43:0054(4)NG - - NFFE Local 1452 and Navy, Naval Training Center, Orlando, FL - - 1991 FLRAdec NG - - v43 p54
[ v43 p54 ]
The decision of the Authority follows:
43 FLRA No 4
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVAL TRAINING CENTER
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
November 5, 1991
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) concerning the negotiability of one proposal.
For the following reasons, we find that the proposal, which concerns the participation of employees in charity drives, is nonnegotiable because it excessively interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
The Employer will not coerce or in any manner require employees to invest their money or donate to charity, or participate in such activities.
[Only the underscored portion is in dispute.]
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that, under 5 C.F.R. § 950.102,(1) it has the authority to assign employees necessary "collateral duties" involving the Combined Federal Campaign (CFC) because the CFC "'is the only authorized charitable fund-raising drive in the Federal workplace.'" Statement of Position at 2. The Agency also asserts, generally, that its right to assign work encompasses the assignment of duties that are incidental or unrelated to employees' usual work.
The Agency contends that the proposal does not constitute an appropriate arrangement because it "does not address any reasonably foreseeable adverse consequences associated with assignment of duties related to charitable activities." Id. at 5. The Agency maintains that if the proposal constituted an arrangement, it is not appropriate because it "abrogates" management's right to assign work. Id. at 6.
B. The Union
The Union contends that the proposal is intended to prohibit the Agency from requiring employees "to work on any type of charity drive during duty hours and non-duty hours." Petition for Review at 1. The Union asserts that, as the Agency's arguments relate only to the CFC, the Agency "appears to concede that it is not challenging the . . . proposal's reference to other types of charitable drives (such as blood donation drives)[.]" Reply Brief at 2 n.1.
The Union disputes the Agency's claim that it is entitled, under the Code of Federal Regulations, to require employees to perform duties in connection with the CFC. In the Union's view, 5 C.F.R. Part 950 "prohibits employees from being forced to participate in the CFC[.]" Id. at 4. The Union also argues that the proposal does not interfere with the Agency's right to assign work because the CFC is not part of the Agency's mission and because activities performed in connection with the CFC are not among employees' official duties.
Alternatively, the Union contends that the proposal constitutes an appropriate arrangement for employees who are adversely affected by the exercise of the Agency's right to assign employees to work on the CFC. The Union contends that, in addition to the interruption of employees' regular duties that results from such assignments, employees may disagree with the religious or political views of groups participating in the CFC. The Union also asserts that employees who are unable to contribute to the CFC may be embarrassed by collecting pledges from their coworkers.
IV. Analysis and Conclusions
A. Preliminary Matters
The Union interprets the proposal as follows:
The intent of the proposal is to prohibit the Employer from assigning employees to work on any type of charity drive during duty hours and non-duty hours. Thus, the Employer is prohibited from assigning employees to work on the Combined Federal Campaign, blood drives, etc., and would simply have to solicit volunteers.
Petition for Review at 1. As the Union's interpretation of the proposal is consistent with its plain wording, we adopt it for the purposes of this decision.
Contrary to the Union's claim, the Agency's arguments do not relate only to the CFC. Instead, although the Agency makes specific arguments in connection with the CFC, it also makes general arguments regarding its right to assign work. We do not, therefore, find that the Agency has conceded that, except as it relates to the CFC, the proposal is negotiable. Nevertheless, we note the following Agency assertion:
We believe that the . . . proposal is outside the duty to bargain and directly interferes with the activity's authority to assign collateral duties such as those required to participate in government sponsored charitable drives normally carried out as a part of federal employee assignments.
Statement of Position at 2. Consistent with this assertion, the Agency makes no arguments regarding assignments during non-duty hours. We note, in addition, that it is not argued or apparent that assignments of duties to be performed during employees' non-duty hours are "normally carried out as a part of federal employee assignments." Id. The Agency also makes no arguments regarding assignments related to charity drives that are not sponsored by the Government.
Based on the Agency's statements and arguments, we conclude that the proposal is in dispute only insofar as it encompasses duties to be performed during duty hours relating to Government-sponsored charity drives, including the CFC. Accordingly, we will address the negotiability of the proposal in that context only.
B. 5 C.F.R. Part 950
We conclude that both parties have misinterpreted 5 C.F.R. Part 950.
The Agency contends that, under 5 C.F.R. § 950.102, it has a right to assign employees to perform such CFC duties as training assigned workers, distributing brochures, and collecting pledge cards. We find nothing in section 950.102 that addresses assignments of duties to unit employees, however. Instead, that section merely provides the Agency with authorization to conduct the CFC itself. Our examination of part 950 as a whole also discloses no provision addressing such assignments. Compare 5 C.F.R. § 950.108(a) (prohibiting "[s]olicitation of employees by their supervisor or by any individual in their supervisory chain of command.").
