---

 29 FLRA NO. 117

FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON

                        Union

      and

DEPARTMENT OF THE NAVY
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA

                        Agency

Case Nos. 0-NG-1256
          0-NG-1317

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Cases

These cases are before the Authority because of negotiability appeals filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concern the negotiability of four proposals. 1 Since both cases involve the same parties, arise out of the same negotiations over changes in an Agency instruction concerning on-call employment, and present similar issues concerning the negotiability of identical proposals, 2 we have consolidated them for decision.

For the reasons discussed below, the Authority finds that Proposals 1 (sentences 1 and 3), 2 and 3 are nonnegotiable. We also conclude that the second sentence of Proposal 1 is within the duty to bargain. The Authority Members have reached differing conclusions and opinions concerning Proposal 4. The Decision and Order on Proposal 4 and Member Frazier's concurring and dissenting opinion immediately follow this decision.

II. Proposal 1

9. SHIPYARD RESPONSIBILITIES

a. Requests for on-call recruitment will have the approval of the cognizant department head. The SF-52 will be annotated to reflect that this is an on-call appointment. It will further state that recruitment is not in excess of 5 percent of that occupation or trade.

A. Positions of the Parties

The Agency asserts that this proposal expressly requires that a specific employee, the "cognizant department head" will approve on-call recruitment requests. 3 The Agency contends that this aspect of the proposal is inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute. Moreover, since the proposal concerns non-bargaining unit employees, namely supervisors, it is outside the duty to bargain. The Agency also contends that the third sentence of the proposal regarding a cap of 5 percent for on-call employment in each occupation directly interferes with its right to determine the numbers and types of employees under section 7106(b)(1) and prevents it from determining the personnel by which the Agency conducts its operations in violation of section 7106(a)(2)(B).

The Union acknowledges that the first sentence of the proposal is intended to require a specific employee, the cognizant department head, to determine the need for the recruitment of on-call employees because a department head would be the best person to make the determination. Further, it asserts that the third sentence of the proposal reflects the goal of the pertinent Agency Instruction that on-call employees be provided with "an opportunity to work for a total of at least six months." Reply Brief at 2. In response to the Agency's argument concerning section 7106(b)(1), the Union states that while this agency instruction provides that on-call recruitment should be limited to 20 percent of the workforce, it does not prohibit a 5 percent cap which, in the Union's opinion, would greatly reduce the adverse impact of the utilization of on-call employment on the Agency and its employees.

B. Analysis and Conclusion

We conclude that the first and third sentences of this proposal are outside the duty to bargain because they would interfere with the Agency's rights, respectively, under section 7106(a)(2)(B) of the Statute to assign work and under section 7106(b)(1) of the Statute to determine the numbers and types of its employees. The second sentence of the proposal, which merely provides that notation of an on-call appointment will be made on an employee's SF-52, is not in dispute.

As to the first sentence, we have consistently held that management's right to assign work under section 7106(a)(2)(B) encompasses the right to assign specific duties to particular individuals, including management officials, and that provisions which interfere with this right are nonnegotiable. American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA No. 14 (1987)(provision 6), petition for review filed sub nom. U.S. Army Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, U.S. Army Information Systems Command-Redstone Arsenal Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987); National Association of Government Employees AFL-CIO, Local R14-87 and Department of the Army and the Air Force, Kansas Army National Guard, 19 FLRA 381 (1985).

In this case, the proposal requires the department head to approve on-call recruitment and to ensure that such recruitment is within a 5 percent cap of the total number of employees in a particular trade. The proposal would also, as expressly stated by the Union on page 1 of its Reply Brief, assign specific duties to a particular management official, namely the cognizant department head. We find, therefore, that this sentence is outside the duty to bargain for the reasons cited in Redstone Arsenal and Kansas Army National Guard. We also note, however, that, as in Redstone Arsenal, this defect could be remedied by removing the requirement that it be the department head who must undertake these duties.

