25:0113(9)NG - International Plate Printers, Die Stampers and Engravers Union of North America, Local 2 and Treasury, Bureau of Engraving and Printing, Washington, DC -- 1987 FLRAdec NG
[ v25 p113 ]
25:0113(9)NG
The decision of the Authority follows:
25 FLRA No. 9
INTERNATIONAL PLATE PRINTERS,
DIE STAMPERS AND ENGRAVERS UNION
OF NORTH AMERICA, AFL-CIO, LOCAL 2
Union
and
DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
WASHINGTON, D.C.
Agency
Case No. 0-NG-364
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The issues presented
concern the negotiability of the following 36 provisions contained in
the parties' locally executed agreement which were disapproved during
review of that agreement by the Agency head under section 7114(c) of the
Statute.
II. Provision 1
ARTICLE I - PRECEDENTS OF LAW AND REGULATION
In the administration of all matters covered by this Agreement,
officials and employees are governed by existing or future laws
and regulations of appropriate authorities, including policies set
forth in the Federal Personnel Manual; by published Treasury
Department and Bureau policies and regulations in existence at the
time the Agreement was approved, and by agency policies and
regulations required by law or by the regulations of appropriate
authorities or authorized by the terms of the controlling
agreement at a higher agency level.
The Employer agrees that provisions of this Agreement shall
supersede the application of existing or newly established
Treasury or Bureau policies, regulations or work rules wherever
any such policy, regulation or work rule conflicts with any
provision of this Agreement. (Only the underlined portions are in
dispute.)
A. Positions of the Parties
The Agency contends that Provision 1 is outside the duty to bargain
under section 7117(a)(2) of the Statute because it would allow the
collective bargaining agreement to prevail over conflicting agency
regulations, even if the Authority has not found that "no compelling
need" exists for the regulations. The Agency also argues that the
provision is inconsistent with section 7116(a)(7) of the Statute.
The Union disputes the Agency's contentions
B. Analysis and Conclusion
We find that Provision 1 is to the same effect as the provisions
which the Authority found within the duty to bargain in National
Treasury Employees Union and Department of the Treasury, Internal
Revenue Service, 13 FLRA 554 (1983) and National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983
(1982) (Article 2 sections 1A and B, Article 32 section 10A, and Article
40 section 3), remanded as to other matters, No. 82-2225 (D.C. Cir. Jan.
19, 1984), vacated by FLRA as to other matters, May 3, 1984. Those
provisions similarly provided that the parties' agreement would take
precedence over existing (Internal Revenue Service) or
subsequently-issued (Internal Revenue Service and U.S. Customs Service)
agency rules or regulations with which it conflicted. The Authority
found that the provision in Internal Revenue Service was not
inconsistent with section 7117(a) of the Statute because the burden is
on an agency to show that a provision conflicts with a specific agency
regulation for which it has a compelling need. The Agency in this case,
like the agency in Internal Revenue Service, has not shown that a
conflict exists between any internal regulation and any provision of the
parties' agreement. Also, the Authority found that the provision in
U.S. Customs Service was not inconsistent with section 7116(a)(7) of the
Statute because, once a collective bargaining agreement becomes
effective, subsequently issued rules and regulations, with one statutory
exception, cannot nullify the agreement's terms. Accordingly, for the
reasons set forth more fully in the Internal Revenue Service and U.S.
Customs Service cases, we conclude that Provision 1 is within the duty
to bargain.
III. Provisions 2-4
ARTICLE VII - UNION REPRESENTATION
(Provision 2)
Section 1. (c) The number of Advisorymen shall be that required
to assure that each employee in the unit (has) ready access to an
Advisoryman on his workshift and in his section.
(Provision 3)
The FLRA Members disagree over the negotiability of this provision.
The majority opinion on Provision 3 is on page 36 of this decision;
Chairman Calhoun's dissent is on page 41.
(Provision 4)
Section 8. The Employer agrees that it will do everything
reasonable to avoid the necessity of detailing or reassigning an
advisoryman from one work area to another or from one shift to
another.
However, if such detail or reassignment is necessary, notice
will be given to the advisoryman involved as soon as possible
after the Employer becomes aware of the need.
It is understood that this section will be implemented
consistent with seniority and employee capability for the detail
or reassignment. (Within this provision only the underlined
portion is in dispute.)
A. Positions of the Parties
The Agency contends and the Union disputes that Provisions 2 and 4
violate management's right to assign employees under section
7106(a)(2)(A) of the Statute.
B. Analysis and Conclusions
Provision 2 would set a standard for the number of stewards
(advisorymen) the Union will designate for each workshift and in each
section. The Union states that the intended effect of the provision is
that "the Union be permitted to designate a new advisoryman wherever a
change in shift assignment occurs." Union Response at 9.
The Authority finds that the Agency's claim under the provision
affects its right to assign employees under section 7106(a)(2)(A) is
based on a misinterpretation of the provision. The provision, by its
language and stated effect, is not concerned with assigning employees
but with designating as stewards employees already assigned by the
Agency. Provision 2, therefore, constitutes a procedure which would
enable the Union to implement its statutory rights and duties with
respect to the representation of employees. It does not conflict with
the Agency's rights and is within the duty to bargain. See American
Federation of Government Employees, AFL-CIO, Local 2272 and Department
of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
1014-15 (1982) (Union Proposal 7).
The disputed portion of Provision 4 provides that when management
details or reassigns advisorymen with respect to shifts or work areas,
it will do so consistent with seniority and employee capability. There
is no indication in the record that, by changing shifts or work areas,
these employees would perform duties other than those which the Agency
has already assigned to their positions. We find that, insofar as
Provision 4 concerns the particular shift on which employees will
perform previously assigned duties, it does not violate the Agency's
right to assign employees. Similarly, we also find that the portion of
Provision 4 which relates to work areas is merely concerned with where
employees will perform those duties which management has previously
assigned to their positions and does not violate the Agency's right to
assign employees. See American Federation of Government Employees,
AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 5 FLRA 83 (1981). Accordingly, Provision 4 is within the
duty to bargain.
IV. Provisions 5-9
ARTICLE X - OVERTIME
(Provision 5)
Section 4. The Employer may require employees to work overtime
when there are not sufficient qualified volunteers to meet
production needs. In such situation, all apprentices and
intermediates capable of doing the work must be scheduled first;
then all journeymen shall be scheduled on an inverse seniority
basis until the requirement is met.
(Provision 6)
Section 7. Employees may be asked but not required to work
weekends or holiday overtime on a shift other than their normal
basic work week shift.
(Provision 7)
Section 8. No employee shall be required to start the next
regular day of work until the expiration of 8 hours from the time
released from duty on the last shift worked.
(Provision 8)
Section 11. Except when precluded by unusually heavy
workloads, no employee will be required to work overtime on a
compulsory basis. Further, when an employee is required to work
one or more days of overtime during two consecutive weekends, he
shall be guaranteed the right to refuse to work overtime on the
next weekend during which compulsory overtime is required of any
employee. (This provision shall not become effective until 1 year
after ratification of this Agreement.)
(Provision 9)
Section 12. An employee shall have the right to refuse an
overtime assignment provided he has a legitimate reason and a
qualified employee is available to take his place.
A. Positions of the Parties
The Agency contends that Provisions 5-9 violate its rights to assign
and direct employees under section 7106(a)(2)(A) of the Statute and to
assign work under section 7106(a)(2)(B) of the Statute.
The Union contends that the provisions constitute procedures to be
observed by management in assigning overtime work and appropriate
arrangements for employees adversely affected by such assignments, and
are negotiable under section 7106(b)(2) and (3) of the Statute.
B. Analysis and Conclusions
Provision 5 establishes that when there are too few overtime
volunteers, the Agency would require overtime work of qualified
employees, including apprentices and intermediates found by the Agency
to be capable of doing the work, using inverse seniority. Provision 9
would allow an employee to refuse overtime for a "legitimate reason," if
the Agency can find a replacement who is both available and qualified to
perform the work. These provisions are to the same effect as Provision
2 in National Federation of Federal Employees, Local 1622 and U.S.
Commissary, Fort Meade, Maryland, 16 FLRA 998 (1984) which provided that
an employee shall be relieved of an overtime assignment where another
"qualified" employee was available and willing to work. The Authority
found that as the provision in that case constituted a procedure which
reserved to management the right to determine whether an employee was
qualified, it therefore did not violate the agency's rights to assign
employees or assign work. Provisions 5 and 9 in this case leave to the
Agency the discretion to determine when overtime work is required and
whether employees are qualified to perform that work. These provisions
constitute procedures by which the Agency will select employees for
overtime assignments whom it has determined to be qualified to perform
the overtime work and are within the duty to bargain under section
7106(b)(2) of the Statute. In view of our finding that these provisions
constitute procedures which do not substantively interfere with the
Agency's rights, it is unnecessary to determine whether they are
appropriate arrangements.
Provisions 6, 7, and 8 would directly interfere with the Agency's
ability to assign overtime work. The Authority has held that a
provision which would prohibit an agency from assigning duties to an
employee unless that employee volunteered to accept those duties
violates the agency's right to assign work under section 7106(a)(2)(B)
of the Statute. See International Organization of Masters, Mates, and
Pilots and Panama Canal Commission, 11 FLRA 115 (1983) (Provisions 4, 5,
and 6). The Authority has also held that the right to direct employees
under section 7106(a)(2)(A) involves the right to supervise and guide
them in the performance of their duties. See National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 768, 775 (1980), affirmed sub nom. National Treasury
Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C.
Cir. 1982). The right to direct employees is therefore reflected in the
supervisory function of assigning work to employees.
