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 30 FLRA NO. 124
 30 FLRA 1144

    29 JAN 1988


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 257, AFL-CIO,
NATIONAL ASSOCIATION OF GOVERNMENT
INSPECTORS AND QUALITY ASSURANCE
PERSONNEL, LOCAL 4004, NAVAL AVIATION
DEPOT, PENSACOLA, FLORIDA

              Union

      and

DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
PENSACOLA, FLORIDA

              Agency

Case No. O-NG-1427

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). It concerns
the negotiability of two provisions of a negotiated agreement
disapproved by the head of the Agency under section 7114(c) of
the Statute. 1 For the reasons which follow, we find the
first provision, which concerns light duty assignments, to be a
negotiable procedure under section 7106(b)(2) of the Statute. We
find the second provision, which concerns the filing of vacant
positions with employees who otherwise would be separated from
employment as a result of a reduction-in-force (RIF), to be an
appropriate arrangement under section 7106(b)(3) of the
Statute.

II. Provision 1

     Article 11 Section 11.03

     The Employer agrees if there is work available, to place an
employee who has been returned to the shop by Naval Medical
Authority for limited duty or light duty on a type of work that
will not aggravate his/her illness or injury.

A. Positions of the Parties

     The Agency contends that the provision interferes with its
right to assign employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. The Agency claims that the
provision substitutes the judgment of the Naval Medical Authority
for the judgment of line Agency management in determining the
assignment of work. Further, the Agency argues that this
provision is not an "appropriate arrangement" within the meaning
of section 7106(b)(3) of the Statute.

     The Union asserts that the provision gives the Agency
discretion to assign an employee to light duty "if there is work
available," thereby making the provision different from proposals
which required agency management to assign an affected employee
to a light duty assignment. The Union claims that the intent of
this provision is to make reasonable accommodations for temporary
incapacity of employees. The Union also claims that it is an
"appropriate arrangement" designed to lessen the likelihood that
an employee will lose his/her job as a result of a temporary
incapacity or to force employees out of work on workers'
compensation.

B. Analysis and Conclusion

     We find Provision 1 to be a negotiable procedure under
section 7106(b)(2) by which management will assign work under
section 7106(a)(2)(B). 

     We recently reexamined the relationship between management's
right to assign work under section 7106(a)(2)(B) and employee's
health and safety. American Federation of Government Employees,
AFL - CIO, Local 1625 and Department of the Navy, Naval Air
Station, Oceana, Virginia, 30  FLRA  No. 122 (1988) (Provision
6). We stated that procedures by which an agency exercises its
right to assign work may include restrictions on particular
assignments or duties imposed by the agency's own medical
authorities. We determined that the right to assign work does not
entitle one portion of an agency to assign duties to an employee
which are inconsistent with those duties which are found by
another portion of the agency to constitute a risk to the
employee's health and safety. Thus, we held that an agency can be
contractually bound to observe restrictions on the assignment of
duties to an employees which are imposed by an agency's own
medical authorities.

     Consequently, we stated in Naval Air Station Oceana that we
will examine proposals requiring an agency to assign--or not to
assign--particular duties for health and safety reasons in order
to determine whether the proposals (1) require the agency to
observe restrictions which have been imposed by the agency's own
medical authorities, or (2) impose restrictions independent of
and/or inconsistent with those of the agency's own medical
authorities. We stated further that proposals which require the
agency to assign work consistent with restrictions imposed by its
own medical authorities would be found to be negotiable
procedures under section 7106(b)(2). Proposals which impose
restrictions which are independent of and/or inconsistent with
restrictions imposed by the agency's own medical authorities
would be found to violate the agency's right to assign work under
section 7106(a)(2)(B).

     Applying this analytical framework to Provision 1, we find
that the provision requires the Agency to assign duties
consistent with restrictions imposed by the Agency's own medical
authorities. As previously mentioned, we found in Naval Air
Station, Oceana that the right to assign work does not entitle
one portion of an agency to assign duties to an employee which
are inconsistent with those which are found by another portion of
the agency to constitute a risk to the employee's health and
safety. Since this provision merely obligates one portion of the
Agency to assign duties in accordance with restrictions on duty
assignments imposed by the Agency's own medical authorities, the
provision is a negotiable procedure under section 7106(b)(2). See
also American Federation of Government Employees, AFL - CIO,
Local  2354 and Department of the Air Force, HQ 90th
Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 
FLRA  No. 123 (1988) (Provision 3).

     This provision is distinguishable from the provision at
issue in Naval Air Station Oceana. We found that Provision 6
excessively interfered with management's right to assign work.
The provision there required management to provide employees with
light duty assignments even where, in the judgment of the
agency's own medical authorities, the employee could perform his
or her regular work assignments.

     In view of our conclusion that Provision 1 is a negotiable
procedure, it is unnecessary for us to address the Union's
additional arguments concerning this provision.

III. Provision 2

     Article 25, Section 25.02

     In the event of a reduction-in-force within the Naval
Aviation Depot, existing vacancies will be utilized to the
maximum extent possible to place employees in continuing
positions, who otherwise would be separated form the service. All
reduction-in-force actions will be carried out in strict
compliance with applicable laws and regulations.

A. Positions of the Parties

     The Agency contends that the provision is in all material
respects the same as the proposal in National Federation of
Federal Employees, Local 29 and U.S. Arm Corps of Engineers,
Kansas City District, Kansas City, Missouri, 21 FLRA  630 (1986)
which the Authority found to be an appropriate arrangement under
the Statute but inconsistent with a Government-wide
regulation--FPM chapter 335, subchapter 1-4, requirement 4.

     The Union contends that the provision does not violate FPM
Chapter 335 because it merely requires that prior to a RIF,
management use vacancies when possible to avoid separating
employees. The Union also contends that the provision is
distinguishable from Corps of Engineers because it does not
mandate noncompetitive repromotions to employees who have been
downgraded. Finally, it contends that the provision is an
appropriate arrangement.

B. Analysis and Conclusion

     Provision 2 is within the duty to bargain. Although it
conflicts with management's right to make selections for
appointments in filling positions under section 7106(a)(2)(C) of
the Statute, it constitutes an appropriate arrangement under
section 7106(b)(3). Also, it is not inconsistent with
Government-wide regulation under section 7117(a)(1).

     The disputed sentence of Provision 2 requires management to
place employees, who otherwise would be separated in a RIF, in
existing vacancies "to the maximum extent possible." According to
the Union, this provision would apply only after management
decided to fill a vacant position and then requires management to
place an employee in that position only if the employee is
qualified for the position. Reply Brief at 20-21.

     Proposals which limit an agency's discretion regarding the
placement of employees in vacant positions in RIF situations
interfere with the agency's right to make selections for
appointments under section 7106(a)(2)(C). See, for example,
American Federation of Government Employees, AFL - CIO, Local 987
and Headquarters, Warner Robins Air Force Base Logistics Command,
Robins Air Force Base, Georgia, 8 FLRA  667 (1982) (Proposal 3),
reversed as to other matters sub nom. United States Air Force v.
Federal Labor Relations Authority, 727 F.2d 1502 (llth Cir.
1984). On the other hand, proposals which allow an agency to
retain full discretion as to matters involved in the exercise of
management rights do not interfere with the right. See, for
example, American Federation of Government Employees, AFL - CIO,
Local 1692 and Department of the Air Force, Mather Air Force
Base, California, 8 FLRA  194 (1982) (Provision 2).

