Hawaii Federal Employees Metal Trades Council and Pearl Harbor Naval Shipyard (Authority decision, August 15, 1986)

Final FLRA decision. The Authority dismisses the union's negotiability petition. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

Pearl Harbor Naval Shipyard decided to disestablish a committee that reviewed safety deficiency projects and resolved funding and priority issues. The union proposed keeping it and adding an equal number of labor representatives. The Authority held that the proposal was outside the duty to bargain. It would assign the agency's decision work to people management had not chosen and reverse management's decision about its organizational structure. The Authority dismissed the petition without reaching the agency's separate claim about methods and means of work.

Decision snapshot

• Authority: Organization and work assignment rights under 5 U.S.C. § 7106(a).
• Outcome: Union's petition dismissed; proposal held nonnegotiable.
• Key point: The union could not require management to retain a decision committee and appoint labor representatives to it.

Full text (FLRA public release)

[ v23 p189 ]

23:0189(24)NG

The decision of the Authority follows:

23 FLRA No. 24

HAWAII FEDERAL EMPLOYEES
METAL TRADES COUNCIL,
AFL-CIO
Union

and

PEARL HARBOR NAVAL
SHIPYARD
Agency

Case No. 0-NG-1186

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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) and concerns the negotiability of one Union proposal.

II. Union Proposal

The Agency notified the Union on July 8, 1985 that it had decided to disestablish the Naval Occupational Safety and Health (NAVOSH) Deficiency Abatement Committee. The Union proposal which is the subject of this appeal is:

Our proposal is to keep the NAVOSH Deficiency Abatement Committee and add equal numbers of Labor Representatives.

III. Positions of the Parties

A. Union Position

The Union argues the proposal is negotiable "regarding the impact to the unit employees." It states that a committee such as this "can make a contribution to the safety of all employees if it is given the opportunity to function with equal numbers of employees and representatives of management. This is allowed under the Executive Order 12196 of February 26, 1980, Occupational Safety Health Programs for Federal Employees." (Union Petition p. 1). Citing the Department of the Navy instruction which established the Committee, the Union notes that the function of the Committee was to periodically review safety abatement projects and to determine if additional actions were needed to assure their timely completion. The Committee was to address problems with funding, priorities or implementation of specific projects.

B. Agency Position

The Agency declared in its allegation of nonnegotiability that the proposal interferes with management's rights to assign work under section 7106(a)(2)(B) of the Statute, to determine the organization of the Shipyard under section 7106(a)(1) of the Statute, and to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

The Agency's Statement of Position was untimely filed and will not be considered. Section 2424.6 of the Authority's Rules and Regulations requires that an agency file a statement of position within thirty days after receipt of a petition for review. In its Statement, dated November 29, 1985, the Agency noted that it received the petition on October 29, 1985. Therefore the Statement was filed more than thirty days after receipt of the petition and was untimely filed.

IV. Analysis

Attachments to the Union's petition for review indicate that the Shipyard Occupational Safety and Health Deficiency Abatement Program was set up by Instruction 5100.23A in 1983 under the authority of Executive Order 12196, and provided for the NAVOSH Deficiency Abatement Committee. The regulation designated as members the Shipyard Safety Director, a designee of the Production Engineering Division, and a designee of the Staff Civil Engineer Department. As noted, the duties of the committee were to periodically review deficiency abatement projects and to "address and resolve any problems with funding, priorities, or implementation of specific projects." (Instruction 5100.23A, para. 5i, April 19, 1983).

Based on these facts, the Authority finds that the Union's proposal to reestablish the committee, and to "add equal numbers" of labor representatives, is nonnegotiable on two of the grounds asserted by the Agency.

1. The proposal interferes with management's right to assign work
   under section 7106(a)(2)(B) of the Statute. The duties of the Committee involve the deliberative process of the Agency in making decisions and resolving problems "with funding, priorities, or implementation of specific projects." The proposal to require Union representatives on such a committee constitutes an assignment of work to individuals not chosen by management. See Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Union Proposal 3). See also National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982).

2. The proposal also interferes with management's right to determine
   the organization of the Shipyard under section 7106(a)(1) of the Statute. As noted, the Committee was created by a regulation to address and resolve problems in the Agency's safety and health deficiency abatement program. The decision to disestablish the Committee and redistribute its functions determines the manner in which these Agency responsibilities will be accomplished. The proposal's requirement to reverse that decision, and add Union representatives, interferes with management's decision as to the formal organizational structure by which it makes decisions. Therefore, the proposal directly interferes with management's rights under section 7106(a)(1) of the Statute, and is outside the duty to bargain. See Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998, 999 (1982).

In view of our findings that the proposal is nonnegotiable because it interferes with two management rights under section 7106(a) of the Statute, we find it unnecessary to address the Agency's unsupported additional assertion that the proposal would determine the methods and means by which work is performed under section 7106(b)(1) of the Statute and therefore is negotiable only at its election.

V. Conclusion

We conclude that the Union proposal is nonnegotiable because it interferes with management's rights to (1) assign work under section 7106(a)(2)(B) of the Statute and (2) determine the organization of the Shipyard under section 7106(a)(1) of the Statute.

VI. Order

Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C. August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY