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Assign Employees
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A right reserved to management by § 7106(a)(2)(A). This right, often confused with the § 7106(a)(2)(B)right to assign work, relates to the assignment of employees to positions, shifts, and locations. This right includes discretion to determine "the personnel requirements of the work of the position, i.e., the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment and reliability." 2 FLRA No. 77. It also includes discretion to determine the duration of the assignment. 28 FLRA No. 66, #5.
The use of seniority procedures in selecting employees for assignments to shifts, details, etc., doesn't normally interfere with the right to assign employees where the seniority criteria are applied to employees that management has already determined are qualified to perform the work. See, in this connection, 44 FLRA No. 1, #1(assignment of overtime), 41 FLRA No. 58(assignment to details), 30 FLRA No. 80, #1 (assignment to shifts), and 25 F 9, #4(shifts, work areas).
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Classification Act Employees
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Federal employees--typically professional, administrative, technical, and clerical employees (i.e., "white collar" employees)--sometimes referred to as "General Schedule" employees, to distinguish them from Federal Wage System (blue collar, Wage Grade) employees.
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Confidential Employee
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Under § 7103(a)(14), "an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations[.]"(Emphasis added.) Under § 7112(b)(2), confidential employees must be excluded from bargaining units. Disputes over whether an employee is a confidential employee are resolved by FLRA, usually via a 5 CFR 2422.1(b) petition. Examples: 31 FLRA No. 6, 33 FLRA No. 30, 37 FLRA No. 16, 37 FLRA No. 112, 47 FLRA No. 48, and 50 FLRA No. 21.
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Direct Employees
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In 3 FLRA No. 119 the Authority defined this right to include discretion "to supervise and guide [employees] . . . in the performance of their duties on the job." In NTEU v. FLRA, 793 F.2d 371 (DC Cir. 1986), the court held, among other things, that the right to direct did not encompass the right to reward. The right to direct, by itself, rarely is used as the basis for finding a proposal nonnegotiable. However, when combined with the right to assign work, it is the basis for finding proposals establishing performance standards nonnegotiable. See, e.g., 49 FLRA No. 25.
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Employee
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Under the Federal Service Labor-Management Relations Statute, the term "employee" includes an individual "employed in an agency" or "whose employment in an agency has ceased because of any unfair labor practice," but does not include supervisors and management officials or anyone who participates in a strike or members of the uniformed services or employees in the Foreign Service (who have a separate labor-management relations program--see 22 USC 4101 ff) or aliens occupying positions outside the U.S. See 5 USC § 7103(a)(2).
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Hire Employees
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A right reserved to management by § 7106(a)(2)(A). As the Authority noted in footnote 5 of 52 FLRA No. 106, the term "hire" had not yet been defined by the Authority. (In his dissenting opinion, former Member Armendariz defined the term as "relating to the specific process that results in the establishment of the employment relationship.")
Because an agency's use of personal services contracts is inseparable from the decision to hire, proposals stating that employees won't be required to enter into personal services contracts as a condition of employment interfere with the right to hire. 30 FLRA No. 69, #2; 29 FLRA No. 123, #1. Proposals affecting the right to hire have been found to also affect other rights related to the filling of vacancies. For example, in 25 FLRA No. 9, #35, the Authority, after noting that "the decision whether to fill vacant positions is encompassed within an agency's rights to hire and assign employees under section 7106(a)(2)(A)," went on to find that a proposal obligating the agency to hire a specific number of applicants responding to certain agency vacancy announcements violated management's rights to hire and assign employees. See SELECT for a discussion of the much more frequently utilized right of management, in filling positions, to make selections for appointments from any appropriate source.
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Layoff Employees
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Right reserved to management by § 7106(a)(2)(A). Proposals assuring employment security for certain employees violate this right (9 FLRA No. 108 #2; 10 FLRA No. l , #3). Proposals prescribing the order in which employees are to be laid off (e.g., requiring that part-timers be the first to be laid off and trainees to be laid off before journeymen, 25 FLRA No. 9, ##30 & 31) also violate this right, as do proposed layoff ratios (e.g., requiring that an equal proportion of supervisory/nonsupervisory and part-time/full-time employees be laid off, 25 FLRA No. 83, #3).
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Number of Employees of an Agency
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A right reserved to management by § 7106(a)(1). There have been no FLRA decisions in which a proposal has been found nonnegotiable because it interfered with this right. In 46 FLRA No. 27, where FLRA held that a placement program for employees losing security clearances didn't abrogate this right, FLRA said that this right "relates to the number of employees actually employed by an agency." For other cases in which management unsuccessfully invoked this right, see 44 FLRA No. 1, 32 FLRA No. 127, 31 FLRA No. 30, and 23 FLRA No. 30.
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Retain Employees
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A right reserved to management by § 7106(a)(2)(A). Although the rights to layoff and retain appear to be opposite sides of the same coin, FLRA rarely mentions the right to retain when invoking the right to layoff to find nonnegotiable proposals dealing with RIFs and furloughs.