American Federation of Government Employees, Local 916, AFL-CIO (Union) and Tinker Air Force Base, Oklahoma (Agency)
[ v07 p292 ]
07:0292(45)NG
The decision of the Authority follows:
7 FLRA No. 45
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Union
and
TINKER AIR FORCE BASE, OKLAHOMA
Agency
Case No. O-NG-45
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN 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.).
ACCORDING TO THE TERMS OF A SUPPLEMENTAL AGREEMENT TO THE MASTER
AGREEMENT BETWEEN THE AIR FORCE LOGISTICS COMMAND AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL AGREEMENTS WERE TO REMAIN IN
FORCE EXCEPT FOR THOSE PROVISIONS WHICH CONTAINED MATTERS PROHIBITED
FROM BARGAINING BY SECTION 7106(A) OF THE STATUTE. THE UNDERLINED
PORTIONS OF THE PROVISIONS IN THE INSTANT DISPUTE WERE ALLEGED BY THE
AGENCY TO BE IN THIS CATEGORY. THE ISSUES PRESENTED ARE THE
NEGOTIABILITY OF THESE PROVISIONS.
UNION PROVISION I
ARTICLE XXVIII, DETAILS
SECTION B: . . . PROCEDURES FOR DETAILS TO HIGHER GRADE
NONSUPERVISORY POSITIONS SHALL BE AS FOLLOWS:
(1) SELECTING SUPERVISORS WILL ESTABLISH ROSTERS WITHIN THE LOWEST
ORGANIZATIONAL ENTITY IN WHICH FIVE QUALIFIED CANDIDATES CAN BE
OBTAINED. THE ROSTER WILL INCLUDE FIVE NAMES WITH SUPERVISORY
APPRAISALS BEING THE DETERMINING FACTOR.
. . . .
(3) THE EMPLOYEE LISTED FIRST WILL BE SELECTED UNLESS THE EMPLOYEE
DECLINES. SUBSEQUENT DETAILS WILL BE MADE IN THE SAME MANNER IN EXACT
DESCENDING ORDER OF THOSE EMPLOYEES ON THE ROSTER.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROVISION I IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES, TO ASSIGN WORK, OR TO MAKE
SELECTIONS FOR APPOINTMENTS UNDER SECTIONS 7106(A)(2)(A), (B), AND (C)
OF THE STATUTE, /1/ RESPECTIVELY, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROVISION I, PARAGRAPH (1), IS NOT
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER
SECTION 7106(A)(2)(A), TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B), OR TO
MAKE SELECTIONS FOR APPOINTMENTS UNDER SECTION 7106(A)(2)(C) OF THE
STATUTE, AND, THEREFORE, THE DUTY TO BARGAIN EXTENDS TO THIS MATTER.
UNION PROVISION I, PARAGRAPH (3), IS CONSISTENT WITH SECTION
7106(A)(2)(A) OF THE STATUTE AND, THEREFORE, THE DUTY TO BARGAIN DOES
NOT EXTEND TO THIS MATTER. /2/ ACCORDINGLY, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING UNION PROVISION I, PARAGRAPH (1), /3/
AND IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW
RELATING TO UNION PROVISION I, PARAGRAPH (3), BE, AND IT HEREBY IS,
DISMISSED.
REASONS: UNION PROVISION I, PARAGRAPH (1), PROVIDES IN PART THAT:
"SELECTING SUPERVISORS WILL ESTABLISH ROSTERS WITHIN THE LOWEST
ORGANIZATIONAL ENTITY IN WHICH FIVE QUALIFIED CANDIDATES CAN BE
OBTAINED." THE AGENCY ALLEGES THAT THE REQUIREMENT TO SELECT ONLY
QUALIFIED CANDIDATES FOR DETAILS TO HIGHER GRADED NONSUPERVISORY
POSITIONS WOULD INTERFERE WITH ITS RIGHT TO ASSIGN EMPLOYEES, TO ASSIGN
WORK, AND TO MAKE SELECTIONS FOR APPOINTMENTS.
