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28 FLRA NO. 152

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1815

                  Union

      and

ARMY AVIATION CENTER
FORT RUCKER, ALABAMA

                   Agency

Case No. 0-NG-1210

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case (Footnotes appear in the Appendix to this Decision)

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute). The issues presented concern the negotiability of 18 provisions contained in the parties' locally executed agreement which were disapproved during review by the Agency head under section 7114(c) of the Statute. 1

For the reasons discussed below, the Authority finds that the Agency must rescind its disapproval of Provision 9. The Union's petition for review insofar as it concerns Provisions 2 through 7 and 10 through 18 is dismissed. The Authority Members have reached differing conclusions concerning Provision 1, and have expressed different opinions on Provision 8. The Decision and Order and Chairman Calhoun's dissenting and concurring opinion on these provisions immediately follow this decision.

II. Procedural Issue

The Union contends that the parties should be bound by the collective bargaining agreement as executed because the Agency head's disapproval was not served on the Union within 30 days from the date the agreement was executed. Sections 2429.27(b) and (d) of the Authority's Rules provide that service of an agency head's disapproval of provisions of a locally executed agreement may be made by depositing the disapproval in the mail by certified mail within 30 days from the date the agreement was executed. See American Federation of Government Employees, AFL - CIO, Local 900 and Department of the Army, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administrative Center, St. Louis, Missouri, 18 FLRA 40 at n.1 (1985), reversed as to other matters in our decision on remand American Federation of Government Employees, AFL - CIO, Local 900 and Department of the Army, Office of Adjutant General, U.S. Army Reserve Components Personnel and Administrative Center, St. Louis, Missouri, 25 FLRA No. 77 (1987). The record indicates that the agreement here was executed on October 4, 1985, and that the Agency head's disapproval was sent to the Union by certified mail on November 1, 1985, within 30 days from the date the agreement was executed. Consequently, we reject the Union's contention.

The Union requests that, if we reject its contention that the Agency head's disapproval was not timely, we allow it to "present its views on any remaining unresolved issues in dispute." Under section 2424.7 of the Authority's Rules, the full response of an exclusive representative to an agency's statement of position must be filed within 15 days of receipt of that statement. The Authority granted an earlier Union request "due to the complexity of the issues" in the case for an extension of time in which to file its response. On February 3, 1986, the Union filed a response in which it only addressed the issue of the timeliness of the Agency head's disapproval without also discussing the negotiability of any of the disputed provisions. The Union has not demonstrated why it should be granted a second extension of time to file additional arguments concerning the disputed provisions. Accordingly, the Union's request is denied.

III. Provision 1

The Authority Members have reached differing conclusions concerning Provision 1. The Decision and Order on Provision 1 and Chairman Calhoun's separate opinion immediately follow this decision.

IV. Provision 2

Article 11, Section 8 - Overtime

A quarter hour is the minimum period of time for which overtime will be paid. Overtime of   less than a quarter hour multiple will not be aggregated from day to day. Extension of work period for less than fifteen minutes will be avoided. (Only the underscored sentence is in dispute.)

A. Position of the Agency

Provision 2 violates management's right to assign work in the same manner as Provision 1 found nonnegotiable in American Federation of Government Employees, AFL - CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985).

B. Analysis and Conclusion

Provision 2 would obligate the Agency to avoid requiring employees to work beyond their normal working hours for periods of less than fifteen minutes.

Thus, we find that the provision, while less restrictive, is to the same effect as Provision 1 found to be nonnegotiable in Bureau of the Mint, 19 FLRA 640, 640-42 (1985). In that case the Authority held that a provision which would have prevented management from assigning overtime work in increments of less than 4 hours violated management's right to assign work under section 7106(a)(2)(B) of the Statute. For the reasons stated and cases cited in Bureau of the Mint, we find that this provision also is outside the duty to bargain.

V. Provision 3

Article 11, Section 8 - Overtime

An employee who cannot be contacted through no fault of his/her own, will not be subject to disciplinary action.

A. Position of the Agency

The Agency contends that Provision 3 is nonnegotiable because it would have the effect of preventing management, under certain circumstances, from exercising its right under section 7106(a)(2)(A) to take disciplinary action against employees.

