPLOYEES ON AN AD HOC BASIS DURING THE TEMPORARY ABSENCE OF THE
SUPERVISOR. SUBSECTIONS (A) AND (B) OF UNION PROPOSAL XVI CONCERN THE
SELECTION OF UNIT EMPLOYEES TO PERFORM THE SUBJECT SUPERVISORY DUTIES.
IN PARTICULAR, THEY WOULD COMPEL THE ASSIGNMENT OF CERTAIN SUPERVISORY
DUTIES TO EMPLOYEES ON THE BASIS OF SENIORITY OR, ONCE SUCH DUTIES WERE
ASSIGNED, PREVENT THE ASSIGNMENT OF THOSE DUTIES TO OTHER EMPLOYEES
BEFORE A SPECIFIED TIME PERIOD HAD ELAPSED. IN OTHER WORDS THEY WOULD
ELIMINATE THE DISCRETION INHERENT IN THE RIGHT TO ASSIGN WORK UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE. THE RIGHT TO ASSIGN WORK INCLUDES
DISCRETION AS TO THE PARTICULAR EMPLOYEE TO WHOM IT WILL BE ASSIGNED.
THUS, SINCE SUBSECTIONS (A) AND (B) OF THE PROPOSAL WOULD DIRECTLY
INTERFERE WITH THE AGENCY'S RIGHT TO ASSIGN WORK TO PARTICULAR
EMPLOYEES, THE AGENCY'S ALLEGATION THAT THESE SECTIONS ARE NOT WITHIN
THE DUTY TO BARGAIN IS SUSTAINED.
MOREOVER, AS PREVIOUSLY INDICATED, THE TERM "ALTERNATE
FOREMAN/SUPERVISOR" DOES NOT REFER TO AN ESTABLISHED POSITION BUT TO THE
PERFORMANCE OF SOME OF THE DUTIES INCIDENT TO A SUPERVISORY POSITION BY
UNIT EMPLOYEES ON AN AD HOC BASIS. IT IS WELL SETTLED THAT A FEDERAL
EMPLOYEE IS ENTITLED TO RECEIVE ONLY THE SALARY OF THE POSITION TO WHICH
HE OR SHE WAS APPOINTED EVEN THOUGH HE OR SHE MAY HAVE PERFORMED DUTIES
OF ANOTHER POSITION. /57/ IN THE INSTANT CASE, HOWEVER, UNIT EMPLOYEES
ARE MERELY PERFORMING SOME OF THE DUTIES INCIDENT TO A SUPERVISORY
POSITION ON AN AD HOC BASIS RATHER THAN BEING ASSIGNED TO AN ESTABLISHED
SUPERVISORY POSITION. NO BASIS EXISTS UNDER FEDERAL PERSONNEL LAW TO
SUPPORT A TEMPORARY PROMOTION IN THESE CIRCUMSTANCES. THEREFORE,
SUBSECTION (C) OF UNION PROPOSAL XVI, BY REQUIRING SUCH TEMPORARY
PROMOTION IS INCONSISTENT WITH APPLICABLE LAW. CONSEQUENTLY, THE
AGENCY'S ALLEGATION THAT SUBSECTION (C) OF THE PROPOSAL IS NOT WITHIN
THE DUTY TO BARGAIN IT SUSTAINED.
ISSUED, WASHINGTON, D.C., JANUARY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
ATTACHMENTS:
APPENDICES
APPENDIX A
UNION PROPOSAL IX
ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY
SECTION 3. EEO PLANS OF ACTION
EACH AFLC SUBORDINATE ACTIVITY WILL DEVELOP APPROPRIATE PLANS OF
ACTION WHICH WILL SPECIFICALLY ADDRESS: (1) ALL PERSONNEL FUNCTIONS
WHICH IMPACT EQUAL EMPLOYMENT OPPORTUNITY FOR ANY EMPLOYEES; (2)
EXISTING PROBLEMS; AND (3) FORSEEN FUTURE PROBLEM AREAS. UNION INPUT
TO THESE PLANS WILL BE REQUESTED AT APPROPRIATE TIMES IN THEIR
DEVELOPMENT, AND IDEAS FROM UNION REPRESENTATIVES WILL BE SOLICITED
CONCERNING VARIOUS ASPECTS OF THE PLANS AS THEY ARE DEVELOPED.
NEGOTIATIONS OF THESE PLANS WILL BE SCHEDULED PROMPTLY WHEN REQUESTED BY
THE UNION.
A. THE AFLC PLAN. THE AFLC EEO PLAN WILL CONTAIN PROVISIONS TO
INSURE THAT COMMANDERS AT ALL ACTIVITIES WILL DEVELOP COMPREHENSIVE
PLANS WHICH WILL REFLECT A FULL COMMITMENT TOWARD THE REALIZATION OF
FULL EQUAL EMPLOYMENT OPPORTUNITY FOR ALL THEIR EMPLOYEES. THE AFLC
PLAN WILL STATE COMMAND POLICIES AND OBJECTIVES AND ESTABLISH COMMAND
GOALS. (1) IT IS AGREED THAT THE COMMAND WILL, AT LEAST QUARTERLY,
REVIEW REPORTS ON INSTALLATION AND COMMAND PROGRESS TOWARD REALIZATION
OF ALL OBJECTIVES AND GOALS, AND WILL PROVIDE ASSESSMENTS OF PROGRESS,
AND APPROPRIATE GUIDANCE TO SUBORDINATE COMMANDERS ON A TIMELY BASIS.