     Provision 2 requires the Agency to place employees in vacant
positions "to the maximum extent possible." The use of the term
"to the maximum extent possible" does not limit the effect of
this provision. Rather, the inclusion of such language would be
to require the placement of employees in vacant positions
whenever such action is possible. By requiring the Agency to
place employees in vacant positions this provision directly
interferes with management's right to make selections for
appointment under section 7106(a)(2)(C). See Naval Air Station
Oceana, 30  FLRA  No. 122 (1988) (Provision 5) ; National
Treasury Employees Union and Department of Health and Human
Services, Region X, 25 FLRA  1041, 1047 (1987) (Proposal 5).
Compare American Federation of Government Employees, AFL
- CIO, International Council of Marshals Service Locals and U.S.
Marshals Service, 15 FLRA  333 (1984) (Proposal 2), where the
Authority found that a proposal concerning the use of vacancies
in a RIF was negotiable because the proposal was purely hortatory
with American Federation of Government Employees, AFL - CIO,
Local 3443 and Federal Home Loan Bank Board, New York District
Office, 13 FLRA  446 (1983) (Proposal 3), where the Authority
found that the insertion of the phrase "to the extent
practicable" did not remove a limitation imposed by a proposal on
the exercise of management's rights. See also American Federation
of Government Employees, AFL - CIO, National Immigration and
Naturalization Service Council and U.S. Immigration and
Naturalization Service, 27 FLRA  467 480-81 (1987) (Provision
6).

     Because this provision conflicts with management's right to
select, it is outside the duty to bargain unless it constitutes
an appropriate arrangement under section 7106(b)(3). We find that
Provision 2 is an arrangement to mitigate the adverse
effects--demotion or release from employment--on employees
resulting from the exercise of management's right to make
selections for appointments under section 7106(a)(2)(C). It is
clear from the record that the provision is intended to preserve
management's discretion to determine whether to fill vacant
positions at all and, if so, to fill them with employees
qualified to do the work of those positions. Reply Brief at
20-21.

     This provision seeks to minimize the number of employees who
would be separated in a RIF. The provision does not absolutely
require the Agency to place employees in vacancies. Rather, the
provision preserves management's right to fill or not to fill a
vacant position and further, preserves management's right to
determine the qualifications necessary to accomplish the work of
a position and whether a particular employee possesses those
qualifications. Consequently, we find that the degree of
interference with the Agency's right to assign work is limited.
On the other hand, the effect of separation in a RIF on affected
employees is severe. Balancing the respective interests of
management and employees, considering the relatively limited
impact on management's rights and the significant potential
benefit to employees, we find that the provision does not
excessively interfere with management's rights. It is, therefore,
an appropriate arrangement within the meaning of section
7106(b)(3) and is within the duty to bargain. See also Naval Air
Station, Oceana, (Provision 5); Department of Health and Human
Services, Region X, (Proposal 5).

     We turn now to the question of whether Provision 2 is
inconsistent with FPM chapter 335, subchapter 1-4, requirement 4,
as the Agency claims. Requirement 4, which provides for an
agency's right to fill positions from any appropriate source,
applies only to positions filled through competitive procedures.
Competitive procedures do not apply to position changes permitted
by RIF regulations. FPM chapter 335, subchapter 1-5(b)(2). We
find that requirement 4 is not applicable to the filling of
vacant positions covered by the provision since such position
changes would occur before the effective date of a RIF. See
National Treasury Employees Union and Department of the Treasury,
24 FLRA  479, 482 (1986).

IV. Order

     The Agency shall rescind its disapproval of Provisions 1 and
2. 2

     Issued, Washington, D.C. January 29, 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 
FOOTNOTES

 Footnote 1 We will not consider three additional provisions 
contained in the petition for review. The Union withdrew its
appeal of   two provisions: Article 4, Section 4.03 and Article
8, Section 8.04.   The Agency withdrew its allegation of
nonnegotiability of Article 17,   Section 17.02.       Pursuant
to section 2424.8 of the Authority's Rules and Regulations, we
granted the Agency's request to supplement its statement of
position to   address Union arguments, raised for the first time
in the Union's   Response, that the provisions in dispute are
negotiable as appropriate   arrangements under section
7106(b)(3). We granted permission to the   Union to respond to
the Agency's supplemental submission and the Union   filed a
response.

     Footnote 2 In finding these provisions to be negotiable, we
make   no judgments as their respective merits.

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