American Federation of Government Employees, Local 1226 (Union) and United States Department of Veterans Affairs, Central Iowa Health Care System, Des Moines, Iowa (Agency)

[ v62 p459 ]

62 FLRA No. 83

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1226
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
CENTRAL IOWA HEALTH CARE SYSTEM
DES MOINES, IOWA
(Agency)

0-NG-2875

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

June 3, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves the negotiability of five proposals concerning the Agency's decision to consolidate its pharmacy service at its Central Iowa Healthcare Systems (VA CIHS) in Des Moines, Iowa (Des Moines, VA CIHS) and the related reassignment of pharmacy service employees assigned to a medical center located in Knoxville, Iowa (Knoxville Medical Center) to the Des Moines facility. [n1]  The Agency filed a statement of position (SOP). The Union did not file a response.

      For the reasons that follow, we find that the proposals are not within the Agency's duty to bargain.

II.     Proposal 1

All bargaining unit employees at the Knoxville Division - VA Central Iowa Health Care System duty location, station number 636A7[,] and the Des Moines Division - VA Central Iowa Health Care System, duty station number 636A6 . . . shall be grandfathered in (effective February 6, 2006)[ [n2] ] regarding the consolidation of Pharmacy Service to Des Moines. These employees shall continue to report to their duty station of record.

Petition for Review (Petition) at 3.

A.      Positions of the Parties

1.     Agency

      According to the Agency, the VA CIHS is a consolidated health care system that consisted of two medical centers, one in Knoxville and the other in Des Moines, which are 40 miles apart. The Agency states that as a result of decreasing patient volume at the Knoxville Medical Center and increasing patient volume at the Des Moines, VA CIHS, management determined that the Knoxville facility would be closed and consolidated with Des Moines. As a result, according to the Agency, management decided that the Knoxville Medical Center pharmacy employees would be reassigned to the Des Moines pharmacy effective in January 2006.

      The Agency asserts, generally, that the Union proposes that Knoxville remain the affected employees' duty station of record. As such the Agency contends that Proposal 1 "excessively interferes with management's . . . right[] under [§] 7106(a)" of the Statute. SOP at 5.

      The Agency also asserts that even assuming the Union intends Proposal 1 to constitute an arrangement for employees affected by the consolidation of the pharmacy services, the proposal does not constitute an appropriate arrangement under the test set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG), because the proposal would prevent management from exercising its reserved rights. Specifically, the Agency claims that Proposal 1, which would grandfather affected employees into permanent assignments at the Knoxville Medical Center, excessively interferes with its right to determine its organization under § 7106(a)(1), because the proposal would prohibit the reorganization of the pharmacy service by requiring [ v62 p460 ] management to retain the affected employees' permanent duty assignments at the Knoxville Medical Center.

2.     Union

      With respect to the overall interpretation of the proposals, the Union notes that each proposal should be interpreted as impacting nine pharmacists/pharmacy technicians in the Knoxville facility. The Union states that of these nine, two are not adversely impacted by the relocation to Des Moines because their commutes are now shorter, and thus they are not covered by the proposals. Record at 2. Also, the Union asserts that the proposal would not cover those pharmacy employees who took another position within the Agency. Finally, the Union states that it "did not want portions of each proposal severed." [n3]  Id. at 1.

      In its petition, the Union asserts that it "does not contest" the Agency's assertion that Proposal 1 affects management's right to determine its organization. Petition at 4. Rather, according to the Union, it is only asserting that the proposal is an appropriate arrangement for employees adversely affected by management's exercise of its right to determine its organization. In this regard, the Union asserts that Knoxville employees bought or rented homes in or near Knoxville with the expectation that this was their duty station. The Union contends that the Agency's decision to change the duty station of the affected employees to Des Moines, VA CIHS will affect them because they will "now have additional hours of driving time and additional miles every duty day[,]" which it supports with information showing the travel time differences and the yearly mileage that employees will incur after the relocation. Id.

B.      Analysis and Conclusions

1.     Meaning of the Proposal

      According to the Union, Proposal 1 would require the Agency to permit those Knoxville pharmacy employees who were required to report to Des Moines, VA CIHS as of February 6, 2006 to continue to report to the Knoxville Medical Center rather than to the Des Moines facility. Record at 2. The Union explains that the term "report" in the proposal does not mean work, but rather, means that the subject employees could begin their workdays in Knoxville and then shuttle to Des Moines. Id. The Union states that the term "station of record" means the facility where the employee was initially hired. Id. The Union also explains that an affected employee may voluntarily consent to change his/her duty station to Des Moines or any other location. The Agency does not dispute the Union's explanation of the meaning of the proposal. Accordingly, based on the proposal's terms and the Union's interpretation, which is consistent with the plain wording of the proposal, we adopt the Union's interpretation of Proposal 1 as requiring the Agency to grandfather the Knoxville Medical Center as the permanent duty station of record for those pharmacy employees required to report to Des Moines on February 6, 2006 unless the employees voluntarily consent to change their station of record. See, e.g., Nat'l Education Assoc., Overseas Education Assoc., Laurel Bay Teachers Assoc., 51 FLRA 733, 737-38 (1996) (Laurel Bay) (when a provision/proposal is silent as to a particular matter, a union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording).

2.     Proposal 1 does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute

      Under its terms, Proposal 1 would prevent the Agency from implementing its decision to change the geographic location (duty station) of the subject employees, unless the affected employee consented to the change. The Authority has held that proposals pertaining to the geographical location in which employees or organizational units will conduct the agency's operations concern the exercise of management's right to determine its organization under § 7106(a)(1) of the Statute. See, e.g., Int'l Fed'n of Prof'l and Technical Eng'rs, Local 96, 56 FLRA 1033, 1035 (2000); NFFE, Local 7, 53 FLRA 1435, 1438-39 (1998). Moreover, the Union concedes that Proposal 1 affects management's right to determine its organization. See, e.g., AFGE, Local 1712, 62 FLRA 15, 16-17 (2007) (union's failure to respond to agency's assertion that proposal affected management's right constituted a concession). Accordingly, as the Union does not dispute the Agency's claim, we find that Proposal 1 affects management's right to determine its organization under § 7106(a)(1) of the Statute.

      [ v62 p461 ] The Union argues that the proposal is negotiable as an appropriate arrangement under § 7106(b)(3). In determining whether a proposal constitutes an appropriate arrangement within the meaning of § 7106(b)(3), the Authority applies the analytical framework set forth in KANG. Under this framework, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See KANG, 21 FLRA at 31. If the proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management's rights. See id., 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      The Agency does not dispute the Union's claim that the proposal constitutes an arrangement for employees adversely affected by the exercise of its management right, but argues only that assuming it is an arrangement, it is not an appropriate arrangement because it excessively interferes with its right to determine its organization. For the following reasons, we find that the proposal excessively interferes with that right.

      In this respect, the Authority has previously held that a proposal that required an agency to maintain duty stations for employees prohibited the agency from eliminating those duty stations insofar as the incumbents were concerned and, thus, did not constitute an appropriate arrangement under § 7106(b)(3). See AFGE, AFL-CIO, Local 3805, 5 FLRA 693 (1981) (AFGE). Proposal 1, like the proposal in AFGE, would prevent the Agency from implementing its decision to reorganize its pharmacy services by changing the geographic location (duty station) of the subject employees from Knoxville to Des Moines. The fact that the proposal would not preclude management from changing an employee's duty station to Des Moines, VA CIHS if the employee consented to the change, does not outweigh the significant burden on management's right imposed by the proposal's requirement that the Knoxville Medical Center remain as the station of record. If an employee did not consent to the change, management could not implement its decision. The proposal thus excessively interferes with management's right to determine its organization under § 7106(a)(1) of the Statute.

      Accordingly, we find that Proposal 1 does not constitute an appropriate arrangement within the meaning of § 7106(b)(3) and, therefore, it is outside the duty to bargain.

III.     Proposal 1(a)

Management shall provide transportation for the Knoxville bargaining unit employees to Des Moines. Travel between Knoxville and Des Moines shall be considered duty time.

Petition at 5.

A.     Position of the Parties

1.     Agency

      The Agency asserts that Proposal 1(a) "excessively interferes with management's . . . rights under [§] 7106(a)" of the Statute, including the rights to assign work and determine its organization. SOP at 5. Additionally, the Agency contends that Proposal 1(a) is contrary to 5 C.F.R. § 551.422(b) because it is well-established that home to work travel is not compensable for Federal employees, and 31 U.S.C. § 1344(a), which "precludes the shuttle arrangement proposed in Proposal 1[a]." [n4]  SOP at 11.

