36:0401(48)NG - - FEMTC of Charleston and Navy, Charleston Naval Shipyard, Charleston, SC - - 1990 FLRAdec NG - - v36 p401



[ v36 p401 ]
36:0401(48)NG
The decision of the Authority follows:


36 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL EMPLOYEES METAL TRADES COUNCIL

OF CHARLESTON

(Union)

and

U.S. DEPARTMENT OF THE NAVY

CHARLESTON NAVAL SHIPYARD

CHARLESTON, SOUTH CAROLINA

(Agency)

0-NG-1575

DECISION AND ORDER ON NEGOTIABILITY ISSUE

July 24, 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) concerning the negotiability of one proposal. The proposal would require the Agency to grant employees administrative leave when it temporarily curtails its operations between the Christmas and New Year's Day holidays, unless the Agency is precluded from doing so by budgetary limitations. If the Agency is precluded from granting administrative leave for budgetary reasons, the proposal requires the Agency to take other specified actions. For the following reasons, we find that the proposal is nonnegotiable.

II. Proposal

Time spent by Unit employees on "forced leave" during Christmas Curtailment will be paid without charge to leave. (i.e. Administrative leave) Should the budget be so demanding as to positively preclude this determination, Management will reduce the amount of administrative leave granted by increments of 4.0 hours, until the granting of such leave is compatible with budget demands. In the event that this action reduces the amount of administrative leave to 0.0 hours, the affected employees will be allowed one of the following actions, by their choice:

1. To work, if work is available.

2. To be placed on leave without pay, regardless of annual leave balance.

3. To be placed on annual leave.

4. To be placed on sick leave, if appropriate.

5. To be advanced annual leave, in accordance with applicable regulation.

6. To borrow annual leave from fellow employee[s], in accordance with applicable regulation.

7. Any combination of the above.

When considering budget, it will be necessary for Management to provide Union auditors with such information they deem necessary, to assess the effect of budget demands. Should the Union disagree with the determination of Management, the parties shall seek the assistance of an arbitrator to resolve the issue.

As it is understood that this is a permanent instruction, the parties agree to meet no later than 90 days prior to the commencement of future Christmas Curtailments, to ascertain Management's position on the budget, at that time.

III. Positions of the Parties

A. The Agency

The Agency contends that the proposal does not concern conditions of employment under section 7103(a)(14) of the Statute because it concerns a matter that is specifically provided for by law. According to the Agency, the proposal would establish an employee entitlement to administrative leave during periods of Christmas holiday curtailment and, in effect, create a new type of leave--"curtailment leave." Agency's Statement of Position at 9-10. The Agency asserts that, because paid leave entitlements are specifically provided for by title 5 of the U.S. Code for the unit employees in this case, the additional leave entitlement proposed by the Union is nonnegotiable.

The Agency asserts that the proposal would interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute by "requir[ing] the assignment of work upon the employee's request if the work were available, without regard to whether management wanted the work done or wanted it done at that time." Agency's Statement of Position at 33. Further, the Agency contends that the proposal would subject the Agency's determination that budgetary constraints prevented it from placing employees on administrative leave to arbitral review, and thereby impermissibly allow the substitution of an arbitrator's judgment for that of management concerning a management right. The Agency also claims that the proposal conflicts with (1) provisions of the Federal Personnel Manual (FPM), a Government-wide regulation; and (2) a Department of Defense Civilian Personnel Regulation, an Agency regulation for which there is a compelling need.

The Agency further asserts that the proposal is to the same effect as the proposal found to be nonnegotiable by the court in Department of the Navy, Naval Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir. 1988). The court found that the proposal in that case, which also involved the granting of administrative leave during a "Christmas curtailment," conflicted with management's right to lay off employees under section 7106(a)(2)(A) of the Statute. According to the Agency, the proposal in this case also conflicts with management's right to lay off employees because it "would restrict the Agency to employing only one type of layoff [during the Christmas curtailment] except in the extreme circumstances where it does not have funds to act otherwise[.]" Agency's Statement of Position at 31-32. The Agency contends that the right to lay off employees "reserves to the Agency the right to choose any legal form of layoff, as the Agency determines is appropriate under the particular circumstances." Id. at 31.

B. The Union

The Union disputes the Agency's claim that the proposal creates a new type of leave. The Union states that it "does not intend to bargain for pay or other related fringe benefits, nor does it intend to create a new type of leave." Union's Response at 3. The Union asserts that it is requesting "administrative leave" and not "some new leave, euphemized as 'curtailment leave'." Id. at 4. The Union contends that the proposal does not prevent management from exercising its right to lay off employees. The Union maintains that the proposal merely requires management to "satisfy some lawful prerequisites prior to taking this type of action." Id. at 5. It also claims that its proposal would not interfere with management's right to assign work because "employees should be qualified to do the work they are performing." Id. at 6.

Finally, the Union asserts that the proposal: (1) does not conflict with a Government-wide regulation or an Agency regulation for which there is a compelling need; and (2) would not permit an arbitrator to substitute his or her judgment for that of management concerning the exercise of a management right.

IV. Analysis and Conclusions

The proposal would require the Agency, subject to budgetary limitations, to grant employees administrative (paid) leave during the "Christmas curtailment." The proposal also sets forth actions the Agency would be required to take if budgetary limitations prevent the Agency from granting employees administrative leave. We conclude that the proposal directly interferes with management's right to assign work and, therefore, we will dismiss the Union's petition for review.

A. The Proposal Concerns a Condition of Employment Within the Meaning of Section 7103(a)(14) of the Statute

We disagree with the Agency's contentions that the proposal creates a new type of leave and does not concern a condition of employment under section 7103(a)(14) of the Statute. In our view, the Agency has misinterpreted the proposal. The Union states that it is not seeking to bargain for pay or related fringe benefits but, instead, is seeking "administrative leave." Union's Response at 3-4. The Union's statement is consistent with the plain wording of the proposal, which identifies the leave sought by the Union as administrative leave. We find, therefore, that the proposal concerns administrative leave rather than "curtailment leave."

The Agency contends that the proposal does not concern a condition of employment because paid leave entitlements are specifically provided for by title 5 of the U.S. Code. However, the Agency has not identified any statute that specifically provides for the circumstances under which administrative leave shall be granted. Accordingly, we find that the granting of administrative leave is not a matter which is specifically provided for by statute. Further, the granting of administrative leave concerns personnel policies, practices, and matters affecting working conditions. See, for example, National Labor Relations Board, Region 5 and National Labor Relations Board Union, Local 5, 2 FLRA 328 (1979). Therefore, the proposal concerns a condition of employment.

B. The Proposal Directly Interferes With Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

The proposal provides, among other things, that, in those circumstances where the Agency is prevented by budgetary limitations from granting employees administrative leave during periods of Christmas curtailment, employees will be allowed to work, at their option, if work is available. We interpret the proposal as requiring the Agency, in circumstances where budgetary limitations preclude the granting of administrative leave and where there is work available to be done, to assign that work to those employees who request to do the work. In short, the proposal conditions the assignment of work on the employee's decision to work.

A proposal that conditions the exercise of a management right on employee choice directly interferes with the exercise of that right. See International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 272-73 (1988) (Panama Canal Commission); West Point Elementary School Teachers Association, NEA and The United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1535 (1987) (USMA), affirmed and reversed in part as to other matters sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (1st Cir. 1988); American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 876-77 (1986) (FDIC). Because the disputed proposal in this case would, in specific circumstances, require management to assign available work to an employee who chooses to work during the "Christmas curtailment" period, we find, consistent with Panama Canal Commission, USMA, and FDIC, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union's contention that the proposal would not violate managment's right to assign work because it would not require the assignment of employees who are unqualified to perform the work is inapposite. Even assuming that the proposal required management to assign work only to those employees who are qualified to perform the work that is available, the proposal directly interferes with management's right to assign work because it would ma