American Federation of Government Employees, AFL-CIO, Local 3529 (Labor Organization) and Defense Contract Audit Agency (Activity) (Authority decision, May 30, 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 Defense Contract Audit Agency union challenged an auditor rotation policy through a proposed bargaining term. The Authority found the proposal would interfere with management’s statutory right to assign employees. It sustained the agency’s nonnegotiability allegation.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Auditor rotation proposal held outside duty to bargain.
• Key point: The proposal restricted management’s assignment authority.

Full text (FLRA public release)

[ v03 p301 ]

03:0301(46)NG

The decision of the Authority follows:

3 FLRA No. 46

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 3529
(Labor Organization)

and

DEFENSE CONTRACT AUDIT AGENCY
(Activity)

Case No. 0-NG-14

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

UNION PROPOSAL

THE DESCRIPTION OF THE PROPOSAL AT ISSUE CONTAINED IN A LETTER FROM
RONALD D. KING, DIRECTOR, CONTRACT AND APPEALS DIVISION, AFGE TO
FREDERICK NEUMAN, DIRECTOR OF THE DCAA, DATED DECEMBER 12, 1978, IS:

. . . TO HAVE THE DCAA AUDITOR ROTATION POLICY NOT APPLY TO THE
BARGAINING UNIT . . .

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE AGENCY'S
DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
(FSLMR) STATUTE, AS ALLEGED BY THE AGENCY.

THE UNION RAISED A THRESHOLD ISSUE OBJECTING TO THE AUTHORITY'S
REQUESTING THE AGENCY TO SUPPLEMENT ITS INITIAL SUBMISSION. ADDITIONAL
INFORMATION WAS REQUESTED FROM BOTH PARTIES TO COMPLETE THE CASE FILE
SINCE NEITHER PARTY IN ITS INITIAL SUBMISSION GAVE AN ACCURATE OR
COMPLETE DESCRIPTION OF THE PRESENT STATUS OF THE PARTIES' DISPUTE.
THEREFORE, THE UNION'S OBJECTION CANNOT BE SUSTAINED.

CONCLUSION: THE SUBJECT PROPOSAL VIOLATES SECTION 7106(A)(2)(A) OF
THE FSLMR STATUTE. /1/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION
THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
SUSTAINED.

REASONS: THE RECORD BEFORE THE AUTHORITY INDICATES THAT THE AGENCY'S
AUDITOR ROTATION POLICY ESTABLISHES A MAXIMUM PERIOD FOR THE CONTINUOUS
ASSIGNMENT OF AN AUDITOR AT ONE LOCATION, AFTER WHICH AN AUDITOR WOULD
BE SUBJECT TO A CHANGE IN ASSIGNMENT. THE AGENCY MEMORANDUM
ESTABLISHING THIS POLICY, IN ESSENCE DESCRIBES SUCH "CHANGES IN
ASSIGNMENT" AS CHANGES WITHIN THE ORGANIZATIONAL STRUCTURE OF THE
AGENCY, SPECIFICALLY:

(1) MOVES (LATERAL OR BY PROMOTION) TO OTHER DUTY STATIONS SUCH AS
REASSIGNMENT BETWEEN

FAOS, SUBOFFICES, PLA ACTIVITIES AND/OR REGIONAL HEADQUARTERS.

(2) MAJOR WORK ASSIGNMENT CHANGES WITH OR WITHOUT CHANGE OF DUTY
STATION WHICH COMPLETELY

CHANGE THE CONTRACTOR CONTACTS AND WORK RELATIONSHIPS OF THE
EMPLOYEE. SOME EXAMPLES ARE,

MOVES WITHIN AN FAO BETWEEN MOBILE AUDIT WORK AND PERMANENT OFFICES
OR SUBOFFICES, BETWEEN

MOBILE AUDIT TEAMS INVOLVING A COMPLETELY NEW GROUP OF CONTRACTORS,
AND CHANGE OF FAO

COGNIZANCE FOR PERSONNEL AT REGIONAL HEADQUARTERS LEVEL.

THE UNION'S PROPOSAL ESSENTIALLY WOULD PRECLUDE THE AGENCY FROM
APPLYING THIS MANDATORY REASSIGNMENT POLICY TO BARGAINING UNIT
EMPLOYEES. THE AGENCY CONTENDS, INSOFAR AS IS RELEVANT HEREIN, THAT THE
PROPOSAL VIOLATES SECTION 7106(A)(2)(A) OF THE STATUTE. IN VIEW OF THE
DECISION THAT THE PROPOSAL VIOLATES SECTION 7106 OF THE STATUTE, THE
AUTHORITY FINDS IT UNNECESSARY TO CONSIDER THE AGENCY'S ADDITIONAL
CONTENTIONS.

SECTION 7106(A)(2)(A) RESERVES TO MANAGEMENT THE RIGHT TO "ASSIGN .
. . EMPLOYEES IN THE AGENCY." THE AUTHORITY RECENTLY CONSIDERED THE
MEANING OF THE TERM "ASSIGN . . . EMPLOYEES" IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, NO. O-NG-40, 2 FLRA NO. 77 (JAN.
31, 1980), STATING AT 10:

THE RIGHT TO ASSIGN EMPLOYEES IN THE AGENCY UNDER SECTION
7106(A)(2)(A) OF THE STATUTE IS

MORE THAN MERELY THE RIGHT TO DECIDE TO ASSIGN AN EMPLOYEE TO A
POSITION. AN AGENCY CHOOSES

TO ASSIGN AN EMPLOYEE TO A POSITION SO THAT THE WORK OF THAT POSITION
WILL BE DONE. UNDER

SECTION 7106(A)(2)(A) OF THE STATUTE, THE AGENCY RETAINS DISCRETION
AS TO THE PERSONNEL

REQUIREMENTS OF THE WORK OF THE POSITION, I.E., THE QUALIFICATIONS
AND SKILLS NEEDED TO DO THE

WORK, AS WELL AS SUCH JOB-RELATED INDIVIDUAL CHARACTERISTICS AS
JUDGMENT AND

RELIABILITY. THEREFORE, THE RIGHT TO ASSIGN AN EMPLOYEE TO A
POSITION INCLUDES THE DISCRETION

TO DETERMINE WHICH EMPLOYEE WILL BE ASSIGNED.

THUS, THE AUTHORITY HAS DETERMINED THAT A PROPOSAL WHICH DIVESTS
MANAGEMENT OF ITS DISCRETION TO ASSIGN EMPLOYEES WOULD BE IN VIOLATION
OF SECTION 7106(A)(2)(A) OF THE STATUTE.

IN THIS INSTANCE, MANAGEMENT'S RIGHT TO ASSIGN IS MANIFESTED IN ITS
MANDATORY REASSIGNMENT POLICY. THE PRESENT PROPOSAL WOULD PROHIBIT
MANAGEMENT FROM APPLYING THE POLICY TO BARGAINING UNIT EMPLOYEES AND,
THEREFORE, WOULD PROHIBIT MANAGEMENT FROM CHANGING THE ASSIGNMENT OF
AUDITORS WHO HAVE COMPLETED DESIGNATED PERIODS OF CONTINUOUS ASSIGNMENT
AT SINGLE LOCATIONS. SINCE THE PROPOSAL THEREFORE CONSTITUTES A BAR TO
MANAGEMENT'S MAKING ROTATIONAL ASSIGNMENTS WITHIN THE BARGAINING UNIT,
IT CLEARLY DIVESTS MANAGEMENT OF ANY DISCRETION TO ASSIGN EMPLOYEES IN
THAT REGARD, AND THUS VIOLATES SECTION 7106(A)(2)(A).

IN SO DECIDING, THE AUTHORITY NOTES THAT PROCEDURES WHICH MANAGEMENT
WILL OBSERVE IN EXERCISING ITS AUTHORITY TO REASSIGN, AS WELL AS
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
REASSIGNMENT, WOULD BE PROPER MATTERS FOR NEGOTIATION UNDER SECTION
7106(B)(2) AND (3) OF THE STATUTE.

ACCORDINGLY, THE PROPOSAL AT ISSUE VIOLATES SECTION 7106(A)(2)(A) OF
THE STATUTE, AND, THEREFORE, IS NOT WITHIN THE DUTY TO BARGAIN.

ISSUED, WASHINGTON, D.C., MAY 30, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106(A)(2)(A) OF THE STATUTE PROVIDES:

SEC. 7106. MANAGEMENT RIGHTS

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

AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--

. . . .

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY(.)