AFGE Food Inspection Locals and Agriculture Department (Authority decision, July 28, 1982)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition 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 Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE food-inspection locals proposed rules for overtime assignments and inspector conduct. The Authority rejected a sentence barring supervisors from processing assignments except in limited cases because it restricted management’s work assignments. It held the rest of the overtime proposal and a separate conduct proposal negotiable and ordered bargaining on request.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Supervisor-assignment sentence rejected; other terms negotiable.
• Key point: Work-assignment limits were barred, while timing and conduct terms could be bargained.

Full text (FLRA public release)

[ v09 p663 ]

09:0663(74)NG

The decision of the Authority follows:

9 FLRA No. 74

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL
JOINT COUNCIL OF FOOD INSPECTION
LOCALS
Union

and

DEPARTMENT OF AGRICULTURE,
FOOD SAFETY AND QUALITY SERVICE,
WASHINGTON, D.C.
Agency

Case No. O-NG-236

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 STATUTE (THE STATUTE) AND RAISES THE QUESTION
OF THE NEGOTIABILITY OF TWO UNION PROPOSALS. UPON CAREFUL CONSIDERATION
OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY
MAKES THE FOLLOWING DETERMINATIONS.

UNION PROPOSAL 1

THE PARTIES AGREE THAT THE MISSION OF THE SERVICE SHOULD ORDINARILY
BE ACCOMPLISHED WITHIN

A FORTY (40) HOUR WORKWEEK. HOWEVER, IT IS RECOGNIZED THAT PERIODIC
USE OF OVERTIME IS

SOMETIMES NECESSARY TO THE CONDUCT OF OPERATIONS. IF SLAUGHTER
OVERTIME IS REQUIRED, IT WILL

BE WORKED BY THE INSPECTOR COVERING THE ASSIGNMENT DURING THE REGULAR
TOUR OF DUTY EXCEPT WHEN

A QUALIFIED UNIT EMPLOYEE IS NOT AVAILABLE OR IN CASES OF EMERGENCY.

IF PROCESSING OVERTIME IS REQUIRED, IT WILL BE WORKED BY THE
INSPECTOR COVERING THE

ASSIGNMENT DURING THE NORMAL TOUR OF DUTY EXCEPT IF OTHERWISE
PROVIDED IN THE EQUALIZATION OF

OVERTIME PROVISIONS OF AN AREA AGREEMENT OR THE COMBINATION OF
ASSIGNMENTS IN SITUATIONS OF

REDUCED INSPECTION REQUIREMENTS. HOWEVER, A SUPERVISORY EMPLOYEE
SHALL NOT BE UTILIZED TO

COVER A PROCESSING ASSIGNMENT EXCEPT WHEN A QUALIFIED UNIT EMPLOYEE
IS NOT AVAILABLE OR IN

CASES OF EMERGENCY. (THE UNDERSCORED LANGUAGE IS IN DISPUTE.)

QUESTION

THE QUESTION IS WHETHER THE UNDERSCORED PORTIONS OF THE PROPOSAL ARE
OUTSIDE THE DUTY TO BARGAIN BECAUSE THEY CONFLICT WITH THE AGENCY'S
RIGHTS TO ASSIGN EMPLOYEES OR WORK UNDER SECTION 7106 OF THE STATUTE.

OPINION

CONCLUSION AND ORDER: THE LAST SENTENCE OF THE PROPOSAL CONFLICTS
WITH THE AGENCY'S RIGHT TO ASSIGN WORK TO EMPLOYEES PURSUANT TO SECTION
7106(A)(2)(B) OF THE STATUTE AND, THEREFORE, IS OUTSIDE THE DUTY TO
BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS, IT IS ORDERED THAT THE PETITION FOR REVIEW AS
REGARDS THE LAST SENTENCE OF THE PROPOSAL BE, AND IT HEREBY IS,
DISMISSED. THE REMAINDER OF PROPOSAL 1 IS WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, IT IS ORDERED THAT AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE REMAINDER OF
THE PROPOSAL. /1/

REASONS: THE PROPOSAL EXPRESSLY PROVIDES IN THE LAST UNDERSCORED
SENTENCE THAT MANAGEMENT COULD NOT ASSIGN DUTIES NORMALLY PERFORMED BY
EMPLOYEES IN THE BARGAINING UNIT TO SUPERVISORS, EXCEPT IN SPECIFIC
CIRCUMSTANCES. IT WOULD, IN THIS REGARD, IMPROPERLY LIMIT AND THEREBY
DIRECTLY INTERFERE WITH THE DISCRETION, INHERENT IN MANAGEMENT'S RIGHT
TO "ASSIGN WORK," TO DETERMINE WHICH EMPLOYEES WILL RECEIVE PARTICULAR
WORK ASSIGNMENTS. CONSEQUENTLY, THE PROPOSAL TO THAT EXTENT IS
INCONSISTENT WITH SECTION 7106(A)(2)(B) AND IS THUS OUTSIDE THE DUTY TO
BARGAIN. NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS AND DEPARTMENT
OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, 6 FLRA NO. 106(1981)
(PROPOSAL VI). /2/

BASED ON THE RECORD, HOWEVER, THE DISPUTED PORTIONS OF THE REMAINDER
OF THE PROPOSAL ARE NOT INCONSISTENT WITH THE STATUTE. THESE PORTIONS
SOLELY CONCERN WHICH PARTICULAR EMPLOYEE, AMONG THOSE IN THE BARGAINING
UNIT TO WHOM MANAGEMENT IN ITS DISCRETION HAS ALREADY ASSIGNED THE
"SLAUGHTER" OR "PROCESSING" WORK INVOLVED, WILL BE SELECTED TO PERFORM
SUCH WORK IN AN OVERTIME STATUS WHEN MANAGEMENT DETERMINES THAT OVERTIME
IS REQUIRED. TO THAT EXTENT, THE PROPOSAL IS CONCERNED ONLY WITH WHEN
SUCH EMPLOYEES WILL PERFORM THE PREVIOUSLY ASSIGNED DUTIES OF THEIR
POSITIONS. HENCE, IT DOES NOT CONCERN THE ASSIGNMENT OF WORK OR THE
ASSIGNMENT OF EMPLOYEES TO POSITIONS. CF. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916 AND TINKER AIR FORCE BASE,
OKLAHOMA, 7 FLRA NO. 45(1981) (PROVISION III) AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 5 FLRA NO. 15(1981) (PROVISIONS
PRESCRIBING CRITERIA FOR SELECTION OF PARTICULAR EMPLOYEES TO
TEMPORARILY PERFORM THEIR PREVIOUSLY ASSIGNED DUTIES AT DIFFERENT
LOCATIONS ARE WITHIN THE DUTY TO BARGAIN).

UNION PROPOSAL 2

ARTICLE XIX-- EMPLOYEE RESPONSIBILITIES AND CONDUCT

SECTION A-- POLICY:

THE PARTIES AGREE THAT THE MAINTENANCE OF UNUSUALLY HIGH STANDARDS OF
HONESTY, INTEGRITY,

IMPARTIALITY AND CONDUCT BY INSPECTIONAL EMPLOYEES IS ESSENTIAL TO
ASSURE THE PROPER

PERFORMANCE OF THE SERVICE BUSINESS AND TO RETAIN THE CONFIDENCE OF
THE GENERAL PUBLIC IN

SERVICE OPERATIONS. THE PARTIES FURTHER AGREE THAT IT IS THE
RESPONSIBILITY OF EMPLOYEES TO

ACQUAINT THEMSELVES WITH THE CONTENTS OF APPENDIX I OF THE
DEPARTMENT'S EMPLOYEE HANDBOOK

WHICH FULLY DETAILS PROHIBITED CONDUCT AND OTHER RESPONSIBILITIES OF
EMPLOYEES. THE

PROVISIONS OF LAW, HIGHER LEVEL REGULATIONS, AND THE CONTENTS OF SAID
APPENDIX I AND THE

PROVISIONS OF THIS ARTICLE CONSTITUTE THE SOLE REQUIREMENTS TO BE
APPLIED TO EMPLOYEES OF THE

UNIT IN RESPECT TO CONDUCT AND RESPONSIBILITY.

