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17:0538(78)NG
The decision of the Authority follows:
17 FLRA No. 78
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3488
Union
and
FEDERAL DEPOSIT INSURANCE
CORPORATION,
NEW YORK REGION
Agency
Case No. 0-NG-703
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises 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
Employees who are assigned to Puerto Rico or the Virgin Islands
for periods in excess of three weeks will be allowed to return to
their residence every second weekend. Employees will be permitted
to depart from their temporary assignment at a sufficient time to
allow arrival at their residence by 6:00 p.m. on the same day and
depart their residence no sooner than 7:00 a.m. on the next
business day following such weekend.
By its plain language, Union Proposal 1 requires the Agency to grant
employees on temporary duty assignment in Puerto Rico or the Virgin
Islands, on every other weekend, that amount of duty time, i.e., time
which would otherwise be spent performing the work of their positions,
for use in traveling to and returning from their place of residence. As
the Agency indicated, depending on such variable factors as flight
schedules and commuting time to and from points of departure and
destination, the amount of duty time which would be "sufficient" to
complete such travel, given the time limitations stated in the proposal,
could amount to as much as an entire eight hour workday. /1/ In any
event, the effect of the proposal is to preclude the Agency from
assigning work to employees during that portion of the workday which is
required for travel.
In this regard, Union Proposal 1 herein has the same effect as Union
Proposal 1 in American Federation of Government Employees, AFL-CIO,
Local 3424 and Federal Home Loan Bank Board, San Francisco, California,
14 FLRA 79 (1984). In that case, the proposal at issue required the
agency to grant a maximum of three hours of duty time for traveling,
each way, when employees on temporary duty assignment returned to their
residences on the weekends. The Authority held, based on its decisions
in American Federation of Government Employees, AFL-CIO, Local 3483 and
Federal Home Loan Bank Board, New York District Office, 13 FLRA 446
(1983) and National Treasury Employees Union and NTEU Chapter 80 and
Department of the Treasury, Internal Revenue Service, Central Region, 8
FLRA 197 (1982), that because the proposal would preclude the assignment
of work to employees during the duty time on which they were traveling
to their residences, or returning to their temporary duty assignments,
it directly interfered with management's right to assign work under
section 7106(a)(2)(B) of the Statute. /2/ Thus, as Union Proposal 1 at
issue herein similarly would preclude the Agency from assigning work to
employees during that portion of the workday which they are using for
travel to and from their residences, for the reasons set forth in the
FHLBB, San Francisco, FHLBB, New York District Office, and IRS, Central
Region decisions, it directly interferes with management's right to
assign work under section 7106(a)(2)(B) and is outside the Agency's duty
to bargain. /3/
Union Proposal 2
The Union has the right to participate in any stage in the
ranking process and specifically to have a representative on the
ranking panel. Transportation expenses incurred to enable a Union
representative to participate on a ranking penal will be borne by
the employer.
Based on the express language of the proposal, and in the absence of
any persuasive evidence of contrary intent in the record, the Authority
interprets the proposal as requiring Union participation in every phase
of the process whereby management selects an individual to fill a vacant
position, exclusive of the decision to select itself. Under applicable
regulation, /4/ this process involves, among other things, analysis of
the job to be filled to determine the knowledges, skills, and abilities
needed to successfully perform the duties of the position, i.e.,
identification of selective factors; the development of criteria used
to determine whether, and the extent to which, candidates possess those
knowledges, skills, and abilities, i.e., a crediting plan; the rating
of candidates, i.e., the application of the crediting plan or rating
schedule to the information contained in candidate applications to
determine each candidate's "score" or degree of qualification; ranking
the candidates by their "scores"; and preparing a certificate listing
the candidates by ranking for submission to the selecting official. /5/
In this regard, in providing for the Union to participate, among
other things, in that stage of the evaluative process which involves the
identification of the "selective factors" to be used in rating and
ranking candidates for a position, Union Proposal 2 herein has the same
effect as Union Proposals 1 and 2 in National Federation of Federal
Employees, Local 1497 and Headquarters, Lowry Technical Training Center
(ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983). The
proposals at issue in that case provided for a joint labor-management
committee to develop "promotion evaluation patterns," which included
both "selective factors" and "crediting plans." Relying on its decisions
in National Federation of Federal Employees, Local 1167 and Department
of the Air Force, Headquarters, 31st Combat Support Group (TAC),
Homestead Air Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom.
National Federation of Federal Employees, Local 1167 v. Federal Labor
Relations Authority, 681 F.2d 886 (D.C. Cir. 1982), National Federation
of Federal Employees, Local 1431 and Veterans Administration Medical
Center, East Orange, New Jersey, 9 FLRA 998 (1982), and American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.
American Federation of Government Employees v. Federal Labor Relations
Authority, 455 U.S. 945 (1982), the Authority held that those proposals,
by providing for union participation in the decision-making process
whereby management determines the knowledges, skills, and abilities
which are necessary for successful performance of the work of a
position, would directly interfere with management's right to make
selections for appointments to vacant positions under section
7106(a)(2)(C) of the Statute. /6/ As indicated above, Union Proposal 2
at issue in this case similarly would require Union participation in
that stage of the process of evaluation of candidates, prior to
selection, wherein management determines the requisite "selective
factors" to be used in rating and ranking candidates for the vacant
position. Thus, apart from other considerations and for the reasons set
forth in the Lowry Air Force Base decision, and the cases cited therein,
Union Proposal 2 herein directly interferes with management's rights
under section 7106(a)(2)(C) of the Statute and is outside the duty to
bargain. Cf. National Federation of Federal Employees, Local 1001 and
Department of the Air Force, Vandenberg Air Force Base, California, 15
FLRA No. 154 (1984) (Provisions 2 and 3) (provisions providing for union
representative on selection panels to participate both in the
deliberations and discussions attendant upon the decision to select a
particular candidate and in the decision to select itself nonnegotiable
under section 7106(a)(2)(C)).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Union Proposals 1 and 2 be, and it hereby is, dismissed. /7/ Issued,
Washington, D.C., April 15, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Agency Brief at 4-5. The Union tacitly admits to this
interpretation of the proposal when it argues that a "sufficient" amount
of time is whatever amount of duty time is necessary to allow employees
to reach their destinations given the time limitation in the proposal.
Union Brief at 5.
/2/ Section 7106(a)(2)(B) provides, in relevant part:
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(.)
/3/ Both parties argue as to the compelling need for an Agency
regulation, FDIC General Travel Regulation, paragraph 1208(c), which
provides that employees on temporary duty assignments outside the
continental United States may be authorized to return to their
residences on every third weekend and will be authorized up to eight
hours of official time for purposes of such travel. However, in light
of its decision, the Authority finds it unnecessary to address the
compelling need for the cited regulation. Such an agency regulatory
provision constitutes an exercise of management's authority to assign
work under section 7106(a)(2)(B) of the Statute and, therefore, is not
subject to negotiation. American Federation of Government Employees,
AFL-CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent
River, Maryland, 9 FLRA 1039, 1040 (1982).
/4/ See Federal Personnel Manual Supplement 335-1, Appendix B.
/5/ See also National Treasury Employees Union and NTEU Chapters 153,
161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983),
enforcement denied sub nom. U.S. Customs Service, Region II v. Federal
Labor Relations Authority, 739 F.2d 829 (2nd Cir. 1984).
/6/ Section 7106(a)(2)(C) provides:
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--
. . . .
(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(.)
/7/ In light of its decision herein, the Authority finds it
unnecessary to address the Agency's additional contentions as to the
nonnegotiability of the proposals.