Finally, we find that the third sentence of this proposal essentially establishes a percentage cap on the total number of on-call employees which the Agency may employ in the bargaining unit. Thus, the proposal concerns both the number and types of positions the Agency may fill with on-call employees. The Authority previously has held that proposals requiring an agency to fill a certain percentage of positions with certain types of employees are inconsistent with the agency's authority under section 7106(a)(2)(A) of the Statute to hire and assign employees. See, for example, Immigration and Naturalization Service, Eastern Regional Office (Burlington, Vermont), 18 FLRA 875, 883 1985) (Proposals 9 and 10) . Accordingly, the third sentence of this proposal is outside the duty to bargain under section 7106(a)(2)(A).

III. Proposal 2

9. SHIPYARD RESPONSIBILITIES

C. The shipyard will normally fill year-round positions by VRA appointments, reinstatements, reassignments, merit promotions, and appointments to formal training programs before converting on-call employees to year-round employment.

A. Positions of the Parties

The Agency contends that this proposal: 1) directly interferes with its right under section 7106(a)(2)(C) of the Statute to fill positions from any appropriate source; and 2) violates a Government-wide regulation, namely, Federal Personnel Manual chapter 335, subchapter 1-4, Requirement 4. Essentially, the Union argues that the word "normally" allows the Agency to select from any appropriate source. Moreover, it argues that the proposal does not "excessively interfere" with management's right to hire or select because the final decision to hire rests with the Agency.

B. Analysis and Conclusion

We conclude that the proposal is outside the duty to bargain.

The Union's argument that management has the final word in selection is not determinative. More to the point is the fact that the proposal prescribes the sources from which the Agency could choose its year-round employees. That is, the Agency must not "normally" fill year-round vacancies with on-call employees until it has exhausted various other sources including Veterans Readjustment Act (VRA) employees, employees who have been reinstated, and reassigned employees. Because this proposal dictates sources for selection, it directly interferes with management's right to make selections for positions from any appropriate source and is not a negotiable procedure. By prescribing the sources from which management will make selections to fill bargaining unit vacancies this proposal directly interferes with management's rights under section 7106(a)(2)(C). See, for example, Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987) (proposal 5), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987).

Moreover, the Union's contention that the term "normally" introduces an element of discretion into the proposal because the Agency still retains the right to select must be rejected (Reply Brief at 2). In our view, this qualifying language does not diminish the effect of the provision--a substantive limitation on management's right to select from appropriate sources in filling a vacancy. See, for example, National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 26 FLRA No. 96 (1987). It would directly affect management's selection process by specifically listing and ranking sources for selection. It would subject management's decision as to whether a selection was made "normally" to arbitral review and therefore to the possibility of arbitrators substituting their judgments for that of management. See American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70, 79-80 (1981), affirmed sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d. 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983).

Furthermore, the Union has not shown how management's selection of a candidate for a vacancy in itself would adversely affect the employees it represents. In the absence of anything in the record which would demonstrate how bargaining unit employees are adversely affected by management's decision to select a particular candidate for a vacancy, we need not determine whether this proposal is an "appropriate arrangement" within the meaning of section 7106(b)(3). See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987) (Section 3.K.), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987). Thus, for the reasons stated above, this proposal is outside the Agency's duty to bargain. In view of our determination that this proposal is inconsistent with management's right to select, we find it unnecessary to consider the Agency's other contentions pertaining to the negotiability of this proposal. However, we note that 5 C.F.R. 340.401(b) provides that on-call employees will move into an agency's year-round workforce as vacancies occur.

IV. Proposal 3

11. IN SERVICE PLACEMENT

On-call employees are entitled to participate in Charleston Naval Shipyards Merit Promotion Program after completion of the Probationary Period if rated as satisfactory (Fully Successful). The on-call employee may not be rated or ranked for promotions above the Journeyman level until they are converted to year-round employment. An employee selected for an on-call position below the Journeyman level may not be promoted to the Journeyman level in the same trade through the Merit Promotion process (remaining as on-call) until all year-round employees rated as highly qualified have been promoted off the current register.

