31:0131(18)NG - Tidewater Virginia FEMTC and Norfolk Naval Shipyard -- 1988 FLRAdec NG



[ v31 p131 ]
31:0131(18)NG
The decision of the Authority follows:



  31 FLRA NO. 18
 31 FLRA 131

       22 FEB 1988
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
AFL-CIO

                    Union

      and

NORFOLK NAVAL SHIPYARD

                    Agency

Case No. O-NG-1311

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute). It concerns the negotiability of eight provisions
disapproved by the Agency head pursuant to section 7114(c) of the
Statute. 1 For the reasons discussed below, the Authority finds
that the Agency must rescind its disapproval of Provisions 5, 6
and 11. The Union's petition for review concerning Provisions 1,
2, 3, 7 and 9 is dismissed.

     II. Provision 1

     Article 4. Section 2. During a period of emergency declared
by the Shipyard Commander or higher authority, the employer
reserves the right to take whatever actions deemed by the
employer to be necessary notwithstanding the provisions contained
in this Agreement. 

     For purposes of this section, an emergency is defined as an
unforeseen combination of circumstances or an unexpected
situation calling for immediate action.

     A. Positions of the Parties

     The Agency contends that the provision is nonnegotiable
because it interferes with its right under section 7106(a)(2)(D)
of the Statute to take necessary actions to carry out the
Agency's mission during emergencies. In support, the Agency
argues that the provision would preclude it from independently
assessing whether an emergency exists pursuant to its management
right. The Union alleges that the provision requires the parties
to designate a spokesperson to represent management in declaring
an emergency, as defined by the dictionary.

     B. Analysis and Conclusion

     Provision 1 seeks to (1) define the term "emergency" used in
section 7106(a)(2)(D) of the Statute and (2) designate the
management officials who must declare the emergency. We find that
by defining "emergency," the provision would preclude the Agency
from independently assessing whether an emergency exists and
would limit management's right to act during emergencies to
situations which meet the proposed definition. Consequently, we
conclude that Provision 1 directly interferes with management's
section 7106(a)(2)(D) right and as a result, is nonnegotiable
insofar as it defines the term "emergency." National Federation
of Federal Employees, Local 2059 and U.S. Department of Justice,
U.S. Attorney's Office, Southern District of New York, New York,
New York, 22 FLRA  136 (1986) (Provision 2). See also American
Federation of Government Employees, Locals 696 and 2010 and Naval
Supply Center, Jacksonville, Florida, 29 FLRA  1174 (1987).

     In addition to defining "emergency," Provision 1 designates
who will declare an emergency. It would limit management's right
to act during emergencies to situations where the emergency is
verified and declared by the "Shipyard Commander or higher
authority." By conditioning the exercise of management's right to
act in emergencies on the declaration of an emergency by the
Shipyard Commander or higher authority, Provision I conflicts
with management's right to act under section 7106(a)(2)(D). As a
result, it is nonnegotiable. See Association of Civilian
Technicians, Inc., Pennsylvania State Council and the Adjutant
General, Department of Military Affairs, Commonwealth of
Pennsylvania, 7 FLRA  346 (1981) (Provision 1), reversed as to
other matters sub nom. Adjutant General, Department of Military
Affairs, Pennsylvania v. FLRA,  685 F.2d 93 (1982).

     III. Provision 2

     Article 7, Section 9. The employer will make every
reasonable effort to avoid the transfer of Conference Committee
members between shifts or work areas and such transfers will
require the approval of the appropriate division head.

     A. Positions of the Parties

     The Agency contends that the provision violates its right to
assign work under section 7106(a)(2)(B) of the Statute because it
(1) requires management to avoid transferring certain Union
officials to different shifts or work areas; and (2) specifies
that "the appropriate division head" must approve such
assignments. The Union argues that the provision does not
preclude the Agency from making reassignments when necessary but
only requires some rationale other than Union animus. The Union
also contends that the provision constitutes an appropriate
arrangement under section 7106(b)(3).

