National Federation of Federal Employees, Local 1622 and U.S. Commissary, Fort Meade, Maryland (Authority decision, December 21, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability case. An aggrieved person may seek judicial review 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 order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Fort Meade commissary disapproved two overtime provisions in its agreement with NFFE Local 1622. One would limit employees to a reasonable amount of overtime; the Authority found it nonnegotiable because it could restrict management's right to assign work. The other would let a qualified, willing employee take an overtime assignment from someone who asked to be relieved. The Authority found that provision negotiable because management retained the right to decide who was qualified. It dismissed the petition for the first provision and ordered the commissary to rescind its disapproval of the second.

Decision snapshot

• Authority: Management's right to assign work and negotiable procedures under 5 U.S.C. § 7106.
• Outcome: The reasonable overtime limit was rejected; the volunteer reassignment procedure was held negotiable.
• Key point: A procedure for choosing among qualified employees can be negotiable when management controls qualifications.

Full text (FLRA public release)

[ v16 p998 ]
16:0998(132)NG

The decision of the Authority follows:

16 FLRA NO. 132

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1622

Union

and

U.S. COMMISSARY, FORT MEADE,
MARYLAND

Agency

Case No. 0-NG-847

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statue (the Statute), and presents issues concerning the negotiability of two provisions of a negotiated agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. 1 Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Provision 1

Employees may be requested to perform a reasonable amount of overtime work within an administrative work week.

In National Treasury Employees Union and Department of The Treasury, Internal Revenue Service, 6 FLRA 508 (1981) (Union Proposal V), the Authority held that a proposal which required that the Agency refrain from assigning cases to employees "when the caseload is unmanageable" interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Authority reasoned that the proposal imposed [ v16 p998 ] a condition precedent on the assignment of cases to employees and under some circumstance, and irrespective of the Agency's immediate needs, would prevent the Agency from making case assignments. Similarly, the instant provision would under certain circumstances and irrespective of the agency's needs, prevent the Agency from assigning overtime, i.e., the Agency could only assign a "reasonable" amount of overtime, an amount not further defined in the provision. Thus, Union Provision 1 is outside the duty to bargain because it interferes with the Agency's right to assign work pursuant to section 7106(a)(2)(B) of the Statute.

Union Provision 2

Upon request, the employer shall relieve an employee from an overtime assignment if there is another qualified employee available for assignment and willing to work.

Union Provision 2 is to the same effect as the proposal in American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 15 FLRA No. 114 (1984). The proposal in that case required that management solicit volunteers from qualified employees before making a particular job assignment. The Authority held that the proposal established a negotiable procedure pursuant to section 7106(b)(2) for selecting from among employees qualified to perform the work. The Authority explained its decision by citing its holding in Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982) that when management has determined that two or more employees are equally qualified to perform a task, the selection of any of those employees to perform the work is consistent with management's discretion to assign work.

Contrary to the Agency's contention, there is nothing in the record which indicates that this provision would require management to assign work to employees outside the bargaining unit. Union Provision 2 concerns only bargaining unit employees who are performing the duties that are normally assigned to them. The provision deals with the question of which employee within the bargaining unit will perform overtime work. The Union emphasizes in its brief that management retains the right to decide which employee is qualified to perform the overtime.

The right to determine what qualifications are necessary to do such work and who meets them is preserved for management. 2

If the Agency determines that none of the employees who volunteer are qualified, then it can require the employee who was originally assigned [ v16 p999 ] the overtime to perform the assignment. Thus, based on Department of Health and Human Services and National Cemetery Office and the reasons and cases cited therein, Union Provision 2 does not interfere with management's rights pursuant to section 7106(a)(2)(A) and (B) of the Statute to assign employees and work, but instead constitutes a negotiable procedure as defined in section 7106(b)(2).

Accordingly, pursuant to section 2424.10 of the Authority's rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed with respect to Union Provision 1 and the provision referred to in note 1 supra. IT IS FURTHER ORDERED That the Agency shall rescind its disapproval of Union Provision 2 which was bargained on and agreed to by the parties at the local level. 3

Issued, Washington, D.C., December 21, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In its response to the petition for
review, the Agency withdrew its allegation of nonnegotiability as to a third provision. Accordingly, there is no longer an issue as to whether that provision is within the duty to bargain.

Footnote 2 Union Reply Brief at 2.

Footnote 3 In deciding that Union Provision 2 is within the duty to bargain, the Authority makes no judgment as to merits.