37:0263(18)NG - - NAGE and VA, VA Medical Center, Brockton/West Roxbury, MA - - 1990 FLRAdec NG - - v37 p263



[ v37 p263 ]
37:0263(18)NG
The decision of the Authority follows:


37 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

(Union)

and

VETERANS ADMINISTRATION(*)

VETERANS ADMINISTRATION MEDICAL CENTER

BROCKTON/WEST ROXBURY, MASSACHUSETTS

(Agency)

0-NG-1559

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 14, 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 two parts of a proposal submitted by the Union to the Agency (VA Medical Center, Brockton/West Roxbury).

The VA Medical Center, Brockton/West Roxbury is considered one consolidated facility, the official duty station of bargaining unit employees. The two locations of the facility (Brockton and West Roxbury) are 22 miles apart and are considered separate divisions within the Medical Center.

Employees may work at either Brockton or West Roxbury. An Agency shuttle bus operates between the two divisions. The Union's proposal was submitted in response to the Agency's proposed use of details between the divisions to meet temporary staffing needs.

Section E of the proposal requires supervisors to ensure that employees who are on detail to one division and who choose to use the shuttle bus will return to their normal division within regular duty hours at the end of their workday. Section E also requires overtime to be paid if the employees' return extends beyond regular duty hours. We conclude that Section E as a whole excessively interferes with management's right to assign work and that the second sentence of Section E violates overtime law and regulation. Accordingly, we find Section E to be nonnegotiable.

Section F of the proposal provides that employees who choose to use their own transportation to commute to and from work will spend a complete daily tour of duty at the division to which they have been assigned. Section F precludes management from shortening a detail on any given day and reassigning a detailed employee to his or her original division because of staffing needs, if the employee chooses to drive to work. Section F is outside the duty to bargain because it interferes with management's right under section 7106(a)(2)(A) to assign employees and is not an appropriate arrangement under section 7106(b)(3).

The Agency alleged generally that the proposal was nonnegotiable because it required overtime compensation for employees while commuting. Memorandum dated May 27, 1988, attached to Union's Petition for Review. The Union appealed the Agency's allegation that the proposal was nonnegotiable. In its response to the Union's appeal, the Agency indicated that Sections G and H were not in dispute. Agency's Statement of Position at 3. Therefore, the Union's petition for review as to those Sections is not properly before us. See section 7117(c) of the Statute and section 2424.1 of our Rules and Regulations.

II. Proposal

E. When an employee is ordered to report for duty the next day or a later day at the other division, each supervisor will ensure that the affected employee returns to his or her normal duty site within duty tour hours of his or her departure. Overtime will be paid if the assignment requires more than duty tour hours, including shuttle time. The above pertains to details of 120 days or less and does not pertain to employees on a compressed work week.

F. Employees who choose to use their own transportation will be required to spend a complete tour of duty at the assigned division.

G. The implementation of this procedure by supervisors will not be done in an arbitrary or capricious manner.

H. All assignments between divisions will be documented.

[According to the Agency, only the underscored portions are in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the underscored portions of the proposal are nonnegotiable because they are contrary to law and Government-wide regulation. The Agency argues that the proposal violates 5 U.S.C. § 5542(a), 5 C.F.R. § 551.422(b), 29 U.S.C. § 207, and 29 C.F.R. § 785.35 because it requires the payment of overtime for nonwork hours. Agency's Statement of Position at 4. The Agency asserts that the proposal would provide for the payment of overtime for employees who voluntarily ride the shuttle bus on nonduty time. The Agency argues that regardless of whether the employees are covered by the Fair Labor Standards Act (FLSA) or chapter 55 of title 5 of the United States Code, the employees are not entitled to overtime compensation for travel from work to home. According to the Agency, employees who ride on the shuttle bus are not performing work and, therefore, are not entitled to any overtime compensation for time spent on board the shuttle bus outside of duty hours. Agency's Statement of Position at 5.

The Agency further contends that the proposal is nonnegotiable because it violates management's rights to assign work and assign employees. The Agency argues that the right to assign work includes the right to assign specific duties to specific employees. The Agency states that the first sentence of Section E requires the assignment of specific duties to employees by requiring management to return an employee to "his or her normal duty site within duty hours of his or her departure." The Agency asserts that the proposal "prevents management from assigning [employees] any meaningful work during the time spent on the shuttle." Agency's Statement of Position at 6.

The Agency also argues that Section F of the proposal violates management's right to assign employees under section 7106(a)(2)(A) of the Statute. According to the Agency, the proposal would prevent management from assigning employees from one division to the other based on whether the employee used his or her own transportation to get to work, rather than on the skills of the employee and the needs of the Agency. The Agency contends that "[t]he effect of this proposal would be to give the employee the power to decide his or her assignment or decline assignment merely by using personal transportation to come to work." Agency's Statement of Position at 7.

The Agency contends that the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency states that a proposal which abrogates a management right instead of just ameliorating the effects of the exercise of that right is not an appropriate arrangement. The Agency argues that this proposal abrogates management's right to assign work and assign employees because it requires management to send employees back to their normal location during duty hours and prohibits management from detailing employees who use their own transportation to come to work. According to the Agency, the restrictions excessively interfere with management's rights and, therefore, are not appropriate arrangements.

By an order dated February 16, 1989, the Authority directed the parties to submit supplemental information regarding bargaining unit employees' FLSA status, appointment authority, and duty station designation. The parties were also asked whether the Agency had established a mileage radius in defining the duty station of employees for FLSA overtime and travel allowance purposes. In its supplemental submission, the Agency stated that the official duty station for bargaining unit employees encompasses both the Brockton and West Roxbury divisions and that it has established a 50-mile mileage radius in defining the duty station of employees for FLSA overtime and travel allowance purposes. The Agency also stated that the majority of the bargaining unit employees are subject to the FLSA. Finally, the Agency stated that the bargaining unit includes employees appointed under title 38, United States Code. According to the Agency:

There are 88 Licensed Practical Nurses and 6 Certified Respiratory Therapists appointed under title 38. Public Law 98-160 resulted in a partial conversion of these employees to title 38 for purposes that include appointment and classification. However, for most matters, including the bargaining agreement and the matters addressed in this negotiability appeal, those employees are considered to be title 5 employees.

Agency's Supplemental Submission, Appendix.

2. The Union

The Union contends that the Agency's argument is "totally wide of the mark." Union's Response at 1. The Union contends that the proposal involves time which the Agency requires to be spent in travel from work site to work site. The Union argues that 5 U.S.C. § 6101(b)(2) favors employee travel during hours of duty to the maximum extent practicable. Union's Response at 1. The Union also argues that payment of overtime would occur only if conditions beyond the employee's control mandate an extended tour of duty. The Union maintains that the proposal is consistent with 5 U.S.C. § 5542(b)(2)(B). Union's Response at 2.

The Union contends that the proposal does not prevent management from assigning work to be performed while employees are on the shuttle bus. The Union also argues that the proposal does not concern the performance of agency work or the technology, methods or means of performing work. Union's Response at 3. The Union notes that current Agency practice allows employees to return on the shuttle bus during work hours during the first day of a detail. The Union states that it merely seeks to extend this practice for the entire detail. Union's Response at 2.

The Union argues that its proposal is an appropriate arrangement for employees who are adversely affected by the exercise of management's right to assign work. The Union describes the adverse effects as disruption of commuting plans and child care arrangements. The Union maintains that the proposal does not excessively interfere with the exercise of management rights. The Union argues that the Agency has not demonstrated any negative impact on management's rights other than vague allegations regarding the productivity of employees who use the shuttle bus service.

The Union did not submit supplemental information in response to the Authority's order of February 16, 1989.

B. Analysis and Conclusion

1. Bargaining Unit Employees Appointed Under Title 38 of the United States Code

According to the Agency's supplemental submission, the bargaining unit includes employees appointed under title 5 of the United States Code and employees appointed under title 38 of the United States Code. It is unclear from the Agency's submission, however, whether the reference to "employees appointed under title 38" includes only professional medical employees of the Department of Medicine and Surgery (DM&S) who are subject to section 4108(a) of title 38 of the United States Code. Under section 4108(a) of title 38, the Administrator of the Veterans Administration (now the Secretary of the Department of Veterans Affairs) has discretion, notwithstanding any other law, to determine the conditions of employment of professional medical employees of the DM&S. The Veterans Administration, therefore, has no duty to bargain under the Statute over the conditions of employment of those employees. See Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988); U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA 131 (1990).

It is undisputed that the proposal is intended to apply to unit employees' conditions of employment. Consequently, to the extent that the bargaining unit includes professional medical employees of the DM&S who are subject to section 4108(a) of title 38, the Agency has no duty to bargain under the Statute over the proposal. The remainder of our decision concerns the negotiability of the proposal insofar as it applies to unit employees who are not subject to 38 U.S.C. § 4108(a).

2. Section E

Section E would allow employees who are on detail at one division to travel by Agency shuttle bus to the other division during the latter portion of their tour of duty. Under Section E, an employee would not be available to work for an entire daily tour of duty at the division to which he or she has been detailed. Rather, the employee would cease work at that division before the completion of the employee's tour of duty. During the time remaining in the tour of duty, the employee would ride the shuttle bus back to the other division. If the shuttle bus were delayed so that the employee did not return to his or her original division before the end of the tour of duty, Section E would require that the employee receive overtime pay for the additional time spent on the shuttle bus.

The Agency contends that Section E violates management's rights to assign work and assign employees. The Agency also contends that the second sentence of Section E is nonnegotiable because it provides overtime to employees who are not performing work and, therefore, is inconsistent with law and regulation. The second sentence provides for the payment of overtime only if the shuttle were delayed in traffic.

Without passing on whether Section E violates travel laws and regulations, we conclude that Section E as a whole excessively interferes with management's right to assign work and that the second sentence of Section E violates overtime law and regulation. Accordingly, we find Section E to be nonnegotiable.

a. Overtime Law and Regulation

With respect to the second sentence of Section E, the Agency asserts that it conflicts with 5 U.S.C. § 5542, 5 C.F.R. § 551.422(b), 29 U.S.C. § 207, and 29 C.F.R. § 785.35 only insofar as the proposal seeks overtime. We find that the second sentence of Section E is inconsistent with law and regulation governing overtime and, therefore, is nonnegotiable under section 7117(a) of the Statute.

The second sentence of Section E provides for the payment of overtime only if the shuttle bus were delayed in traffic. However, under applicable law and regulation governing overtime, overtime compensation is not available for the time spent by the employees riding on the shuttle bus. For FLSA-exempt employees, see 5 U.S.C. § 5542(b)(2) (text set forth in the Appendix to this decision); Barth v. United States, 568 F.2d 1329, 1331 (Ct. Cl. 1978); Mossbauer v. United States, 541 F.2d 823, 826 (9th Cir. 1976). For employees covered by the FLSA, see 5 C.F.R. § 551.422(b) and 29 C.F.R. § 785.35 (text set forth in the Appendix to this decision); Federal Personnel Manual (FPM) Letter 551-10, Attachment, Tables 1, 2, and 3; FPM Letter 551-11, Attachment, paragraph C; American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 358 (1988). Accordingly, the second sentence of Section E is nonnegotiable. Compare American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA No. 13 (0-NG-1635) (1990).

b. The Right To Assign Work

The Union claims that if management assigned work to the employees which could be performed while traveling on the shuttle bus, the proposal would be negotiable. Union's Response at 2-3. It is true that if the Agency required employees to ride the shuttle bus and perform assigned tasks while traveling on the shuttle bus, the time employees spend on the shuttle bus could become compensable time. However, the proposal would still be nonnegotiable because in that event the proposal would require the Agency to assign work to the employees on the bus. A proposal that requires management to assign work directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 20 FLRA 46, 48 (1985).

The right to assign work includes the right to assign specific duties to employees. National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 516 (1987) (Proposal 2). The first and second sentences of Section E would require the Agency to assign to detailed employees work which could be performed while they return to their original divisions on the shuttle bus. The sentences would preclude the Agency from assigning duties which could not be performed while employees are riding on the shuttle bus. By requiring the Agency to assign specific duties and precluding the Agency from assigning others, the first and second sentences of Section E directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

This conclusion is consistent with the Authority's decision in National Association of Government Employees, Local R-12-33 and National Federation of Federal Employees, Local 1374 and Pacific Missile Test Center, Point Mugu, California, 14 FLRA 275 (1984). In Pacific Missile Test Center, the union proposed that the time employees spent waiting for and traveling in a boat which transported them from shore to their work location on an offshore island be considered hours worked during normal working hours. The result was that management would have been precluded from assigning other types of work during those waiting and traveling periods, and that other assigned duties would have to be performed during fewer hours in the workday. Consequently, the Authority found that the proposal directly interfered with management's right to assign work under section 7106(a)(2)(B) and was outside the duty to bargain. See also American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 448-50 (1983).