B. Analysis and Conclusion

Provision 3 would prevent management from taking disciplinary action against an employee who cannot be contacted   for an assignment of overtime work through no fault of his or her own. The express language of the provision would apply in all circumstances, whether or not the employee involved was under an obligation to be available to be contacted for such an assignment. For example, an employee could be in a standby duty status, in an on-call status, or simply might be off duty without any expectation of being called or obligation to be available. See, for example, 5 C.F.R. 551.432 (1986) and Federal Personnel Manual (FPM) Letter 551-1 (May 15, 1974).

In any event, Provision 3 does not expressly discriminate among the possible circumstances which might arise and the record is silent as to the intended application of the provision. As a consequence, in at least some circumstances, in our view, the provision would prevent the Agency from exercising its right to take disciplinary action under section 7106(a)(2)(A), in accordance with law. Consequently, we conclude that this provision is outside the duty to bargain. See American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 26 FLRA No. 55 (1987) (Proposal 2); and National Federation of Federal Employees, Local 15 and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA 48, 50-51 (1985).

VI. Provision 4

Article 12, Section 8 - Holidays

Employees will not be scheduled to work on a holiday prescribed by Federal law or executive order solely to avoid overtime work that otherwise would be performed on a day outside the basic work week.

A. Position of the Agency

The Agency contends that Provision 4 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In support of its contention, the Agency cites the Authority's decision in National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983).

B. Analysis and Conclusion

Provision 4 would prevent management from assigning overtime work on a Federal holiday if the purpose of the  assignment is to avoid assigning overtime work that otherwise would be assigned on a day outside the basic workweek. As discussed in detail in connection with Provision 1, the right "to assign work" under section 7106(a)(2)(B) encompasses the right to determine without interference when work which has been assigned will be performed (as distinguished from which employee among those to whom the work has been assigned will perform it.) Provision 4, by limiting management's right to determine that on holidays certain work will be performed, violates the Agency's right "to assign work" within the meaning of section 7106(a)(2)(B) and is not within the duty to bargain. See National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983) (Union Proposal 2).

VII. Provisions 5 and 6

Article 15, Section 1 - Annual Leave

5. Employees shall earn leave in accordance with applicable laws and regulations. Providing that the employee gives his/her supervisor reasonable advance notice, the employee's request for annual leave shall be approved unless compelling workload requirements prevent scheduling the leave over the period involved. (Only the underscored portion is in dispute.)

6. Article 15, Section 9 - Annual Leave:

An employee will be granted a reasonable amount of annual leave or leave without pay in case of a death in the immediate family, which is defined as spouse, parents, brothers, sisters and children.

A. Position of the Agency

The Agency contends that Provisions 5 and 6 interfere with the right of management to assign work and are to the same effect as Proposal 4 found nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 2263 and Department of the Air Force, Headquarters 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583-84 (1984). It also contends that these provisions are inconsistent with Federal Personnel Manual Chapter 630,  subchapter 3-4b which it argues recognizes that management retains the right to determine when leave will be taken consistent with the "needs of service."

B. Analysis and Conclusion

Provision 5 would require management to grant an employee's request for annual leave unless compelling workload requirements prevent scheduling the leave over the period involved. As such, the provision deprives management of any discretion to deny an employee's request for leave unless there are "compelling workload requirements." Consequently, management would not be able to assign work to that employee during the period covered by the request, even if management determined it had a need of the employee's services based on something other than compelling workload requirements. Thus, we find that the provision is to the same effect as the disputed portion of Proposal 4 found nonnegotiable in Kirtland Air Force Base. That proposal required supervisors to grant leave in all cases where the "need is clearly documented" on the request for leave. The Authority held, relying on its decision in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), that the proposal nullified management's ability to determine when assigned work would be performed and, therefore, directly interfered with management's right to assign work under section 7106(a)(2)(B).

For the reasons stated in Bureau of the Public Debt and Kirtland Air Force Base, Provision 5 directly interferes with management's right to assign work under section 7106(a)(2)(B) and is outside the duty to bargain.

Similarly, Provision 6 deprives management of any discretion to deny an employee's request for annual leave or leave without pay (LWOP) when the request is made for a particular reason--a death in the employee's immediate family. As a consequence, management would not be able to assign work to that employee during the period covered by the request, even if management determined it had need of the employee's services. Thus, we find that Provision 6, likewise, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is outside the Agency's duty to bargain. See Bureau of the Public Debt and Kirtland Air Force Base. 2 

In view of our decision that these provisions violate the Statute we find it unnecessary to reach the question of whether these provisions are also inconsistent with FPM Chapter 630, subchapter 3-4b.

