43:0810(65)NG - - NAGE Local R12-29 and Navy, Naval Facilities Contracts Training Center, Port Hueneme, CA - - 1991 FLRAdec NG - - v43 p810



[ v43 p810 ]
43:0810(65)NG
The decision of the Authority follows:


43 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R12-29

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL FACILITIES CONTRACTS TRAINING CENTER

CONSTRUCTION BATTALION CENTER

PORT HUENEME, CALIFORNIA

(Agency)

0-NG-1930

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 26, 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) and concerns the negotiability of two proposals.(1)

Proposal 1 provides that the Agency will ensure transportation home for employees who work scheduled or unscheduled overtime and who are unable, after a reasonable effort, to find transportation. We find that the proposal is consistent with 41 C.F.R. § 301-2.3(e), a Government-wide regulation. We conclude, therefore, that the proposal is negotiable.

Proposal 2 requires the employer to make every effort to limit the objectives within the work plan to a maximum of five, but reserves to management the right to exceed that number. We find that Proposal 2 is negotiable because it does not directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

II. Proposal 1

Article 7, Section 5.

An employee who works scheduled or unscheduled overtime will make a reasonable effort to find transportation home. In the event the employee cannot find transportation home, the employer will ensure the employee's transportation home.

A. Positions of the Parties

1. Agency

The Agency maintains that Proposal 1 would require the Agency to guarantee employees' transportation home any time it assigned employees overtime and the employees claimed they did not have transportation home. The Agency claims that, under the proposal, it would be required to provide transportation regardless of the length of the overtime assignment or the time of the day that the assignment ended. The Agency asserts that it is well established that employees must place themselves at their regular places of work and return to their homes at their own expense, absent statutory or regulatory authority to the contrary. The Agency argues that Proposal 1 is inconsistent with law (31 U.S.C. § 1344(a)), the Federal Travel Regulations (FTRs) (codified at 41 C.F.R. Parts 301-304), and decisions of the Comptroller General.

Specifically, the Agency argues that, under 31 U.S.C. § 1344(a), a Government vehicle cannot be used to transport employees home, absent specific circumstances not applicable here. Likewise, the Agency asserts that it cannot pay taxicab fare to transport employees home, because applicable regulations, 41 C.F.R. § 301-2.3 (d) and (e), permit such payment only in limited situations, and the proposal is not limited to those situations.

2. Union

The Union contends that Proposal 1 does not interfere with management's right to assign work and that it constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union also indicates that the FTRs regarding reimbursement of taxicab fares "even better address[] the area of concern than [its] previous [proposals] did." Response at 3. The Union indicates that it "will readily accept words to this effect in the contract in order to satisfy the problems on this Article and will withdraw the Negotiability Appeal on this issue in return for same." Id.

B. Analysis and Conclusions

We find that Proposal 1 is negotiable because the proposal is consistent with 41 C.F.R. § 301-2.3(e).

1. The Meaning of the Proposal

The Agency interprets Proposal 1 as requiring management to "guarantee" transportation home for employees who are required to work scheduled or unscheduled overtime, either by providing a Government vehicle or by paying "the costs incurred by other modes." Statement at 2. However, the plain wording of the proposal does not specify the types of transportation covered by the proposal. The Union explains that 41 C.F.R. § 301-2.3(e) expresses the objectives that Proposal 1 is intended to achieve. Because 41 C.F.R. § 301-2.3(e) concerns the payment of taxicab fare, we interpret the Union's statement to indicate that the proposal is intended to provide only for the payment of taxicab fare for employees who are required to work overtime. The Union's statement of intent is not inconsistent with the wording of the proposal. Accordingly, we construe the proposal as requiring the Agency to pay taxicab fares under certain conditions for employees who are required to work overtime.

2. The Proposal Is Consistent with 41 C.F.R. § 301-2.3(e)

Under 41 C.F.R. § 302-2.3(e), an agency is authorized to pay taxicab fare for employee travel from work to home after an overtime assignment only "when the employee is dependent on public transportation" and "when the travel is during infrequently scheduled public transportation or darkness."(2) As worded, the proposal conditions the payment of the costs of employee transportation on a reasonable effort by the employee to obtain transportation home. Confining our interpretation of the proposal to taxicab fare, as discussed above, the question is whether the conditions imposed by the proposal are consistent with the conditions imposed by 41 C.F.R. § 301-2.3(e).

