14:0686(91)NG - Laborers' International. Union of North America Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, CA -- 1984 FLRAdec NG
[ v14 p686 ]
14:0686(91)NG
The decision of the Authority follows:
14 FLRA No. 91
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO-CLC, LOCAL
1267
Union
and
DEFENSE LOGISTICS AGENCY, DEFENSE
DEPOT TRACY, TRACY, CALIFORNIA
Agency
Case No. O-NG-417
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
relating to the negotiability of nine Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1 /2/
Article VII, Basic Work Week and Hours of Work Section 3:
Assignment of employees to less desirable work week and shifts
will be on the basis of inverse seniority. Vacancies that occur
on the Monday through Friday shift will be offered to the most
senior employee in the same job title, series and grade on any
irregular shift. Vacancies filled on the Monday through Friday
day shift during reduction-in-force will be offered to the most
senior employee regardless of shift. If the senior employee does
not desire to change, the offer will be extended to the next
senior employee. Once an employee has been assigned to any shift
he will not be displaced by any transferred or displaced employee
from this or any other installation regardless of the transferee's
seniority except in the case of reduction-in-force. The Employer
agrees that records will be kept of shift work performed or
scheduled. A current Reassignment Seniority List will be provided
to the Union to aid in resolving specific complaints concerning
shift assignments. (The underlined portion of the proposal is in
dispute.)
The first disputed sentence of Union Proposal 1 requiring that
otherwise qualified employees be offered, on the basis of seniority, the
opportunity to fill vacancies on the Monday through Friday shift is to
the same effect as Union Proposal 1 in American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663 (1982) which the Authority found not to violate
management's rights to assign work or employees pursuant to
section7106(a)(2) of the Statute. In the cited case, the disputed
proposal provided that when an assignment required overtime it would be
performed by the employee whose responsibility it was during normal duty
hours. In finding the proposal negotiable, the Authority noted that the
proposal was merely concerned with when employees would perform duties
previously assigned to their positions. In like manner the disputed
first sentence in the instant case provides a procedure for determining
when, i.e., on which shift, an employee will perform his previously
established assignment. Further, contrary to the Agency's contention,
this sentence does not constitute a mandate to fill all vacancies
occurring on the Monday through Friday shift. Rather the sentence only
requires that when management decides to "offer" a vacancy, it will do
so in the prescribed manner. Thus, management is left with the
discretion to determine whether a vacancy will be filled.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the first
disputed sentence of Union Proposal 1. /3/
The Agency construes the second and third disputed sentences of Union
Proposal 1 as intended to govern the placement rights of bargaining unit
employees during a reduction-in-force (RIF). In the absence of any
challenge to that interpretation, it is adopted by the Authority for the
purpose of this decision. As the Authority noted in International
Federation of Professional and Technical Engineers, AFL-CIO, NASA
Headquarters Professional Association and National Aeronautics and Space
Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982), "a
RIF must be carried out in accordance with regulations issued by the
Office of Personnel Management (OPM) pursuant to statute . . . ." In
examining the relevant OPM regulations, the Authority observed that
they:
. . . specify that within each competitive level, employees
will compete for retention in the agency based on their relative
retention standing. The "retention standing" of an employee is
his or her rank relative to the other employees in the competitive
level based on tenure, military preference, length of service, and
performance rating.
The disputed sentences, requiring that, during a RIF, vacancies on
the Monday to Friday day shift be offered to employees on the basis of
seniority are inconsistent with the quoted OPM RIF regulations which are
Government-wide in scope and require that tenure, military preference
and performance rating also be considered in determining an employee's
entitlement to a given position during a RIF. Thus, these sentences are
outside the Agency's duty to bargain pursuant to section 7117(a)(1) of
the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to the second and third disputed sentences of Union Proposal 1
be, and it hereby is, dismissed.