      Additionally, the Agency contends that Proposal 1(a) does not constitute an appropriate arrangement because it excessively interferes with management's right to assign work. In support, the Agency cites NAGE, 37 FLRA 263 (1990) (Proposal E), where the Authority found that a proposal, which established a blanket requirement that employees on detail be allowed to return to their regular work sites during regular work hours without providing for any consideration of agency staffing needs, excessively interfered with management's right to assign work. [n5] 

2.     Union

      In its petition, the Union states that prior to the pharmacy consolidation, the subject employees reported to their duty station at the Knoxville Medical Center at a specified time. According to the Union, Proposal 1(a) would require the Agency to provide shuttle service for employees to travel between the Knoxville and Des Moines facilities and that the "trips between [the facilities] would be on duty time." Petition at 5. The Union states that employees would report for duty at the beginning of their tour and be transported to the Des Moines [ v62 p462 ] facility and later, one hour prior to the conclusion of their tour of duty in Des Moines, the employees would report to the transportation office for the shuttle ride back to the Knoxville Medical Center.

      The Union asserts that management's decision to consolidate the pharmacy services will have an adverse impact on the Knoxville Medical Center employees and that Proposal 1(a), by requiring management to "bear the travel costs between facilities[,]" will ameliorate travel expenses for employees and address the additional time that employees will be spending on the road. Id.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      According to the Union, Proposal 1(a) would require the Agency to provide "shuttle service" from the Knoxville facility to the Des Moines facility and return. Id at 5. Employees would arrive at the Knoxville facility at the beginning of their tour of duty and arrive back at this facility at the end of their tour. Record at 2. The Union also states that Proposal 1(a) allows the Agency the "discretion to determine the type of transportation as long as such transportation was reasonable, i.e., not a pick up truck or similar transportation." Id. The Agency does not dispute the Union's explanation of the meaning of the proposal. Based on the wording of Proposal 1(a) and the Union's explanation, we adopt the Union's meaning of Proposal 1(a) as requiring the Agency to provide employees reassigned from the Knoxville Medical Center to the Des Moines facility transportation, that is, shuttle service, from Knoxville to Des Moines and return, and to treat the travel time as duty time. See, e.g., Laurel Bay, 51 FLRA at 737-38.

2.     Proposal 1(a) is contrary to law and a Government-wide regulation

      For the reasons that follow, we find that Proposal 1(a) is inconsistent with 31 U.S.C. § 1344(a) and 5 C.F.R. § 551.422(b).

      Under 31 U.S.C. § 1344(a)(1), funds generally may not be spent to provide passenger vehicles to transport employees from their homes to their duty stations. See Appendix. Similarly, under 5 C.F.R. § 551.422(b), commuting time, that is "home to work" travel, is not an activity that constitutes hours of work and, therefore, is not compensable. See id.

      As mentioned above, the Union did not file a response to the Agency's SOP. Also, there is nothing in the record indicating the Union's position with respect to the Agency's claim that the proposal is contrary to 31 U.S.C. § 1344(a) and 5 C.F.R. § 551.422(b). Under the Authority's Regulations, a union "has the burden of raising and supporting arguments that the proposal . . . is within the duty to bargain[.] 5 C.F.R. § 2424.32(a); see AFGE, Local 1858, 56 FLRA 1115, 1117 (2001) (Local 1858). Under § 2424.32(c)(2), a party's "[f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion." 5 C.F.R. § 2424.32(c)(2). Applying these regulatory provisions, we find that, by failing to respond to the Agency's SOP, or providing any arguments to address the Agency's claim, the Union has effectively conceded that the proposal is contrary to 31 U.S.C. § 1344(a) and 5 C.F.R. § 551.422(b).

      Accordingly, we find that Proposal 1(a) is outside the duty to bargain because it is contrary to law and a Government-wide regulation. [n6] 

IV.     Proposal 1(b)

In the case that transportation is not provided, bargaining unit employees will be paid mileage for their travel to and from the Des Moines Campus.

Petition at 6.

A.      Position of the Parties

1.     Agency

      The Agency asserts that Proposal 1(b) would require it to pay employees a mileage allowance for their travel to the Des Moines facility from either the Knoxville facility or their homes. The Agency states that 5 U.S.C. § 5704(a) authorizes Federal agencies, consistent with the Federal Travel Regulations, to pay a mileage allowance to an employee only where that employee is "engaged on official business for the Government[.]" [n7]  SOP at 10 (quoting 5 U.S.C. § 5704(a)). The Agency asserts that 5 U.S.C. § 5704(a) precludes [ v62 p463 ] the mileage allowance proposed in Proposal 1(b), which is not for official purposes.