Noting that the proposal conditions the payment of the costs of employee transportation on a reasonable effort by the employee to obtain transportation home and that the Union explains that 41 C.F.R. § 301-2.3(e) expresses the objectives of the proposal, we find that the conditions imposed by the proposal are consistent with the conditions imposed by 41 C.F.R. § 301-2.3(e). That is, we construe the requirement of the proposal that employees make a reasonable effort to obtain transportation home as a precondition to the Agency's payment of taxicab fare as consistent with the conditions for the payment of taxicab fare established by 41 C.F.R. § 301-2.3(e)--that such payment is authorized only when when the employee is dependent on public transportation and when the travel is during infrequently scheduled public transportation or darkness. Nothing in the record suggests that the Union intends that the "reasonable effort" standard be applied in a manner inconsistent with the requirements of 41 C.F.R. § 301-2.3(e). To the contrary, the Union's statement of intent suggests that it intends the payment of taxicab fare to be permitted only where consistent with the regulation. Consequently, we find that Proposal 1 is consistent with 41 C.F.R. § 301-2.3(e). We conclude, therefore, that Proposal 1 is negotiable. Compare International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 740 (1988) (proposal that did not contain all the regulatory elements necessary to establish eligibility for payment of taxicab fare held inconsistent with 41 C.F.R. § 301-2.3(e)).

Because we find that Proposal 1 is limited to the payment of taxicab fare for employees who are required to work overtime, we will not address the Agency's contention that the proposal is inconsistent with 31 U.S.C. § 1344(a) because it would require the use of a Government vehicle to provide employees transportation from work to home.

We note that the Agency has not claimed that Proposal 1 interferes with any management right under section 7106 of the Statute. Consequently, we do not address the Union's alternative claim that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

III. Proposal 2

Article 13, Section 3.

The employer will make every effort to limit the objectives within the workplan to a maximum of five (5), however, management reserves the right to exceed this number.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 is "solely an attempt to restrict management's right to determine the number of elements the workplan will contain." Statement at 4. The Agency argues that proposals that substantively restrict management's ability to identify the critical elements of a position and establish performance standards are nonnegotiable because they directly interfere with management's rights to assign work and to direct employees under section 7106(a)(2)(A) and (B). Moreover, the Agency maintains that the identification of critical elements includes the right to determine the number of critical elements. Accordingly, the Agency argues that Proposal 2 directly interferes with management's rights to assign work and to direct employees.

Additionally, the Agency argues that use of the phrase "make every effort" in Proposal 2 "in no way diminishes the restrictive effects of the proposal." Id. According to the Agency, the use of these words places "a substantive condition on management's rights." Id.

Finally, the Agency contends that Proposal 2 does not constitute a negotiable appropriate arrangement because the Union has failed to identify any adverse effects that could arise from management's exercise of its rights. According to the Agency, "the [U]nion presents no relevant facts to analyze, as none exist." Id. at 5. The Agency concludes that "[t]he sole intent of the proposal is to restrict management's right to determine what aspects of an employee's work will be evaluated and how it will be accomplished." Id. at 5-6. According to the Agency, the claim that development of "a performance plan that contains more than five objectives creates an adverse effect on employees lacks factual basis." Id. at 6. Consequently, the Agency concludes that "the instant proposal does not qualify for consideration under [section] 7106(b)(3) [of the Statute] and for the reasons stated above, is outside the duty to bargain." Id.

2. Union

The Union contends that Proposal 2 does not limit management's right to establish the numbers or the content of performance elements, standards or work plan objectives, and that management's rights to assign work and to direct employees are not affected by the proposal. The Union argues, in the alternative, that Proposal 2 constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

The Union explains that Proposal 2 addresses objectives within the work plan, rather than critical elements or performance standards. According to the Union, the work plan and the objectives are neither elements nor standards. Rather, the Union states, "[t]he [w]orkplan has been described by [m]anagement as a tool which may raise an [e]mployee[']s [e]valuation but will not lower it." Response at 2. However, the Union claims that, in practice, supervisors have treated the objectives of the work plan as additional performance elements. The Union argues that neither the presence nor the absence of a work plan or work plan objectives limits management's rights to assign work.

The Union contends that use of the work plan and work plan objectives adversely affects employees. The Union notes that in negotiations it offered two examples of employees' work plans and objectives. Those examples, the Union claims, demonstrated that employees are rated on numerous items (or sub-objectives) for which no standards have been developed. According to the Union, the appraisal plans of both employees contained a critical element titled "Workplan" with a number of objectives and requirements listed. The Union concludes that the work plan is similar to the Performance Management Recognition System for management personnel.

B. Analysis and Conclusions

We find that Proposal 2 does not directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. We conclude, therefore, that Proposal 2 is negotiable.

1. The Meaning of the Proposal

The Union contends that the terms "work plan" and "objectives" as used in Proposal 2 and in the Agency's performance appraisal plan do not refer to critical elements or performance standards. We note, however, that in the examples used by the Union, the employees' performance appraisal plans contained an element labeled "Work plan" and that the Union also described this element as "Critical." Response at 2. The Union's description of the operation of those appraisal plans indicates that the rating for the work plan is derived from the rating on the objectives stated in the work plan and on the requirements within each objective. Id. This description suggests that the objectives in the work plan, and the requirements within each objective, constitute performance standards. However, we do not need to decide whether the objectives stated in a work plan are either critical elements or performance standards under the Agency's performance appraisal plan, because we conclude that, even assuming that those objectives are either critical elements or performance standards, the proposal is negotiable.

The Authority has long held that the identification of critical elements and the establishment of performance standards constitute an exercise of management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980) (Bureau of the Public Debt), affirmed sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Proposals that limit the number of critical elements that management may develop for a position directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 26 FLRA 808, 809-10 (1987) (Naval Observatory). Similar considerations support the conclusion that proposals limiting management's determination of the number of standards to establish for a critical element would also directly interfere with management's right to direct employees and assign work.

If Proposal 2 would obligate management to limit the number of objectives in a work plan to five, Proposal 2 would directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. However, although Proposal 2 requires management to make "every effort" to limit the number of objectives in a work plan, the proposal also expressly reserves to management the right to establish more than five objectives within a work plan. Our interpretation of the proposal, therefore, must give effect to both aspects of the proposal. For the following reasons, we conclude that the the proposal effectively obligates management only to consider limiting the objectives in a work plan to five.

The use of the term "every effort" is generally viewed as placing a substantive limitation on the exercise of management's rights under section 7106 of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material Transportation Office, Norfolk, Virginia, 42 FLRA 938, 945 (1991) (Navy Material Transportation Office). More specifically, we have interpreted proposals that require management to make every effort, for example, to assign work, as obligating management, where management determines in good faith that there is work that could be assigned, to assign that work. Id. at 946. If the proposal merely required management to make every effort to limit the objectives in a work plan to five, therefore, we would interpret the proposal as obligating management to impose that limitation whenever it determines in good faith that the number of objectives could be limited to five.

Proposal 2, however, also explicitly reserves to management the discretion to impose some higher number. By reserving management's discretion as to the number of objectives, the proposal requires management to attempt to limit the number of objectives to five, but does not obligate management to impose that limitation. Thus, the proposal has a similar effect as proposals that require management to "consider" a particular action pursuant to a management right under section 7106 of the Statute.

We have interpreted proposals that require management to "consider" specified factors as not directing a particular result. See, for example, American Federation of Government Employees, AFL-CIO, Local 1426 and Department of the Army, Fort Sheridan, Illinois, 34 FLRA 716, 720 (1990) (Fort Sheridan). We have concluded that proposals requiring management to consider a particular matter "preserve management's discretion to decide how to act because they permit management to weigh and assess factors and make a decision based on management's determination of the significance of the factors." Id. at 720. Similarly, by requiring management to make every effort to limit to five the objectives in a work plan, but reserving management's discretion to adopt a different number, Proposal 2 requires management to examine whether the number of objectives could be limited to five, but permits management to weigh and assess the various implications of adopting that limitation and to make a decision based upon its assessment of all the variables.

2. The Proposal Does Not Directly Interfere with Management's Right to Direct Employees and Assign Work under Section 7106(a)(2)(A) and (B) of the Statute

We conclude that the interpretation of Proposal 2 stated above is both consistent with the wording of the proposal and the Union's explanation of the intended effect of the proposal. Consequently, we find that Proposal 2, in effect, requires management to consider limiting the number of objectives in a work plan to five, but does not obligate management to adopt that limitation if it determines not to do so.

Interpreted as requiring management only to consider limiting to five the number of objectives, Proposal 2 does not determine the number of objectives that management will adopt for a work plan. Consequently, Proposal 2 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, Fort Sheridan, 34 FLRA at 720.

Because we find that Proposal 2 does not directly interfere with management's rights to direct employees and to assign work, we do not need to address the Union's alternative claim that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, we conclude that Proposal 2 is negotiable.

IV. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1 and 2.(3)




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency withdrew its allegation t