31:0158(20)NG - IAM Local 726 and Naval Air Rework Facility, North Island, San Diego, CA -- 1988 FLRAdec NG



[ v31 p158 ]
31:0158(20)NG
The decision of the Authority follows:


 31 FLRA NO. 20

    31 FLRA 158

     22 FEB 1988


INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
LOCAL 726

                    Union

      and

NAVAL AIR REWORK FACILITY,
NORTH ISLAND, SAN DIEGO, CA

                    Agency

Case No. O-NG-1305

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority under section
7105(a)(2)(E) of the Federal Service Labor - Management Relations
Statute (the Statute) and concerns the negotiability of seven
provisions of a negotiated agreement disapproved by the Agency
head under section 7114(c) of the Statute. 1 For the reasons
discussed below, we find that the Agency must rescind its
disapproval of Provision 5. The Union's petition for review
concerning Provisions 1, 2, 3, 4, 6 and 7 is dismissed.

     II. Preliminary Matter 2

     The Agency argues that section 7106(b)(3), concerning
appropriate arrangements for employees adversely affected by the
exercise of a management right, is not applicable to the 
disputed provisions. It claims that section 7106(b)(3) applies
only where management exercises its rights to change conditions
of employment in a substantial way. The Agency maintains that
here, merely routine exercises of management rights are involved.
We rejected this argument in American Federation of Government
Employees, AFL - CIO Local 2317 and U.S. Marine Corps, Marine
Corps Logistics Base, Nonappropriated Fund Instrumentality,
Albany, Georgia, 29 FLRA  1587 (1987) (Provision 1) petition for
review filed as to other matters sub nom. U.S. Marine Corps,
Marine Corps Logistics Base, Nonappropriated Fund
Instrumentality, Albany, Georgia v. FLRA,  No. 88-8006 (llth Cir.
Jan. 5, 1988) and reject it here for the same reasons. We
articulated the test, for determining whether a proposal is
negotiable as an appropriate arrangement in National Association
of Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA  24 (1986). Under that test whether the exercise
of a management right is routine or results in a substantial
change in conditions of employment is not determinative of the
question of negotiability. The factor may be a consideration in
balancing the interests of employees against those of management,
however.

     III. Provisions I and 2

     1. Article 3, Section 12. Any employee who is serving as a
Shop Steward or Chief Shop Steward will not be transferred out of
the assigned representational area (shop or shift) unless
mutually agreed upon by the Union President and the Employer.
This section shall not be construed so as to limit the right of
the Employer to assign such representative work outside their
respective areas as necessitated by the nature of their job. Any
dispute as to this section will be discussed with the appropriate
Division Director or Department Head and, if still 
unsolved, may be submitted under the Grievance Procedure.

     (Only the underlined portion is in dispute.)

     Section 13. Temporary exceptions to the Section 12 described
method of representation may be made only by mutual agreement
between the Union Chairman and the Employer.

     A. Positions of the Parties

     The Union states that these provisions are intended to allow
it to maintain its representatives within their assigned
representational areas without limiting the Agency's right to
assign work "based on job requirements." It asserts that the
provisions are appropriate arrangements which are negotiable
under section 7106(b)(3). The Union contends that the provisions
were designed to protect employees from a previous management
practice of transferring proficient union representatives away
from their representation area. It states that this practice
adversely affected employees by denying them competent
representation and by having a chilling effect on Union
representatives.

     The Agency asserts that the provisions excessively interfere
with its right to assign employees and to assign work under
section 7106(a)(2)(A) and (B). Denying that the practice
described by the Union ever existed, the Agency asserts that the
negative effects of the provisions on its ability to operate
outweigh any benefits to employees.

     B. Analysis and Conclusion

     In discussing these provisions, the Union stated in its
supplemental submission:

     The Agency raises a straw dog by asking the question,
"Should management have to depend upon the largesse of the union
in order to operate in the most efficient manner?" because it
ignores the second sentence in this section that says that it
"shall not be misconstrued so as to limit the right of the
Employer to assign such representatives work outside their
respective areas as necessitated by the nature of their job."

