33:0618(78)NG - - FEMTC of Charleston and Charleston Naval Shipyard, Charleston, SC - - 1988 FLRAdec NG - - v33 p618



[ v33 p618 ]
33:0618(78)NG
The decision of the Authority follows:


33 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL EMPLOYEES METAL TRADES

COUNCIL OF CHARLESTON, AFL-CIO

and

CHARLESTON NAVAL SHIPYARD

CHARLESTON, SOUTH CAROLINA

0-NG-1556

DECISION AND ORDER ON NEGOTIABILITY ISSUE

October 28, 1988

Before Chairman Calhoun and Member McKee.

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). It concerns a single provision of a negotiated agreement which was disapproved by the Agency head in the course of review under section 7114(c) of the Statute. The disputed part of the provision seeks to require that, during periods when activities are curtailed temporarily, management attempt to provide available work to employees lacking annual leave. For the reasons that follow, we find the disputed part of the provision to be nonnegotiable because it is inconsistent with management's rights to assign and lay off employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

II. Provision

Section 6. During periods of shutdown of activities, or reduced operations for vacation purposes, management will attempt to provide available work first to employees not having annual leave to their credit. If work cannot be assigned for such employees, subject to the approval of the Commanding Officer, Naval Station, such employees holding Career or Career Conditional status, who have more than six (6) months service, may be advanced annual leave to cover the period of the shut-down provided such leave does not exceed that which would be accrued during the current leave year and provided no separation or other action is pending which would preclude normal accrual of leave. [Only the underscored portion of the provision is in dispute.]

A. Positions of the Parties

Charleston Naval Shipyard, Charleston, South Carolina (the Agency) contends that the disputed provision is nonnegotiable because it interferes with management's rights to lay off employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

According to the Agency, the provision interferes with the right to lay off by requiring that specified employees be offered available work, notwithstanding management's decision to lay off those same employees. Additionally, the Agency asserts, the provision would subject to arbitral scrutiny the Agency's determination that no work was available for the covered employees. As a result, the Agency argues, an arbitrator's judgment would be substituted for that of the Agency's concerning the exercise of a management right.