THE UNION ANALOGIZES THE PROVISION TO ONE ESTABLISHING AN "AREA OF
CONSIDERATION" FOR PROMOTION. IT MAINTAINS THAT THE PROVISION IS
DIRECTED AT ESTABLISHING AN EQUITABLE SELECTION SYSTEM UNDER WHICH THE
"AREA OF CONSIDERATION" FOR FINDING CANDIDATES FOR SELECTION FOR DETAILS
WOULD BE DEFINED AS THE LOWEST ORGANIZATIONAL ENTITY CONTAINING FIVE
QUALIFIED EMPLOYEES. FURTHER, THE UNION EXPLAINS THAT THE TERM
"QUALIFIED" AS USED IN THE PROVISION, DOES NOT ONLY MEAN QUALIFIED FOR
PERMANENT APPOINTMENT TO THE POSITION FOR WHICH A DETAIL IS NEEDED,
ACCORDING TO OFFICE OF PERSONNEL MANAGEMENT STANDARDS. RATHER, IT ALSO
MEANS HAVING THE REQUISITE SKILLS AND, THEREFORE, SUFFICIENTLY QUALIFIED
TO CARRY OUT THE DUTIES REQUIRED FOR THE TEMPORARY ASSIGNMENT OR DETAIL.
FINALLY, THE UNION ASSERTS, THIS PROVISION DOES NOT MEAN THAT ONLY
QUALIFIED CANDIDATES COULD BE SELECTED FOR DETAILS; IT MERELY REQUIRES
THAT THE SEARCH FOR CANDIDATES BE MADE WITHIN THE POOL OF CANDIDATES
ESTABLISHED BY THE PROVISION.
THE UNION'S INTERPRETATION OF THE PROVISION IS CONSISTENT WITH THE
PLAIN LANGUAGE OF THE PROVISION AND IS ADOPTED FOR PURPOSES OF THIS
DECISION. THAT IS, ACCORDING TO THE PROVISION, THE ROSTER FOR SELECTION
FOR DETAILS "WILL INCLUDE FIVE NAMES WITH SUPERVISORY APPRAISALS BEING
THE DETERMINING FACTOR." THUS IT IS APPARENT THAT "QUALIFIED" MEANS
QUALIFIED IN THE JUDGMENT OF MANAGEMENT. CLEARLY THE PROVISION DOES NOT
EQUATE "QUALIFIED" WITH ANY QUALIFICATION STANDARDS FOR PERMANENT
PROMOTION. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 5
FLRA NO. 15 (1981) AT 5 OF THE DECISION. ESSENTIALLY PARAGRAPH (1)
ESTABLISHES A PROCEDURE WHEREBY A POOL OF CANDIDATES FOR DETAILS IS
COMPILED BY MANAGEMENT TO BE READILY AVAILABLE WHEN THE NEED ARISES.
THIS PORTION OF UNION PROVISION I STANDING ALONE IS NOT INCONSISTENT
WITH THE AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES AND WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE, RESPECTIVELY, AND SINCE A DETAIL
IS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A DIFFERENT POSITION FOR A
SPECIFIED PERIOD WITH THE EMPLOYEE RETURNING TO HIS REGULAR DUTIES AT
THE END OF THE DETAIL, AND NOT A SELECTION FOR APPOINTMENT, /4/ SECTION
7106(A)(2)(C) OF THE STATUTE IS INAPPLICABLE TO THIS PROVISION
CONCERNING DETAILS.
UNION PROVISION I, PARAGRAPH (3), HOWEVER, CLEARLY IS INCONSISTENT
WITH THE AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. IT WOULD REQUIRE SELECTIONS FOR DETAILS
TO BE MADE ONLY FROM THE ROSTER ESTABLISHED PURSUANT TO PARAGRAPH (1)
AND "THE EMPLOYEE LISTED FIRST WILL BE SELECTED UNLESS THE EMPLOYEE
DECLINES." THUS, IT WOULD DEPRIVE MANAGEMENT OF ANY DISCRETION IN
SELECTING AND WOULD FORCE MANAGEMENT TO CHOOSE EMPLOYEES FOR DETAILS
ACCORDING TO THE SEQUENCE ESTABLISHED BY THE ROSTER. ADDITIONALLY, THIS
PROVISION WOULD PERMIT EMPLOYEES TO DECLINE TO ACCEPT DETAILS. THUS,
MANAGEMENT COULD NOT DETAIL THE EMPLOYEE WHO WAS NUMBER FIVE ON THE
ROSTER, UNTIL IT OFFERED THE ASSIGNMENT TO EMPLOYEES NUMBER ONE THROUGH
FOUR ON THE ROSTER AND NONE OF THOSE ACCEPTED. BY THE SAME TOKEN,
MANAGEMENT COULD ONLY DETAIL EMPLOYEES LISTED ON THE ROSTER. IT IS WELL
ESTABLISHED THAT THE RIGHT TO ASSIGN AN EMPLOYEE TO A POSITION INCLUDES
THE DISCRETION TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED. SEE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE
LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77
(1980), AT 10 OF THE DECISION, ENFORCED SUB NOM. DEPARTMENT OF DEFENSE
V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1981).