SUCH REPORTS WILL BE FORWARDED TO THE COUNCIL PRESIDENT WITHIN 10 DAYS
OF SERVICE ON LOCAL COMMANDER.
(2) ANNUALLY, THE COMMAND WILL CONSOLIDATE DATA OF THE YEAR'S
PROGRESS, AND ISSUE
ASSESSMENTS OF PROGRESS TOWARD THE COMMAND'S OBJECTIVES AND GOALS,
AND THOSE OF EACH
SUBORDINATE COMMANDER, WITH APPROPRIATE FURTHER GUIDANCE. A COPY OF
THE REPORT WILL BE
FURNISHED TO THE COUNCIL PRESIDENT.
(3) THE AFLC PLAN WILL DIRECT ACTIVITY COMMANDERS TO DEVELOP PLANS
WHICH WILL REFLECT THE
COMMITMENT OF THEIR MANAGEMENT TO ALL AIR FORCE POLICIES AND
OBJECTIVES IN SUPPORT OF FULL
EQUAL EMPLOYMENT OPPORTUNITY. THESE POLICIES AND OBJECTIVES WILL
DIRECT THE INCLUSION OF
PROVISIONS TO:
A. MAKE EVERY EFFORT TO ELIMINATE EVERY VESTIGE OF LOCAL PREJUDICE
AND DISCRIMINATION.
B. ISSUE A STATEMENT TO EMPLOYEES INDICATING MANAGEMENT'S COMMITMENT
TO ACHIEVE THAT GOAL.
C. TAKE ACTIONS TO ASSURE THAT ALL SOURCES OF QUALIFIED MINORITY
GROUP APPLICANTS
UNDERSTAND THE EEO PROGRAM.
D. DEVELOP PLANS TO ESTABLISH AND MAINTAIN CONTACTS WITH THE
MINORITY WORK FORCE AND
COMMUNITY GROUPS AND TO PARTICIPATE IN COOPERATIVE ACTION WITH
SCHOOLS, UNIVERSITIES, AND
OTHER PUBLIC AND PRIVATE GROUPS TO IMPROVE EMPLOYMENT OPPORTUNITIES
AND CONDITIONS AFFECTING
EMPLOYABILITY.
E. INSURE VIGOROUS PERFORMANCE IN THE POSITIVE APPLICATION OF THE
POLICY OF EQUAL
OPPORTUNITY BY SUPERVISORY AND MANAGERIAL PERSONNEL WHO DIRECT THE
ACTIVITIES OF EMPLOYEES
COVERED BY THIS AGREEMENT.
F. MAKE MAXIMUM EFFORT TO ASSURE ALL EMPLOYEES AND RECOGNIZED
EMPLOYEE ORGANIZATIONS
UNDERSTAND THE POLICIES AND PROGRAM.
G. CONSIDER AND ADJUDICATE COMPLAINTS OF DISCRIMINATION CAREFULLY,
JUSTLY, AND
EXPEDITIOUSLY.
H. BRIEF NEW KEY STAFF PERSONNEL AND EMPHASIZE THEIR RESPONSIBILITY
FOR IMPLEMENTING THE
EEO PROGRAM.
I. INCLUDE THE SUBJECT OF EQUAL EMPLOYMENT OPPORTUNITY IN ALL
SUPERVISORY DEVELOPMENT
PROGRAMS.
J. DURING ORIENTATION PROGRAMS, INSURE ALL PERSONS UNDERSTAND ALL
PERSONNEL ACTIONS ARE ON
A MERIT BASIS WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, OR
NATIONAL ORIGIN.
K. SEEK THE SUPPORT AND COOPERATION OF MANAGEMENT WITH EEO
COUNSELORS AND OTHER OFFICIALS
IN BRINGING ABOUT INFORMAL RESOLUTIONS OF COMPLAINTS.
B. ACTIVITY EEO PLANS OF ACTION. DEVELOPMENT OF EACH ACTIVITY'S EEO
ANNUAL PLAN OF ACTION WILL BE DONE IN A TIMELY MANNER, WILL BE COMPLETE,
COMPREHENSIVE, AND ADEQUATE IN RESPONSE TO THE ASSESSMENTS OF EEO
PROBLEMS. PRIOR TO IMPLEMENTATION, IT WILL BE SUBMITTED TO THE UNION
FOR REVIEW. THE UNION MAY SUBMIT PROPOSALS ON THE PLAN AND SHALL
NEGOTIATE THE PLAN IN ACCORDANCE WITH ARTICLE SUPPLEMENTAL AGREEMENTS.
THE PARTIES AGREE THAT EACH ACTIVITY EEO PLAN WILL CONTAIN INFORMATION
WHICH WILL FOCUS ON SPECIFIC PERSONNEL FUNCTIONS AND EXISTING PROBLEMS,
AND FORESEEN POTENTIAL PROBLEMS. IT WILL SPECIFICALLY EXAMINE THE
FOLLOWING AREAS:
1. ADEQUATE ORGANIZATION AND RESOURCES TO ADMINISTER THE COMMAND EEO
PROGRAM IN A POSITIVE
AND EFFECTIVE MANNER, WITH CRITERIA FOR STAFFING THAT WILL ASSURE
EFFECTIVE PERFORMANCE IN ALL
PROGRAM ASPECTS, INCLUDING AFFIRMATIVE ACTION AND PROCESSING OF
DISCRIMINATION COMPLAINTS.
