[ v23 p193 ]
The decision of the Authority follows:
23 FLRA No. 25 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2185 Union and TOOELE ARMY DEPOT TOOELE, UTAH Agency Case No. 0-NG-1215 DECISON AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of 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 four Union proposals. The proposals all concern leave during partial closure of the Agency around the Thanksgiving and Christmas holidays. As submitted, the proposals are as follows: 1. Management will make every conceivable attempt to avoid forcing any employee to take annual leave or LWOP and will make every conceivable attempt to assign employees to available work for which the employee is qualified if employees do not elect to take annual leave or LWOP. 2. Pursuant to a questionnaire to be mutually agreed upon, employees will be polled as to whether they desire annual leave, LWOP or other assigned work. 3. An extremely liberal leave policy will be in effect. No employee requests for annual leave or LWOP will be denied unless an emergency exists or work demands leave no other alternatives. In any event, no requests for annual leave or LWOP will be denied where there are other employees who want to work and not take annual leave or LWOP and the employee is otherwise qualified to perform the work. 4. Prior to forcing any employee to take annual leave or LWOP, in the event that there are more employees desiring to work than there is work available, the following procedures will apply: (a) work assignments amongst employees desiring work will be given to qualified employees with the greatest seniority; and (b) before an employee will be required to take LWOP because the employee does not have sufficient annual leave, upon request the employee will be advanced annual leave if management has any reason to believe that the employee will be able to restore advanced annual leave. Subsequently, in its Statement of Position, the Agency stated it had no objection to Proposal 2 and that if the Union agreed to include FPM requirements concerning the granting of annual leave as part of Proposal 4(b) it would not object to that proposal either. In its Reply Brief the Union agreed with the Agency's position on Proposal 4(b). Thus, the issues concerning Proposals 2 and 4(b) are moot and will not be considered further in this decision. II. Union Proposal 1 A. Positions of the Parties The Agency reads the phrase that it "make every conceivable attempt to assign employees to available work" if they decline to take annual leave or leave without pay (LWOP) as requiring such assignments. It also asserts that it would be precluded from assigning available work to other employees. Therefore, it asserts that the proposal conflicts with management's reserved rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute. The Agency also argues that the requirement to assign work "for which the employee is qualified" similarly interferes with management's rights because it could result in the assignment of an overqualified employee at higher pay than necessary. The Union argues that the proposal merely deals with the impact of management's decision to partially close the Agency around the Thanksgiving and Christmas holidays. It understood that the Activity would make work available to some employees during the periods in question, and sought to avoid or lessen the impact of closure. It concedes that an agency has the right to require employees to take charged leave during such closures under current Authority case law. B. Analysis and Conclusions The Authority concludes that Union Proposal 1 is nonnegotiable. By requiring management to make "every conceivable attempt" to avoid requiring an employee to take annual leave (A/L) or leave without pay (LWOP), the proposal effectively could require management to forego its plan to partially close down if more employees wanted to work (rather than take A/L or LWOP) than were called for by the management plan. The second clause would have the same effect. It is undisputed that the Agency has the right to partially close during holiday periods. The same decision, under the same Army Civilian Personnel Regulation involved in this case, led the Authority to determine that an agency could require employees to take annual leave during such closings. National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA No. 38 (1985), petition for review filed sub nom. National Association of Government Employees, Local R14-62 v. FLRA, No. 85-2098 (10th Cir. July 23, 1985). Thus the proposal is outside the duty to bargain because it could result in depriving management of its rights to require employees to take leave, and ultimately prevent the closing of operations, contrary to 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. In addition, the "every conceivable attempt" language does not limit the proposal, because we have consistently held that proposals requiring an agency to make an effort to accomplish an objective which is outside the duty to bargain are themselves nonnegotiable. Maritime/Metal Trades Council and Panama Canal Commission, 18 FLRA No. 43 (1985) (Union Proposal 5). While intended by the Union as an arrangement for employees adversely affected by the Agency's exercise of its rights to require employees to take leave and to partially close down, we find that under the circumstances discussed above, the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Thus, where a proposed amelioration of adverse