IAM Local Lodge 830 and U.S. Naval Ordnance Station, Louisville (Authority decision, December 13, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

IAM Local 830 proposed assigning each Louisville Naval Ordnance Station employee to one regular first-line supervisor and using volunteers and seniority when employees moved between groups or cost centers. The Authority found that the one-supervisor rule dictated the station's organizational structure and was outside the duty to bargain. The selection provisions applied only to employees management had already judged qualified, so they were negotiable procedures. The Authority dismissed the appeal as to the first rule and ordered bargaining on the selection procedures upon request.

Decision snapshot

• Authority: Organization and assignment rights under 5 U.S.C. § 7106(a), and procedures under § 7106(b)(2).
• Outcome: One-supervisor requirement rejected; volunteer and seniority selection procedures bargainable.
• Key point: A union may bargain over selection among qualified employees without dictating the agency's supervisory structure.

Full text (FLRA public release)

[ v20 p848 ]

20:0848(105)NG

The decision of the Authority follows:

20 FLRA No. 105

LOCAL LODGE 830, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Union

and

U.S. NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
Agency

Case No. 0-NG-1136

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents an issue concerning the negotiability of two portions of a multi-part Union proposal which is set forth in its entirety in an appendix to this decision. Upon careful consideration of the entire record, including the parties' contentions, /1/ the Authority makes the following determinations.

Since the Agency provides distinct arguments concerning each portion of the proposal in dispute, the Authority will treat such disputed portions separately in this decision. The first disputed portion of the proposal, namely, the first sentence of section 9(a) provides as follows:

First Sentence of Section 9(a)

Immediately following the effective date of this Agreement and continuing throughout the life of this Agreement, all bargaining unit employees will be assigned to one regular first-line supervisor which will constitute his/her group.

In agreement with the Agency, the Authority concludes that the first sentence of section 9(a), violates the Agency's right to determine its "organization" pursuant to section 7106(a)(1) of the Statute. That is, by requiring the Agency to assign each bargaining unit employee to one regular first-line supervisor, the first sentence of section 9(a) effectively requires the Agency to adopt a certain organizational structure. In this regard, the first sentence of section 9(a) is to the same effect as Union Proposal V found to be nonnegotiable in National Association of Government Inspectors and Quality Assurance Personnel, Unit #2 and Naval Air Engineering Center, Lakehurst, New Jersey, 8 FLRA 144 (1982). In that case, the Authority, citing Congressional Research Employees Association and the Library of Congress, 3 FLRA 737 (1980), concluded that proposal V, which required that employees be assigned to only one immediate supervisor, interfered with the Agency's right to determine its organization pursuant to section 7106(a)(1) of the Statute. Therefore, based on Naval Air Engineering Center and the reason and case cited therein, the Authority concludes that as the first sentence of section 9(a) concerns the Agency's organization it is outside the duty to bargain.

We turn now to the aspect of the dispute herein concerning the last two sentences of section 9(a), and section 9(b)(1), which provide as follows:

Second & Third Sentences of Section 9(a)

When it becomes necessary to assign an employee from one group to another group, volunteers will be sought using service computation date (seniority) with the most senior given the opportunity to volunteer first. In the absence of volunteers the assignment will be made using the inverse order of seniority, (SCD), subject to paragraph c. below.

Section 9(b)(1)

Qualified volunteers will be given first preference for the transfer. If there are more than one qualified volunteer(s) than required those qualified volunteers having the highest seniority, by service computation date, will be given first preference. Where there are less qualified volunteers than required assignment will be made by assigning those having least seniority, by service computation date, from among the qualified non-volunteers.

