[ v21 p1116 ]
21:1116(128)NG
The decision of the Authority follows:
21 FLRA No. 128
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 153
Union
and
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE
Agency
Case No. 0-NG-814
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 seven Union Proposals.
II. Procedural Issues
The Agency contends that the Union's petition for review should be
dismissed because the Union failed to furnish an explicit statement of
the proposals' meaning as required by section 2424.4(a)(2) of the
Authority's Rules and Regulations and because the Union failed to serve
a copy of its petition on the Agency head as required by section
2424.4(b) of the Rules. However, the Union provided a satisfactory
statement of the meaning attributed to the disputed proposals in its
completion of the appeal. In addition, while the initial petition was
served on the Agency official who alleged that the proposals were
nonnegotiable, the completion of the appeal was served on the Agency
head's designee. Thus, the Union's petition for review is properly
before the Authority.
III. Background
It appears from the record that the disputed proposals in this case
respond to the Agency's announced plan to establish a new tour of duty
for its employees at several locations within the Baltimore District.
The current tour of duty extends between 8:00 a.m. and 5:00 p.m. The
new tour, beginning at 11:00 a.m. and ending at 8:00 p.m., was to be
established, as explained by the Agency, to service flights arriving at
Baltimore-Washington International Airport in the late afternoon and
early evening with the result being that such service could be provided
without personnel receiving overtime pay, as had been the prior
practice.
IV. Duty to Bargain
The Agency did not contest the negotiability of the proposals in this
case but only contended that it had no duty to bargain on them.
Specifically, the Agency argues that it has no duty to bargain on
Proposals 1, 3, 4, 5 and 6 essentially because the matters sought to be
bargained are covered by provisions pertaining to shift changes in an
expired national agreement between the parties which provisions must be
maintained pending renegotiation. The Agency also contends it has no
duty to bargain on Proposal 2 because the subject matter sought to be
bargained is not related to the Agency's decision to create a new tour
of duty. Finally, the Agency argues that because Proposal 7 addresses
matters which were not substantially changed by the decision to create a
new tour of duty, it has no obligation to bargain on such matters.
The Authority will decide only the negotiability issues presented
under section 7105(a)(2)(D) and (E) of the Statute. To the extent there
are factual issues in dispute between the parties in the circumstances
of a case, such issues should be resolved in other appropriate
proceedings. American Federation of Government Employees, AFL-CIO,
Local 2736 and Department of the Air Force, Headquarters, 379th Combat
Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302
(1984). Thus the Agency's position on these proposals cannot be
sustained.
V. Union Proposals 1 and 4
Proposal 1
No change, the Customs Service has failed to support any need
to establish the new tour of duty. In addition, the change is an
abuse of discretion, mismanagement and a gross waste of funds.
Furthermore, the change has the effect of seriously impacting upon
the Baltimore area economy.
Proposal 4
The Customs Service agrees that the established tour of duty
shall be 11:00 a.m. to 7:00 p.m.
A. Position of the Union
According to the Union, at the time the new tour of duty was
announced, there existed no regularly scheduled work at the airport to
warrant the assigning of personnel after 5:00 p.m. The Union asserts
that flight records indicate the absence of any work on at least two
days each week after 5:00 p.m. for employees on the new tour of duty.
As a consequence, the Union contends Customs House brokers and importers
would be without sufficient Agency employees between 8:00 a.m. and 11:00
a.m. to permit release of their imported cargoes.
As to Proposal 4, the Union asserts that such proposal is consistent
with other established tours of duty within the region of the Agency.
B. Analysis
Although not expressly addressed by either party, the issue with
respect to Union Proposals 1 and 4 is whether, under the Statute, the
Union may seek by negotiation to nullify management's decision to
establish the new tour of duty. It is well established that the
decision to establish a shift or tour of duty involves the "numbers,
types, and grades of employees or positions assigned to any
organizational subdivision, work project, or tour of duty" within the
meaning of section 7106(b)(1) of the Statute and, thus, is negotiable
only at the election of an agency. See, for example, Department of the
Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984) and U.S.
Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116, 118
(1982).
Because Proposals 1 and 4 effectively nullify management's decision
to establish a new tour of duty, they also fall within the compass of
section 7106(b)(1) of the Statute.
This view is not altered by the Union's argument that the Agency's
new tour of duty is unnecessary or that Proposal 2 is consistent with
tours of duty which exist elsewhere in the Agency. Such arguments
concern only the desirability of the proposals and not whether the
proposals are within the duty to bargain under the Statute.
C. Conclusion
The Authority finds, therefore, based on the reasoning and cases
cited in Lowry Air Force Base and in U.S. Customs Service, Region V,
that Union Proposals 1 and 4 are not within the Agency's duty to
bargain.
VI. Union Proposal 2
The initial staffing at the various Baltimore District
facilities will be made utilizing volunteers among qualified
employees.
A. Position of the Union
The Union asserts that the proposal establishes a procedure for the
initial staffing of the new tour of duty.
B. Analysis
Based on the record, the new tour of duty was intended to be
implemented at some, but not all, of the Agency's work stations. Since
the proposal has the objective, as explained by the Union, of
accomplishing the staffing of the new tour with volunteers, it is to the
same effect as the proposal found negotiable in American Federation of
Government Employees, Council of Social Security District Office Locals
and Department of Health and Human Services, Social Security
Administration, 15 FLRA 545 (1984). The proposal in that case required
that positions in a particular organizational element first be filled by
volunteers qualified for the positions. Noting that the proposal in
that case left management with the discretion to determine the
qualifications required in filling the positions and to decide upon the
occupational types required to perform the work, the Authority concluded
that the proposal constituted a negotiable procedure, within the meaning
of section 7106(b)(2) of the Statute.
