14:0686(91)NG - Laborers' International. Union of North America Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, CA -- 1984 FLRAdec NG



[ v14 p686 ]
14:0686(91)NG
The decision of the Authority follows:


 14 FLRA No. 91
 
 LABORERS' INTERNATIONAL UNION OF
 NORTH AMERICA, AFL-CIO-CLC, LOCAL
 1267
 Union
 
 and
 
 DEFENSE LOGISTICS AGENCY, DEFENSE
 DEPOT TRACY, TRACY, CALIFORNIA
 Agency
 
                                            Case No. O-NG-417
 
                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 issues
 relating to the negotiability of nine Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                           Union Proposal 1 /2/
 
          Article VII, Basic Work Week and Hours of Work Section 3:
       Assignment of employees to less desirable work week and shifts
       will be on the basis of inverse seniority.  Vacancies that occur
       on the Monday through Friday shift will be offered to the most
       senior employee in the same job title, series and grade on any
       irregular shift.  Vacancies filled on the Monday through Friday
       day shift during reduction-in-force will be offered to the most
       senior employee regardless of shift.  If the senior employee does
       not desire to change, the offer will be extended to the next
       senior employee.  Once an employee has been assigned to any shift
       he will not be displaced by any transferred or displaced employee
       from this or any other installation regardless of the transferee's
       seniority except in the case of reduction-in-force.  The Employer
       agrees that records will be kept of shift work performed or
       scheduled.  A current Reassignment Seniority List will be provided
       to the Union to aid in resolving specific complaints concerning
       shift assignments.  (The underlined portion of the proposal is in
       dispute.)
 
    The first disputed sentence of Union Proposal 1 requiring that
 otherwise qualified employees be offered, on the basis of seniority, the
 opportunity to fill vacancies on the Monday through Friday shift is to
 the same effect as Union Proposal 1 in American Federation of Government
 Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
 Department of Agriculture, Food Safety and Quality Service, Washington,
 D.C., 9 FLRA 663 (1982) which the Authority found not to violate
 management's rights to assign work or employees pursuant to
 section7106(a)(2) of the Statute.  In the cited case, the disputed
 proposal provided that when an assignment required overtime it would be
 performed by the employee whose responsibility it was during normal duty
 hours.  In finding the proposal negotiable, the Authority noted that the
 proposal was merely concerned with when employees would perform duties
 previously assigned to their positions.  In like manner the disputed
 first sentence in the instant case provides a procedure for determining
 when, i.e., on which shift, an employee will perform his previously
 established assignment.  Further, contrary to the Agency's contention,
 this sentence does not constitute a mandate to fill all vacancies
 occurring on the Monday through Friday shift.  Rather the sentence only
 requires that when management decides to "offer" a vacancy, it will do
 so in the prescribed manner.  Thus, management is left with the
 discretion to determine whether a vacancy will be filled.
 
    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 first
 disputed sentence of Union Proposal 1.  /3/
 
    The Agency construes the second and third disputed sentences of Union
 Proposal 1 as intended to govern the placement rights of bargaining unit
 employees during a reduction-in-force (RIF).  In the absence of any
 challenge to that interpretation, it is adopted by the Authority for the
 purpose of this decision.  As the Authority noted in International
 Federation of Professional and Technical Engineers, AFL-CIO, NASA
 Headquarters Professional Association and National Aeronautics and Space
 Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982), "a
 RIF must be carried out in accordance with regulations issued by the
 Office of Personnel Management (OPM) pursuant to statute . . . ." In
 examining the relevant OPM regulations, the Authority observed that
 they:
 
          . . . specify that within each competitive level, employees
       will compete for retention in the agency based on their relative
       retention standing.  The "retention standing" of an employee is
       his or her rank relative to the other employees in the competitive
       level based on tenure, military preference, length of service, and
       performance rating.
 
    The disputed sentences, requiring that, during a RIF, vacancies on
 the Monday to Friday day shift be offered to employees on the basis of
 seniority are inconsistent with the quoted OPM RIF regulations which are
 Government-wide in scope and require that tenure, military preference
 and performance rating also be considered in determining an employee's
 entitlement to a given position during a RIF.  Thus, these sentences are
 outside the Agency's duty to bargain pursuant to section 7117(a)(1) of
 the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as it
 relates to the second and third disputed sentences of Union Proposal 1
 be, and it hereby is, dismissed.
 
