23:0193(25)NG - AFGE Local 2185 and Tooele Army Depot, Tooele, UT -- 1986 FLRAdec NG



[ v23 p193 ]
23:0193(25)NG
The decision of the Authority follows:


 23 FLRA No. 25
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2185
 Union
 
 and
 
 TOOELE ARMY DEPOT
 TOOELE, UTAH
 Agency
 
                                            Case No. 0-NG-1215
 
                 DECISON AND ORDER ON NEGOTIABILITY ISSUES
 
                         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 four Union proposals.  The proposals all concern leave
 during partial closure of the Agency around the Thanksgiving and
 Christmas holidays.  As submitted, the proposals are as follows:
 
          1.  Management will make every conceivable attempt to avoid
       forcing any employee to take annual leave or LWOP and will make
       every conceivable attempt to assign employees to available work
       for which the employee is qualified if employees do not elect to
       take annual leave or LWOP.
 
          2.  Pursuant to a questionnaire to be mutually agreed upon,
       employees will be polled as to whether they desire annual leave,
       LWOP or other assigned work.
 
          3.  An extremely liberal leave policy will be in effect.  No
       employee requests for annual leave or LWOP will be denied unless
       an emergency exists or work demands leave no other alternatives.
       In any event, no requests for annual leave or LWOP will be denied
       where there are other employees who want to work and not take
       annual leave or LWOP and the employee is otherwise qualified to
       perform the work.
 
          4.  Prior to forcing any employee to take annual leave or LWOP,
       in the event that there are more employees desiring to work than
       there is work available, the following procedures will apply:
 
          (a) work assignments amongst employees desiring work will be
       given to qualified employees with the greatest seniority;  and
 
          (b) before an employee will be required to take LWOP because
       the employee does not have sufficient annual leave, upon request
       the employee will be advanced annual leave if management has any
       reason to believe that the employee will be able to restore
       advanced annual leave.
 
    Subsequently, in its Statement of Position, the Agency stated it had
 no objection to Proposal 2 and that if the Union agreed to include FPM
 requirements concerning the granting of annual leave as part of Proposal
 4(b) it would not object to that proposal either.  In its Reply Brief
 the Union agreed with the Agency's position on Proposal 4(b).  Thus, the
 issues concerning Proposals 2 and 4(b) are moot and will not be
 considered further in this decision.
 
                           II.  Union Proposal 1
 
                       A.  Positions of the Parties
 
    The Agency reads the phrase that it "make every conceivable attempt
 to assign employees to available work" if they decline to take annual
 leave or leave without pay (LWOP) as requiring such assignments.  It
 also asserts that it would be precluded from assigning available work to
 other employees.  Therefore, it asserts that the proposal conflicts with
 management's reserved rights to assign employees under section
 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the
 Statute.  The Agency also argues that the requirement to assign work
 "for which the employee is qualified" similarly interferes with
 management's rights because it could result in the assignment of an
 overqualified employee at higher pay than necessary.
 
    The Union argues that the proposal merely deals with the impact of
 management's decision to partially close the Agency around the
 Thanksgiving and Christmas holidays.  It understood that the Activity
 would make work available to some employees during the periods in
 question, and sought to avoid or lessen the impact of closure.  It
 concedes that an agency has the right to require employees to take
 charged leave during such closures under current Authority case law.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that Union Proposal 1 is nonnegotiable.  By
 requiring management to make "every conceivable attempt" to avoid
 requiring an employee to take annual leave (A/L) or leave without pay
 (LWOP), the proposal effectively could require management to forego its
 plan to partially close down if more employees wanted to work (rather
 than take A/L or LWOP) than were called for by the management plan.  The
 second clause would have the same effect.  It is undisputed that the
 Agency has the right to partially close during holiday periods.  The
 same decision, under the same Army Civilian Personnel Regulation
 involved in this case, led the Authority to determine that an agency
 could require employees to take annual leave during such closings.
 National Association of Government Employees, Local R14-62 and U.S. Army
 Dugway Proving Ground, Dugway, Utah, 18 FLRA No. 38 (1985), petition for
 review filed sub nom. National Association of Government Employees,
 Local R14-62 v. FLRA, No. 85-2098 (10th Cir. July 23, 1985).  Thus the
 proposal is outside the duty to bargain because it could result in
 depriving management of its rights to require employees to take leave,
 and ultimately prevent the closing of operations, contrary to
 management's rights to assign employees under section 7106(a)(2)(A) and
 to assign work under section 7106(a)(2)(B) of the Statute.  In addition,
 the "every conceivable attempt" language does not limit the proposal,
 because we have consistently held that proposals requiring an agency to
 make an effort to accomplish an objective which is outside the duty to
 bargain are themselves nonnegotiable.  Maritime/Metal Trades Council and
 Panama Canal Commission, 18 FLRA No. 43 (1985) (Union Proposal 5).
 
    While intended by the Union as an arrangement for employees adversely
 affected by the Agency's exercise of its rights to require employees to
 take leave and to partially close down, we find that under the
 circumstances discussed above, the proposal is not an appropriate
 arrangement within the meaning of section 7106(b)(3) of the Statute.
 Thus, where a proposed amelioration of adverse effects of an Agency's
 exercise of its rights could totally eliminate the Agency's discretion
 to exercise its rights, such proposal amounts to "excessive
 interference" with the exercise of management's rights, and is not an
 appropriate arrangement.  Federal Union of Scientists and Engineers and
 Department of the Navy, Naval Underwater Systems Center, 22 FLRA No. 83
 (1986).  See also American Federation of Government Employees, AFL-CIO,
 Local 2782 v. Federal Labor Relations Employees Authority, 702 F.2d
 1183, 1188 (D.C. Cir. 1983).
 
    The Agency also argues that the requirement to assign work "for which
 the employee is qualified" could result in the assignment of an
 overqualified employee at higher pay than necessary.  Although we have
 already determined this proposal to be nonnegotiable, since the argument
 arises later in connection with other proposals, we note that this part
 of the proposal would not render nonnegotiable an otherwise negotiable
 provision.  As long as the Agency can set the qualifications, there is
 nothing to preclude it from limiting its definition of "qualified" to
 those employees who are not overqualified or whose work would not
 require the Agency to pay a higher rate than normal for the job.  Thus,
 management's discretion to select and assign employees based on
 job-related characteristics is not limited by the language of the
 proposal.  See American Federation of Government Employees, AFL-CIO,
 National Immigration and Naturalization Service Council and U.S.
 Department of Justice, (Immigration and Naturalization Service), 8 FLRA
 347, 383-4 (1982).
 
                          III.  Union Proposal 3
 
                       A.  Positions of the Parties
 
    The Agency argues that the proposal would nullify management's right
 under section 7106(a)(2)(B) of the Statute to determine when work will
 be performed.  Further, the Agency asserts that the last sentence of the
 proposal would interfere with its right under the same section of the
 Statute to make work assignments.
 
    The Union states that the first part of the proposal merely restates
 the liberal leave policy which already exists, under which management
 determines work demands.  The second part of the proposal, embodied in
 the last sentence, would protect leave requests if qualified volunteers
 are available.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that under the facts presented, this proposal
 is negotiable.  The Agency's right to determine when work will be
 performed is unaffected because there is no indication that the phrases
 "unless . . . work demand leave no other alternatives" is intended to
 restrict management's control over deciding and defining what are the
 demands of work.  As long as management can determine what constitutes
 "work demands," it controls completely any decision as to scheduling or
 delaying all aspects of accomplishment of its mission, consistent with
 any decision to close during holiday periods.  Further, to say that
 employees would not be required to take leave if qualified volunteers
 exist -- which is essentially the