30:0650(80)NG - AFGE Local 2024 and Navy, Portsmouth Naval Shipyard, Portsmouth, NH -- 1987 FLRAdec NG

30 FLRA NO. 80
30 FLRA 650

30 DEC 1987

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2029

                             Union

      and

DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE

                            Agency

Case No. 0-NG-1376

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) and concerns
the negotiability of two proposals. For the following reasons, we
find Proposal 1 which concerns shift transfers/assignments to be
negotiable and Proposal 2 concerning overtime to be nonnegotiable
because it violates management's right to assign work.

     II. Proposal 1

     Article 11A - Hours of Work

     Section 4. In order to maintain the efficiency of
operations, the Employer retains the right in accordance with
existing authority to assign/ transfer employees from shift to
shift. Normally, such transfer shall be made available to
employees according to their retention standing in their specific
code. The Employer agrees that an employee will not be
assigned/transferred from shift to shift solely as a punishment
or reward. In the case of a required shift change other
than regularly scheduled shift rotation, the employee will be
advised of the reason(s) for requiring the change of shift.

     A. Positions of the Parties

     The Agency recognizes that procedures for making shift
assignments are generally negotiable. However, the Agency claims
that this proposal would require, in certain circumstances, the
transfer of employees who do not meet qualifications
requirements. Specifically, the Agency argues that the employee
codes referred to in the proposal are not employee skill
identifiers. According to the Agency, they are organizational
codes it uses to designate individuals by their organizational
location. Statement of Position at 3. Thus, the Agency concludes,
by requiring that shift assignments be made on the basis of
retention standing in a specific employee code, this proposal
conflicts with management's rights to assign employees and to
assign work under section 7106(a)(2)(A) and (B) of the Statute.
The Agency states, however, that if the language of the proposal
were revised to make it clear that procedures for making shift
assignments are operative only after management has determined
the specific qualifications for the assignment, the Agency would
bargain on such revised language.

     The Union argues that this proposal is intended only to
require the Agency to base shift transfers and assignments in
normal situations on an employee's seniority within the
employee's own work skills. The Union argues that there is
nothing in this proposal which precludes the Agency from making
qualification determinations. Rather, the Union contends that the
reference to employee codes "is simply a shorthand reference to
qualifications." Petition for Review at 2.

     B. Analysis and Conclusion

     Proposals which condition shift assignments and shift
transfers on seniority are within the duty to bargain so long as
the shift assignment or transfer does not involve the performance
of duties other than the duties already assigned to an employee's
position. Such proposals are concerned with the shift on which
employees will perform the duties regularly assigned to their
positions and thus, do not violate management's rights under
section 7106(a)(2) to assign employees or to assign
work. International Plate Printers, Die Stampers and Engravers
Union of North America, AFL - CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 25
FLRA  113 (1987) (Provisions 4 and 16); Laborers' International
Union of North America, Defense Depot Tracy, Tracy California, 14
FLRA  686 (1984) (Proposal 1).

     Contrary to the Agency's contention, there is nothing in the
language of this proposal which precludes the Agency from
determining the particular skills needed on a shift or from
determining which employees have those skills. Rather, the Union
expressly states that employees will "compete according to
seniority within their own skills." Petition for Review at 2.
Thus, under this proposal, the Agency would be obligated to use
seniority within a particular organizational element when
assigning, or transferring an employee to a particular shift
where the employee would perform the duties already assigned to
that employee's position.

     Therefore, we find this proposal to be negotiable. Compare
Illinois Nurses Association and Veterans Administration Medical
Center, North Chicago, Illinois, 7 FLRA  714 (1987) (Proposal 3)
(The first portion of section 4 of Proposal 3 requiring that
employees be assigned to certain tours of duty on request found
nonnegotiable because it prevented management from determining
the particular skills needed on a tour of duty).

     III. Proposal 2

     Article 12 - Overtime

     Section 12. The Employer agrees not to assign to
higher-graded employees overtime work normally performed by
lower-graded employees, where there are lower-graded employees
possessing the required skills who are available for
assignment.

     A. Positions of the Parties

     The Agency argues that this proposal interferes with
management's rights to assign work and to determine the types and
grades of employees assigned to a work project under sections
7106(a)(2)(B) and (b)(1) of the Statute. In addition, the Agency
argues that the proposal is not an appropriate
arrangement, as the Union contends, because it excessively
interferes with management's rights.