C. Conclusion
Accordingly, based on the reasons and case cited in Social Security
Administration, the Authority finds that Union Proposal 2 constitutes a
negotiable procedure under section 7106(b)(2) of the Statute.
VII. Union Proposal 3
Every effort shall be made to insure uniformity in assignment
of personnel to inspectional activities and tours of duty.
A. Position of the Union
The Union asserts that the intent of this proposal is to assure that
shift assignments among qualified employees will be made in a uniform
manner. Further, according to the Union, the proposal is consistent
with Agency regulations.
B. Analysis
Based on the express language of the proposal itself, and the Union's
explanation thereof, it is determined that Union Proposal 3 is to the
same effect as Union Provision 1 found negotiable in National Federation
of Federal Employees, Local 1622 and Department of the Army,
Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578
(1982). Provision 1 in that case required that certain details to
positions affording qualifying experience or to those of a higher grade
"be rotated among qualified employees to the fullest extent feasible."
The Authority noted that the cited provision did "not in any way limit
management's discretion to establish the particular qualifications and
skills needed to perform the work . . . or limit management's judgment
in determining whether a particular employee meets those qualifications
. . . ." The Authority concluded that, as the provision "established a
general, nonquantitative standard by which the Agency's exercise of its
reserved authority to assign employees could be evaluated in a
subsequent grievance," it did not interfere with management's right to
assign employees, under section 7106(a)(2)(A).
C. Conclusion
Because Union Proposal 3 in this case likewise establishes a general
nonquantitative standard, specifically "uniformity," in making
assignments to new shifts, it is, based on the reasons and cases cited
in Vint Hill Farms Station, within the duty to bargain.
VIII. Union Proposal 5
In the alternative, the established tour of duty shall be from
11:00 a.m. to 8:00 p.m. with a lunch break between the hours of
3:00 p.m. to 5:00 p.m.
A. Position of the Union
The Union asserts that, "consistent with workload requirements,"
under the proposal employees will not be scheduled to work during lunch
periods unless otherwise compensated. The Union also states that the
proposal is not intended to abridge management's section 7106(a) rights
under the Statute.
B. Analysis
It appears from the record that the Agency has misinterpreted the
proposal. That is, this proposal has nothing to do with the starting
and ending times of a shift. Rather, the proposal is consistent with
the Agency's decision to establish an 11:00 a.m. to 8:00 p.m. shift and
only sets out the time frame within that shift when employees' unpaid
half-hour lunch breaks will be taken.
The Authority has previously determined that the time at which breaks
and lunch may be observed within the workday (and not the length of the
breaks, lunch or workday themselves) is a matter within an agency's duty
to bargain. Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 19 FLRA No. 123 (1985).
C. Conclusion
Based on the reasoning and cases cited in Social Security
Administration, Baltimore, Union Proposal 5 is within the duty to
bargain.
IX. Union Proposal 6
Any employee subsequently assigned from his/her duty station to
the BWIA (Baltimore-Washington International Airport shall be
provided with a government vehicle.
A. Position of the Union
The Union states that the national agreement provides that employees
are responsible for transportation to their regular duty stations, but
does not concern transport to subsequent work sites. Consequently, the
Union seeks to have furnished government vehicles for travel to
subsequent assignments. The Union asserts that the Agency has vehicles
available for such purposes.
B. Analysis
In American Federation of Government Employees, AFL-CIO, Local 3525
and United States Department of Justice, Board of Immigration Appeals,
10 FLRA 61 (1982), the Authority decided that Proposal 1, requiring the
transportation by shuttle bus of employees to and from research
facilities in connection with the performance of their duties, was
within the duty to bargain. In so deciding, the Authority noted that
the proposed transportation was unrelated to the performance of the
agency's work and therefore did not concern the technology, methods or
means of performing such work within the meaning of section 7106(b)(1)
of the Statute. Rather, the Authority found that the proposal concerned
a matter "which principally affects working conditions of employees who
would be adversely impacted by relocation; such transportation would be
only incidental to the performance of the Agency's work." In like
manner, the instant proposal is concerned only with furnishing
transportation for employees who are required to travel from one work
site to another during their established tours of duty.
C. Conclusion
Hence, based on Board of Immigration Appeals, and the reasons and
cases cited therein, Union Proposal 6, concerning the transportation of
employees from one work site to another, is also within the duty to
bargain.
X. Union Proposal 7
All employees affected by this change and agreement shall be
afforded a reasonable amount of personal time for washing up and
changing uniforms.
A. Position of the Union
The Union contends that this proposal will preserve the professional
image of the Agency because employees' appearance will be enhanced when
dealing with passengers at the airport.
B. Analysis
Proposal 7 expressly would require the Agency to give employees time
during their hours of duty to clean up and change uniforms prior to
starting work at the airport. This proposal is to the same effect as
Union Proposal 1 found nonnegotiable in American Federation of
Government Employees, Local 2094, AFL-CIO and Veterans Administration
Medical Center, New York, New York, 19 FLRA No. 120 (1985). Proposal 1
in that case sought to provide employees with 15 minutes prior to the
end of their shift to be used for personal hygiene and changing
clothing. The Authority found that Proposal 1 interfered with
management's right to assign work under section 7106(a)(2)(B) of the
Statute because it would preclude the assignment of other types of work
during the specified period.
C. Conclusion
Based on reasons and cases cited in Veterans Administration Medical
Center, Union Proposal 7 violates the Agency's right to assign work
under section 7106(a)(2)(B) of the Statute and is outside the duty to
bargain.
XI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as it relates to
Union Proposals 1, 4, and 7 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 Union Proposals 2, 3, 5 and 6. /*/
Issued, Washington, D.C., May 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.