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29:1174(84)NG - AFGE, LOCAL 2010 VS NAVY, NAVAL SUPPLY CENTER



[ v29 p1174 ]
29:1174(84)NG
The decision of the Authority follows:


29 FLRA NO. 84

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCALS 696 and 2010

                   Union

       and

NAVAL SUPPLY CENTER
JACKSONVILLE, FLORIDA

                   Agency

Case No. 0-NG-1394

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 one proposal. For the following reasons, we find that the proposal is not negotiable.

II. The Proposal

Article 3, Rights of the Employer, Section 2.

The term "emergency," for purposes of this agreement means a situation which ...

(1) is outside the control of the Employer;

(2) requires sudden or immediate action on the part of the Employer; and

(3) could not have been reasonably foreseen by the Employer.

A. Positions of the Parties

The Agency contends that by defining the term "emergency," the proposal limits and is, therefore, inconsistent  with its reserved right under section 7106(a)(2)(D) of the Statute to take "whatever actions may be necessary to carry out the agency mission during emergencies." According to the Union, the proposal is intended to define the term "emergency" only for purposes of the parties' collective bargaining agreement and "does not necessarily have any specific application to any other clause in the contract involving any management right." Union Response at 3. In this connection, the Union expressly states that "the use of the term in the collective bargaining agreement is likely to have a different application than in (section) 7106(a)(2)(D) . . . and this proposal has no application to the statutory definition and does not seek to modify the statutory intent." Petition for Review at 2.

B. Analysis and Conclusion

The Union's explanation that the proposal does not specifically apply to any clauses in the parties' collective bargaining agreement involving management rights does not comport with the plain language of the proposal. By its language the proposal provides a definition for the term "emergency" to be generally applied to the parties' negotiated agreement as a whole, including clauses that concern the exercise of management rights.

Based on the foregoing, we conclude that this proposal is to the same effect as Provision 2 in National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, New York, 22 FLRA No. 13 (1986) which likewise defined the term &emergency& for application in the parties' collective bargaining agreement. The Authority held that the provision was nonnegotiable because, rather than allowing the Agency to independently assess whether an emergency exists, it would have limited management's right to act during emergencies to situations which met the proposed definition. For the reasons stated in U.S. Attorney's Office, Southern District of New York, we find that the present proposal, by defining the term "emergency" as used in the parties' collective bargaining agreement, limits management's section 7016(a)(2)(D) right by precluding the Agency from independently assessing whether an emergency exists. As a result, it is nonnegotiable. See also National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 2). 

III. Order

The Union's petition is dismissed.

Issued, Washington, D.C., October 27, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY