[ v26 p532 ]
26:0532(63)NG
The decision of the Authority follows:
26 FLRA No. 63
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-109, AFL-CIO
Union
and
VETERANS ADMINISTRATION MEDICAL
CENTER, NEWINGTON, CONNECTICUT
Agency
Case No. 0-NG-1254
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authortiy because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of six proposals. The Union submitted the
proposals following the Agency's establishment of new tours of duty for
three work leaders which required the three work leaders to work on
Sundays on a rotational basis. The new tours of duty changed a past
practice under which one of the work leaders had not been assigned to
work Sundays. The Union had filed an unfair labor practice charge
against the Agency but withdrew the charge in exchange for the
opportunity to submit bargaining proposals on the matter.
II. Proposal 1 /1/
Management withdraw working leaders from weekend coverage, and
allow the weekend crew to function as the evening crew in a
non-supervised capacity.
A. Positions of the Parties
The Union argues that the weekend crew is essentially the same in
size and function as the night crew, which is not supervised by work
leaders, and therefore work leaders are not needed to supervise the
weekend crew. The Agency contends that the proposal prevents it from
assigning weekend duty to the work leaders and violates its right to
assign work under section 7106(a)(2)(B) of the Statute.
B. Analysis and Conclusions
We agree with the Agency that Proposal 1 would prevent it from
assigning weekend work to the work leaders. The Authority has
consistently held that the right of management to assign work under
section 7106(a)(2)(B) includes the right to determine: (1) what
particular duties will be assigned, (2) when work assignments will
occur, and (3) to whom or to what position duties will be assigned. See
Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and
Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 21
FLRA No. 65 (1986), petition for review filed sub nom. Department of the
Navy, Navy Public Works Center, Norfolk, Virginia v. FLRA, No. 83-3870
(4th Cir. June 17, 1986). Particularly, the right to assign work
includes the discretion to determine when management wants the duties it
assigns to its imployees to be performed. See International Association
of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437
(1980). Proposal 1 clearly and expressly prohibits the use of work
leaders on weekends and thereby denies management its reserved right to
determine that work leaders are necessary to supervise weekend crews.
Accordingly, we conclude that Proposal 1 directly interferes with the
Agency's right to assign work under section 7106(a)(2)(B) and is outside
the duty to bargain.
III. Proposal 2
Management promote or hire a permanent weekend working leader.
A. Positions of the Parties
The Union asserts that the Agency could designate one of the weekend
crew to provide guidance and supervision and relieve the work leaders of
the need to work on weekends. The Agency contends that the proposal
would violate its rights to assign work and to hire employees under
section 7106(a) of the Statute because it would require the Agency to
hire or promote a permanent weekend work leader.
B. Analysis and Conclusions
As explained by the Union, Proposal 2 provides that work leader
duties would be assigned to one of the weekend crew to provide necessary
supervision in the absence of a work leader. We agree with the Agency
that the Union's proposal would require the hiring or assignment of an
employee to perform work leader duties on weekends. Such a requirement
is inconsistent with the discretion inherent in management's rights
under section 7106(a)(2)(A) "to hire" employees and section
7106(a)(2)(B) to "assign work." American Federation of Government
Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army
Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Proposal
3). Accordingly, we find that Proposal 2 is contrary to section
7106(a)(2)(A) and (B) and is outside the Agency's duty to bargain.
IV. Proposals 3, 6, and 7
The FLRA Members disagree over the negotiability of these proposals.
The decision and order on Proposals 3, 6, and 7, and Chairman Calhoun's
dissent immediately follow this decision.
V. Proposal 4
Management allow Mr. Batchelor to perform an alternative work
schedule in order for him to perform his church duties and
responsibilities.
A. Positions of the Parties
The Union states that this proposal would allow Mr. Batchelor to
rearrange his hours so that if he did work on Sunday he could work a
split shift, which would enable him to perform his work leader duties
and to retain his church position. The Agency contends that this
proposal would require it to permit Mr. Batchelor to split his shift and
thereby interferes with its right to assign work under section
7106(a)(2)(B).
