20:0848(105)NG - Local Lodge 830, IAM and Naval Ordnance Station, Louisville, KY -- 1985 FLRAdec NG

[ v20 p848 ]
The decision of the Authority follows:

 20 FLRA No. 105
                                            Case No. 0-NG-1136
    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
                      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
                 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