25:0731(61)NG - NTEU and Customs Service, Northeast Region -- 1987 FLRAdec NG
[ v25 p731 ]
The decision of the Authority follows:
25 FLRA No. 61 NATIONAL TREASURY EMPLOYEES UNION Union and U.S. CUSTOMS SERVICE NORTHEAST REGION Agency Case No. 0-NG-1180 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 six Union proposals. For the reasons which follow we find five of these proposals negotiable and one proposal nonnegotiable. II. Threshold Issue The Agency contends that the Union's proposals concern matters which the parties have already agreed to in their National Agreement. The Agency also argues that the proposals are outside the scope of the change in working conditions. The record in this case fails to provide a basis for substantiating the Agency's assertion that provisions in the parties' master agreement limit negotiation on the six proposals in this case. Further, to the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, these issues may 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 at 306 n. 6 (1984). III. Proposal 1 All Qualified Employees (Custom Inspectors, Inspectional Aides and Customs Entry Aides) will be assigned to work locations which have been identified by the employer utilizing the bid process based on occupational seniority in a descending order. If there is a tie, in Customs service will be utilized to break the tie. If a tie still exists, service computation date will be used to break the tie. If the tie still exists, a lottery will be used to break the tie. In the alternative, Merit Promotion Principles will be utilized to assign employees. Proposal 2 All qualified employees (Customs Inspectors, Inspectional Aides and Customs Entry Aides) will rotate utilizing the bid process or in the alternative Merit Promotions Principles, every 6 months. Proposal 3 In order to maintain proficiency in significant aspects of the employees' assigned duties, employees will change work locations once a year. For purposes of this agreement, only the airport passenger (Volpe) assignment will be considered one work location and only the 7/3, 3/11, 4/12 shifts' assignments will be considered as one work location. Proposal 13 Assignments of Custom Inspectors to Duty Officer, Terrorist Team and Cargo Accountability Team (C.A.T.) will be made in accordance with Article 20, Section 5, of the National Agreement. These assignments will have a duration of 6 months. Proposal 14 The assignment of Customs Entry Aides to the Cargo Accountability team will be in accordance with Article 20, Section 5, of the National Agreement. This assignment will have a duration of 6 months. A. Positions of the Parties The Agency contends that these proposals violate its right to assign employees under section 7106(a)(2)(A) of the Statute and its right to assign work under section 7106(a)(2)(B). The Union contends that these proposals provide as follows: Proposal 1 establishes a procedure for assigning particular employees to specific work locations; Proposal 2 establishes a procedure for rotating employees among work assignments and the duration of those work assignments; proposal 3 concerns the duration of an assignment to a work location; and Proposals 13 and 14 apply provisions of the master agreement of assignments to specific programs and the duration of such assignments. B. Analysis and Conclusion These proposals were submitted as a result of the closing of the container inspection operations at Mystic Terminal in the port of Boston, Massachusetts. Prior to this closing Customs Inspectors at the Mystic Terminal, as well as at other established work locations in the port of Boston, were rotated between "slots" or work locations every two weeks. According to the Agency, the closing of the Mystic operation necessitated changes in the rotational assignments of Customs Inspectors at the various work locations in the port of Boston. Agency Statement of Position at 2-3. The Agency relies on American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Proposals IV-VI), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982) to support its claim that the proposals in this case violate its right under section 7106(a)(2)(A) to assign employees. This reliance is misplaced. Proposals IV-VI in that case were found to violate managment's right to assign employees because they prevented management from utilizing individual job-related characteristics such as judgment and reliability to determine which employee to assign to particular positions in the Agency. None of the proposals in this case would in any manner restrict management's right to assign employees to particular positions. Rather, the employees in this case have already been assigned to positions in the port of Boston and these proposals merely concern determinations as to the specific work locations where these employees will perform the duties that have already been assigned to their positions. Further, and in support of its argument that the requirement to rotate employees among the various established work locations every six months violates its right to assign, the Agency relies on the following cases: American Federation of Government Employees, Local 32, AFL-CIO and Office Personnel Management, 17 FLRA 326 (1985); International Association of Firefighters, Local F-109, AFL-CIO and Department of the Army, Headquarters, Carlisle Barracks, Carlisle, Pennsylvania, 8 FLRA 35 (1982); and American Federation of Government Employees, AFL-CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver Colorado, 3 FLRA 43 (1980). The proposals found nonnegotiable in those cases either prevented management from taking into account valid individual characteristics in making work assignments (Office of Personnel Management and Carlisle Barracks) or required the weekly rotation of employees regardless of whether any new work was available or whether work previously assigned had been completed (Denver Mint-Proposal I). The record in this case, however, establishes that the employees in the port of Boston currently rotate among the various work locations on a regular basis pursuant to procedures in the parties' master agreement and as to a result, perform all the duties incident to an assignment to a specific work location. Agency Statement of Position at 3. Union Reply Brief at 2-3. There is nothing in the express language of these proposals or otherwise in the record to support a claim that these proposals prevent the Agency from continuing to analyze individual characteristics in requiring employees to rotate in the port of Boston. Further, unlike the circumstance involving Proposal I in Denver Mint, the record in this case does not establish any linkage between the length of a rotational assignment and the particular duties performed. For the reasons set forth above, we find that these proposals do not interfere with management's right to assign employees under section 7106(a)(2)(A) or to assign work under section 7106(a)(2)(B) but rather, are within the duty to bargain. IV. Proposal 4 In the event of a bona fide emergency situation, and if the Employer chooses to assign personnel outside of the above identified provisions, the Employer will provide notice to the Union and negotiate over this change in accordance with Article 37 of the National Agreement. A. Positions of the Parties The Agency argues that the proposal interferes with its right to assign work under section 7106(a)(2)(B). The Union contends that the proposal merely requires notice to the Union when the Agency acts under section 7106(a)(2)(D) and therefore, the proposal is consistent with management's right to take action in an emergency under section 7106(a)(2)(D). B. Analysis and Conclusion Although not raised by the Agency, we find that Proposal 4 violates section 7106(a)(2)(D). That is, and contrary to the Union's assertion, Proposal 4 does not merely require the Agency to notify the Union whenever it determines that an emergency exists which necessitates changes in the rotational system of work assignments. Rather, the proposal expressly requires the Agency to negotiate on the changes it will make in the rotational system during an emergency. Thus, the proposal directly interferes with management's right, under section 7106(a)(2)(D) of the Statute, "to take whatever actions may be necessary to carry out the agency mission during emergencies." See Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 (1984) (Proposal 2 requiring "three days advance notice" of certain reassignments even in an emergency found to violate section 7106(a)(2)(D)). V. Order The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 1, 2, 3, 13, and 14. /*/ The Union's petition for review as to Proposal 4 is dismissed. Issued, Washington, D.C., February 13, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding these proposals to be within the duty to bargain we make no judgment as to their merits.