45:0805(73)NG - - NFFE Local 3 and Transportation, Coast Guard, Milwaukee, WI - - 1992 FLRAdec NG - - v45 p805



[ v45 p805 ]
45:0805(73)NG
The decision of the Authority follows:


45 FLRA No. 73

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 3

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

UNITED STATES COAST GUARD

MILWAUKEE, WISCONSIN

(Agency)

0-NG-2026

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 7, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of two proposals authorizing administrative leave for bargaining unit employees.

For the following reasons, we conclude that the proposals directly and excessively interfere with the right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable. Therefore, we will dismiss the petition for review.

II. Preliminary Matters

A. The Union's Response is Timely

The Agency contends that the Union's response to the Agency's statement of position "appears to be untimely[,]" and, for that reason, should not be considered by the Authority. Agency Supplemental Submission at 1. According to the Agency, a return receipt acknowledging service of the Agency's statement of position was signed by a representative of the Union on March 27, 1992, thus establishing April 11, 1992, as the date on which the Union's response was due. The Agency claims that the Union's response was filed on April 13, 1992.

Contrary to the Agency's assertion, we find that the Union's response was timely filed. The record before the Authority indicates that the response was due by April 11, 1992. However, because that date fell on a Saturday, the actual due date of the response was April 13. See 5 C.F.R. ° 2429.21(a). The response was in fact filed on April 13. Accordingly, the response was timely filed and we will consider it.

B. The Union's Request for a Hearing is Denied

The Union requests that the Authority conduct a hearing pursuant to 5 C.F.R. ° 2424.9. The Union claims that there are a number of factual disputes that are relevant to a determination of the negotiability of the proposals that could best be resolved through the use of a hearing.

We find that the record presents a sufficient basis on which to assess the negotiability of the proposals. Therefore, the Union's request is denied.

III. The Proposals

Proposal 1

That all bargaining unit employees be granted administrative leave when all nonessential Group/Base Milwaukee military personnel are granted administrative leave.

Proposal 2

When department heads have been granted permission to excuse military personnel based on the needs of the department and department head discretion, this same right shall be extended to bargaining unit employees.

IV. Positions of the Parties

A. Agency

The Agency claims that Proposal 1 directly interferes with management's right to assign work. In support, the Agency relies on American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371 (1991) (Fort Campbell) (Proposal 2). The Agency notes that in that decision the Authority held that "[p]roposals requiring management to grant leave prevent management from requiring an employee to remain on duty to perform necessary work and, thereby, directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute." Id. at 380. The Agency also disputes the Union's reliance on Authority decisions in which proposals authorizing the use of administrative leave for temporary periods of agency shutdown were found negotiable. The Agency asserts that when leave is approved for nonessential military personnel, there is no shutdown of the Agency's operations. However, under the proposal, the Agency claims that it would be required to shut down all civilian operations anytime nonessential military personnel are granted leave without regard to whether civilian employees are needed to perform work at such times.

The Agency also argues that Proposal 1 is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency disputes the Union's assertion that an unsafe situation exists for unit employees when nonessential military personnel are granted leave. The Agency claims that it has implemented appropriate and effective security measures at its premises, that other employees remain on duty in the same facility as bargaining unit employees, and that an imprest fund, for which the Union claims employees are responsible, is kept in a safe with access only by unit employees.

The Agency asserts that Proposal 2 is subject to the following two interpretations, either of which renders the proposal nonnegotiable: (1) when department heads are delegated the authority to approve leave for military personnel, department heads will be delegated the same authority with respect to unit employees; and (2) when department heads approve excused leave for nonessential military personnel, the department heads will also approve administrative leave for unit employees. The Agency claims that the first interpretation would mandate the assignment of a particular responsibility to specified managers and that the proposal, therefore, would interfere with management's right to assign work. The Agency maintains that the second interpretation of the proposal renders the proposal nonnegotiable for the same reasons expressed in connection with Proposal 1.

The Agency also asserts that Proposal 2 is not an appropriate arrangement. The Agency contends that there is no adverse effect resulting from the exercise of management's right to grant leave to military personnel, but that even if there were, "the delegation of authority to department heads to approve administrative leave for their unit employees would not itself remedy the [alleged] unsafe condition." Statement of Position at 8 (emphasis in original).

B. Union

The Union states that the intent of Proposal 1 is to provide administrative leave for civilian employees when the Agency grants such leave to military personnel. The Union notes that, in December 1991, military personnel were granted "liberty" for the period December 24-26, while civilian employees were granted two hours of administrative leave on December 24 or were permitted to use annual leave for that day and December 26. Petition for Review at 1. The Union states that unit employees work side-by-side with military personnel and that when military personnel are off duty, "the civilians are working alone in their work areas." Id. at 2. The Union argues that the proposal would "provide security for employees who would otherwise be working virtually alone, and not unfairly assess employees a charge against their accrued leave." Response at 2.

The Union asserts that Proposal 1 is distinguishable from the proposal at issue in Fort Campbell, which would have required the agency to excuse employees from work to attend Boy/Girl Scout functions if the employees met certain requirements. In contrast, the Union states that the Agency has determined that employees will not be required to remain on duty and perform work by virtue of management's decision to approve requests for annual leave. The Union asserts that the only issue is the status of employee leave, i.e., whether the leave will be administrative or annual. The Union also states that the proposal is similar to prior Authority decisions finding negotiable proposals that authorized the use of administrative leave during periods when facilities have been shut down. The Union claims that the Agency "creates a de facto 'shutdown' when it grants liberty to the military members, since the civilian staff is such a tiny portion of the Agency's workforce." Response at 8.