     B. Analysis and Conclusions

     This provision restricts the Agency's ability to assign
certain union representatives to other work areas. The record
indicates that transferring an employee to a different work area
may mean assigning the employee to perform different duties. The
Union claims in connection with Provision 9 of this decision that
employees who are assigned to a different shop can suffer a loss
of their trade skills because of the different work. See part VII
of this decision. Consequently, this provision is distinguishable
from those which have been held negotiable because they were
found to concern only when or where employees will perform those
duties which management has previously assigned to their
positions. See, for example, American Federation of Government
Employees AFL - CIO Local 1815 and Army Aviation Center, Fort
Rucker, Alabama, 28 FLRA  1172, 1185-87 198 (Chairman Calhoun
dissenting). Rather, this provision restricts management's
ability to assign work which is different from that which
previously was assigned to their positions. Accordingly, we find
that this requirement of Provision 2 interferes with management's
right to assign work. 

     The provision also requires that if management decides to
transfer Conference Committee Members between shifts or work
areas, the transfer must be approved by "the appropriate division
head." Therefore, Provision 2 would require the Agency to assign
the function of approving or disapproving the reassignments of
certain Union representatives to particular individuals--division
heads. Management's right to assign work under section
7106(a)(2)(B) encompasses the right to assign specific duties to
particular individuals, including management officials. See
American Federation of Government Employees, AFL - CIO, Local
1858 and U.S. Army Missile Command, The U.S. Army Test,
Measurement, and Diagnostic Equipment Support Group, The U.S.
Army Information Systems command - Redstone Arsenal commissary,
27 FLRA  69, 80-82 (1987) petition for review filed sub nom. U.S.
Army Missile Command, U.S. Army Test, Measurement and Diagnostic
Equipment Support Group, U.S. Army Information Systems Command -
Redstone Arsenal Commissary v. FLRA,  No. 87-7445 (llth Cir. July
17, 1987). We found in that decision that Provision 6, which
required the Agency to assign to the "immediate supervisor"
certain investigative and counselling tasks, interfered with
management's right to assign work. Consistent with our decision
in that case, Provision 2 is inconsistent with management's right
to assign work.

     We turn now to the question of whether this provision is an
appropriate arrangement for employees adversely affected by the
exercise of management's right to assign work. The Agency asserts
that the Union's petition is vague and fails to identify the
management right alleged to produce adverse effects or to
indicate how Provision 2 would appropriately ameliorate the
claimed adverse effects. it further asserts that the provision
does not ameliorate the adverse effects which may flow from
reassignments but, instead, prohibits the reassignments
themselves. The record supports these assertions by the Agency.

     The Union states that nothing in the provision "precludes
Management from reassignment when necessary; it only requires
some rationale other than anti - Union animus. . . ." Petition
for review, unnumbered second page of enclosure stating Union
position. This statement is not consistent with the plain wording
of the provision, which requires management to make "every
reasonable effort to avoid transfer(s) . . . between shifts or
work areas(.) (Emphasis added.) Nothing in the provision supports
an interpretation that it does not apply if a transfer is
"necessary, or that it precludes reassignments only if the
reassignments are based on anti-union animus. 

     Consequently, even assuming for the purpose of this decision
that the provision is an "arrangement," we find that it is, on
balance, not "appropriate." It abrogates management's discretion
to reassign the Union representatives covered by the provision
and excessively interferes with the reserved right to assign
work.

     IV. Provision 3

     Article 9, Section 4. The initial area of consideration
shall be determined prior to issuance of an announcement. This
area may be expanded if the minimum area fails to produce one
highly qualified candidate. For bargaining unit positions, the
initial area of consideration shall be employees within the
Shipyard - provided there is an adequate source of recruitment
for the positions within the activity.

     (Only the underlined sentence is in dispute.)

     A. Positions of the Parties

     The Agency asserts that the second sentence of this
provision violates its right to select under section
7106(a)(2)(C) of the Statute because it precludes the expansion
of the area of consideration whenever there is one highly
qualified candidate from the initial area of consideration. The
Union maintains that the provision is within the duty to bargain
under the Statute because it does not require the selection of
any particular individual.

     B. Analysis and Conclusion

     Provision 3 provides that the initial area of consideration
may be expanded "if" the initial area does not produce a
qualified candidate. Whenever there is one highly qualified
candidate from the initial area of consideration, the Agency may
not consider other candidates.

     Section 7106(a)(2)(C) of the Statute reserves to management
the right to make selections for appointments from among properly
ranked and certified candidates for promotion or from any other
appropriate source. In order for management to exercise its right
to select, management must be able to consider applicants from
all appropriate sources. Therefore, proposals which prohibit the
expansion of the area of consideration if the initial area
produces a specified number of qualified candidates, like
Provision 3, interfere with management's right to select and are
nonnegotiable. 

     See, for example, National Association of Government
Employees, Local R7-23, SEIU, AFL - CIO and Department of the Air
Force, Scott Air Force Base, Illinois, 16 FLRA  367 (1984) and
National Federation of Federal Employees, Local 1332 and
Headquarters, U.S. Army Materiel Development and Readiness
Command, Alexandria, Virginia, 6 FLRA  361 (1981) (Union Proposal
IV). Provision 3 is distinguishable from proposals which merely
define the initial area of consideration for filling vacancies
under a merit promotion procedure. Proposals which define the
area of consideration but do not prevent management from
expanding that area of consideration are negotiable because they
do not interfere with management's right to select from any
appropriate source. For example, National Treasury Employees
Union and Department of the Treasury, Financial Management
Service, 29 FLRA  422 (1987) (Provision 1) (Chairman Calhoun
concurring).

     Here, the second sentence of the provision forecloses
expansion of the area of consideration in the circumstances
described. As a result, it is inconsistent with the Agency's
authority under section 7106(a)(2)(C) of the Statute, and is
outside the duty to bargain.

     V. Provisions 5 and 6

     Article 16, Section 13. When overtime within the Shipyard is
required on both Saturdays and Sundays for a continuing period,
the employee normally shall not be required to work two
consecutive weekends. In this connection the employer will make a
reasonable effort to schedule one weekend day off during the
second weekend for each employee.

     Article 16, Section 14a. When overtime within the Shipyard
is required on both Saturdays and Sundays for a continuing
period, the employee normally shall not be required to work more
than four consecutive weekends. In this connection, the employer
will schedule one weekend off, unless there is an emergency as
determined by the employer or the employee volunteers to work.

     A. Positions of the Parties

     The Agency contends that Provisions 5 and 6 are
nonnegotiable because they restrict management's right to assign
work in certain overtime situations in violation of section
7106(a)(2)(B) of the Statute. The Agency asserts that
Provisions 5 and 6 would prohibit it from requiring an employee
to work overtime (1) one weekend day every other week absent
extraordinary circumstances, and (2) every fifth weekend except
in an emergency situation. Finally, the Agency argues that the
provisions are not appropriate arrangements under section
7106(b)(3) because employees are not adversely affected by the
assignment of overtime work and because the provisions
excessively interfere with management's right. The Union
maintains that the provisions are appropriate arrangements under
section 7106(b)(3) because they enhance productivity and
efficiency.

     B. Analysis and Conclusions

     These provisions constitute negotiable procedures under
section 7106(b)(2) of the Statute. They would not prevent
management from determining that work must be performed during
weekends as the Agency claims. Both provisions expressly are
premised on the existence of circumstances in which management
has exercised its right to assign overtime work "on both
Saturdays and Sundays for a continuing period." These provisions
are not concerned with whether overtime work will be assigned and
performed on weekends. They do not eliminate the discretion to
assign overtime work to any group of employees or any particular
employee.

