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33:0618(78)NG - - FEMTC of Charleston and Charleston Naval Shipyard, Charleston, SC - - 1988 FLRAdec NG - - v33 p618

[ v33 p618 ]
The decision of the Authority follows:

33 FLRA No. 78










October 28, 1988

Before Chairman Calhoun and Member McKee.

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 a single provision of a negotiated agreement which was disapproved by the Agency head in the course of review under section 7114(c) of the Statute. The disputed part of the provision seeks to require that, during periods when activities are curtailed temporarily, management attempt to provide available work to employees lacking annual leave. For the reasons that follow, we find the disputed part of the provision to be nonnegotiable because it is inconsistent with management's rights to assign and lay off employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

II. Provision

Section 6. During periods of shutdown of activities, or reduced operations for vacation purposes, management will attempt to provide available work first to employees not having annual leave to their credit. If work cannot be assigned for such employees, subject to the approval of the Commanding Officer, Naval Station, such employees holding Career or Career Conditional status, who have more than six (6) months service, may be advanced annual leave to cover the period of the shut-down provided such leave does not exceed that which would be accrued during the current leave year and provided no separation or other action is pending which would preclude normal accrual of leave. [Only the underscored portion of the provision is in dispute.]

A. Positions of the Parties

Charleston Naval Shipyard, Charleston, South Carolina (the Agency) contends that the disputed provision is nonnegotiable because it interferes with management's rights to lay off employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

According to the Agency, the provision interferes with the right to lay off by requiring that specified employees be offered available work, notwithstanding management's decision to lay off those same employees. Additionally, the Agency asserts, the provision would subject to arbitral scrutiny the Agency's determination that no work was available for the covered employees. As a result, the Agency argues, an arbitrator's judgment would be substituted for that of the Agency's concerning the exercise of a management right.

In the Agency's view, the provision also interferes with elements of its right to assign work. Specifically, the Agency finds the provision to be in conflict with the managerial authority to determine: 1) what work, if any, needs to be done; 2) which employees or positions will perform the work; and 3) when the work will be performed.

The Federal Employees Metal Trades Council of Charleston, AFL-CIO (the Union) did not file a reply brief in this case. In its petition for review, the Union stated only that the provision's objective was "to provide employees with pay where they might otherwise be placed in a non-pay status." Petition for Review at 2.

B. Analysis and Conclusions

The provision is nonnegotiable for two reasons. First, the disputed part of the provision would require, during periods of temporary shutdown or curtailment of operations, that the Agency keep employees who have no annual leave on duty to perform "available work." The provision would apply regardless of management's decision as to whether work should be performed during those periods, and regardless of the need for the employees' services. Consequently, management could be forced to forego its decision to cease operations temporarily in the circumstances covered by the provision. Second, the provision, in requiring the Agency to assign work to employees without leave balances, does not authorize management to refuse to assign the work to the specified employees when those employees lack the qualifications necessary to perform the available work. Accordingly, we find that the provision violates the Agency's rights 1) to assign employees, 2) to assign work, and 3) to lay off employees.

1. Assignment of Work During Temporary Shutdowns

The provision requires that, during the period of curtailment, "available work" be assigned based on the employees' lack of annual leave. This aspect of the provision imposes an obligation like that imposed on management by Proposal 1, found to be nonnegotiable in American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 23 FLRA 193, 194-96 (1986) (Tooele Army Depot). The proposal in that case required the agency to "make every conceivable attempt to assign employees to available work" if they declined to take annual leave or leave without pay during partial closings of the activity during certain holiday periods.

The Authority found that the proposal in Tooele Army Depot "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." 23 FLRA at 195. Further, in National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 583 (1988) (Proposal 38.2.C), petition for review filed as to other matters sub nom. U.S. Nuclear Regulatory Commission v. FLRA, No. 88-2086 (4th Cir. Apr. 20, 1988) (Nuclear Regulatory Commission), we found that a proposal, prescribing criteria to be used in deciding which particular employees would be reassigned or furloughed, restricted management's choice of employees to be reassigned or laid off and interfered with rights under section 7106(a)(2)(A). See also Department of the Navy, Naval Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir. 1988).

In like manner the provision here would nullify management's authority to decide whether temporarily to curtail its operations and which employees to lay off in that event. Management, therefore, would be unable to cease its operations or would be forced to retain at work employees who might be surplus under its plan of reduced operations. Consequently, the provision, like those in Tooele Army Depot and Nuclear Regulatory Commission, is nonnegotiable because it conflicts with the rights to assign and lay off employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute.

2. Assignment of Work to Employees Without Leave Balances

The provision requires that available work be assigned to unit employees lacking annual leave. The obligation to make such assignments does not provide that management may base work assignments on the qualifications required to perform the work. Consequently, the provision could compel management to assign work to employees who are not best qualified, or even qualified at all, to perform such work.

Under section 7106(a)(2)(A) and (B) of the Statute management retains the rights to assign employees and to assign work. The Authority has long held that those rights include the discretion to establish the particular skills and qualifications needed to accomplish the work and the authority to determine which employees have the requisite skills to execute the assignments successfully. See, for example, National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94, 97-98 (1987). Because it bases the assignment of work exclusively on whether employees have available annual leave, the disputed provision divests management of the authority to establish qualifications and to determine which employees possess the qualifications needed to perform the "available work." Therefore, it conflicts with the rights to assign employees and work under section 7106(a)(2)(A) and (B) and is nonnegotiable.


The petition for review is dismissed.

(If blank, the decision does not have footnotes.)