QUESTION

THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN,
AS ALLEGED BY THE AGENCY, BECAUSE IT CONFLICTS WITH THE FEDERAL MEAT
INSPECTION ACT, THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, OR
SECTION 7106(A) OF THE STATUTE. AUTHORITY'S RULES AND REGULATIONS, IT IS
ORDERED THAT THE

OPINION

CONCLUSION AND ORDER: THE PROPOSAL DOES NOT CONFLICT WITH LAW OR
REGULATION AND, THEREFORE, IS WITHIN THE DUTY TO BARGAIN. 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 PROPOSAL. /3/

REASONS: THE DISPUTE FOCUSES ON THE FAILURE OF THE PROPOSAL TO
SPECIFICALLY REFERENCE THE RULES OF THE AGENCY WHICH EXIST OR MAY BE
PROMULGATED IN THE FUTURE. THE AGENCY ESSENTIALLY ARGUES THAT IT HAS
THE UNILATERAL RIGHT UNDER THE FEDERAL MEAT INSPECTION ACT, 21 U.S.C.
601-95, THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, AND SECTION
7106(A) TO ISSUE ITS OWN RULES WHICH WOULD GOVERN EMPLOYEES' CONDUCT AND
RESPONSIBILITIES.

AS TO THE FEDERAL MEAT INSPECTION ACT, THE AGENCY ADVERTS TO NO
PROVISION OF THE ACT WHICH WOULD REQUIRE IT TO ESTABLISH RULES OF
CONDUCT AND RESPONSIBILITIES UNILATERALLY. SIMILARLY, WITH RESPECT TO
THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, THE AGENCY HAS NOT
CITED ANY PARTICULAR CONFLICT BETWEEN THE REGULATIONS AND THE PROPOSAL.
/4/ FINALLY, WITH RESPECT TO SECTION 7106(A) OF THE STATUTE, PROPOSALS
RELATING TO EMPLOYEES' CONDUCT AND RESPONSIBILITIES ARE WITHIN THE DUTY
TO BARGAIN WHERE THE MATTERS AT ISSUE ARE WITHIN THE AGENCY'S DISCRETION
AND THE PROPOSALS DO NOT OTHERWISE CONFLICT WITH SECTION 7106(A). SEE,
E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385
AND FEDERAL HOME LOAN BANK BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA
NO. 58(1981) (PROPOSAL II). IN THIS CASE THE AGENCY HAS CLAIMED BUT HAS
NOT SHOWN THAT THE INSTANT PROPOSAL WOULD BE INCONSISTENT WITH ITS RIGHT
TO DETERMINE ITS INTERNAL SECURITY PRACTICES UNDER SECTION 7106(A)(1),
OR TO ITS RIGHT TO DISCIPLINE OR REMOVE EMPLOYEES UNDER SECTION
7106(A)(2)(A). SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL
REVENUE SERVICE, 3 FLRA 693(1980) (PROPOSAL I).

ACCORDINGLY, IT IS CONCLUDED THAT, AS THE AGENCY HAS NOT SUPPORTED
ITS CONTENTIONS THAT THE INSTANT PROPOSAL CONFLICTS WITH LAW OR
REGULATIONS, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.

ISSUED, WASHINGTON, D.C., JULY 28, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ IN DECIDING THAT THIS PORTION OF THE PROPOSAL IS WITHIN THE DUTY
TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.

/2/ WHILE BOTH PARTIES TO THIS CASE CITE FOOD SAFETY AND QUALITY
SERVICE, U.S. DEPARTMENT OF AGRICULTURE AND NATIONAL JOINT COUNCIL OF
FOOD INSPECTION LOCALS, AFGE # 488, 1 FLRA 1013(1979), A DECISION ON
EXCEPTIONS TO AN ARBITRATION AWARD ARISING UNDER EXECUTIVE ORDER, IN
SUPPORT OF THEIR RESPECTIVE POSITIONS ON THIS PORTION OF THE PROPOSAL,
SUCH RELIANCE IS MISPLACED. SIMPLY STATED, THAT CASE DID NOT INVOLVE
QUESTIONS CONCERNING NEGOTIABILITY UNDER THE STATUTE.

/3/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.

/4/ AN AGENCY HAS THE BURDEN UNDER SECTION 7117(C)(2) OF THE STATUTE
AND SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS OF COMING
FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS CONTENTIONS THAT REGULATIONS
BAR NEGOTIATIONS ON CONFLICTING PROPOSALS BASED UPON THE EXISTENCE OF A
COMPELLING NEED FOR THE REGULATIONS. SEE, E.G., NATIONAL TREASURY
EMPLOYEES UNION AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION X,
SEATTLE, WASHINGTON, 5 FLRA NO. 93 (1981).