effects of an Agency's exercise of its rights could totally eliminate the Agency's discretion to exercise its rights, such proposal amounts to "excessive interference" with the exercise of management's rights, and is not an appropriate arrangement. Federal Union of Scientists and Engineers and Department of the Navy, Naval Underwater Systems Center, 22 FLRA No. 83 (1986). See also American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Employees Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983). The Agency also argues that the requirement to assign work "for which the employee is qualified" could result in the assignment of an overqualified employee at higher pay than necessary. Although we have already determined this proposal to be nonnegotiable, since the argument arises later in connection with other proposals, we note that this part of the proposal would not render nonnegotiable an otherwise negotiable provision. As long as the Agency can set the qualifications, there is nothing to preclude it from limiting its definition of "qualified" to those employees who are not overqualified or whose work would not require the Agency to pay a higher rate than normal for the job. Thus, management's discretion to select and assign employees based on job-related characteristics is not limited by the language of the proposal. See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, (Immigration and Naturalization Service), 8 FLRA 347, 383-4 (1982). III. Union Proposal 3 A. Positions of the Parties The Agency argues that the proposal would nullify management's right under section 7106(a)(2)(B) of the Statute to determine when work will be performed. Further, the Agency asserts that the last sentence of the proposal would interfere with its right under the same section of the Statute to make work assignments. The Union states that the first part of the proposal merely restates the liberal leave policy which already exists, under which management determines work demands. The second part of the proposal, embodied in the last sentence, would protect leave requests if qualified volunteers are available. B. Analysis and Conclusions The Authority concludes that under the facts presented, this proposal is negotiable. The Agency's right to determine when work will be performed is unaffected because there is no indication that the phrases "unless . . . work demand leave no other alternatives" is intended to restrict management's control over deciding and defining what are the demands of work. As long as management can determine what constitutes "work demands," it controls completely any decision as to scheduling or delaying all aspects of accomplishment of its mission, consistent with any decision to close during holiday periods. Further, to say that employees would not be required to take leave if qualified volunteers exist -- which is essentially the point of the last sentence in the proposal -- does not interfere with management's right to make work assignments, or for that matter to assign employees. So long as management can determine the qualifications for a given assignment, such a proposal constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. Thus, it merely provides that selection among equally qualified employees, as defined by management, will take into account volunteers rather than require another employee to work who prefers to take available leave. See American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 15 FLRA 545 (1984); and National Federation of Federal Employees, Local 1622 and U.S. Commissary, Fort Meade, Maryland, 16 FLRA 998 (1984) (Union Provision II). IV. Union Proposal 4(a) A. Positions of the Parties The Agency regards the proposal as "nothing more than a seniority clause" (Agency Statement of Position, p. 4) which is inconsistent with management's right to assign employees and to assign work, essentially as argued in regard to the other proposals discussed above. The Union argues, as above, that the proposal does not limit the Agency in designating numbers or types of employess or work needs, but only would require that assignments be by seniority among equally qualified employees. B. Analysis and Conclusions For essentially the reasons discussed above, the Authority finds that this proposal is negotiable. We have already noted that so long as a proposal does not limit management's right to define the "demands" of work, it does not interfere with management's authority to decide what work will be performed during the holiday periods. Similarly, the Agency's argument that it could not select which employee to "lay off," that is, to require to take annual leave, is rejected for the same reasons noted above regarding available volunteers. By preserving management's right to define the category and qualifications of employees to do a job, the proposal to give seniority preference to employees desiring to work rather than take forced leave is negotiable. In sum, as long as those on the seniority list are determined to be equally qualified under criteria determined by management, the proposal is negotiable. See Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703, 706-707 (1982). V. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review, as it relates to Proposal 1, found to be nonnegotiable, 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 concerning Union Proposals 3 and 4(a). /*/ Issued, Washington, D.C., August 15, 1986 /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.