Because these provisions only concern when employees will perform
duties already assigned to them, they do not also violate the Agency's
right under section 7106(a)(2)(A) to assign employees to positions. See
American Federation of Government Employees, AFL-CIO, National Joint
Council of Food Inspection Locals and Department of Agriculture, Food
Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982) (Union
Proposal 1).
Specifically, Provision 6 would prohibit the Agency from assigning
weekend or holiday overtime work to employees who do not regularly work
the corresponding weekday shift. Provision 7 would prevent the Agency
from assigning an employee to another shift unless 8 hours have elapsed
since the end of that employee's previous shift. The first sentence of
Provision 8 would preclude the Agency from requiring any employee to
work overtime unless the overtime work is necessitated by an "unusually
heavy" workload. The second sentence of Provision 8 would prohibit the
Agency from requiring weekend overtime work by an employee if the
employee had been required to work overtime two consecutive weekends.
Provisions 6, 7, and the second sentence of Provision 8 would directly
interfe-e with management's rights to assign work and direct employees
by preventing management from assigning overtime work to particular
employees under certain circumstances. Similarly, the first sentence of
Provision 8 would prevent the Agency from requiring employees to work
overtime in all but one circumstance. See National Treasury Employees
Union and Department of the Treasury, Internal Revenue Service, 6 FLRA
508 (1981) (Proposal V). Unlike Provisions 5 and 9, Provisions 6, 7,
and 8 would not leave the Agency with discretion to determine whether
employees it considered to be qualified were available to perform the
overtime work. Rather than establishing negotiable procedures by which
work that was already assigned will be performed on overtime, each of
these provisions would directly interfere with management's rights to
direct employees under section 7106(a)(2)(A) and to assign work under
section 7106(a)(2)(B).
We turn now to whether Provisions 6, 7, and 8 constitute "appropriate
arrangements" within the meaning of section 7106(b)(3). Subsequent to
the filings in this case the Authority issued National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986), in which it stated that henceforth it would determine
whether a proposal constitutes a negotiable appropriate arrangement
under section 7106(b)(3) of the Statute by determining whether the
proposal "excessively interferes" with the exercise of management's
rights. In making such a determination, we will first examine the
record in each case to ascertain as a threshold question whether a
proposal is in fact intended to be an arrangement for employees
adversely affected by management's exercise of its rights. If we
conclude that a proposal is in fact intended as an arrangement, we will
then determine whether the proposed arrangement is appropriate or
whether it is inappropriate because it excessively interferes with the
exercise of a management right.
We find that the Union intends Provision 6, 7, and 8 each to be an
arrangement for employees adversely affected by management's exercise of
its rights to direct employees and assign work. The Union intends to
ameliorate the adverse effects on employees of the assignment by
management of overtime work in some circumstances by allowing employees
to refuse certain overtime assignments. Union Response at 16-17. The
proposed amelioration could totally preclude the Agency from exercising
its rights to direct employees and assign work and would prohibit the
Agency in the stated circumstances from assigning overtime work to an
employee who refused the assignment. A proposed amelioration which
totally abrogates the exercise of a management right does not constitute
an appropriate arrangement within the meaning of section 7106(b)(3).
See American Federation of Government Employees, AFL-CIO, Local 3186 and
Department of Health and Human Services, Office of Social Security Field
Operations, Philadelphia Region, 23 FLRA No. 30, slip op. at 3 (1986)
(Union Proposal 1).
Consequently, we find that Provisions 6, 7, and 8 constitute neither
negotiable procedures under section 7106(b)(2) nor negotiable
appropriate arrangements under section 7106(b)(3) of the Statute and are
outside the duty to bargain.
V. Provisions 10-16
ARTICLE XVII - ASSIGNMENT AND DETAIL
(Provisions 10 and 11)
The FLRA Members disagree over the negotiability of Provisions 10 and
11. The majority opinion on these provisions is on page 43 of this
decision; Member Frazier's separate opinion concurring in part and
dissenting in part is on page 47.
(Provision 12)
Section 3. During the basic work week, excluding holiday or
overtime periods, any employee who notifies his supervisor that he
will be no more than one hour late in arriving at his section and
arrives no more than one hour late will be given a craft-related
assignment without regard to his seniority. If an employee is a
few minutes late in arriving at his section through no fault of
his own, he will be given his normal press assignment. If a press
is not operable at the start of a shift but will be ready within a
two (2) hour period, the employee will be assigned or detailed to
that press provided make-ready to be accomplished would require
that period of time.
(Provision 13)
Section 4. When a press becomes idle, the employee assigned to
that press shall be detailed to another press according to
seniority, assigned to craft-related duties or permitted to make a
pass if consistent with production requirements. In instances
where the shutdown occurs after the start of the shift for
operational reasons, the employee assigned to that press shall be
detailed to another press without regard to seniority.
(Provision 14)
The majority opinion on this provision is on page 37 of this
decision. Chairman Calhoun's concurring opinion is on page 41.
(Provision 15)
Section 7. Acting foremen trained to supervise an area shall not
work presses there until entitled to such assignment by virtue of
seniority. In recognition of this principle and the Employer's
right to train acting supervisors on any type of equipment
regardless of seniority, it is agreed that such training:
1. Shall not be qualifying training for assignment to that
area as a plate printer.
2. Shall not exceed 15 working days.
(Provision 16)
Section 8. Details, assignments and reassignments (including
shift changes) will be made on the basis of seniority if
sufficient numbers of trained employees do not volunteer or if too
many trained employees volunteer.
A. Positions of the Parties
The Agency contends that Provisions 12-16 violate its rights under
section 7106(a)(2)(A) and (B) of the Statute to assign employees and to
assign work.
The Union contends that the provisions constitute procedures to be
observed by the Agency in exercising its rights to assign employees
particular duties and appropriate arrangements for employees adversely
affected by such assignments, and are negotiable under sections
7106(b)(2) and (3).
B. Analysis and Conclusions
Provisions 12 and 13 require the Agency to assign or refrain from
assigning specific work duties without regard to what work the Agency
wishes to accomplish. Accordingly, Provisions 12 and 13 do not
constitute negotiable procedures because they would directly interfere
with the Agency's rights to assign employees and assign work. See
discussion of Provisions 6-8 above. With regard to whether these
provisions constitute negotiable appropriate arrangements under section
7106(b)(3) of the Statute, as intended by the Union, the provisions
would require the Agency to exercise or refrain from exercising its
rights to assign employees or work regardless of what work the Agency
wishes to accomplish. The Agency could be required to either assign
work where it is unnecessary or not assign work when it would be
beneficial. The detriment to the exercise of management's rights
outweighs any benefit the employees would receive from the proposed
amelioration. Accordingly, the Authority finds that Provisions 12 and
13 excessively interfere with the exercise of management's rights, and
are outside the duty to bargain.
Provision 15 is to the same effect as the last sentence of Union
Proposal 1 in American Federation of Government Employees, AFL-CIO,
National Joint Council of Food Inspection Locals and Department of
Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA
663 (1982) which the Authority held to be outside the duty to bargain.
The Authority found that the proposal, which would have prohibited the
agency from assigning certain duties to supervisory personnel,
interfered with the agency's right to assign work by prohibiting it from
determining which employees should receive particular work assignments.
Provision 15 likewise concerns acting supervisors who, by definition,
occupy different positions from and perform different work than
non-supervisors. Since Provision 15 would directly interfere with the
Agency's ability to determine which employees will receive which work
assignments and training, in violation of management's rights to assign
employees and assign work, it does not constitute a negotiable
procedure.
Provision 15 was intended as an appropriate arrangement to ameliorate
the adverse effect on employees of management's decision to assign
certain work to acting supervisors. In Kansas Army National Guard,
discussed above with respect to Provisions 6-8, the Authority stated
that one of the factors it will consider in deciding whether a proposal
excessively interferes is the impact of the proposal on the exercise of
management's rights. The first sentence of Provision 15 would prohibit
the Agency from assigning duties to acting supervisors unless the
supervisors were "entitled" to the assignment on the basis of seniority.
The remainder of Provision 15 would severely limit the Agency's ability
to determine the type of training to which it could assign acting
supervisors and what training is necessary to qualify employees to
perform particular duties. The Authority finds that the limitations on
management's rights to assign employees and assign work outweigh any
benefit that would accrue to the employees from the proposed
arrangement. Consequently, Provision 15 excessively interferes with the
Agency's rights under section 7106(a)(2)(A) and (B) of the Statute and
is outside the duty to bargain.
Provision 16 applies to journeymen plate printers who perform the
same duties. The provision also recognizes the Agency's right to
determine whether employees are "trained and capable of performing the
duties required by a particular piece of equipment and work processes
associated with the work order to be filled." Union Response at 22. To
the extent that Provision 16 would establish seniority as the criterion
for selecting on which shift or in which section the employees will
perform the duties already assigned to their positions, it does not
violate the Agency's right to assign employees to different positions or
assign work. See discussion of Provision 4 above. Consequently,
Provision 16 is within the duty to bargain.
VI. Provisions 17-20
ARTICLE XVIII - JOINT APPRENTICESHIP PROGRAM
(Provision 17)
Section 1. It is in the interest of both the Employer and the
Union that apprentices receive training sufficient to enable them
to perform satisfactorily as journeyman plate printers in the
Bureau of Engraving and Printing. Accordingly, a Joint
Apprenticeship Committee, composed of two members named by the
Union and two members named by the Employer, is hereby
established.
(Provision 18)
Section 3. The selection of all training instructors within the
unit will be a joint effort by the Union and management and must
be approved by all parties concerned. These instructors will make
a written report to the Committee on the progress of all
apprentices upon completion of each training module.