We also conclude that nothing in part 950 prohibits the Agency from assigning unit employees to perform duties in connection with the CFC. In this regard, we reject the Union's argument that such assignments are prohibited by 5 C.F.R. § 950.104(c)(5) and (6),(2) and 5 C.F.R. § 950.108.(3)
The provisions relied on by the Union address coercive acts in connection with an employee's decision to donate, or not donate, money to the CFC as well as the amount of any such donations. For example, 5 C.F.R. § 950.104(c)(5) prohibits coerced "participat[ion] in the campaign." The term "participation" is not defined in the regulation. Other references to that term, however, demonstrate that it does not encompass the performance of activities related to the campaign. For example, 5 C.F.R. § 950.104(9) requires agencies to ensure "that every employee is given the opportunity to participate in the CFC, and that employee designations are honored." The participation referenced therein clearly encompasses employee donations. Similarly, 5 C.F.R. § 950.108(b) provides that supervisors may not make "inquiries about whether an employee chose to participate or not to participate or the amount of an employee's donation." There, the term "participate" also refers to employees' donations to the CFC. Read in conjunction with other portions of part 950, therefore, we find that the employee participation referenced in section 950.104(c)(5) encompasses only employee donations to the CFC.
There likewise is no basis on which to conclude that the coercion referenced in section 950.104(c)(6) or the solicitation referenced in section 950.108 encompasses employee assignments to perform activities in connection with the CFC. In particular, when section 950.104(c)(6) is read in conjunction with section 950.108, which relates specifically to coercive activities, it is clear that the coercion involved in those sections relates to employee donations to the CFC. Similarly, the solicitation referred to in section 950.108(a), when read in light of the further reference to solicitation in section 950.108(g), also addresses requests for employee donations.
In sum, we find nothing in 5 C.F.R. part 950 that addresses the assignments of CFC duties to unit employees. We reject both parties' arguments to the contrary.
C. Right to Assign Work
The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to assign duties which are unrelated to an employee's position description. For example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 819 (1990) ("whether the particular duties in dispute are specified in the [employee's] position description is irrelevant to the negotiability of the proposals."). Accordingly, proposals prohibiting such assignments directly interfere with an agency's right to assign work. See id.
Similarly, the right to assign work encompasses the right to assign duties that are "'additional or incidental'" to employees' positions. National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence, Kansas, 22 FLRA 539, 545 (1986) (quoting National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578, 580-81 (1984)). As such, proposals prohibiting an agency from making such assignments also directly interfere with the right to assign work. See American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1016-18 (1988) (proposal prohibiting agency from requiring employees to attend awards ceremony held to directly interfere with agency's right to assign work).
The proposal would prohibit the Agency from coercing or requiring employees to perform duties in connection with charitable drives, including the CFC. The Agency asserts that, with respect to the CFC, such duties include training assigned workers, passing out brochures, answering questions, and collecting pledge cards and contributions. It is not argued or apparent that such assignments would violate law or regulation.(4) Compare American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37, 42-44 (1988) (proposal providing employees with right to refuse to perform illegal acts held not to directly interfere with agency's right to assign work).
In addition, as noted previously, the proposal is in dispute only insofar as it encompasses Government-sponsored charitable activities. As such, we have no basis on which to conclude that the assignments involved in this case are so removed from, or tangential to, the Agency's mission so as to be excluded from the ambit of the Agency's right to assign work. 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) (Authority rejected union's argument that certain duty was not "authorized by statute or regulation and ha[d] no reasonable relationship to [affected employees'] work").
The Union's reliance on American Federation of Government Employees, Council 214, AFL-CIO and Department of the Air Force, Air Force Logistics Command, 31 FLRA 1259 (1988) (AFLC); National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, New York, 22 FLRA 136 (1986) (Justice); and National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983) (VA); is misplaced. AFLC and VA involved the right to determine methods, means, and technology of performing work in connection with union representatives' access to certain equipment or participation in labor-management committees. Justice addressed union participation on a joint labor-management committee. Nothing in these decisions supports a conclusion that the Agency's assignment of the duties involved in this case cannot constitute the exercise of the right to assign work under the Statute.
Based on the foregoing, we find that the Agency's right to assign work encompasses assignments related to the charitable activities involved in this case. As the proposal would prohibit such assignments, it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
D. Appropriate Arrangement
Although the disputed portion of the proposal directly interferes with the Agency's right to assign work, it is negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether a proposal is an appropriate arrangement, we first determine whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If the proposal is so intended, we determine whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (Kansas Army National Guard).
The Union asserts that employees are adversely affected by the Agency's requirement that employees work on charitable drives, including the CFC. The Union argues that the disputed portion of the proposal is intended to ameliorate this adverse effect by prohibiting the Agency from: (1) interrupting employees' regular duties; (2) requiring employees to collect funds for agencies and groups that are offensive to them; and (3) requiring employees to perform duties, such as collecting pledge cards, that would be embarrassing to them. We conclude, based on the Union's statement, that the disputed portion of the proposal is intended as an arrangement to mitigate the adverse affects of management's decision to require employees to perform duties in connection with charity drives, including the CFC.
Next, we examine whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the Agency's right to assign work. 21 FLRA at 31-33. The Union intends the proposal to "prohibit the [Agency] from assigning employees to work on any type of charity drive . . . ." Statement of Position at 1. The Union confirms, in this regard, that the proposal "does extend to 'management's right to assign employees to work on charity drives' and prohibits requiring such." Attachment to Petition for Review. It is clear, therefore, that the proposal would not only prohibit the Agency from, for example, coercing employees into volunteering to perform CFC duties. The proposal also would prohibit the Agency from simply assigning such duties.
We note that it is not apparent that assignments of duties in connection with charitable drives are made to employees frequently. The CFC, for example, is conducted only once each year and for "no more than a six-week period[.]" 5 C.F.R. § 950.102(e). It also is not apparent that the performance of such duties has an impact on the Agency's overall mission. In fact, the Agency acknowledges that the duties are merely incidental or collateral to unit employees' customary job duties. Moreover, 5 C.F.R. part 950 contemplates the use of volunteers in connection with the CFC. See 5 C.F.R. § 950.105(c)(2) (the Principal Combined Fund Organization is responsible for "[t]raining employee keyworkers and volunteers in the methods of non-coercive solicitation."). It appears, therefore, that the Agency has only a minimal interest in requiring employees to perform these duties in situations where the employees are unwilling to do so.
Nevertheless, a proposal that "'precludes an agency from exercising a management right inherently cannot constitute an appropriate arrangement . . . ." Veteran Affairs, Washington, D.C., 40 FLRA at 1056 (quoting Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 314 (1990)). The proposal would prohibit the Agency from exercising its right, under section 7106(a)(2)(B) of the Statute, to assign certain duties to unit employees. That is, the proposal would ameliorate any adverse effects from the exercise of management's right to assign specific duties by absolutely prohibiting such assignments. As such, we conclude that the proposal excessively interferes with the Agency's right to assign work. Neither party suggests that the proposal is severable insofar as it prohibits the Agency from coercing or requiring employees to perform the disputed duties. Accordingly, the proposal is nonnegotiable.
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1. 5 C.F.R. § 950.102 provides, in pertinent part:
(a) The CFC is the only authorized charitable fund-raising drive in the Federal workplace. A campaign may be conducted in every Federal agency in the campaign community in accordance with these regulations. No other fund-raising drive may be conducted in the Federal workplace without the express written permission of the Director [of the Office of Personnel Management], and no departure from any provisions of these rules is permitted without the express written permission of the Director.
2. The Union cited 5 C.F.R. § 950.105(c)(5) and (6). It is apparent, however, that the Union intended to cite 5 C.F.R. § 950.104(c)(5) and (6), which provide, in pertinent part:
(c) The responsibilities of the [Local Federal Coordinating Committee] include, but are not limited, to the following:
. . . .
(5) Ensuring that no employee is coerced in any way to participate in the campaign.
(6) Bringing allegations of coercion to the attention of the Director and the employee's agency and providing a mechanism to look into employee complaints of undue pressure and coercion in Federal fund-raising. . . .
3. 5 C.F.R. § 950.108, entitled "Preventing coercive activity[,]" provides, in pertinent part:
True voluntary giving is fundamental to Federal fund-raising activities. Actions that do not allow free choices . . . to give or not to give . . . are contrary to Federal fund-raising policy. Certain activities are . . . in the interest of preventing coercive activities . . . not permitted in the campaigns, they include but are not limited to:
(a) Solicitation of employees by their supervisor or by any individual in their supervisory chain of command. . .
(b) Supervisory inquiries about whether an employee chose to participate or not to participate or the amount of an employee's donation. . . .
. . . .
(g) Using as a factor in a supervisor's performance appraisal the results of the solicitation in the supervisor's unit . . . .
4. There is no contention, for example, that the Agency requires employees to perform activities in connection with "fund-raising" drives other than the CFC. See 5 C.F.