The fourth disputed sentence of Union Proposal 1 does not prevent
management from deciding to abolish a shift or organizational segment
which would affect an employee's ongoing shift assignment. Rather, the
Authority concludes that the intent of this sentence is to assure that
employees will not have their shift assignments changed so long as the
composition and responsibilities of their shifts remain unchanged. In
such circumstances, the proposal only addresses the location and times
at which employees will perform the previously assigned duties of their
positions. Since such matters are not inconsistent with management's
right to assign employees and work pursuant to section 7106(a)(2)(A) and
(B) of this Statute, the sentence is within the duty to bargain. See
Department of Agriculture, Food Safety and Quality Service, 9 FLRA 663
(1982).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the fourth
disputed sentence of Union Proposal 1. /4/
Union Proposal 2
Article VIII. Basic Work Week and Hours of Work Section 5: It
is agreed except in a case of emergency that two weeks advance
written notice will be provided to an employee whose basic work
week or shift hours are to be changed, but in no event shall there
be less than three working days advance written notice of such
changes. (The underlined portion of the proposal is in dispute.)
Union Proposal 2 conditions the Agency's response to emergencies
necessitating the reassignment of bargaining employees upon the giving
of three days notice of the reassignments. In this respect, the
proposal is to the same effect as Provision 1 in Association of Civilian
Technicians, Inc., Pennsylvania State Council and the Adjutant General,
Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346
(1981), requiring verification and a declaration by a specified
supervisor before taking emergency action, which the Authority held to
violate management's right pursuant to section 7106(a)(2)(D) of the
Statute "to take whatever actions may be necessary to carry out the
agency mission during emergencies." Hence, based on Department of
Military Affairs, and the reasons stated therein, Union Proposal 2 is
outside the Agency's duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to Union Proposal 2 be, and it hereby is, dismissed.
Union Proposal 3
Article IX, Holidays
Section 3: In accordance with applicable regulations:
a. Employees serving on an appointment not limited to ninety
(90) days or less or who have served on consecutive appointments
in excess of ninety (90) days without a break in service shall
receive eight (8) hours pay at their regular hourly rate plus any
appropriate differentials on all days defined as holidays on which
they are not required to work.
. . . .
c. Employees serving on an appointment not limited to ninety
(90) days or less or who have served on consecutive appointments
in excess of ninety (90) days without a break in service working
on a holiday within their basic work week shall receive double
their regular hourly rate and appropriate shift differential for
all hours not to exceed eight (8) hours worked on holiday.
Union Proposal 4
Article X, Sick Leave
Section 4c: Employees serving under a limited appointment, or
one which will be terminated on a specified date, may be advanced
only the amount which they would earn during the remainder of
their appointment. (Proposals 3 and 4 are disputed in their
entirety.)
The Agency's sole contention as to Union Proposals 3 and 4 is that
they are outside the duty to bargain to the extent they apply to
nonbargaining unit employees. In this regard, the Agency asserts,
without contravention, that the temporary employees referenced in Union
Proposal 3, employees appointed for a period of more than 90 days but
less than one year, and the temporary employees referenced in Union
Proposal 4, employees serving a limited appointment or one which will be
terminated on a specified date, are outside the bargaining unit
represented by the Union herein. It is well settled that, under section
7117 of the Statute, an agency may, but is not obligated to, bargain on
proposals concerning nonbargaining unit employees. See, e.g.,
International Association of Fire Fighters, Local F-61 and Philadelphia
Naval Shipyard, 3 FLRA 438 (1980) (Union Proposal III). Thus, since the
Agency has elected not to bargain on proposals 3 and 4 to the extent
they affect nonbargaining unit employees, Union Proposals 3 and 4 are to
that extent outside the Agency's obligation to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
concerns Union Proposals 3 and 4 be, and it hereby is, dismissed.
Union Proposal 5
Article XVII, Promotions and Assignments
Section 5: The Employer agrees that no employee will be loaned
out, detailed, assigned, reassigned, or have his position
description rewritten to evade the principle of competitive
recruitment as outlined by the Agreement and the appropriate
regulations nor to avoid payment of additional compensation to an
employee when working in a higher graded classification.
Assignments to perform higher level duties shall be held to a
minimum and the Employer agrees such assignment will not be abused
nor made solely for the convenience of the Employer. Time spent
working at higher level duties may be logged by an employee on a
form supplied by the Employer. The form will be submitted to the
immediate supervisor for verification and signature at the end of
each pay period and retained by the employee. The employee may
compile these forms to be submitted for inclusion in the Official
Personnel File at such time as the employee desires. (The
underlined sentence of this proposal is in dispute.)
It is well established that a union proposal seeking to prohibit the
assignment of specified duties to certain bargaining unit employees is
inconsistent with management's right, pursuant to section 7106(a)(2)(B)
of the Statute "to assign work." See, e.g., Association of Civilian
Technicians and State of Georgia National Guard, 2 FLRA 581 (1980). A
proposal which limits the assignment of certain work to specific
circumstances is likewise violative of section 7106(a)(2)(B). See New
York State Nurses Association and Veterans Administration Medical
Center, Bronx, New York, 11 FLRA No. 94 (1983). The disputed portion of
Proposal 5 herein would absolutely bar the assignment of higher level
duties to bargaining unit employees if such assignments were made
"solely for the convenience of the Employer." In this regard, the Agency
contends, without contravention by the Union, that "all assignments of
employees are made 'for the convenience of the Employer,' to wit, to
perform the mission of the Employer." Therefore, the Authority concludes
that, as the disputed part of Union Proposal 5 can be reasonably
construed as prohibiting the assignment of higher level duties
circumstances where management may find it necessary to do so, it is
inconsistent with the right "to assign work" pursuant to section
7106(a)(2)(B) and outside the Agency's obligation to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to Union Proposal 5 be, and it hereby is, dismissed.
Union Proposal 6
Article XVII, Promotions and Assignments
Section 6: Assignment of employees to positions at a higher
grade will be by temporary promotion when such assignments are for
two consecutive weeks or longer. Promotions in such cases will be
made effective at the earliest practicable time, under governing
agency regulations and procedures. This does not preclude
management from effecting temporary promotions to commence at the
start of an employee's assignment to a higher graded position when
sufficient advance notice of the vacancy is available in which to
process such a promotion.
Temporary promotions, under the provisions of the section, are
subject to the following selection procedure. The most senior
employee in the same occupational series permanently assigned to
the same organizational element in which the vacancy occurs will
be offered the temporary promotion. Any employee so selected must
meet minimum legal and Civil Service Commission qualification
requirements.
Promotions under this section cannot extend beyond 60 calendar
days. Any temporary promotion action affecting a single employee
that extends beyond 60 calendar days must be made under the merit
promotion procedure as contained in agency regulations. (The
underlined portion of the proposal is in dispute.)
The disputed part of Union Proposal 6 would require that temporary
promotions be offered to the senior employees in the organizational
elements having the vacancies. The proposal therefore governs the
temporary assignment of employees to different, higher grade positions.
In this respect, the disputed portion is to the same effect as Union
Proposals IV through VI, requiring that selections for temporary
assignments to different positions, specifically details and loans, be
based on seniority, in American Federation of Government Employees,
AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense
v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In that case,
the Authority found the cited proposals to be inconsistent with
management's right pursuant to section 7106(a)(2)(A) of the Statute to
assign employees. Hence, based on Air Force Logistics Command, and the
reasons stated therein, the disputed part of Union Proposal 6 herein is
outside the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
concerns the disputed portion of Union Proposal 6 be, and it hereby is,
dismissed.
