35:0815(86)NG - - NFFE Local 1655 and Military Affairs, Illinois Air NG - - 1990 FLRAdec NG - - v35 p815
[ v35 p815 ]
The decision of the Authority follows:
35 FLRA No. 86
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DEPARTMENT OF MILITARY AFFAIRS
ILLINOIS AIR NATIONAL GUARD
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 27, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of 6 proposals presented by the Union during negotiations over the impact and implementation of a local policy on shop cleanliness at the Combined Support Maintenance Shop in North Riverside, Illinois.(*) Proposals 1, 2, 3, 4, and 6 would restrict or preclude management's assignment of various cleaning duties and are nonnegotiable because they directly interfere with management's right to assign work. In addition, Proposal 6 prevents management from taking disciplinary action against a technician who fails to clean a work area/bay that he or she did not make dirty and is, therefore, nonnegotiable because it also directly interferes with the Agency's right to discipline. Proposal 5, which requires the Agency to assign each technician to a work area/bay, is outside the duty to bargain because it directly interferes with the Agency's right to determine the method and means of performing work.
II. Proposal 1
Technicians will sweep their work area/bay when it becomes dirty. Each technician is only responsible for his/her area/bay.
Mopping will only be done when the floor becomes too dirty and is a safety hazard.
Dusting of areas/bays will not be done by technicians.
No technician will be required to police-up trash outside of his/her work area.
No technician will be held responsible for his/her area/bay, if it becomes dirty, when not used by the technician. The technician will not be required to cleanup areas they didn't make dirty.
A. Positions of the Parties
The Agency contends that the proposals "impose impermissible conditions upon the right of the [A]gency to require members of the bargaining unit to participate in general work area cleanup." Statement of Position at 2. The Agency asserts that the proposals would: (1) forbid the Agency to require the members of the bargaining unit to perform one type of cleaning (dusting); (2) condition the assignment of any type of cleaning on a negotiated standard (sweeping when work bay is dirty and mopping when a floor is so dirty that it is hazardous); (3) forbid the Agency to assign such duties to any member of the bargaining unit who had not taken part in causing the need for cleaning; and (4) prevent the Agency from assigning any military technician to perform such duties in any area other than his/her own work bay. Id. The Agency argues that these proposals are not materially different from Proposal 1 found nonnegotiable in National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarters Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA 949 (1985) (Keesler Air Force Base). The Agency also contends that Proposal 6 interferes with management's right to discipline employees by precluding the Agency from holding technicians responsible for cleaning areas that they did not dirty. The Agency argues that "[t]o the extent that the right of management to take any disciplinary action in such circumstances would be totally abrogated," the proposal is not materially different from Provision 3 in American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Fort Rucker). Statement of Position at 4.
The Union argues that the proposals do not excessively interfere with management's right to assign work. The Union asserts that Article XXXV - Miscellaneous Work, of the parties' agreement, establishes that employees will not be required to clean up areas other than their own work areas, and that Proposals 1, 4, and 6 only define how the cleaning of work areas/bays will be done. Petition at 1-2. The Union argues that the Agency has, by agreeing to Article XXXV, agreed to Proposals 1 and 4. In regard to Proposals 2 and 3, the Union asserts that the technicians' position description does not include the duties of mopping floors or dusting of areas/bays and that some supervisors assign these duties excessively. In addition, the Union asserts that Proposal 6 holds management responsible for ensuring that the employee who dirties an area is responsible for cleaning the area. The Union argues that "[n]o disciplinary action should be taken against a technician for something he/she did [not] do." Petition at 2.
B. Analysis and Conclusions
Proposals restricting an agency's ability to assign work in specified circumstances directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are outside the duty to bargain. See, for example, American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City, Missouri, 31 FLRA 988, 990 (1988) (Proposal 2); and Keesler Air Force Base. Thus, proposals that place a condition upon management's ability to assign work eliminate the discretion inherent in that right. Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 645-46 (1988).
Each of the proposals at issue here restricts and/or imposes conditions on the exercise of management's right to assign work. Proposal 1 conditions the Agency's right to assign sweeping duties to a technician on whether the employee's own work area/bay is dirty, and limits the Agency to assigning responsibility for a particular work area/bay to the technician assigned there. Proposal 2 conditions the Agency's right to assign a technician to mop a floor on whether the floor is "too dirty" and constitutes a "safety hazard." Proposal 3 prohibits management from assigning a technician to dust work areas/bays, and Proposal 4 prohibits management from assigning a technician to clean away trash outside his or her work area/bay. Proposal 6 prohibits management from assigning a technician to clean up an area that he or she did not make dirty.
In Keesler Air Force Base, the Authority held that Proposal 1, requiring management to avoid assigning janitorial or other custodial duties to certain types of employees, was nonnegotiable. The Authority found that the proposal placed restrictions on management's ability to assign work in specified circumstances and, thereby, directly interfered with management's right to assign work under the Statute. Similar to Proposal 1 in Keesler Air Force Base, Proposals 1, 2, 3, 4, and 6 in the present case impose conditions on, restrict, or even prohibit the assignment of certain work to technicians. We find that they, thereby, directly interfere with management's right to assign work.
We reject the Union's contention that Proposals 2 and 3 are negotiable because the technicians' position description does not include such duties as mopping the floor or dusting areas/bays. In American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985), the Authority found nonnegotiable Provision 2, which limited to certain circumstances the agency's ability to assign work "unrelated" to an employee's position description. The Authority ruled that, because the provision restricted management from assigning particular duties to the employees involved, it directly interfered with the right to assign work.
Similarly, we find here that whether the particular duties in dispute are specified in the technicians' position description is irrelevant to the negotiability of the proposals. Position descriptions reflect, but do not control, the assignment of work. See American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), 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) (Proposal 2, requiring position descriptions to accurately reflect duties regularly assigned to employees, held to be within the duty to bargain). Because Proposals 2 and 3 restrict the Agency's ability to assign the duties, the proposals directly interfere with the Agency's right to assign work and are outside the duty to bargain.
We also reject the Union's contention that Proposals 1, 4 and 6 are negotiable because they implement, in whole or in part, an Article of the parties' collective bargaining agreement. The fact that the parties may have reached agreement concerning identical or related matters is not pertinent to whether these proposals are consistent with management's right to assign work under the Statute. See Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1157 (1990) (the inclusion of an identical provision in a previous contract is not dispositive of whether the provision is inconsistent with applicable law and regulation).
With respect to Proposal 6, the Agency additionally claims that the first sentence interferes with management's right to discipline employees. The Agency claims that it would prevent management from taking disciplinary action against a technician who fails, upon being directed to do so, to clean a work area/bay that he or she did not make dirty. The Union impliedly agrees with this interpretation of the first sentence, as it states that "[n]o disciplinary action should be taken against a technician" in those circumstances. Petition at 2.
Proposals that prevent an agency from taking disciplinary action against an employee violate management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Fort Rucker, 28 FLRA at 1174-75. To the extent that Proposal 6 precludes management's disciplining technicians for not cleaning certain work areas/bays, the proposal violates the Agency's right to discipline. Id.; Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (Proposal 11).
We assume that the Union's argument, in its Petition, that the proposals do not "excessively" interfere with management's rights, is intended as an assertion that its proposals constitute appropriate arrangements for employees who are adversely affected by the exercise of management's rights under section 7106(b)(3) of the Statute. However, the Union fails to develop a record that would support such a finding by the Authority. For example, the record does not provide any information as to the nature and extent of any adverse effect that the Union perceives the assignment of duties will have on bargaining unit employees. The parties bear the burden of creating a record upon which we can make a decision. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to bear this burden acts at its peril. Consequently, we reject the Union's contention that the "proposal doesn't excessively interfere with management's right to assign work. . . ." Petition at 1. American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA No. 32, slip op. at 8-9 (1990).
Based on the foregoing, we find that Proposals 1, 2, 3, 4, and 6 are outside the duty to bargain.
III. Proposal 5
Each technician will be assigned a work area/bay by the Employer.
A. Positions of the Parties
The Agency argues that Proposal 5 interferes with management's right under section 7106(b)(1) to determine the methods and means by which it performs work. The Agency explains that the shop, as a maintenance facility for the National Guard, requires many trades and specializations. Generally, the major trades work in large open bay settings, which the Agency alleges facilitate the movement of the full variety of National Guard wheeled and tracked vehicles into and out of the working area. The Agency claims that "[m]anagement may . . . designate certain technicians to work in certain 'bays' . . . for the purpose of centralizing the usage of special tools; centralizing work on specific types of equipment; and/or improvement of workflow in general." Statement of Position at 3. The Agency further asserts that often a vehicle or piece of equipment must have several maintenance functions performed by several different technicians, which necessitates the movement of technicians to various work areas/bays where the vehicle or equipment is located. The proposal, the Agency argues, would preclude the Agency from assigning technicians to the various work areas/bays and, thus, would effectively control the functional grouping of work areas within the shop.
The Union argues that the proposal does not excessively interfere with management's right to determine the method and means of performing its work. The Union contends that technicians should know where they will be working at the start of the day and that such an assignment would not cause them to delay performing their work. Without further explanation, the Union states that "[t]his is part of the method and means of performing work, and a technician must have a work area to perform this work, such as a work area, work bay, office, desk and chair." Petition at 2.
B. Analysis and Conclusions
The Authority employs a two-part test to determine whether a proposal violates management's right to determine the "methods and means of performing work." First, an agency must show a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. For example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA No. 53, slip op. at 9 (1990) (Internal Revenue Service). The Authority has construed "method" as referring to the way in which an agency performs its work. Id. "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishing or furthering of the performance of its work. It need not be indispensable to the accomplishment of an agency's mission. Id., slip op. at 10. The term "performing work" is intended to include those matters that directly and integrally relate to the Agency's operations as a whole. Id.
The Agency argues, without contradiction by the Union, that: (1) the operation of the maintenance facility requires the frequent shifting of technicians from one w