20:0848(105)NG - Local Lodge 830, IAM and Naval Ordnance Station, Louisville, KY -- 1985 FLRAdec NG
[ v20 p848 ]
20:0848(105)NG
The decision of the Authority follows:
20 FLRA No. 105
LOCAL LODGE 830, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Union
and
U.S. NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
Agency
Case No. 0-NG-1136
DECISION AND ORDER ON NEGOTIABILITY ISSUE
The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute),
and presents an issue concerning the negotiability of two portions of a
multi-part Union proposal which is set forth in its entirety in an
appendix to this decision. Upon careful consideration of the entire
record, including the parties' contentions, /1/ the Authority makes the
following determinations.
Since the Agency provides distinct arguments concerning each portion
of the proposal in dispute, the Authority will treat such disputed
portions separately in this decision. The first disputed portion of the
proposal, namely, the first sentence of section 9(a) provides as
follows:
First Sentence of Section 9(a)
Immediately following the effective date of this Agreement and
continuing throughout the life of this Agreement, all bargaining
unit employees will be assigned to one regular first-line
supervisor which will constitute his/her group.
In agreement with the Agency, the Authority concludes that the first
sentence of section 9(a), violates the Agency's right to determine its
"organization" pursuant to section 7106(a)(1) of the Statute. That is,
by requiring the Agency to assign each bargaining unit employee to one
regular first-line supervisor, the first sentence of section 9(a)
effectively requires the Agency to adopt a certain organizational
structure. In this regard, the first sentence of section 9(a) is to the
same effect as Union Proposal V found to be nonnegotiable in National
Association of Government Inspectors and Quality Assurance Personnel,
Unit #2 and Naval Air Engineering Center, Lakehurst, New Jersey, 8 FLRA
144 (1982). In that case, the Authority, citing Congressional Research
Employees Association and the Library of Congress, 3 FLRA 737 (1980),
concluded that proposal V, which required that employees be assigned to
only one immediate supervisor, interfered with the Agency's right to
determine its organization pursuant to section 7106(a)(1) of the
Statute. Therefore, based on Naval Air Engineering Center and the
reason and case cited therein, the Authority concludes that as the first
sentence of section 9(a) concerns the Agency's organization it is
outside the duty to bargain.
We turn now to the aspect of the dispute herein concerning the last
two sentences of section 9(a), and section 9(b)(1), which provide as
follows:
Second & Third Sentences of Section 9(a)
When it becomes necessary to assign an employee from one group
to another group, volunteers will be sought using service
computation date (seniority) with the most senior given the
opportunity to volunteer first. In the absence of volunteers the
assignment will be made using the inverse order of seniority,
(SCD), subject to paragraph c. below.
Section 9(b)(1)
Qualified volunteers will be given first preference for the
transfer. If there are more than one qualified volunteer(s) than
required those qualified volunteers having the highest seniority,
by service computation date, will be given first preference.
Where there are less qualified volunteers than required assignment
will be made by assigning those having least seniority, by service
computation date, from among the qualified non-volunteers.
These portions of the proposal require that before the Agency assigns
employees from one group to another or from one Cost Center to another,
the Agency will first solicit volunteers from among qualified employees.