      The Agency also argues that Proposal 1(b) is "dependent on Proposal 1" and therefore, "it too excessively interferes with management's rights under 5 U.S.C. § 7106(a)(1)." SOP at 8.

2.     Union

      The Union asserts that if management does not provide transportation to the Des Moines facility, most of the affected employees will be driving an additional 26 to 103 miles a day. Referring to information that shows the annual cost of operating a vehicle, the Union asserts that Proposal 1(b) seeks to address the adverse impact of the reassignment to Des Moines on unit employees.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      The Union states that Proposal 1(b) requires the Agency to place an employee in a duty status and pay the Government-approved mileage reimbursement for the employee's commute from home to Des Moines and back. Accordingly, based on the wording of the proposal and the Union's explanation, which the Agency does not dispute, we adopt the Union's interpretation of Proposal 1(b) as requiring the Agency to place an employee in a duty status and pay the Government-approved mileage reimbursement for the employee's "commute from home to Des Moines and back." Record at 2. See, e.g., Laurel Bay, 51 FLRA at 737-38.

2.      Proposal 1(b) is contrary to law

      Under 5 U.S.C. § 5704, employees may be reimbursed mileage expenses for travel on "official business" for the Government. See Appendix.

      As mentioned above, the Union did not file a response to the Agency's SOP. Also, there is nothing in the record indicating the Union's position with respect to the Agency's claim that the proposal is contrary to 5 U.S.C. § 5704. For the same reasons that we found the Union effectively conceded that Proposal 1(a) was contrary to 31 U.S.C. § 1344(a) and 5 C.F.R. § 551.422(b), we find that the Union has effectively conceded that Proposal 1(b) is contrary to 5 U.S.C. § 5704.

      Accordingly, we find that Proposal 1(b) is outside the duty to bargain because it is inconsistent with 5 U.S.C. § 5704. [n8] 

V.     Proposal 1(c)

Travel to any site other than the employee['s] station of record will be on duty time.

Petition at 8.

A.     Positions of the Parties

1.     Agency

      The Agency asserts that, like Proposal 1(a), Proposal 1(c) would require management to "treat employees commute time as duty time, thereby preventing management from exercising its rights under . . . § 7106(a)(2)(B) [of the Statute] to assign . . . employees work place duties" while the employees are in a commuting status, but being compensated. SOP at 8. The Agency further asserts that the proposal does not constitute an appropriate arrangement because, like Proposal 1(a), it would "excessively interfere" with management's right to assign employees. Id.

      Citing Authority precedent, including NTEU, 59 FLRA 119 (2003), the Agency also contends that Proposal 1(c) is contrary to 5 C.F.R. § 551.422(b) because it would require management to permit employees to commute to work on duty time.

2.     Union

      In its petition, the Union asserts that there may be occasions where employees are required to work at a remote community based outpatient clinic and that Proposal 1(c) merely requires an employee to be in a duty status when required to travel to a facility that is not the employee's official station of record.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      The Union states that Proposal 1(c) requires the Agency to schedule employees to travel from their duty station of record to either the Des Moines facility or to a community based outpatient clinic while on duty time and in pay status. Record at 3. The Union further asserts that the proposal does not allow the Agency to change the employee's station of record without the employee's consent. Id. The Agency does not dispute the Union's explanation of the meaning of the proposal. Accordingly, based on the proposal's terms and the Union's explanation, we adopt the Union's interpretation [ v62 p464 ] of Proposal 1(c) as requiring the Agency to place in duty status employees required to travel from their duty station of record to either the Des Moines facility or to a community based outpatient clinic. See, e.g., Laurel Bay, 51 FLRA at 737-38. We further adopt the Union's interpretation of its proposal as permitting the Agency to change an employee's station of record only if the employee consents to such change.

2.     Proposal 1(c) is contrary to a Government-wide regulation

      As with Proposal 1(a), the Union has failed to respond to the Agency's claim that Proposal 1(c) is inconsistent with 5 C.F.R. § 551.422(b). Therefore, for the reasons stated above with respect to Proposal 1(a), we find that Proposal 1(c) is inconsistent with 5 C.F.R. § 551.422(b). Accordingly, we find that Proposal 1(c) is outside the duty to bargain.  [n9] 

VI.     Proposal 2

In the event the Department requires Knoxville bargaining unit employees to drive directly [from] their homes to Des Moines campus, the employees shall receive overtime or opt for compensatory time for such travel to and from Des Moines.

Petition at 9.