2. AN ANALYSIS OF RELEVANT STATISTICAL DATA ON THE AGENCY WORKFORCE
TO SHOW COMPOSITION OF
THE AGENCY'S AND SUBORDINATE ORGANIZATION'S WORKFORCE BY RACIAL,
ETHNIC AND SEX GROUPINGS AT
THE VARIOUS GRADE LEVELS.
3. DATA TO SHOW THE COMPOSITION OF EACH MAJOR OCCUPATION JOB SERIES)
BY RACIAL, ETHNIC AND
SEX GROUPINGS AT THE VARIOUS GRADE LEVELS.
4. A SURVEY OF CURRENT SKILLS AND TRAINING OF THE COMMAND'S
WORKFORCE, AND THE LABOR
MARKET WHICH THE INSTALLATION USES AS ITS RECRUITING SOURCE, TO
DETERMINE THE AVAILABILITY OF
EMPLOYEES, INCLUDING MINORITIES AND WOMEN, HAVING SKILLS REQUIRED TO
MEET STAFFING
NEEDS. THIS DATA WILL ALSO BE AVAILABLE FOR USE IN IDENTIFYING
UNDER-UTILIZED EMPLOYEES SO
THEY MAY BE CONSIDERED FOR POSITIONS WHICH WILL MAKE FULL USE OF
THEIR SKILLS, TRAINING AND
EXPERIENCE.
5. TURNOVER INFORMATION ANALYZING VOLUNTARY AND INVOLUNTARY ACTIONS,
TO DETERMINE THE
CHARACTERISTICS OF THOSE EMPLOYEES LEAVING AIR FORCE EMPLOYMENT AND
THOSE HIRED AS
REPLACEMENTS.
6. THE NUMBER AND KINDS OF JOBS EXPECTED TO BE FILLED IN THE COMING
YEAR, BASED ON A
REVIEW OF PAST TURNOVER RATES IN EACH OF THE MAJOR OCCUPATIONS, AND
ANTICIPATED EXPANSION OR
CONTRACTION OF PROGRAMS.
7. CAREER PROGRESSION BY ORGANIZATION AND GRADE TO ASCERTAIN WHETHER
THE PERCENTAGES OF
MINORITY AND NON-MINORITY ELIGIBLES FOR PROMOTION ARE APPEARING ON
PROMOTION CERTIFICATES AND
WHETHER AN APPROPRIATE NUMBER ARE BEING SELECTED.
8. TRAINING OPPORTUNITY ALLOCATIONS TO INSURE THEY ARE BEING
ALLOTTED ON AN EQUITABLE
BASIS AND THE RESULTS OF SUCH TRAINING EXPERIENCES ARE CONSIDERED
EQUITABLY FOR MINORITY AND
NON-MINORITY CAREER PROGRESSION.
9. SELECTION FOR JOBS TO ASCERTAIN WHETHER IRRELEVANT
CHARACTERISTICS MAY DISCRIMINATE
AGAINST A PARTICULAR GROUP OF EMPLOYEES.
10. UTILIZATION OF INFORMATION BY OCCUPATIONAL AREA AND GRADES TO
DETERMINE WHETHER
DIFFERENT GROUPS ARE NOT BEING FULLY USED BY VIRTUE OF PAST WORK OR
TRAINING EXPERIENCE,
EDUCATIONAL ACHIEVEMENT, OR OTHER CAPABILITIES. THIS AREA SHOULD
ALSO INCLUDE STUDIES OF TIME
IN GRADE BEFORE PROMOTION, INPUT GRADE AS RELATED TO TRAINING,
SKILLS, AND EDUCATION.
11. STUDIES OF ORGANIZATIONAL MAKEUP TO DETERMINE WHETHER EXISTING
GRADES AND OCCUPATIONS
INDICATE PAST OR CONTINUING INEQUALITY OF EMPLOYMENT CONDITIONS.
12. CONINTUING REVIEW OF AWARDS AND DISCIPLINARY ACTIONS BY GRADE,
OCCUPATION AND BY
ORGANIZATION.
13. THE DESIGNATION OF GROUPS OF POSITIONS TO PROVIDE OPPORTUNITIES
FOR EMPLOYEES TO
ENHANCE THEIR SKILLS, PERFORM AT THEIR HIGHEST POTENTIAL AND ADVANCE
IN ACCORDANCE WITH THEIR
ABILITIES THROUGH A FORMAL UPWARD MOBILITY PROGRAM. SPECIFICS OF
INSTALLATION UPWARD MOBILITY
PROGRAMS WILL BE NEGOTIATED LOCALLY.