Union Proposal 7
Article XVII, Promotions and Assignments
Section 7. The Employer agrees that:
a. Every effort will be made to assign unit employees to work
appropriately to their classification. In the event that it
becomes necessary to temporarily assign employees to work at a
lower level than the classification held, or where the work is
appropriate to the classification but is unusually dirty or
arduous, the Employer agrees that affected employees within the
same work center will be assigned on an inverse seniority basis
from the higher classification level most closely related to the
duties required to be performed. (All of Section 7a is in
dispute.)
b. Assignment of employees to work at the same grade level in
operational areas outside of their designated work center will be
made on the basis of inverse seniority. The employee's seniority
shall prevail in the work area for terms and conditions of this
Agreement. It is the responsibility of the losing supervisor to
provide the employee's seniority to the gaining supervisor of the
affected employee. This may be accomplished by annotating the
employee's Service Computation Date on the daily Labor Exception
Card which the employee takes to his temporary work area, or any
other expedient when the annotation on the Labor Exception Card is
impractical in individual circumstances. (The underlined portion
of Section7b is in dispute.)
c. It is further agreed that when there are more employees in
a particular classification than there are pieces of available
equipment, the employee permanently or temporarily assigned to the
work area having the most seniority has the right to be assigned
the equipment. (All of Section 7c is in dispute.)
d. In making assignments of personnel, licensing requirements
and physical limitations imposed by competent medical authority
must be observed. (All of Section 7d is in dispute.)
Contrary to the Agency's contention, the first sentence of Section 7a
is not inconsistent with the right, pursuant to section 7106(a)(2)(B) of
the Statute, "to assign work." Rather, this sentence only requires that,
as a general rule, assignments to employees will be consistent with
their current grade levels. Thus the first sentence is to the same
effect as the first sentence of Union Proposal 2, providing that
"employees can expect assignments to be made within reasonable bounds,
consistent with grade level, position description and performance," in
American Federation of Government Employees, AFL-CIO, Local 1858 and
Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
Alabama, 10 FLRA 440 (1982), which the Authority found to be within the
duty to bargain. Hence, based on U.S. Army Missile Command, and the
reasons stated therein, the first sentence of Section 7a is within the
duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the first
sentence of section 7a. /5/
The remaining part of Section 7a and the disputed first sentence of
Section 7b clearly are concerned with the temporary reassignment of
employees to work not usually performed by them, i.e., work at a lower
grade level, "unusually arduous or dirty" work, or equivalent grade
level work in other operational areas. In all these circumstances,
selection for assignment would, under the proposal, be governed by
inverse order of seniority. In this respect, these disputed provisions
are to the same effect as Union Proposal IV through VI in Air Force
Logistics Command, 2 FLRA 604, which the Authority found to "interfere
with the right of the agency to assign employees." Hence, based on Air
Force Logistics Command, and the reasons stated therein, these
provisions are outside the duty to bargain because of their
inconsistency with section 7106(a)(2)(A) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
relates to the remaining part of Section 7a and the first sentence of
Section 7b be, and it hereby is, dismissed.
Section 7c, requiring that, in circumstances where more than one
employee must use the same piece of equipment to carry out a work
assignment, the matter will be resolved by application of seniority, is
inconsistent with management's right pursuant to section 7106(a)(2)(B)
of the Statute to assign work. Section 7c would require the
reassignment of equipment, to more senior employees regardless of
whether the employees currently using the equipment have completed their
work. Thus, Section 7c would effectively require assignment of work
based on seniority. The Authority has consistently held such
requirements to be inconsistent with the right, pursuant to section
7106(a)(2)(B), to assign work. See, e.g., International Organization of
Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA No. 29
(1983) (Provision 3).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
concerns Section 7c be, and it hereby is, dismissed.
Section 7d of Union Proposal 7 would impose limitations, i.e.,
licensing requirements and physical considerations, upon management's
right to assign employees. In American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub
nom. Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945 (1982) the Authority stated, regarding Union Proposals IV through
VI, that an agency's right, under section 7106(a)(2)(A) of the Statute,
to assign employees, "includes the discretion to determine which
employee will be assigned." Similarly, the Authority found, in National
Federation of Federal Employees, Local 1624 and Air Force Contract
Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980), that a
proposal requiring in part that temporarily disabled employees be
detailed to work compatible with their limitations violated management's
right to assign employees pursuant to section 7106(a)(2)(A) of the
Statute. Because Section 7d herein imposes limitations on who may
undertake certain assignments, it likewise interferes with the right to
assign employees and for the reasons stated in Air Force Logistics
Command and Air Force Contract Management Division, is outside the duty
to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review relating
to Section 7d be, and it hereby is, dismissed.
