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31:1006(81)NG - Portsmouth FEMTC and Navy, Portsmouth Naval Shipyard, Portsmouth, NH -- 1988 FLRAdec NG

[ v31 p1006 ]
The decision of the Authority follows:

31 FLRA NO. 81
31 FLRA 1006

Date:             25 MAR 1988






Case No. 0-NG-1464


     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). It concerns
the negotiability of a single union proposal pertaining to the
scheduling of overtime. For the reasons set forth below, we find
that the proposal constitutes a negotiable procedure and is
within the duty to bargain.

     II. Proposal

     Management agrees to make overtime assignments in accordance
with the procedures specified in the Agreement FEMTC/PNS
1985-1988 by making said overtime assignments based on
accumulated overtime worked and refused i.e. the employee with
the lowest cumulative overtime hours and the requisite skills
shall be asked first. The Employer further agrees that it will
not be its practice to deny an employee the opportunity to 16
hour shifts. (Only the underlined portion is in dispute.)

     III. Positions of the Parties

     The Agency argues that the proposal is inconsistent with
management's rights to direct and assign employees and assign
work under section 7106(a)(2)(A) and (B) of the Statute. More
specifically, the Agency argues that the proposal would interfere
with management's right to determine the personal characteristics
of employees that are needed to perform the Agency's work and,
also, with management's right to determine which employees will
perform work. The Agency further argues that the Union's stated
intent of the proposal--that it constitutes a procedure--is at
odds with the clear language of the proposal. Therefore, the
Agency urges that the Union's stated intent not be considered by
the Authority.

     The Union states that the proposal would not prevent
management from assigning work to unit employees. Rather,
according to the Union, the proposal would increase the pool of
employees whom management has already recognized as being fully
qualified, when making overtime assignments. Reply Brief at 3.
The Union also claims that the proposal would merely require that
all employees be considered equally when making overtime
assignments. Reply Brief at 4.

     IV. Analysis and Conclusions

     The proposal before us concerns scheduled overtime. Overtime
schedules are prepared 7 to 10 days in advance. The Agency
operates 24 hours-a-day, 7 days-a-week with three 8-hour shifts
per day. Scheduled overtime generally is offered first to
qualified employees with the lowest cumulative overtime hours.
The sentence of the proposal that is in dispute would permit an
employee to be scheduled for an overtime assignment even if the
overtime assignment would result in the employee working a
16-hour shift.

     The Agency argues that alertness and mental acuity relate to
the quality and quantity of an employee's work and to the safe
operation of sensitive equipment. Statement of Position at 4.
Since the proposal would have the effect of permitting employees
to remain on duty for 16 hours, the Agency argues that it would
be prevented from determining that employees working 16-hour
shifts were either not alert enough or did not possess sufficient
acuity to perform the work. Therefore, according to the
Agency, the proposal would directly interfere with management's
right to assign work for only an 8-hour shift rather than a
16-hour shift.

     We find the Agency's arguments to be unpersuasive. First,
the Agency acknowledges that there are occasions when an employee
is "held over" to work a second 8-hour shift. Further, the Agency
acknowledges that the parties' past practice permitted employees
to be scheduled to work 16-hour shifts. Statement of Position at

     The Agency has not demonstrated how employees who would be
scheduled in advance for 16-hour shifts would be less alert and
have lesser acuity than would employees who are required to work
16-hour shifts with little if any notice on a "hold over" basis.
Further, it is evident that the Agency in the past has assigned
and continues to assign employees to work 16-hour shifts. The
Agency has not demonstrated that the employees are any less
qualified for scheduled 16-hour shifts than they are for
unscheduled 16-hour shifts.

     We are also not persuaded by the Agency's assertion that the
proposal would interfere with management's right to direct and
assign employees by determining which employees will perform
work. The portion of the proposal that is not in dispute already
establishes which employee will be asked first to perform an
overtime assignment. The sentence in dispute merely increases the
pool of potential candidates and allows for the equitable
consideration of employees who wish to work overtime, as the
Union indicates. We, therefore, reject the Agency's additional
argument that the Union's stated intent of the proposal is
inconsistent with the language of the proposal so that the intent
should not be considered. We find no such inconsistency.

     Accordingly, since the Agency has not established that the
proposal would interfere with its rights, as alleged, we find the
proposal to be within the duty to bargain. 

     V. Order

     The Agency must, upon request, or as otherwise agreed to by
the parties, bargain on the proposal. 1

     Issued, Washington, D.C., March 25, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member



     Footnote 1 In finding the proposal to be negotiable, we make
no   judgment as to its merits.