NFFE Local 29 and Kansas City District Corps of Engineers (Authority decision, October 24, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NFFE Local 29 proposed requirements concerning management instruction on the agreement, identification of supervisors, and reports on management time spent on labor relations tasks. The Authority found the instruction proposal concerned managers outside the bargaining unit. It found that the identification proposal could let employees refuse to recognize a supervisor and interfere with management's right to direct and assign work. The reporting proposal would require supervisors to create records as an assigned duty. The Authority held all three proposals outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Petition dismissed as to all three proposals.
• Key point: Proposals that limit recognition of supervisors or assign them recordkeeping duties can interfere with management rights.

Full text (FLRA public release)

[ v20 p531 ]

20:0531(64)NG

The decision of the Authority follows:

20 FLRA No. 64

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union

and

U.S.ARMY CORPS OF ENGINEERS,
KANSAS CITY DISTRICT, KANSAS
CITY, MISSOURI
Agency

Case No. 0-NG-1085

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises issues concerning the negotiability of three Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal 1

Article 4, Section 3, (a) The employer shall within 30 days of signing this Agreement, inform and instruct all levels of management of the provisions of this Agreement.

It is well established that the duty to bargain under the Statute extends only to those conditions of employment, i.e., personnel policies, practices, and matters affecting working conditions, which affect bargaining unit employees. See e.g., National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, and U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292(1980). However, pursuant to section 7112(b)(1) of the Statute, /1/ supervisory and management officials are specifically excluded from inclusion in appropriate bargaining units. Thus, proposals which concern such management and supervisory positions are generally negotiable only at the election of management. E.g., International Association of Firefighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 445(1980). As relevant herein, Proposal 1 expressly concerns actions management will be obligated to undertake with regard to nonbargaining unit employees, specifically "all levels of management." That is, in agreement with the Agency, as the proposal concerns the manner in which the Agency communicates with its management and supervisory officials it does not involve a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute. /2/ Therefore, the Authority concludes that since the Agency has elected not to bargain on this proposal it is outside the duty to bargain.

Union Proposal 2

Article 4, Section 3, (c) The employer shall provide the Union, in writing, a list containing the names, telephone numbers, title and area of responsibility of all management and supervisory personnel, the first week of October and April of each year and at such other times whenever a change occurs. If a management or supervisory official is not so designated, the Union or the employees have no obligation to recognize that individual(s) as agency representatives.

It appears from the record that the Agency objects only to the second part of the proposal which would permit the Union or employees to refuse to recognize a management or supervisory official as such until that official has been identified to the Union pursuant to the first part of the proposal. /3/

In this regard, the Authority has determined that in certain circumstances a proposal which requires management to identify to an employee management or supervisory personnel on its face constitutes a negotiable "procedure" within the meaning of section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 91(1983). However, a proposal which requires similar identification would not constitute a negotiable procedure to the extent that it places limitations on management's ability to act pursuant to its reserved management rights. See Association of Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346, 348-50(1981), rev'd as to other aspects sub nom. Adjutant General, Department of Military Affairs, Pennsylvania v. FLRA, 685 F.2d 93(3rd Cir. 1982).

As relevant herein, and in agreement with the Agency, the Authority concludes that Proposal 2 does not merely require the Agency to identify certain management or supervisory personnel but rather, places limitations on the Agency's right to "direct" employees and to "assign work" pursuant to section 7106(a)(2)(A) and (B) of the Statute. That is, contrary to the Union's claim that the proposal is intended to apply only to labor relations matters, this proposal expressly permits employees to refuse to recognize a management or supervisory official unless that official has been identified according to the first portion of the proposal. /4/ As a result, if the Agency does not identify a management or supervisory official as specified therein, an employee could refuse to recognize that individual as a management or supervisory official for any purpose, including the ability to assign work or direct employees. Thus, the Authority concludes that this proposal places a limitation on the Agency's right to "direct" employees and to "assign work." In addition, if for any reason the Agency had not identified a management or supervisory official according to the first portion of the proposal the Agency effectively would be precluded from assigning work to that official, including duties involving labor relations matters, since the Union would be able to refuse to recognize that official as the Agency's chosen representative. Thus, as this proposal directly interferes with the Agency's right to "direct" employees and to "assign work" it is outside the duty to bargain.

