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29 FLRA NO. 36

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 797

     Union

     and

DEPARTMENT OF THE NAVY

     Agency

Case No. 0-NG-1220

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

The petition for review in this case is before the Authority because of an appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of four provisions of a locally negotiated agreement which were disapproved by the Agency head in the course of review under section 7114(c) of the Statute. 1 For the reasons that follow, we find Provision 1 to be nonnegotiable and Pro-visions 2, 3, and 4 to be negotiable.

II. Provision 1

Article 11 - Basic Workweek - Hours of Work

Section 4. The EMPLOYER agrees not to change the starting or quitting times of tours of duty without discharging the EMPLOYER'S obligation to the UNION as set forth in Article 8, Obligation to Negotiate, as appropriate. 2

A. Positions of the Parties

The Agency contends that Provision 1 conflicts with a Government-wide regulation, 5 C.F.R. 610.121(b), concerning the establishment of work schedules. The Agency argues that Provision 1 is outside the duty to bargain because it would prevent management from complying with section 610.121(b) unless it became aware of the need to change work schedules at least 15 days prior to rescheduling the affected employee.

The Union contends that Provision 1 is within the duty to bargain. The Union argues that section 610.121(b) concerns the establishment of specific tours of duty while Provision 1 concerns the negotiation of any changes to the starting and quitting times of already established tours of duty.

B. Analysis and Conclusion

We find that Provision 1 is outside the duty to bargain. It would, under statutory and regulatory authority, impermissibly restrict the Agency's right to revise employee work schedules.

In American Federation of Government Employees, Local 2181, AFL - CIO and Propulsion Laboratory U.S. Army Research and Technology Laboratories, 26 FLRA No. 74 (1987), we held that Provision 5 which required the agency to give employees at least 3 days' notice prior to changing their regularly scheduled hours of duty except in emergencies or unforeseen circumstances was outside the duty to bargain. See also National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986) (Proposal 1). Provision 1 is similar to the proposals found nonnegotiable in U.S. Army Research and Technology Laboratories and Scott Air Force Base. For the reasons stated in those decisions we conclude that Provision 1 is inconsistent with law and regulation and, therefore, outside the duty to bargain. 

III. Provision 2

Article 17 - Incentive Awards

Section 1. The EMPLOYER agrees that the UNION shall have one fully participating member on the Incentive Awards committee.

A. Positions of the Parties

The Agency contends that Provision 2 conflicts with section 7106 (a)(2)(A) and (B) of the Statute. The Agency argues that the Incentive Awards Committee performs a substantive role in determining whether employees' performance warrants an incentive award. Thus, based on Authority precedent, Provision 2 is outside the duty to bargain.

The Union contends that Provision 2 is within the duty to bargain. The Union argues that the Incentive Awards Committee is limited to monitoring the Incentive Awards Program, including reviewing and acting upon suggestions for awards from employees and making recommendations to the Commanding Officer. Further, to the extent that the Incentive Awards Committee may act upon awards of $2500.00 or less, only the chairperson of the committee, who is a management official, has the delegated authority to actually approve the award.

B. Analysis and Conclusion

We find that Provision 2 is within the duty to bargain.

In American Federation of Government Employees AFL - CIO, Local 1815 and Army Aviation Center Fort Rucker, Alabama, 28 FLRA No. 152 (1987), we held that Provision 9 required the Agency to select one employee to serve as the union representative on the incentive awards committee to be within the duty to bargain. In our decision, we rejected the agency's contention that union membership on the incentive awards committee interfered with its rights under section 7106(a) of the Statute. Slip op. at 10. Provision 2 in this case is substantially the same as Provision 9 in Army Aviation Center, Fort Rucker. Accordingly, for the reasons set forth in at decision, we find Provision 2 within the duty to bargain. 

IV. Provision 3

Article 21 - Details and Temporary Promotions

Section 2. The EMPLOYER may detail employees in emergencies or temporary situations when necessary to meet mission requirements. A detail will not be used to provide an unfair advantage to one employee over another. Normally, the EMPLOYER will request volunteers for formal details from the appropriate area. Details will be assigned on an equitable basis. If there are no volunteers, the EMPLOYER will assign the detail.

A. Positions of the Parties

The Agency contends that Provision 3 conflicts with section 7106 (a)(2)(A) and (B) of the Statute. The Agency argues that Provision 3 restricts management's discretion to determine the particular employee to be detailed because it limits the employee to be detailed to a volunteer or other employee based on equity.