     We find that the provisions are intended to establish
procedures which management will observe in making overtime
assignments. Provision 5 requires the Agency, in designing
overtime schedules for continuing periods of weekend work, to
make a "reasonable effort" to preserve I day off for an employee
whom it schedules to work 2 consecutive weekends. Provision 6,
concerned with longer periods of continuing weekend overtime,
requires the Agency to schedule 1 weekend off after every 4
consecutive weekends it schedules an employee to work unless the
Agency determines that there is an emergency or the employee
volunteers to work. Each provision expressly limits the
obligation of management to observe these scheduling procedures
to what "normally" can be accomplished. They do not limit
management's discretion to determine both that overtime is
required and which employees are qualified to perform the work.

     Nothing in these provisions allows any employee to refuse to
work overtime on a weekend when the Agency determines that work
must be performed and that a particular employee in question is
the only one in the bargaining unit, comprised of more than 8000
individuals, who is qualified to perform it. While it is
not a dispositive consideration, we note the Union's
uncontroverted assertion that the wording of Provision 5 has been
a part of the parties' collective bargaining agreement since 1977
"with little or no impact, while during this same time Norfolk
Naval Shipyard received many productivity and quality awards
including in 1986, the Commander-in-Chief's Award for
installation excellence." Petition for Review at unnumbered page
of enclosure setting forth the Union's position concerning
Article 16, Section 13.

     Accordingly, we find that the provisions constitute
negotiable procedures by which the scheduling and selection of
employees to perform overtime work on consecutive weekends would
be made from among those deemed by management to be qualified.
See National Federation of Federal Employees, Local 1853 and
U.S.Attorney's Office, Eastern District of New York, Brooklyn,
N.Y., 29 FLRA  94 (1987) (Provision 3) (procedure by which
selection for overtime assignments would be made from among
volunteers deemed by management to be qualified); 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 5 and 9) (procedures for the assignment of
overtime, based on inverse seniority, to employees determined by
the agency to be qualified and allowing an employee to refuse an
overtime assignment where a qualified employee was available to
take his place); and National Federation of Federal Employees,
Local 1622 and U.S. Commissary, Fort Meade, Maryland, 16 FLRA 
998 (1984) (Provision 2) (procedure requiring management to
accede to an employee's request to be relieved of an overtime
assignment if another employee, qualified and willing to do the
work, were available).

     These provisions are distinguishable from proposals in other
cases which were found nonnegotiable although they contained
similar qualifying language. In those cases the proposals
directly interfered with management's rights and the interference
was not prevented by the qualifying language. See, for example,
American Federation of Government Employees, AFL - CIO, Local
1625 and Department of the Navy, Naval Air Station, Oceana,
Virginia, 30  FLRA  No. 122 (1988) (Provision 3) (qualifying
phrase "where feasible" did not remove limitation on agency's
right to assign work); American Federation of Government
Employees, AFL - CIO, Local 2635 and Naval Communications Unit,
Cutler, East Machias, Maine, 30  FLRA  41 (1987) (Provision 1)
(qualifying language such as "make reasonable efforts" is not
dispositive where provision is found to directly 
interfere with management's rights). In contrast, the provisions
in this case do not interfere with the exercise of any management
rights.

     In view of our decision that Provisions 5 and 6 are
negotiable procedures under section 7106(b)(2), we need not
determine whether they constitute negotiable appropriate
arrangements under section 7106(b)(3).

     VI. Provision 7

     Article 18, Section 3. The employer will not assign
employees to work on a holiday solely to avoid overtime work that
otherwise would be performed on a day outside the basic
workweek.

     A. Positions of the Parties

     The Agency contends that the provision violates its right to
assign work under section 7106(a)(2)(B). The Union asserts that
the provision is (1) consistent with laws which allow Federal
employees to celebrate recognized Federal holidays, and (2)
contributes to an efficient and productive work force.

     B. Analysis and Conclusion

     In American Federation of Government Employees, AFL - CIO,
Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28
FLRA  1172, 1175 (1987) we held that Provision 4, which prevented
management from assigning work on a Federal holiday to avoid
assigning overtime work that otherwise would be assigned on a day
outside the basic workweek, was nonnegotiable. We found that
Provision 4 limited management's right to determine that certain
work will be performed on holidays and, as a result, violated
management's right to assign work under section 7106(a)(2)(B).

     Provision 7 here is virtually identical to Provision 4 in
Army Aviation Center Fort Rucker, Alabama. Therefore, for the
same reason, Provision 7 violates the Agency's right to assign
work within the meaning of section 7106(a)(2)(B) and is outside
the duty to bargain.

     VII. Provision 9

     Article 28. Section 2(a). It is understood that the employer
retains the right to select employees to be detailed or loaned to
another shop for the purposes of supplementing the other
work force or because of lack of work in the parent shop. No such
detail or loan for a given employee will be for more than 90 days
within a calendar year. The time limitation in this Section does
not apply when the parent shop has no work which the employee is
qualified to perform.

     (Only the underscored requirement is in dispute.)

     A. Positions of the Parties

     The Agency contends that the second sentence of the
provision violates its rights to assign employees and work under
section 7106(a)(2)(A) and (B) of the Statute. The Union maintains
that, under section 7106(b)(3), the provision is an appropriate
arrangement for employees adversely affected by the exercise of
management rights. it claims that the provision would ensure that
employees do not lose their trade skills because of a detail.

     B. Analysis and Conclusions

     This provision restricts the Agency's ability to assign
employees to a detail for more than 90 days within a calendar
year. The provision precludes the Agency from assigning a
particular employee to a detail (1) after that employee has been
detailed for 90 days during a calendar year; or (2) which is
longer than 90 days in duration.

     The provision would restrict management's authority to
determine (1) the duration of an assignment, (2) the particular
employee to whom the work will be assigned, and (3) when the work
will be performed. Therefore, we find that Provision 9 interferes
with management's rights to assign employees and to assign work
under sections 7106(a)(2)(A) and (B) of the Statute. See American
Federation of Government Employees, AFL - CIO, Local 916 and
Tinker Air Force Base, Oklahoma, 7 FLRA  292, (1981) (Provision
II, paragraph (3)) (provision restricting certain details to 60
days is nonnegotiable) and American Federation of Government
Employees, AFL - CIO, National Border Patrol Council and
Department of Justice Immigration and Naturalization Service, 16
FLRA  251 (1984) (Proposal 1) (proposal limiting certain
temporary assignments to an aggregate of 70 days per year is
nonnegotiable).

     We turn now to the question of whether Provision 9 is
negotiable as an appropriate arrangement for employees 
adversely affected by the exercise of management's rights to
assign employees and work. The Union intends this provision to
mitigate the claimed deterioration of trade skills which it
asserts can result from management's temporarily assigning a
skilled trade employee to another shop of a different craft. The
Agency asserts, however, that (1) it sometimes makes such
assignments to avoid the necessity of subjecting the employees
involved to a reduction-in-force (RIF) or a furlough due to the
lack of sufficient funds or work; and (2) the assignments benefit
employees by enabling them to expand their skills. Therefore, the
Agency claims that no adverse effect necessarily flows from its
exercising its rights to make such assignments.

     We agree that it is not clear that employees are adversely
affected in the circumstances covered by this provision. We may,
however, assume such an effect for purposes of this decision.
Balancing the respective interests of the Agency and the
employees, we find that the proposed arrangement excessively
interferes with the Agency's right to assign employees and work
and for that reason is nonnegotiable, as explained below.

     The provision restricts the temporary assignments in
question to an aggregate of 90 days per year unless there is no
work in the "parent" shop which the employee is qualified to
perform. It bars management from assigning the employee to
another shop for more than 90 days for any other legitimate
reason, for example, (1) the lack of sufficient work or funds to
justify retaining the employee in the parent shop; or (2) the
need for the employee to complete an assignment which continues
past 90 days. On the other hand, an employee who is assigned to
another shop for more than 90 days may suffer a deterioration of
trade skills as claimed by the Union. However, in our opinion,
assigning an employee to another shop for more than 90 days
instead of subjecting the employee to a RIF or a furlough
provides a benefit which significantly mitigates against any
adverse impact from loss of skills. A similar, though less
immediate, benefit would flow to employees from the opportunity
to expand their skills through a temporary assignment.