VIII. Provision 7

Article 17, Section 5 - Civic Responsibilities:

In addition to the time required to travel to and from the blood center and to give blood, donors will be authorized 4 hours of excused absence, on the day the blood is donated, for recuperation purposes.

A. Position of the Agency

The Agency contends that because Provision 7 would require management to grant an employee's request for administrative leave for the purpose of donating blood without regard for the necessity of the employee's service during the period covered by the request, it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also contends that by requiring it to authorize the leave in an amount in excess of 4 hours, the provision conflicts with an Agency regulation for which a compelling need exists.

B. Analysis and Conclusion

As discussed in connection with Provisions 5 and 6, provisions depriving an agency of its discretion to deny an employee's request for leave nullify management's ability to determine when work will be performed and, hence, directly interfere with the right to assign work. Provision 7 would require the Agency in all instances, without exception, to authorize excused absence in excess of 4 hours for the purpose of donating blood. Consequently, management would not be able to assign work to an employee during the period of his or her absence, even if management determined it had need of the employee's services. Thus, we find that Provision 7 directly interferes with management's right to assign work under 7106(a)(2)(B) and is outside the duty to bargain. See Kirtland Air Force Base, 15 FLRA 580, 583-84 (1984) and Bureau of the Debt, 3 FLRA 769 (1980).

National Federation of Federal Employees, Local 1429 and U.S. Department of the Army, Letterkenney Army Depot,  23 FLRA No. 13 (1986), in which the Authority found that a similar provision was negotiable, is distinguishable. In that case both the language of the provision and the union's explicit statement in the record as to its intended meaning established that the agency could "deny permission for employees to donate blood when the time necessary for such donation would interfere with the Agency's mission. . . . " In this case the language of the provision is unqualified and the Union has stated only that the intent of the provision is "self-explanatory." Petition for Review at 6. Thus the different conclusions reached in the two cases are a consequence of the different meanings of the provisions based on the record before the Authority. It is well settled that the responsibility for creating a record on which the Authority can resolve negotiability issues rests with the parties. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).

In view of the determination that Provision 7 is outside the duty to bargain because it conflicts with management's statutory rights, we do not reach the Agency's additional contention that a compelling need exists for its regulations.

IX. Provision 8

The Authority Members have expressed different opinions as to Provision 8. The Decision and Order on Provision 8 and Chairman Calhoun's separate opinion immediately follow this decision.

X. Provision 9

Article 27, Section - Suggestions and Incentive Awards:

The Union may have one representative on the Incentive Awards Committee. For this membership, the Union shall furnish the names of at least three nominees, who are installation employees, one of whom will be selected by the Employer.

A. Position of the Agency

The Agency contends that Provision 9 interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.  

B. Analysis and Conclusion

Union Provision 9 would require the Agency to select one employee to serve as Union representative on the Incentive Awards Committee. According to the Agency, the Incentive Awards Committee reviews proposals for awards concerning performance recognition and makes recommendations for approval or disapproval of those awards to the Activity Commander. The Agency argues that the determinations made by the committee as to whether the performance of particular employees warrants granting an incentive award are within management's authority to direct employees and assign work under section 7106(a)(2)(A) and (B) based on the Authority's decision in National Treasury Employees Union and Internal Revenue Service, 14 FLRA 463 (1984). The Agency further argues that Provision 9 "is not essentially different from that found nonnegotiable by the Authority" in Department of the Navy, Northern Division. Naval Facilities Engineering Command and National Federation of Federal Employees Local 1430, 19 FLRA 705 (1985), which it characterizes as having called for union representation on the activity incentive awards committee. Statement of Position at 9.

For the following reasons, the Agency's argument is without merit. During the pendency of this case before the Authority, the United States District Court of Appeals for the District of Columbia Circuit rejected the Authority's reasoning in internal Revenue Service, 14 FLRA 463 (1984), relied on by the Agency, that the management right to assign work includes the management right to reward superior performance of what has been assigned. NTEU v. FLRA, 793 F.2d 371, 374 (D.C. Cir. 1986).