A. Positions of the Parties

The Agency asserts that this proposal is nonnegotiable because it:

1) establishes a qualification requirement for promotion in violation of section 7106(a)(2)(A) and (B) of the Statute;

2) interferes with management's right to select from any appropriate source under section 7106(a)(2)(C); and

3) contravenes a Government-wide regulation, namely FPM chapter 335, subchapter 1-4, Requirement 4.

The Union disputes the Agency's contentions and asserts that this proposal is an appropriate arrangement for employees adversely affected by the on-call program.

B. Analysis and Conclusion

We conclude that the proposal directly and excessively interferes with the Agency's right to make selections under section 7106(a)(2)(C) of the Statute and is, therefore, outside the duty to bargain.

The proposal would preclude the Agency from expanding the area of consideration for particular vacancies in the bargaining unit until certain specified prerequisites were met. Specifically, the proposal would preclude 1) the rating or ranking of an on-call employee for a promotion above the Journeyman level until he or she is converted to a year-round employee; and 2) the selection of an on-call employee to fill a Journeyman level position until all highly qualified year-round employees have been promoted. Thus, the proposal specifically limits management's discretion to rank on-call employees until they have been converted to full-time and its discretion to select a particular class of employees. It, therefore, directly interferes with management's right under section 7106(a)(2)(C) by prescribing substantive criteria which management must apply in selecting employees to fill vacancies. Inasmuch as its requirements are substantive in nature even though procedural in form, it is not a negotiable procedure under section 7106(b)(2). See 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. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

Moreover, we also find that this proposal is not an "appropriate" arrangement within the meaning of section 7106(b)(3) of the Statute. Although the Union contends that this proposal is meant to be an appropriate arrangement under section 7106(b)(3), there is nothing in the record to demonstrate how the Agency's rating or selection of an on-call employee for promotion adversely affects full time employees. In our view, as discussed in section III.B of this decision, management's rating or selection of candidates for promotion does not, by itself, adversely affect unit employees. See, for example, Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985). To establish that a proposal is an appropriate arrangement a Union must identify the management right or rights claimed to produce the alleged adverse effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). The Union has not done so in this case and we are unable to identify any adverse effect on unit employees from the record. We need not determine, therefore, whether this proposal is an "appropriate" arrangement since it does not qualify for consideration under section 7106(b)(3). Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987) (Section 3.K.), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987). Thus, for the reasons stated above, Proposal 3 is outside the Agency's duty to bargain. In view of our decision that this proposal is inconsistent with management's right to select, we find it unnecessary to consider the Agency's other contentions concerning the nonnegotiability of the proposal. Again we note that 5 C.F.R. 401(b) provides that on-call employees will move into an agency's year-round work force as vacancies occur.

V. Order

The Union's petitions for review as to Proposals 1, 2 and 3 are dismissed.

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER ON PROPOSAL 4

I. Proposal 4

12. REDUCTION-IN-FORCE

f. Full time employees affected by RIF action will be offered on-call employee status and will be called back as on-call employees and will be offered conversion to year-round employment before any on-call employee who has not been a full time employee in that occupation or grade. Full time employees placed in an on-call employment status will be converted to full time employment in order of seniority (SCD).

A. Positions of the Parties

The Agency asserts that the proposal is outside its duty to bargain because it interferes with management's rights to 1) layoff employees under section 7106; 2) assign employees; and 3) select from any appropriate source under section 7106(a)(2)(C). It also contends that this proposal contravenes FPM chapter 335, subchapter 1-4, Requirement 4. Finally, it argues that the proposal is not a procedure nor an appropriate arrangement under section 7106(b)(2) or (3).

The Union contends that the proposal is consistent with the Statute and Government-wide regulation. It argues that the proposal is an "appropriate arrangement" for full time employees affected by the on-call program.

