37:0828(68)NG - - AFGE, National Council of Field Labor Locals, Local 644 and Labor, Office of the Assistant Secretary, Philadelphia, PA - - 1990 FLRAdec NG - - v37 p828



[ v37 p828 ]
37:0828(68)NG
The decision of the Authority follows:


37 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF FIELD LABOR LOCALS

LOCAL 644

(Union)

and

U.S. DEPARTMENT OF LABOR

OFFICE OF THE ASSISTANT SECRETARY

PHILADELPHIA, PENNSYLVANIA

(Agency)

0-NG-1716

DECISION AND ORDER ON NEGOTIABILITY ISSUE

September 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The petition for review in this case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves a single proposal. The proposal requires that (1) the length of an assignment to telephone duty be for no more than 1 day and (2) employees not be reassigned to telephone duty until all employees in the duty officer pool have had their turn as telephone duty officers. The Union did not file a response to the Agency's Statement of Position.

For the reasons discussed below, we find the proposal to be outside the duty to bargain because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

II. Proposal and Background

Those employees that are assigned to the pool of duty officers will be assigned to telephone duty for no more than one day and will not be reassigned to telephone duty until all members of the pool have had their turn as a telephone duty officer.

The proposal would apply to Compliance Safety and Occupational Health Officers (CSHO's) and Industrial Hygienists (I.H.'s) employed in the Agency's Pittsburgh Area Office. Both groups of employees spend from 3 to 5 workdays at a time in the field and may be out of the office for extended periods of time performing Occupational Safety and Health Administration (OSHA) inspections and related duties. When the employees are in the office, they write reports on their inspection activities, conduct research, and attend meetings. Statement of Position at 2-3.

Telephone duty, which is the subject of this proposal, consists of answering public inquiries and accepting complaints. In March 1989, management decided to place all the CSHO's and I.H.'s into a duty officer pool and assign each employee in the pool to serve as duty officer for 1 week on a rotating basis. Statement of Position at 6. Previously, telephone duty was performed by employees who happened to be in the office and by supervisors on a "catch as catch basis[;] whoever was in the office writing reports may or may not have answered the phones upon request of the supervisors, who usually took most of the calls and most of the complaints." Petition for Review at 1.

Subsequently, the parties bargained over the impact and implementation of the Agency's decision to institute formal duty officer assignments. The Agency declared the proposal in this case nonnegotiable and the Union filed this petition. The parties reached agreement on a Memorandum of Understanding excluding the disputed proposal.

III. Positions of the Parties

A. The Agency

The Agency argues that because the proposal "attempts to place limitations on the duration and timing of when a bargaining unit employee may be assigned as Duty Officer it is inconsistent with management's rights under [section] 7106(a)(2)(B) to assign work and is presumptively non-negotiable." Statement of Position at 7. Additionally, the Agency argues that the proposal is not a negotiable procedure under section 7106(b)(2) of the Statute or a negotiable appropriate arrangement under section 7106(b)(3).

In support of its argument that the proposal is not a negotiable procedure, the Agency argues that management would be "completely prevented from assigning Duty Officer responsibilities beyond one work day to any individual employee." Id. at 8. Furthermore, the Agency states that the proposal "would require rotation at fixed intervals regardless of the degree of inefficiency or disruption that the agency might suffer." Id. The Agency points out that the affected employees:

are assigned work so that they travel out on several inspections in the same geographic area and remain out of the office for consecutive days. Additionally, the training classes CSHO's and I.H.'s attend are normally at the OSHA Institute and they last either five (5) or ten (10) work days. Therefore, it would be disruptive to the efficient and effective conduct of safety or health inspections and the training of staff to have one (1) day scheduling which affects over 25% of the staff in any given work week.

Id.

The second part of the proposal, according to the Agency, "would totally abrogate management's exercise of its right to assign work in certain circumstances." Id. at 9. According to the Agency, "[o]nce all available staff have served, [the proposal] would have the effect of precluding the assignment of Duty Officer responsibilities to anyone else in the pool when one or more staff members who have not served are unavailable." Id. In that situation, the Agency argues, the proposal "would have the effect of forcing the Agency to either have no Duty Officer or to discontinue the inspection activities, other pressing OSHA business, or a training session of an employee who has not served as Duty Officer." Id. The Agency argues that this situation is "likely to occur" since each staff member would serve as duty officer every 19 days. Id.

The Agency also argues that because the proposal excessively interferes with management's right to assign work, it is not a negotiable appropriate arrangement. In response to the Union's assertion that its proposal seeks to mitigate the adverse effect of telephone duty on employees' performance ratings, the Agency asserts that "each employee will spend the same amount of time on the Duty Officer assignment over the course of the year, whether they do it in one (1) work day increments or five (5) work day increments due to the rotational nature of the assignment." Id. at 11.

Additionally, the Agency argues that daily rotation of Duty Officer responsibilities, involving 25 percent of the staff acting as duty officer each week, "would seriously impact" on inspections and complaint investigations which are "scheduled so that staff can travel on-site, conduct several inspections over the course of several uninterrupted workdays and then return to the office." Id. at 14. The Agency also asserts that the second part of the proposal "would prohibit supervisors from assigning work to an otherwise available employee when another employee, not otherwise available, had not yet performed his/her Duty Officer assignment." Id. Consequently, the Agency argues that, in certain circumstances, management would be precluded from assigning work. Finally, the Agency asserts that assignments to telephone duty for 1 week would provide continuity because "a single staff member could be responsible for following up, researching and responding to any inquiry on issues that require more than one day . . . ." Id. at 15.

B. The Union

The Union did not file a reply brief in this case. Therefore, its arguments are taken from its petition for review.

The Union argues that it is bargaining over the "adverse impact" that telephone duty will have on the performance ratings of compliance officers. Petition for Review at 2. The Union explains that time spent by officers on telephone duty will increase their "lag time," that is, the time between the closing conference of an inspection and the date that the officer submits a report. "Lag time," according to the Union, is "[o]ne of the time performance problems utilized against the compliance officers . . . ." Id.

Concerning the second part of the proposal, the Union argues that it is requesting "parity." Id. The Union asserts that some compliance officers had telephone duty "for two straight weeks, while others had not had it for an hour." Id. The Union asserts that the proposal requires management "to go through the pool of employees that did not have the duty before giving it once again to the ones that had already served their stint." Id.

IV. Analysis and Conclusions

A. The Proposal Directly Interferes with the Agency's Right to Assign Work

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine when the work that has been assigned will be performed and the duration of work assignments. See, for example, 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 265, 271-72 (1990); National Treasury Employees Union and United States Customs Service, 31 FLRA 31, 32-33 (1988).

The first part of the proposal provides that employees assigned to the pool of duty officers will be assigned to telephone duty for no more than 1 day. Under this part of the proposal, management is precluded from making telephone duty assignments for any periods of time longer than 1 day. Therefore, we conclude that this part of the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

We also find that the second part of the proposal directly interferes with management's right to assign work. This aspect of the proposal prohibits the Agency from reassigning employees in the duty officer pool to telephone duty until all members of the pool have had their turn as a telephone duty officer. The Agency argues that because the proposal "does not include a provision requiring that the employee affected . . . be available to perform the work, the Agency's right to determine when work will be done is lost . . . ." Statement of Position at 9. The Agency asserts that when an employee who is due to be assigned as duty officer is "involved in an ongoing field assignment, other pressing OSHA business or training[,]" management would be forced to "either have no duty officer or discontinue" the other work. Id.

The United States Court of Appeals for the District of Columbia Circuit upheld the Authority's determination that a similar proposal directly interfered with management's right to determine when work would be performed in National Treasury Employees Union v. FLRA, 810 F.2d 1224, 1227 (D.C. Cir. 1987), (NTEU v. FLRA), aff'g in part and rev'g and remanding in part National Treasury Employees Union and Internal Revenue Service, 17 FLRA 379 (1985). In NTEU v. FLRA, the disputed proposal, which concerned the selection of employees for office audit assignments, did not take into consideration the unavailability of an employee because of that employee's involvement in another assignment. The court stated that because the proposal did not "include a provision requiring that the employee selected by application of the proposal be available to perform the work, the [agency's] right to determine when work will be done is lost when the chosen employee is involved in an ongoing field assignment." Id. at 1227. The court concluded, therefore, that the proposal directly interfered with the agency's right to determine when assigned work would be done.

Like the proposal in NTEU v. FLRA, the second part of this proposal does not take into consideration the availability of employees for telephone duty assignments or provide management with any options if employees who are due for telephone duty are involved in other assignments. By requiring the Agency to assign all employees in the pool to telephone duty before any employee is reassigned, the proposal could require management to choose between relieving an employee of another assignment or not having any employee assigned to telephone duty. Accordingly, we conclude that, consistent with the decision in NTEU v. FLRA, the second part of the proposal also directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

B. The Proposal Does Not Constitute an Appropriate Arrangement

The Union asserts in its petition that telephone duty in 1-week increments will have an "adverse impact" on employees' performance ratings and that it is "attempting to seek some relief for the time spent on telephone duty[.]" Petition for Review at 2. Although the Union does not refer to section 7106(b)(3) of the Statute specifically, the Agency argues in its statement of position that the proposal is not an appropriate arrangement, within the meaning of section 7106(b)(3), because it excessively interferes with the Agency's right to assign work. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-34 (1986) (Kansas Army National Guard).

Consistent with the Union's statement, as well as the Agency's response, we will assume for the purposes of this decision that the proposal constitutes a proposed arrangement for employees who may be adversely affected by the assignment of telephone duty in 1-week increments. Nevertheless, applying Kansas Army National Guard, we find that the Union has not established that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

The Union asserts that "lag time," the time between an inspection and the date of the inspection report, is "utilized against the compliance officer" in evaluating performance. Petition for Review at 2. The Union also asserts that the Agency's measurement of lag time "does not allow for any deviation of the time," and does not "take into consideration, any annual or sick leave, week-ends, other duties or other time spent on other inspections." Id. (emphasis added).

The Agency responds to the Union's argument by noting that "each employee will spend the same amount of time on the Duty Officer assignment over the course of the year . . . due to the rotational nature of the assignment." Statement of Position at 11. The Agency also asserts that "average lag time is relative. Supervisors compare an individual employee's average lag time to the rest of his/her similarly situated group . . . ." Id. Accordingly, the Agency maintains that its decision to assign telephone duty in 1-week increments "will have little or no adverse impact on lag time as it is applied in appraising performance . . . ." Id.

The Agency also asserts that the proposal excessively interferes with its rights because the proposal would limit the assignment of telephone duty to 1 day "regardless of the circumstances, and even where management has no available alternatives." Id. at 13. The Agency argues that "interruption to travel and inspection/complaint activities" would occur when employees had to return to the office for telephone duty. Id. at 14.

On balance, we conclude that the burden on the Agency of requiring that assignments to telephone duty be limited to 1 day outweighs the benefit to employees provided by limiting the duration of the assignments. We note, in particular, that there is no dispute in this record that the assignment of telephone duty in 1-week increments would result in each affected unit employee performing the telephone duty for the same amount of time during an appraisal period. As such, the benefit afforded employees by the proposal is only that the duration of individual assignments to telephone duty would be minimized. That is, over time, all employees would be assigned to the same amount of telephone duty under either the Union's proposal or the Agency's plan. The only difference would be that, under the Union's proposal, the total telephone duty would be assigned in 1-day, instead of 1-week, increments. Moreover, even if the average "lag time" changed under the Agency's plan, the adverse effect on employees would be reduced because each employee's lag time would be compared to the group's new average lag time.

Further, it is uncontrove