    The fourth disputed sentence of Union Proposal 1 does not prevent
 management from deciding to abolish a shift or organizational segment
 which would affect an employee's ongoing shift assignment.  Rather, the
 Authority concludes that the intent of this sentence is to assure that
 employees will not have their shift assignments changed so long as the
 composition and responsibilities of their shifts remain unchanged.  In
 such circumstances, the proposal only addresses the location and times
 at which employees will perform the previously assigned duties of their
 positions.  Since such matters are not inconsistent with management's
 right to assign employees and work pursuant to section 7106(a)(2)(A) and
 (B) of this Statute, the sentence is within the duty to bargain.  See
 Department of Agriculture, Food Safety and Quality Service, 9 FLRA 663
 (1982).
 
    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 fourth
 disputed sentence of Union Proposal 1.  /4/
 
                             Union Proposal 2
 
          Article VIII.  Basic Work Week and Hours of Work Section 5:  It
       is agreed except in a case of emergency that two weeks advance
       written notice will be provided to an employee whose basic work
       week or shift hours are to be changed, but in no event shall there
       be less than three working days advance written notice of such
       changes.  (The underlined portion of the proposal is in dispute.)
 
    Union Proposal 2 conditions the Agency's response to emergencies
 necessitating the reassignment of bargaining employees upon the giving
 of three days notice of the reassignments.  In this respect, the
 proposal is to the same effect as Provision 1 in Association of Civilian
 Technicians, Inc., Pennsylvania State Council and the Adjutant General,
 Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346
 (1981), requiring verification and a declaration by a specified
 supervisor before taking emergency action, which the Authority held to
 violate management's right pursuant to section 7106(a)(2)(D) of the
 Statute "to take whatever actions may be necessary to carry out the
 agency mission during emergencies." Hence, based on Department of
 Military Affairs, and the reasons stated therein, Union Proposal 2 is
 outside the Agency's duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as it
 relates to Union Proposal 2 be, and it hereby is, dismissed.
 
                             Union Proposal 3
 
          Article IX, Holidays
 
          Section 3:  In accordance with applicable regulations:
 
          a.  Employees serving on an appointment not limited to ninety
       (90) days or less or who have served on consecutive appointments
       in excess of ninety (90) days without a break in service shall
       receive eight (8) hours pay at their regular hourly rate plus any
       appropriate differentials on all days defined as holidays on which
       they are not required to work.
 
                                .  .  .  .
 
          c.  Employees serving on an appointment not limited to ninety
       (90) days or less or who have served on consecutive appointments
       in excess of ninety (90) days without a break in service working
       on a holiday within their basic work week shall receive double
       their regular hourly rate and appropriate shift differential for
       all hours not to exceed eight (8) hours worked on holiday.
 
                             Union Proposal 4
 
          Article X, Sick Leave
 
          Section 4c:  Employees serving under a limited appointment, or
       one which will be terminated on a specified date, may be advanced
       only the amount which they would earn during the remainder of
       their appointment.  (Proposals 3 and 4 are disputed in their
       entirety.)
 
    The Agency's sole contention as to Union Proposals 3 and 4 is that
 they are outside the duty to bargain to the extent they apply to
 nonbargaining unit employees.  In this regard, the Agency asserts,
 without contravention, that the temporary employees referenced in Union
 Proposal 3, employees appointed for a period of more than 90 days but
 less than one year, and the temporary employees referenced in Union
 Proposal 4, employees serving a limited appointment or one which will be
 terminated on a specified date, are outside the bargaining unit
 represented by the Union herein.  It is well settled that, under section
 7117 of the Statute, an agency may, but is not obligated to, bargain on
 proposals concerning nonbargaining unit employees.  See, e.g.,
 International Association of Fire Fighters, Local F-61 and Philadelphia
 Naval Shipyard, 3 FLRA 438 (1980) (Union Proposal III).  Thus, since the
 Agency has elected not to bargain on proposals 3 and 4 to the extent
 they affect nonbargaining unit employees, Union Proposals 3 and 4 are to
 that extent outside the Agency's obligation to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as it
 concerns Union Proposals 3 and 4 be, and it hereby is, dismissed.
 
                             Union Proposal 5
 
          Article XVII, Promotions and Assignments
 
          Section 5:  The Employer agrees that no employee will be loaned
       out, detailed, assigned, reassigned, or have his position
       description rewritten to evade the principle of competitive
       recruitment as outlined by the Agreement and the appropriate
       regulations nor to avoid payment of additional compensation to an
       employee when working in a higher graded classification.
 
          Assignments to perform higher level duties shall be held to a
       minimum and the Employer agrees such assignment will not be abused
       nor made solely for the convenience of the Employer.  Time spent
       working at higher level duties may be logged by an employee on a
       form supplied by the Employer.  The form will be submitted to the
       immediate supervisor for verification and signature at the end of
       each pay period and retained by the employee.  The employee may
       compile these forms to be submitted for inclusion in the Official
       Personnel File at such time as the employee desires.  (The
       underlined sentence of this proposal is in dispute.)
 
    It is well established that a union proposal seeking to prohibit the
 assignment of specified duties to certain bargaining unit employees is
 inconsistent with management's right, pursuant to section 7106(a)(2)(B)
 of the Statute "to assign work." See, e.g., Association of Civilian
 Technicians and State of Georgia National Guard, 2 FLRA 581 (1980).  A
 proposal which limits the assignment of certain work to specific
 circumstances is likewise violative of section 7106(a)(2)(B).  See New
 York State Nurses Association and Veterans Administration Medical
 Center, Bronx, New York, 11 FLRA No. 94 (1983).  The disputed portion of
 Proposal 5 herein would absolutely bar the assignment of higher level
 duties to bargaining unit employees if such assignments were made
 "solely for the convenience of the Employer." In this regard, the Agency
 contends, without contravention by the Union, that "all assignments of
 employees are made 'for the convenience of the Employer,' to wit, to
 perform the mission of the Employer." Therefore, the Authority concludes
 that, as the disputed part of Union Proposal 5 can be reasonably
 construed as prohibiting the assignment of higher level duties
 circumstances where management may find it necessary to do so, it is
 inconsistent with the right "to assign work" pursuant to section
 7106(a)(2)(B) and outside the Agency's obligation to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as it
 relates to Union Proposal 5 be, and it hereby is, dismissed.
 
                             Union Proposal 6
 
          Article XVII, Promotions and Assignments
 
          Section 6:  Assignment of employees to positions at a higher
       grade will be by temporary promotion when such assignments are for
       two consecutive weeks or longer.  Promotions in such cases will be
       made effective at the earliest practicable time, under governing
       agency regulations and procedures.  This does not preclude
       management from effecting temporary promotions to commence at the
       start of an employee's assignment to a higher graded position when
       sufficient advance notice of the vacancy is available in which to
       process such a promotion.
 
          Temporary promotions, under the provisions of the section, are
       subject to the following selection procedure.  The most senior
       employee in the same occupational series permanently assigned to
       the same organizational element in which the vacancy occurs will
       be offered the temporary promotion.  Any employee so selected must
       meet minimum legal and Civil Service Commission qualification
       requirements.
 
          Promotions under this section cannot extend beyond 60 calendar
       days.  Any temporary promotion action affecting a single employee
       that extends beyond 60 calendar days must be made under the merit
       promotion procedure as contained in agency regulations.  (The
       underlined portion of the proposal is in dispute.)
 
    The disputed part of Union Proposal 6 would require that temporary
 promotions be offered to the senior employees in the organizational
 elements having the vacancies.  The proposal therefore governs the
 temporary assignment of employees to different, higher grade positions.
 In this respect, the disputed portion is to the same effect as Union
 Proposals IV through VI, requiring that selections for temporary
 assignments to different positions, specifically details and loans, be
 based on seniority, in American Federation of Government Employees,
 AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense
 v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
 cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).  In that case,
 the Authority found the cited proposals to be inconsistent with
 management's right pursuant to section 7106(a)(2)(A) of the Statute to
 assign employees.  Hence, based on Air Force Logistics Command, and the
 reasons stated therein, the disputed part of Union Proposal 6 herein is
 outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review, as it
 concerns the disputed portion of Union Proposal 6 be, and it hereby is,
 dismissed.
 
