National Labor Relations Board Union (Labor Organization) and National Labor Relations Board, Washington, D.C. (Activity) (Authority decision, June 27, 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 National Labor Relations Board union proposed limiting dual lodging costs for employees on temporary details, consistent with operating needs. The Authority found the proposal was a negotiable procedure and did not prevent management from assigning employees or work. It set aside the agency’s nonnegotiability allegation. A separate proposal had been withdrawn after the parties reached agreement.

Decision snapshot

• Authority: 5 U.S.C. § 7106, 5 U.S.C. § 7117.
• Outcome: Dual lodging proposal held negotiable; separate proposal withdrawn.
• Key point: The proposed cost protection left management’s assignment discretion intact.

Full text (FLRA public release)

[ v03 p508 ]

03:0508(81)NG

The decision of the Authority follows:

3 FLRA No. 81

NATIONAL LABOR RELATIONS BOARD UNION
(Labor Organization)

and

NATIONAL LABOR RELATIONS BOARD,
WASHINGTON, D.C.
(Activity)

Case No. 0-NG-147

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

PRELIMINARY MATTER

THE LABOR ORGANIZATION IN THE ABOVE-CAPTIONED MATTER FILED A PETITION
FOR REVIEW BY THE AUTHORITY OF TWO PROPOSALS WHICH HAD BEEN ALLEGED BY
THE ACTIVITY TO BE OUTSIDE THE DUTY TO BARGAIN UNDER FEDERAL
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), 5 U.S.C. 7101 ET SEQ.
SUBSEQUENTLY, ON MAY 27, 1980, THE LABOR ORGANIZATION FILED AN
AMENDMENT TO THE PETITION FOR REVIEW REQUESTING THAT IT BE PERMITTED TO
WITHDRAW ITS REQUEST THAT THE AUTHORITY ISSUE A DECISION ON THE
NEGOTIABILITY OF ITS "BROADEST POSSIBLE GROUP" PROPOSAL. THE LABOR
ORGANIZATION STATES THAT IT HAS MODIFIED ITS POSITION WITH RESPECT TO
THAT PROPOSAL AND THAT AGREEMENT HAS BEEN REACHED WITH THE ACTIVITY ON
THE MODIFIED PROPOSAL. THE UNION CONTINUES TO REQUEST AN AUTHORITY
DECISION CONCERNING THE NEGOTIABILITY OF ITS "NO DUAL LODGING EXPENSE"
PROPOSAL.

IN VIEW OF THE FOREGOING AGREEMENT BETWEEN THE PARTIES CONCERNING THE
SUB SUBJECT OF THE "BROADEST POSSIBLE GROUP" PROPOSAL, THE REQUEST BY
THE LABOR ORGANIZATION TO AMEND ITS PETITION FOR REVIEW IS GRANTED.

UNION PROPOSAL

"NO DUAL LODGING EXPENSE" PROPOSAL

CONSISTENT WITH OPERATING NEEDS, EMPLOYEES DETAILED (TO TEMPORARY
DUTY STATIONS AWAY FROM

THEIR PERMANENT DUTY STATIONS) PURSUANT TO THE TERMS OF THIS
SUPPLEMENTAL AGREEMENT, WILL NOT

BE OBLIGED TO INCUR OR SUFFER DUAL LODGING EXPENSES WHICH WOULD CAUSE
THEIR TOTAL TRAVEL

EXPENSES FOR ANY PARTICULAR DAY TO EXCEED THE MAXIMUM $50 PER DIEM
RATE.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS A MATTER
WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY
THE AGENCY, IS EXCLUDED FROM THE OBLIGATION TO BARGAIN BY REASON OF
SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. /1/

OPINION

CONCLUSION: THE PROPOSAL DOES NOT VIOLATE SECTION 7106 OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS, 45 FED. REG. 3513(1980), THE AGENCY'S ALLEGATION
THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET
ASIDE. /2/

REASONS: THE AGENCY CONTENDS THAT THE PROPOSAL IS EXCLUDED FROM THE
DUTY TO BARGAIN BY SECTION 7106(A)(2)(A), WHICH RETAINS TO THE AGENCY
THE RIGHT TO ASSIGN EMPLOYEES, AND BY SECTION 7106(A)(2)(B), WHICH
SIMILARLY RETAINS THE RIGHT TO ASSIGN WORK. IN THAT REGARD, THE AGENCY
ARGUES THAT THE PHRASE "CONSISTENT WITH OPERATING NEEDS" DOES NOT
PROVIDE SUFFICIENT DISCRETION TO ASSIGN EMPLOYEES OR WORK.
SPECIFICALLY, THE AGENCY CONTENDS THAT IT WOULD NOT BE ABLE TO REASSIGN
A DETAILED EMPLOYEE TO A DUTY STATION AWAY FROM THE SITE OF THE DETAIL
WHEN SUCH REASSIGNMENT WOULD INVOLVE DUAL LODGING EXPENSES IF ANOTHER
EMPLOYEE PERMANENTLY ASSIGNED TO THE DETAIL SITE IS AVAILABLE TO DO THE
WORK. THE UNION, HOWEVER, CONTENDS THAT THE PROPOSAL FALLS WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(2) SINCE IT CONSTITUTES THE
PROCEDURE WITHIN WHICH MANAGEMENT WILL ASSIGN PERSONS ON DETAILS, AND
UNDER SECTION 7106(B)(3) AS AN APPROPRIATE ARRANGEMENT FOR PERSONS,
ADVERSELY AFFECTED BY THE EXERCISE OF THE AGENCY'S AUTHORITY TO ASSIGN
EMPLOYEES. IN THIS REGARD, THE UNION CONCEDES THAT MANAGEMENT RETAINS
THE ULTIMATE DISCRETION TO REASSIGN EMPLOYEES WHO ARE CURRENTLY ON
DETAIL EVEN THOUGH SUCH EMPLOYEES MAY INCUR DUAL LODGING EXPENSES.

SECTION 7106(A) OF THE STATUTE SPECIFIES VARIOUS RIGHTS RESERVED TO
AGENCY MANAGEMENT. SUBSECTION (B), HOWEVER, PROVIDES THAT MANAGEMENT'S
EXERCISE OF ANY RIGHTS CONTAINED IN SUBSECTION (A) DOES NOT PRECLUDE
NEGOTIATIONS ON THE PROCEDURES WHICH MANAGEMENT OFFICIALS WILL OBSERVE
IN EXERCISING THOSE RIGHTS. /3/

THE PROPOSAL HERE WOULD REQUIRE THAT THE AGENCY NOT MAKE ASSIGNMENTS
WHICH WOULD OBLIGE AN EMPLOYEE TO INCUR OR SUFFER DUAL LODGING EXPENSES
IN EXCESS OF $50 PER DAY UNLESS THERE IS AN OPERATING NEED TO DO SO. IN
GENERAL, HOWEVER, THE UNION CONCEDES THAT AGENCY MANAGEMENT RETAINS THE
AUTHORITY TO MAKE FINAL DECISIONS CONCERNING ASSIGNMENT OF EMPLOYEES.
SPECIFICALLY, THE UNION CONCEDES THAT MANAGEMENT IS NOT REQUIRED TO
COUNSEL EMPLOYEES CONCERNING ITS "OPERATING NEEDS," THAT THE PROPOSAL
DOES NOT PERMIT AN EMPLOYEE TO REFUSE AN ASSIGNMENT, AND THAT THE AGENCY
CAN, IN FACT, ASSIGN EMPLOYEES IN CIRCUMSTANCES WHICH WOULD OBLIGE AN
EMPLOYEE TO INCUR DUAL LODGING EXPENSES. FURTHER, THE PROPOSAL HERE
LEAVES TO MANAGEMENT'S DISCRETION THE DETERMINATION OF ITS OPERATING
NEEDS.

ACCORDINGLY, THIS PROPOSAL MERELY ESTABLISHES A GENERAL REQUIREMENT
THAT WHEN MANAGEMENT ASSIGNS DETAILEES IN CIRCUMSTANCES WHICH WOULD
RESULT IN DUAL LODGING SITUATIONS, THE ASSIGNMENT MUST BE CONSISTENT
WITH OPERATING NEEDS. THUS, SINCE THE AGENCY RETAINS THE DISCRETION TO
DETERMINE ITS OPERATING NEEDS AND, SUBSEQUENTLY, TO ASSIGN EMPLOYEES,
THE PROPOSAL HERE CONSTITUTES A PROCEDURE WHICH IS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(2), AND DOES NOT VIOLATE MANAGEMENT'S
RIGHTS UNDER SECTION 7106(A).

ISSUED, WASHINGTON, D.C., JUNE 27, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

SECTION 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, OR TO SUSPEND,

REMOVE, REDUCE IN GRADE OR PAY OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;

(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO

DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED
. . . .

/2/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.

/3/ IN THIS REGARD, SECTION 7106(B)(2) PROVIDES:

(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.