United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
________________________________________
)
In the Matter of )
)
DEPARTMENT OF THE NAVY )
NORFOLK AVIATION DEPOT )
NORFOLK, VIRGINIA )
)
and ) Case No. 92 FSIP 116
)
COUNCIL 257, UNIT 3, NATIONAL )
ASSOCIATION OF GOVERNMENT )
INSPECTORS AND QUALITY ASSURANCE )
PERSONNEL )
________________________________________)
DECISION AND ORDER
Council 257, Unit 3, National A~association of Government
inspectors and Quality Assurance Personnel (Union) filed a request
for assistance with the Federal Service Impasses Panel (Panel) to
consider a negotiation impasse under the Federal Service Labor-
Management Relations Statute (Statute), 5 U.S.C. S 7119, between it
and the Department of the Navy, Norfolk Aviation Depot, Norfolk,
Virginia (Employer).
After investigation of the request for assistance, the Panel
determined that the dispute, which arose during bargaining over the
impact and implementation of a reorganization at the Depot effective October 1, 1991, should be resolved through written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the dispute. Submissions
were made pursuant to these procedures, and the Panel has now considered the entire record.
BACKGROUND
The Employer's primary mission is to maintain aircraft,
engines, and their components and accessories, and to provide
engineering, technical, and professional services in support of
rework of specific aircraft and aircraft components. The Union
represents approximately 100 quality assurance specialist who
ensure that the Depot's services conform with the Navy's established requirements. The parties' collective-bargaining agreement expires in February 1993.
As a result of the reorganization a separate Quality Assurance
Department was abolished. Bargaining-unit employees now are directly assigned to one of six or seven departments responsible
for providing services at the Depot.
ISSUE AT IMPASSE
The parties are at impasse over the type of procedure to be
implemented for the assignment of details to bargaining-unit
employees.
1. The Union's Position
The Union proposes that the following wording be added as
Article XV, Section 5, of the parties' negotiated agreement:
The Union and Employer agree that the right to assign
employees is reserved to management and encompasses
management's discretion to establish the qualifications
necessary to perform the duties generally assigned to the
position and to determine whether an employee meets those
qualifications. Therefore, when management determines
that only one employee possesses the requisite qualifications to do the work required of the position,
management reserves the right to assign the work to that
particular employee. Where, however, in management's
judgment, two or more employees are equally qualified and
capable of performing the work, the selection of one of
the employees to perform the work is consistent with
management's exercise of discretion. In consideration of
the above, the following procedures will normally be used
in filling assignments when management elects to fill the
assignment through detail.
1. The Employer will identify the qualifications for the
position to be filled and all personnel who meet those
qualifications.
2. Normally, the selection will be the senior (using
Service computation Date) qualified volunteer.
3. If there is no qualified volunteer, normally, the
selection will be the junior (using SCD) qualified
employee.
If management chooses not to use the above normal
procedure, the Union will be provided an explanation as
to why the normal procedure will not fulfill management's
need.
The recent reorganization has caused a major change in the
area of details. Prior to the reorganization, "the Quality Assurance Department structure was such that details were not necessary. no Now, however, because interdepartment details of specialists are required to handle workload fluctuations, "procedures are necessary to ensure fair and equitable treatment of
all personnel." This was confirmed recently when two employees
were detailed by the head of one of the departments, and no selection process guaranteeing such treatment was used. Its proposed procedure does not violate management's rights, and applies to a type of detail "not covered by the contract, i.e. ,
one to an equivalent-level task.