Union Proposal 3

Article 4, Section 3(d) The employer shall report to the Union, in writing, at the end of each pay period the amount of official duty time used, by each management or supervisory official, for the following types of activities, as they relate to bargaining unit employees:

1. Representation of the agency in complaints, disciplinary
   actions, adverse actions, discrimination complaints, statutory appeals, and/or grievances;

2. Receipt, investigation, preparation and/or response to
   complaints, disciplinary actions, adverse actions, discrimination complaints, statutory appeals, and/or grievances;

3. Observation of or participation in a complaint,
   disciplinary action, adverse action, discrimination complaint, statutory appeal, and/or grievance;

4. Representation of the agency at an adjustment of a
   complaint, disciplinary action, adverse action, discrimination complaint, statutory appeal, and/or grievance;

5. Attendance at a committee/panel meeting(s) as an agency
   representative or observer;

6. Review of and/or response to memos, DFs, letters,
   complaints, new or proposed changes in working conditions or conditions of employment of unit employees;

7. Receipt of and/or response to data request, complaints,
   and/or letters from the Union;

8. Attendance or presentation at any hearing or meeting which
   affects labor-management relations, including training seminars;

9. Representation of the agency in matter to or before the
   FLRA, FMCS, FSIP, EEOC, MSPB, OSC, and/or the courts;

10. Preparation and filing of reports required by this
    Agreement or higher headquarters relative to labor-management relations;

11. Attendance at meetings/consultations with employees,
    pursuant to section 7114(a)(2) of the Statute, or with the Union;

12. Preparations for and negotiations; and

13. Cost associated with any of the above (i.e., travel and
    per diem).

This information will be provided as total number of hours used, to nearest quarter hour, for each individual; except time spent in preparation for negotiations shall be reported separate from the total. This information will be provided no later than two days after the end of each pay period. Supporting documentation shall be attached.

Union Proposal 3, by its express terms, does not directly involve personnel policies, practices or matters affecting working conditions of bargaining unit employees but rather, the use of official time for a variety of specified labor relations activities by nonbargaining unit employees, i.e., management and supervisory officials. Moreover, in this connection, the Agency contends that it does not maintain such information in the regular course of its operations. Thus, this proposal would have the effect of requiring management and supervisory officials to create and maintain records relating to their use of official time. In this regard, Union Proposal 3 is to the same effect as Union Proposal 2 found nonnegotiable in National Treasury Employees Union, Chapter 91 and Department of the Treasury, Internal Revenue Service, Southwest Region, 17 FLRA No. 77(1985). There, the Authority determined that as the disputed proposal required supervisors to create and maintain certain records it constituted an assignment of work to such supervisors and thus conflicted with section 7106(a)(2)(B) of the Statute. Consequently, based on Internal Revenue Service, Southwest Region and the reasons and case cited therein, Union Proposal 3, which also requires supervisors and management officials to create and maintain records concerns the assignment of specified duties to supervisors and management officials and is outside the duty to bargain.
/5/

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., October 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7112(b)(1) of the Statute provides, in relevant part:

Section 7112. Determination of appropriate units for labor organization representation

. . . .

(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes--

(1) . . . any management official or supervisor.

/2/ Section 7103(a)(14) of the Statute provides, in relevant part:

Sec. 7103. Definitions; application

(a) For the purpose of this chapter--

. . . .

(14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions. . . .

/3/ Agency Statement of Position at 3.

/4/ The Authority has consistently held that it will not base a negotiability determination on a union's statement of intent which is inconsistent with the express language of the disputed proposal. See, e.g., American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA No. 118(1985) at 5 n. 7 of the decision.

/5/ In view of this conclusion, the Authority finds it unnecessary to address the Agency's contention that the proposal conflicts with section 7114(b)(4) of the Statute.