45:0092(8)NG - - AFGE Local 3769 and Agriculture, Federal Grain Inspection Service, League City Field Office, TX - - 1992 FLRAdec NG - - v45 p92



[ v45 p92 ]
45:0092(8)NG
The decision of the Authority follows:


45 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 3769

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL GRAIN INSPECTION SERVICE

LEAGUE CITY FIELD OFFICE, TEXAS

(Agency)

0-NG-2008

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

June 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.*/

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal, which addresses the scheduling of work assignments. For the following reasons, we find that the proposal is nonnegotiable because it excessively interferes with management's right to assign work.

II. Proposal

Article II, Section E. No employee shall be required to work more than 12 hours in a 24-hour period, except during abnormal, unplanned or unforeseen circumstances. Employees shall be guaranteed at least 10 consecutive off-duty hours between work assignments scheduled on 2 different days.

III. Positions of the Parties

A. Agency

The Agency argues that the proposal directly and excessively interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that, by law, it must inspect certain grain and that its workload is "extremely high . . . when northern ports are closed because of ice conditions, or after the harvest season." Statement of Position at 5. According to the Agency, any "[f]ailure to provide inspection services on time would have a serious adverse financial impact on the grain industry which pays user fees for this required service . . . ." Id. at 5-6.

With respect to the first sentence, the Agency notes that employees "must work overtime to ensure that industry needs are met[] . . . particularly during high volume periods or when management may be short-staffed due to turnover, or employees being absent on sick leave, other planned leave, o[r] at training." Id. at 6. The Agency notes that the second sentence "is not limited to 'abnormal, unplanned, or unforeseen' circumstances, but is all inclusive." Id. at 7. The Agency contends that even if an employee volunteered to work two consecutive shifts, a situation which occurs frequently, the second sentence would make it "impossible . . . to assign that employee to his/her regular shift the next morning . . . ." Id.

The Agency acknowledges that a similar provision was included in prior agreements. However, according to the Agency, that provision "posed no difficulty for management, primarily because nobody, including the Union, paid much attention to the literal language of the Agreement[.]" Id. at 9.

B. Union

The Union argues that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute because it "is intended to alleviate the adverse effects of management's scheduling of employees to long shifts and depriving them of rest between shifts." Reply Brief at 3. The Union claims that the requirement for employees to work long shifts with little rest between shifts is a result of the Agency's "deliberate lack of staffing." Id. at 4. According to the Union the proposal's impact on the Agency "is entirely within the control of the [Agency] since staffing levels are unilaterally determined by management." Id.

The Union contends that a provision similar to the proposal has been part of the parties' agreement since 1980. In this regard, the Union objects to the Agency's claim that the previous provision was ignored. The Union asserts that when work was assigned in a manner inconsistent with the provision, "either the employee did not choose to object, or the contractual right went unnoticed by the employee." Id. at 5.

The Union asserts that the employees affected by the proposal are Grain Inspectors who must "maintain mental and physical alertness." Id. at 6. According to the Union, "there should be no dispute that there is a direct correlation between employee alertness and fitness, and the quality and quantity of work produced." Id. In the Union's view, the proposal is an appropriate arrangement because it "preserves the environment for achieving the best quantity and quality of work; i.e., the best circumstances or environment in which the employee will perform." Id. at 7.

IV. Analysis and Conclusions

A. Direct Interference

Proposals that preclude management from determining the duration of work assignments directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute. For example National Association of Government Employees, Locals R14-68 and R14-73 and U.S. Department of Defense, Missouri National Guard, 42 FLRA 639, 641 (1991) (Missouri National Guard). The first sentence precludes the Agency from assigning employees to work more than 12 hours in a 24-hour period except during abnormal, unplanned or unforeseen circumstances. As plainly worded, the first sentence substantively limits the Agency's right to determine the duration of work assignments and, accordingly, directly interferes with the Agency's right to assign work.

Management's right to assign work also includes the right to determine when work assignments will occur. For example National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990) (National Weather Service). By providing that employees will be guaranteed 10 consecutive hours off duty between certain work assignments, the second sentence precludes the Agency from determining when certain work assignments will occur. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 674-76 (1991). Accordingly, the second sentence also directly interferes with the Agency's right to assign work.

B. Appropriate Arrangements

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, and the Agency concedes, that the proposal is intended as "an arrangement to mitigate the adverse impact of management's assignment of work to . . . employees." Statement of Position at 8. Based on the parties' statements, and the plain wording of the proposal, we conclude that it 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 KANG, 21 FLRA at 31-32. We will address each sentence separately.