(Provision 19)
Section 5.
(a) The Apprentice Training Program shall contain the following
basic elements:
(1) Orientation program consisting of six months of classroom
training; details to work areas of related crafts and processes
for observation; and assignment to rotary and other presses and
special work for training purposes. Orientation activities may
extend beyond the first six months of training but shall be
completed before the end of the second full year of training.
(2) Two years of on-the-job training on high speed equipment,
including at least two sheet-fed and two web-fed presses, as an
additional press operator under guidelines to be established by
the Joint Apprenticeship Committee.
(3) Final evaluation period where apprentices are to be
encouraged to perform full production work or, if necessary,
receive additional on-the-job or other training. During this
phase of the program, employees will be assigned as regular
members of the press crew.
(b) The Employer agrees not to change items (1) through (3)
above unless:
(1) The change is based on a change in production equipment,
work emergency or pressing work situation; and
(2) The proposed change has been submitted to the Joint
Apprenticeship Committee and the Committee has notified the
Employer that it has no objection to the proposed change.
(Provision 20)
Section 6. The duration of the Plate Printer Apprenticeship
shall be 8,320 hours in an in-pay status, including overtime. In
order to assure a minimum of training, the following types of
absence and their impact on the training period will apply:
(a) Absence on Court Leave and Military Leave WILL count toward
training time.
(b) Continuation of pay incident to a compensation claim WILL
NOT count toward training time.
(c) Time spent in AWOL and LWOP status WILL NOT count toward
training time.
A. Positions of the Parties
The Agency contends that Provision 17 violates its right under
section 7106(a)(2)(B) to assign work by requiring it to assign the
"responsibilities, duties, and work of the Joint Apprenticeship
Committee" to the employees selected by the Union. Additionally, the
Agency contends that Provision 18, by allowing the Union to participate
in the process of selecting training instructors, violates its rights
under section 7106(a)(2)(A) to assign employees, under section
7106(a)(2)(B) to assign work, and under section 7106(a)(2)(C) to make
selections for positions. As to Provisions 19 and 20, the Agency argues
that these provisions would establish the specific elements and duration
of the Apprentice Training Program in violation of its right to assign
work.
The Union contends that its participation in the Joint Apprenticeship
program constitutes an appropriate use of official time under section
7131(a) of the Statute. The Union further contends that the oversight
functions performed by its representatives on the committee are
authorized under sections 7114(a)(2)(A) and 7131(d) of the Statute. As
to Provisions 18-20, the Union contends that its participation in the
selection of training instructors and specification of minimum
requirements constitutes procedures which do not violate management's
rights to assign work or employees. The Union argues that these
provisions carry out requirements for apprenticeship programs set forth
in federal law and regulation.
B. Analysis and Conclusions
The Authority has consistently held that the management rights
enumerated in section 7106 include more than merely the right to decide
to take the final actions specified. Instead, the exercise of these
rights also encompasses the right to take certain actions integral to
the exercise of management's rights, such as to discuss and deliberate
concerning the relevant factors on which such a determination will be
made. Allowing union participation on a committee whose work involves
deliberations related to the exercise of management's rights would
itself interfere with the agency's rights by allowing the union to
interject itself into the agency's deliberative process. See American
Federation of Government Employees, AFL-CIO, Mint Council 157 and
Department of the Treasury, Bureau of the Mint, 19 FLRA No. 81 (1985)
(Provision 3) (union participation on promotion rating panel interferes
with management's right to select); National Federation of Federal
Employees, Local 1431 and Veterans Administration Medical Center, East
Orange, New Jersey, 9 FLRA 998 (1982) (union representation on a
Professional Standards Board and Position Management Committee
interferes with the agency's rights under section 7106 of the Statute).
Provision 17 would establish a Joint Apprenticeship Committee
composed of two Union-named and two Agency-named members. The
responsibilities of this committee are enumerated throughout Article
XVIII of the collective bargaining agreement, most specifically in
Section 2 of the Article, which is not in dispute. Essentially the
Committee would monitor the administration of the Bureau of
Apprenticeship and Training (BAT) program. This program ensures that
employees apprentices receive sufficient training under standards
established by the Department of Labor to enable them to perform
satisfactorily in the skilled trade of plate printing. The Authority
has held that the assignment of training, including decisions as to the
type of training to be assigned and the frequency and duration of
training, constitutes an exercise of management's right under section
7106(a)(2)(B) to assign work. See National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588 (1981) (Union Proposals I-III). Provision 17
would interject the Union into the deliberative process by which the
Agency exercises its rights to assign training and determine the amount
and type of training required to become a journeyman plate printer.
Consequently, Provision 17 would directly interfere with management
rights and is outside the duty to bargain. Compare American Federation
of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the
Army, U.S. Army Adjutant General Publication Center, St. Louis,
Missouri, 14 FLRA 438 (1984), in which the Authority found that a
proposal to establish a joint labor-management committee to develop the
agency's training program constituted a negotiable procedure. The
Authority determined that the committee in that case constituted a forum
by which the union could participate in the evaluation of training needs
and the formulation of programs to meet those needs rather than a forum
for negotiating the content of the agency's training. The Authority
concluded that the proposal did not violate the agency's right to assign
work. Although the Union contends that Provision 17 concerns union
representation under section 7114(a)(2)(A) and official time under
section 7131, we do not find these contentions persuasive.
As to Provision 18, the Authority has held that an agency's rights to
assign employees and assign work under section 7106(a)(2)(A) and (B) of
the Statute include the rights to determine the particular employee and
duties to be assigned to a position. See American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 613, 622-23 (1980)
(Proposals IV, V, and VI - assign employees) (Proposal XI - assign
work), enforced sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert.
denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). By subjecting to
joint union-management approval the determination as to which employees
will also serve as training instructors for the BAT program, Provision
18 would directly interfere with the Agency's rights to assign employees
and assign work and is outside the duty to bargain. In view of this
determination, it is unnecessary to decide whether the provision also
violates the Agency's right to make selections for positions.
With respect to Provisions 19 and 20, the Authority held in National
Association of Air Traffic Specialists and Department of Transportation,
Federal Aviation Administration, 6 FLRA 588 (1981) (Union Proposals
I-III) that a proposal which would prescribe the type of training to be
assigned as well as its frequency and duration is inconsistent with an
agency's right to assign work under section 7106(a)(2)(B). Provisions
19 and 20 in this case similarly require the Agency to provide specific
training to unit employees and set the duration of that training in
violation of the Agency's right to assign work. As to the Union's
contention that the provisions implement minimum requirements for
apprenticeship programs established by Federal law and regulation, the
Union itself concedes that compliance with those requirements is
voluntary. Union Response at 31. Consequently, for the reasons set
forth in Federal Aviation Administration, Provisions 19-20 are outside
the duty to bargain.
VII. Provision 21
ARTICLE XX - JOB DESCRIPTIONS, INDUSTRIAL ENGINEERING STUDIES AND
JOB
CONTENT CHANGES
Section 4. The Employer agrees to negotiate with the Union before
imposing any additional administrative work requirements on
bargaining unit employees.
A. Positions of the Parties
The Agency contends that Provision 21, by requiring it to negotiate
with the Union prior to assigning additional work requirements, violates
its rights under section 7106(a)(2)(B) to assign work and under section
7106(a)(2)(D) to take necessary action to carry out its mission during
emergencies.
The Union contends that the provision merely guarantees that the
Agency will negotiate concerning procedures and appropriate arrangements
prior to imposing additional administrative work requirements.
B. Analysis and Conclusion
The interpretation of Provision 21 suggested by the Union is
consistent with the language of the provision and is adopted for
purposes of this decision. We find that the provision would not prevent
the Agency from assigning additional duties to unit employees. Rather,
it applies only when the Agency is obligated to bargain over the impact
and implementation of the assignment of such additional duties which
constitute a change in conditions of employment. In this circumstance,
the provision requires the Agency to provide the Union with advance
notice of such a change and an opportunity to negotiate, consistent with
section 7106(b)(2) and (3), procedures to be observed in the
implementation of and appropriate arrangements for employees adversely
affected by the decision to impose additional work requirements.
Contrary to the Agency's contentions, the negotiation of procedures and
appropriate arrangements does not violate management's rights under
section 7106, but is the result of management's exercise of those
rights. Consequently, Provision 21 is within the duty to bargain.
VIII. Provisions 22 and 23
ARTICLE XXI - DISCIPLINARY AND ADVERSE ACTIONS
(Provision 22)
Section 1.
(a) The Employer has the sole responsibility for initiating and
effecting all forms of discipline. Disciplinary action will be
taken solely for the purpose of correcting offending employees,
maintaining discipline and morale among other employees and
promoting the efficiency of the Bureau. The type of discipline
selected shall be the minimum that can be reasonably expected to
achieve a proper disciplinary objective. As a general rule,
discipline shall be effected by the employee's immediate
supervisor on his own initiative in situations of a minor nature.
Formal disciplinary measures, such as official reprimands,
suspensions and removals, will be used for more serious offenses
or when informal disciplinary actions have not corrected
unacceptable patterns of delinquency or misconduct.
(b) All formal disciplinary measures shall be effected in a
prompt, fair and equitable manner; only for specific cause; and
with the employee's rights fully protected. In deciding what if
any penalty is appropriate, the Employer must give consideration
to all factors involved, including the gravity and frequency of
the offense; the existence of mitigating circumstances and the
employee's previous disciplinary record. To the extent
applicable, the Employer shall also consider whether the action
accords with justice in a particular situation, the nature of the
position occupied by the employee and years of service with the
Bureau.
(c) Written warnings, letters of reprimand and similar
disciplinary materials may be removed from the Official Personnel
Folder after one year at the request of the employee, his
supervisor or a higher management official provided that the
request is based on demonstrated improvement in the employee's
conduct. In no case will the Employer base disciplinary action on
prior misconduct or derelictions which have not been made known to
the employee through formal or informal disciplinary action.
(d) In all formal disciplinary actions employees ahll have the
right to raise any defense allowed by applicable law, regulations
or this Agreement. In all such cases, the employee at his option
may be represented by the Union, an attorney or other properly
designated representative.
(e) Union representation shall be provided at an interview or
examination of an employee in the unit by any representative of
the agency (including security officials) in connection with an
investigation, if the employee reasonably believes that the
examination may result in disciplinary action and the employee
requests representation.
(Provision 23)
Section 2. Except where emergency suspensions governed by 5
C.F.R. Section 752.404 are involved, suspensions of 14 days
duration or less cannot be instituted unless all of the following
procedures are followed:
(a) The employee must receive written notice of the proposed
action at least 15 calendar days prior to the effective date of
the disciplinary action. This action shall detail the specific
reasons for any proposed suspension in a manner which will enable
the employee to understand and defend himself against all charges
made. Upon request, the employee will also be furnished with
copies of pertinent portions of all written documents which
contain evidence relied on by the Employer or which form the basis
for the charges.
(b) An employee may make an oral or written reply within 7 days
of receipt of the proposed disciplinary action. If the reply is
oral, the supervisor will make a summary of the reply and provide
a copy to the employee.
(c) Before discipline is imposed, the employee shall receive a
written decision stating the specific reasons for the suspension.
This decision shall be based only upon the reasons and grounds
specified in the notice of proposed action. It shall specifically
address any defenses or excuses urged by the employee in his reply
to the notice.
(d) At least 7 days before the date on which the suspension is
to become effective, the employee and the Union shall receive
copies of the written decision.
A. Positions of the Parties
The Agency contends that Provisions 22 and 23 limit its discretion to
choose and administer disciplinary action in violation of its right
under section 7106(a)(2)(A) of the Statute to suspend, remove, reduce in
grade or pay, or take other disciplinary action against employees. The
Agency further argues that Provision 22 makes no provision for emergency
suspensions and is therefore inconsistent with 5 U.S.C. Section 7513(b)
and the implementing regulation at 5 C.F.R. Section 752.404.
The Union contends that the provisions constitute procedures to be
observed by management in exercising its right to discipline employees
and appropriate arrangements for employees adversely affected by the
exercise of that right, and are therefore negotiable under section
7106(b)(2) and (3) of the Statute. The Union also contends that
Provision 22 is consistent with applicable law and regulation.
B. Analysis and Conclusions
Subsection (a) of Provision 22 limits the Agency in disciplining an
employee to (1) selecting the minimum discipline "to achieve a proper
disciplinary objective," and (2) using formal disciplinary measures only
"for more serious offenses" or when informal measures have not been
effective. We find that these portions of Provision 22 are to the same
effect as Union Proposal I which the Authority held to be outside the
duty to bargain in National Maritime Union of North America, AFL-CIO and
Department of Commerce, National Oceanic and Atmospheric Administration,
National Ocean Survey, Rockville, Maryland, 15 FLRA 576 (1984). The
proposal in that case would have prohibited the agency from deducting
wages as a fine when penalizing employees for misconduct. The Authority
found that the proposal would impinge upon the agency's right to make
substantive determinations regarding its choice of the particular
disciplinary action to be imposed on an employee for misconduct in
violation of management's right under section 7106(a)(2)(A) to
discipline employees. Similarly, subsection (a) of Provision 22 here
would substantively limit the Agency's discretion in imposing discipline
by subjecting the Agency's choice of discipline to arbitral review as to
whether the discipline imposed was "the minimum . . . to achieve a
proper . . . objective," and by limiting the use of formal measures to
the circumstances specified. Accordingly, for the reasons set forth in
National Maritime Union, we find that subsection (a) of Provision 22
directly interferes with the Agency's right to discipline employees.
As to whether subsection (a) of Provision 22 constitutes an
appropriate arrangement, we find that the provision is similar to the
proposal establishing progressive discipline for employees subject to
performance-based adverse actions which the Authority found to
excessively interfere with the agency's rights in National Labor
Relations Board Union and National Labor Relations Board, Office of the
General Counsel, 18 FLRA No. 42 (1985). Like the proposal in NLRB, the
provision here concerns employees against whom the Agency is taking
disciplinary action on the basis of conduct for which the employee is at
"fault." Additionally, the Authority found that the NLRB proposal would
"not protect the needs of management . . . to determine what remedial
actions are commensurate with a particular employee's performance
deficiencies and the mission requirements of the Agency." Id. slip op.
at 6. Similarly, the provision here would limit the Agency's ability to
determine the penalty it considered appropriate by subjecting the
Agency's determination to arbitral review as to whether the penalty was
proper or whether formal disciplinary measures were justified. In
Devine v. Pastore, 732 F.2d 213 (D.C. Cir. 1984), the D.C. Circuit
stated that allowing a collective bargaining agreement to fix the
factors governing discipline would affect the authority of agency
management to take disciplinary action under section 7106(a)(2)(A). The
court held that an arbitrator's review of the penalty which an agency
has determined to be appropriate in disciplining an employee should be
similar to review by the Merit Systems Protection Board. The standard
applied by the Board is set forth in Douglas v. Veterans Administration,
5 MSPB 313, 332-33 (1981), in which the Board stated that:
The Board's role in this process is not to insist that the balance
be struck precisely where the Board would choose to strike it if
the Board were in the agency's shoes in the first instance; such
an approach would fail to accord proper deference to the agency's
primary discretion in managing its workforce . . . . Only if the
Board finds that the agency failed to weigh the relevant factors,
or that the agency's judgment clearly exceeded the limits of
reasonableness, is it appropriate for the Board then to specify
how the agency's decision should be corrected to bring the penalty
within the parameters of reasonableness.
Subsection (a) of Provision 22 would severely limit the Agency's
discretion in tailoring the discipline which it deems appropriate based
on the circumstances giving rise to the disciplinary action. Although
this restriction on the Agency's ability to determine the penalty
constitutes the benefit to affected employees, we find that the burden
to the exercise of the agency's rights strongly outweighs the benefit to
employees from the proposed arrangement. Consequently, for the reasons
set forth above, we find that subsection (a) of Provision 22 excessively
interferes with the Agency's right under section 7106(a)(2)(A) to take
disciplinary action.
Contrary to the Agency's contentions, the remainder of Provision 22
and Provision 23 would not prevent it from tailoring discipline to the
particular offense, the specific working environment, and the individual
involved. Agency Statement of Position at 32. Rather, subsection (b)
of Provision 22 specifically provides that, in deciding what discipline
is appropriate, the Agency must consider "all factors involved,
including the gravity and frequency of the offense; the existence of
mitigating circumstances and the employee's previous disciplinary
record." Unlike subsection (a), the remainder of Provision 22 and
Provision 23 would not prescribe or proscribe specific discipline.
Instead, they establish general standards by which management's
application of its right to take disciplinary action against employees
could be evaluated in a subsequent grievance. The Authority has held
that such proposals constitute appropriate arrangements for employees
adversely affected by management's exercise of its disciplinary rights
and are within the duty to bargain under section 7106(b)(3) of the
Statute. See, for example, American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
3 FLRA 783, 789-94 (1980) (Proposal 5). Compare National Maritime Union
of North America, AFL-CIO and Department of Commerce, National Oceanic
and Atmospheric Administration, National Ocean Survey, Rockville,
Maryland, 15 FLRA 576 (1984), in which the Authority found that Proposal
1, which prohibited the agency from assessing fines as a penalty for
misconduct, substantively limited the agency's discretion to determine
the particular disciplinary action to be imposed on an employee in
violation of its right under section 7106(a)(2)(A).
We also find that Provision 22 is not inconsistent with 5 U.S.C.
Section 7513(b)(1) or implementing OPM regulations which provide an
exception to an agency's obligation to provide an employee 30 days
advance written notice of discipline where the agency believes the
employee has committed a crime for which a sentence may be imposed.
While Provision 23 concerns the timing of disciplinary action and
specifically incorporates the exception, Provision 22 is not concerned
with timing. Even if the provision were concerned with the timing of
disciplinary action, mere silence with respect to related legal
requirements does not render a provision outside the duty to bargain
unless the provision is inconsistent with those requirements. See
Professional Air Traffic Controllers Organization, AFL-CIO and
Department of Transportation, Federal Aviation Administration, 4 FLRA
232, 234 (1980).
The Agency makes no arguments specifically dealing with the remaining
portions of Provisions 22 and 23. We find them to be procedures which
do not violate any management rights. See, for example, American
Federation of Government Employees, AFL-CIO, National Immigration and
Naturalization Service Council and U.S. Department of Justice,
Immigration and Naturalization Service, 8 FLRA 347, 357-59 (1982) (Union
Proposal 6). Additionally, the Agency withdrew its objections to the
negotiability of one additional section of Article XXI. Consequently,
that provision will not be considered here.
Accordingly, we conclude that subsection (a) of Provision 22 is
outside the duty to bargain. However, we also conclude that subsections
(b) through (e) of Provision 22 and Provision 23 are within the duty to
bargain.
IX. Provisions 24 and 25
ARTICLE XXII - HEALTH AND SAFETY
(Provision 24)
The FLRA Members disagree over the negotiability of this provision.
The majority opinion on Provision 24 is on page 38 of this decision;
Chairman Calhoun's dissent in on page 41.
(Provision 25)
The majority opinion on this provision is on page 40 of this
decision. Chairman Calhoun's concurring opinion is on page 42.
X. Provisions 26-28
ARTICLE XXII - HEALTH AND SAFETY
(Provision 26)
Section 7. (a) (A)n employee shall not be subject to disciplinary
action by reason of failure or refusal in good faith to operate or
handle any machine, device, apparatus or equipment for which there
are reasonable grounds to believe that a real and imminent threat
to death or serious injury exists and for which there is
insufficient time, due to the urgency of the situation, to
eliminate the danger through resort to the negotiated grievance or
statutory enforcement procedures.
(Provision 27)
Section 7. (b) (A)n employee shall not be subject to disciplinary
action by reason of failure or refusal in good faith to engage in
unsafe work practices for which there is reasonable basis for the
employee to believe are in violation of any applicable safety
laws, regulations or agency standards.
(Provision 28)
Section 7. (c) (A)n employee shall not be subject to disciplinary
action by reason of failure or refusal in good faith to carry out
any directive or instruction issued by management for which there
is reasonable basis for the employee to believe are in violation
of any applicable safety law, regulation, or agency standard.
A. Positions of the Parties
The Agency contends that Provisions 26-28 would violate its rights
under section 7106(a)(2)(A) of the Statute to take disciplinary action
against employees and under section 7106(a)(2)(B) of the Statute to
assign work.
The Union contends that the provisions do not violate management's
rights, but merely implement the regulation set forth at 29 CFR 1977.12
which provides employees with immunity from discipline for asserting
rights under the Occupational Safety and Health Act.
B. Analysis and Conclusions
Provisions 26-28 would insulate an employee from discipline for
refusing to perform work when confronted with the safety hazards or
violations enumerated. Further, the provisions enable an employee alone
to determine that an unsafe working condition exists. These provisions
do not concern an employee's defense to disciplinary action but rather
totally prevent management from instituting discipline to determine
whether the employee's actions were reasonable in the first place.
Because these provisions would absolutely prohibit management from
instituting discipline against an employee under certain circumstances,
we find that they directly interfere with the Agency's right to
discipline employees. See National Treasury Employees Union and
Internal Revenue Service, 6 FLRA 522 (1981) (Proposal 1). These
provisions are distinguishable from Proposal 3 in National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service,
Region VII, 5 FLRC 250, 255-56 (1977), which provided that a designated
safety and health official would determine whether unsafe conditions or
practices existed and which did not insulate an employee from discipline
for refusing to perform work. In view of our determination, it is
unnecessary for us to decide whether these provisions also violate the
Agency's right to assign work.
As to the Union's contention that the provisions implement 29 C.F.R.
Section 1977.12, the Authority notes that the cited regulation does not
apply to Federal employees. See 29 C.F.R. Section 1975.3(b).
Accordingly, Provisions 26-28 are outside the duty to bargain.
XI. Provision 29
ARTICLE XXV - EQUAL EMPLOYMENT OPPORTUNITY
Section 2. One bargaining unit employee designated by the Union
shall serve on the Equal Employment Opportunity Committee. At its
option, one member of the Union's Executive Board may attend
committee meetings which pertain to working conditions or matters
covered by the collective bargaining agreement.
A. Positions of the Parties
The Agency contends that, by allowing the Union to designate a member
of the Equal Employment Opportunity Committee, Provision 29 violates
management's right under section 7106(a)(2)(B) to assign work.
The Union contends that the provision does not violate the Agency's
right to assign work. Rather, the Union contends that Provision 29
implements its right under section 7114(a)(2) of the Statute to be
present at all "formal discussions" pertaining to matters covered by the
collective bargaining agreement.
B. Analysis and Conclusions
In American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603,
622 (1980), enforced as to other matters sub nom. Department of Defense
v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), the Authority
found that a proposal which would have required the agency to select at
least half of its Equal Employment Opportunity Counselors from among
union nominees interfered with the agency's right to assign work by
determining which employee should be assigned those duties. However,
Provision 29 is distinguishable from the proposal in Wright-Patterson.
The duties associated with being an Equal Employment Opportunity
Counselor which were to be assigned in that case became part of the job
of the employee to whom they were assigned. In contrast, the provision
in this case provides that certain unit employees will participate on
the Equal Employment Opportunity Committee and does not concern official
duties assigned to those employees. Rather, Provision 29 would
authorize a procedure for carrying out labor-management responsibilities
consistent with the Statute. See National Federation of Federal
Employees, Local 541 and Veterans Administration Hospital, Long Beach,
California, 12 FLRA 270 (1983). Accordingly, Provision 29 is within the
duty to bargain. Compare Provision 17 in this case where we found that
union membership on a Joint Apprenticeship Committee would interfere
with management's rights by allowing the Union to interject itself into
the deliberative process by which the Agency exercises its rights.
XII. Provisions 30 and 31
(Provision 30)
ARTICLE XXVII - REDUCTION IN FORCE AND RELATED MATTERS
Section 3. If layoff or reduction in classification is necessary,
all trainee categories shall be affected before any similar action
with respect to journeyman plate printers is taken. If this
procedure creates equal opportunity problems on layoff, the
parties shall reach mutual agreement on an acceptable alternative.
(Provision 31)
APPENDIX #1 - SUPPLEMENTARY COLLECTIVE BARGAINING
AGREEMENT
Section 5. In the event of a reduction in force, the Employer
shall layoff or reduce in classification all trainee categories
before taking similar action with respect to Journeyman Plate
Printers. If the aforementioned procedure creates equal
employment opportunity problems on layoff, the parties shall reach
mutual agreement on an acceptable alternative.
A. Positions of the Parties
The Agency contends that Provisions 30 and 31 violates its rights
under section 7106(a)(2)(A) of the Statute to layoff, remove, or reduce
in grade or pay employees in the Agency. It further argues that the
provisions violate its right under section 7106(a)(2)(C) to fill
positions by making selections for appointments.
The Union contends that Provisions 30 and 31 constitute procedures to
be observed by the Agency in exercising its right to layoff employees
and appropriate arrangements for employees adversely affected by the
Agency's exercise of that right, and are negotiable under section
7106(b)(2) and (3) of the Statute.
B. Analysis and Conclusions
These provisions are to the same effect as Union Proposal 5 in
National Treasury Employees Union and Internal Revenue Service, 7 FLRA
275 (1981) which would have required the agency, upon deciding to
conduct a furlough, to layoff employees according to a ranking system
established by the proposal. The Authority held the proposal to be
outside the duty to bargain because it directly interfered with the
Agency's discretion to determine which employees to layoff. Proposal 5
therefore violated the agency's right under section 7106(a)(2)(A) to
layoff employees and did not constitute a negotiable procedure under
section 7106(b)(2). Similarly, Provisions 30 and 31 in this case would
require the Agency to layoff employees in trainee positions prior to
taking such action against journeyman plate printers in violation of
management's right under section 7106(a)(2)(A) and do not constitute a
negotiable procedure.
These provisions were intended to be appropriate arrangements for
employees adversely affected by the Agency's exercise of its right to
layoff employees. The proposed arrangement would require the Agency in
all cases to layoff employees in trainee positions prior to journeyman
plate printers regardless of the Agency's determination as to the mix of
employees required to fulfill its mission. In our view, this would
significantly interfere with the Agency's discretion to assign employees
to positions. See above discussion of Provisions 12 and 13. We find
that the interference with the Agency's discretion would outweigh any
benefit accruing to employees from the proposed amelioration.
Consequently, Provisions 30 and 31 excessively interfere with the
Agency's rights and do not constitute appropriate arrangements. Compare
American Federation of Government Employees, AFL-CIO, International
Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA
333 (1984) (Union Proposal 2) in which the Authority found that a
proposal which sought to have the agency place existing, qualified
employees in vacant positions in the event of a reduction-in-force "to
the maximum extent possible" constituted a negotiable appropriate
arrangement within the meaning of section 7106(b)(3). The Authority
determined that the proposal in that case left the agency with its full
statutory discretion with respect to whether to utilize existing
vacancies to retain employees who would otherwise be separated.
In view of our decision that Provisions 30 and 31 are outside the
duty to bargain because they violate the Agency's right to layoff
employees and do not constitute either negotiable procedures or
appropriate arrangements, it is unnecessary for us to decide whether
these provisions also violate the Agency's rights under section
7106(a)(2)(C).
XIII. Provision 32
ARTICLE XXVII - REDUCTION IN FORCE AND RELATED MATTERS
Section 4. Prior to effecting the reduction in force, the
Employer shall eliminate immediately all recruitment efforts and
place qualified employees otherwise to be separated by reduction
in force in vacant positions in the Bureau, provided there is a
current need and ability to fill such vacancy as determined by the
Employer and provided further that such action is consistent with
rules and regulations of the Office of Personnel Management or
higher agency authority. Employees selected for reassignment to
other positions within the Bureau shall be provided with such
additional training as is necessary to perform the requirements of
the new job. However, it shall be the responsibility of the
Employer to determine the extent and types of additional training;
to determine the numbers and types of employees to be trained
within funds and authority available; and to provide the means
and methods to furnish such training.
A. Positions of the Parties
The Agency contends that Provision 32 violates its right under
section 7106(a)(2)(A) of the Statute to assign employees by mandating
the filling of positions. It further argues that the provision violates
its rights under section 7106(a)(2)(A) to assign employees and to
layoff, retain, remove, or reduce in grade or pay its employees by
requiring that existing vacancies be filled with employees scheduled to
be separated. Additionally, the Agency argues that this requirement
also violates its right under section 7106(a)(2)(C) to make selections
for appointments in filling positions.