UNDER THIS PROVISION, HOWEVER, MANAGEMENT WOULD NOT BE FREE TO CHOOSE
THE PARTICULAR EMPLOYEE IT WANTED TO ASSIGN TO A DETAIL AND ITS RESERVED
AUTHORITY TO ASSIGN EMPLOYEES UNDER THE STATUTE WOULD BE THEREBY
NEGATED. FOR THESE REASONS, PARAGRAPH (3) OF THE UNION PROVISION I IS
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE AND, THEREFORE, IS NOT WITHIN THE
DUTY TO BARGAIN. /5/
UNION PROPOSAL II
ARTICLE XXVIII, DETAILS
SECTION C: DETAILS THAT WILL NOT BE TO A HIGHER GRADE POSITION FOR
THOSE EMPLOYEES BEING CONSIDERED FOR THE DETAILS WILL BE MADE BY THE
EMPLOYER IN ACCORDANCE WITH THE FOLLOWING:
(1) THE EMPLOYEES HAVING THE LEAST SENIORITY AMONG THOSE BEING
CONSIDERED FOR THE DETAIL SHALL BE SELECTED FIRST.
(2) THE REMAINING EMPLOYEES SHALL BE UTILIZED IN ASCENDING SENIORITY
ORDER ACCORDING TO THE SENIORITY OF THOSE CONSIDERED FOR THE DETAIL.
(3) SUCH DETAILS WILL NOT EXCEED SIXTY DAYS IN DURATION.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROVISION II IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES AND WORK UNDER SECTIONS
7106(A)(2)(A) AND (B) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROVISION II IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
THE STATUTE, AND, THEREFORE, THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS
MATTER. /6/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE
PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROVISION
II BE, AND IT HEREBY IS, DISMISSED.
REASONS: WITH REGARD TO UNION PROVISION II, PARAGRAPH (1) AND (2)
PROVIDE THAT MANAGEMENT MUST CHOOSE EMPLOYEES FOR DETAILS THAT ARE NOT
TO A HIGHER GRADE POSITION IN INVERSE ORDER OF SENIORITY. THIS
REQUIREMENT EFFECTIVELY WOULD PREVENT MANAGEMENT FROM CHOOSING WHICH
PARTICULAR EMPLOYEE WILL BE DETAILED AND, THUS, IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
THE STATUTE. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,
2 FLRA NO. 77(1980), AT 9 AND 10 OF THE DECISION, ENFORCED SUB NOM.
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D .
. . (D.C., CIR. 1981). ACCORDINGLY, PARAGRAPHS (1) AND (2) OF UNION
PROVISION II ARE NOT WITHIN THE DUTY TO BARGAIN.
PARAGRAPH (3) OF UNION PROVISION II WOULD RESTRICT THE DURATION OF A
DETAIL TO A POSITION OF THE SAME OR LOWER GRADE TO SIXTY DAYS. INHERENT
IN THE RIGHT OF MANAGEMENT TO ASSIGN EMPLOYEES IS THE RIGHT TO DECIDE
WHEN SUCH AN ASSIGNMENT SHOULD BEGIN AND END, THAT IS, ITS DURATION, SO
THAT THE WORK INVOLVED WILL BE ACCOMPLISHED. THUS, THE PROVISION, WHICH
DIRECTLY WOULD RESTRICT THIS ASPECT OF THE RIGHT TO ASSIGN EMPLOYEES, IS
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE AND, THEREFORE, IS NOT WITHIN THE
DUTY TO BARGAIN.
UNION PROVISION III
ARTICLE XXIX, LOANS
WHEN EMPLOYEES CONTINUE IN THEIR CURRENT STATUS AND PAY AND ARE
TEMPORARILY ASSIGNED TO OTHER WORK AREAS AT DUTIES CLASSIFIABLE AT
EMPLOYEES' CURRENT TITLES, GRADES, AND SERIES, THE ASSIGNMENTS WILL BE
TREATED AS LOANS. SUCH ASSIGNMENTS WILL NOT REQUIRE OFFICIAL PERSONNEL
ACTIONS. SELECTION FOR SUCH ASSIGNMENTS WILL BE MADE FROM AMONG THOSE
EMPLOYEES DETERMINED BY THE EMPLOYER TO HAVE THE PARTICULAR SKILLS
REQUIRED TO PERFORM THE DUTIES. THEY WILL BE TEMPORARILY ASSIGNED BY
UTILIZING THE EMPLOYEES WITH THE LEAST SENIORITY FIRST AND THEN
UTILIZING THE REMAINING EMPLOYEES IN ASCENDING SENIORITY ORDER ACCORDING
TO THE SENIORITY ROSTER.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROVISION III IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES, TO ASSIGN WORK, OR TO MAKE
SELECTIONS FOR APPOINTMENTS UNDER SECTIONS 7106(A)(2)(A), (B), AND (C)
OF THE STATUTE, RESPECTIVELY, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROVISION III IS NOT INCONSISTENT WITH
THE AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A)
OF THE STATUTE, TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B), OR TO MAKE
SELECTIONS FOR APPOINTMENTS FUNDER SECTION 7106(A)(2)(C), AND,
THEREFORE, THE DUTY TO BARGAIN EXTENDS TO THIS MATTER. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR
AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION
PROVISION III. /7/
REASONS: UNION PROVISION III CONCERNS "LOANS" OF EMPLOYEES TO OTHER
WORK AREAS AT DUTIES CLASSIFIABLE AT EMPLOYEES' CURRENT TITLES, GRADES,
AND SERIES WHILE THE EMPLOYEES CONTINUE IN THEIR CURRENT STATUS AND PAY.
THE PROVISION SPECIFIES THAT THESE LOANS DO NOT REQUIRE OFFICIAL
PERSONNEL ACTIONS AND THAT SELECTION FOR THEM WILL BE MADE FROM AMONG
THOSE EMPLOYEES HAVING THE PARTICULAR SKILLS REQUIRED, AS DETERMINED BY
MANAGEMENT, ON THE BASIS OF INVERSE ORDER OF SENIORITY.
THE AGENCY ALLEGES THAT UNION PROVISION III IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN EMPLOYEES, TO ASSIGN WORK, AND TO MAKE
SELECTIONS FOR APPOINTMENTS BECAUSE IT REMOVES ALL DISCRETION FROM
MANAGEMENT IN DETERMINING WHICH PARTICULAR INDIVIDUAL WILL BE
REASSIGNED. MORE SPECIFICALLY, THE AGENCY ASSERTS THAT A LOAN CLEARLY
FALLS WITHIN THE DEFINITION OF A DETAIL AS SET FORTH UNDER FEDERAL
PERSONNEL MANUAL (FPM), CHAPTER 300, SUBCHAPTER 8-1 WHICH STATES THAT "A
DETAIL IS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A DIFFERENT
POSITION FOR A SPECIFIED PERIOD, WITH THE EMPLOYEE RETURNING TO HIS
REGULAR DUTIES AT THE END OF THE DETAIL." AS SUCH, THE AGENCY CONTENDS
THAT A LOAN, JUST AS A DETAIL, INVOLVES AN ASSIGNMENT OF EMPLOYEES AND
WORK, AND SELECTIONS FOR APPOINTMENTS UNDER SECTIONS 7106(A)(2)(A), (B),
AND (C) OF THE STATUTE.