Thereafter, based on its decision in NTEU v. FLRA, the D.C. Circuit in an unpublished memorandum decision reversed and remanded Department of the Navy, Northern Division. Naval Facilities Engineering Command, 19 FLRA 705 (1985)--the other Authority decision principally relied on by the Agency. See NFFE, Local 1430 v. FLRA, No. 85-1648 (D.C. Cir. Nov. 6, 1986). In that decision the Authority had determined that the agency had not committed an unfair labor practice when it unilaterally changed the functions of the incentive awards committee on which the union had a role as an observer. In reaching that outcome, the Authority, had relied on internal Revenue Service and reasoned that the determination of whether a particular level of job performance warrants granting an incentive award is within management's authority to assign work and direct employees.   In its order reversing the decision, the court noted specifically that the basis for the Authority's decision had been rejected by the court in its decision in NTEU v. FLRA.

Based on the foregoing, we conclude that the Agency has not established that this provision involves management's rights to direct employees and assign work so as to be outside the duty to bargain.

XI. Provisions 10-18

10. Article 8, Section 6 - Local Representation

Should conditions arise when the amount of time spent on representation responsibilities during duty hours is considered to be unreasonable by the cognizant management official, the Civilian Personnel Officer will meet with the interested parties and after due consideration of all information presented, will attempt to resolve the matter.

11. Article 13, Section 7(a) - Equal Employment Opportunity

EEO Counselors will inform all potential complainants covered by this agreement of their right to Union representation and their right to process their complaint under appropriate statutory procedures or under the negotiated grievance procedure outlined in Article 36.

12. Article 14, Section 10 - Sick Leave

All official sick leave records shall be kept in an appropriate file system and it shall be the responsibility of the Finance and Accounting Division to see that these records are kept.

13. Article 20, Section 1 - Reduction in Force

The Civilian Personnel Office will inform the Union of impending reductions in force within the bargaining unit, and the reasons therefor, as far in advance as practicable. The Civilian Personnel Office will also inform the Union of the affected competitive levels, date of action to be taken, and the  number of employees affected, when this information becomes available. The Civilian Personnel Office will make available to the Union a copy of the retention register containing the names of the affected employees within the bargaining unit.

14. Article 22, Section 8 - Training and Employee Development:

Consistent with workload requirements, the supervisor will upon request, make every effort to reschedule the days of the basic work and the shift hours of an employee to permit attendance at educational institutions at his/her own expense for courses related to the work of the activity.

15. Article 23, Section 11 - Safety, Health and Welfare:

Employees who are injured in the performance of their duties or who contract disease caused by their employment will, upon request, be advised of the benefits available to them under the United Sates Employees' Compensation Act of 7 September 1916, as amended and assisted in the execution of the necessary forms in support of their claims for compensation by the Civilian Personnel Office.

16. Article 28, Section 7 - General Provisions:

The Union shall be allowed to place announcements approved by the Civilian Personnel Officer, e.g., notices of meeting, elections, union reports, etc., in the Center Bulletin.

17. Article 34, Section 6 - Employee Assistance Program:

When the Civilian Program Coordinator interviews the troubled employee, the Civilian Program Coordinator will make a determination as to the specific problem.  

18. Article 34, Section 10 - Employee Assistance Program:

The Civilian Program Coordinator will conduct training session for both Union and supervisory personnel on the early detection of deteriorating performance and on referral skills.

A. Position of the Agency

The Agency contends that Provisions 10-18, as written, require the performance of specific functions by specific individuals or organizations and thereby interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. It states further that if the Union does not intend the provisions to require the Agency to "assign performance of the actions at issue to the particular positions and organizational entities identified, but rather to memorialize the existing practice and require only that the agency perform the actions," the Agency will withdraw its allegations of nonnegotiability.

B. Analysis and Conclusion

The Authority consistently has held that management's right to assign work under section 7106(a)(2)(B) encompasses the right to assign specific duties or functions to particular individuals, including management officials, and that provisions which interfere with this right are nonnegotiable. American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 6), petition for review filed sub nom. Redstone Arsenal Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987).

Provisions 10-18 require the Agency to assign certain duties to the Civilian Personnel Officer (Provisions 10 and 16), EEO Counselors (Provision 11), employees in the Finance and Accounting Division (Provision 12), employees in the Civilian Personnel Office (Provisions 13 and 15), supervisors (Provision 14), and Civilian Personnel Coordinators (Provisions 17 and 18). Therefore, we must conclude that they violate the right to assign work and are nonnegotiable. We note here, as we emphasized in Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 6), that the nonnegotiability of provisions which assign tasks to particular personnel is established in long-standing precedent and  should be familiar to the Union's representatives. This defect in these provisions could have been resolved without adjudication, as the Agency adverted to in its brief to the Authority, if the provisions had been carefully worded to require only that the Agency perform the actions or if the Union had explained its intent instead of simply stating that the provisions are "self-explanatory." Petition for Review at 6 and Agency Statement of Position at 12. See also Overseas Education Association v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987), slip op. at 14 ("It is for the Union, not the FLRA, to draft proposals that come fully within the Employer's duty to negotiate.").