Like the proposal in Pacific Missile Test Center, the first and second sentences of Section E would preclude the Agency from assigning other types of work to employees while they are returning on the shuttle bus to their original division during a portion of the workday, and would require other assigned duties which could not be performed while riding on the shuttle bus to be performed during fewer hours in the workday. Consequently, consistent with Pacific Missile Test Center, the first and second sentences of Section E directly interfere with management's right to assign work under section 7106(a)(2)(B).

We next consider the Union's argument that Section E is intended as an appropriate arrangement for employees adversely affected by the Agency's exercise of its right to assign employees to work on a temporary basis at the hospital to which they are not normally assigned. The Union states that the temporary assignments result in prolonging the employees' home/work commute, upsetting, among other things, car pool and child care arrangements. We conclude that Section E is intended to address, or compensate employees for, the adverse effects of the Agency's exercise of its right to assign them to work at the hospital to which they are not normally assigned and constitutes an "arrangement" under section 7106(b)(3).

Because we have concluded that the second sentence of Section E seeking overtime payments conflicts with 5 U.S.C. § 5542(b)(2) and/or 5 C.F.R. § 551.422(b), we need not address the applicability of section 7106(b)(3) to that sentence. However, with respect to the remaining portion of Section E, we must determine whether the proposed "arrangement" is "appropriate." As the Union points out, being at the temporary work site until the end of the regular workday has an impact on employees' commuting patterns. The extent to which this has an impact, either positively or negatively, on those commuting patterns is dependent on the personal circumstances of the employees; for example, where they live; what means of transportation they use, or have available, for commuting to work; and what child care arrangements, if any, they use or have available. Moreover, the adverse effects will vary among employees.

While it is the Agency's action in assigning employees to work at different work sites that is the catalyst producing any adverse effects, the employees' own personal circumstances determine the degree to which the effects are adverse. Thus, the circumstances giving rise to the adverse effects are, to some extent, beyond the Agency's control.

According to the Union, the temporary assignments are made because of staffing shortages. It follows that the temporary assignments are made based on the Agency's need for an employee's services at a particular work site. The management right affected by the proposal is the right to assign work. In particular, under the proposal the Agency would be required to allow the employees time to ride the shuttle back to their regular work site during their regular work hours in lieu of performing duties at the temporary duty site until the end of their regular work hours. Consequently, under the proposal the Agency would be required to do without the employees' services at the temporary work site during the period of time involved in the shuttle ride, and perhaps, require another employee to cover for the missing employee and make whatever adjustments in other work assignments and work schedules are necessary to accommodate employees' early departure from the work site.

The Union states that the Agency would be free to assign the employees duties to be performed while they are riding on the shuttle. The Union does not give any examples of which of the employees' regularly assigned duties, or any other duties, would be suitable for performance while riding the shuttle. Consequently, we are unable to determine to what extent it would be feasible to assign duties to the employees to lessen the "non-productivity" of the time spent riding on the shuttle.

As written, Section E leaves the Agency no option but to adjust work assignments in order to "ensure" that employees are able to return to their regular work site during their regular duty hours. Clearly, Section E would afford a benefit to employees by neutralizing the impact of the assignment to a different work site on their personal lives. On the other hand, Section E would have a significant impact on the Agency's discretion to make work assignments during an employees' regular work day. The Agency would have to forgo the assignment of duties at its hospitals to an employee during the period that the employee was entitled to ride the shuttle pursuant to the proposal. Section E, as written, establishes a general obligation on the part of the Agency to return employees to their regular work site during their regular duty hours without allowing consideration of the hardship that this will create in particular instances on the Agency in accomplishing its operations and without allowing consideration of the actual degree of hardship imposed on individual employees.

In our view, establishing a blanket requirement that employees be allowed to return to their regular work site during their regular workday without providing for any consideration of the Agency's staffing needs versus an individual employee's hardship excessively interferes with the management right to assign work. In our view, on balance, the burdens imposed on the Agency's ability to conduct its operations in an effective, efficient manner outweigh the benefits to employees.

c. Summary

Section E is outside the duty to bargain because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Moreover, the second sentence of Section E is inconsistent with law and Government-wide regulation governing the payment of overtime. In light of this determination, we need not address other arguments raised by the parties.

3. Section F

Section F provides that employees who use their own transportation will spend a complete tour of duty at the division to which they have been assigned. For the reasons stated below, we conclude that Section F is outside the duty to bargain because it excessively interferes with management's right under section 7106(a)(2)(A) to assign employees and is not an appropriate arrangement under section 7106(b)(3).

The Union offers no statement as to the intent of Section F of the proposal. The plain wording of Section F requires detailed employees who drive to work at the detailed location to remain at the detailed location for their entire daily tour of duty. The requirement would apply regardless of the staffing needs of the Agency.

Therefore, the proposal would preclude the Agency from reassigning employees who have driven to work at the detailed location to the other division during the employee's tour of duty.

The right to assign employees encompasses the right to determine the duration of an assignment. National Treasury Employees Union and United States Customs Service, 31 FLRA 31 (1988) (Customs Service). Section F would require that a detail last for a full daily tour of duty if employees drove to the division to which they had been detailed. Section F would preclude management from reducing the duration of a particular assignment--that is, from limiting the detail to less than a full daily tour of duty. Therefore, Section F directly interferes with management's right to assign employees under section 7106(a)(2)(A). See Customs Service, in which the proposal provided that employees assigned to a particular facility would be permitted to remain there for a full year. The Authority held that the proposal interfered with management's right to assign employees because it prevented the agency from reducing the duration of a particular assignment.

We reject the Union's contention that Section F constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the Agency's decision to detail them.

For employees who drive to work at one division and then are reassigned to the other division, the proposal alleviates the inconvenience to employees of having to return to the division to which they had driven to pick up their cars. The proposal alleviates this inconvenience by requiring management to keep employees at the division to which they have driven for their entire daily tour of duty. Section F constitutes an absolute bar to reassigning certain employees during a daily tour of duty. In effect, all employees could avoid being reassigned by simply driving to work, thereby precluding the Agency from reassigning any employee during a tour of duty regardless of whether that employee is the best or only qualified employee for the work at the other division. In our opinion, the burden placed on management's ability to meet the staffing needs of its respective divisions outweighs the benefit to employees afforded by Section F--eliminating the need for employees to return to the division to which they had driven to work in order to pick up a car.

Because the burden placed by Section F on management's right to assign employees is significant and is not outweighed by the benefit afforded employees, we conclude that Section F excessively interferes with management's right to assign employees under section 7106(a)(2)(A). Therefore, Section F does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute and is outside the duty to bargain.

Section F is distinguishable from the proposal at issue in Customs Service which was found to be an appropriate arrangement. In that case, the agency reduced the maximum tour of duty at preclearance facilities outside the United States from a maximum of 10 years to a maximum of 5 years. The Authority found that the burden on the agency of permitting employees to remain for a full year after the effective date of the change in policy did not outweigh the benefits to employees by allowing them to remain at the preclearance facility. 31 FLRA at 36. Noting that the agency would not be precluded from eliminating positions or closing preclearance facilities, the Authority concluded that the proposal in Customs Service did not excessively interfere with management's rights. 31 FLRA at 35-36.

The benefit afforded employees by Section F (eliminating the need for the employee to return to the division to which he or she had driven to work in order to pick up a car) is minor compared to the benefit conferred by the proposal in Customs Service (removing the need to move the employee's family to a new duty station). Unlike the proposal in Customs Service, the benefit afforded employees by Section F is not significant enough to offset the effects on management's right to assign employees.

We conclude that Section F is outside the duty to bargain because it excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute and is not an appropriate arrangement under section 7106(b)(3).

III. Order

The petition for review is dismissed.

APPENDIX

5 U.S.C. § 5542. Overtime rates; computation.

. . . . . . .

(b) For the purpose of this subchapter--

(1) unscheduled overtime work performed by an employee on a day when work was not scheduled for him, or for which he is required to return to his place of employment, is deemed at least 2 hours in duration; and

(2) time spent in a travel status away from the official-duty station of an employee is not hours of employment unless--

(A) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or

(B) the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively.

5 C.F.R. § 551.422. Time spent traveling.

(a) Time spent traveling shall be considered hours of work if:

(1) An employee is required to travel during regular working hours;

(2) An employee is required to drive a vehicle or perform other work while traveling;

(3) An employee is required to travel as a passenger on a one-day assignment away from the official duty station; or

(4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that co