                             Union Proposal 7
 
          Article XVII, Promotions and Assignments
 
          Section 7.  The Employer agrees that:
 
          a.  Every effort will be made to assign unit employees to work
       appropriately to their classification.  In the event that it
       becomes necessary to temporarily assign employees to work at a
       lower level than the classification held, or where the work is
       appropriate to the classification but is unusually dirty or
       arduous, the Employer agrees that affected employees within the
       same work center will be assigned on an inverse seniority basis
       from the higher classification level most closely related to the
       duties required to be performed.  (All of Section 7a is in
       dispute.)
 
          b.  Assignment of employees to work at the same grade level in
       operational areas outside of their designated work center will be
       made on the basis of inverse seniority.  The employee's seniority
       shall prevail in the work area for terms and conditions of this
       Agreement.  It is the responsibility of the losing supervisor to
       provide the employee's seniority to the gaining supervisor of the
       affected employee.  This may be accomplished by annotating the
       employee's Service Computation Date on the daily Labor Exception
       Card which the employee takes to his temporary work area, or any
       other expedient when the annotation on the Labor Exception Card is
       impractical in individual circumstances.  (The underlined portion
       of Section7b is in dispute.)
 
          c.  It is further agreed that when there are more employees in
       a particular classification than there are pieces of available
       equipment, the employee permanently or temporarily assigned to the
       work area having the most seniority has the right to be assigned
       the equipment.  (All of Section 7c is in dispute.)
 
          d.  In making assignments of personnel, licensing requirements
       and physical limitations imposed by competent medical authority
       must be observed.  (All of Section 7d is in dispute.)
 
    Contrary to the Agency's contention, the first sentence of Section 7a
 is not inconsistent with the right, pursuant to section 7106(a)(2)(B) of
 the Statute, "to assign work." Rather, this sentence only requires that,
 as a general rule, assignments to employees will be consistent with
 their current grade levels.  Thus the first sentence is to the same
 effect as the first sentence of Union Proposal 2, providing that
 "employees can expect assignments to be made within reasonable bounds,
 consistent with grade level, position description and performance," in
 American Federation of Government Employees, AFL-CIO, Local 1858 and
 Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
 Alabama, 10 FLRA 440 (1982), which the Authority found to be within the
 duty to bargain.  Hence, based on U.S. Army Missile Command, and the
 reasons stated therein, the first sentence of Section 7a 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 first
 sentence of section 7a.  /5/
 
    The remaining part of Section 7a and the disputed first sentence of
 Section 7b clearly are concerned with the temporary reassignment of
 employees to work not usually performed by them, i.e., work at a lower
 grade level, "unusually arduous or dirty" work, or equivalent grade
 level work in other operational areas.  In all these circumstances,
 selection for assignment would, under the proposal, be governed by
 inverse order of seniority.  In this respect, these disputed provisions
 are to the same effect as Union Proposal IV through VI in Air Force
 Logistics Command, 2 FLRA 604, which the Authority found to "interfere
 with the right of the agency to assign employees." Hence, based on Air
 Force Logistics Command, and the reasons stated therein, these
 provisions are outside the duty to bargain because of their
 inconsistency with section 7106(a)(2)(A) of the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review, as it
 relates to the remaining part of Section 7a and the first sentence of
 Section 7b be, and it hereby is, dismissed.
 
    Section 7c, requiring that, in circumstances where more than one
 employee must use the same piece of equipment to carry out a work
 assignment, the matter will be resolved by application of seniority, is
 inconsistent with management's right pursuant to section 7106(a)(2)(B)
 of the Statute to assign work.  Section 7c would require the
 reassignment of equipment, to more senior employees regardless of
 whether the employees currently using the equipment have completed their
 work.  Thus, Section 7c would effectively require assignment of work
 based on seniority.  The Authority has consistently held such
 requirements to be inconsistent with the right, pursuant to section
 7106(a)(2)(B), to assign work.  See, e.g., International Organization of
 Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA No. 29
 (1983) (Provision 3).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as it
 concerns Section 7c be, and it hereby is, dismissed.
 
    Section 7d of Union Proposal 7 would impose limitations, i.e.,
 licensing requirements and physical considerations, upon management's
 right to assign employees.  In American Federation of Government
 Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub
 nom. Department of Defense v. Federal Labor Relations Authority, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
 945 (1982) the Authority stated, regarding Union Proposals IV through
 VI, that an agency's right, under section 7106(a)(2)(A) of the Statute,
 to assign employees, "includes the discretion to determine which
 employee will be assigned." Similarly, the Authority found, in National
 Federation of Federal Employees, Local 1624 and Air Force Contract
 Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980), that a
 proposal requiring in part that temporarily disabled employees be
 detailed to wo