These portions of the proposal require that before the Agency assigns employees from one group to another or from one Cost Center to another, the Agency will first solicit volunteers from among qualified employees. If more qualified employees volunteer than are necessary, the Agency would be required to select the volunteer, or volunteers, with the most seniority, using the Service Computation Date. If the number of volunteers was insufficient, the Agency would be obligated to assign qualified employees based on inverse seniority. The Authority concludes that these portions of the proposal are to the same effect as Provision 1 found to be a negotiable procedure in Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982). In that case, the Authority reviewed a provision which, inter alia, required management when filling details to select the employee with the earliest service computation date when two or more employees were "equally well qualified and capable of performing the detail work." In finding that portion of Provision 1 to be a "procedure" to be observed by management in exercising its statutory authority within the meaning of section 7106(b)(2) of the Statute, the Authority stated:

Where, . . . in management's judgment, two or more employees are equally qualified and capable of performing the work, the selection of any one of those employees to perform the work would be consistent with management's exercise of its discretion. Under such circumstances, the procedure by which employees previously judged by management to be equally qualified will be selected to perform the work is negotiable. . . /2/

In like manner, the last two sentences of section 9(a), and section 9(b)(1), do not seek to prescribe the qualifications and skills necessary to perform a particular work assignment. Rather, they merely set forth a procedure the Agency will use when selecting among employees previously determined by management to be qualified to perform the work required by a reassignment. In fact, section 9(c), which is referenced in the last sentence of section 9(a), specifically states that volunteers "must have the ability to perform the work assignment in a reasonable manner consistent with the character of work" and that exceptions to the requirement that volunteers be sought shall be made when the character of work requires specific employees with special skills. Thus, based on National Cemetery Office, and the reasons and cases cited therein, the last two sentences of section 9(a), and section 9(b)(1), do not interfere with management's rights pursuant to section 7106(a)(2)(A) and (B) of the Statute to assign employees and work, but instead constitute a negotiable procedure within the meaning of section 7106(b)(2). /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 relates to the first sentence in section 9(a) of the Union's proposal be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain on the last two sentences of section 9(a), and section 9(b)(1). /4/

Issued, Washington, D.C., December 13, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Union did not file a Reply Brief in this case.

/2/ National Cemetery Office, 9 FLRA at 706.

/3/ Although the Agency did not allege that sections 9(b)(2) and 9(c) were nonnegotiable, the Agency argued that they were moot based on its determination that the last two sentences of 9(a), and section 9(b)(1), were nonnegotiable. However, in the absence of a specific determination of nonnegotiability concerning sections 9(b)(2) and 9(c), and in view of the Authority's decision herein that the last tow sentences of sections 9(a), and section 9(b)(1), are within the duty to bargain, it is unnecessary to consider sections 9(b)(2) and 9(c) further herein.

/4/ In finding these portions of the Union proposal within the duty to bargain, the Authority makes no judgment as to their merits.

APPENDIX

Union Proposal

a. Immediately following the effective date of the Agreement and continuing throughout the life of the Agreement, all bargaining unit employees will be assigned to one regular first-line supervisor which will constitute his/her group. When it becomes necessary to assign an employee from one group to another group, volunteers will be sought using service computation date (seniority) with the most senior given the opportunity to volunteer first. In the absence of volunteers the assignment will be made using the inverse order of seniority, (SCD), subject to paragraph c. below.

b. It is agreed and understood that assignment of work is a function vested in the Employer. In this regard the parties agree to establish a system of transfer of employees from one Cost Center to another which will assure the efficiency of operation and maintain morale among the employees. To the extent possible the following system will be utilized:

(1) Qualified volunteers will be given first preference for the transfer. If there are more than one qualified volunteer(s) than required those qualified volunteers having the highest seniority, by service computation date, will be given first preference. Where there are less qualified volunteers than required assignment will be made by assigning those having least seniority, by service computation date, from among the qualified non-volunteers.

(2) The conditions of paragraph (1) above shall not apply when:

(a) The transfer is for less than three work days. (b) The conditions requiring the transfer dictate an action of transfer which will not permit the time required by paragraph (1), above. (c) An otherwise eligible volunteer was not at work on the day the transfer was announced.

(3) An employee shall not be transferred from one Cost Center to another solely to avoid or create the payment of overtime or other premium pay.

(4) No employee shall be transferred from one Cost Center to another as a substitute for discipline or reprisal action.

c. It is agreed and understood that the employee volunteering and/or assigned must have the ability to perform the work assignment in a reasonable manner consistent with the character of work. Exceptions to this section shall be made only when the character of the work dictates the assignment of specific employees having special skills not possessed by any other employee in the group, Cost Center or job rating. These exceptions will be discussed with the Shop Steward in advance of the decision being made when possible or at the earliest possible time. (Only the underlined portions are in dispute.)