The Union states that Proposal 2, like Proposal 1, "would require that unit employees be granted administrative leave when their department heads approve liberty for nonessential military personnel in that department." Id. at 9. Therefore, the second interpretation of Proposal 2 set forth by the Agency is, according to the Union, the correct interpretation of the proposal.

The Union also claims that the proposals constitute negotiable appropriate arrangements for employees "who are adversely affected by the exercise of management's rights." Id. at 2. The Union states that the number of bargaining unit employees relative to military personnel is quite small and that when unit employees are left virtually alone, their "security on the job would be threatened . . . ." Id. at 5. The Union notes, in this regard, that one unit employee is responsible for a large amount of cash and traveler's checks. The Union further notes that civilian employees suffer from decreased morale as compared with their military counterparts and that a requirement to work or use annual leave, rather than being granted administrative leave, would reduce morale further.

V. Analysis and Conclusions

A. The Proposals Directly Interfere with the

Agency's Right to Assign Work

It is well established that proposals that require management to grant leave prevent management from requiring employees to remain on duty to perform work. Consequently, such proposals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Fort Campbell. See also National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1127 (1991) (Department of the Treasury) (provision requiring agency to grant administrative leave to employees for purpose of obtaining counseling or treatment for drug use). Proposals 1 and 2 require the Agency to grant administrative leave to bargaining unit employees whenever nonessential military personnel are granted such leave. As such, the proposals prevent the Agency from retaining on duty those bargaining unit employees whose services are required to perform assigned work. Therefore, the proposals directly interfere with the Agency's right to assign work. Compare National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 747-54 (1992) (provision that authorized administrative leave for brief periods of tardiness and for voting purposes held not to directly interfere with the right to assign work noting that management retained the discretion to determine whether to grant such leave); American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C, 41 FLRA 73, 76-78 (1991) (proposals stating various uses for which administrative leave may be granted, but which did not require agency to grant such leave, found not to directly interfere with the right to assign work).

We find unpersuasive the Union's assertion that the Agency effectively shuts down its operations when it grants leave to nonessential military personnel and that the only issue presented is the status of employee leave. There is no evidence in the record to support such an assertion. Instead, the Agency argues that the adherence to the proposals would itself create an Agency shutdown and that during such time, the Agency would be prevented from assigning duties to bargaining unit employees. Insofar as we find no evidence to establish that the Agency has determined to curtail its operations, the proposals here are distinguishable from the proposals and provisions at issue in National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414 (1991) (Proposal 4), petition for review filed sub nom. U.S. Department of Veterans Affairs v. FLRA, No. 92-1111 (D.C. Cir. Mar. 16, 1992); National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993 (1991); and National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Provision 4). In those cases, the agencies had decided to temporarily curtail their operations for various reasons and had determined that employees' services were not needed to perform work during the periods of temporary shutdown. In contrast, no such determinations have been made by the Agency here. Rather, we find, as stated above, that the proposals directly interfere with management's right to assign work because they would prevent the Agency from requiring employees to remain on duty to perform work.

B. The Proposals Are Not Appropriate Arrangements

In order to determine whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is first necessary to determine whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If the proposal is intended as an arrangement, the Authority next examines whether the arrangement is appropriate because it does not excessively interfere with the exercise of that management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

The Union states that the proposals are designed to allay employee safety concerns and increase employee morale. Although the Union does not identify the exercise of any particular management right which is claimed to adversely affect employees, we presume that the management right involved is the right to assign work and, more specifically, to assign work to bargaining unit employees during periods when nonessential military personnel are granted administrative leave. In our view, the proposals are intended as arrangements for employees adversely affected by management's exercise of its right to assign work to employees. However, we further find that the proposals are not appropriate because they would excessively interfere with the exercise of that management right.

The benefits to be afforded employees under the proposal are time off work without charge to leave, the likelihood of increased morale and the elimination of employee security concerns if employees are not required to report for work. While these benefits are significant, they do not outweigh the burden imposed on management's right to assign work. The proposals require the Agency to grant administrative leave on all occasions when nonessential military personnel are granted such leave. The proposals mandate administrative leave without regard to the need for employees' services and the necessity of performing work. We view this intrusion on the Agency's ability to assign work as outweighing the benefits to employees of time off work and increased morale. As to the elimination of security concerns, we are not persuaded that an unsafe situation exists on the Agency's premises that justifies granting employees administrative leave during the periods when nonessential military personnel are granted such leave. We note that when nonessential military personnel are granted administrative leave, there are other personnel who remain at work in addition to unit employees. We also note that the Agency appears to have taken a variety of measures to ensure employee safety.

In sum, we find that the proposals would significantly impair the Agency's right to assign work and that the benefits that would be afforded to employees do not outweigh the burden imposed on the exercise of that management right. Therefore, on balance, we conclude that the proposals do not constitute appropriate arrangements. See, for example, American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 250-53 (1990) (proposal that would require the agency to grant employee requests for annual leave unless an employee's absence would prevent the agency from accomplishing a critical job found to excessively interfere with management's right to assign work). Compare Department of the Treasury, 41 FLRA at 1127-29 (provision authorizing administrative leave for employees to obtain counseling or treatment for drug use found to be appropriate arrangement noting, in part, that counseling and treatment for drug use is a condition of continued employment and that