21:0667(85)NG 21 FLRA NO -- 1986 FLRAdec NG
[ v21 p667 ]
The decision of the Authority follows:
21 FLRA NO. 85
NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, ANDOVER SERVICE CENTER, ANDOVER, MASSACHUSETTS Agency Case No. 0-NG-711
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 Union proposals which were made in response to a management determination to modify tours of duty.
The Agency contends that one of the proposals (Union Proposal 2) is not properly before the Authority because its text was not included in the petition for review. The Agency's argument is spurious, since the language of Proposal 2 was included and discussed in the Agency's Statement of Position. The record provides an adequate basis for an Authority determination on Proposal 2. The agency also contends that the Union's petition for review should be dismissed for failure to furnish a statement of meaning attributed to its proposals as required by section 2424.4(a)(2) of the Authority's Rules and Regulations. In accordance with established practice, the Union was afforded an opportunity to, and did, timely correct its failure to furnish a statement of the meaning attributed to its [ v21 p667 ] proposals. The procedural defect has therefore been corrected and the Agency's motion to dismiss is denied. See American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 909 (1984). The Agency further asserts that the petition for review is untimely with regard to Union Proposal 2. The Authority notes that, in response to the Union's request for an Agency head determination with respect to a revised Union Proposal 1, the Agency reiterated its position with respect to Union Proposal 2. The Union's petition was timely when calculated from the date of that Agency response. Finally, the Agency contends that the dispute is more appropriately resolved by resort to unfair labor practice procedures because of unresolved factual questions. Such an argument does not provide a basis for dismissing a negotiability appeal. 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).
Volunteers will be solicited to change their shift to 6:45 a.m. The numbers of employees needed to accommodate the overlap of shifts will be selected either by lowest SCD (service computation date) in unit if not enough volunteers are obtained or highest SCD in the unit if too many volunteers come forward.
A. Positions of the Parties
The Agency argues that this proposal conflicts with management's right, under section 7106(a)(2)(B) of the Statute, to determine the personnel by which its operations are carried out. Further, the Agency asserts that this proposal concerns the numbers, types and grades of employees and positions assigned to a tour of duty, and is negotiable only at the election of the Agency pursuant to section 7106(b)(1). The Union did not file a Reply Brief in this case.
The proposals in this case were offered in response to the Agency's announced plan to change the bargaining unit employees' tour of duty from a 7:45 a.m. to 4:15 p.m. tour to a 6:45 a.m. to a 3:15 p.m. tour. The Agency also planned to add a second shift, running from 3:45 p.m. to 12:15 a.m. [ v21 p668 ] This proposal would, in effect, require the Agency to continue the 7:45 a.m. starting time and solicit volunteers for the new 6:45 a.m. starting time. Selection for the earlier starting time would be based on earliest or latest service computation date depending on whether too many or too few employees volunteered for the shift starting at 6:45 a.m.
The Agency has failed to demonstrate how this proposal would interfere with management's right to determine the personnel by which agency operations are carried out. Since the Union did not propose a change in the 3:45 p.m. starting time of the afternoon shift planned by the Agency, retention of the shift beginning at 7:45 a.m., as required by the proposal, would result in a shift overlap of 30 minutes. That is, the 7:45 a.m. shift proposed by the Union would end at 4:15 p.m. and the afternoon shift established by the Agency would commence at 3:45 p.m. This circumstance contrasts with the Agency's proposed shift scheme which would result in a 30 minute gap between the end of the morning shift and start of the afternoon shift. As a result, this proposal has the effect of requiring management to have on duty during the period from 3:15 p.m. to 4:15 p.m. more employees than, in its judgment, are deemed necessary. 1 In our view, Union Proposal 1 has the same effect as the proposed shift structure found nonnegotiable in Department of the Air Force, Lowry Air Force Base, Colorado and American Federation of Government Employees, AFL - CIO, Local 1974, 16 FLRA No. 1104 (1984). In that case the Authority found that, because of a change in a commissary store's operating hours, the Union's proposed shift structure would have required the agency to employ workers before the store opened and, later in the day, to operate the store without employees. Thus, the Authority concluded, the Union's proposed shift structure had "the effect of determining the numbers, types and grades of employees assigned to a work project or a tour of duty, a matter which is bargainable at management's election under section 7106(b)(1) of the Statute." Since Union Proposal 1, in this case, would require a certain number of employees to be at work when the Agency has determined that no employees or a fewer number of employees are needed, it, too, falls within the ambit of section 7106(b)(1). [ v21 p669 ]
Proposal 1 relates to a matter which is negotiable only at the Agency's election under section 7106(b)(1) of the Statute. Since the Agency has elected not to bargain concerning this proposal, it is nonnegotiable.
Employees forced onto the 6:45 a.m. shift and (sic) have transportation problems will remain on their current shift for 4 weeks. "Centers" be utilized for 4 weeks to assist the employee in locating a ride to and from work.
A. Positions of the Parties
The Agency asserts that no obligation to bargain is created by this proposal because it does not concern a "condition of employment" as that term is defined in section 7103(a)(14) of the Statute. The Union did not submit a Reply Brief in this case.
The Agency contends that Proposal 2 does not address a condition of employment because "it relates to arrangements for employees' transportation to and from work." Agency Statement of Position at 3. However, the proposal does pertain to working conditions of unit employees, that is, procedures and appropriate arrangements in connection with management's changing the tour of duty. Further, it does not require any substantive action on the part of the Agency with respect to employee transportation. The first portion of the proposal provides that management will temporarily delay for four weeks the requirement that certain employees work the new tour of duty. The second portion of the proposal merely obligates the Agency to post carpool or transportation notices in what appears from the record to be a preexisting medium. The Agency does not allege that this proposal would prevent management from acting at all to require all employees to work the new tour of duty. Therefore, Proposal 2 in this case has the same effect as Union Proposal 11 in American Federation of Government Employees, AFL - CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982). That proposal would have required the agency to give notice prior to changing certain employee assignments. [ v21 p670 ] The Authority found that proposal to constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. Thus, based on U.S. Marshals Service, we find that Proposal 2 in this case is a negotiable procedure under section 7106(b)(2). In addition, because Proposal 2 does not interfere with management's decision to change the existing tour of duty but, rather, merely attempts to alleviate the effects of that decision, it also constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute.
We find this proposal to be both a negotiable procedure under section 7106(b)(2) of the Statute and an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute.
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 Proposal 1 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 concerning Union Proposal 2. 2
Issued, Washington, D.C., Ma