B. Analysis and Conclusion
As explained by the Union, Proposal 4 is intended to provide for the
rearrangement of Mr. Batchelor's hours of work to allow him to work a
split shift and thereby to permit him to perform both his duties as
church pianist and his work for the Agency. Union Submission dated
April 23, 1986 at third page. We agree with the Agency that this
proposal would violate its right to assign work. Proposal 4 would
require the Agency to set Mr. Batchelor's work schedule so that he would
not work on Sunday morning, and would thereby interfere with the
Agency's right to determine when assigned work should be performed. See
National Treasury Employees Union and Internal Revenue Service, 17 FLRA
379 (1985) (Proposal 1), affirmed as to Proposal 1 sub nom. NTEU v.
FLRA, No. 85-1320 (D.C. Cir. Feb. 6, 1987). Therefore, for the reasons
set forth in Internal Revenue Service, Proposal 4 directly interferes
with management's right to assign work under section 7106(a)(2)(B) of
the Statute and is outside the duty to bargain.
VI. Consideration of Whether Proposals 1, 2 and 4
Constitute Appropriate Arrangements Under Section
7106(b)(3)
The Union contends that its proposals relate to a
management-initiated change in conditions of employment and therefore
are negotiable under section 7106(b)(3) of the Statute. Specifically,
the Union asserts that the proposals are intended to be appropriate
arrangements for employees (namely, Mr. Batchelor) adversely affected by
the exercise of management's rights, and cites the Authority's decision
in National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4 (1986). We find, however, that under
the test articulated in Kansas Army National Guard, Proposal 1, 2, and 4
do not constitute appropriate arrangements within the meaning of section
7106(b)(3). Even assuming that these proposals constitute
"arrangements" for adversely affected employees, they are not
"appropriate." Although the proposals would make it possible for Mr.
Batchelor to continue his outside employment as a church orgainist, they
would do so by eliminating management's discretion, under section
7106(a)(2)(B), to determine when work assignments will be performed and
its discretion, under section 7106(a)(2)(A), to hire and to assign
employees. We have consistently held that proposals which totally
abrogate the exercise of management's rights excessively interfere with
those rights and are not "appropriate arrangements" within the meaning
of section 7106(b)(3) of the Statute. 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 No. 9 (1987) (Provisions 6, 7 and 8).
Accordingly, we find that Proposals 1, 2, and 4 are not appropriate
arrangements under section 7106(b)(3).
VII. Order
The Union's petition for review is dismissed as to Proposals 1, 2 and
4.
Issued, Washington, D.C., April 2, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSALS 3, 6, AND 7
Proposals 3, 6, and 7
3. Management maintain the former schedule, which established
a set routine and allowed for persons to structure their lives and
livelihoods accordingly.
6. Management allow Mr. Batchelor to work the fifth Sunday of
the month plus all Saturdays.
7. Management allow Mr. Batchelor to work one fixed Sunday of
each month plus all/majority of saturdays.
A. Positions of the Parties
The Union states that these proposals would be for the primary
benefit of one employee, Mr. Batchelor, either by permitting him to
maintain his existing schedule of working all Saturdays with all Sundays
off or by assigning him to a new schedule of working only one Sunday a
month. The Union contends that any of these proposals would grant that
employee the seniority status he is allowed under the master agreement
and would allow him to retain his position as a church pianist.
The Agency contends that all three proposals are contrary to its
right to assign work under section 7106(a) and its right to establish
and assign employees to tours of duty under section 7106(b)(1), a matter
on which it has elected not to negotiate. Additionally, the Agency
contends that these proposals are not negotiable because they concern
the equitable scheduling of Saturday and Sunday duty, a matter
controlled by the master agreement and the local supplcmental agreement.
The Agency also contends that these agreements prohibit midterm union
bargaining proposals.
B. Analysis and Conclusion
1. Duty to Bargain
When a union files a negotiability appeal under section 7105(a)(2)(E)
of the Statute, section 7117(c) entitles it to a decision on the
negotiability issues which are in dispute and are within the statutory
authority of the Federal Labor Relations Authority to resolve. To the
extent that there are factual issues in dispute or to the extent that
the parties disagree as to whether the matters are controlled by a
master agreement and/or a local supplemental agreement, these 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, 306 n.6 (1984).
Therefore, the Agency's contentions -- that these proposals are
nonnegotiable because they concern the equitable scheduling of Saturday
and Sunday duty, a matter controlled by the master agreement and the
local supplemental agreement, and that these agreements prohibit
mid-term bargaining proposals -- should be resolved in other appropriate
proceedings.
