Portsmouth Federal Employees Metal Trades Council and Department of the Navy, Portsmouth Naval Shipyard (Authority decision, March 25, 1988)

Final FLRA decision. The Authority finds the union's scheduled overtime proposal within the Navy's duty to bargain and directs bargaining upon request or as otherwise agreed. 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).

Plain-English summary

The Portsmouth Metal Trades Council proposed that the naval shipyard consider qualified employees for scheduled overtime even when it would result in a 16-hour shift. The Navy argued that such shifts could affect alertness and would interfere with its right to assign work and direct employees. The Authority observed that the shipyard already used 16-hour shifts, including unscheduled holdovers, and had not shown why advance scheduling would make the employees less qualified. It found the proposal negotiable and ordered the Navy to bargain on request.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E) and 7106(a)(2)(A) and (B).
• Outcome: Proposal within the duty to bargain; bargaining ordered upon request.
• Key point: Including qualified employees in the pool for scheduled 16-hour shifts did not remove management's assignment rights on this record.

Full text (FLRA public release)

[ v31 p1006 ]

31:1006(81)NG

The decision of the Authority follows:

31 FLRA NO. 81
31 FLRA 1006

Date: 25 MAR 1988

PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO

Union

and

DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE

Agency

Case No. 0-NG-1464

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). It concerns the negotiability of a single union proposal pertaining to the scheduling of overtime. For the reasons set forth below, we find that the proposal constitutes a negotiable procedure and is within the duty to bargain.

II. Proposal

Management agrees to make overtime assignments in accordance with the procedures specified in the Agreement FEMTC/PNS 1985-1988 by making said overtime assignments based on accumulated overtime worked and refused i.e. the employee with the lowest cumulative overtime hours and the requisite skills shall be asked first. The Employer further agrees that it will not be its practice to deny an employee the opportunity to 16 hour shifts. (Only the underlined portion is in dispute.)

III. Positions of the Parties

The Agency argues that the proposal is inconsistent with management's rights to direct and assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. More specifically, the Agency argues that the proposal would interfere with management's right to determine the personal characteristics of employees that are needed to perform the Agency's work and, also, with management's right to determine which employees will perform work. The Agency further argues that the Union's stated intent of the proposal--that it constitutes a procedure--is at odds with the clear language of the proposal. Therefore, the Agency urges that the Union's stated intent not be considered by the Authority.

The Union states that the proposal would not prevent management from assigning work to unit employees. Rather, according to the Union, the proposal would increase the pool of employees whom management has already recognized as being fully qualified, when making overtime assignments. Reply Brief at 3. The Union also claims that the proposal would merely require that all employees be considered equally when making overtime assignments. Reply Brief at 4.

IV. Analysis and Conclusions

The proposal before us concerns scheduled overtime. Overtime schedules are prepared 7 to 10 days in advance. The Agency operates 24 hours-a-day, 7 days-a-week with three 8-hour shifts per day. Scheduled overtime generally is offered first to qualified employees with the lowest cumulative overtime hours. The sentence of the proposal that is in dispute would permit an employee to be scheduled for an overtime assignment even if the overtime assignment would result in the employee working a 16-hour shift.

The Agency argues that alertness and mental acuity relate to the quality and quantity of an employee's work and to the safe operation of sensitive equipment. Statement of Position at 4. Since the proposal would have the effect of permitting employees to remain on duty for 16 hours, the Agency argues that it would be prevented from determining that employees working 16-hour shifts were either not alert enough or did not possess sufficient acuity to perform the work. Therefore, according to the Agency, the proposal would directly interfere with management's right to assign work for only an 8-hour shift rather than a 16-hour shift.

We find the Agency's arguments to be unpersuasive. First, the Agency acknowledges that there are occasions when an employee is "held over" to work a second 8-hour shift. Further, the Agency acknowledges that the parties' past practice permitted employees to be scheduled to work 16-hour shifts. Statement of Position at 1.

The Agency has not demonstrated how employees who would be scheduled in advance for 16-hour shifts would be less alert and have lesser acuity than would employees who are required to work 16-hour shifts with little if any notice on a "hold over" basis. Further, it is evident that the Agency in the past has assigned and continues to assign employees to work 16-hour shifts. The Agency has not demonstrated that the employees are any less qualified for scheduled 16-hour shifts than they are for unscheduled 16-hour shifts.

We are also not persuaded by the Agency's assertion that the proposal would interfere with management's right to direct and assign employees by determining which employees will perform work. The portion of the proposal that is not in dispute already establishes which employee will be asked first to perform an overtime assignment. The sentence in dispute merely increases the pool of potential candidates and allows for the equitable consideration of employees who wish to work overtime, as the Union indicates. We, therefore, reject the Agency's additional argument that the Union's stated intent of the proposal is inconsistent with the language of the proposal so that the intent should not be considered. We find no such inconsistency.

Accordingly, since the Agency has not established that the proposal would interfere with its rights, as alleged, we find the proposal to be within the duty to bargain.

V. Order

The Agency must, upon request, or as otherwise agreed to by the parties, bargain on the proposal. 1

Issued, Washington, D.C., March 25, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In finding the proposal to be negotiable, we make no judgment as to its merits.