32:0098(14)NG - - Tidewater Virginia FEMTC and Norfolk Naval Shipyard - - 1988 FLRAdec NG - - v32 p98


[ v32 p98 ]
32:0098(14)NG
The decision of the Authority follows:


32 FLRA No. 14

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Union

and 

NORFOLK NAVAL SHIPYARD
Agency

Case No. 0-NG-1311
(31 FLRA 131)

 

ORDER DENYING MOTION FOR RECONSIDERATION

This case is before us on the Agency's motion for reconsideration of our February 22, 1988, decision in the above-cited case.

In our decision, we determined that Provisions 5 and 6, which follow, are negotiable.

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.

We found that these two provisions did not limit the Agency's discretion to assign overtime work. We found further that nothing in the provisions allowed an employee to refuse to work overtime on a weekend when the Agency determined that work must be performed and that a particular employee was the only one qualified to perform the work. Rather than interfering with management's right to assign work, or any other management right, we found that the provisions constitute negotiable procedures under section 7106(b)(2).

The Agency requests reconsideration as to these two provisions, arguing that our decision was based on a ground which was neither asserted nor briefed by the parties. In support, the Agency first contends that deciding a negotiability dispute on a basis not raised by parties is inconsistent with the procedures intended by the Statute, because the parties are denied an adequate opportunity to set forth in full their positions on the issues. Second, the Agency contends that the Authority's action jeopardizes the right to judicial review because section 7123 of the Statute limits arguments made to the courts on judicial review to those which were raised in the administrative proceedings below. As to the merits of the Authority's decision, the Agency argues that Provisions 5 and 6 are not procedures.

Section 2429.17 of the Authority's Rules and Regulations permits a party who can establish "extraordinary circumstances" to request reconsideration of a final decision or order of the Authority. We conclude that the Agency has not established "extraordinary circumstances" within the meaning of section 2429.17.

In this case, the Agency argued that Provisions 5 and 6 excessively interfered with its right to assign work. We rejected that argument, finding instead that the provisions do not interfere with any management rights and constitute procedures relating to the assignment of overtime work. The Union did not specifically argue that the provisions were procedures. However, our finding that the provisions are negotiable under section 7106(b)(2) logically followed from our rejection of the Agency's assertion that the provisions interfered with a management right and the procedural wording of the provisions.

The Authority must apply all relevant provisions of the Statute in resolving negotiability appeals and is not limited to considering only the arguments of the parties. Order Denying Request for Reconsideration in American Federation of Government Employees, Local 1799 and Department of the Army, Aberdeen Proving Ground, Maryland, 23 FLRA 926 (1986). See also Section 7105(a)(2)(I) of the Statute which empowers the Authority to take actions "as are necessary and appropriate" to effectively administer the Statute; Overseas Education Association, Inc. v. Federal Labor Relations Authority, 827 F.2d 814, 818-20 (D.C. Cir. 1987) (affirming a negotiability determination by the Authority which was based on a ground other than that asserted by the parties to the case); and National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982) (the court stated that the Authority is "not foreclosed from making an independent inquiry into the law relevant to each agency's exercise of management rights"). The Agency's claim that the court's statement in National Federation of Federal Employees, Local 1167 applies only when a party has failed to file a timely brief misconstrues the point the court was making. The court was emphasizing that, while the Authority is empowered to undertake independent inquiry into relevant law, the parties bear the responsibility of making the record to support their claims, and cannot rely on the Authority to do it for them. Id.

Second, the Agency's claim that our decision jeopardizes its right to judicial review is baseless. Under section 7123(c), court review is barred absent extraordinary circumstances for issues never placed before the Authority, by the parties or on the Authority's own motion. See Overseas Education Association, Inc., 827 F.2d 814, 818-20. The decision cited by the Agency, Equal Employment Opportunity Commission v. FLRA, 476 U.S. 19 (1986), does not support a conclusion that issues raised on its own motion by the Authority are insulated from judicial review. That decision reflects the Court's "practice . . . to refrain from addressing issues not raised in the Court of Appeals." Id. at 24.

F