B. Analysis and Conclusion

We conclude that the Union's petition for review of this proposal must be dismissed because there is insufficient information in the record to enable us to make a negotiability ruling.

The proposal concerns employees who have been affected by reduction-in-force (RIF). It would require the Agency to select these affected employees for various positions in reference to others. By requiring the Agency to select certain employees, the proposal directly interferes with the Agency's right to select under section 7106(a)(2)(C) of the Statute. See, for example, National Association of Government Employees. Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Since the proposal directly interferes with the Agency's right to select, it may be found to be negotiable as an appropriate arrangement under section 7106(b)(3) only. Id.

The standard applied by the Authority in determining whether a proposal constitutes an appropriate arrangement is whether the proposal excessively interferes with the exercise of a management right. Id. In this case, it is clear that the proposal is intended by the Union to be an arrangement for adversely affected employees. Further, although the Union states that the proposal is an arrangement for employees adversely affected by the establishment of the on-call program, similar proposals in other cases have been analyzed as arrangements for employees adversely affected by the Agency's decision to conduct a reduction-in-force. See, for example, Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306 (1987) (Proposals 7 and 8).

But for the additional problems resulting from the particular wording of this proposal which are discussed below, Proposal 4 would be analyzed as an appropriate arrangement for employees adversely affected by the Agency's decision to conduct a reduction-in-force. Further, if the proposal were found to constitute an appropriate arrangement, we would, for the reasons expressed in our separate opinions concerning Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA No. 40 (1987), reject the Agency's contention that the proposal is nonnegotiable because it is inconsistent with FPM chapter 335, subchapter 1-4, Requirement 4.

The present proposal, however, is unlike proposals in previous cases concerning appropriate arrangements for employees adversely affected by a reduction-in-force. The proposal in this case provides for former full-time employees to be (1) given preference over former on-call employees for selection to on-call and full-time positions, and (2) converted to full-time status in order of seniority by service computation date (SCD). As such, other regulatory provisions are also relevant to this discussion.

Employees who are separated through a RIF from a position in the competitive service are placed on a re-employment priority list. 5 C.F.R. 351.1001. The list includes full-time and other-than-full-time employees in tenure groups I (career employees) and II (career-conditional employees). On-call employees are other-than-full-time. See generally Federal Personnel Manual chapter 342, subchapter 3. When a qualified employee is available on an agency's reemployment priority list for a position in the applicable commuting area, an agency must, with exceptions not relevant here, select an employee on the list for the vacancy rather than filling it by a new appointment or a transfer. 5 C.F.R. 330.201(a).

When selecting an employee on the list, the agency must give preference to (1) tenure group I employees over tenure group II, and (2) preference eligibles over nonpreference eligibles. 5 C.F.R. 330.201(c). Preference eligibles generally include certain veterans and relatives. See 5 U.S.C. 2108. Within a subgroup, however, employees may be selected without regard to their order of retention. 5 C.F.R. 330.201(c). Further, an agency considers full-time employees on the list only for full-time positions and other-than-full-time employees for other-than-full-time positions unless there are (1) no other-than-full-time employees on the list who are qualified and available for an other-than-full-time position, or (2) no full-time employees on the list who are qualified and available for a full-time position. 5 C.F.R. 330.201(f).

The first sentence of the Union's proposal provides that full-time employees affected by a RIF will be "called back as on-call employees and will be offered conversion to year-round employment before any on-call employee who has not been a full-time employee in that occupational series or grade." The precise meaning of this sentence is unclear and is not explained in the Union's statement of position or response. In particular, it is unclear whether the proviso "before any on-call employee who has not been a full-time employee in that occupational series or grade" is intended to modify both the portion of the proposal concerning conversion to year-round employment and the portion concerning call-back to on-call employment. To the extent that the proviso is intended to modify the portion concerning call-back to on-call employment, the sentence is nonnegotiable because it would require that a full-time employee be given preference for an other-than-full-time position even when there was an other-than-full-time employee on the reemployment priority list. As noted above, this is contrary to 5 C.F.R. 330.201(f).