2. Management Rights
The Agency requires work leaders to work on weekends. In the
circumstances of this case, two of the three work leaders rotated work
on the Sunday shift and the third, Mr. Batchelor, worked only on
Saturdays. In response to employee complaints, the Agency changed this
arrangement to require all three work leaders to rotate on the Sunday
shift. Proposals 3, 6, and 7 would, in essence, restrict the Agency's
ability to assign Mr. Batchelor to the Sunday shift.
As we recently stated, where more than one employee is qualified to
perform the work of a position, a union may negotiate procedures for the
selection of the particular employee who will perform that 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 No. 9 (1987)
(Provision 3). There is nothing in the record in this case which
indicates that the three employees involved are not equally qualified to
perform the duties of a work leader. Moreover, the Agency does not
claim, for example, that there are particular duties which are only
performed on Sundays and that in order for all work leaders to develop
the skills to perform those duties it is necessary that they all rotate
through the Sunday shift. Thus, Proposals 3, 6, and 7 have the same
effect as Provision 3 in Bureau of Engraving and Printing. That
provision required that particular individuals be assigned to a
particular shift. The Authority held that because the provision merely
concerned when, or on which shift the employees would perform the work
of their positions, it was within the duty to bargain. Proposals 3, 6,
and 7 in this case likewise merely concern which employee, among equally
qualified employees, will be assigned to a particular weekend shift.
For the reasons set forth in Bureau of Engraving and Printing,
therefore, those proposals are within the duty to bargain.
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposals 3, 6, and 7. /2/
Issued, Washington, D.C., April 2, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissenting Opinion of Chairman Calhoun
The proposals over which the Union seeks to bargain in this case
followed the settlement of an unfair labor practice charge filed by the
Union after the Agency instituted a change in the weekend work schedules
of three work leaders. Before the change, Mr. Batchelor was not
required to work on Sundays; Sunday work was performed by the other two
work leaders. The change, which required all three employees to work on
Sundays on a rotational basis, was initiated by the Agency in response
to a grievance filed by the other two employees which alleged that the
Agency was unfairly distributing Sunday work. Proposal 3 would require
the Agency to rescind the change and reinstitute the former schedule.
Proposals 6 and 7 would replace the new schedule with ones where Mr.
Batchelor would work either the fifth Sunday of each month and all
Saturdays, or one Sunday each month and the majority of Saturdays.
In finding these proposals to be negotiable, the majority relies on
its decision in 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 No. 9
(1987). I disagreed with the majority as to Provision 3 in Bureau of
Engraving and Printing, stating that unlike provisions which establish
general procedures to assign employees to shifts, provisions which
compel the assignment of particular individuals to particular shifts
conflict, in my view, with an agency's right to assign work. Proposals
3, 6 and 7 in this case would also require the Agency to assign specific
individuals to specific tours of duty. In National Treasury Employees
Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982), the court stated that
"the right to determine what work will be done, and by whom and when it
is to be done, is at the very core of successful management of the
employer's business." In my view, Proposals 3, 6 and 7, like Provision 3
in Bureau of Engraving and Printing, would enable the Union to interfere
with the Agency's management of its business and are nonnegotiable.
Moreover, I would also find that these proposals do not constitute
appropriate arrangements under section 7106(b)(3) of the Statute. Under
section 7106(b)(3), agencies and unions may negotiate appropriate
arrangements for employees adversely affected by the exercise of any
authority under section 7106 by management officials. See National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986). As is true under the Statute in
general, negotiations under section 7106(b)(3) must relate to unit
employees' conditions of employment. See generally Antilles
Consolidated Education Association and Antilles Consolidated School
System, 22 FLRA No. 23 (1986).
These proposals, however, are not appropriate arrangement within the
meaning of section 7106(b)(3). While the proposals would change Mr.
Batchelor's hours of work, the adverse effect that the Proposals are
intended to ameliorate is unrelated to his conditions of employment;
rather, the adverse effect is related to his ability to retain his
position as church pianist. While I would urge the parties to approach
matters like those involved in this case in a spirit of problem-solving
and reasonable accommodation to their respective interests without the
need to resort to the negotiability appeals procedure of the Statute, I
nonetheless find that for the reasons stated above, these proposals are
outside the Agency's statutory duty to bargain.
--------------- FOOTNOTES$ ---------------
(1) The proposals are numbered as submitted by the Union.
(2) In finding Proposals 3, 6, and 7 to be within the duty to
bargain, we make no judgment as to their merits.