14. ATTITUDE MEASUREMENT OF THE WORKFORCE AND TOWARD THE ACTIVITY
EEO PROGRAM. IT WILL
INCORPORATE ATTEMPTED SOLUTIONS TO SPECIFIC, IDENTIFIED PROBLEMS AND
DESCRIBE THEM IN TERMS OF
SPECIFIC ACTIVITIES, RESPONSIBILITIES, AND TARGET DATES. FOLLOW-UP
STUDIES WILL BE PERFORMED
TO DETERMINE THE RESULTS OF THE IMPLEMENTED SOLUTIONS.
15. A CONTINUING REVIEW AND ANALYSIS BY ORGANIZATION OF THE SOURCES
OF AND THE KINDS OF
DISCRIMINATION COMPLAINTS RECEIVED AND HOW THEY REFLECT ON PRACTICES
AND POLICIES THAT MIGHT
RESULT IN UNEQUAL OR PREFERENTIAL TREATMENT.
16. TWO SPECIAL EMPHASIS AREAS WILL BE COVERED IN EACH PLAN, AS
APPROPRIATE. THEY
ARE: (1) AIR FORCE FEDERAL WOMEN'S PROGRAM 1 AND (2)
SPANISH-SPEAKING PROGRAM. THE FIRST
WILL RECOGNIZE AND LEND VISIBILITY TO MATTERS AFFECTING THE
EMPLOYMENT AND UTILIZATION OF
WOMEN IN THE AIR FORCE. THE SECOND IS TO ASSURE EQUAL OPPORTUNITIES
IN AIR FORCE EMPLOYMENT
OF THE SPANISH-SPEAKING POPULATION, AND TO ELIMINATE BARRIERS AGAINST
FULL EQUAL OPPORTUNITY
FOR THIS GROUP.
APPENDIX B
UNION PROPOSAL XII
ARTICLE 33 NEGOTIATIONS DURING THE TERM OF THIS AGREEMENT
SECTION 3. MID-TERM NEGOTIATIONS
ANY PROPOSED CHANGE IMPLEMENTING NEW OR CHANGES TO EXISTING DOD OR
AIR FORCE REGULATIONS OR
PROPOSED CHANGES TO AFLC OR ALC REGULATIONS RESULTING IN CHANGES IN
PERSONNEL POLICIES,
PRACTICES, OR MATTERS AFFECTING WORKING CONDITIONS NOT SPECIFICALLY
COVERED IN THIS AGREEMENT
WILL NOT BE IMPLEMENTED WITHOUT PRIOR WRITTEN NOTIFICATION AND
NEGOTIATION WITH THE UNION AS
PRESCRIBED BELOW OR IN ARTICLE . . . , (NEGOTIATIONS OF SUPPLEMENTAL
AGREEMENT.) NOTIFICATIONS
WILL INCLUDE A COPY OF THE PROPOSED CHANGE AND A DETAILED EXPLANATION
OF WHAT IS PROPOSED.
A. MID-TERM NEGOTIATIONS AT COMMAND AFLC LEVEL. NEGOTIATIONS OF
SUPPLEMENTAL AGREEMENT,
OR IF THE EMPLOYER DESIRES TO MAKE CHANGES IN PERSONNEL POLICIES,
PRACTICES, OR WORKING
CONDITIONS PRIOR TO THE ANNUAL CONTRACT REOPENER AUTHORIZED BY
ARTICLE . . . (DURATION OF
AGREEMENT.) THE FOLLOWING PROCEDURES APPLY:
1. THE EMPLOYER SHALL SERVE BY CERTIFIED MAIL ON THE COUNCIL
PRESIDENT AND EACH LOCAL PRESIDENT A COPY OF THE PROPOSED CHANGE AND A
BRIEF RATIONALE ON THE REASONS FOR THE CHANGE.
2. THE COUNCIL PRESIDENT OR HIS DESIGNEE SHALL NOTIFY THE AFLC
COMMANDER WHEN THE UNION CHOOSES TO NEGOTIATE ON THE CHANGE. NOTICE
MUST BE SERVED ON THE AFLC COMMANDER 20 CALENDAR DAYS AFTER RECEIPT OF
THE PROPOSED CHANGE.
3. NEGOTIATIONS SHALL BEGIN WITHIN 30 DAYS FROM NOTICE OF THE
UNION'S DEMAND TO BARGAIN. MID-TERM NEGOTIATIONS NOT CONDUCTED AT THE
ANNUAL REOPENER SHALL BE HELD AT HEADQUARTERS AFLC, DAYTON, OHIO OR
OTHER ALC UPON MUTUAL AGREEMENT OF THE PARTIES. TRAVEL AND PER DIEM FOR
UNION REPRESENTATIVES, WHO ARE AIR FORCE EMPLOYEES, SHALL BE PAID BY THE
EMPLOYER. THE NUMBER OF UNION REPRESENTATIVES FOR WHOM TRAVEL AND PER
DIEM WILL BE PAID SHALL NOT EXCEED THE NUMBER OF MANAGEMENT
REPRESENTATIVES.
4. THE PARTIES WILL NEGOTIATE FIVE DAYS A WEEK FOR EIGHT HOURS A
DAY.
5. SHOULD THE PARTIES FAIL TO REACH AGREEMENT AFTER TWO WEEKS OF
NEGOTIATIONS, INCLUDING MEDIATION, THE AFLC SHALL NOTIFY THE UNION IN
WRITING OF ITS INTENTION TO IMPLEMENT ITS PROPOSAL(S).
6. THE UNION MAY SUBMIT THE ISSUE TO THE FSIP FOR RESOLUTION WITHIN
15 DAYS OF RECEIPT OF THE NOTICE TO IMPLEMENT.
7. SHOULD THE UNION CHOOSE TO SUBMIT THE ISSUE TO THE FSIP THE
EMPLOYER WILL NOT, EXCEPT FOR OVERRIDING EXIGENCIES OR UNREASONABLE
DELAY OF IMPLEMENTATION OF MANAGEMENT RIGHTS, IMPLEMENT THE CHANGE
BEFORE THE PANEL HAS COMPLETED ITS WORK.
8. SHOULD THE EMPLOYER UNILATERALLY IMPLEMENT THE CHANGE IN
ACCORDANCE WITH SECTION 7 ABOVE BEFORE THE PANEL HAS COMPLETED ITS WORK
THE DECISION OF THE PANEL WILL BE APPLIED RETROACTIVELY TO THE DATE OF
IMPLEMENTATION.
9. THE IMPASSE PROCEDURE OF 5, 6, 7, 8, AND ABOVE WILL APPLY WHEN
THE EMPLOYER CHOOSES TO NEGOTIATE ON MID-TERM CHANGES AT THE ANNUAL
REOPENER.
10. ALL CHANGES TO PERSONNEL POLICIES AND PRACTICES OR MATTERS
AFFECTING WORKING CONDITIONS NEGOTIATED AT THE COMMAND LEVEL SHALL
BECOME SUPPLEMENTS TO THIS AGREEMENT AND REMAIN IN EFFECT FOR ITS
DURATION AS PRESCRIBED IN ARTICLE . . . , DURATION.
B. MID-TERM NEGOTIATIONS AT LOCAL LEVEL. FOR DIRECTORATE LEVEL
MATTERS AND ABOVE, THE
UNION WILL HAVE 14 CALENDAR DAYS AFTER THE PROPOSED CHANGES ARE
RECEIVED TO RESPOND TO SUCH
PROPOSALS. FOR OTHER PROPOSED CHANGES, IF THE UNION DOES NOT RESPOND
WITHIN THE TIME PERIOD
STATED ABOVE, THE EMPLOYER MAY IMPLEMENT THE PROPOSED CHANGES. THE
UNION MAY REQUEST A
MEETING TO NEGOTIATE WITH THE EMPLOYER IN ACCORDANCE WITH THE
FOLLOWING PROCEDURES:
1. THE DESIGNATED UNION REPRESENTATIVE SHALL SUBMIT A WRITTEN
REQUEST FOR A MEETING TO THE RESPONSIBLE MANAGEMENT OFFICIAL IN RESPONSE
TO THE EMPLOYER'S NOTIFICATION OF A PROPOSED CHANGE.
A. THE DESIGNATED UNION REPRESENTATIVE FOR MATTERS BELOW DIVISION
LEVEL WILL BE THE
DIVISION STEWARD.
B. THE DESIGNATED UNION REPRESENTATIVE FOR MATTERS AT THE DIVISION
LEVEL SHALL BE THE
DIRECTORATE STEWARD.
C. ON MATTERS AT THE DIRECTORATE LEVEL, THE DESIGNATED UNION
REPRESENTATIVE IS THE CHIEF
STEWARD.
D. MATTERS WHICH HAVE ACTIVITY-WIDE IMPACT WILL BE NEGOTIATED BY THE
PRESIDENT OF THE
UNION.
E. IN THE ABSENCE OF AN APPROPRIATE DESIGNATED UNION REPRESENTATIVE,
THE UNION WILL NAME A
REPRESENTATIVE TO ATTEND THE MEETING WHO WILL HAVE THE AUTHORITY TO
BIND THE UNION.
F. THE DESIGNATED STEWARD AT THE NEXT LOWER ORGANIZATION LEVEL WHERE
THE CHANGE IS
PROPOSED MAY ATTEND THE MEETING IF DESIRED BY THE UNION.
2. ACTIVITY-WIDE MID-TERM CONTRACT CHANGES NEGOTIATED BETWEEN THE
PRESIDENT OF THE UNION AND THE COMMANDING OFFICER OR THEIR DESIGNEES
SHALL BE INCORPORATED INTO LOCAL SUPPLEMENTS AND REMAIN IN EFFECT FOR
THE DURATION OF LOCAL SUPPLEMENT UNLESS THE PARTIES AGREE TO A DIFFERENT
DURATION TERM ON A SPECIFIC ACTIVITY-WIDE MID-TERM CHANGE.
3. ATTENDANCE AT SUCH MEETINGS SHALL BE ON OFFICIAL TIME FOR
EMPLOYEES WHO WOULD OTHERWISE BE IN A DUTY STATUS. SUCH OFFICIAL TIME
WILL BE IN ACCORDANCE WITH TITLE VII.
4. ONLY THE DESIGNATED UNION REPRESENTATIVE SHALL HAVE THE AUTHORITY
TO BIND THE UNION ON SUCH ACCORDS THAT MAY BE REACHED AT THESE MEETINGS.
THESE ACCORDS MAY NOT CONFLICT WITH EXISTING PROVISIONS OF THIS
AGREEMENT.
