42:0639(40)NG - - NAGE Locals R14-68 and R14-73 and DOD, MO NG - - 1991 FLRAdec NG - - v42 p639



[ v42 p639 ]
42:0639(40)NG
The decision of the Authority follows:


42 FLRA No. 40

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCALS R14-68 AND R14-73

(Union)

and

U.S. DEPARTMENT OF DEFENSE

MISSOURI NATIONAL GUARD

(Agency)

0-NG-1735

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition concerns the negotiability of two provisions of a collective bargaining agreement that were disapproved by the Departments of the Army and the Air Force National Guard Bureau under section 7114(c) of the Statute.(1)

We find that Provision 3, which requires the Agency to provide relief to employees after they have operated a vehicle for 10 consecutive hours and which concerns the operation of overweight, overlong, and overwide vehicles, is negotiable. We find that Provision 4, which prohibits the Agency from requiring unit employees to travel away from their normal duty stations for more than 10 hours unless they are provided with appropriate Temporary Duty Assignment (TDY) orders, is negotiable.

II. Provision 3

ARTICLE 18, SECTION 5

A. Technicians who, as part of their duties, must operate government vehicles over public roads, highways, or interstate throughways shall not be required:

(1) or be voluntarily permitted to physically operate a vehicle without relief, in excess of any period of ten consecutive hours;

(2) to operate overweight, overlength, or overwide vehicles without proper certification and/or prescribed escort vehicles as required by appropriate statute and regulation except in cases of emergency and [sic] determined by the employer.

B. It is understood that in situations of emergency that may occur or be declared by appropriate officials, especially during normal nonworking hours, that certification as described above would be difficult, if not impossible to obtain, however escort vehicles, if required, should still be provided under these circumstances.

A. Positions of the Parties

1. The Agency

The Agency contends that, by imposing conditions on the Agency's right to assign unit employees to drive certain vehicles and its right to determine the duration of work assignments, Provision 3 directly and excessively interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also contends that permitting an employee to drive without a proper certification or escort only in an emergency "would be an extremely restrictive situation that would only control in a fraction of situations and would be extremely hard to justify before an arbitrator of just what constituted an emergency." Statement of Position at 4. The Agency also contends, without elaboration, that the provision violates its right to determine the personnel by which Agency operations shall be conducted.

2. The Union

The Union contends that Provision 3 constitutes an appropriate arrangement. In particular, the Union argues that section A(1) constitutes an appropriate arrangement for employees who are adversely affected by management's right to assign work. According to the Union, "[t]he adverse consequence addressed is the operation of a vehicle for an extended period of time without relief, which is tiring to the employee and could result in death or injury from an accident caused by exhaustion." Reply Brief at 2. The Union asserts that the provision "only requires some relief at least every 10 consecutive hours. It does not mandate the type of relief, or state who has to do it." Id. (emphasis in original). The Union also asserts that the provision "has been in a series of contracts dating back at least to 1979[.]" Id.

The Union contends that sections A(2) and B of the provision would ensure "compliance with applicable law concerning overweight, overlength or overwidth vehicles." Reply Brief at 1. The Union notes that these sections "allow[] the Agency to make exceptions in the event of an emergency as determined by the [Agency]." Id.

B. Analysis and Conclusions

1. Section A(1)

A proposal that precludes management from determining the duration of work assignments directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. For example, International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 837-38 (1990); American Federation of Government Employees, National Council of Field Labor Locals, Local 644 and U.S. Department of Labor, Office of the Assistant Secretary, Philadelphia, Pennsylvania, 37 FLRA 828, 832-33 (1990). Section A(1) precludes the Agency from requiring an employee to operate a vehicle in excess of 10 consecutive hours unless the Agency provides the employee with "relief." As plainly worded, section A(1) imposes a substantive condition on the Agency's right to determine the duration of work assigned to vehicle operators. Accordingly, we find that section A(1) directly interferes with the Agency's right to assign work.

As noted previously, the Agency asserts also that this section interferes with its right to determine the personnel by which Agency operations shall be conducted. However, the Agency provides no argument in support of its assertion. Accordingly, as no basis on which to find such interference is apparent to us, we reject the Agency's assertion. Compare Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367, 374-76 (1986) (provision that precluded the agency from having contractor and/or military personnel supervise unit employees directly interfered with the agency's right to determine the personnel by which agency operations are conducted).

A proposal that directly interferes with management's rights under section 7106(a) of the Statute is negotiable if it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG).

The Union asserts that section A(1) is an appropriate arrangement. The Union argues that "[t]he adverse consequence addressed is the operation of a vehicle for an extended period of time without relief, which is tiring to the employee and could result in death or injury from an accident caused by exhaustion." Reply Brief at 2. Based on the plain wording of section A(1) and the Union's statement of intent, we conclude that section A(1) constitutes an arrangement.

To determine whether a proposal excessively interferes with management's rights, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. See id. at 31-32. In balancing these needs in this case, we note first that section A(1) would provide significant benefits to employees. It is undisputed that operating a vehicle for an extended period of time results in fatigue which, in turn, increases the likelihood of accidents resulting in injury to drivers and property. Section A(1) would ameliorate such adverse effects by requiring the Agency to provide employees with "relief" after 10 hours of driving. Consistent with the plain wording of section A(1), and the Union's statement of intent, this section does not mandate the type of "relief" that the Agency must provide and does not otherwise limit the Agency's right to determine the duration of work assignments or which employees will perform them.

On the other hand, although section A(1) would affect the Agency's right to assign work, we conclude that such effect would be minimal. The Agency does not assert that it is necessary or desirable for employees to be assigned to drive vehicles for more than 10 consecutive hours. Indeed, it is undisputed that a similar provision has been in effect for over 10 years. The Agency makes no claim that the similar provision has had any adverse effect on its operations. Moreover, as discussed above, the provision does not constitute a blanket prohibition on assignments for over 10 hours and, further, does not specify the "relief" that the Agency must afford employees who operate vehicles for more than 10 hours.

On balance, we conclude that the benefits provided employees under section A(1) outweigh the minimal impact on management's right to assign work. Therefore, section A(1) does not excessively interfere with that right and constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

2. Sections A(2) and B

We conclude, based on the plain wording of sections A(2) and B and the parties' arguments, that those sections are intended to be read together. When read together, these sections prohibit the Agency, except in emergency situations, from requiring employees to operate certain vehicles unless the Agency complies with requirements imposed "by appropriate statute and regulation" concerning driver certifications and escort vehicles. In emergency situations, only escort vehicles would be required.

The Union states that sections A(2) and B merely require "compliance with already established rules and regulations . . . ." Reply Brief at 1. The Union's statement is consistent with the plain wording of section A(2). Accordingly, for the purposes of this decision, we interpret section A(2) as requiring the Agency to comply with existing statutory and regulatory requirements concerning driver certifications and escort vehicles in connection with the operation of overlong, overwide, and overweight vehicles.

Proposals that require an agency to restrict work assignments to "qualified" personnel directly interfere with the exercise of management's right to assign work. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 567 (1991). Moreover, proposals establishing substantive conditions on the right to assign work directly interfere with that right. See National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 818-20 (1990). Section A(2) and B would prohibit the Agency, absent an emergency, from requiring employees to perform certain work (operating overwide, overweight, or overlong vehicles) unless the employees were certified or the Agency provided escort vehicles. Even in emergency situations, section B would require escort vehicles. As such, sections A(2) and B impose substantive conditions on the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. For the reasons discussed in connection with section A(1), however, we reject the Agency's unsupported claim that these sections would affect its right to determine the personnel by which Agency operations shall be conducted.

Although sections A(2) and B impose substantive conditions on the Agency's right to assign work, the Authority has previously held that provisions that require an agency to exercise its management rights in accordance with existing legal requirements of law and regulation are negotiable. For example, National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 156 (1982). The Authority held that such provisions did not interfere with the exercise of management's rights because they merely required an agency to comply with existing external limitations on those rights. Id.

Recently, however, the Authority reexamined its previous approach to this issue in light of the decision of the U.S. Supreme Court in Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA). In that case, the Court held that, with respect to management's rights under section 7106(a)(2) of the Statute, the Statute "does not empower unions to enforce all 'external limitations' on management rights, but only limitations contained in 'applicable laws.'" Id. at 1628. In National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA No. 31 (1991) (IRS), we held that, insofar as management rights under section 7106(a)(2) are concerned, proposals requiring compliance with applicable laws do not interfere with the exercise of such rights. Compare American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, 38 FLRA 1068, 1075-76 (1990) (Department of Education), request for reconsideration denied, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991) (proposals requiring management to exercise its rights under section 7106(a)(1) of the Statute in accordance with applicable laws directly interfere with the exercise of such rights).

We also held, for reasons discussed fully in IRS, that the term "applicable laws" in section 7106(a)(2) includes, among other things, provisions in the United States Code as well as rules and regulations having "the force and effect of law." 42 FLRA No. 31, slip op. at 15. As relevant here, we held that agency regulations must have certain substantive and procedural characteristics in order to constitute regulations having the force and effect of law. Specifically, agency regulations have the force and effect of law, so as to constitute "applicable laws," if they: (1) are promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; (2) affect individual rights and obligations, and (3) are promulgated in accordance with applicable procedural requirements. Id., slip op. at 15-17.

In the instant case, the Union does not identify the "appropriate statute and regulation" to which section A(2) refers.(2) Therefore, we are unable to determine whether, consistent with IRS, sections A(2) and B require compliance with "applicable laws." However, as noted previously, insofar as the sections do require such compliance, they do not directly interfere with the exercise of management's rights under section 7106(a)(2) and are negotiable.

Nevertheless, even assuming that the sections refer to existing requirements that do not constitute applicable laws, we find that they are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute for two reasons.

First, consistent with the Union's assertion that Provision 3 constitutes an appropriate arrangement, it is reasonable to conclude that the operation of overlong, overwide, or overweight vehicles involves special safety concerns. It also is reasonable to conclude, in connection with these vehicles, that existing statutory and regulatory requirements involving driver certifications and escort vehicles address these concerns. Sections A(2) and B would mitigate the adverse effects on employees of being deprived of the protections afforded by these requirements. See Department of Education, 38 FLRA at 1078 (Authority noted employees' interest in "maintaining the protections afforded them under . . . laws, rules, and regulations").