If more qualified employees volunteer than are necessary, the Agency
would be required to select the volunteer, or volunteers, with the most
seniority, using the Service Computation Date. If the number of
volunteers was insufficient, the Agency would be obligated to assign
qualified employees based on inverse seniority. The Authority concludes
that these portions of the proposal are to the same effect as Provision
1 found to be a negotiable procedure in Laborers International Union of
North America, AFL-CIO, Local 1276 and Veterans Administration, National
Cemetery Office, San Francisco, California, 9 FLRA 703 (1982). In that
case, the Authority reviewed a provision which, inter alia, required
management when filling details to select the employee with the earliest
service computation date when two or more employees were "equally well
qualified and capable of performing the detail work." In finding that
portion of Provision 1 to be a "procedure" to be observed by management
in exercising its statutory authority within the meaning of section
7106(b)(2) of the Statute, the Authority stated:
Where, . . . in management's judgment, two or more employees are
equally qualified and capable of performing the work, the
selection of any one of those employees to perform the work would
be consistent with management's exercise of its discretion. Under
such circumstances, the procedure by which employees previously
judged by management to be equally qualified will be selected to
perform the work is negotiable. . . /2/
In like manner, the last two sentences of section 9(a), and section
9(b)(1), do not seek to prescribe the qualifications and skills
necessary to perform a particular work assignment. Rather, they merely
set forth a procedure the Agency will use when selecting among employees
previously determined by management to be qualified to perform the work
required by a reassignment. In fact, section 9(c), which is referenced
in the last sentence of section 9(a), specifically states that
volunteers "must have the ability to perform the work assignment in a
reasonable manner consistent with the character of work" and that
exceptions to the requirement that volunteers be sought shall be made
when the character of work requires specific employees with special
skills. Thus, based on National Cemetery Office, and the reasons and
cases cited therein, the last two sentences of section 9(a), and section
9(b)(1), do not interfere with management's rights pursuant to section
7106(a)(2)(A) and (B) of the Statute to assign employees and work, but
instead constitute a negotiable procedure within the meaning of section
7106(b)(2). /3/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to the first sentence in section 9(a) of the Union's proposal
be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency
shall upon request, or as otherwise agreed to by the parties, bargain on
the last two sentences of section 9(a), and section 9(b)(1). /4/
Issued, Washington, D.C., December 13, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union did not file a Reply Brief in this case.
/2/ National Cemetery Office, 9 FLRA at 706.
/3/ Although the Agency did not allege that sections 9(b)(2) and 9(c)
were nonnegotiable, the Agency argued that they were moot based on its
determination that the last two sentences of 9(a), and section 9(b)(1),
were nonnegotiable. However, in the absence of a specific determination
of nonnegotiability concerning sections 9(b)(2) and 9(c), and in view of
the Authority's decision herein that the last tow sentences of sections
9(a), and section 9(b)(1), are within the duty to bargain, it is
unnecessary to consider sections 9(b)(2) and 9(c) further herein.
/4/ In finding these portions of the Union proposal within the duty
to bargain, the Authority makes no judgment as to their merits.
APPENDIX
Union Proposal
a. Immediately following the effective date of the Agreement
and continuing throughout the life of the Agreement, all
bargaining unit employees will be assigned to one regular
first-line supervisor which will constitute his/her group. When
it becomes necessary to assign an employee from one group to
another group, volunteers will be sought using service computation
date (seniority) with the most senior given the opportunity to
volunteer first. In the absence of volunteers the assignment will
be made using the inverse order of seniority, (SCD), subject to
paragraph c. below.
b. It is agreed and understood that assignment of work is a
function vested in the Employer. In this regard the parties agree
to establish a system of transfer of employees from one Cost
Center to another which will assure the efficiency of operation
and maintain morale among the employees. To the extent possible
the following system will be utilized:
(1) Qualified volunteers will be given first preference for the
transfer. If there are more than one qualified volunteer(s) than
required those qualified volunteers having the highest seniority,
by service computation date, will be given first preference.
Where there are less qualified volunteers than required assignment
will be made by assigning those having least seniority, by service
computation date, from among the qualified non-volunteers.
(2) The conditions of paragraph (1) above shall not apply when:
(a) The transfer is for less than three work days. (b) The
conditions requiring the transfer dictate an action of transfer
which will not permit the time required by paragraph (1), above.
(c) An otherwise eligible volunteer was not at work on the day the
transfer was announced.
(3) An employee shall not be transferred from one Cost Center
to another solely to avoid or create the payment of overtime or
other premium pay.
(4) No employee shall be transferred from one Cost Center to
another as a substitute for discipline or reprisal action.
c. It is agreed and understood that the employee volunteering
and/or assigned must have the ability to perform the work
assignment in a reasonable manner consistent with the character of
work. Exceptions to this section shall be made only when the
character of the work dictates the assignment of specific
employees having special skills not possessed by any other
employee in the group, Cost Center or job rating. These
exceptions will be discussed with the Shop Steward in advance of
the decision being made when possible or at the earliest possible
time. (Only the underlined portions are in dispute.)