5. THE MEETING WILL NORMALLY TAKE PLACE WITHIN THREE DAYS AFTER THE
UNION'S REQUEST FOR A MEETING IS RECEIVED.
6. SHOULD THE PARTIES FAIL TO REACH AGREEMENT AFTER MEDIATION, THE
EMPLOYER MAY UNILATERALLY IMPLEMENT CHANGE, PROVIDED A MINIMUM OF 15
DAYS ADVANCE NOTICE HAS BEEN GIVEN TO THE UNION. IF THE UNION CHOOSES
TO SUBMIT THE ISSUE TO THE FEDERAL SERVICE IMPASSES PANEL DURING THIS
PERIOD, EXCEPT FOR OVERRIDING EXIGENCIES OR UNREASONABLE DELAY OF
IMPLEMENTATION OF MANAGEMENT RIGHTS, THE EMPLOYER WILL NOT IMPLEMENT THE
CHANGE AND WILL MAINTAIN THE STATUS QUO UNTIL THE PANEL HAS COMPLETED
ITS DISPUTE RESOLUTION PROCESS.
7. SHOULD THE EMPLOYER UNILATERALLY IMPLEMENT THE CHANGE IN
ACCORDANCE WITH SECTION 6 ABOVE, THE DECISION OF THE PANEL WILL BE
APPLIED RETROACTIVELY TO THE DATE OF IMPLEMENTATION.
/1/ THE BARGAINING UNIT IN THIS CASE IS A COMMAND-WIDE UNIT.
/2/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE:
SEC. 7103. DEFINITIONS; APPLICATION
. . . .
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . . .
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . .
/3/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 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--
(1) TO DETERMINE THE . . . BUDGET . . . OF THE AGENCY . . .
/4/ IN SO DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
/5/ PERSONNEL POLICIES FORUM: TURNOVER AND JOB SATISFACTION, SURVEY
NO. 91, BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C., 1970.
/6/ PERSONNEL POLICIES FORUM: ABSENTEEISM AND ITS CONTROL, SURVEY
NO. 90, BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C., 1970.
/7/ SEE, FOR EXAMPLE, HAYGHE, "MARITAL AND FAMILY CHARACTERISTICS OF
WORKS, MARCH 1977," 101 MONTHLY LABOR REVIEW 51 (FEB. 1978); BEDNARZIK
AND KLEIN, "LABOR FORCE TRENDS: A SYNTHESIS AND ANALYSIS," 100 MONTHLY
LABOR REVIEW 3 (OCT. 1977); JOHNSON AND HAYGHE, "LABOR FORCE
PARTICIPATION OF MARRIED WOMEN, MARCH 1976," 100 MONTHLY LABOR REVIEW 32
(JUNE 1977); GROSSMAN, " . . . MOTHERS IN THE LABOR FORCE," 100 MONTHLY
LABOR REVIEW 41 (JUNE 1977); HAYGHE, "FAMILIES AND THE RISE OF WORKING
WIVES-- AN OVERVIEW," 99 MONTHLY LABOR REVIEW 12 (MAY 1976); HAYGHE,
"MARITAL AND FAMILY CHARACTERISTICS OF WORKERS," 98 MONTHLY LABOR REVIEW
60 (JAN. 1975).
/8/ SEE, FOR EXAMPLE, THE STATEMENT OF CONGRESSMAN CLAY, ONE OF THE
PROPONENTS OF THE "UDALL SUBSTITUTE," DURING THE HOUSE DEBATE ON TITLE
VII OF THE CIVIL SERVICE REFORM ACT OF 1978:
CONGRESSMAN CLAY:
. . . .
THE UDALL SUBSTITUTE CONTAINS A MANAGEMENT RIGHTS CLAUSE
SUBSTANTIALLY ENLARGED BEYOND THAT
IN THE COMMITTEE PRINT. AN IMPORTANT ELEMENT IN OUR AGREEING TO
ENTRUST SUCH AN EXPANDED
MANAGEMENT RIGHTS CLAUSE TO THE HANDS OF THE NEW AUTHORITY IS THE
EXAMPLE OF THE PROTECTION
AFFORDED THE COLLECTIVE BARGAINING PROCESS BY CONSCIENTIOUS SCRUTINY
OF MANAGEMENT CLAIMS OF
INFRINGEMENTS ON MANAGEMENT RIGHTS, ESPECIALLY AS FOUND IN THE TWO
1978 DECISIONS ABOVE. IF
THE NEW AUTHORITY IS FAITHFUL TO THESE INTERPRETATIVE GUIDELINES, THE
ULTIMATE EXERCISE OF THE
SPECIFIED MANAGERIAL RESPONSIBILITY, THE ONLY SUBJECT EXEMPTED FROM
THE BARGAINING OBLIGATION,
WILL BE PROTECTED AND THE GENERAL OBLIGATION TO BARGAIN OVER
CONDITIONS OF EMPLOYMENT WILL BE
UNIMPAIRED. HOWEVER, IT IS ESSENTIAL THAT ONLY THOSE PROPOSALS THAT
DIRECTLY AND INTEGRALLY
GO TO THE SPECIFIED MANAGEMENT RIGHTS BE BARRED FROM THE
NEGOTIATIONS.
124 CONG.REC. H9638(DAILY ED. SEPT. 13, 1978).
SEE ALSO THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN, 124 CONG.REC.
H9649(DAILY ED. SEPT. 13, 1978).
/9/ SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
REGION VIII, SAN FRANCISCO, CALIFORNIA, CASE NO. O-NG-3, 2 FLRA NO.
30,(DEC. 13, 1979), REPORT NO. . . . AT 4 OF THE DECISION.
/10/ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED),
(1966).
/11/ CF. FEDERAL PROPERTY MANAGEMENT REGULATIONS, 41 C.F.R.
101-17.2.
/12/ SEE NOTE 2, SUPRA.
/13/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, . . . ON THE TECHNOLOGY . . . OF
PERFORMING WORK . . .
/14/ IN SO DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
/15/ SECTION 7106(A)(2) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 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--
(A) TO . . . ASSIGN . . . EMPLOYEES IN THE AGENCY . . . ;
. . . .
(C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM--
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE . . . .
/16/ SEE NOTE 2, SUPRA.
/17/ IN SO DECIDING THAT UNION PROPOSAL III IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THAT
PROPOSAL.
/18/ THE UNION INDICATES THAT IT DOES NOT INTEND THE TERMS
"QUALIFIED" AND "WITH REQUISITE SKILLS" TO MEAN THAT AN EMPLOYEE MUST BE
FULLY QUALIFIED TO FILL THE POSITION ON A PERMANENT BASIS IN ORDER TO BE
TEMPORARILY ASSIGNED UNDER THE PROPOSALS AT ISSUE HEREIN. THE PROPOSALS
ARE INTERPRETED AS CONSISTENT WITH THIS INTENT.
/19/ FEDERAL PERSONNEL MANUAL, CHAP. 335, SUBCHAP. 1-4, REQUIREMENT 4
PROVIDES AS FOLLOWS:
SECTION PROCEDURES WILL PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR
NOT SELECT FROM AMONG A
GROUP OF BEST QUALIFIED CANDIDATES. THEY WILL ALSO PROVIDE FOR
MANAGEMENT'S RIGHT TO SELECT
FROM OTHER APPROPRIATE SOURCES, SUCH AS REEMPLOYMENT PRIORITY LISTS,
REINSTATEMENT, TRANSFER,
HANDICAPPED, OR VETERANS READJUSTMENT ELIGIBLES OR THOSE WITHIN REACH
ON AN APPROPRIATE OPM
CERTIFICATE. IN DECIDING WHICH SOURCE OR SOURCES TO USE, AGENCIES
HAVE AN OBLIGATION TO
DETERMINE WHICH IS MOST LIKELY TO BEST MEET THE AGENCY MISSION
OBJECTIVES, CONTRIBUTE FRESH
IDEAS AND NEW VIEWPOINTS, AND MEET THE AGENCY'S AFFIRMATIVE ACTION
GOALS.
/20/ SEE, NOTE 15, SUPRA.
/21/ SEE NOTE 2, SUPRA.
/22/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 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--
(1) TO DETERMINE THE . . . ORGANIZATION . . . OF THE AGENCY
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, . . . ON THE . . . METHODS, AND
MEANS OF PERFORMING WORK
. . .
/23/ IN SO DECIDING THAT THE UNION'S PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSALS.
/24/ SECTION 7103 OF H.R. 11280 AS REPORTED BY THE HOUSE COMMITTEE ON
POST OFFICE AND CIVIL SERVICE PROVIDED, IN RELEVANT PART, AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
. . . .
(14) 'CONDITIONS OF EMPLOYMENT' MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
(A) RELATING TO DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF RACE,
COLOR, RELIGION, SEX,
AGE, NATIONAL ORIGIN, OR HANDICAPPING CONDITION . . . .
/25/ SECTION 7103 OF THE BILL (H.R. 11280) AS PASSED BY THE HOUSE
PROVIDED, IN RELEVANT PART, AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
. . . .
(14) 'CONDITIONS OF EMPLOYMENT' MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
(A) RELATING TO DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF RACE,
COLOR, RELIGION, SEX,
AGE, NATIONAL ORIGIN, OR HANDICAPPING CONDITION, WITHIN AN AGENCY
SUBJECT TO THE JURISDICTION
OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION . . . .
/26/ CF., IN PARTICULAR, SECTION 7202, DEFINITIONS, OF THE BILL (S.
2640) AS PASSED BY THE SENATE. SEE ALSO SECTION 7215, REPRESENTATION
RIGHTS AND DUTIES, OF THE SENATE BILL.
/27/ SECTION 7103 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
. . . .
(14) 'CONDITIONS OF EMPLOYMENT' MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
(A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
OF CHAPTER 73 OF THIS
TITLE;
(B) RELATING TO THE CLASSIFICATION OF ANY POSITION; OR
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE.
/28/ SEE 42 U.S.C. 2000E-- 16.
/29/ SEE, E.G., 5 C.F.R. 713.201FF. AND FEDERAL PERSONNEL MANUAL,
CHAP. 713.
/30/ S. REP. NO. 95-1272, 95TH CONG., 2ND SESS. 154(1978).
/31/ SECTION 7114 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING ALL EMPLOYEES IN
THE UNIT. . . .
. . . .
(4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
UNIT, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD FAITH
FOR PURPOSES OF ARRIVING
AT A COLLECTIVE BARGAINING AGREEMENT. . . .
