American Federation of Government Employees, Local 1622, AFL-CIO (Union) and Department of the Army, Fort Meade, Maryland (Activity) (Authority decision, October 17, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union at Fort Meade proposed that bargaining unit employees’ hours of work not be reduced without just cause. The Army argued the proposal intruded on management’s discretion over staffing assignments. The Authority found that the proposal set a general standard for reviewing a later reduction in hours and was an appropriate arrangement for affected employees. It directed the Army to bargain on request.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(3), 5 U.S.C. § 7117.
• Outcome: Agency nonnegotiability position rejected; bargaining ordered.
• Key point: A general just-cause standard for reduced hours was an appropriate arrangement.

Full text (FLRA public release)

[ v04 p480 ]

04:0480(66)NG

The decision of the Authority follows:

4 FLRA No. 66

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1622
Union

and

DEPARTMENT OF THE ARMY
FORT MEADE, MARYLAND
Activity

Case No. 0-NG-128

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 (5 U.S.C.
7101-7135).

THE UNION'S PROPOSAL

HOURS OF WORK FOR EMPLOYEES IN THE UNIT WILL NOT BE REDUCED WITHOUT
JUST CAUSE.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNS A MATTER WITHIN
THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, OR WHETHER, AS ALLEGED
BY THE AGENCY, IT IS DETERMINATIVE OF MATTERS WITHIN THE AMBIT OF
SECTION 7106(B)(1) OF THE STATUTE AND, THUS, NEGOTIABLE ONLY "AT THE
ELECTION OF THE AGENCY." /1/

OPINION

CONCLUSION AND ORDER: THE UNION'S PROPOSAL CONCERNS A MATTER WHICH
IS WITHIN THE OBLIGATION TO BARGAIN BY REASON OF SECTION 7106(B)(3) OF
THE STATUTE. /2/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS, (5 CFR 2424.10, AS AMENDED BY 45 F.R.
48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
PROPOSAL. /3/

REASONS: THE AGENCY CONTENDS THE UNION PROPOSAL WOULD INTERFERE WITH
THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER SECTION 7106(B)(1). THE
AGENCY MAINTAINS, IN THIS CONNECTION, THE PROPOSAL WOULD REQUIRE THE
AGENCY TO BARGAIN OVER THE "NUMBERS, TYPES, AND GRADES OF EMPLOYEES . .
. ASSIGNED TO ANY . . . WORK PROJECT, OR TOUR OF DUTY, . . ." CONTRARY
TO THE AGENCY'S RIGHT TO ELECT WHETHER TO BARGAIN ON THESE MATTERS,
BECAUSE IT IS INTEGRALLY RELATED TO AND CONSEQUENTLY DETERMINATIVE OF
SUCH NUMBERS, TYPES, AND GRADES OF EMPLOYEES SO ASSIGNED.

SECTION 7106(B)(1) OF THE STATUTE MAKES THE NUMBERS, TYPES, AND
GRADES OF EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION, WORK
PROJECT OR TOUR OF DUTY NEGOTIABLE AT THE ELECTION OF THE AGENCY.
HOWEVER, SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDES THAT
MANAGEMENT HAS A DUTY TO BARGAIN ON PROCEDURES WHICH MANAGEMENT
OFFICIALS WILL OBSERVE IN EXERCISING ITS RIGHT AND ON APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF THE
RIGHT. /4/

THE PROPOSAL HERE ON ITS FACE DOES NOT EXPLICITLY RELATE TO THE
AGENCY'S DECISION AS TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
ASSIGNED TO WORK PROJECTS OR TOURS OF DUTIES. MOREOVER, THE AGENCY HAS
NOT DEMONSTRATED AND THE RECORD DOES NOT OTHERWISE DISCLOSE, IN WHAT
MANNER THE PROPOSAL, AS THE AGENCY CONTENDS, IS INTEGRALLY RELATED TO
AND THEREBY DETERMINATIVE OF THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
SO ASSIGNED. RATHER, THE DISPUTED PROPOSAL THAT HOURS OF WORK NOT BE
REDUCED WITHOUT "JUST CAUSE" WOULD ESTABLISH A GENERAL, NONQUANTITATIVE
CONTRACTUAL REQUIREMENT BY WHICH MANAGEMENT'S REDUCTION OF THE HOURS OF
WORK OF AN INDIVIDUAL COULD BE EVALUATED IN A SUBSEQUENT GRIEVANCE BY
THE EMPLOYEE WHO BELIEVES HE OR SHE HAS BEEN ADVERSELY AFFECTED BY THE
AGENCY ACTION.

THE AUTHORITY ADDRESSED THE ISSUE OF BARGAINING OVER ARRANGEMENTS FOR
ADVERSELY AFFECTED EMPLOYEES IN NATIONAL TREASURY EMPLOYEE UNION AND
DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO.
119(1980), WHERE THE AUTHORITY APPLIED SECTION 7106(A)(2)(A) AND (B) OF
THE STATUTE CONCERNING THE RIGHTS OF MANAGEMENT TO DIRECT EMPLOYEES AND
ASSIGN WORK. ANALYZING THE PURPOSE AND FUNCTION OF CRITICAL ELEMENTS
AND PERFORMANCE STANDARDS WHICH WERE THERE INVOLVED, THE AUTHORITY
FOUND
THE RIGHT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER THE STATUTE INCLUDES
THE AUTHORITY TO ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE STANDARDS.
ACCORDINGLY, THE AUTHORITY HELD THAT THE PROPOSAL IN THAT CASE WHICH
WOULD HAVE IDENTIFIED CRITICAL ELEMENTS AND ESTABLISHED QUANTITATIVE
PERFORMANCE STANDARDS FOR JOB ELEMENTS WAS NOT WITHIN THE DUTY TO
BARGAIN. HOWEVER, THE DECISION EMPHASIZED AN AGENCY HAS A DUTY TO
BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE ON APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
OF ITS AUTHORITY UNDER SECTION 7106(A), I.E., ACTIONS TAKEN UNDER SUCH
STANDARDS. THUS, THE AUTHORITY STATED (AT 13 OF ITS DECISION) THAT
NOTHING IN ITS DECISION WOULD PRECLUDE AN EXCLUSIVE REPRESENTATIVE FROM
NEGOTIATING CRITERIA FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH
MANAGEMENT HAS ESTABLISHED.

THE AUTHORITY APPLIED THIS PRINCIPLE IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980) AT 6-11 OF THE
DECISION TO A PROPOSAL WHICH IN PART PROVIDED THAT PERFORMANCE STANDARDS
"WILL BE FAIR AND EQUITABLE." RELYING ON BUREAU OF THE PUBLIC DEBT, THE
AUTHORITY CONCLUDED THAT THE PROPOSAL CONSTITUTED A "GENERAL,
NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF CRITICAL
ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT MAY
SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES
THAT HE HAS BEEN ADVERSELY AFFECTED BY THE APPLICATION OF MANAGEMENT'S
PERFORMANCE STANDARD TO HIM . . ." HENCE, THE AUTHORITY RULED THE
PROPOSED REQUIREMENT WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION
7106(B)(3) OF THE STATUTE.

AS ALREADY STATED, THE DISPUTED PROPOSAL IN THE INSTANT CASE
SIMILARLY WOULD ESTABLISH A GENERAL NONQUANTITATIVE REQUIREMENT BY WHICH
MANAGEMENT'S REDUCTION OF THE HOURS OF WORK OF INDIVIDUAL EMPLOYEES
COULD BE SUBSEQUENTLY EVALUATED IN A GRIEVANCE BY THE EMPLOYEE WHO
BELIEVES HE OR SHE HAS BEEN ADVERSELY AFFECTED BY THE AGENCY'S ACTION.
THUS, AN EMPLOYEE WHOSE HOURS OF WORK HAVE BEEN REDUCED MAY, IN A
GRIEVANCE OF SUCH ACTION PURSUANT TO SECTION 7121 OF THE STATUTE, RAISE
THE ISSUE OF WHETHER THE AGENCY'S ACTION, AS APPLIED TO HIM OR HER,
MEETS THE CONTRACTUAL REQUIREMENT. /5/ REVIEW BY AN ARBITRATOR WOULD
NOT PRECLUDE THE AGENCY FROM REDUCING HOURS OF WORK IN ACCORDANCE WITH
THE EMPLOYEE'S JOB DESCRIPTION, NOR WOULD IT RESULT IN THE SUBSTITUTION
OF AN ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY. IT WOULD SIMPLY
DETERMINE IF THE AGENCY'S DECISION REGARDING THE REDUCTION IN HOURS AS
APPLIED TO THE GRIEVANT COMPLIED WITH THE "JUST CAUSE" REQUIREMENT OF
THE PARTIES' AGREEMENT.

ACCORDINGLY, BASED ON THE FOREGOING, THE AGENCY'S ALLEGATION THAT THE
PROPOSAL IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
7106(B)(1) CANNOT BE SUSTAINED. THE PROPOSAL IS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN APPROPRIATE
ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S AUTHORITY
UNDER THE STATUTE.

ISSUED, WASHINGTON, D.C., OCTOBER 17, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

COPIES OF THE DECISION AND ORDER ON NEGOTIABILITY ISSUE IN THE
SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES BELOW:

MR. RONALD D. KING, DIRECTOR

CONTRACT AND APPEALS DIVISION

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

1325 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20005

MR. CHARLES E. THOMAS, ACTING CHIEF

LABOR AND EMPLOYEE RELATIONS DIVISION

OFFICE OF THE DEPUTY CHIEF OF STAFF

FOR PERSONNEL

DEPARTMENT OF THE ARMY

ROOM 2C655, THE PENTAGON

WASHINGTON, D.C. 20310

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

/1/ SECTION 7106(B)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1198) PROVIDES:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)

/2/ 5 U.S.C SECTION 7106(B)(2) AND (3) PROVIDES:

SEC. 7106. MANAGEMENT RIGHTS

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

. . . .

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION; OR

(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY

AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.

/3/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO ITS MERIT.

/4/ NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE
SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA NO. 106(1979) AT 2 TO 3 OF
THE DECISION.

/5/ CF. NATIONAL TREASURY EMPLOYEE'S UNION, CHAPTER 6 AND INTERNAL
REVENUE SERVICE, NEW ORLEANS DISTRICT OFFICE, 1 FLRA NO. 102(1979)
REQUIREMENT THAT CERTAIN AGENCY DETERMINATIONS "BE MADE IN A FAIR,
OBJECTIVE AND EQUITABLE MANNER" IS WITHIN THE DUTY TO BARGAIN UNDER
SECTION 7106(B)(2).