DEPARTMENT OF THE NAVY NORFOLK AVIATION DEPOT NORFOLK, VIRGINIA and COUNCIL 257, UNIT 3, NATIONAL ASSOCIATION OF GOVERNMENT INSPECTORS AND QUALITY ASSURANCE PERSONNEL







United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL



________________________________________

)

In the Matter of )

)

DEPARTMENT OF THE NAVY )

NORFOLK AVIATION DEPOT )

NORFOLK, VIRGINIA )

)

and ) Case No. 92 FSIP 116



)

COUNCIL 257, UNIT 3, NATIONAL )

ASSOCIATION OF GOVERNMENT )

INSPECTORS AND QUALITY ASSURANCE )

PERSONNEL )

________________________________________)





DECISION AND ORDER



Council 257, Unit 3, National A~association of Government

inspectors and Quality Assurance Personnel (Union) filed a request

for assistance with the Federal Service Impasses Panel (Panel) to

consider a negotiation impasse under the Federal Service Labor-

Management Relations Statute (Statute), 5 U.S.C. S 7119, between it

and the Department of the Navy, Norfolk Aviation Depot, Norfolk,

Virginia (Employer).



After investigation of the request for assistance, the Panel

determined that the dispute, which arose during bargaining over the

impact and implementation of a reorganization at the Depot effective October 1, 1991, should be resolved through written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the dispute. Submissions

were made pursuant to these procedures, and the Panel has now considered the entire record.



BACKGROUND



The Employer's primary mission is to maintain aircraft,

engines, and their components and accessories, and to provide

engineering, technical, and professional services in support of

rework of specific aircraft and aircraft components. The Union

represents approximately 100 quality assurance specialist who

ensure that the Depot's services conform with the Navy's established requirements. The parties' collective-bargaining agreement expires in February 1993.



As a result of the reorganization a separate Quality Assurance

Department was abolished. Bargaining-unit employees now are directly assigned to one of six or seven departments responsible

for providing services at the Depot.



ISSUE AT IMPASSE



The parties are at impasse over the type of procedure to be

implemented for the assignment of details to bargaining-unit

employees.



1. The Union's Position



The Union proposes that the following wording be added as

Article XV, Section 5, of the parties' negotiated agreement:



The Union and Employer agree that the right to assign

employees is reserved to management and encompasses

management's discretion to establish the qualifications

necessary to perform the duties generally assigned to the

position and to determine whether an employee meets those

qualifications. Therefore, when management determines

that only one employee possesses the requisite qualifications to do the work required of the position,

management reserves the right to assign the work to that

particular employee. Where, however, in management's

judgment, two or more employees are equally qualified and

capable of performing the work, the selection of one of

the employees to perform the work is consistent with

management's exercise of discretion. In consideration of

the above, the following procedures will normally be used

in filling assignments when management elects to fill the

assignment through detail.



1. The Employer will identify the qualifications for the

position to be filled and all personnel who meet those

qualifications.



2. Normally, the selection will be the senior (using

Service computation Date) qualified volunteer.



3. If there is no qualified volunteer, normally, the

selection will be the junior (using SCD) qualified

employee.



If management chooses not to use the above normal

procedure, the Union will be provided an explanation as

to why the normal procedure will not fulfill management's

need.







The recent reorganization has caused a major change in the

area of details. Prior to the reorganization, "the Quality Assurance Department structure was such that details were not necessary. no Now, however, because interdepartment details of specialists are required to handle workload fluctuations, "procedures are necessary to ensure fair and equitable treatment of

all personnel." This was confirmed recently when two employees

were detailed by the head of one of the departments, and no selection process guaranteeing such treatment was used. Its proposed procedure does not violate management's rights, and applies to a type of detail "not covered by the contract, i.e. ,

one to an equivalent-level task.



In implementing the procedure, "the Union does not expect the

command to solicit every department for every detail. no Thus, if

a department has the qualified resources to fill the detail, "there

is no need, and the Union proposal has no requirement, to solicit

other departments for personnel." In such circumstances, however,

management would be required to use the procedure within a department if there were more than one qualified employee for the

detail. There also is no requirement under its proposal for a department head to support a detail if, for whatever reason, he or

she determines not to do so. In short, the proposal does not inhibit management from accomplishing its mission, but justifiably

prevents it from abusing or treating employees unfairly merely for

the sake of becoming "a more competitive commodity in the marketplace. no



2. The Employer's Position



In the alternative, the Employer proposes that the Panel order

the parties to abide by the wording in Article XV of their current

collective-bargaining agreement, or the following wording:



The parties agree that management has the right to Assign

work in general. Management is obligated to use its

discretion and exercise prudent judgment in effectively

matching the skills, talents, knowledge, abilities, and

personal characteristics of employees to specific job

tasks so as to maximize the effectiveness and efficiency

of Depot operations. Management may also consider

soliciting for volunteers to detail an employee to

perform a job task. However, management is not obligated

to use a volunteer. If management desires to use a

volunteer, the following procedures may be used:



1. Give first consideration to the senior volunteer

using SCD.



2. If there is no volunteer, give first consideration

to the most junior employee using SCD.







NOTE:



* This procedure may be applied within the department or

across departmental lines as the particular circumstances

dictate.



* While the parties understand that there is no regulatory

requirement that an employee be X-118 qualified to

perform on a detail, the parties also acknowledge that

there may be many instances when management might want to

take such considerations into account depending on the

nature and criticality of the detail assignment to be

performed.



* Management will provide the Union with an explanation of

its actions regarding details upon request. Such

explanation will be handled informally at the low[est]

possible level.



As a preliminarily matter, Article XV of the parties' current

collective-bargaining agreement "is the procedure for detailing

employees and applies to any detail. It contains wording permitting management to select unit employees for details "from

any appropriate source. Although the Employer agreed to negotiate

with the Union over the instant matter, its counterproposal "is

simply a reiteration, in clarified language, of the language which

the parties agreed to in the contract and under which they bilaterally agreed to function from 1990 to 1993. Requiring management to expand the terms of the contract at this point would

"have the effect of rendering the collective bargaining process

culminating in the contract useless and moot, and of placing the

parties in a position of "perpetual bargaining" where nothing in

the contract is binding. Its position is supported by recent decisions of the U.S. Court of Appeals for the District of Columbia

Circuit,;/ which it did not have access to "at the time it placed

its proposals on the table in response to the Union' s request to

bargain."



Under the Union's proposed procedure, management would be

expected to poll all of the departments for volunteers before detailing any employee, regardless of urgency or need. Given the

other more important functions that managers must perform at this

4,000-employee installation, such a procedure should not be required "absent a clear showing of a demonstrated need for such."

In this regard, on the one occasion when a manager did employ such

a procedure it "was found to be cumbersome, costly in terms of time



_____________________

l/ Department of the Navy, Marine Corps Logistics Base,

Albany, Georgia. et al. v. FLRA, 962 F.2d 48 (D.C. Cir.

1992).







money, and not efficient." Moreover, management also is concerned

that the wording of the Union's proposal would permit it to challenge decisions to deviate from the procedure even if it proves

too cumbersome, further delaying management's ability "to get the

work done.



The Union's charge that recent details of two bargaining unit

employees were effected without the benefit of a fair selection

process is inaccurate. The selections were made using the parties'

current contract provision, and illustrate the continued need for

flexibility which the Union's proposal would eliminate. The fact

that the Union failed to file grievances over management's actions

demonstrates that they were neither unfair nor unjust. Finally, the

Depot was reorganized in response to major cutbacks imposed by Congress 80 that the most efficient organization would be created,

and jobs saved. The Union's proposal is inconsistent with these

objectives.2/



CONCLUSIONS



Having examined the evidence and arguments on this issue, we

conclude that a modified version of the Union's proposal should be

adopted to resolve the parties' impasse. At the outset, we reject

the Employer's argument that settling the dispute on the basis of

the Union's proposal would, among other things, place the parties

in a position of "perpetual bargaining" where nothing in their current collective-bargaining agreement is binding. The record reveals that the bargaining obligation in this case arose because

of a major reorganization which has caused a significant change in

the area of details. In addition, it is clear that the parties'

current provision applies to details of employees into higher graded positions, and not to the equivalent-level tasks which are

the subject of the Union's proposed procedure. In these circumstances, adopting either of the Employer's alternative proposals merely because the parties have an existing contract article entitled "Detail of Employees" would deny the Union its

statutory right to negotiate over the impact and implementation of

the reorganization.



Turning to the merits of the parties' proposals, we note that

the Union's concerns regarding the use of a fair selection procedure are far from speculative, as disputes in connection with

details of bargaining-unit employees have already occurred. While

we are persuaded that the implementation of a seniority-based procedure is warranted, the Employer has a legitimate need to

______________________

2/ In this connection, the Employer submitted affidavits

from both the Executive Officer and the Deputy Director

of Operations of the Depot regarding the reasons for the

reorganization and the adverse impact the Union's

procedure for details would have on efficiency.



Ensure that it is not unduly burdensome. In our view, the parties

competing interests would best be accommodated by the adoption of

wording which, among other things: (1) applies only to details of

employees to positions within the same grade; (2) does not require

the Employer to solicit volunteers for a detail when it determines

that only one employee possesses the skills, talents, knowledge,

abilities, or personal characteristics to perform a given assignment; (3) requires the Employer to provide its reasons in

writing for selection or nonselection only upon an employee's written request; and (4) specifies that the Employer is under no

obligation to solicit other departments for personnel if the department where the detail is needed has the qualified personnel

to fill the detail.



These modifications should introduce a measure of fairness

into the selection process, while limiting the application of the

procedure in a manner consistent with the efficient functioning of

the installation. In this regard, the Employer would be required to

solicit volunteers only when it determines that two or more employees are relatively equally qualified to perform the assignment, thereby ensuring that the best qualified employee will

be elected. Moreover, eliminating the need to solicit other departments for personnel when there are qualified employees within

the department requiring the detail further circumscribes the procedure's application, and is consistent with the Union's own

expressed intentions. Finally, because their collective-bargaining

agreement expires in February 1993, the parties will have a chance

to assess the impact of the procedure, and to revise it if necessary, during upcoming negotiations over a successor.



ORDER



Pursuant to the authority vested in it by the Federal Service

Labor-Management Relations Statute, S U.S.C. S 7119, and because of

the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5

C.F.R. S 2471.6 (a) (2), the Federal Service Impasses Panel under

S 2471-11(a) of its regulations hereby orders the following:



The parties shall adopt the following wording:



Section 5. Notwithstanding the previous sections of this