42:0845(57)NG - - Tidewater Virginia Federal Employee Metal Trades Council and Navy, Norfolk Naval Shipyard, Portsmouth, Virginia - - 1991 FLRAdec NG - - v42 p845



[ v42 p845 ]
42:0845(57)NG
The decision of the Authority follows:


42 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

TIDEWATER VIRGINIA FEDERAL EMPLOYEES

METAL TRADES COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

0-NG-1821

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 10, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two proposals.

Proposal 1 states that apprentices will be placed in the appropriate journeyworker position following satisfactory completion of their apprenticeship. We conclude that Proposal 1 is nonnegotiable because it directly interferes with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

Proposal 2 provides that the Agency will attempt to place employees subject to forced annual leave into other areas of need within the shipyard. We find that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

II. Background and Preliminary Matter

On October 12, 1989, the parties entered into a Memorandum of Agreement (MOA), in which they agreed to extend their existing collective bargaining agreement for a three-year term. The MOA also provided, as relevant here, that: (1) the extension of the agreement would be subject to review under section 7114(c) of the Statute; (2) all provisions disapproved following the section 7114(c) review would be subject to negotiations between the parties; (3) any subsequently agreed-upon provisions would be subject to section 7114(c) review; and (4) all provisions not resolved through negotiations would be subject to a negotiability appeal or proceedings before the Federal Service Impasses Panel.

On November 13, 1989, the Agency head advised local management that certain provisions of the agreement, including the two provisions here in dispute, had to be revised or deleted.(1) On November 17, 1989, the parties executed the extension of their existing agreement. On December 15, 1989, the Agency head disapproved several provisions of the agreement, including the two in dispute. Subsequently, on January 23, 1990, the Union submitted two revised proposals that were declared nonnegotiable by the Agency by letter dated April 10, 1990. In its letter, the Agency referenced the fact that as of February 20, 1990, the parties had reached agreement on all items that had been disapproved by the Agency head on December 15, 1989, except for the two disputed provisions. The Agency also responded to the Union's revised proposals by declaring them nonnegotiable. Subsequently, on April 21, 1990, the Union filed the instant petition for review.

The Agency contends that the Union's petition for review should be dismissed because it was not timely filed. The Agency argues that the petition for review concerns proposals that are not substantively changed from the provisions that had been disapproved by the Agency head on December 15, 1989. Accordingly, the Agency argues that to be timely filed, the petition had to be filed within the 15-day time limit prescribed in section 2424.3 of the Authority's Rules and Regulations, commencing from the December 15, 1989, disapproval. The Agency contends that as the petition for review was dated April 21, 1990, it was filed untimely. In support of its position, the Agency cites National Federation of Federal Employees, Local 1505 and Department of the Interior, National Park Service, Roosevelt-Vanderbilt National Historical Site, Hyde Park, New York, 7 FLRA 608 (1982) (National Park Service), and other Authority decisions which hold that an agency head's disapproval of a provision in a locally negotiated agreement pursuant to a review under section 7114(c) of the Statute is an allegation of nonnegotiability for purposes of appeal to the Authority. Additionally, the Agency cites American Federation of Government Employees, AFL-CIO, Local 1786 and U.S. Marine Corps, Marine Corps Development and Education Command Quantico, Virginia, 26 FLRA 184 (1987), and other decisions which hold that when a petition is filed concerning an agency's allegation of nonnegotiability which is only a restatement of a prior allegation, and no changes in the substance or language of the proposal have been effectuated during the period between allegations, the petition seeks review of the earlier allegation and must be dismissed if not otherwise timely and properly filed.

In its petition for review, the Union states that pursuant to the provision of the MOA authorizing negotiations of disapproved provisions, the parties resolved all issues except for the two disputed provisions. The Union adds that the Agency served its disapproval of the Union's revised proposals on April 10, 1990 and, further, that the disputed proposals are before the Authority in accordance with the provision in the MOA authorizing the use of a negotiability appeal for any unresolved matters.

