30:0650(80)NG - AFGE Local 2024 and Navy, Portsmouth Naval Shipyard, Portsmouth, NH -- 1987 FLRAdec NG
[ v30 p650 ]
The decision of the Authority follows:
30 FLRA NO. 80 30 FLRA 650 30 DEC 1987 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2029 Union and DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD PORTSMOUTH, NEW HAMPSHIRE Agency Case No. 0-NG-1376 DECISION 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 two proposals. For the following reasons, we find Proposal 1 which concerns shift transfers/assignments to be negotiable and Proposal 2 concerning overtime to be nonnegotiable because it violates management's right to assign work. II. Proposal 1 Article 11A - Hours of Work Section 4. In order to maintain the efficiency of operations, the Employer retains the right in accordance with existing authority to assign/ transfer employees from shift to shift. Normally, such transfer shall be made available to employees according to their retention standing in their specific code. The Employer agrees that an employee will not be assigned/transferred from shift to shift solely as a punishment or reward. In the case of a required shift change other than regularly scheduled shift rotation, the employee will be advised of the reason(s) for requiring the change of shift. A. Positions of the Parties The Agency recognizes that procedures for making shift assignments are generally negotiable. However, the Agency claims that this proposal would require, in certain circumstances, the transfer of employees who do not meet qualifications requirements. Specifically, the Agency argues that the employee codes referred to in the proposal are not employee skill identifiers. According to the Agency, they are organizational codes it uses to designate individuals by their organizational location. Statement of Position at 3. Thus, the Agency concludes, by requiring that shift assignments be made on the basis of retention standing in a specific employee code, this proposal conflicts with management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency states, however, that if the language of the proposal were revised to make it clear that procedures for making shift assignments are operative only after management has determined the specific qualifications for the assignment, the Agency would bargain on such revised language. The Union argues that this proposal is intended only to require the Agency to base shift transfers and assignments in normal situations on an employee's seniority within the employee's own work skills. The Union argues that there is nothing in this proposal which precludes the Agency from making qualification determinations. Rather, the Union contends that the reference to employee codes "is simply a shorthand reference to qualifications." Petition for Review at 2. B. Analysis and Conclusion Proposals which condition shift assignments and shift transfers on seniority are within the duty to bargain so long as the shift assignment or transfer does not involve the performance of duties other than the duties already assigned to an employee's position. Such proposals are concerned with the shift on which employees will perform the duties regularly assigned to their positions and thus, do not violate management's rights under section 7106(a)(2) to assign employees or to assign work. International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provisions 4 and 16); Laborers' International Union of North America, Defense Depot Tracy, Tracy California, 14 FLRA 686 (1984) (Proposal 1). Contrary to the Agency's contention, there is nothing in the language of this proposal which precludes the Agency from determining the particular skills needed on a shift or from determining which employees have those skills. Rather, the Union expressly states that employees will "compete according to seniority within their own skills." Petition for Review at 2. Thus, under this proposal, the Agency would be obligated to use seniority within a particular organizational element when assigning, or transferring an employee to a particular shift where the employee would perform the duties already assigned to that employee's position. Therefore, we find this proposal to be negotiable. Compare Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 7 FLRA 714 (1987) (Proposal 3) (The first portion of section 4 of Proposal 3 requiring that employees be assigned to certain tours of duty on request found nonnegotiable because it prevented management from determining the particular skills needed on a tour of duty). III. Proposal 2 Article 12 - Overtime Section 12. The Employer agrees not to assign to higher-graded employees overtime work normally performed by lower-graded employees, where there are lower-graded employees possessing the required skills who are available for assignment. A. Positions of the Parties The Agency argues that this proposal interferes with management's rights to assign work and to determine the types and grades of employees assigned to a work project under sections 7106(a)(2)(B) and (b)(1) of the Statute. In addition, the Agency argues that the proposal is not an appropriate arrangement, as the Union contends, because it excessively interferes with management's rights. The Union argues that this proposal is an appropriate arrangement designed to alleviate the adverse effect of depriving qualified employees of the right to earn overtime pay for performing available overtime work. B. Analysis and Conclusion 1. The Proposal Interferes with the Agency's Right to Assign Work Proposals which provide procedures for determining who among qualified employees will be selected to perform their regularly assigned duties in an overtime status when management has determined overtime is necessary have been found to be negotiable. See, for example, 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) (Proposal 1). In contrast, proposals which restrict or limit the assignment of overtime to bargaining unit employees consistently have been found to conflict with management's right to assign work under section 7106(a)(2)(B). See, for example, American Federation of Government Employees, Local 1409, AFL - CIO and U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 16 FLRA 352 (1984) (Provision 1). According to the Union, Proposal 2 would preclude the assignment of overtime work to higher graded nonbargaining unit employees when lower graded bargaining unit employees are available to perform the overtime work. See Reply Brief at 11. Thus, Proposal 2 imposes a substantive limitation on the Agency's right to assign overtime work to nonbargaining unit employees when lower graded bargaining unit employees are available. Further, contrary to the Union's claim, the use of the term "normally" does not provide management with flexibility to assign overtime work to higher graded nonbargaining unit employees when necessary. Rather, the use of this term sets forth a norm and would result in the Agency being obligated to justify any departure from that norm. See National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986), aff'g National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985) (Provision 2). Consequently, since Proposal 2 limits the Agency's right to assign overtime work to nonunit employees, we find that it directly interferes with management'