XII. Order

The petition for review is dismissed as to Provisions 2-7 and 10-18. The petition is also dismissed with respect to the provisions from which the Agency withdrew its disapproval. The Agency must rescind its disapproval of Provision 9. 3

Issued, Washington, D.C., September 24, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

DECISION AND ORDER ON PROVISIONS 1 AND 8

I. Provision I

Article 8, Section 8 - Local Representation

Except as hereinafter provided, the Employer agrees that no Union representative will be transferred from one work area, work shift, or work week to another unless such transfer is dictated by compelling work commitments or training requirements, or is at the request of the employee involved. If such a transfer is required, the supervisor involved will, upon request, discuss the transfer with the appropriate Union official five work days in advance of the transfer, except in emergencies.

A. Position of the Agency

The first sentence of Provision 1 interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees and work. The second sentence of Provision 1 is inconsistent with 5 C.F.R. 610.121, a Government-wide regulation. 4 By requiring a discussion 5 days before a change in the administrative workweek, the provision under some circumstances would prevent compliance with the regulation, which requires an agency head to reschedule an employee's regularly scheduled administrative workweek when he or she knows in advance of that workweek that actual work requirements will differ from those required in the schedule.

B. Analysis and Conclusion

1. First Sentence of the Provision

The Authority has held that proposals concerning which employees would perform duties previously assigned to their positions do not violate management's right to assign employees. See Laborers' International Union of North America, AFL - CIO, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687 (1984) (first disputed sentence of Union Proposal 1). Insofar as a portion of the first sentence of Provision 1  relates to the transfer of an employee to a workshift or workweek, there is no indication in the record that the employee would perform duties in the new workweek or workshift other than those which the Agency had already assigned to his or her position. Rather, we find that the provision is merely concerned with when, that is, on what shift or workweek the employee will perform those duties previously assigned to his or her position and is within the duty to bargain. See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 3).

We find distinguishable American Federation of Government Employees, AFL - CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982). In that decision, the Authority held that Union Proposal 7, which would have prohibited employees from going on, among other things, "details" and "special assignments," prevented the agency from assigning certain duties to employees who were also union officials and therefore violated management's right to assign work under section 7106(a)(2)(B). The record in this case, in contrast, does not establish that the provision would prevent the assignment of any duties. We also find distinguishable our decision in National Association of Government Employees, Local R1-109, AFL - CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA No. 63 (1987) in which we held that a proposed prohibition on the assignment of work leaders to weekend duty violated management's right to assign work. In that case, the proposal prevented management from having certain work--supervision--performed when management wanted it to be performed--on weekends. In contrast the present provision does not prevent work from being performed when the Agency chooses. Rather, it is concerned with which employees among those to whom management has assigned the work will perform it on the various shifts and workweeks established by management.

Similarly, we find that the portion of the first sentence of Provision 1 which relates to the transfer of an employee to other work areas is merely concerned with where employees will perform those duties which management has previously assigned to their positions and also does not violate the Agency's right to assign employees. See National Treasury Employees Union and Internal Revenue Service, 28 FLRA No. 11 (1987) (assign certain home office work rather than field-located work to union officials); American Federation of Government Employees, AFL - CIO and Air Force  Logistics Command, Wright - Patterson Air Force Base Ohio, 5 FLRA 83 (1981) (make temporary duty assignments to different geographical areas based on seniority).

Accordingly, we find that the first sentence of Provision 1 does not violate management's rights to assign employees or work and is within the duty to bargain.

2. Second Sentence of the Provision

The second sentence requires the Agency to give the Union 5 days' notice before changing the administrative workweek. Subsequent to the parties' submissions during the pendency of this case we reconsidered the basis of the decision in American Federation of Government Employees, AFL - CIO, Local 2484, and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985), cited by the Agency. In National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986) we found that 5 C.F.R. 610.121(a) and (b), regulations promulgated by Office of Personnel Management to implement 5 U.S.C. 6101(a)(3)(A), 5 require an agency to provide employees with a minimum of 7 days' advance notice of a change in work schedules unless the change is being made for reasons set forth in the Statute (and repeated in 5 C.F.R. 610.121(a)), namely, where it is determined that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. By requiring that the employees involved be given 5 days' advance notice of a change in work schedule, the second sentence of Provision 1 would require less minimum notice than is required by law and regulation. It would not, therefore, necessarily interfere with the Agency's giving the minimum 7 days' notice required by law and regulation.