/32/ SEE NOTE 1, SUPRA.
/33/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 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 . . .
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY. . . .
/34/ IN SO DECIDING THAT SUBSECTION A OF THE SUBJECT PROPOSAL IS
WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE
MERITS OF THAT PORTION OF THE PROPOSAL.
/35/ IT IS NOTED THAT THIS PORTION OF THE PROPOSAL IS ENTIRELY
CONSISTENT WITH FEDERAL EQUAL EMPLOYMENT OPPORTUNITY POLICY, AS
EXPRESSED IN THE FEDERAL PERSONNEL MANUAL (FPM) CONCERNING THE MAXIMUM
UTILIZATION OF SKILLS. IN THIS REGARD, FPM, CHAP. 713, SUBCHAP. 2-4(C)
PROVIDES IN PERTINENT PART:
C. MAXIMUM UTILIZATION OF SKILLS. THE AGENCY SHALL UTILIZE TO THE
FULLEST EXTENT THE
PRESENT SKILLS OF ITS EMPLOYEES. WHERE FEASIBLE, THE AGENCY SHALL
REDESIGN JOBS SO THAT TASKS
NOT REQUIRING THE FULL UTILIZATION OF THE INCUMBENTS' SKILLS BE
ASSIGNED TO JOBS WITH LOWER
SKILL REQUIREMENTS. THIS WILL AFFORD GREATER OPPORTUNITY TO
EMPLOYEES TO PERFECT THEIR
SKILLS, WHILE OPENING UP JOB OPPORTUNITIES FOR PERSONS WITH LOWER
SKILLS. . . .
/36/ CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 66 AND INTERNAL
REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-19, 1 FLRA
NO. 106,(SEPT. 13, 1979), REPORT NO. 16.
/37/ SEE NOTE 33, SUPRA.
/38/ THE PORTIONS OF THE PROPOSAL SET FORTH HEREIN ARE THOSE WHICH
ARE IN DISPUTE. THE WHOLE PROPOSAL IS SET FORTH IN APPENDIX B.
/39/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING
ANY AUTHORITY UNDER
THIS SECTION . . .
. . . .
/40/ IN SO DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
/41/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, CASE NO. O-NG-20, 2 FLRA NO. 16,(NOV. 29, 1979), REPORT NO. .
. . .
/42/ IBID AT 2-4 OF THE DECISION.
/43/ CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTERS 103 AND 111 AND
U.S. CUSTOMS SERVICE, REGION VII, CASE NO. O-NG-16, 2 FLRA NO. 15,(NOV.
29, 1979), REPORT NO. . . . .
/44/ SEE NOTE 15, SUPRA.
/45/ SEE 5 C.F.R. 351.701 - 351.705. SEE ALSO FEDERAL PERSONNEL
MANUAL, CHAP. 351, SUBCHAP. 7.
/46/ 5 C.F.R. 351.201(B). SEE ALSO FEDERAL PERSONNEL MANUAL, CHAP.
351, SUBCHAP. 7-1.B.
/47/ SEE FEDERAL PERSONNEL MANUAL, CHAP. 351, SUBCHAP. 7-3.C.(3).
/48/ SEE FEDERAL PERSONNEL MANUAL, CHAP. 351, SUBCHAP. 7-3.C.(1) -
(2).
/49/ SEE NOTE 2, SUPRA.
/50/ THE AGENCY CITES UNITED STATES V. TESTAN, ET AL., 424 U.S. 392,
406(1976) AND DIANISH, ET AL. V. UNITED STATES, 183 CT.CL. 702(1968).
/51/ IN SO DECIDING THAT THE PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSALS.
/52/ METHODS AND STANDARDS ASSOCIATION AND NAVAL AIR REWORK FACILITY,
NAVAL AIR STATION, PENSACOLA, FLORIDA, CASE NO. O-NG-41, 2 FLRA NO.
34(DEC. 21, 1979), REPORT NO. . . . .
/53/ THE PROPOSAL AT ISSUE IN THE NAVAL AIR REWORK FACILITY CASE
PROVIDED AS FOLLOWS:
UNIT EMPLOYEES WHO ARE NON-COMPETITIVELY, TEMPORARILY ASSIGNED THE
DUTIES OF A HIGHER GRADE
POSITION OVER A PERIOD OF FIVE DAYS OR MORE WILL RECEIVE THE PAY
AUTHORIZED FOR THE HIGHER
GRADE POSITION.
/54/ SEE, E.G., COLEMAN V. UNITED STATES, 100 CT.CL. 41(1943);
DESMOND V. UNITED STATES, 201 CT.CL. 507(1973); 54 COMP.GEN. 263(1974);
57 COMP.GEN. 336(1978).
/55/ SEE NOTE 33, SUPRA.
/56/ UNITED STATES V. TESTAN, ET AL., 424 U.S. 392, 406(1976);
DIANISH, ET AL. V. UNITED STATES, 183 CT.CL. 702(1968).
/57/ SEE FEDERAL PERSONNEL MANUAL, CHAP. 511, SUBCHAP. 1-6; 55
COMP.GEN. 1062(1976); UNITED STATES V. TESTAN, ET AL., 424 U.S. 392,
406(1976).