The Union contends that the provision does not violate management's
rights but instead constitutes an appropriate arrangement for employees
adversely affected by the Agency's exercise of its right to layoff
employees.
B. Analysis and Conclusions
We find that Provision 32 was intended as an arrangement for
employees who would otherwise be released from their positions because
of a reduction-in-force (RIF). As to whether the proposed arrangement
is appropriate within the meaning of section 7106(b)(3) of the Statute,
we find that the portion of the provision which would prohibit the
Agency from filling vacancies from any source other than employees who
would otherwise be separated because of the RIF is to the same effect as
Union Proposal 3 determined to be an appropriate arrangement in
Association of Civilian Technicians, Montana Air Chapter and Department
of the Air Force, Montana Air National Guard, Headquarters, 120th
Fighter Interceptor Group (ADTAC), 20 FLRA No. 85 (1985), petition for
review filed sub nom. Association of Civilian Technicians, Montana Air
Chapter v. FLRA, No. 86-1057 (D.C. Cir. Jan. 23, 1986). The Authority
found that the proposal in Montana Air National Guard, which similarly
required the agency to offer employees affected by a RIF vacant
positions which management decided to fill, did not excessively
interfere with the agency's right under section 7106(a)(2)(C) to fill
positions from any appropriate source. Contrary to the Agency's
contention, Provision 32 similarly preserves the Agency's discretion to
determine whether a vacancy should be filled.
As to that portion of the provision requiring the Agency to eliminate
outside recruitment efforts in the event of a RIF, we find that this
provision is distinguishable from Union Proposal 1 in the Montana Air
National Guard case which the Authority found to excessively interfere
with the agency's ability to determine the numbers and types of
employees needed to perform its mission. The Authority's decision in
that case was based upon the need of the National Guard to be able to
obtain sufficient personnel to maintain a constant state of readiness
for military deployment. No similar consideration is present here.
Also, Provision 32 in this case provides that vacant positions are to be
filled by "qualified" employees. This leaves the Agency with discretion
to determine whether the employees who would otherwise be separated are
qualified to fill the vacant positions and, consequently, to hire from
outside the Agency if none of the affected employees are qualified. See
Union Response at 53. Accordingly, the Authority finds that Provision
32 does not excessively interfere with the Agency's right to make
selections for positions.
Additionally, because the provision preserves the Agency's discretion
to determine whether to fill a position and whether an employee is
qualified for that position, it does not violate the Agency's right to
assign employees. See above discussion of Provisions 5 and 9.
Provision 32 would also require the Agency to provide training
necessary to perform the duties of the position to which the affected
employee would be reassigned. The Authority has held that proposals
which require an agency to provide training for its employees violate
management's right to assign work. See above discussion of Provisions
19 and 20. However, in International Brotherhood of Electrical Workers,
AFL-CIO, Local 121 and U.S. Government Printing Office, Washington,
D.C., 8 FLRA 188, 189 (1982) (Union Proposal 2), the Authority held that
a proposal that would require the agency to negotiate concerning
retraining programs that would allow employees adversely affected by a
RIF to meet the qualifications for reassignment to other positions was
within the duty to bargain. The Authority found that the proposal in
that case did not mandate the retraining of any employee and constituted
an appropriate arrangement within the meaning of section 7106(b)(3).
Similarly, Provision 32 in this case leaves the Agency with discretion
to determine the extent and type of training, the numbers and types of
employees to be trained given available funding and training authority,
and to determine the methods and means by which the training will be
accomplished. Consequently, we find that the retraining portion of
Provision 32 does not excessively interfere with the Agency's right to
assign work.
Accordingly, for the reasons set forth above, we find that Provision
32 constitutes an appropriate arrangement for employees adversely
affected by the Agency's right to layoff employees and is within the
duty to bargain.
XIV. Provisions 33 and 34
ARTICLE XXIX - MISCELLANEOUS PROVISIONS
(Provision 33)
Section 6. Employees in light-duty status because of injuries or
conditions which are non-work related will be assigned to
craft-related duties or training activities wherever possible.
Where such an assignment is not possible, the employee will be
referred to the Personnel Staffing Branch for placement in an
activity which serves an organizational need. If no such
assignment is possible the employee will be placed in a leave
status until such time as he can resume craft or craft-related
assignments consistent with the physician's certification.
(Provision 34)
Section 7. Employees in a light-duty status because of
work-related injury will be given a light-duty assignment to
perform. Such assignment will not necessarily be craft-related.
A. Positions of the Parties
The Agency contends and the Union disputes that Provisions 33 and 34
violate management's rights to assign employees and assign work.
B. Analysis and Conclusions
Provisions 33 and 34 essentially would require the Agency to assign
certain duties and refrain from assigning other duties to employees in
"light-duty status." These provisions are to the same effect as the
proposal which the Authority found outside the duty to bargain in
National Federation of Federal Employees, Local 1624 and Air Force
Contract Management Division, Hagerstown, Maryland, 3 FLRA 141 (1980).
That proposal would have required the agency to detail injured employees
who were capable of returning to the job to positions compatible with
their physical conditions or to assign them duties tailored to their
physical limitations. The Authority found it violated the agency's
rights under section 7106(a)(2)(A) and (B) to assign employees and
assign work. Additionally, contrary to the Union's contentions, the
provisions in this case do not preserve management's discretion but
instead would require the Agency "wherever possible" to exercise its
discretion to assign employees to positions or assign duties to
employees in the manner prescribed by the provisions. Consequently, for
the reasons set forth more fully in Air Force Contract Management
Division, we find Provisions 33 and 34 to be outside the duty to
bargain.
The Union submitted revised versions of Provisions 33 and 34 at
Appendix E of its Response which it contends "obviate any concerns"
about the provisions' interference with the exercise of management's
rights. Union Response at 57. However, section 2424.4(a)(3) of the
Authority's Rules requires a union in its petition to submit the
agency's written allegation as to the nonnegotiability of the provisions
for which review is being sought. The Union's petition in this case did
not include any written allegation of nonnegotiability as to the revised
versions of the provisions and there is no indication in the record that
such a written allegation was requested. Since the revised provisions
are not properly before us, we will not consider them here.
XV. Provisions 35 and 36
APPENDIX #1 - SUPPLEMENTARY COLLECTIVE BARGAINING
AGREEMENT
(Provision 35)
2. Seven apprentices will be hired from applicants responding to
Announcement No. PP79-83. An additional eight Plate Printer
Intermediates may be hired from applicants responding to
Announcement No. PP78-1. Such applicants so selected will be
eligible for full journeyman status if they meet established
training and performance criteria.
(Provision 36)
3. Future manpower needs shall be filled through the hiring of
Journeyman or Apprentice Plate Printers under normal
circumstances. Staffing problems necessitated by extraordinary
circumstances shall be resolved by collective bargaining
negotiations. In the event of an impasse in negotiations, the
authority of any arbitrator passing on the merits of the proposal
at issue shall be limited to determining whether the Employer's
action constitutes an unreasonable, arbitrary or capricious
exercise of management rights.
A. Positions of the Parties
The Agency contends that Provision 35, by requiring it to hire
employees or hire only through the specified job announcements, violates
management's rights under section 7106(a)(2)(A) to hire and assign
employees, under section 7106(a)(2)(B) to determine the personnel by
which its operations will be conducted, and under section 7106(a)(2)(C)
to fill positions by making selections for appointments from any
appropriate source. As to Provision 36, the Agency contends that it
violates management's rights to hire employees and to fill positions
from any appropriate source by requiring the use of journeyman or
apprentice plate printers. The Agency also argues that, by subjecting
its decisions regarding staffing to the collective bargaining process
and requiring it to resolve impasses through arbitration, Provision 36
violates its rights under section 7106(a) and 7119(b)(2). Additionally,
the Agency argues that the provision makes no allowance for emergency
situations as provided under section 7106(a)(2)(D).
The Union contends that Provisions 35 and 36 do not violate any of
the rights alleged by the Agency. Instead, the Union argues that the
Agency's objections to Provision 35 are based on a misinterpretation of
that provision. The Union states that the language of Provision 35 is
permissive rather than mandatory. Additionally, the Union contends that
Provision 36 concerns a permissive subject of bargaining under section
7106(b)(1).
B. Analysis and Conclusions
The Authority has held that the decision whether to fill vacant
positions is encompassed within an agency's rights to hire and assign
employees under section 7106(a)(2)(A) of the Statute. See National
Treasury Employees Union and Internal Revenue Service, 2 FLRA 280
(1979). Provision 35 would obligate the Agency to hire a specific
number of applicants responding to certain Agency vacancy announcements.
Contrary to the Union's contentions, the wording of the provision is
mandatory rather than permissive. Accordingly, the provision violates
the Agency's rights to hire and assign employees and is outside the duty
to bargain. In view of this determination, it is unnecessary for us to
decide whether Provision 35 also violates management's rights under
section 7106(a)(2)(B) and (C).
Provision 36 would require the Agency to meet "future manpower needs"
by hiring either journeyman or apprentice plate printers or other kinds
of employees to be negotiated with the Union. The Authority finds that
this provision is nonnegotiable for a reason other than those raised by
the Agency. The provision would require the Agency to negotiate
concerning the kinds of personnel by which its future operations will be
conducted. Contrary to the Union's contention, Provision 36 does not
involve a permissive subject of bargaining but instead violates the
Agency's right under section 7106(a)(2)(B) to determine the personnel by
which agency operations are conducted. In view of this determination,
it is unnecessary to decide whether the provision also violates
additional management rights under section 7106(a) or is contrary to the
impasse resolution procedures set forth at section 7119(b)(2).
