31:0031(8)NG - NTEU and Customs Service -- 1988 FLRAdec NG
[ v31 p31 ]
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 an appropriate arrangement because it does not excessively interfere with the exercise of management's rights. We note that the Foreign Service Labor Relations Board recently found in American Foreign Service Association and United States Department of State, FS-NG-8, (Dec.8, 1987) (unpublished), that a proposal allowing employees to repatriate on request directly interfered with management's rights to assign employees and to assign work and was not an appropriate arrangement because the proposal did not address the adverse effects of the exercise of a management right. V. Order The Agency must, upon request, unless otherwise agreed to by the parties, bargain on the proposal. */ Issued, Washington, D.C., February 10, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote */ In finding this proposal to be within the duty to bargain, we make no judgment as to its merit.