09:0813(103)NG - AFGE, SS Local No. 1760 and HHS, SSA -- 1982 FLRAdec NG

 9 FLRA No. 103
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, SOCIAL SECURITY
 LOCAL NO. 1760
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY ADMINISTRATION
 Agency
 
                                            Case No. O-NG-404
 
                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) AND
 PRESENTS ISSUES RELATING TO THE NEGOTIABILITY OF TWO UNION PROPOSALS.
 UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    5.  AFGE LOCAL 1760 RECOGNIZES THE RIGHT OF NEPSC (NORTHEASTERN
 PROGRAM SERVICE CENTER)
 
    MANAGEMENT TO ASSIGN DUTIES TO EMPLOYEES OF THE NEPSC IN ACCORDANCE
 WITH APPLICABLE LAW
 
    HOWEVER MANAGEMENT WILL NOT ASSIGN ANY DUTIES TO ENTREX OPERATORS
 ASSIGNED TO THE MODULES
 
    UNTIL SUCH TIME AS ALL ENTREX OPERATORS ARE ASSIGNED TO MODULES AND
 IT AFFORDS THE UNION THE
 
    OPPORTUNITY TO MEET AND CONFER PURSUANT TO STATUTE.
 
    UNION PROPOSAL 1 EXPRESSLY WOULD CONDITION THE ASSIGNMENT OF "ANY
 DUTIES" TO ENTREX OPERATORS CURRENTLY ASSIGNED TO MODULES UPON THE
 ASSIGNMENT OF ALL ENTREX OPERATORS TO MODULES.  I, THIS RESPECT, THE
 INSTANT PROPOSAL IS NOT MATERIALLY DIFFERENT FROM PROPOSAL V IN NATIONAL
 TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, INTERNAL
 REVENUE SERVICE, 6 FLRA NO.97(1981), WHICH THE AUTHORITY HELD TO BE
 NONNEGOTIABLE.  THE PROPOSAL BEFORE THE AUTHORITY IN THAT CASE WOULD
 HAVE ESTABLISHED, AS A CONDITION PRECEDENT TO THE ASSIGNMENT OF CASES TO
 CERTAIN EMPLOYEES, THAT SUCH EMPLOYEES HAVE MANAGEABLE CASELOADS.  THE
 AUTHORITY RULED THAT THE PROPOSAL WOULD PREVENT THE AGENCY FROM
 ASSIGNING CASES TO EMPLOYEES WHOSE CASELOADS WERE "UNMANAGEABLE" AND
 THEREFORE VIOLATED MANAGEMENT'S RIGHT "TO ASSIGN WORK" UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.  UPON PROPOSAL 1 HEREIN SIMILARLY WOULD
 PRECLUDE THE AGENCY FROM ASSIGNING ANY DUTIES TO ANY ENTREX OPERATORS
 UNTIL ALL OF THEM ARE ASSIGNED TO MODULES.  THUS FOR THE REASONS SET
 FORTH IN INTERNAL REVENUE SERVICE, UNION PROPOSAL 1 HEREIN MUST LIKEWISE
 BE HELD TO BE OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 2
 
    8.  MANAGEMENT WILL AFFORD THE EMPLOYEES IN CLAUSE 5 (REFERRING TO
 EMPLOYEES WHO COULD NOT
 
    PERFORM DUTIES WITH GREATER PHYSICAL EFFORT), WHO DO NOT QUALIFY FOR
 OTHER POSITIONS, THE
 
    TRAINING NECESSARY TO DO SO.
 
    IN AGREEMENT WITH THE UNION, THE AUTHORITY CONCLUDES THAT THIS UNION
 PROPOSAL WOULD NOT INTERFERE WITH ANY RIGHTS RESERVED TO THE AGENCY BY
 THE STATUTE.  RATHER, THE PROPOSAL CONCERNS AN "APPROPRIATE
 ARRANGEMENT," UNDER SECTION 7106(B)(3), FOR EMPLOYEES ADVERSELY AFFECTED
 BY MANAGEMENT'S EXERCISE OF ITS STATUTORY AUTHORITY TO ASSIGN EMPLOYEES
 AND/OR WORK.  /1/ IN THIS REGARD, THE PROPOSAL IN NO WAY AFFECTS THE
 AGENCY'S AUTHORITY TO REASSIGN OR TO TAKE ANY OTHER ACTION WITH RESPECT
 TO ITS EMPLOYEES OR POSITIONS.  /2/ RATHER, IT MERELY WOULD OBLIGATE THE
 AGENCY TO AFFORD EMPLOYEES THE OPPORTUNITY FOR TRAINING WHICH WOULD
 ENABLE THEM TO QUALIFY FOR JOBS MORE COMPATIBLE WITH THEIR PHYSICAL
 CAPABILITIES.  THERE IS NOTHING IN THE EXPRESS LANGUAGE OF THE PROPOSAL
 WHICH WOULD MANDATE TRAINING DURING DUTY HOURS, OR OTHERWISE DEPRIVE THE
 AGENCY OF DISCRETION CONCERNING THE METHODOLOGY, SCHEDULING, DURATION,
 TYPE, CONTENT, AND OTHER CHARACTERISTICS OF THE TRAINING ITSELF.  /3/
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW RELATING TO UNION PROPOSAL 1 BE, AND IT HEREBY IS, DISMISSED.  IT
 IS FURTHER ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE
 AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL 2.
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEM0ER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO,
 LOCAL 121 AND U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON, D.C., 8 FLRA
 NO. 35(1982) (UNION PROPOSAL 2).
 
    /2/ CF. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1624 AND AIR
 FORCE CONTRACT MANAGEMENT DIVISION, HAGERSTOWN, MARYLAND, 3 FLRA
 142(1980) (PROPOSAL TO DETAIL EMPLOYEES OR TO REDESIGN THEIR JOBS TO
 RENDER THEIR DUTIES COMPATIBLE WITH PHYSICAL LIMITATIONS HELD
 NONNEGOTIABLE).
 
    /3/ IN FINDING UNION PROPOSAL 2 NEGOTIABLE, THE AUTHORITY MAKES NO
 JUDGMENT AS TO ITS MERITS.