21:1116(128)NG - NTEU, Chapter 153 and Dept. of the Treasury, USCS -- 1986 FLRAdec NG



[ 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 ri