In implementing the procedure, "the Union does not expect the
command to solicit every department for every detail. no Thus, if
a department has the qualified resources to fill the detail, "there
is no need, and the Union proposal has no requirement, to solicit
other departments for personnel." In such circumstances, however,
management would be required to use the procedure within a department if there were more than one qualified employee for the
detail. There also is no requirement under its proposal for a department head to support a detail if, for whatever reason, he or
she determines not to do so. In short, the proposal does not inhibit management from accomplishing its mission, but justifiably
prevents it from abusing or treating employees unfairly merely for
the sake of becoming "a more competitive commodity in the marketplace. no
2. The Employer's Position
In the alternative, the Employer proposes that the Panel order
the parties to abide by the wording in Article XV of their current
collective-bargaining agreement, or the following wording:
The parties agree that management has the right to Assign
work in general. Management is obligated to use its
discretion and exercise prudent judgment in effectively
matching the skills, talents, knowledge, abilities, and
personal characteristics of employees to specific job
tasks so as to maximize the effectiveness and efficiency
of Depot operations. Management may also consider
soliciting for volunteers to detail an employee to
perform a job task. However, management is not obligated
to use a volunteer. If management desires to use a
volunteer, the following procedures may be used:
1. Give first consideration to the senior volunteer
using SCD.
2. If there is no volunteer, give first consideration
to the most junior employee using SCD.
NOTE:
* This procedure may be applied within the department or
across departmental lines as the particular circumstances
dictate.
* While the parties understand that there is no regulatory
requirement that an employee be X-118 qualified to
perform on a detail, the parties also acknowledge that
there may be many instances when management might want to
take such considerations into account depending on the
nature and criticality of the detail assignment to be
performed.
* Management will provide the Union with an explanation of
its actions regarding details upon request. Such
explanation will be handled informally at the low[est]
possible level.
As a preliminarily matter, Article XV of the parties' current
collective-bargaining agreement "is the procedure for detailing
employees and applies to any detail. It contains wording permitting management to select unit employees for details "from
any appropriate source. Although the Employer agreed to negotiate
with the Union over the instant matter, its counterproposal "is
simply a reiteration, in clarified language, of the language which
the parties agreed to in the contract and under which they bilaterally agreed to function from 1990 to 1993. Requiring management to expand the terms of the contract at this point would
"have the effect of rendering the collective bargaining process
culminating in the contract useless and moot, and of placing the
parties in a position of "perpetual bargaining" where nothing in
the contract is binding. Its position is supported by recent decisions of the U.S. Court of Appeals for the District of Columbia
Circuit,;/ which it did not have access to "at the time it placed
its proposals on the table in response to the Union' s request to
bargain."
Under the Union's proposed procedure, management would be
expected to poll all of the departments for volunteers before detailing any employee, regardless of urgency or need. Given the
other more important functions that managers must perform at this
4,000-employee installation, such a procedure should not be required "absent a clear showing of a demonstrated need for such."
In this regard, on the one occasion when a manager did employ such
a procedure it "was found to be cumbersome, costly in terms of time
_____________________
l/ Department of the Navy, Marine Corps Logistics Base,
Albany, Georgia. et al. v. FLRA, 962 F.2d 48 (D.C. Cir.
1992).
money, and not efficient." Moreover, management also is concerned
that the wording of the Union's proposal would permit it to challenge decisions to deviate from the procedure even if it proves
too cumbersome, further delaying management's ability "to get the
work done.
The Union's charge that recent details of two bargaining unit
employees were effected without the benefit of a fair selection
process is inaccurate. The selections were made using the parties'
current contract provision, and illustrate the continued need for
flexibility which the Union's proposal would eliminate. The fact
that the Union failed to file grievances over management's actions
demonstrates that they were neither unfair nor unjust. Finally, the
Depot was reorganized in response to major cutbacks imposed by Congress 80 that the most efficient organization would be created,
and jobs saved. The Union's proposal is inconsistent with these
objectives.2/
CONCLUSIONS
Having examined the evidence and arguments on this issue, we
conclude that a modified version of the Union's proposal should be
adopted to resolve the parties' impasse. At the outset, we reject
the Employer's argument that settling the dispute on the basis of
the Union's proposal would, among other things, place the parties
in a position of "perpetual bargaining" where nothing in their current collective-bargaining agreement is binding. The record reveals that the bargaining obligation in this case arose because
of a major reorganization which has caused a significant change in
the area of details. In addition, it is clear that the parties'
current provision applies to details of employees into higher graded positions, and not to the equivalent-level tasks which are
the subject of the Union's proposed procedure. In these circumstances, adopting either of the Employer's alternative proposals merely because the parties have an existing contract article entitled "Detail of Employees" would deny the Union its
statutory right to negotiate over the impact and implementation of
the reorganization.
Turning to the merits of the parties' proposals, we note that
the Union's concerns regarding the use of a fair selection procedure are far from speculative, as disputes in connection with
details of bargaining-unit employees have already occurred. While
we are persuaded that the implementation of a seniority-based procedure is warranted, the Employer has a legitimate need to
______________________
2/ In this connection, the Employer submitted affidavits
from both the Executive Officer and the Deputy Director
of Operations of the Depot regarding the reasons for the
reorganization and the adverse impact the Union's
procedure for details would have on efficiency.
Ensure that it is not unduly burdensome. In our view, the parties
competing interests would best be accommodated by the adoption of
wording which, among other things: (1) applies only to details of
employees to positions within the same grade; (2) does not require
the Employer to solicit volunteers for a detail when it determines
that only one employee possesses the skills, talents, knowledge,
abilities, or personal characteristics to perform a given assignment; (3) requires the Employer to provide its reasons in
writing for selection or nonselection only upon an employee's written request; and (4) specifies that the Employer is under no
obligation to solicit other departments for personnel if the department where the detail is needed has the qualified personnel
to fill the detail.
These modifications should introduce a measure of fairness
into the selection process, while limiting the application of the
procedure in a manner consistent with the efficient functioning of
the installation. In this regard, the Employer would be required to
solicit volunteers only when it determines that two or more employees are relatively equally qualified to perform the assignment, thereby ensuring that the best qualified employee will
be elected. Moreover, eliminating the need to solicit other departments for personnel when there are qualified employees within
the department requiring the detail further circumscribes the procedure's application, and is consistent with the Union's own
expressed intentions. Finally, because their collective-bargaining
agreement expires in February 1993, the parties will have a chance
to assess the impact of the procedure, and to revise it if necessary, during upcoming negotiations over a successor.
ORDER
Pursuant to the authority vested in it by the Federal Service
Labor-Management Relations Statute, S U.S.C. S 7119, and because of
the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5
C.F.R. S 2471.6 (a) (2), the Federal Service Impasses Panel under
S 2471-11(a) of its regulations hereby orders the following:
The parties shall adopt the following wording:
Section 5. Notwithstanding the previous sections of this
Article, the following procedure applies only when the
Employer determines it is necessary to detail an employee
into a position of the same grade: (1) When the Employer
Determines that only one employee possesses the skills,
talents, knowledge, abilities, or personal characteristics to perform a given assignment, management shall retain the right to detail that particular employee to do the work; (2) where, in the Employer's judgment, two or more employees are relatively equally qualified and capable of performing an assignment: (a) the Employer shall identify the qualifications for the position to be filled and all personnel who meet those gualifications; (b) the senior qualified volunteer normally shall be selected, using Service Computation Date (SCD); © if there is no qualified volunteer, the junior qualified employee normally shall be selected, using SCD; and (3) if management does not select an employee who would have been designated if the selection followed the above procedure, the Employer will provide its reasons in writing for selection/nonselection to the employee upon the employee's written request. The statement will indicate the Employer's reasons for selection/nonselection and why it could not follow the above procedure. The Employer' s decision is subject to the Parties' negotiated qrievance/arbitration procedure.
The Employer is under no obligation to solicit other
departments for personnel if the department where the
detail is needed has the qualified personnel to fill the
detail .
By direction of the Panel.
Linda A. Lafferty
Executive Director
September 2, 1992
Washington, D. C.