31:0031(8)NG - NTEU and Customs Service -- 1988 FLRAdec NG



[ v31 p31 ]
31:0031(8)NG
The decision of the Authority follows:


 31 FLRA NO. 8


NATIONAL TREASURY EMPLOYEES UNION

                   Union

      and

UNITED STATES CUSTOMS SERVICE

                   Agency

                                                   Case No. 0-NG-1449

               DECISION AND ORDER ON NEGOTIABILITY ISSUE

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of a single proposal. The
proposal would permit employees assigned to a particular duty
station to remain at that same duty station for a maximum of 10
years. We find that the proposal is within the duty to bargain
because it does not excessively interfere with management's
rights to assign employees and to assign work under sections
7106(a)(2)(A) and (B) of the Statute.

     II. Background and Proposal

     This case concerns the duration of assignments at
preclearance facilities for customs inspectors. Preclearance
facilities are United States Customs facilities located outside
the United States where passengers boarding flights for
destinations within the United States are "pre-cleared" through
U.S. Customs.

     In 1980 the Agency decided that the term of assignments to
preclearance facilities would be increased from 5 years to 10
years (an initial 2-year assignment with a maximum of four 2-year
extensions) in order to provide greater stability both for
employees and the Customs Service. Reply Brief at Attachment A.
On March 3, 1986, the Customs Service advised the Union of
its decision to reduce the maximum tour of duty of customs
inspectors located at these preclearance facilities overseas from
a maximum of 10 years to 5 years (an initial 2-year assignment
with a 2-year extension followed by a 1-year extension for
extenuating circumstances). The Agency determined to phase in the
5-year reduction in the length of an assignment by permitting
employees with more than 5 years' service at a preclearance
facility who were in the last year of a 2-year extension to
extend their assignment for 1 additional year. Statement of
Position at 2.  The Agency also indicated that further extensions
would be permitted for extenuating circumstances such as
dependents' schooling or health problems. Attachment 4 to
Statement of Position. The Union requested bargaining and
submitted the following proposal:

     Employees presently assigned to preclearance facilities will
     be permitted to remain for the full year period presently
     proposed commencing with the effective date of the new
     directive.

     III. Positions of the Parties

     The Agency argues that this proposal violates management's
rights to assign employees and to assign work under sections
7106(a)(2)(A) and (B) of the Statute, because it restricts the
duration of assignments. The Agency contends that the
complexities of the mission of the Customs Service and the
necessity for inspection personnel to be assigned a wide range of
duties mandate the curtailment of assignments to preclearance
facilities from a maximum of 10 years to 5 years.

     The Union explains that the purpose of this proposal is to
allow those inspectors who accepted an assignment to a
preclearance facility under the previous directive, which
permitted a 10-year tour of duty, to remain at that facility for
the full 10-year term. The Union argues that management's right
to assign employees and to assign work is not affected because
the Agency already had determined that these employees were
qualified to occupy these positions and already had assigned them
to those locations.

     The Union also argues that the proposal constitutes a
procedure for the selection and retention of a qualified
applicant under section 7106(b)(2) or an appropriate arrangement
under section 7106(b)(3) of the Statute. 

     IV. Analysis and Conclusion

     1. The Proposal Interferes with the Right to Assign
Employees and the Right to Assign Work

     The right to decide when an assignment should begin and end
is inherent in the right to assign employees under section
7106(a)(2)(A). See American Federation of Government Employees,
AFL - CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 
292 (1981). See also American Federation of State, County and
Municipal Employees, Local 2910 and Library of Congress, 18 FLRA 
241, 243 (1985) (Proposal 1). This proposal prevents the Agency
from reducing the duration of a particular duty assignment. Thus,
it directly interferes with management's right to assign
employees under section 7106(a)(2)(A).

     In addition, this proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B).
According to the Agency's uncontested statement, customs
inspectors assigned to preclearance facilities perform a limited
scope of duties. By preventing the Agency from reassigning
inspectors from preclearance facilities to other positions for up
to 5 years, this proposal prevents the Agency from assigning
duties to these inspectors other than the limited preclearance
inspection duties. Therefore, we find this proposal also directly
interferes with management's right to assign work. Proposals
which prevent an agency from assigning particular duties to
employees violate management's right to assign work. See, for
example, National Federation of Federal Employees, Local 1214 and
Headquarters, United States Army Training Center, Fort Jackson,
South Carolina, 11 FLRA  580 (1983).

     We reject the Union's claim that this proposal merely delays
the exercise of those rights. Rather, this proposal permits
employees to determine when they will be reassigned to positions
or when they will perform particular duties associated with their
positions. Compare National Treasury Employees Union and U.S.
Customs Service, Northeast Region, 25 FLRA  731 (1987) (Proposals
requiring, among other things, that employees would rotate to
particular work locations every 6 months where the agency sought
to rotate employees every 2  weeks found not to violate
management's rights to assign employees or to assign work under
sections 7106(a)(2)(A) and (B) because the record did not
establish any linkage between the length of a rotational
assignment and the particular duties performed). 

