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61 FLRA No. 118
OF GOVERNMENT EMPLOYEES
LOCAL 1698, LOCAL 1156
DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT
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
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 Union does not assert that any of the subsections are appropriate arrangements. See Petition for Review at 9. The Union does not wish to sever any part of the proposal. See id. at 10.
The Agency makes a variety of arguments regarding why the proposal violates management rights under § 7106 of the Statute. As relevant here, the Agency asserts that subsection 18b.(3) provides employees an entitlement to work overtime in order to accumulate compensatory time to strengthen leave balances and it obligates the Agency to find work for such assignments. In particular, the Agency objects to the phrase "where such work is available," because in the Agency's view, that wording forces the Agency to provide work to the employees who wish to earn compensatory time. The Agency argues that subsection 18b.(3) violates the Agency's right to assign work under § 7106(a)(2)(B) of the Statute. In support of its position, the Agency relies on AFGE, Local 1857, 34 FLRA 909 (1990) (McClellan AFB).
The Agency also argues that, when read together, subsections 18b.(2) and 18b.(3) permit employees with leave to decide to work instead of taking leave. The Agency asserts that this outcome violates the Agency's right to assign work under § 7106(a)(2)(B), citing McClellan AFB. The Agency asserts that the proposal would require it to revise its plans, create work to be performed on the day it planned a closure, and force it to alter work assignments in violation of its right to assign work.
V. Analysis and Conclusions
We note that the proposal contains multiple sections and that the Union did not request that any part of the proposal be severed. Because the Union has not requested that the parts of the proposal be severed, if one part of the proposal is outside the duty to bargain, the entire proposal is outside the duty to bargain. See Nat'l Air Traffic Controllers Ass'n, 61 FLRA 341, 347 (2005) (if any portion of a proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain).
Subsection 18b.(3) requires the Agency to provide a sufficient amount of work to employees who report for [ v61 p617 ] duty during a period of temporary closure. The Authority has long held that management's right to assign work under § 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See, e.g., Nat'l Weather Serv. Employees Org., 37 FLRA 392, 399 (1990); AFGE, Local 85, 32 FLRA 210, 216 (1988).
By requiring the Agency to provide work for any employee who chooses to report to work during a period of temporary closure, subsection 18b.(3) affects management's right to assign work under § 7106(a)(2)(B) because it requires the Agency to make work assignments to those employees. See McClellan AFB, 34 FLRA at 913 (proposal requiring agency to find work for employees who chose not to take leave during conversion to daylight saving time affected management's right to assign work under § 7106(a)(2)(B) of the Statute). Accordingly, we find that subsection 18b.(3) affects management's right to assign work under § 7106(a)(2)(B) of the Statute and is outside the duty to bargain.
We note that the Union does not contend that subsection 18b.(3) is electively negotiable under § 7106(b)(1), or that it constitutes either a procedure within the meaning of § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3). Therefore, because subsection 18b.(3) affects management's right to assign work under § 7106(a)(2)(B) of the Statute, we find that it is outside the duty to bargain. As noted above, because the Union has not requested that the parts of the proposal be severed, we find the entire proposal outside the duty to bargain.
The petition for review is dismissed.
Footnote # 1 for 61 FLRA No. 118 - Authority's Decision
Footnote # 2 for 61 FLRA No. 118 - Authority's Decision
The Union initially submitted a second proposal, Article 43, which the Agency did not challenge and thus is not before the Authority. See Record of Post Petition Conference at 2. The Union also submitted a third proposal, Article 42, section 3 paragraph b, in its initial filing but did not submit that proposal when it refiled its petition for review and did not address it at the post- petition conference. See Union Response to Show Cause Order (Petition for Review); Record of Post-Petition Conference. Accordingly that proposal is not before us.