     Therefore management is able to "relocate employees based on
workload needs without  union concurrence," as the Agency
puts it. "Transfers" are different from "assignments." As it
happens, many of our stewards do possess "specialized skills"
which are, on occasion, "needed in another work location." Past
practice in these cases has been to have the two parties meet to
discuss the location and duration of the necessary assignments
and to make the appropriate arrangements for representation
during those assignments (coverage by the Chief Shop Steward or
temporary appointment of an Alternate Steward).

     (Emphasis in original.)

     Provisions 1 and 2 differentiate between "transfers" and
"assignments." Based on the Union's description of how it intends
these provisions to operate, we conclude that the term "transfer"
means placing an employee in another shop or on another shift on
a permanent basis. The term "assignment" refers to situations
where an employee is to perform duties in a different shop or on
a different shift on a temporary basis.

     The provisions require the Agency to obtain the Union's
agreement before it can "transfer" a Shop or Chief Steward to a
shop or shift outside their representational area. Where only an
"assignment" is involved, the Agency may do so without the
Union's agreement when "necessitated by the nature of their
job."

     We find that Provisions 1 and 2 would restrict the Agency's
discretion to "transfer" a Shop or Chief Steward to another shop
or shift to perform duties for which they have specialized
skills. They would require the Agency to obtain the agreement of
the Union in order to make such work assignments. The provisions
would limit the Agency's discretion in making assignments of
duties to Stewards, on other than a temporary basis, to those
duties which existed in the shops and shifts which corresponded
with the Steward's representational area. The provisions directly
interfere with the Agency's right to assign work by conditioning
the Agency's ability to reassign employees to other duties upon
obtaining the permission of the Union. See National Labor
Relations Board Union,_ Local 19 and National Labor Relations
Board, Region 19, 2 FLRA  775 (1980) (proposal establishing a
condition on management's ability to assign specified duties to a
particular employee directly interferes with management's right
to assign work). See also, Colorado Nurses Association and
Veterans Administration Medical Center, Ft. Lyons, Colorado, 25
FLRA 803 (1987) (Proposal 4), petition for review filed
sub nom. Colorado Nurses Association v. FLRA,  No. 87-1104 (D.C.
Cir. Feb. 25, 1987).

     Based on the Union's explanation of these provisions, we
conclude that they would have the additional effect of
conditioning the Agency's ability to transfer or reassign a
Steward to a position outside the Steward's representational area
on the agreement of the Union. Under section 7106(a)(2)(A) of the
Statute the right to assign an employee encompasses the
discretion to determine which employee will be assigned. See
American Federation of Government Employees, AFL - CIO and Air
Force Logistics Command, Wright - Patterson Air Force Base, Ohio,
2 FLRA  604, 613 (1980), affirmed sub nom. Department of Defense
v. FLRA,  659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.
AFGE v. FLRA,  455 U.S. 945 (1982). These provisions restrict the
Agency's discretion to determine which employee to assign to a
position. Specifically, they require the Agency to obtain the
Union's permission in order to assign a Steward to a position
which is outside of the Steward's representational area. See
American Federation of Government Employees, AFL - CIO, Local
3529 and Defense Contract Agency, 3 FLRA  301 (1980). These
provisions interfere with the Agency's right under section
7106(a)(2)(A) to assign employees.

     Having found that Provisions 1 and 2 interfere with the
Agency's rights to assign employees and to assign work, we turn
to the question of whether they are negotiable as appropriate
arrangements under section 7106(b)(3). We do not condone, of
course, transferring proficient stewards away from their assigned
representational areas because of their Union activities, which
the Union alleges to have occurred in the past. We do not pass on
that allegation, here. Such questions should be resolved under
the unfair labor practice procedures. See, for example, U.S.
customs Service. Washington, D.C. and National Treasury Employees
Union, 24 FLRA  773 (1986). However, even assuming that
Provisions 1 and 2 constitute "arrangements" for employees
adversely affected by the Agency's exercise of its rights under
section 7106, we find that they excessively interfere with the
Agency's right to assign employees and to assign work.

     The provisions would make the Agency's ability to "transfer"
stewards to shops and shifts outside their representational area
dependent on the Union's agreement. Thus, they would eliminate
the Agency's discretion to take such actions. Any exceptions to
the requirement that the Union's permission be obtained
are also dependent on the Union's agreement. No allowance is made
for the Agency to retain its ability to "transfer" stewards
without the Union's agreement, even in circumstances where it has
compelling reasons to effect a transfer. In all circumstances,
the Agency must obtain the Union's agreement. The provisions
subordinate the Agency's needs to Union's interests in
maintaining Stewards in shops or on shifts which correspond to
the representational area to which the Stewards are currently
assigned as Union representatives. On balance, we find that the
provisions excessively interfere with the Agency's right to
assign employees and to assign work. Therefore, they are not
negotiable.

     IV. Provision 3

     Article 13, Section 3. Other basic schedules and shift hours
may be established under conditions where the facility would
otherwise be seriously handicapped in carrying out its mission.
Such workweek schedules will not be made for the reason of
avoiding the payment of overtime. In this regard, changes will be
discussed with the Union prior to becoming effective.

     (Only the underlined portion is in dispute.)

     A. Positions of the Parties

     The Agency asserted in its memorandum disapproving portions
of the parties agreement that Provision 3 is inconsistent with 5
C.F.R. 610.121(b), a Government-wide regulation. The Agency
additionally contends that the provision interferes with
management's right to assign work under section 7106(a)(2)(B).
Agency Statement of Position at 3. The Union claims that this
provision constitutes a negotiable appropriate arrangement under
section 7106(b)(3).

     B. Analysis and Conclusion

     Under 5 U.S.C. 6101(a)(3)(A), agencies are required to give
employees a minimum of 7 days' advance notice of changes in work
schedules with two exceptions: where the agency would be (1)
seriously handicapped in carrying out its functions or (2) costs
would be substantially increased. 5 C.F.R. 610.121(b)(2), relied
on by the Agency, implements the statutory provision and uses
essentially the same language. The disputed sentence of Provision
3 would prevent the Agency from changing work schedules
to avoid the payment of overtime even in circumstances when the
Agency determines that the requirements of 5 U.S.C. 6101(a)(3)(A)
and 5 C.F.R. 610.121(a) are met. Even if the Agency determined
that it would be seriously handicapped in carrying out its
functions, or that costs would be substantially increased if it
did not change work schedules to avoid overtime, the provision
would preclude such changes. Accordingly, we find that Provision
3 is inconsistent with law and Government-wide regulation.
Therefore, it is outside the duty to bargain under section
7117(a)(1) of the Statute. Tidewater Virginia Federal Employees
Metal Trades Council and Department of the Navy, Navy Public
Works Center, Norfolk, Virginia, 25 FLRA  3, 4-7 (1987). In view
of this conclusion, we do not reach the Agency's contention that
the provision interferes with its right to assign work under
section 7106(a)(2)(B), or the Union's related claim that the
provision is an appropriate arrangement for employees adversely
affected by the exercise of management's rights. See National
Federation of Federal Employees, Local 29 and Department of the
Army, Kansas City District, Corps of Engineers, 21 FLRA  228
(1986).

     V. Provision 4

     Article 13, Section 13(C). When a situation arises involving
special qualifications causing an imbalance in an overtime group,
the Employer will conscientiously work toward training additional
employees in that group based on the anticipated duration of the
job and the time required for such training.

     A. Positions of the Parties

     The Agency contends that Provision 4 interferes with
management's right to assign work under section 7106(a)(2)(B).
The Union claims that the provision does not violate management's
right to assign work under Authority precedent and constitutes a
negotiable procedure under section 7106(b)(2), and/or a
negotiable appropriate arrangement under section 7106(b)(3).

     B. Analysis and Conclusion

     This provision interferes with management's right to assign
work. The Union states that this provision is necessary to give
meaning to another, undisputed provision in the parties'
agreement, which requires "the equitable distribution of overtime
by shop, classification and capability to perform the
work". Union Response at 4. The Union indicates that this
provision is designed to ensure that the "capability to perform
the work" and, thereby, qualification for an equitable share of
overtime will not be eroded. The Union claims that in the past,
"supervisors . . . would preferentially assign work and training
to particular individuals on a regular basis." Id. The Union
asserts that training in some form is almost continuous in any
shop. Id. It further asserts that "the language 'conscientiously
work toward training' merely refers to the time-tested practice
within our bargaining unit of assigning on-the-job training to
employees who are already at the worker or journeyman level
within their respective trades." Union Supplemental Response at
fifth unnumbered page.

     In light of the foregoing, we find that this provision is
intended to (1) maintain the ability of the members of an
overtime group to share equitably in available overtime work; and
(2) accomplish this result by ensuring that such employees
receive the training which they need in order to have "special
qualifications" and the "capability to perform the work" which is
assigned to the group. Union Response to Agency Statement of
Position at 4. In order to redress a perceived "imbalance in an
overtime group" the provision requires the Agency to provide
on-the-job training. Consequently, we reject the Union's
statement that the provision means only that the Agency should
"attempt" to provide training where the need for special
qualifications causes overtime to be unequally distributed. Union
Petition for Review at 4.

     That is not to say that the provision requires the Agency to
provide training in every situation when an "imbalance" arises.
The provision leaves management with some discretion regarding
short-term needs for special skills by allowing the Agency to
consider "the duration of the job and the time required for the
training." This exception, however, merely highlights the
intention that, in all other circumstances, management must
provide whatever training is needed to prevent or correct an
imbalance in an overtime group. Management's right to assign work
clearly encompasses the assignment of training during duty hours.
Accordingly, we conclude that this provision directly interferes
with management's right to assign work. See American Federation
of Government Employees, Local 3231 and Social Security
Administration, 22 FLRA  868 (1986) (Proposal 3).

     We turn now to the question of whether Provision 4 is
negotiable as an appropriate arrangement for employees
adversely affected by the exercise of management's right to
assign work. The Union intends this provision to mitigate the
claimed adverse effect which results from employees being
"systematically or arbitrarily left out of training opportunities
in this technically oriented labor force." it claims that such
employees are less able to share equitably in available overtime.
While it is not clear that employees are "adversely affected" in
the circumstances covered by the provision, we assume for the
purpose of this decision that the provision is an "arrangement"
within the meaning of section 7106(b)(3). 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 work.

     The provision would require the Agency to provide on-the-job
training to employees based solely on the existence of an
"imbalance" in overtime assignments. The only exception to this
requirement relates to the duration of the job requirements
producing the overtime opportunities and the time required for
the training involved. The provision would eliminate the Agency's
discretion to take any other legitimate factors into
consideration in deciding whether to provide training. The Union
has not shown that the benefit to employees which would flow from
this provision outweighs the restrictions on the Agency's
discretion. Therefore, on balance, we conclude that the provision
excessively interferes with the Agency's right to assign work. It
would directly limit the exercise of the discretion inherent in
the Agency's right to assign work and does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3).
See AFGE Local 2782 v. FLRA,  702 F.2d 1183, 1188 (D.C. Cir.
1983), reversing and remanding American Federation of Government
Employees, AFL - CIO, Local 2782 and Department of Commerce,
Bureau of the Census, Washington, D.C., 7 FLRA  91 (1981) and
American Federation of Government Employees, AFL - CIO, Local
2029 and Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 30  FLRA  650, 654 (1987).

     VI. Provision 5

     Article 13, Section 13(D). An employee will not be brought
into a shop to work overtime when there are qualified employees
in that shop who desire to work the overtime but have not been so
assigned. Exceptions to this provision will be discussed with the
appropriate Shop Steward.

     A. Positions of the Parties

     The Agency contends that Provision 5 interferes with
management's right to assign work under section 7106(a)(2)(B).
The Union contends that the provision constitutes a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute.
According to the Union, the provision is intended to provide an
equitable distribution of overtime by shop, classification and
capability to perform work. Union Petition for Review at 4 and
Union Response to Agency Statement of Position at 5.

     B. Analysis and Conclusion

     This provision constitutes a negotiable procedure under
section 7106(b)(2) of the Statute. We find that the Agency's
reliance on the following decisions is misplaced: 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); American Federation of
Government Employees, AFL - CIO, International Council of U.S.
Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 11 FLRA  672 (1983) (Proposal 2); and National
Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA  588
(1981) (Proposal V). In those cases, the Authority found
nonnegotiable proposals which, respectively, would have had the
following effects: limiting the assignment of overtime to
bargaining unit employees; eliminating the discretion to assign
work to particular employees; and requiring assignment of
specific work to qualified bargaining unit employees, not to
other employees in the unit or employees outside the unit.

     Provision 5 applies if management determines that (1)
overtime work will be performed in a particular shop and (2)
there are employees both within and outside of that shop who are
qualified to do that work. If these requirements are met,
Provision 5 requires the Agency to select qualified volunteers
from within the shop. When management has determined that two or
more employees are equally qualified to perform a task, the
selection of any of those employees to perform the work is
consistent with management's right to assign work. 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 is
negotiable). Provision 5 does not limit management's discretion
to determine both whether overtime work will be
performed in a shop and, if so, which employees are qualified to
perform that work.

     Accordingly, we find that the provision constitutes a
negotiable procedure by which the selection for overtime
assignments in a particular shop would be made from among those
employees 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 found to be negotiable) and
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 found to be negotiable).

     VII. Provision 6

     Article 13, Section 15. The employer agrees that work on
established holidays will be kept to a minimum and that holiday
work will be assigned only when it is essential to accomplish
work which may not be interrupted or to meet urgent workload
demands.

     A. Positions of the Parties

     The Agency claims that Provision 6 interferes with
management's right to assign work under section 7106(a)(2)(B).
The Union claims that Provision 6 constitutes a negotiable
appropriate arrangement under section 7106(b)(3).

     B. Analysis and Conclusion

     Provision 6 limits the circumstances in which management
could require work to be performed on holidays. It thereby
restricts management's discretion to determine when work which
has been assigned will be performed. The right to assign work
under section 7106(a)(2)(B) encompasses the right to determine
when work which has been assigned will be performed. Accordingly,
we find that Provision 6 directly interferes with
management's right to assign work. American Federation of
Government Employees, AFL - CIO, Local 1815 and Army Aviation
Center, Fort Rucker, Alabama, 28 FLRA  1172, 1175-76 (1987)
(Provision 4) (provision which prevented management from
assigning work on a Federal holiday if the purpose of the
assignment was to avoid assigning overtime work that otherwise
would be assigned on a day outside the basic workweek found to be
nonnegotiable). See also National Federation of Federal
Employees. Council of Consolidated Social Security Administration
Locals and Social Security Administration, 13 FLRA  422 (1983)
(Proposal 2).

     We now turn to the question of whether Provision 6 is
negotiable as an appropriate arrangement for employees adversely
affected by the exercise of that right within the meaning of
section 7106(b)(3). According to the Union, the provision is
intended to ameliorate the adverse effects on employees of having
their family lives disrupted by being assigned work on holidays.
While it is not clear that employees are "adversely affected" in
the circumstances covered by the provision, we assume such an
effect for purposes of this decision. American Federation of
Government Employees, AFL - CIO, Local 2317, and U.S. Marine
Corps, Marine Corps Logistics Base, Nonappropriated Fund
Instrumentality, Albany, Georgia, 29 FLRA  1587 (1987) (Provision
1) petition for review filed as to other matters sub nom. U.S.
Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund
Instrumentality, Albany, Georgia v. FLRA,  No. 88-8006 (llth Cir.
Jan. 5, 1988). 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 work and
is, therefore, outside the duty to bargain.

     With specified exceptions, the provision proscribes
management's ability to require work to be performed on holidays.
Although the provision could limit the extent to which holiday
work would intrude into employees' personal time, that intrusion
is somewhat mitigated by the fact that they receive premium pay
for working on a holiday (even though they might receive an
"extra half day premium" if the same work were assigned as
overtime on a day outside the basic workload). See Union Response
to Agency Statement of Position at 5.

     We find on balance that the provision's broad proscription
of holiday work would have a disproportionately negative impact
on the right to assign work compared to the benefits it would
give to employees. Accordingly, we find that the provision
excessively interferes with the Agency's right to assign work and
is outside the duty to bargain. 

     VIII. Provision 7

     Article 13, Section 39. An employee who is injured on the
job during the first eight (8) hours of the regularly scheduled
shift and is sent home because of such injury will receive the
regular straight-time hourly rate for the time actually worked
and for the balance of the first eight (8) hours of the scheduled
shift. If the injury occurs after eight (8) hours have been
worked, the employee will receive time and one-half for t