Similarly, when read as a whole, the proposal requires that former full-time employees be converted from on-call employment to full-time employment (1) before any on-call employee who was not previously a full-time employee, and (2) in order of seniority as determined by SCD. As such, to the extent that previous employment status and service computation date are intended to be the sole criteria by which the Agency determines which employees will be selected from the reemployment priority list for full-time vacancies, the proposal could prevent the Agency from complying with its responsibilities under 5 C.F.R. 330.201(c) to give preference to preference eligibles as well as employees in tenure group I. Accordingly, the proposal would be nonnegotiable on that basis as well.

On the other hand, if the Union intends the first sentence of the proposal to mean only that former full-time employees will be (1) offered on-call positions in accordance with applicable regulations, and (2) offered full-time positions before former on-call employees, the proposal would be negotiable. As noted above, an agency may offer a full-time employee on a reemployment priority list an other-than-full-time position if there are no other-than-full-time employees on the list. Therefore, the Agency could under certain circumstances offer former full-time employees on-call positions. Similarly, acceptance by a former full-time employee of an other-than-full-time position would not result in deletion of that employee from the list. 5 C.F.R. 351.1003, 351.1004. Further, the Agency could not consider a former on-call employee for a full-time position as long as there was a qualified and available former full-time employee on the list--even one who had accepted an on-call position. As a result, a requirement that the Agency offer (convert) a former full-time employee to a full-time position would not be inconsistent with applicable regulations.

In addition, if the Union intends the proposal to mean that the conversion of former full-time employees to full-time positions would be controlled by seniority within subgroups (preference eligibles and nonpreference eligibles), the proposal would be negotiable. This is because under 5 C.F.R. 303.201(c), the Agency "may select persons in a subgroup without regard to order of retention standing within the subgroup." That is, the Agency has the authority --discretion--to select any qualified and available employee within the subgroup. That discretion is negotiable. See Library of Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir. 1983).

The parties bear the burden of creating a record on which the Authority can make a negotiability determination. NFFE Local 1176 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). In this case, the Union has not met its burden of creating a record containing sufficient information concerning Proposal 4 to enable us to make a negotiability determination. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA No. 73 (1987) (Proposal 30). Accordingly, the petition for review of Proposal 4 will be dismissed. In any subsequent bilateral discussions over this matter, we encourage the Union to clarify the intent and wording of this proposal so as to facilitate bargaining without further resort to litigation.

II. Order

The Union's petition for review of Proposal 4 is dismissed.

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Member Frazier, concurring and dissenting as to Proposal 4:

Although I concur in my colleagues' decision to dismiss the Union's petition for review of Proposal 4, for the reasons more fully stated in my separate opinion on Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA No. 40 (1987), I must respectfully dissent from their rejection of the Agency's contention regarding the inconsistency of Proposal 4 with Requirement 4 of the Federal Personnel Manual chapter 335, subchapter 1-4.

Issued, Washington, D.C., November 6, 1987

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: During the pendency of the case, the Agency withdrew its allegation of nonnegotiability in regard to another proposal (paragraph 7 of the proposals in Case No. 0-NG-1256). Consequently, we will not consider that proposal in this decision.

Footnote 2: Proposal 1 concerning Shipyard Responsibilities is common to both cases.

Footnote 3: According to chapter 340, subchapter 3 of the Federal Personnel Manual (FPM), an on-call employee serves under a permanent appointment (tenure group I or II) and works on an as needed basis during weeks of heavy workload with an expected cumulative service period of at least 6 months in pay, status each year. We also note that paragraph 3-10 of this subchapter provides that an on-call employee's movement to a year round position is not subject to competition unless required by the procedures specified in FPM Chapter 335 concerning promotion and internal placement.

---