1. The First Sentence

The first sentence would provide substantial benefits to employees. The record indicates that certain employees may drive 200 to 300 miles in order to accomplish their inspection duties. In such circumstances, it is foreseeable that requiring an employee to work more than 12 hours in a 24-hour period could result in fatigue which, in turn, would increase the likelihood of injury to employees and property from accidents. The first sentence would mitigate such adverse effects by precluding management from requiring employees to work more than 12 hours in a 24-hour period in other than abnormal, unplanned or unforeseen circumstances.

With respect to management's right to assign work, it is undisputed that high volume work periods resulting from such circumstances as the closing of northern ports "occur routinely every year and are a normal condition of employment . . . ." Statement of Position at 6. It is also undisputed that high volume work periods occur "when management may be short-staffed due to turnover, or employees being absent on sick leave, other planned leave, o[r] at training." Id. According to the record, in order to provide timely grain inspection services during these high volume work periods, employees frequently are required to work more than 12 consecutive hours.

The Union does not dispute the Agency's assertion that the first sentence would prohibit more-than-12-hour assignments during all the high volume work periods discussed above. Rather, the Union argues that the Agency could continue to accomplish its work during these work periods by increasing its staffing. We conclude that, by prohibiting more-than-12-hour assignments during these foreseeable and recurring work situations, the first sentence of the proposal would have a serious and significant effect on the Agency's ability to assign and schedule work so as to satisfy its obligation to provide timely grain inspection services. In this regard, although the Agency could comply with the first sentence by foregoing grain inspections that would otherwise be scheduled during more-than-12-hour assignments, such action would foreclose the assignment of work for which the Agency has a legitimate need to perform at that time. See 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, 942 (1991); American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1596-97 (1987). Similarly, even assuming that, as the Union argues, the Agency could continue to accomplish its work during the high volume work periods discussed above by increasing its staffing, that fact does not diminish the effect of the proposal on the Agency's right to assign work. For example, even if management increased its staffing, the first sentence still would prohibit the use of more-than-12-hour assignments to provide timely grain inspection services during all the high volume work periods discussed above.

In our view, because the first sentence precludes the use of more-than-12 hours assignments during foreseeable and recurring work periods where such assignments are now used to accomplish the work of the Agency, the burden imposed on the Agency's right to assign work by the sentence is disproportionate to the significant benefits conferred on unit employees. In so concluding, we find that the first sentence is distinguishable from proposal 5 recently found negotiable as an appropriate arrangement in American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA No. 122, slip op. at 27-28 (1992) (AFGE). That proposal provided that, under normal circumstances, no employee would be required to work more than 8 hours per day for more than 3 consecutive workdays. The Authority determined that the proposal benefited employees by providing relief from fatigue and from the risk of injury caused by fatigue and that such benefits outweighed the insignificant burden placed on management's right to assign work. In this connection, the Authority relied on union statements that the proposal would not preclude management from assigning overtime work to qualified employees who had not worked 3 consecutive days or from assigning a fourth day of overtime when no other qualified employee was available. The Authority concluded that the proposal did "not prevent management from assigning someone who is qualified to perform the work that need to be done on overtime." AFGE, slip op. at 28.

In this case Union makes no similar statement. Instead, the Union argues only that the Agency could accomplish timely grain inspections during the work periods where employees are now assigned to work more than 12 hours by increasing its staffing. Consequently, we have no basis in this case on which to conclude that the lack of a qualified employee available to perform the work needed to be done on overtime could be considered an abnormal, unplanned, or unforeseen circumstance enabling the Agency to assign an employee to a more-than-12-hour work assignment. It is well established that the parties bear the burden of creating a record on which the Authority can make a negotiability determination and that a party failing to meet its burden acts at its peril. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Ohio District, Cincinnati, Ohio, 44 FLRA 405 (1992) (IRS).

We also find that the first sentence is distinguishable from the provision (section A(1) of provision 3) found to be an appropriate arrangement in Missouri National Guard. That provision prohibited the agency from requiring employees to operate a vehicle for more than 10 consecutive hours unless the agency provided employees with relief. Noting that operating vehicles for extended periods of time results in fatigue and increases the likelihood of accidents, the Authority determined that the provision provided employees with significant benefits that outweighed the minimal effect on management's right to assign work. The Authority also noted the union's statement that the section did not mandate the type of relief or who would provide it and the absence of agency claims that it was necessary to require employees to drive for more than 10 consecutive hours or that previous agreements to similar provisions had adversely affected the agency's operations.