     The Union argues that this proposal is an appropriate
arrangement designed to alleviate the adverse effect of depriving
qualified employees of the right to earn overtime pay for
performing available overtime work.

     B. Analysis and Conclusion

     1. The Proposal Interferes with the Agency's Right to Assign
Work

     Proposals which provide procedures for determining who among
qualified employees will be selected to perform their regularly
assigned duties in an overtime status when management has
determined overtime is necessary have been found to be
negotiable. See, for example, American Federation of Government
Employees, AFL - CIO, National Joint Council of Food Inspection
Locals and Department of Agriculture, Food Safety and Quality
Service, Washington, D.C., 9 FLRA  663 (1982) (Proposal 1).

     In contrast, proposals which restrict or limit the
assignment of overtime to bargaining unit employees consistently
have been found to conflict with management's right to assign
work under section 7106(a)(2)(B). See, for example, American
Federation of Government Employees, Local 1409, AFL - CIO and
U.S. Army Adjutant General Publications Center, Baltimore,
Maryland, 16 FLRA  352 (1984) (Provision 1).

     According to the Union, Proposal 2 would preclude the
assignment of overtime work to higher graded nonbargaining unit
employees when lower graded bargaining unit employees are
available to perform the overtime work. See Reply Brief at 11.

     Thus, Proposal 2 imposes a substantive limitation on the
Agency's right to assign overtime work to nonbargaining unit
employees when lower graded bargaining unit employees are
available. Further, contrary to the Union's claim, the use of the
term "normally" does not provide management with flexibility to
assign overtime work to higher graded nonbargaining unit
employees when necessary. Rather, the use of this term sets forth
a norm and would result in the Agency being obligated to justify
any departure from that norm. See National Federation of Federal
Employees, Local 615 v. FLRA,  801 F.2d 477, 480 (D.C. Cir.
1986), aff'g National Federation of Federal Employees,
Local 615 and National Park Service, Sequoia and Kings Canyon
National Parks, U.S. Department of Interior, 17 FLRA  318 (1985)
(Provision 2). Consequently, since Proposal 2 limits the Agency's
right to assign overtime work to nonunit employees, we find that
it directly interferes with management's right to assign work
under section 7106(a)(2)(B). See American Federation of
Government Employees, AFL - CIO, Council 214 and U.S. Marine
Corps, Marine Corps Logistics Base, Nonappropriated Fund
Instrumentality, Albany, Georgia, 29 FLRA  No. 126 (1987)
(Provision 2).

     2. The Proposal is Not an Appropriate Arrangement

     Even assuming, as we did in Marine Corps Logistics Base,
that Proposal 2 was intended to ameliorate an adverse effect of
the exercise of a management right, we find that the effect of
Proposal 2 on management's right outweighs the benefit to
employees. We assume, for purposes of this decision, that the
adverse effect is the loss of overtime work and the resulting
overtime compensation for a qualified bargaining unit employee
because the Agency assigned the overtime work to a higher graded
nonunit employee. To remedy this adverse effect, Proposal 2 would
prevent the Agency from assigning overtime to higher graded
employees outside the bargaining unit, notwithstanding any
determination by management under section 7106(a)(2)(B) that the
overtime work should be assigned to, for example, a supervisor or
a higher graded employee in another bargaining unit. Such a
proposal, which directly limits the exercise of the discretion
inherent in the Agency's right to assign work, does not
constitute an appropriate arrangement within the meaning of
section 7106(b)(3). See AFGE Local 2782 v. FLRA,  702 F.2d 1183,
1188 (D.C. Cir. 1983), reversing and remanding American
Federation of Government Employees, AFL - CIO, Local 2782 and
Department of Commerce, Bureau of the Census, Washington, D.C., 7
FLRA  1 (1981). Thus, in our view, the effect of Proposal 2 on
management's rights outweighs the benefit to employees.
Accordingly, Proposal 2 excessively interferes with management's
right to assign work. See U.S. Marine Corps Logistics Base at 8
of slip op.

     In summary, Proposal 2 is outside the duty to bargain
because it violates management's right to assign work under
section 7106(a)(2)(B) and does not constitute an appropriate
arrangement under section 7106(b)(3) of the Statute. In view of
this determination, it is unnecessary for us to address the
Agency's additional argument concerning the negotiability of this
proposal. 

     IV. Order

     The petition for review is dismissed.

     Issued, Washington, D.C., December 30,  1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY