35:1128(124)NG - - AFGE Local 2298 and Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, SC - - 1990 FLRAdec NG - - v35 p1128



[ v35 p1128 ]
35:1128(124)NG
The decision of the Authority follows:


35 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2298

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVY RESALE ACTIVITY/NAVY EXCHANGE

NAVAL WEAPONS STATION

CHARLESTON, SOUTH CAROLINA

(Agency)

0-NG-1649

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of four proposals.(1) Proposal 1, which requires the Agency to keep holiday work to a minimum and precludes the Agency from assigning holiday work for the purpose of avoiding overtime work and pay, excessively interferes with the Agency's right to assign work and is outside the duty to bargain. Proposal 2, requiring the Agency to make every effort, consistent with law, to fill positions by promoting employees within the Agency, does not directly interfere with management's right under section 7106(a)(2)(C) to select from any appropriate source and is within the duty to bargain. The first portion of Proposal 4, which provides that rating and ranking panels will normally not be used in making slections for bargaining unit positions, is a negotiable procedure for management to use in exercising its right to select employees. The second portion of Proposal 4, however, prohibiting selecting officials from being members of such panels, is nonnegotiable because it directly interferes with the Agency's right to assign work. Proposal 5, which prohibits the use of personal service contracts to establish an employer-employee relationship between Government employees and contractor personnel, does not directly interfere with the Agency's right to hire under section 7106(a)(2)(A) of the Statute and is within the duty to bargain.

II. Proposal 1

Article 12

Section 13. The Employer agrees that holiday work will be kept to a minimum and will not be assigned for the purpose of avoiding overtime work and pay, but will be assigned only if necessary to fulfill the basic mission of the Navy Exchange locations that are open for retail or service business on holidays, or to meet an urgent maintenance/repair requirement.

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right to assign work. The Agency asserts that the proposal would prevent the Agency from assigning employees to work on holidays if the work could be performed in an overtime status on a non-holiday, and would permit the assignment of employees to work on holidays only to fulfill the basic mission of the Navy Exchange or to meet an urgent maintenance/repair requirement. Statement of Position at 1.

The Union asserts that the proposal "seeks to have the employer assign employees to holiday work, for which no 'time and a half' is paid, as little as possible." Response at 5. The Union argues that "[t]he proposal does not prohibit the assignment of work on holidays; instead, the proposal only requires that the basis of such assignment not be to exploit the fact that employees do not receive the overtime rate for such work." Id. The Union further argues that the proposal is "an 'appropriate arrangement' within the meaning of 5 U.S.C. § 7106(b)(3) to diminish the adverse effects upon employees' personal time and income." Id. at 3.

B. Analysis and Conclusion

Proposal 1 precludes management from assigning work on a holiday if the purpose of the assignment is to avoid assigning overtime work and pay. Furthermore, the proposal allows the assignment of work on a holiday only for two purposes: (1) if necessary to fulfill the basic mission of the Agency; and (2) to meet an urgent maintenance/repair requirement.

The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine when work that has been assigned will be performed. American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Provision 4, prohibiting the agency from assigning work on holidays for the purpose of avoiding overtime work, held to violate the right to assign work). We therefore find that, by limiting management's right to determine that certain work will be performed on holidays, Proposal 1 directly interferes with the Agency's right to assign work within the meaning of section 7106(a)(2)(B).

We now turn to the question of whether Proposal 1 is negotiable as an appropriate arrangement for employees adversely affected by the exercise of that right within the meaning of section 7106(b)(3) of the Statute. According to the Union, the proposal is intended to ameliorate the adverse effects on employees of a reduction in pay and a loss of personal time that results when management assigns work to be performed on holidays to avoid paying overtime. While it is not clear that employees are "adversely affected" in the circumstances covered by this proposal, we assume such an effect for purposes of this decision. International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, CA, 31 FLRA 158, 169 (1988) (Naval Air Rework Facility).

The question remains whether Proposal 1 constitutes an "appropriate" arrangement that is within the duty to bargain or whether it is inappropriate because it excessively interferes with the Agency's right to assign work. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard). As previously discussed, Proposal 1 precludes the assignment of work on holidays if the purpose of the assignment is to avoid overtime work and pay. To the extent that the proposal would proscribe management's ability to require work to be performed on holidays, it is substantially to the same effect as Provision 6 in Naval Air Rework Facility that we held did not constitute an appropriate arrangement.

The provision in Naval Air Rework Facility required the agency, with specified exceptions, to keep work assigned on holidays to a minimum and to assign work on holidays "only when it is essential to accomplish work which may not be interrupted or to meet urgent workload demands." Id. at 168. In that case, the Authority balanced the respective interests of the agency and employees and found that the provision excessively interfered with the agency's right to assign work. Although the provision in that case could have limited the extent to which holiday work would intrude into employees' personal time, the Authority found that the intrusion was somewhat mitigated by the fact that they received premium pay for working on a holiday (even though they may have received an extra half-day premium if the same work were assigned as overtime on a day outside the basic workweek). The Authority further found, 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. Id. Because Proposal 1 in the present case, like Provision 6, broadly proscribes management's ability to require work to be performed on holidays while intending to give employees the same benefits, we find that the proposal excessively interferes with the Agency's right to assign work.

Therefore, we find that Proposal 1 is outside the duty to bargain.

III. Proposal 2

Article 19

Section 1. The Employer shall make every effort to promote the employees within the Exchange first, providing that such an effort is not in violation of statutes, Executive orders or other superior authority; however, the Employer has the option of staffing positions by methods other than promotion such as repromotions, transfers or new hire.

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right to make selections for appointments from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency asserts that the proposal, by requiring management to make every effort to promote from within, would in effect require the Agency to select from qualified applicants within the Exchange without giving consideration to applicants from other appropriate sources or be subject to a challenge that it did not make "every effort." Statement of Position at 3. In support of its position, the Agency relies upon Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (Treasury, BATF). The Agency further asserts that the proposal would limit the methods it could use, when staffing positions with individuals from outside the Exchange, to methods other than promotion, such as repromotions, transfers, or new hire.

The Union states that the proposal is intended as a procedure under which the employer would review applications from the bargaining unit and promote employees, if possible. The Union asserts that the proposal "does not require 'first consideration' or any delay should management, in its sole discretion, determine to promote from other 'appropriate sources.'" Petition at 2. Rather, the Union argues that the proposal would require the Agency to make "every effort," to the extent consistent with law, to promote employees of the Exchange before going to other sources. Response at 6. The Union further asserts that the proposal is an appropriate arrangement for employees adversely affected by management's exercise of its right to make selections for appointments from any appropriate source.

B. Analysis and Conclusion

A proposal which requires first consideration of employees within a bargaining unit when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining unit employees have been considered, does not directly interfere with management's right to select from any appropriate source. National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422 (1987) (Provision 1, requiring the agency to give first consideration to its employees, held to be a negotiable procedure); Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475, 477 (1983) (Proposal 1); Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77 (1980).

Proposal 2 would require the Agency to make every effort, in accordance with applicable law, to promote employees within the Exchange before filling positions by other methods. Because, under law, the right to make selections from any appropriate source is committed to management, Proposal 2 could require the Agency to consider bargaining unit employees, but could not, by its terms, limit the Agency's right to select from other sources.

The Agency's reliance on Treasury, BATF, 857 F.2d at 819, to support its claim that the proposal would prevent consideration of outside applicants is misplaced. Unlike Proposal 2, the proposal in that case prohibited the Agency from even soliciting applications from outside the Agency until it had finished ranking and considering eligible agency applicants. Therefore, the proposal in Treasury, BATF inhibited management's ability to look beyond the agency for potential candidates and required the agency to make its initial employment decision before being permitted to inform itself of the full range of potential candidates for the position being filled. Id. at 822. See also National Association of Government Employees, Local R5-165, and Tennessee Air National Guard, 35 FLRA No. 93 (1990) (proposal precluding the agency from soliciting or considering military personnel for bargaining unit positions until after the merit placement program for unit employees was completed directly interferes with the agency's right to select from any appropriate source). Proposal 2, in sharp contrast, would not prevent the Agency from simultaneously processing or considering applications from other appropriate sources.

We reject the Agency's contention that Proposal 2 would limit the actions by which management could staff positions with nonbargaining unit applicants to repromotions, transfers or new hires. The proposal clearly lists those staffing methods only as examples of, not limitations on, methods the Agency might choose to follow in the exercise of its right to select from any appropriate source. The proposal does not state that those methods are exclusive.

We also reject the Agency's contention that the proposal's requirement that the Agency make "every effort" to promote bargaining unit employees would preclude the Agency from considering applicants from other appropriate sources and would subject the Agency to a challenge that "every effort" was not made. Although the proposal requires that "every effort be made to promote employees," the proposal expressly limits the meaning of the phrase "every effort" to those efforts consistent with "statutes, Executive Orders or other superior authority[.]" As a result, the proposal would not require any effort to be made that was not consistent with, for example, management's right to select from any appropriate source pursuant to section 7106(a)(2)(C) of the Statute. The Union further emphasizes the limited scope of the proposal by noting that it only requires the Agency to "scrutinize its options before deciding to fill bargaining unit jobs from outside the unit." Response at 8. Inasmuch as the Union's stated intent is consistent with the plain language of the proposal, we find that the Agency has misinterpreted the proposal in this regard.

Therefore, we distinguish this proposal from those that the Authority has held to be nonnegotiable because they required the agency to make "every effort," or the like, to take some action encompassed by a management right. For example, Overseas Education Association, Inc. and Department of Defense, Dependents Schools, 29 FLRA 628 (1987), rev'd on other grounds sub nom. Department of Defense Dependents Schools v. FLRA, Nos. 87-1733 (D.C. Cir. Nov. 30, 1987) (Proposals 5a, 5b, 5c, and 5d, requiring the agency to make "every reasonable effort," interfered with management's right to assign work). Unlike the proposals involved in that case, Proposal 2 contains express limitations, which are consistent with the Union's stated intent, that define the scope of the efforts the Agency is required to undertake as those consistent with law. Accordingly, they must be consistent as well with management's rights under section 7106 of the Statute.

For the reasons stated above, we find that Proposal 2 does not directly interfere with management's right to select from any appropriate source and is within the duty to bargain.

In view of our decision, we find it unnecessary to rule on the Union's claims that the proposal constitutes a procedure and an appropriate arrangement under sections 7106(b)(2) and (3) of the Statute.

IV. Proposal 4

Article 19

Section 5. Normally rating and ranking panels will not be used for unit positions, [sic] however, if they are used, the selecting official will not be a member of the panel and the Union will be provided the opportunity to have an observer present to review the deliberations of the panel.

Although the Agency declared the entire proposal to be nonnegotiable, the Union has appealed only the underlined portion.

A. Positions of the Parties

The Agency argues that the underlined portion of the proposal limits the use of rating and ranking panels and, thus, directly affects the exercise of management's rights to select employees and to determine the organization of the Agency. The Agency further asserts that, to the extent that the proposal restricts the Agency in the assignment of selecting officials as members of any rating and ranking panel, the proposal interferes with management's rights to assign employees and to determine the personnel by which Agency operations are conducted under section 7106(a)(2)(B) of the Statute.

The Union states that the proposal is similar in intent and nature to that in Lodge 2424, IAM-AW and Kirk Army Hospital and Aberdeen Research and Development Center, Aberdeen, MD, 1 FLRC 525 (1973).

B. Analysis and Conclusion

To the extent that the proposal specifies the circumstances under which candidates for bargaining unit positions will be rated by a panel, it is substantially to the same effect as the provision that we held to be negotiable in National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362 (1990) (NFFE, Local 2099) ("where three or more qualified candidates are identified, a ranking panel will be established to determine the best qualified candidates"). In that decision, we ruled that the provision did not interfere with management's rights under section 7106(a) of the Statute to select employees for positions, assign work, or determine organization. Rather, we concluded that the provision constituted a negotiable procedure under section 7106(b)(2) for management to observe in making selections. Insofar as the proposal in the present case is limited to specifying that the rating and ranking of candidates will not normally be accomplished by a panel, we find that it too is a negotiable procedure for the reasons stated in detail in NFFE, Local 2099. Specifically, here, as in NFFE, Local 2099, the proposal places no substantive restraint on the Agency's ability to act because the actual selection decisions are left to the unfettered discretion of the Agency. 35 FLRA at 366-67.

However, to the extent that Proposal 4 would preclude the Agency from appointing the selecting official as a rating and ranking panel member, we find that the proposal directly interferes with management's right to assign work.

Employees appointed to ranking panels are performing work for the Agency. Their selection involves a work assignment by the Agency to the selected individuals. National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422 (1987) (Provision 2) (Financial Management Service). Proposals that directly interfere with management's right to assign work are outside the duty to bargain under section 7106(a)(2)(B) of the Statute. The right to assign work includes the discretion to determine "the particular employees to whom or positions to which [work] will be assigned." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).

Proposal 4 prohibits management from assigning a selecting official to be a member of a rating and ranking panel. Insofar as it would preclude such work assignments, the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Financial Management Service, 29 FLRA at 423-24 (Provision 2, prohibiting certain employees and officials from serving on the ranking panel, is nonnegotiable); National Treasury Employees Union and Department of the Treasury, 21 FLRA 1051 (1986) (Provision 7, prohibiting selecting official from serving on ranking panel, is nonnegotiable).

Accordingly, we find that Proposal 4 is outside the duty to bargain insofar as it precludes assigning a selecting official to be a panel member.

V. Proposal 5

Article 26

Section 4. The Employer will not enter into personal services [sic] contracts which establish an Employer-employee relationship, as defined by appropriate laws and regulations.

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right to hire under section 7106(a)(2)(A) of the Statute. In support of its position, the Agency relies upon the Authority's decision in West Point Elementary School Teachers Association, NEA and the United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531 (1987), rev'd sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2d Cir. 1988) (West Point). In response to the Union's statement that the proposal is intended to assure Agency compliance with the Federal Personnel Manual (FPM), the Agency argues that the FPM does not prohibit personal service contracts. The Agency further argues that it has no duty to bargain on the proposal inasmuch as there is no indication that the proposal "vitally affects the working conditions of bargaining unit employees" because "individuals hired under personal service contracts would not be part of the bargaining unit." Statement of Position at 15.

The Union asserts that the FPM precludes the use of personal service contracts that establish an employer-employee relationship between Government and contractor personnel. According to the Union, Proposal 5 only requires that the use of personal service contracts be restricted to that extent, as required by applicable laws and regulations.

B. Analysis and Conclusion

Based on the wording of the proposal, the parties' arguments and the Union's statement as to the proposal's intended meaning, we find that Proposal 5 prohibits the use of personal service contracts only insofar as they establish an "[e]mployer-employee relationship, as defined by appropriate laws and regulations."

In West Point, the court found, contrary to the Authority, that the agency's use of personal service contracts was unlawful. We are not persuaded by the Agency's argument that the court, in reversing the Authority's decision in West Point, did not overturn the Authority's ruling that the disputed proposal violated the agency's right to hire. Even assuming that the Agency's interpretation of West Point is correct, a subsequent decision issued during the pendency of this case by the U.S. Court of Appeals for the District of Columbia, Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989) (Fort Bragg), is on point. In Fort Bragg, the court held that a proposal prohibiting the agency from using personal service contracts to employ school personnel did not directly interfere with the agency's right to hire. The court indicated that the proposal to bar the use of such contracts did not address "the substance of the Army's right to hire; instead it concern[ed] the manner in which the Army records and confirms the terms and conditions of employment." Id. at 701. Therefore, the court concluded that the proposal was a negotiable procedure under section 7106(b)(2) of the Statute by which the agency exercises its hiring authority.

We find the court's rationale in Fort Bragg to be compelling and we adopt it. As a proposal that actually prohibits the use of personal service contracts does not directly interfere with management's right to hire, we find it evident that Proposal 5, which only would bar the use of personal service contracts in particular circumstances, as defined by "appropriate laws and regulations," does not directly interfere with that management right.

We also reject the Agency's argument that Proposal 5 does not affect the working conditions of bargaining unit employees in a manner that gives rise to a duty to bargain. The Agency's argument is based solely on its unsupported and unexplained conclusion that individuals hired under personal service contracts would not be part of the bargaining unit. We note, however, that in other cases that have been decided by the Authority, incumbents of bargaining unit positions have been required to enter into personal service contracts. For example Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203 (1987), petition for review filed sub nom. Board of Education of the Fort Knox Dependents Schools v. FLRA, No. 87-3702 (6th Cir. July 24, 1987) (agency failed to establish that teachers, who were required to enter into personal service contracts, were not Government employees). Furthermore, as previously discussed, proposals regarding the use of such contracts may affect the procedure by which an agency records the terms of appointment and employment of bargaining unit employees. Fort Bragg, 870 F.2d at 701. And, insofar as substantive terms in a personal service contract are inconsistent with a collective bargaining agreement, the Union would be faced with the need to negotiate provisions negating those terms. Id. at 702. For these reasons, we find that Proposal 5 involves a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute.

Based on the foregoing, we find that Proposal 5 is within the duty to bargain.

VI. Order

The petition for review regarding Proposal 1 and the second portion of Proposal 4 is dismissed. The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 2, 5 and the first portion of Proposal 4.(2)