     Because this proposal directly interferes with management's
right to assign employees and to assign work under sections
7106(a)(2)(A) and (B), it does not constitute a negotiable
procedure under section 7106(b)(2). See American Federation of
Government Employees, AFL - CIO and Air Force Logistics Command,
Wright - Patterson Air Force Base Ohio, 2  FLRA  604 (1980),
enforced as to other matters sub nom. Department of Defense v.
FLRA,  659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE
v. FLRA,  455 U.S. 945 (1982).

2.  The Proposal is an Appropriate Arrangement

     The proposal directly interferes with management's right to
assign employees and to assign work under sections 7106(a)(2)(A)
and (B) and is outside the duty to bargain unless it is a
negotiable appropriate arrangement under section 7106(b)(3).

     In National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA  24 (1986), the
Authority stated that in order to determine whether a proposal
constitutes a negotiable appropriate arrangement, a determination
must be made as to whether the proposal is intended to be an
arrangement for employees who may be adversely affected by the
exercise of management's rights. If the proposal is intended to
be an arrangement, a determination must be made as to whether the
proposal is appropriate, or whether it is inappropriate because
it excessively interferes with the exercise of management's
rights.

     According to the Union, employees who accepted assignments
to preclearance facilities under the Agency's 1980 policy did so
with the expectation that they would remain at the preclearance
facility for a full 10 years. Reply Brief at 2.  The Union argues
that the adverse impact of the Agency's action to involuntarily
reduce the length of an assignment from 10 years to 5 years is
"substantial and irreparable." Id. at 5. The Union states that
employees who entered into long-term leases would be required to
pay off the remaining term of the lease, enter into sub-lease
agreements or forfeit substantial money deposits. The Union
claims further that employees who purchased homes would have to
sell those homes 5 years earlier than expected which would
increase the potential for negative financial consequences. In
addition, the Union states that employees also will suffer
because spouses who entered into employment arrangements based on
the expectation of remaining in a location for 10 years
will be required to terminate the arrangements and children will
be required to change schools during a school year.

     The proposal, on the other hand, would permit those
employees who were assigned to a preclearance facility under the
Agency's 1980 policy to remain at the preclearance facility for
the full 10-year term. New assignments to preclearance facilities
would last for the 5-year maximum tern authorized by the Agency's
1986 policy. Reply Brief at 2.  In other words, the proposal
would require the Agency to phase in the 5-year limitation.

     Involuntary reassignments of employees from positions at
preclearance facilities located outside the United States to
positions located within the United States may require employees
to relocate great distances at considerable expense. Based on the
wording of the proposal and the record as a whole, we find that
the proposal is an arrangement to mitigate the adverse effects on
employees caused by an involuntary reduction in the length of
their assignments at preclearance facilities from 10 years to 5
years. See National Association of Government Employees, Local
R14-87 and Department of the Army, Kansas Army National Guard,
Topeka, Kansas, 21 FLRA  380 (1986), where the Authority
determined that involuntary reassignments requiring employees to
relocate, perhaps great distances, causes significant negative
impact on affected employees.

     The issue which must be resolved is whether the proposal
excessively interferes with management's rights to assign
employees and to assign work under sections 7106(a)(2)(A) and
(B). We find the adverse effect on the exercise of management's
rights to be minimal. Only 100 employees would be affected and
then, only so long as they chose to remain at a preclearance
facility and continued to demonstrate acceptable performance.
Reply Brief at 5. According to the Union, this proposal would not
prevent the Agency from reducing the number of positions at a
preclearance facility or from closing a preclearance facility and
reassigning the employees to positions in the United States even
if their 10-year assignments had not been completed. Reply Brief
at 3.

     Moreover, as we previously noted in Section II of this
decision, the Agency itself contemplates that the reduction in
the length of assignments at preclearance facilities from 10
years to 5 years will be implemented in a gradual manner and
subject to extensions for hardship reasons. The Agency states
that employees with more than 5 years' service at a 
preclearance facility in the last year of a 2-year extension
would be permitted to extend their assignment for 1 additional
year. Statement of Position at 2.  Thus, according to the Agency,
an employee in the sixth year of an assignment could be permitted
to stay until the completion of the seventh year of an
assignment. Id. However, the policy would also apply, for
example, to employees in their eighth year of an assignment and
permit them to remain until the end of the ninth year.

     In conclusion, we find that the burden placed by this
proposal on management's right to assign employees and to assign
work is not so significant as to outweigh (1) the disruption to
an employee's life caused by an involuntary reassignment to a new
duty station up to 5 years earlier than expected, and (2)  the
benefit to employees conferred by permitting them to remain at
the preclearance facility for the full original 10-year term.
Consequently, we hold that this proposal is