The Union contends that Provision 3 is within the duty to bargain because it merely provides a procedure for selecting employees for details. The Union argues that the provision does not restrict management's discretion to establish the particular qualifications and skills needed to perform the duties on a detail or limit management's judgment in determining whether a particular employee meets those qualifications. Rather, the provision establishes a non-quantitative standard by which the Agency's exercise of its rights to assign employees and assign work could be evaluated. The Union acknowledges that Provision 3 establishes the normal procedure for detailing qualified employees and that, if these procedures do not meet the needs of the Agency, it can assign whomever it wishes to the detail. Union Response at 12.

B. Analysis and Conclusion

We find that Provision 3 is within the duty to bargain.

The disputed portion of Provision 3 requires the Agency to request volunteers for formal details from appropriate areas on an equitable basis. Provision 3 is similar to Provision 1 found negotiable in National Federation of Federal Employees, Local 1622 and Department of the Army,  Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1982). Provision 1 in that case required that details to positions affording qualifying experience or to those of a higher grade "be rotated among qualified employees to the fullest extent feasible." The Authority noted that the provision did "not in any way limit management's discretion to establish the particular qualifications and skills needed to perform the work ... or limit management's judgment in determining whether a particular employee meets those qualifications(.)" Rather, the provision "established a general, nonquantitative standard by which the Agency's exercise of its reserved authority to assign employees could be evaluated in a subsequent grievance." 16 FLRA at 579. The Authority concluded that the provision did not interfere with the exercise of a management right but established a procedure by which the right to assign work would be exercised and, therefore, was within the duty to bargain. See also National Treasury Employees Union, Chapter 153 and Department of the Treasury U.S. Customs Service, 21 FLRA No. 128 (1986), slip op. at 5.

Similarly, in the present case, Provision 3 establishes a procedure by which the Agency would detail employees. The record indicates that the provision refers only to employees who are qualified to perform the duties and responsibilities of the detail and only applies in situations in which management determines that more than one employee possesses the requisite qualifications. Union Response at 12. Moreover, as the Union acknowledges, nothing in the provision restricts management's discretion to determine: (1) the qualifications necessary to perform the duties of the detail; (2) whether the volunteer has the necessary qualifications; and (3) the appropriate areas from which volunteers could be requested. Union Response at 11-12. Provision 3 does not, in any way, limit management's discretion to establish the particular qualifications and skills needed to perform the work on the detail or limit management's judgment in determining whether a particular employee meets those qualifications.

We conclude that Provision 3 does not violate management's right to assign work or to assign employees under section 7106 (a) (2) (A) and (B) of the Statute but rather constitutes a procedure negotiable under section 7106(b) (2) of the Statute.

In holding Provision 3 to be within the duty to bargain we find that the Agency's reliance on American Federation of Government Employees, AFL - CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985) and National Federation of Federal Employees, Local 29 and Department of the Army, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 75 (1984), to be misplaced The provision found nonnegotiable in Bureau of Mint required that noncompetitive temporary promotions were to be distributed or rotated in 30-day increments, to the extent practicable, among eligible employees in the particular unit. The Authority held that because the provision required management to discontinue or reassign the work involved at the end of the 30-day period, regardless of whether it had been completed, it violated management's right to assign work under section 7106(a)(2)(B) of the Statute. 19 FLRA at 645. The proposal found nonnegotiable in Army Corps of Engineers, Kansas City District required that selection for details was to be based on the employees' retention standing. The Authority held that the proposal's requirement that selections for reassignment were to be based on seniority divested management of its discretion to designate which particular employee would be reassigned under section 7106 (a)(2)(A) of the Statute.

In contrast, Provision 3 does not restrict management's discretion to determine the particular employee to be detailed nor does it limit the Agency to selecting one of the volunteers for the detail. Rather, Provision 3 is intended to establish the normal procedure for detailing employees and, as acknowledged by the Union, if the volunteer procedure for assigning employees to details does not meet the needs of the Agency, the Agency is free to assign whomever it wishes to the detail. Union Response at 11.

V. Provision 4

Article 25 - Reductions in Force

Section 4. The EMPLOYER agrees to make every practicable effort to avoid or minimize adverse effects of reduction-in-force on unit employees by:

a. Adjusting the work force through reassignment or transfer of unit employees to available vacancies for which they are qualified.

b. Not filling a vacant position under recruitment until a decision is made as to whether an adversely affected employee can be placed in the position under RIF procedures. If it is determined that no adversely affected employee can be placed in the position, normal recruitment action will proceed.

c. Filling vacant position under recruitment and formally designated as trainee or development positions at the target level, per applicable RIF regulations.

