NAGE Local R14-89 and Fort Bliss Army Air Defense Center (Authority decision, August 20, 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

NAGE Local R14-89 submitted two proposals concerning reassignment and work assignment at Fort Bliss. The Authority found both inconsistent with management rights, including the rights to assign employees and assign work. It dismissed the petition as to both proposals.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Both proposals held outside the duty to bargain; petition dismissed.
• Key point: The proposed limits would control management’s staffing and work assignments.

Full text (FLRA public release)

[ v09 p1033 ]

09:1033(145)NG

The decision of the Authority follows:

9 FLRA No. 145

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-89
Union

and

HEADQUARTERS, U.S. ARMY
AIR DEFENSE CENTER AND
FORT BLISS, TEXAS
Agency

Case No. O-NG-266

DECISION AND ORDER ON NEGOTIABILITY ISSUES

THE PETITION FOR REVIEW IN 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 (THE STATUTE) AND
RAISES ISSUES CONCERNING THE NEGOTIABILITY OF TWO PROPOSALS ADVANCED BY
THE UNION IN CONNECTION WITH BARGAINING OVER THE "IMPACT" ON UNIT
EMPLOYEES OF A PROPOSED REORGANIZATION BY THE AGENCY. UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.

UNION PROPOSAL 1

PROPOSAL 5D. - CHANGES WILL NOT BE ACCOMPLISHED UNTIL BOTH EMPLOYER
AND EMPLOYEE AGREE TO

THE STANDARDS/CRITICAL ELEMENTS.

UNION PROPOSAL 1, AS EXPLAINED BY THE UNION, IN ESSENCE WOULD
CONDITION THE AGENCY'S ABOLISHING POSITIONS AND REDISTRIBUTING THE
DUTIES THEREOF TO OTHER POSITIONS ON THE AGREEMENT OF THE INCUMBENTS OF
THE OTHER POSITIONS TO THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
DEVELOPED PURSUANT TO 5 U.S.C. 4302 FOR THOSE POSITIONS. /1/ THE
ASSIGNMENT OF DUTIES TO POSITIONS, HOWEVER, IS AN EXERCISE OF
MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(1)(2)(B) OF THE
STATUTE. SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, 7 FLRA NO. 35(1981)(UNION
PROPOSAL6). THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE
ESTABLISHMENT OF PERFORMANCE STANDARDS, FURTHERMORE, ARE MANAGEMENT
RIGHTS UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. SEE, E.G.,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF SOCIAL
SECURITY PAYMENT CENTER LOCALS AND SOCIAL SECURITY ADMINISTRATION,
OFFICE OF PROGRAM SERVICE CENTERS, BALTIMORE, MARYLAND, 7 FLRA NO.
139(1982)(UNION PROPOSALS 6 AND 7). IN THESE REGARDS, THE PROPOSAL AT
ISSUE IS NOT MATERIALLY DISTINGUISHABLE FROM THE PROPOSAL BEFORE THE
AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3004 AND DEPARTMENT OF THE AIR FORCE, OTIS AIR FORCE BASE,
MASSACHUSETTS, 9 FLRA NO. 87(1982), WHICH CONDITIONED MANAGEMENT'S
EXERCISE OF ITS RIGHT TO DETERMINE THE DUTIES AND FUNCTIONS TO BE
INCLUDED IN PERFORMANCE APPRAISALS ON THE PRIOR EXERCISE OF MANAGEMENT'S
RIGHT TO ASSIGN FORMAL TRAINING TO THE EMPLOYEES INVOLVED. THE
AUTHORITY HELD THAT PROPOSAL NONNEGOTIABLE UNDER THE STATUTE BECAUSE IT
DIRECTLY INTERFERED WITH MANAGEMENT'S RIGHTS TO DETERMINE WHETHER TO
ASSIGN TRAINING UNDER SECTION 7106(A)(2)(B) AS WELL AS TO DETERMINE THE
DUTIES SUBJECT TO PERFORMANCE APPRAISAL UNDER SECTION 7106(A)(2)(A) AND
(B). THUS, FOR THE REASONS FULLY SET FORTH IN OTIS AIR FORCE BASE, THE
PROPOSAL AT ISSUE HEREIN DIRECTLY WOULD INTERFERE WITH MANAGEMENT'S
RIGHTS AND, THEREFORE, IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.