However, the exception to the notice period set forth in the provision is too narrow. The terms defining the statutory (5 U.S.C. 6101(a)(3)(A)) and regulatory (5 C.F.R. 610.121(a)) exceptions are broader than the term "emergency" used in the provision. Situations falling within the scope of the statute and regulation--circumstances which would seriously handicap an agency in accomplishing its functions or would substantially increase costs--would not necessarily constitute "emergencies" as defined by the Agency pursuant to the right under section 7106(a)(2)(D). The exception set forth in the provision therefore would impermissibly restrict  the Agency's schedules. For that reason, we find that the second sentence of Provision 1 is inconsistent with 5 U.S.C. 6101(a)(3)(A) and 5 C.F.R. 610.121(a) and (b) and outside the duty to bargain. See American Federation of Government Employees, AFL - CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 25 FLRA No. 75 (1987).

II. Provision 8

Article 21, Section 7 - Position Classification:

The statement "performs other duties as assigned" will appear as an unnumbered paragraph in the description to make clear that the assignment of duties to employees is not limited by the content of the job description. Insofar as possible employees will not be assigned incidental duties which are inappropriate to their positions and qualifications as provided in CPR 501.3. (Only the underscored sentence is in dispute.)

A. Position of the Agency

The Agency contends that the provision violates management's right to assign work under section 7106(a)(2)(B) because it would require that, insofar as possible, employees will not be assigned duties which are "inappropriate to their positions and qualifications as provided CPR 501.3." Thus, it claims the provision is substantively identical to Provision 2 found nonnegotiable in National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1984).

B. Analysis and Conclusion

Provision 8, by its language, requires the Agency to ensure, "insofar as possible," that employees do not perform duties which are inappropriate to their positions and qualifications as provided in CPR 501.3. In Vint Hill Farms Station 16 FLRA 578, 580-81 (1984) the Authority held that a virtually identical provision was nonnegotiable. The Authority found that the provision--which would have required the agency to "avoid, insofar as possible, assigning additional or incidental duties to employees which are inappropriate   to their positions or qualifications"--violated management's right to assign work in that it precluded the agency from requiring employees to perform certain duties.

More recently, in National Association of Government Employees, SEIU, AFL - CIO and State of Connecticut, Adjutant General Office, 27 FLRA No. 86 (1987), the Authority was presented with two proposals concerned with the assignment of duties to employees, one of which was held to be nonnegotiable and the other negotiable. Proposal 2 would have limited the definition of the phrase "other duties as assigned" in employee position descriptions in order to prevent the agency from assigning menial or lower grade duties which employees were not qualified to perform, whether or not the agency amended the position descriptions to reflect assignments of the proscribed duties. Therefore, we held that the proposal was nonnegotiable, as Provision 8 is in the present case, for having the same effect as Provision 2 in Vint Hill Farms Station, discussed above.

In contrast, Proposal 3 in State of Connecticut, Adjutant General Office merely required the agency to amend position descriptions to include certain duties where management intended to assign those duties to employees. The Authority reasoned (Chairman Calhoun dissenting) that the proposal would not interfere with management's right to assign work since position descriptions are not themselves assignments of work but merely reflect the duties and responsibilities which an agency has decided to assign to a position. Rather, the decision held that the proposal would assure accurate position descriptions by prescribing a procedure--amending the position description--which management must follow in exercising its right to assign certain duties. The present provision is distinguishable in that, as already stated, it would preclude the Agency from requiring employees to perform certain duties, like the provision in Vint Hill Farms Station and Proposal 2 in State of Connecticut, Adjutant General Office.

While not discussed in the Vint Hill Farms Station decision, we note here that the qualifying language "insofar as possible" does not remove the limitation imposed on management's exercise of its rights by the provision. See American Federation of Government Employees, AFL - CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Proposal 3). Rather, it would have the effect of subjecting management's determinations--that it is not possible to avoid the assignment of duties  which are "inappropriate" to the positions and qualifications of employees--to review in an arbitration proceeding. Thus, it would subject to arbitral review the Agency's assignments of work and permit arbitrators to substitute their judgment for management's. Therefore, consistent with the decision in Vint Hill Farms Station, we find that Provision 8 violates management's right to assign work under section 7106(a)(2)(B) and is outside the duty to bargain.