     On balance, we find that the provision's negative impact on
management's ability to assign employees and work is
disproportionate to the benefit which would accrue to employees.
Accordingly, the provision excessively interferes with those
rights and is outside the duty to bargain. 

     VIII. Provision 11

     Article 36, Section 7. It is agreed and understood that the
Employer shall:

     1. Process voluntary dues withholding authorization
requests. 2. Transmit an alphabetized statement to the
secretary/treasurer of the Union within 7 calendar days after
each payday which contains the names and home addresses of unit
union members who have dues withheld, their pay numbers and
amount deducted from each member, the totals of the number and
the monetary amount of allotment deductions, and the amount for
which the check is to be drawn by the disbursing officer. 3. Draw
and submit a check to the secretary/ treasurer of the Union in
the amount of the total deductions for the respective payroll
period. 4. Provide a list to the secretary/ treasurer of the
Union 7 calendar days after each pay period, of the names of unit
union members who have revoked their dues authorization or whose
allotments have been discontinued for other reasons.

     (Only the requirement which is underscored is in dispute.)

     A. Positions of the Parties

     The Agency contends that this provision's requirement that
the Union be provided the names and home addresses of unit
members who have their dues withheld is precluded by the
provisions of the Privacy Act, and, therefore, in violation of
the requirements of 5 U.S.C. 7117. The Union disputes the
Agency's contention that providing it the names and home
addresses of unit members is violative of law.

     B. Analysis and Conclusion

     The issue is whether the release of unit union members' home
addresses to the Union is negotiable.

     In Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA  788 (1986) (Farmers Home), enforced in part
and remanded sub. nom. U.S. Department of Agriculture and Farmers
Home Administration Finance Office, St. Louis, Missouri v. FLRA, 
No. 86-2579 (8th Cir. Jan. 15, 1988), petitions for
rehearing filed, we held that the release of the names and home
addresses of unit employees to the exclusive representative was
not prohibited by the Privacy Act. See United States Department
of Health and Human Services Social Security Administration v.
FLRA,  833 F.2d 1129 (4th Cir. 1987), petition for rehearing
filed January 8, 1988, affirming Department of Health and Human
Services, Social Security Administration, 24 FLRA  543 (1986);
Department of Health and Human Services, Social Security
Administration and Social Security Administration Field
Operations, New York Region, 24 FLRA  583 (1986); Department of
Health and Human Services, Social Security Administration, 24
FLRA  600 (1986); Department of the Air Force, Scott Air Force
Base, Illinois, 24 FLRA  226 (1986) aff'd sub nom. U.S.
Department of the Air Force, Scott Air Force Base, Illinois v.
FLRA,  No. 87-1143 (7th Cir. Jan. 27, 1988).

     In Farmers Home we found that release of names and home
addresses of unit employees to the exclusive representative was
permitted under two exceptions to the Privacy Act's bar to
disclosure of personal information. Specifically, an exception
set forth at 5 U.S.C. 552a(b)(2) concerning the Freedom of
Information Act (FOIA) and an exception set forth at 5 U.S.C.
552a(b)(3) relating to "routine use" of information permit the
release of names and home addresses.

     Under the provisions of 5 U.S.C. 552a(b)(2), the Privacy Act
does not preclude disclosures required by the FOIA. In
determining whether personal information may be disclosed under
this exception it is necessary to balance the employee's right to
privacy against the public interest in disclosure. In Farmers
Home we concluded that the balance of competing interests favors
disclosure and that the release of home addresses is not
prohibited by the Privacy Act. See United States Department of
Health and Human Services, Social Security Administration v.
FLRA,  833 F.2d 1129