Second, these sections relate, by their terms, only to certifications and escort vehicles that are "required by appropriate statute and regulation . . . ." That is, the sections do not establish any requirements beyond those already existing. Moreover, the Agency does not dispute the existence of these requirements. As such, we are unable to identify the Agency's interest in acting without regard to them. See National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 750 (1991) (Authority stated that agency had not "asserted an interest in acting without regard to its regulation" and no such interest was apparent). See also Department of Education, 38 FLRA at 1078 (Authority held that agency had not "demonstrated that a requirement that it act in a manner consistent with laws, rules and regulations excessively interferes" with its management rights). In these circumstances, we conclude that the impact of the sections on the exercise of management's rights is, at most, minimal.

On balance, we find that the benefits afforded employees by sections A(2) and B of Provision 3 outweigh the minimal impact of those sections on management's right to assign work. Accordingly, we conclude that insofar as sections A(2) and B of Provision 3 require compliance with legal requirements that do not constitute applicable laws, as defined by the Authority in IRS, the sections do not excessively interfere with the exercise of management's right to assign work and are negotiable.

III. Provision 4

Article 19, Section 11B

Technicians will not be required to travel away from their normal duty stations when it is reasonably foreseeable in advance that they will be away from their normal duty station for more than 10 hours without appropriate TDY orders.

A. Positions of the Parties

1. The Agency

The Agency asserts that Provision 4 prevents the Agency from assigning an employee to temporary duty (TDY) for more than 10 hours without appropriate TDY orders. The Agency contends that the provision "would excessively interfere with management's right to assign work and determine the personnel by which agency operations shall be conducted." Statement of Position at 4.

2. The Union

The Union contends that Provision 4 "is intended as an appropriate arrangement." Reply Brief at 2. According to the Union:

The affected right is the right to assign work. The adverse consequences are the risk that the employee takes in traveling without appropriate orders, particularly financial. The proposal addresses that problem by requiring such orders.

Id. The Union claims that the Agency "can live with this language, and has done so in even more restrictive form since 1979." Id.

B. Analysis and Conclusions

A provision that precludes an agency from requiring employees to perform certain duties or restricts the ability to assign duties directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Service Employees International Union, Federal Employees Metal Trades Council of Charleston, Local 696 and U.S. Department of the Navy, Naval Station, Charleston, South Carolina, 38 FLRA 10, 14 (1990). Provision 4 precludes the Agency from assigning TDY work to employees when it is reasonably foreseeable that such employees will be away from their normal duty stations for more than 10 hours unless it issues appropriate TDY orders. That is, the provision conditions the Agency's right to assign certain work on the issuance of travel orders. As such, we find that Provision 4 directly interferes with the Agency's right under section 7106(a)(2)(B) of the Statute to assign work. The Agency's assertion that the provision interferes with its right to determine the personnel by which Agency operations are conducted is unsupported, however. Accordingly, for the same reasons expressed in connection with Provision 3, we reject that assertion.

Although Provision 4 directly interferes with the Agency's right to assign work, we conclude that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union claims that the provision would address the adverse effects, "particularly financial[,]" on employees from traveling without travel orders. Reply Brief at 2. The Agency does not dispute either the existence of such adverse effects or the Union's assertion that the provision would mitigate those effects.

Moreover, it is clear that, in many situations, travel orders are necessary for employees to be reimbursed for various travel expenses. For example, employee travel vouchers "must be supported by a copy of the travel authorization." 41 C.F.R. § 301.11.3. Similarly, "all claims for injuries occurring in travel status should be accompanied by a copy of the travel authorization." Federal Personnel Manual Chapter 810-15, subchapter 3-4(b)(3).

Unlike sections A(2) and B of Provision 3, the Union does not claim that Provision 4 requires compliance with existing regulatory requirements and no requirement that an agency issue travel orders in advance of all travel is apparent to us. Nevertheless, existing regulations clearly require that, except as otherwise provided by law, all travel must be either authorized or approved by an Agency. 41 C.F.R. § 301.1-4(b). In addition, these regulations express a clear preference for the issuance of travel orders in advance of an employee's incurrence of travel expenses. See id. ("Ordinarily, a travel authorization shall be issued before the incurrence of the expenses.").

Finally, the Agency does not dispute that the requirement imposed by Provision 4 has been in effect between the parties for over 10 years. The Agency does not claim that during that time the provision has adversely affected its operations. Moreover, the parties again agreed to this provision at the local level. Therefore, it is reasonable to conclude that Provision 4 would not excessively interfere with the Agency's right to assign work.

On balance, we find that the benefits afforded unit employees by Provision 4 outweigh the impact of the provision on the Agency's right to assign work. Accordingly, we conclude that Provision 4 constitutes an appropriate arrangement and is negotiable.

IV. Order

The Departments of the Army and the Air Force National Guard Bureau shall rescind its disapproval of, and give effect to, Provisions 3 and 4.(3)

 




FOOTNOTES:
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