III. Order

The petition for review is dismissed as to the second sentence of Provision I and Provision 8. The Agency must rescind its disapproval of the first sentence of Provision 1. 6

Issued, Washington, D.C., September 24, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Chairman Calhoun's Dissenting and Concurring Opinion on Provisions 1 and 8

For the reasons stated in my separate opinion on Proposal 1 in National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau Adjutant General, 26 FLRA No. 62 (1987), and my separate opinion on Provision 3 in International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987), I find that the first sentence of Provision 1 infringes on the Agency's right to assign work. Accordingly, I would dismiss the Union's petition for review concerning that sentence. I concur in my colleagues' determination that the second sentence of Provision 1 is nonnegotiable.

Provision 8 concerns the assignment of "incidental duties" to employees. It provides that "insofar as possible," such duties which are inappropriate to employees' positions and qualifications will not be assigned. I concur in my colleagues' holding that Provision 8 is nonnegotiable because it violates management's right to assign work.

I disagree, however, with the majority's finding that Provision 8 is distinguishable from Proposal 3, which the majority found to be negotiable in National Association of Government Employees, SEIU, AFL - CIO and State of Connecticut, Adjutant General Office, 27 FLRA No. 86 (1987). That proposal prevented management from assigning certain duties to employees unless those duties were specifically included in the employees' position descriptions. As I stated in my dissenting opinion in that case, I do not believe that management can be required to amend position descriptions in order to assign work. In my view, both Proposal 3 in State of Connecticut, which conditions the right to assign certain work on the amendment of position descriptions, and Provision 8 in the instant case, which requires the Agency to ensure that certain work is not assigned at all, are nonnegotiable.

Issued, Washington, D.C., September 24, 1987.

Jerry L. Calhoun, Chairman 

 

FOOTNOTES

Footnote 1 The Agency withdrew its disapproval of Article 3, Section 2; Article 20, Section 8; and Article 32, Section 4. Consequently, these provisions will not be considered further here.

Footnote 2 Federal personnel laws and regulations contain no separate provision for leave for reasons of death of an employee's family member other than for the death of a family member who is in the Armed Forces. See 5 U.S.C. 6326 and FPM Chapter 630, subchapter 8. Absence from duty for reasons of a death of a family member who is not in the Armed Forces is covered by annual leave and/or LWOP. See FPM Chapter 630, subchapter 3-4(a)(2) and 12-2.

Footnote 3 In deciding that this provision is within the duty to bargain, the Authority makes no judgment as to its merits.

Footnote 4 5 C.F.R. 610.121(a) and (b) (1986) provides: 610.121 Establishment of work schedules. (a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that-- (1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less I week; (2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive; (3) The working hours in each day in the basic workweek are the same; (4) The basic non-overtime workday may not exceed 8 hours; (5) The occurrence of holidays may not affect the designation of the basic workweek; and (6) Breaks in working hours of more than 1 hour may not be scheduled in a basic workday. (b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements. (2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, or he or she shall record the change on the employee's time card or other agency document for recording work. (3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under Subpart A of Part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.

Footnote 5 5 U.S.C. 6101(a) provides, in relevant part, as follows: 6101. Basic 40-hour workweek; work schedules; regulations (a)(1) For the purpose of this subsection, "employee" includes an employee of the government of the District of Columbia and an employee whose pay is fixed and adjusted from time to time under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, but does not include an employee or individual excluded from the definition of employee in section 5541(2) of this title, except as specifically provided under this paragraph. (2) The head of each Executive agency, military department, and of the government of the District of Columbia shall-- (A) establish a basic administrative workweek of 40 hours for each full-time employee in his organization; and (B) require that the hours of work within that workweek be performed within a period of not more than 6 of any 7 consecutive days. (3) Except when the head of an Executive agency, a military department, or of the government of the District of Columbia determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that-- (A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week; (B) the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive; (C) the working hours in each day in the basic workweek are the same; (D) the basic non-overtime workday may not exceed 8 hours; (E) the occurrence of holidays may not affect the designation of the basic workweek; and (F) breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

Footnote 6 In deciding that this provision is within the duty to bargain, the Authority makes no judgment as to its merits.

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