A. Positions of the Parties

The Agency contends that Provision 4 violates its right under section 7106 (a)(2)(A) of the Statute to assign employees. The Agency argues that the provision requires management to take certain specified personnel actions prior to conducting a reduction in force (RIF). The Agency further argues that subsections (a) and (c) of Provision 4 prevent management from exercising its right to determine that a vacant position needs to be filled by requiring management to fill all available vacancies.

The Union contends that Provision 4 does not violate management's right but instead constitutes an appropriate arrangement for employees adversely affected by the Agency's exercise of its right to conduct a RIF.

B. Analysis and Conclusion

Provision 4 requires the Agency to reassign or transfer employees targeted for a RIF to available vacancies prior to separating them. The Agency has not substantiated its claim that Provision 4 interferes with its right under section 7106 to assign employees. However, the Authority has found that proposals regarding placement of employees in vacant positions in RIF situations relate to an agency's right under section 7106 (a)(2)(C) to make selections for appointments. See National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA No. 88 (1987) (Provision 5), slip op. at 8. By requiring placement of employees in vacant positions prior to separating them in a RIF, Provision 4 directly interferes with management's right to make selections for appointments.

It is clear that a RIF has a significant adverse impact on affected employees. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986) (Provision 2), slip op. at 10. The Union intends this provision to be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the Agency's decision to conduct a RIF.

We find that Provision 4 is intended as an arrangement for employees who would otherwise be separated from their positions because of a RIF. Although Provision 4 does not expressly reserve to management the right to decide to fill a position, it is clear from the record that the Union intended this provision to take effect after management determined to fill a vacancy. See Union Response at 16-17. We interpret Provision 4, consistent with the Union's stated intent, as leaving the Agency free to decide to fill or not to fill a vacant position and to determine the qualifications necessary to perform the work of the position.

Provision 4 is distinguishable from two recent Authority decisions. In National Federation of Federal Employees, Local 1450 and U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986), the provision found nonnegotiable required the Agency to fill vacancies in a RIF situation only with affected employees who met minimum X-118 standards. The Authority held that the provision violated management's right to choose among candidates from "any appropriate source" pursuant to section 7106(a)(2)(C)(ii) of the Statute because it precluded the Agency from determining the requisite qualifications for vacant positions beyond the minimum requirements of the X-118 standards. Slip op at 2-3. In National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA No. 105 (1986), the proposal found nonnegotiable required the Agency to offer positions which might become available in their original location to employees who were transferred, without personal cause, as a result of a RIF to a different duty station. The Authority held the proposal violated management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to make selections for vacancies under section 7106(a)(2)(B) because it precluded the Agency from deciding to fill or not to fill a position and from determining the qualifications necessary to perform the work of the position. Slip op. at 4.

As to whether the arrangement proposed in Provision 4 is appropriate within the meaning of section 7106(b)(3) of the Statute, we find that the portion of the provision which would prohibit the Agency from filling vacancies by recruitment until a decision is made whether an employee who would otherwise be separated can be placed in the position under RIF procedures is similar to Provision 32 determined to be an appropriate arrangement in International Plate Printers Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987), slip op. at 28-31. We found Provision 32 in that case, which similarly required the Agency to offer employees affected by a RIF vacant positions which the agency decided to fill, did not  excessively interfere with the Agency's rights under section 7106 to determine whether to fill a position, to determine whether an employee is qualified for that position or to fill positions from any appropriate source.

Provision 4 in this case provides that vacant positions are to be filled by qualified employees. The Agency is left with discretion to determine whether employees who would otherwise be separated are qualified to fill vacant positions and to hire from outside the Agency if none of the affected employees are qualified. See Union Response at 16-17. Moreover, based on the record, we interpret Provision 4 as being applicable only prior to the actual effectuation of the RIF. See Agency Statement of Position at 4; Union Response at 14. Thus, Requirement 4 of subchapter 1-4, chapter 335 of the Federal Personnel Manual does not apply. See National Treasury Employees Union and Department of Energy, 24 FLRA No. 52 (1986). Accordingly, we find that Provision 4 does not excessively interfere with the Agency's rights and is an appropriate arrangement within the meaning of section 7106(b)(3) .

VI. Order

The Agency is ordered to rescind its disapproval of Provisions 2, 3 and 4. 3 The petition for review as to Provision 1 is dismissed.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 In its response to the Agency's statement of position the Union withdrew certain language concerning the existing past practices of shift rotation from its negotiability appeal. That language is not considered in this decision.

Footnote 2 Article 8, section 2 of the parties' collective bargaining agreement essentially provides that the Union will be advised of any changes to existing personnel policies, practices, and matters affecting conditions of employment at least 15 days prior to implementation.

Footnote 3 In finding these matters to be negotiable, we in no way express any opinion as to their merits.

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