UNION PROPOSAL 2

PROPOSAL 6. -IMMEDIATELY FOLLOWING ANY REDISTRIBUTION OF WORK OR
REALIGNMENT OF DUTIES,

MANAGEMENT WILL REQUEST A FULL MANAGEMENT REVIEW STUDY BY THE
COMPTROLLER FULLY UTILIZING

THOSE EMPLOYEES WHOSE DUTIES/RESPONSIBILITIES ARE ALTERED IN THE DATE
GATHERING REVIEW AND

PROCEDURE DEVELOPMENT. SUCH DUTIES WILL TAKE PRECEDENCE OVER ALL
OTHER ASSIGNED DUTIES.

UNION PROPOSAL 2, AS EXPLAINED BY THE UNION, PRESCRIBES THAT
BARGAINING UNIT EMPLOYEES WHO HAVE BEEN AFFECTED BY CERTAIN MANAGEMENT
ACTIONS WILL PARTICIPATE IN REVIEW STUDIES CONDUCTED BY MANAGEMENT, AND
THAT SUCH PARTICIPATION WILL TAKE PRECEDENCE OVER ALL OTHER ASSIGNED
DUTIES.

THE AUTHORITY FINDS THAT THE DISPUTED PROPOSAL, RATHER THAN
ESTABLISHING A "PROCEDURE" OR AN "APPROPRIATE ARRANGEMENT," /2/ WOULD,
IN TWO DIFFERENT WAYS, SUBSTANTIVELY INFRINGE ON MANAGEMENT'S RIGHTS
UNDER THE STATUTE. IN THE FIRST PLACE, THE PROPOSAL WOULD REQUIRE THE
FORT BLISS COMPTROLLER TO CONDUCT A "REVIEW STUDY." IN THIS REGARD, THE
PROPOSAL IS NOT MATERIALLY DISTINGUISHABLE FROM UNION PROPOSAL 6 IN
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, 7 FLRA NO. 35(1981) WHICH REQUIRED THAT A
SPECIFIC DUTY BE PERFORMED BY A PARTICULAR EMPLOYEE AND WHICH THE
AUTHORITY HELD DIRECTLY INTERFERED WITH THE AGENCY'S RIGHT TO ASSIGN
WORK UNDER SECTION 7106(A)(2)(B) BECAUSE IT DEPRIVED MANAGEMENT OF THE
DISCRETION TO DETERMINE THE EMPLOYEE TO WHOM WORK WOULD BE ASSIGNED.
THEREFORE, FOR THE REASONS SET FORTH IN DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, SUPRA, THE DISPUTED PROPOSAL HEREIN WOULD
DIRECTLY INTERFERE WITH THE AGENCY'S RIGHT TO ASSIGN WORK TO EMPLOYEES
UNDER SECTION 7106(A)(2)(B) AND, THUS, IT OUTSIDE THE DUTY TO BARGAIN
UNDER THE STATUTE.

SECONDLY, THE PROPOSAL AT ISSUE REQUIRES THAT PARTICIPATION IN REVIEW
STUDIES WILL TAKE PRECEDENCE OVER ALL OTHER DUTIES ASSIGNED TO THE
EMPLOYEES INVOLVED. IT THEREBY WOULD PREVENT MANAGEMENT FROM REQUIRING
THAT THE NORMAL DUTIES ASSIGNED TO EMPLOYEES BE PERFORMED WHEN
PERFORMANCE OF THOSE DUTIES WOULD CONFLICT WITH SUCH EMPLOYEES
PARTICIPATING IN THE REVIEW STUDY. THUS, UNION PROPOSAL 2 DIRECTLY
INTERFERES WITH MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION
7106(A)(2)(B) OF THE STATUTE. SEE NATIONAL TREASURY EMPLOYEES UNION AND
NTEU CHAPTER 80 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, CENTRAL REGION, 8 FLRA NO. 38(1982) (UNION PROPOSAL 7).

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW AS TO UNION PROPOSALS 1 AND 2 BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., AUGUST 20, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ 5 U.S.C. 4302(A) PROVIDES FOR THE ESTABLISHMENT OF PERFORMANCE
APPRAISAL SYSTEMS, INCLUDING CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS, BY EACH AGENCY.

/2/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
ILLINOIS, 7 FLRA NO. 34(1981)(UNION PROPOSAL 6) AND NATIONAL TREASURY
EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO,
CALIFORNIA, 2 FLRA 254(1979).