TURNING TO THE UNION'S RESPONSE TO THE AGENCY'S STATEMENT OF
POSITION, IT CONTAINS THE FOLLOWING:
FIRST, THE PROPOSAL ITSELF CLEARLY QUALIFIES THE TYPES OF DUTIES TO
WHICH EMPLOYEES WOULD
BE ASSIGNED UNDER THE TERM "LOAN" AS THOSE WHICH ARE CLASSIFIABLE AT
EMPLOYEES' CURRENT
TITLES. THIS MEANS THAT A LOAN WOULD EXIST WHEN AN EMPLOYEE WAS
TEMPORARILY ASSIGNED FROM ONE
ORGANIZATIONAL ENTITY TO ANOTHER TO DUTIES WITHIN THAT (EMPLOYEE'S)
JOB DESCRIPTION. THIS IS
MEANT TO DISTINGUISH THIS ACTION FROM A "DETAIL" WHICH PERMITS THE
ASSIGNMENT OF . . . MUCH
DIFFERENT DUTIES, E.G., THE DETAILING OF A MACHINIST TO DO SHEET
METAL WORK . . . . BASED ON THE ABOVE, THE UNION'S STATED INTENT IS
THAT UNION PROVISION III BE APPLIED IN SITUATIONS WHERE THE EMPLOYEE
REMAINS IN THE SAME POSITION, THAT IS, HE OR SHE HAS NOT BEEN ASSIGNED
TO A DIFFERENT POSITION.
ADDITIONALLY, THE UNION'S RESPONSE CONTAINS THE FOLLOWING:
A SIGNIFICANT POINT IN DIFFERENTIATING BETWEEN A LOAN AND A DETAIL IS
THAT A DETAIL IS
CONSIDERED AN OFFICIAL PERSONNEL ACTION AND REQUIRES A FORM 50 TO
DOCUMENT IT, WHILE A LOAN IS
(A) MUCH MORE INFORMAL DEVICE -- USUALLY WORKED OUT AMONG THE
MANAGERS AND SUPERVISORS WITHIN
AN ORGANIZATION AND THE ACTION DOES NOT NECESSARILY GO THROUGH THE
PERSONNEL OFFICE. WITH REFERENCE TO THE REQUIRED DOCUMENTATION OF A
DETAIL, FPM CHAPTER 300, SUBCHAPTER 8-4(C) STATES THE FOLLOWING:
C. RECORDING DETAILS. (1) DETAILS IN EXCESS OF 30 DAYS WILL BE
REPORTED ON STANDARD FORM
52 OR OTHER STANDARD FORM CONSIDERED APPROPRIATE BY THE AGENCY AND
MAINTAINED AS A PERMANENT
RECORD IN OFFICIAL PERSONNEL FOLDERS.
(2) THIS REPORT IS NOT REQUIRED FOR THE DETAIL OF A CAREER OR
CAREER-CONDITIONAL EMPLOYEE
WHO IS BEING ASSIGNED TO PERFORM DUTIES OF A POSITION WHICH IS EITHER
AN IDENTICAL ADDITIONAL
POSITION OR A POSITION OF THE SAME GRADE, SERIES CODE, AND BASIC
DUTIES AS THE POSITION HE IS
REGULARLY ASSIGNED TO . . . .
THE FOREGOING ILLUSTRATES THAT AS LONG AS THERE IS NO POSITION
CHANGE, NO DOCUMENTATION, STANDARD FORM 52, OF A DETAIL IS REQUIRED.
WHEN THE UNION'S STATED INTENT IS CONSIDERED ALONG WITH THE LANGUAGE
OF FPM CHAPTER 300, SUBCHAPTER 8-4(C)(2), IT IS CLEAR THAT UNION
PROVISION III CONCERNS EMPLOYEES WHO ARE TEMPORARILY ASSIGNED TO OTHER
WORK AREAS TO PERFORM THE SAME DUTIES TO WHICH THEY ARE REGULARLY
ASSIGNED. THAT IS, THESE ASSIGNMENTS DO NOT INVOLVE DIFFERENT POSITIONS
OR DIFFERENT DUTIES, BUT MERELY INVOLVE THE TEMPORARY PERFORMANCE BY
EMPLOYEES OF THE DUTIES OF THEIR POSITIONS IN OTHER WORK AREAS. IN THIS
REGARD, UNION PROVISION III BEARS NO MATERIAL DIFFERENCE FROM THE UNION
PROVISION WHICH WAS BEFORE THE AUTHORITY AND HELD TO BE WITHIN THE DUTY
TO BARGAIN UNDER THE STATUTE IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, 5 FLRA NO. 15(1981). IN THAT CASE, THE AUTHORITY
DETERMINED THAT THE UNION PROVISION CONCERNING THE TEMPORARY
PERFORMANCE
BY EMPLOYEES OF THE DUTIES OF THEIR POSITIONS IN A DIFFERENT LOCATION
DID NOT CONCERN THE ASSIGNMENT OF EMPLOYEES OR OF WORK AND WAS WITHIN
THE DUTY TO BARGAIN UNDER THE STATUTE. THEREFORE, FOR THE REASONS FULLY
SET FORTH IN THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO CASE, THE
PROVISION HERE IN DISPUTE MUST ALSO BE HELD TO BE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE SINCE IT IS NOT INCONSISTENT WITH SECTIONS
7106(A)(2)(A) AND (B) OF THE STATUTE AND FOR THE REASONS PREVIOUSLY
STATED SECTION 7106(A)(2)(C) IS INAPPLICABLE TO THIS PROVISION
CONCERNING LOANS OF EMPLOYEES.
ISSUED, WASHINGTON, D.C., DECEMBER 8, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ SECTIONS 7106(A)(2)(A), (B), AND (C) PROVIDE 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 . . .
(B) TO ASSIGN WORK . . .
(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(.)
/2/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT UNION PROVISION I,
PARAGRAPH (3), IS INCONSISTENT WITH SECTION 7106(A)(2)(A) OF THE STATUTE
AND THUS IS NONNEGOTIABLE, IT IS UNNECESSARY TO CONSIDER THE AGENCY'S
ADDITIONAL CONTENTIONS AS TO THE NEGOTIABILITY OF THIS PROVISION.
/3/ IN DECIDING THAT UNION PROVISION I, PARAGRAPH (1), IS WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROVISION.
/4/ SEE FEDERAL PERSONNEL MANUAL, CHAPTER 300, SUBCHAPTER 8-1 QUOTED
INFRA AT 7.
/5/ IT SHOULD BE NOTED THAT IF PARAGRAPH (3) OF UNION PROVISION I
WERE REDRAFTED TO BE CONSISTENT WITH THE WRIGHT-PATTERSON DECISION, IT
WOULD BE AN APPROPRIATE MATTER FOR NEGOTIATION. THAT IS, A PROPOSAL
WHICH WOULD RESERVE TO AGENCY MANAGEMENT THE DECISION WHETHER OR NOT TO
UTILIZE THE ROSTER DESCRIBED IN PARAGRAPH (1) OF UNION PROVISION I, AND
WHICH WOULD SET FORTH A PROCEDURE, IN ACCORDANCE WITH SECTION
7106(B)(2), FOR MANAGEMENT TO OBSERVE IN ASSIGNING EMPLOYEES ON THE
ROSTER TO DETAILS, WOULD BE NEGOTIABLE. SEE DISCUSSION OF
WRIGHT-PATTERSON PROPOSAL III, AT 10 OF DECISION. OF COURSE, THAT PART
OF PARAGRAPH (3) OF UNION PROVISION I IN THE INSTANT CASE WHICH WOULD
GIVE EMPLOYEES THE RIGHT TO DECLINE THEIR SELECTION FOR DETAIL IS
NONNEGOTIABLE BECAUSE IT VIOLATES THE AGENCY'S RIGHT TO ASSIGN EMPLOYEES
UNDER SECTION 7106(A)(2)(A). SEE ASSOCIATION OF CIVILIAN TECHNICIANS
AND STATE OF GEORGIA NATIONAL GUARD, 2 FLRA NO. 75 (1980).
/6/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT UNION PROVISION II IS
INCONSISTENT WITH SECTION 7106(A)(2)(A) OF THE STATUTE AND THUS IS
NONNEGOTIABLE, IT IS UNNECESSARY TO CONSIDER THE AGENCY'S ADDITIONAL
CONTENTIONS AS TO THE NEGOTIABILITY OF THIS PROVISION.
/7/ IN DECIDING THAT UNION PROVISION III IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROVISION.