AFSCME Local 2027 and ACTION (Authority decision, August 11, 1986)

Final FLRA decision. The Authority orders the agency to bargain over the proposal upon request. 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

AFSCME Local 2027 proposed normally rotating details lasting less than 31 days and documenting them in employees' personnel files. ACTION argued that rotation would interfere with management's rights to assign employees and work. The Authority accepted the union's explanation that management would still set qualifications, decide who met them, and depart from rotation when circumstances were not normal. It found the proposal to be a negotiable procedure and ordered the agency to bargain upon request.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A), 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7106(b)(2).
• Outcome: Short detail rotation proposal within the duty to bargain; agency ordered to bargain upon request.
• Key point: A normal rotation among employees management finds qualified can be a negotiable selection procedure.

Full text (FLRA public release)

[ v23 p56 ]

23:0056(7)NG

The decision of the Authority follows:

23 FLRA No. 7

AMERICAN FEDERATION
OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES,
LOCAL 2027
Union

and

ACTION
Agency

Case No. O-NG-1243

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a single Union proposal. /1/

II. Union Proposal

Details for less than thirty-one (31) calendar days will normally be rotated among employees. Such details shall be documented with a memorandum to the detailed employee's OPF.

III. Positions of the Parties

The Agency contends that because the Union's proposal would require the Agency, under normal circumstances, to rotate details of less than 31 days, it would subject management's discretion concerning such details to review by the Union and third parties. The Agency argues that the proposal therefore would directly interfere with its right to assign employees under section 7106(a)(2)(A) of the Statute and its rights under section 7106(a)(2)(B) to assign work and to determine the personnel by which Agency operations will be conducted.

The Union maintains that its proposal does not interfere with management's rights and that the proposal is fully negotiable. In support of its position, the Union contends that the proposal does not mandate that details of less than 31 days must always be rotated and that the requirement of the proposal that details "normally" will be rotated acknowledges that deviations may be necessary for a variety of reasons. The Union further contends that the proposal does not limit management's discretion to establish the qualifications needed to perform work on details or limit management's judgment in determining whether a particular employee meets those qualifications.

IV. Analysis and Conclusions

The Union's proposal expressly provides that details for less than 31 calendar days normally will be rotated among employees. Under this proposal, as interpreted by the Union, employees would, in normal situations, be selected for details of the prescribed duration by rotation. Management would fully retain the discretion to determine the qualifications necessary to perform any detail work and the qualifications of any employees to be detailed. Management would also retain the discretion to determine not to rotate details in other than normal circumstances. The Authority finds that the Union's interpretation of the proposal is consistent with the plain language of the proposal.

The Authority has held that when two or more employees have been determined by management to be equally qualified and capable of performing work, the selection of any one of those employees to perform the work is consistent with management's exercise of its discretion under section 7106(a) of the Statute. In such circumstances, a proposed procedure by which employees previously judged by management to be equally qualified will be selected to perform the work does not directly interfere with section 7106(a)(2)(A) or (B) of the Statute but, rather, is a negotiable procedure under section 7106(b)(2). Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703, 706-07 (1982).

In this case, the Authority finds that the disputed proposal, as interpreted by the Union, constitutes a negotiable procedure for the selection of employees to perform work on details, that is, selection by rotation among employees management has determined to be qualified to perform the work involved. The Authority therefore concludes, contrary to the Agency's position, that the proposal is consistent with management's rights under section 7106(a)(2)(A) and (B) of the Statute and is within the Agency's duty to bargain. /2/

V. Order

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the disputed proposal.

Issued, Washington, D.C., August 11, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

(1) In its appeal, the Union sought Authority review of a number of other proposals. However, in its response to the Agency's statement of position in the case, the Union withdrew its petition as to the other proposals. Accordingly, those proposals will not be considered by the Authority.

(2) In finding this provision to be within the duty to bargain, the Authority makes no judgment as to its merits.