A.     Positions of the Parties

1.     Agency

      According to the Agency, Proposal 2 provides "overtime compensation or, at the employee's option, compensatory time [off]" for time spent traveling between home and the Des Moines facility. SOP at 10. The Agency asserts that Proposal 2 thus requires management to regard employees' commute time as duty time, thereby preventing management from exercising its right under § 7106(a)(2)(B) of the Statute to assign employees work during such time.

      The Agency further asserts that Proposal 2 does not constitute an appropriate arrangement because it "excessively interferes" with management's right to assign work. SOP at 5. Lastly, citing Authority precedent, the Agency contends that Proposal 2 is inconsistent with 5 C.F.R. § 551.422(b) because it would require the Agency to compensate employees for commute time.

2.     Union

      The Union contends that Proposal 2 addresses the additional time the affected employees will have to spend traveling to and from the new duty station. According to the Union, the affected employees "will be spending between 156 to 676 additional travel hours per year as a result of the consolidation." Petition at 9.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      According to the Union, Proposal 2 allows the Agency to schedule an employee to work a full eight-hour shift at the Des Moines facility, but requires the Agency to pay the employee overtime or grant compensatory time off for the employee's commute to and from Des Moines to their home. The Agency asserts that Proposal 2 requires management to treat the subject employees commute time as duty time. Based on the Union's explanation and the wording of Proposal 2, we adopt the Union's interpretation of its proposal as requiring the Agency to compensate employees, either by payment of overtime or compensatory time off, for increased commute time from their homes to and from the Des Moines facility. See, e.g., Laurel Bay, 51 FLRA at 737-38.

      The Union also explains that the "payment of overtime is only entitled where such payment is consistent with law and the proposal should be interpreted with this understanding." Record at 3. When a union's explanation is not supported by a reasonable construction, the explanation is deemed inconsistent with the plain wording of the proposal, and the Authority does not adopt it for the purpose of determining whether the provision is contrary to law. See AFGE, Local 12, 60 FLRA 533, 537 (2004) (citing NTEU, 53 FLRA 539, 543 (1997)) (Member Armendariz concurring). For the reasons expressed below, we do not adopt the Union's explanation.

2.     Proposal 2 is contrary to a Government-wide regulation

      As with Proposals 1(a) and 1(c), the Union has failed to respond to the Agency's claim that Proposal 2 is inconsistent with 5 C.F.R. § 551.422(b). As previously stated, under 5 C.F.R. § 551.422(b), commuting time, that is "home to work" travel is not an activity that constitutes hours of work and is not compensable under the circumstances presented here. See also 5 C.F.R. § 551.401(h). In this regard, Proposal 2 would require the Agency to compensate employees for increased time for the commute from their homes to their official duty [ v62 p465 ] station in Des Moines. As such, we find that Proposal 2, for the reasons stated above with respect to Proposals 1(a) and 1(c), is inconsistent with 5 C.F.R. § 551.422(b), and further, because of such inconsistency, the proposal, contrary to the Union's explanation, cannot be interpreted in a manner that is consistent with such regulation. Accordingly, we find that Proposal 2 is outside the duty to bargain.

VII.     Order

      The petition for review is dismissed. [n10] 


APPENDIX

1.      The text of 5 C.F.R. § 551.422(b) provides as follows:

5 C.F.R. § 551.422 Time spent traveling.

(b) An employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal "home to work" travel; such travel is not hours of work. When an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work as specified in paragraphs (a)(2) and (a)(3) of this section.

2.      31 U.S.C. § 1344 provides, in relevant part, as follows:

31 U.S.C. § 1344. Passenger carrier use

(a)(1) Funds available to a Federal agency, by appropriation or otherwise, may be expended by the Federal agency for the maintenance, operation, or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes. Notwithstanding any other provision of law, transporting any individual other than the individuals listed in subsections (b) and (c) of this section between such individual's residence and such individual's place of employment is not transportation for an official purpose.
     (2) For purposes of paragraph (1), transportation between the residence of an officer or employee and various locations that is--
(A) required for the performance of field work, in accordance with regulations prescribed pursuant to subsection (e) of this section, or
(B) essential for the safe and efficient performance of intelligence, counterintelligence, protective services, or criminal law enforcement duties,
is transportation for an official purpose, when approved in writing by the head of the Federal agency.
     (3) For purposes of paragraph (1), the transportation of an individual between such individual's place of employment and a mass transit facility pursuant to subsection (g) is transportation for an official purpose.

3.      5 U.S.C. § 5704, in relevant part, is set out below:

§ 5704. Mileage and related allowances

(a) (1) Under regulations prescribed