We find that the petition was timely filed and, therefore, that it is properly before us. Under the Authority's Rules and Regulations, a petition for review of negotiability issues must be filed with the Authority within 15 days after service on a union of an agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The record here indicates that the Union was served with the Agency's allegation of nonnegotiability on April 10, 1990. The Union's petition for review had to be filed with the national office of the Authority by April 30, 1990 in order to be considered timely filed. The petition was in fact filed with the Authority on April 24, 1990. Consequently, the petition was timely filed. In so finding, we reject the Agency's claim that the Union was required to file the petition within 15 days of the Agency head's December 15, 1989 disapproval.

We note, as did the Agency, the well established principle that an agency head's disapproval of provisions in a locally executed agreement constitutes an allegation of nonnegotiability for purposes of appeal to the Authority. See, for example, National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 973 (1991); reconsideration denied, 39 FLRA 1537 (1991) (Naval Air Engineering Center) and National Park Service, 7 FLRA 608. Furthermore, it is also well established that where a petition for review concerns a dispute as to a proposal that is not substantively changed from a provision that previously had been disapproved by an agency head under section 7114(c), the effect of the petition is to seek review of the previous disapproval. Naval Air Engineering Center.

In the instant case, however, the parties agreed that they would first submit their extended agreement to the Agency head for review, then renegotiate any provisions disapproved by the Agency head. Additionally, the parties agreed that any outstanding negotiability disputes would be resolved through the negotiability appeals process. Thus, the parties agreed that the Agency head's disapproval of various agreement provisions would lead to renegotiation of the disapproved provisions, rather than the filing of a petition for review. Thus, while it is apparent from a review of the record that the Union's revised proposals are similar to the provisions that were disapproved by the Agency head, we find that the Agency's December 15, 1989, disapproval did not constitute an allegation of nonnegotiability for purposes of starting the time limit in which an appeal could be filed with the Authority because the parties agreed to renegotiate any disapproved provisions and resort to the negotiability appeals process to resolve outstanding disputes. We find that the revised proposals, which are somewhat different from the disapproved provisions, arose out of the renegotiation process that, as noted, resulted in agreement on other previously disapproved provisions. It was the failure to reach agreement on the two revised proposals that led to the Agency's April 10, 1990, declaration of nonnegotiability, which constituted the allegation for purposes of allowing the Union to file its petition for review. Accordingly, the petition was timely filed and is properly before us for a determination on the merits.

III. Proposal 1

Upon satisfactory completion of scheduled academic and shop training, apprentices shall be issued a certificate indicating successful completion of their apprenticeship. In addition thereto, apprentices will be placed in the appropriate journeyworker position following graduation from their apprenticeship. [Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency did not address the merits of this proposal in its statement of position. In its declaration of nonnegotiability, however, the Agency asserted that the proposal interferes with management's rights to assign work under section 7106(a)(2)(B) of the Statute and to select or promote under section 7106(a)(2)(C) of the Statute. The Agency contends that the proposal "mandate[s] the selection and placement of employees into certain positions without regard to overriding conditions such as budget and workload limitations." Petition for Review, Attachment C.

2. Union

The Union asserts that the apprentice program is designed to develop highly skilled journeyworkers and that upon successful completion of the apprenticeship, employees are promoted in accordance with a Department of the Navy regulation. The Union also argues that the placement of apprentices into journeyworker positions meets the definition of "'career ladder promotion'" as defined in Federal Personnel Manual (FPM), chapter 335, subchapter 1-5.c(1)(a). The Union contends that the proposal concerns a ministerial act, implementing the Agency's decision to select employees for an appointment to the apprentice program with the intent of preparing the employee for noncompetitive promotion to the journeyworker level. The Union cites National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797 (1987), and other decisions in which the Authority found that a career ladder promotion is merely a ministerial act implementing an earlier decision by an agency to place employees in career ladder positions with the intention of preparing the employees for successful noncompetitive promotions when the requisite conditions have been met.

B. Analysis and Conclusions

For the following reasons, we find that the proposal is nonnegotiable.

The Union states that the proposal pertains to a career ladder promotion as defined in the FPM. We disagree. Previously, we have noted that the term "career ladder" has a specialized meaning within the Federal sector. National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991), petition for review filed sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25, 1991). In that case, we stated that a career ladder involves periodic promotions to a target grade level in a particular occupation, when an employee meets established time-in-grade and performance level requirements. More specifically, we stated that FPM chapter 335, subchapter 1-5.c(1)(a), which constitutes a Government-wide regulation and on which the Union now relies, defines career ladder advancement "as a promotion 'without current competition when at an earlier stage an employee was selected from a civil service register or under competitive promotion procedures for an assignment intended to prepare the employee for the position being filled (the intent must be made a matter of record and career ladders must be documented in the promotion plan)[.]'" Id. at 63.

There is no evidence in the record before us that the apprentice program constitutes a career ladder. In negotiability matters, it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982); American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 383 (1991), petition for review filed as to other matters sub nom. U.S. Department of the Army, 101st Airborne Division, Fort Campbell, Kentucky v. FLRA, No. 91-1298 (D.C. Cir. June 24, 1991). The Union states that the apprentice program is designed to develop journeyworkers and cites a Department of the Navy regulation concerning the apprentice program. A review of that regulation, however, fails to establish that the apprentice program constitutes a career ladder in accordance with FPM chapter 335. Instead, the regulation states, in pertinent part, that "[a]pprentices are eligible to advance through promotion to the next wage rate of the special pay plan upon successful completion of the training requirements of each 26-week period of training. . . ." Petition for Review, Attachment 2. The regulation further states that "[a]ctivities are responsible for placement of apprentices in journeyworker positions following graduation from their apprenticeship." Id. We do not view such statements as demonstrating that the apprentice program was designed as a career ladder in accordance with the requirements of FPM chapter 335, subchapter 1-5.c(1)(a), and the Union has not established otherwise. Consequently, we reject the Union's contention that the proposal involves a ministerial act implementing the Agency's intention to prepare employees for noncompetitive promotion, and we find inapposite the Authority's decisions to that effect.

To the extent that the proposal does not involve career ladder promotions, the proposal directly interferes with management's right to assign work by requiring the Agency to place employees in journeyworker positions, thereby assigning employees the duties of journeyworkers. Additionally, though not specifically alleged, the proposal also interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Authority consistently has held that proposals which require an agency to assign an employee to a position or to assign work to an employee directly interfere with management's rights to assign employees and assign work. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 37-38 (1990). In finding that Proposal 1 directly interferes with management's rights to assign employees and assign work, we need not address the Agency's additional contentions.

IV. Proposal 2

Before requiring forced leave in a shop, the Employer will discuss with the Council the reasons for the distribution of forced leave. Attempts will be made by the Employer to place the employees in other areas of need within the Shipyard. Other naval shipyards will be called to determine whether they have need for the services of employees faced with such leave and are able to take them on a loan in order to reduce the impact on the employees' accumulated leave. [Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 2 is nonnegotiable because it interferes with management's rights to assign and lay off employees under section 7106(a)(2)(A) of the Statute and with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency states that under the proposal it would be required to retain on duty employees who have no annual leave, without regard to periods of temporary shutdown or curtailment of operations, and regardless of the need for the employees' services. The Agency adds that, in such circumstances, it could be forced to forego its decision to cease operations temporarily or to retain excess employees on duty. In support of its position, the Agency cites Federal Employees Metal Trades Council of Charleston, AFL-CIO and Charleston Naval Shipyard, Charleston, South Carolina, 33 FLRA 618 (1988) (Charleston Naval Shipyard).

The Agency further contends that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with management's rights to assign work and lay off employees. The Agency adds that the Authority has found that proposals requiring an agency "to attempt" to take actions involving the exercise of management's rights excessively interfere with those rights, and urges the Authority to find the same here. For this proposition, the Agency cites American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele Utah, 23 FLRA 193 (1986) (Proposal 1) (Tooele Army Depot).

2. Union

The Union argues that the Agency has misconstrued the proposal. The Union states that the proposal is intended to apply to employees who would be adversely affected by management's exercise of its right to require employees to take annual leave when their services are not needed for short periods of time. Therefore, the Union contends that Proposal 2 is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union further states that the Agency is free to determine the areas in which there is a shortage of personnel to perform work and, further, that nothing in the proposal prevents the Agency from determining whether the affected employees are qualified to perform the available work. Finally, the Union notes that the language of the proposal has been in the parties' collective bargaining agreement for approximately thirteen years and it has not caused any hardship or undue burden on the Agency.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 2 directly interferes with management's rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). However, we further find that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In reaching these results, we find it unnecessary to determine whether the proposal also directly interferes with management's right to lay off employees. Even if it does, we would find the proposal to be a negotiable appropriate arrangement on the same basis as set forth below.

The disputed portion of Proposal 2 would require the Agency to attempt to place employees subject to forced leave into other areas of need within the shipyard. As such, the proposal is comparable to the provision at issue in Charleston Naval Shipyard, 33 FLRA at 618-19, which required management to "attempt to provide available work first to employees not having annual leave to their credit[,]" during periods of shutdown or reduced operations. The Authority found that the provision interfered with management's rights to assign and lay off employees and to assign work. The Authority found that the provision would apply regardless of management's decision concerning whether work should be performed during those periods and regardless of the need for the employees' services, thereby requiring management to forego its decision to temporarily cease operations. In reaching its decision, the Authority relied on its earlier decision in Tooele Army Depot, in which a proposal requiring the agency to make every conceivable attempt to assign employees to available work if they declined to take annual leave or leave without pay during partial closings of the activity during certain holiday periods was found to interfere with management's rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute. 23 FLRA at 195.

We reach the same conclusions here concerning management's rights to assign employees and assign work. Although the proposal does not specifically refer to a curtailment of operations or closing of the employer's facility, the effect of the proposal, as explained by the Agency, is to require it to maintain employees on duty without regard to periods of temporary shutdown or curtailment of operations. While the Union contests the Agency's interpretation of the proposal, the Union acknowledges that the proposal would operate when employees' services are not needed for short periods of time, which we view as applying to periods of temporary shutdown or curtailment. During these periods, the proposal would require the Agency to retain on duty employees who might be surplus under the Agency's plan of reduced operations and to assign duties to those employees. Consequently, and for the reasons more fully set forth in Charleston Naval Shipyard, we find that the proposal interferes with the Agency's rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). See also Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 401 (1990) (proposal requiring agency to assign available work to employees choosing to work during period of temporary curtailment of operations directly interfered with the agency's right to assign work).

However, we further find that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is first necessary to determine whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If the proposal is intended as an arrangement, the Authority next examines whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

The Union asserts that Proposal 2 is intended to mitigate the adverse effects of requiring employees to take annual leave when their services are not needed. As such, we conclude that the proposal is intended as an arrangement for employees adversely affected by the exercise of management's rights to assign employees and assign work.

We further conclude, on balance, that the proposal would not excessively interfere with the exercise of those rights because the burden imposed on the Agency's exercise of its rights is outweighed by the significant benefits that would inure to employees. The disputed portion of the proposal simply requires that attempts will be made to place employees. Although we have found that proposals requiring an agency to take every reasonable effort or to attempt certain actions involving management rights directly interfere with the exercise of those rights, such decisions do not preclude a finding that the proposals may constitute negotiable appropriate arrangements. In Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153 (1991), for example, we found that although proposals requiring the agency to make every reasonable effort to provide preparation time during the workday for various activities interfered with the right to assign work, they constituted negotiable appropriate arrangements because the requirements were not unconditional and permitted exceptions to the right to assign work. Here, as noted, the proposal simply requires the Agency to attempt to place employees and does not impose an absolute requirement on the Agency to do so. For this reason, our finding that the proposal constitutes a negotiable appropriate arrangement differs from the Authority's determination in Tooele Army Depot, in which the proposal was found to excessively interfere with management's rights because it would have totally eliminated the agency's discretion to exercise its reserved rights.

Additionally, in finding that Proposal 2 does not excessively interfere with management's rights, we note that the last sentence of the proposal, which would require the Agency to contact other shipyards for placement purposes, was not declared nonnegotiable and the Agency did not contradict the Union's assertion that the proposal, which has been in effect for some time, has not caused any hardship or undue burden.

In contrast to the minimal burden imposed on the Agency's exercise of its rights, we find that the proposal affords significant benefits to the employees. Employees who are not required to use leave when their services are not needed would be able to preserve their leave and to use such leave, within applicable legal and regulatory requirements, when the leave was most appropriate and beneficial to the employees. Additionally, under the pro