American Federation of Government Employees, Local 1698, Local 1156 (Union) and United States, Department of the Navy, Naval Inventory Control Point, Philadelphia, Pennsylvania, Mechanicsburg, Pennsylvania (Agency)

[ v61 p615 ]

61 FLRA No. 118

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1698, LOCAL 1156
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT
PHILADELPHIA, PENNSYLVANIA
MECHANICSBURG, PENNSYLVANIA
(Agency)

0-NG-2794

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUE

June 16, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union [n1] under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal regarding holiday closings. [n2] The Agency filed a statement of position. The Union did not file a response.

      For the reasons that follow, we find that the proposal is outside the duty to bargain because it affects management's right to assign work under § 7106(a)(2)(B) of the Statute.

II.      The Proposal

Article 53, Section 18
a.      The closing will affect all bargaining unit employees except those specifically identified as exempt or excluded as essential personnel.
b.      Employees may use accumulated or advanced annual leave and/or accrued compensatory time to cover the time off. Employees, participating in the Alternate Work Schedule may schedule their Regular Day Off (RDO) to cover the days of closing. The Employer may provide legitimate opportunities for employees to work compensatory time, at the need of the organization, in lieu of overtime pay to ensure their employees are in a pay status during the closing.
     (1) Any employee who will not be able to accumulate a sufficient amount of annual leave or compensatory time (unless compensatory time was worked expressly for these days) and who does not wish to request an advance of annual leave to cover the scheduled closing, is authorized LWOP for the days of closing. The normal requirement for [an] employee to request LWOP in writing, in advance, is waived for these closures.
     (2) Regardless of annual leave or compensatory time balances, employees may also choose to report for duty on these days. These employees must notify their immediate supervisor, no later than two weeks before the closure. Employees who report for duty will be able to work between 0600 hours and 1800 hours. Employees who despite notice of intent to work, do not report for work, will be carried in an appropriate leave status to be determined by the employee.
     (3) The Employer is required to schedule and approve the use of annual leave or advanced annual leave, as well as use of compensatory time, where appropriate, so as to ensure that employees have accrued sufficient annual leave or compensatory time to be carried in a pay status during the closing. In administering overtime and compensatory time, supervisors are to follow the provisions of Article 20 section 2(A) and (B). The Employer is also responsible for immediately forwarding the names of those employees who plan to report to work rather than being carried in a leave status. Additionally, [ v61 p616 ] the Employer is responsible for assigning a sufficient amount of work to those employees who report for duty.
     (4) The Employer will be responsible for providing work space(s) and making security arrangements for those employees reporting for duty.
     (5) The Employer will identify those employees who are considered to be essential personnel, i.e., those employees who must maintain ongoing mission requirements and may not be granted annual leave, compensatory time off, or LWOP on the closure dates. The Employer will also inform those employees of their obligation to report for duty on the date scheduled, during the hours and at the site specified.
*Note: For other incidents that may be appropriate for closing the day before or after a Holiday will be negotiated with the union on an as needed basis.
Note: An updated list of essential personnel will be provided to the union.

III.     Meaning of the Proposal

      As relevant here, the parties agree that subsection 18b.(3) requires the Agency to schedule and approve leave and compensatory time to ensure that employees have sufficient annual leave or compensatory time to enable them to be in a pay status during the period the facilities are closed. The parties also agree that this subsection does not require the Agency to monitor employees' leave usage, only to respond to employee requests for work that would allow them to accrue compensatory time for that purpose where such work is available, and that requests for compensatory time should follow procedures established in Article 20.

      The parties agree that the third sentence of subsection 18b.(3) requires the Agency to notify security personnel as to the employees who choose to work during the period of the closure and that the fourth sentence obligates the Agency to provide work to those emplo-yees.

IV.     Positions of the Parties

A.     Union

      The Union argues that the Agency's decision to compel employees to use leave (annual, sick or leave without pay) under other than "emergency conditions" will potentially create an "adverse impact" on those employees unable to accrue a sufficient amount of leave should the Agency exercise its right to curtail normal business activities for any day in conjunction with a major holiday, such as the Friday following Thanksgiving. See Petition for Review at 9; Post Petition Conference Report at 2. However, with the exception of section 18b.(2), the Unio