Unlike Missouri National Guard, the Agency contends here that during foreseeable and recurring work periods, employees are required to work more than 12 consecutive hours in order to provide timely grain inspection services. The Union does not dispute the claim and argues only that the Agency could continue to accomplish its work during these periods by increasing its staffing. Consequently, the record in this case does not support a finding that, during such work periods, the Agency could assign employees to more-than-12-hour shifts in order to provide timely grain inspection services.

Based on the record in this case, we conclude that the burden imposed on the Agency's right to assign work by the sentence is disproportionate to the significant benefits conferred on unit employees. Accordingly, we conclude that the first sentence excessively interferes with the Agency's right to assign work and is nonnegotiable.

2. The Second Sentence

The second sentence also would provide significant benefits to employees. By guaranteeing at least 10 consecutive hours off duty between work assignments on 2 separate days, the second sentence would permit employees to attend to personal concerns. In addition, the 10 hours would permit employees to rest before beginning their next work assignments, thereby reducing the likelihood of injury to employees and property resulting from accidents.

On the other hand, the second sentence would significantly affect management's right to assign work. In reaching this conclusion, we reject the Union's claim that the proposal "specifically provides for special times where the employer cannot provide the time between shifts and clearly states such exceptions." Petition for Review at 2. Unlike the first sentence, which provides exceptions for abnormal, unplanned, or unforeseen circumstances, nothing in the second sentence permits the Agency to assign work during the 10-hour period for any reason.

As plainly worded, the second sentence constitutes a blanket prohibition on the assignment of work during the 10-hour period. Compare Missouri National Guard, 42 FLRA at 642-43 (portion of provision precluding the agency from requiring an employee to operate a vehicle for more than 10 consecutive hours in certain circumstances did not constitute a blanket prohibition on assignments for over 10 hours). Indeed, as noted by the Agency, the sentence would apply even in situations where affected employees volunteered for work assignments. In our opinion, the burden imposed by the second sentence on the Agency's right to assign work outweighs the benefits conferred by the sentence on unit employees. See, for example, Overseas Education Association and Department of Defense, Dependents Schools, 39 FLRA 153, 161 (1991). Accordingly, we conclude that the second sentence excessively interferes with the Agency's right to assign work and is nonnegotiable.

V. Order

The petition for review is dismissed.

________________________________________________________________________________

Member Talkin, dissenting in part.

Based on the language of the proposal and Authority precedent, I would find the first sentence to be an appropriate arrangement. Accordingly, I respectfully dissent from that portion of the decision.

In my view, this case is controlled by two recent cases that the majority finds distinguishable. In American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA No. 122 (1992) (Proposal 5) (AFGE, Local 3157), the Authority examined a proposal providing that, under normal circumstances, no employee would be required to work more than 8 hours per day for more than 3 consecutive workdays. The Authority found that proposal to be an appropriate arrangement because the benefits to employees of providing relief from fatigue and the risk of injury caused by fatigue outweighed the insignificant burden placed on management's right to assign work. In particular, the Authority emphasized that the proposal would not preclude management from assigning overtime work to other qualified employees who had not worked 3 consecutive days; nor did the proposal preclude the assignment of more than 3 days of work when no other qualified employees were available. 44 FLRA No. 122, slip op. at 28. Similarly, in National Association of Government Employees, Locals R14-68 and R14-73 and U.S. Department of Defense, Missouri National Guard, 42 FLRA 639, 642-43 (1991) (Missouri National Guard), the Authority found negotiable as an appropriate arrangement a provision prohibiting employees from operating government vehicles without relief on public roads and highways for more than 10 consecutive hours. In that case, the Authority concluded that the provision would have a minimal effect on management's right to assign work because it merely required the agency to provide relief for those employees without mandating the type of relief or otherwise limiting the agency's right to determine the duration of work assignments or which employees would perform them. Balanced against this minimal burden were the significant benefits to employees who would not be required to operate vehicles in a state of fatigue caused by driving the vehicles for extended periods of time.

In my view, this case presents a similar, and perhaps even stronger, basis for finding an appropriate arrangement. As was the case in both AFGE, Local 3157 and Missouri National Guard, the Agency is not precluded from assigning the overtime work to other qualified employees and is limited in doing so only by the duration of assignments