National Labor Relations Board Union, Local 19 (Union) and NLRB Region 19 (Activity) (Authority decision, March 7, 1980)

Final FLRA decision. This is a final order resolving a negotiability appeal. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The union for NLRB Region 19 proposed limiting a clerical assistant's performance of office manager duties to times when the assistant was formally acting as office manager. The agency said this restricted its right to assign work. The Authority agreed: the proposal conditioned those assignments on the manager's absence and removed management's discretion over who would do the work and when. It held the proposal outside the duty to bargain and sustained the agency's determination. It did not reach the agency's separate argument about a national agreement.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Proposal held nonnegotiable; agency determination sustained.
• Key point: Conditioning work assignments on the manager's absence restricted management's assignment right.

Full text (FLRA public release)

[ v02 p775 ]

02:0775(98)NG

The decision of the Authority follows:

2 FLRA No. 98

NATIONAL LABOR RELATIONS BOARD UNION,
LOCAL 19
(Union)

and

NATIONAL LABOR RELATIONS BOARD,
REGION 19
(Activity)

Case No. 0-NG-131

DECISION 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) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL

. . . .

2. UNTIL SUCH TIME AS THE OFFICE OF THE GENERAL COUNSEL AND THE
   NATIONAL LABOR RELATIONS

BOARD UNION AGREE TO EXCLUDE THE CLERICAL ASSISTANT FROM THE CLERICAL
UNIT OR AN APPROPRIATE

"PETITION" IS FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY, IT IS
AGREED THAT ASSIGNMENTS

OF WORK TO THE CLERICAL ASSISTANT WILL BE LIMITED TO CLERICAL DUTIES
AND ROUTINE

ADMINISTRATIVE DETAIL INCIDENT TO THE OFFICE MANAGER'S EXERCISE OF
HIS OR HER RESPONSIBILITIES

UNLESS THE CLERICAL ASSISTANT IS DULY APPOINTED THE ACTING OFFICE
MANAGER IN THE ABSENCE OF

THE OFFICE MANAGER.

3. THE CLERICAL ASSISTANT WILL NOT, UNLESS DULY DESIGNATED AS ACTING
   OFFICE MANAGER, HE

REQUIRED TO PERFORM OR PARTICIPATE IN THE FOLLOWING RESPONSIBILITIES
OF THE OFFICE MANAGER.

(A) DETERMINE THE PRESENCE AND ABSENCE OF EMPLOYEES IN CONNECTION
WITH THEIR ARRIVAL AND

DEPARTURE;

(B) ASCERTAIN THE REASONS FOR, OR PRESCRIBE THE APPROPRIATE ACTION TO
BE TAKEN INCONNECTION

WITH, THE LATE ARRIVAL OR EARLY DEPARTURE OF CLERICAL EMPLOYEES
(WHICH IS NOT TO SAY THAT THE

CLERICAL ASSISTANT MAY NOT BE ASSIGNED TO PERFORM THE ROUTINE
ADMINISTRATIVE AND CLERICAL

FUNCTION OF RECORDING TIME AND ATTENDANCE);

(C) THE CONDUCT OF PRE-HIRE INTERVIEWS OF PROSPECTIVE EMPLOYEES OR
VIEWS OF QUALIFICATIONS

FOR HIRE SOLICITED;

(D) THE CONDUCT OF CORRECTIVE, DISCIPLINARY AND/OR APPRAISAL
INTERVIEWS OF EMPLOYEES OR

COMMENTS ON EMPLOYEE WORK PERFORMANCE SOLICITED;

(E) MAKE ASSIGNMENTS OF WORK OF A MANDATORY NATURE AS OPPOSED TO
ROUTINE WORK COORDINATION

DISTRIBUTION OF WORK;

(F) THE FORMULATION OR CONDUCT OF LABOR RELATIONS.

4. IF IN CONNECTION WITH THE FOREGOING A QUESTION SHOULD ARISE
   REGARDING THE

APPROPRIATENESS OF DUTIES ASSIGNED THE CLERICAL ASSISTANT, THE
PARTIES WILL DISCUSS THE

ASSIGNMENT BEFORE IT IS IMPLEMENTED.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL, THAT THE AGENCY ASSIGN
CERTAIN DUTIES TO THE CLERICAL ASSISTANT TO THE OFFICE MANAGER, ONLY IF
THE CLERICAL ASSISTANT IS DULY APPOINTED ACTING OFFICE MANAGER IN THE
ABSENCE OF THE OFFICE MANAGER, WOULD VIOLATE THE STATUTE, AS ALLEGED BY
THE AGENCY.

OPINION

CONCLUSION: THE PROPOSAL CONFLICTS WITH SECTION 7106(A)(2)(B) OF THE
STATUTE. /1/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE
AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN IS SUSTAINED.

REASONS: THE RECORD INDICATES THAT THE UNION'S PROPOSAL WOULD
PROHIBIT THE ASSIGNMENT OF CERTAIN DUTIES AND WORK TO THE CLERICAL
ASSISTANT TO THE OFFICE MANAGER, EXCEPT IN THE ABSENCE OF THE OFFICE
MANAGER. THAT IS, THE PROPOSAL EXPRESSLY WOULD CONDITION MANAGEMENT'S
ASSIGNING OF SUCH DUTIES AND WORK TO THE CLERICAL ASSISTANT UPON THE
ABSENCE OF THE OFFICE MANAGER. THE AGENCY RETAINS THE RIGHT UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK TO POSITIONS OR
EMPLOYEES. /2/ THE DISPUTED PROPOSAL, HOWEVER, WOULD ESTABLISH A
CONDITION (THE ABSENCE OF THE OFFICE MANAGER) UPON MANAGEMENT'S ABILITY
TO ASSIGN THE WORK INVOLVED. THE PROPOSAL THEREBY WOULD ELIMINATE THE
DISCRETION INHERENT IN MANAGEMENT'S RIGHT TO ASSIGN WORK, I.E., WHICH
POSITION OR EMPLOYEE THE WORK WILL BE ASSIGNED TO, AND WHEN IT WILL BE
ASSIGNED. /3/ THUS, CONTRARY TO THE UNION'S CONTENTIONS THE DISPUTED
PROPOSAL WOULD NOT BE LIMITED TO ESTABLISHING THE ESSENTIALLY PROCEDURAL
REQUIREMENT THAT WHEN THE CLERICAL ASSISTANT TO THE OFFICE MANAGER IS
ASSIGNED TO PERFORM OFFICE MANAGER DUTIES, THAT INDIVIDUAL WILL BE
DESIGNATED AS ACTING OFFICE MANAGER. RATHER, IT WOULD ESTABLISH A
CONDITION ON MANAGEMENT'S RIGHT TO ASSIGN CERTAIN DUTIES AND WORK TO THE
CLERICAL ASSISTANT TO THE OFFICE MANAGER IN VIOLATION OF SECTION
7106(A)(2)(B) OF THE STATUTE.

BASED ON THE FOREGOING, THE DISPUTED PROPOSAL WOULD VIOLATE SECTION
7106(A)(2)(B) OF THE STATUTE. ACCORDINGLY, THE AGENCY'S ALLEGATION THAT
THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
/4/

ISSUED, WASHINGTON, D.C., MARCH 7, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106(A)(2)(B) OF THE STATUTE (92 STAT. 1198) PROVIDES, IN
RELEVANT PART, AS FOLLOWS:

SEC. 7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE

AUTHORITY OF ANY AGENCY--

. . . .

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(B) TO ASSIGN WORK, . . .

/2/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO CASE NO.
O-NG-40, 2 FLRA NO. 77, (JAN. 31, 1980), AT 20 OF THE DECISION.

/3/ ID. AT 28 OF THE DECISION.

/4/ SINCE THE DISPUTED PROPOSAL VIOLATES SECTION 7106(A)(2)(B) OF THE
STATUTE, IT IS UNNECESSARY TO CONSIDER THE AGENCY'S ADDITIONAL
CONTENTION THAT THE PROPOSAL CONFLICTS WITH A CONTROLLING NATIONAL
AGREEMENT BETWEEN THE PARTIES.