Union Proposal 8
Article XXII, Grievance Procedure
Section 2: For the purpose of this Article, a grievance is any
matter of personal concern or dissatisfaction to an employee which
is related to his employment. This procedure shall be the
exclusive procedure available to the Union and employees of the
unit in resolving grievances. This grievance procedure may not
cover matters for which a statutory appeal right exists. (The
underlined portion of the proposal is in dispute.)
Union Proposal 9
Article XXIII, Arbitration Procedure
Section 1: If procedures in Article XXII fail to resolve a
grievance and the Union wishes to pursue the matter further, the
grievance shall be referred to arbitration. The request for
arbitration shall be made within thirty (30) calendar days from
the date of the Commander's decision in Step 4 of the Grievance
Procedure. (The underlined portion of this proposal is in
dispute.)
In agreement with the Agency, the Authority finds that as Union
Proposals 8 and 9 would preclude the Agency's access to the negotiated
grievance and arbitration procedures they are inconsistent with section
7121 of the Statute. In this regard, section 7121 provides in
subsection (a)(1) that "any collective bargaining agreement shall
provide procedures for the settlement of grievances" and further, in
subsection (b)(3)(C) that any grievances not satisfactorily settled
through the negotiated grievance procedure "be subject to binding
arbitration which may be invoked by either the exclusive representative
or the agency." In addition section 7103(a)(9) of the Statute defines a
"grievance" so as to specifically encompass "agency" complaints. /6/
Union Proposal 8, however, would define a "grievance" solely as a matter
of general concern or dissatisfaction related to an employee's
employment and limit access to the negotiated grievance procedure to the
Union and employees in the bargaining unit. Union Proposal 9 provides
that request for arbitration may be initiated by the Union only.
Therefore, because Union Proposals 8 and 9 are inconsistent with the
requirements of the Statute itself, in that they effectively bar the
Agency from access to the negotiated grievance and arbitration
procedure, the Agency's duty to bargain does not extend to them.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
relates to Union Proposals 8 and 9, be, and it hereby is, dismissed.
Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency's contention that the Union's petition for review
should be dismissed as untimely filed cannot be sustained. The record
shows that while the Union initially filed an untimely petition for
review in response to an unsolicited Agency allegation that the
proposals were nonnegotiable, it withdrew this petition before the
Authority took any action and subsequently requested a written
allegation of nonnegotiability from the Agency. The instant petition
was timely filed with the Authority within 15 days of service on it of
the Agency's written allegation rendered in response to that request in
accordance with section 2424.3 of the Authority's Rules and Regulations.
Moreover the Union corrected, within the time limit set by the
Authority, its failure to serve a copy of the petition upon the Agency
head. Therefore, the petition is properly before the Authority. See
American Federation of Government Employees, AFL-CIO, Council 214 and
Department of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 8 FLRA 425 (1982).
/2/ The Agency, in its Statement of Position, treated each disputed
sentence of this proposal separately. Accordingly, the Authority will
address the proposal in the same manner.
/3/ In finding this sentence to be within the duty to bargain, the
Authority makes no judgment as to its merits.
/4/ In finding this sentence to be within the duty to bargain, the
Authority makes no judgment as to its merits.
/5/ In deciding that the first sentence of Section 7a is within the
duty to bargain, the Authority makes no judgment as to its merits.
/6/ Section 7103 provides, in pertinent part:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
(9) "grievance" means any complaint--
(A) by any employee concerning any matter relating to the
employment of the employee;
(B) by any labor organization concerning any matter relating to
the employment of any employee; or
(C) by any employee, labor organization, or agency concerning--
(i) the effect or interpretation, or a claim of breach, of a
collective bargaining agreement; or
(ii) any claim violation, misinterpretation, or misapplication
of any law, rule, or regulation affecting conditions of
employment(.)