Accordingly, Provision 36 is outside the duty to bargain.
XVI. Order
The petition for review as to Provisions 6-8, 12, 13, 15, 17-20,
subsection (a) of Provision 22, 26-28, 30, 31, and 33-36 is dismissed.
The Agency must rescind its disapproval of Provisions 1, 2, 4, 5, 9, 16,
21, subsections (b) through (e) of Provision 22, 23, 29, and 32, which
were bargained on and agreed to by the parties at the local level. /*/
Issued, Washington, D.C., January 9, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Provision 3
ARTICLE VII - UNION REPRESENTATION
Section 1. (d) The Union Officers and the Advisory Chairman will
be assigned to the day shift regardless of seniority or may be
reassigned to another shift by the mutual agreement of the
parties.
The Agency contends and the Union disputes that Provision 3 violates
management's right to assign employees under section 7106(a)(2)(A) of
the Statute.
Majority Opinion
The Authority has previously indicated that proposals concerning
which employees would perform duties already assigned to their positions
do not violate management's right to assign employees. See Laborers'
International Union of North America, AFL-CIO-CLC, Local 1267 and
Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14
FLRA 686, 687 (1984) (first disputed sentence of Union Proposal 1).
Provision 3 would require that certain Union officials be assigned to
the day shift unless the Union agrees to a shift change. There is no
indication in the record that these employees would perform duties other
than those which the Agency had already assigned to their positions.
Rather, the provision is merely concerned with when, that is, on what
shift, the Union officials will perform those duties previously assigned
to their positions and is within the duty to bargain. In contrast, see
American Federation of Government Employees, AFL-CIO, Local 2272 and
Department of Justice, U.S. Marshals Service, District of Columbia, 9
FLRA 1004, 1014-15 (1982), in which the Authority held that Union
Proposal 7 which would have prohibited the agency from assigning certain
duties to employees who were also union officials violated management's
right to assign work under section 7106(a)(2)(B). Accordingly,
Provision 3 is within the duty to bargain.
Provision 14
Section 5. In the acquisition of new equipment, the Employer
reserves the right to select personnel for detail until such time
said equipment is determined by the Employer after consultation
with the Union to have attained full operating efficiency.
Additional details thereafter will be made in accordance with
seniority as described in Section (4) of this Article.
Majority Opinion
Provision 14 applies to journeymen plate printers who perform the
same duties. The provision recognizes the Agency's right to determine
whether employees are "trained and capable of performing the duties
required by a particular piece of equipment and work processes
associated with the work order to be filled." Union Response at 22. To
the extent that Provision 14 would establish seniority as the criterion
for selecting the piece of equipment where the journeymen plate printers
will perform the duties assigned to them, it does not violate the
agency's right to assign employees to different positions or assign
work. Additionally, insofar as Provision 14 requires the Agency to
"consult" with the Union, the Authority finds that the provision merely
requires the Agency to consider the views of the Union, but does not
require the Agency to enter into negotiations concerning the operating
efficiency of the new equipment. Compare section 7117(d)(2) of the
Statute, under which a union having consultation rights is entitled to
notice of changes in conditions of employment and an opportunity to
present its views concerning those changes. Consequently, Provision 14
is within the duty to bargain.
Provision 24
ARTICLE XII - HEALTH AND SAFETY
Section 2. A Subcommittee of the Plate Printing Division's Safety
Committee is hereby established. It shall consist of two
management and two Union members and shall be authorized to
perform the following functions, among others:
(a) Inspect monthly all plate printing work sites.
(b) Participate in the scheduling of unit employees to be
tested incident to the Hearing Conservation and other Bureau
Health and Safety programs.
(c) Make recommendations based on receipt of official reports
regarding lost time injuries sustained by unit employees.
(d) Monitor reports of compliance with applicable OSHA or
agency standards.
(e) Make studies and recommendations regarding safety and
health standards, practices or procedures and employee complaints
pertaining to such matters.
The Agency contends and the Union disputes that Provision 24 is
outside the duty to bargain because (1) it prevents members of the
bargaining unit who are not also Union members from serving on a
labor-management committee in violation of "employees' rights" under
section 7102 of the Statute; (2) it violates the duty of fair
representation set forth in section 7114(a) of the Statute; and (3) it
would "interfere with, restrain and coerce" employees in violation of
section 7116(a)(1) and (2) and 7116(b)(1) and (2) of the Statute.
Majority Opinion
The Authority finds that the subcommittee of the Safety Committee
established by Provision 24 is to the same effect as the "uncertified"
Health and Safety Committee which the Authority held to be within the
duty to bargain in National Federation of Federal Employees, Local 2059
and U.S. Department of Justice, U.S. Attorney's Office, Southern
District of New York, New York, New York, 22 FLRA No. 13 (1981)
(Provision 1). The Authority found that the committee in U.S.
Department of Justice, which was comprised of two union-named and two
agency-named members, constituted a forum for the expression of concerns
over health and safety matters and the development of recommendations
concerning them rather than a forum enabling the union to interject
itself into the decision-making process by which management exercises
its rights. See also American Federation of Government Employees,
AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of
Prisons, 11 FLRA 286 (1983) (Provision 2). Contrast National Treasury
Employees Union and Department of the Treasury, Bureau of Government
Financial Operations, 21 FLRA No. 83 (1986), in which the Authority
found that negotiations to establish a "certified" health and safety
committee were not authorized under law and regulation.
Like the committee in U.S. Department of Justice which was authorized
to "investigate" unsafe working conditions, the functions of the
subcommittee established by Provision 24 do not replace or conflict with
the exercise of the Agency's rights. The Agency here has not shown that
the functions of the subcommittee to "inspect" work sites, "participate"
in the scheduling of employee testing, "make recommendations" regarding
lost time injuries, "monitor" compliance with OSHA or Agency standards,
or "make studies and recommendations" regarding health and safety
matters would bind the Agency in any way or otherwise interfere with its
rights. See American Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217 (1981) (Union Proposal 6), where the Authority
found negotiable a proposal to create a joint labor-management committee
with the limited power to recommend changes in the performance appraisal
system, and determined that the agency retained its discretion to accept
or reject any of the committee's recommendations. Accordingly, unlike
the Joint Apprenticeship Committee established by Provision 17, the
subcommittee here does not interfere with management's rights.
As to the Agency's contentions that the provision violates the
Statute by providing that "Union members" will serve on the committee,
see the following discussion of Provision 25. Accordingly, for the
reasons set forth above, Provision 24 is within the duty to bargain.
(Provision 25)
Section 12. Union members of all Division Safety Committee and
Subcommittees shall be afforded official time to perform functions
specified in this article or requested by management. When
eligible under Bureau policy, these members shall also be afforded
official time and reimbursed for travel expenses to attend all
proceedings of the Annual OSHA Safety Conference. Union members
shall also be entitled to use training bank time to attend this
and similar joint labor-management safety conferences up to a
maximum of two conferences per member per year.
The Agency contends and the Union disputes that Provision 25 is
outside the duty to bargain because (1) it prevents members of the
bargaining unit who are not also Union members from serving on a
labor-management committee in violation of "employees' rights" under
section 7102 of the Statute; (2) it violates the duty of fair
representation set forth in section 7114(a) of the Statute; and (3) it
would "interfere with, restrain and coerce" employees in violation of
section 7116(a)(1) and (2) and 7116(b)(1) and (2) of the Statute.
Majority Opinion
Provision 25 concerns official time and training bank time for Union
representatives serving on the Division Safety Committee and
Subcommittees such as the one established by Provision 24. See
discussion of Provision 24 at pages 38-39 of this decision. The
Agency's contentions that the provision violates the Statute by
providing that "Union members" will serve on the committee is not
persuasive. Under section 7114(a)(1) of the Statute a union has the
responsibility to represent the interests of all employees without
regard to union membership. That is, it has the responsibility to
assure that the substance of its advocacy on behalf of unit employees is
fair to both members and non-members. Who represents the union in
carrying out this responsibility, however, is not a matter established
by section 7114(a)(1) or the other sections of the Statute relied upon
by the Agency. Rather, "it is within the discretion of both agency
management and labor organizations holding exclusive recognition to
designate their respective representatives when fulfilling their
responsibilities under the Statute." American Federation of Government
Employees, AFL-CIO, 4 FLRA 272, 274 (1980). Accordingly, Provision 25
is within the duty to bargain.
Order
The Agency must rescind its disapproval of Provisions 3, 14, 24, and
25 which were bargained on and agreed to by the parties at the local
level. /1/
Issued, Washington, D.C., January 9, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Opinion of Chairman Calhoun
Dissenting on Provisions 3 and 24 and Concurring on Provisions 14 and
25
Provision 3 requires the Agency to assign Union officers and the
Advisory Chairman to the day shift and conditions any subsequent
reassignment of these employees on "mutual agreement of the parties."
Unlike provisions which establish general procedures to assign employees
to shifts, Provision 3 compels the Agency to assign particular
individuals and prohibits the Agency from exercising its right to
reassign these employees to different shifts unless the Union agrees to
the reassignment. In my view, this provision infringes on the Agency's
right to assign work and is nonnegotiable.
I agree with my colleagues, for the reasons stated in the decision,
that Provision 14 does not violate the Agency's rights to assign
employees and assign work. This provision is concerned with the
acquisition of new equipment and requires the Agency to consult with the
Union before determining that the equipment is at "full operating
efficiency." Although not raised by the Agency, that determination is
fundamentally related to the Agency's right to determine the technology
of performing work under section 7106(b)(1) of the Statute, in my
opinion, and the requirement for consultation conflicts with that right.
Unlike provisions which conflict with management rights under section
7106(a) of the Statute, however, provisions which conflict with section
7106(b) may not be disapproved solely on that basis by the agency head
under section 7114(c). National Association of Government Employees,
Local R4-75 and U.S. Department of the Interior, National Park Service,
Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 4). Accordingly,
there is no basis for disapproval of this provision.
As to Provision 24, I do not agree with my colleagues that the
negotiability of the provision is controlled by the Authority's decision
in National Federation of Federal Employees, Local 2059 and U.S.
Department of Justice, U.S. Attorney's Office, Southern District of New
York, New York, New York, 22 FLRA No. 13 (1986) (Provision 1). The
committee in that case constituted a "forum for the expression of
concerns . . . and the development of recommendations(.)" Slip op. at 4.
In the instant case, by contrast, the committee will not only make
recommendations; it will also perform such functions as inspecting work
sites and scheduling employees for testing on health and safety matters.
In my opinion, the latter functions constitute parts of the
deliberative process by which the Agency exercises its rights under the
Statute. I find, therefore, that the provision conflicts with the
Agency's right to assign work and is nonnegotiable. However, since
Provision 25 concerning official time for employees serving on Division
Safety Committee and its subcommittees applies to committees other than
the one created by Provision 24, and the Agency has raised no objection
to these committees, official time could be negotiated for members of
these committees.
Dated, Washington, D.C., January 9, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
Provisions 10 and 11
(Provision 10)
ARTICLE XVII - ASSIGNMENT AND DETAIL
Section 1. Employees shall be assigned to sections and shifts
according to seniority. Upon assignment, employees shall have the
right to select the type of equipment according to press design.
(Provision 11)
Section 2. (Initial assignments shall be determined by posting.)
Shift or section assignments shall not be changed for a period of
sixty (60) days and only upon the written request of the employee.
If evening and/or midnight shift do not run, employees on such
shifts shall assume their seniority rights on day work in the
sections to which they are assigned to work. (The bracketed
sentence is not in dispute.)
The Agency contends that Provisions 10 and 11 violate its rights
under section 7106(a)(2)(A) of the Statute to assign employees and under
section 7106(a)(2)(B) to assign work.
The Union contends that the provisions constitute procedures to be
observed by the Agency in exercising its rights to assign employees
particular duties and appropriate arrangements for employees adversely
affected by such assignments, and are negotiable under sections
7106(b)(2) and (3).
Majority Opinion
Provisions 10 and 11 concern employees who are journeymen plate
printers who perform the same duties. The first sentence of Provision
10 provides that these employees will be assigned to sections and shifts
according to seniority. We find that the first sentence is concerned
with when and where employees will perform those duties previously
assigned to their positions and would not affect the Agency's discretion
to determine what work it wants done. See discussion of Provisions 4
and 16. Accordingly, the first sentence of Provision 10 is a negotiable
procedure which does not interfere with the Agency's rights.
The second sentence of Provision 10 would allow employees to select
the particular piece of equipment upon which they will perform the
duties of their positions. This sentence is not merely concerned with
where or when employees will perform duties previously assigned, but
instead concerns what duties the Agency will assign. The second
sentence of Provision 10 would, therefore, directly interfere with the
Agency's right to assign work and is not a negotiable procedure.
Additionally, we find that the second sentence of Provision 10
excessively interferes with management's rights and is not an
appropriate arrangement. The provision would interfere with the
Agency's right to assign work by preventing it from determining which
employee it felt could operate a piece of equipment most efficiently so
that the Agency could best perform the work it wanted accomplished. See
Laborers' International Union of North America, AFL-CIO-CLC, Local 1267
and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14
FLRA 686, 695 (1984) (Union Proposal 7, Section 7c, providing for
seniority as criterion for deciding which employee will use piece of
equipment when more than one must use same piece of equipment,
regardless of whether employee currently using equipment has completed
work assignment, violates right to assign work). We find that allowing
employees to choose the equipment on which they will work would
excessively interfere with the Agency's right to assign work.
Accordingly, the second sentence of Provision 10 is outside the duty to
bargain.
Additionally, although not raised by the Agency, decisions regarding
the equipment to be used in accomplishing the Agency's mission and the
manner in which the equipment is used constitute the exercise of
management's right under section 7106(b)(1) to determine the methods and
means of performing work. See American Federation of Government
Employees, AFL-CIO, International Council of Marshals Service Locals and
U.S. Department of Justice, U.S. Marshals Service, 4 FLRA 384, 386-87
(1980) (second paragraph of Union Proposal I which would permit
employees to use privately owned firearms violates agency's right to
determine methods and means of performing work since a firearm is a
means by which agency carries out protective and law enforcement
(function). Provisions which conflict with section 7106(b), however,
may not be disapproved solely on that basis by the agency head under
section 7114(c). National Association of Government Employees, Local
R4-75 and U.S. Department of the Interior, National Park Service, Blue
Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 4).
The first disputed sentence of Provision 11 provides that an
employee's assignment to a section or shift may not be changed for 60
days and may then only be changed upon the written request of the
employee. This sentence would place two conditions on the Agency's
exercise of its right to assign work. First, the Agency would be
absolutely prohibited from assigning an employee to perform the duties
of his or her position in a new section or on a new shift unless that
employee had performed those duties in the current section or on the
current shift for 60 days, regardless of what shift or in what section
the Agency wanted the duties of the employee's position to be performed.
Second, the Agency would still be prevented from changing the
employee's shift of section assignment unless the employee first made a
written request for that change. We find, therefore, that the first
disputed sentence of Provision 11 directly interferes with the Agency's
right to assign work. National Labor Relations Board Union, Local 19
and National Labor Relations Board, Region 19, 2 FLRA 775 (1980).
Additionally, since the provision would totally preclude the Agency from
reassigning the employees in the absence of the stated conditions, the
provision does not constitute an appropriate arrangement. See
discussion of Provisions 6-8. Consequently, the first disputed sentence
of Provision 11 is outside the duty to bargain.
The last sentence of Provision 11 provides that when the night shift
does not run, the Agency shall assign the displaced workers to the
operating day shifts on the basis of seniority. This sentence would not
affect the Agency's ability to determine the work it wants performed on
the remaining shifts. Rather, it constitutes a procedure by which the
Agency will determine which employees will work in those positions on
the operating shifts. Consequently, the last sentence of Provision 11
does not concern assigning employees to different positions or work and
does not prevent management from making work assignments based on the
work it wishes to accomplish. See discussion of Provisions 14 and 16.
We conclude that the last sentence of Provision 11 is a negotiable
procedure which does not interfere with the Agency's rights under
section 7106(a)(2)(A) and (B) and is within the duty to bargain.
Order
The Union's petition for review as to the second sentence of
Provision 10 and the first disputed sentence of Provision 11 is
dismissed. The Agency shall rescind its disapproval of the first
sentence of Provision 10 and the last sentence of Provision 11. /2/
Issued, Washington, D.C., January 9, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding these provisions to be within the duty to bargain, the
Authority makes no judgment as to their merits.
(1) In finding these provisions to be within the duty to bargain, the
Authority makes no judgment as to their merits.
(2) In finding these sentences of the provisions to be within the
duty to bargain, the Authority makes no judgment as to their merits.
Member Frazier, Concurring and Dissenting:
As to Provision 10, I agree with my colleagues that the first
sentence of that provision, providing for shift and section assignments
on the basis of seniority, is within the duty to bargain. This portion
of Provision 10 is merely concerned with when and where employees will
perform those duties previously assigned to their positions and would
not affect the Agency's discretion to determine employees' position
assignments under section 7106(a)(2)(A) or to assign duties to those
positions under section 7106(a)(2)(B). As do my colleagues, I view our
discussion of provisions 4 and 16 as pertinent. However, I respectfully
dissent from my colleagues regarding the negotiability of the second
sentence of Provision 10. Like the first sentence of the provision, I
would find the second sentence negotiable.
The second sentence of Provision 10 would permit employees who had
been assigned to shift and section on the basis of seniority to choose
the particular pieces of equipment to operate from that which management
has specified should be employed. Similar to the first sentence of
Provision 10, the second sentence would merely permit seniority to
control the assignment of employees to operate particular equipment for
which the Agency has determined all affected employees to be qualified.
This portion of Provision 10 leaves management free to make all
determinations regarding the qualifications of employees, as well as the
methods and means by which the work of the various shifts and sections
is to be performed, management having specified the equipment to be used
and other such matters. See Union Response at 22.
As to Provision 11, I agree with my colleagues that the last sentence
of the provision is negotiable. However, I respectfully dissent from my
colleagues as to the first sentence of Provision 11. I would find that
sentence negotiable. The first sentence of Provision 11 would place a
limitation on the frequency with which the Agency could alter shift and
section assignments. I view this sentence as a corollary to first
sentence of Provision 10, providing for seniority to control the
assignment of employees to shifts and sections. Like the first sentence
of Provision 10, which we have agreed is negotiable, the first sentence
of Provision 11 leaves management with unfettered discretion to assign
employees to positions and to assign work. It merely places a
limitation on the frequency with which the Agency can act to alter when
and where employees will perform those duties previously assigned to
their positions. Cases like National Labor Relations Board Union, Local
19 and National Labor Relations Board, Region 19, 2 FLRA 775 (1980) are
not to the contrary. In contrast to the instant proposal, the proposal
found nonnegotiable in NLRB, Local 19 would have limited management's
ability to assign to an employee's position duties of another position
not ordinarily assigned to the employee involved.
Dated, Washington, D.C., January 9, 1987.
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY