46:1152(106)NG - - AFGE Local 2879 and HHS, SSA, Branch Office, Hemet, CA - - 1993 FLRAdec NG - - v46 p1152



[ v46 p1152 ]
46:1152(106)NG
The decision of the Authority follows:


46 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2879

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BRANCH OFFICE

HEMET, CALIFORNIA

(Agency)

0-NG-2073

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

January 12, 1993

_____

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). The appeal concerns the negotiability of one proposal.

For the following reasons, we conclude that the proposal, which addresses employee shift assignments, is nonnegotiable.

II. Background

The Agency employs Claims Representatives (CRs), who develop and adjudicate claims for various Social Security benefits. CRs are either Title II specialists, who perform work in connection with claims for retirement, survivors, and disability benefits, or Title XVI specialists, who perform work in connection with claims for supplemental security income benefits. In addition, all CRs handle "generic" work. Statement of Position at 3.

As relevant here, CRs employed in the Hemet, California office are covered by a flextime plan which includes flexible starting times and core times.(1) In particular:

[t]he morning flexband for Shift 1 (the "early" shift) is 7:30 a.m. to 8:30 a.m.; for Shift 2 (the "late" shift), 8:00 a.m. to 8:30 a.m. Consequently, employees on Shift 2 are available to conduct late afternoon interviews since they could not "flex out" for the day before 4:30 p.m.

Id. at 2. In the Hemet office, the Agency determined that three CRs (one Title XVI and two Title II specialists) were needed on Shift 2. The Agency and the Union agreed to monthly rotation between shifts. CRs may request preferred shifts and "the majority . . . usually prefer Shift 1[.]" Id.

Subsequently, the Agency determined that although three CRs were still required on Shift 2, it no longer was necessary to assign two Title II specialists to that shift and that it intended to assign one Title II specialist, one Title XVI specialist, and one from either Title II or Title XVI. During bargaining over that determination, the Union offered, and the Agency declared nonnegotiable, the following proposal.

III. Proposal

Management agrees to begin a 180 day experiment, as follows: One C[laims] R[epresentative] from each Title will be assigned to the late shift on a rotating basis. Rotations will be monthly. At the end of 180 days, management will either adopt the experiment as policy or give notice and opportunity to bargain on proposed termination with the Union.

(Brackets in original).

IV. Positions of the Parties

A. Union

The Union asserts that the Agency's decision to change the number of Title II specialists required on Shift 2 resulted from changes in the numbers of Title II and Title XVI specialists in the Hemet office. The Union argues that the decision was made for reasons of "equity" and, therefore, does not constitute the exercise of a management right under section 7106 of the Statute. According to the Union, the decision to change the number of Title II specialists on Shift 2 is substantively negotiable, and where "a change is substantively bargainable, management rights are not an obstacle . . . ." Reply Brief at 8 (citation omitted).

Second, the Union asserts that the proposal does not conflict with the Agency's right to assign work because the Agency "already exercised that right" when "it determined that any of the total CRs at the Hemet [office] is routinely assigned, and is therefore qualified, to perform the generic work which occurs on the late shift." Id. at 10. The Union claims that the "negotiation of criteria to determine which fungible employee will perform fungible work at different times does not directly interfere with the exercise of management rights." Id.

Third, the Union argues that the proposal "requires only that the [Agency] conduct an experiment[.]" Id. at 12. In this regard, the Union asserts that "[b]ecause the experiment would not supersede the Master Agreement, the employer's rights to assign work and determine number of employees assigned to a tour of duty are fully protected." Id. at 14 (footnote omitted).(2) The Union also asserts that, after the conclusion of the experiment, the proposal "would afford the [Agency] the opportunity to negotiate to terminate" the experiment and would impose "no constraints on the [Agency's] position during such negotiations[.]" Id.

Finally, the Union claims, in the alternative, that the proposal constitutes an appropriate arrangement for employees who are adversely affected by the exercise of management's right to assign work. The Union argues that the decision to change the numbers of Title II specialists required on Shift 2 "has the adverse effect of scheduling certain employees to work a late shift more often than they would otherwise be scheduled to work it." Id. at 15-16 (footnote omitted). According to the Union, the proposal would benefit employees by "reduc[ing] the frequency of scheduling for the late shift." Id. at 17.

B. Agency

The Agency argues that the proposal directly interferes with its rights to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, that right includes the right to determine when work will be performed. The Agency asserts that, by reducing the number of CRs on Shift 2 from three to two, the proposal has the effect of determining when the work of CRs is accomplished.

The Agency also argues that the proposal directly interferes with its right to determine the number of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. The Agency claims that the proposal would prevent it from effectuating its decision to assign three CRs to Shift 2. The Agency also claims that the proposal would have the effect of increasing, and thereby determining, the number of CRs assigned to Shift 1.

According to the Agency, the proposal does not constitute an appropriate arrangement. The Agency notes first that its decision to assign three CRs to Shift 2 was made over 2 years ago. In the Agency's view, the Union cannot claim that employees now are adversely affected by that decision. The Agency points out that its more recent decision regarding the numbers of Title II and Title XVI specialists required on Shift 2 did not change the total number of CRs required on that shift. The Agency also maintains that the proposal excessively interferes with its rights. In this connection, the Agency argues that "the so-called experiment becomes permanent unless the Union . . . agrees to its discontinuance after 180 days." Statement of Position at 17. According to the Agency, requiring it to meet its "main objective" of providing "adequate service to the public" with only two CRs on Shift 2 "outweighs any possible benefit provided to employees by reducing the number of times the CRs rotate to the late shift." Id. at 18-19.

V. Analysis and Conclusions

An agency's right to determine the numbers, types, and grades of employees assigned to a tour of duty under section 7106(b)(1) of the Statute encompasses the right to determine the number of employees it considers necessary to have on duty. For example, National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 484-86 (1991)(Navy). Accordingly, proposals which determine the number of employees assigned to a shift directly interfere with the right under section 7106(b)(1). Id. at 484-85. Similarly, an agency's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the duties to be assigned, to whom or what position duties will be assigned, and when work assignments will occur. For example, id. at 486. In this regard, proposals aimed at the number of employees assigned to a shift also may substantively limit an agency's right to determine when, and what duties, will be performed and, thereby, directly interfere with an agency's right to assign work. Id.

The proposal in dispute in this case, as plainly worded, would require the Agency to assign one Title II and one Title XVI specialist to Shift 2. In this regard, it is clear that the proposal is intended to limit the Agency to assigning only two specialists to that shift. Insofar as the Union interprets the proposal to the contrary, the Union's interpretation is inconsistent with the plain wording of the proposal and will not be used to determine the negotiability of the proposal. For example, American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 521 (1991).

As the proposal would preclude the Agency from assigning more than two CRs to Shift 2, it substantively limits the Agency's right to determine the number of employees to be assigned to that shift. Accordingly, we conclude that the proposal directly interferes with the Agency's right to determine the number of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. See Navy, 40 FLRA at 484-85. Similarly, the proposal would substantively limit the Agency's right to determine when certain duties would be performed. In this connection, the proposal would preclude the Agency from determining that the duties of a third CR should be performed on Shift 2 and, instead, would require in at least some circumstances that such duties be performed on Shift 1. As such, we conclude that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Id. at 486.

In this connection, we reject three Union arguments. First, we reject the Union's argument that the proposal does not interfere with the Agency's rights because, although the proposal would limit the Agency to assigning two CRs to Shift 2, the Agency could make "temporary, necessity-driven changes" in its work schedules under Article 10, Section 6.d. of the parties' master agreement. Reply Brief at 13 n.11. In this connection, we make no finding regarding the extent, if any, to which Article 10 would permit the Agency to make temporary changes to the schedules required by the proposal. Even if, as the Union alleges, the Agency could make "temporary" changes to the schedules required by the proposal, the proposal would, in some circumstances, apply so as to substantively limit the Agency's right to determine the number of employees assigned to a tour of duty.

Second, we reject the Union's argument that the proposal does not interfere with the Agency's rights because the Agency's decision to change the number of Title II specialists assigned to Shift 2 is substantively negotiable. Determining when work is to be performed and the number of employees to be assigned to a tour of duty to perform that work constitutes the exercise of management's rights under section 7106 of the Statute. As such, the determinations are not substantively negotiable. See generally, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-97 (1990).

Third, we reject the Union's argument that the proposal does not directly interfere with management's rights because it addresses the "negotiation of criteria to determine which fungible employee will perform fungible work . . . ." Reply Brief at 10. That argument relates to determining which particular employees will perform assigned work. For example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 741-42 (1992). However, as noted previously, the disputed proposal relates to when, and the number of employees by which, work will be accomplished.

As the proposal directly interferes with the Agency's rights to assign work and determine the number of employees assigned to a tour of duty, it does not constitute a negotiable procedure. For example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1127 (1991). However, the proposal nevertheless may be found negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

In determining whether a proposal constitutes an appropriate arrangement, we first ascertain whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the provision is determined to be an arrangement, we examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of the right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986).

The Union argues that the proposal constitutes an appropriate arrangement because employees are adversely affected by assignment to Shift 2 and the proposal "would reduce the frequency of scheduling for the late shift." Reply Brief at 17. The Union claims, in this connection, that "late shift scheduling . . . makes commuting more difficult to arrange, conflicts with child care schedules, and increases [employee's] use of leave in order to take care of business and personal appointments." Id.

We assume, for the purposes of this decision, that the proposal constitutes an arrangement. In determining whether the arrangement is appropriate, we conclude that the proposal would benefit employees by reducing the number of employees who are assigned to Shift 2, a shift which, according to the record, generally is not desirable to employees. As a result, employees would less often be required to temporarily change their commuting and child care arrangements, among other things. On the other hand, the proposal would burden the Agency by requiring it to change its current scheduling of employees, for a period of at least 180 days, so as to accommodate only two CRs on Shift 2. We find this burden significant. The Agency has decided, based on recent experience, that its work is best accomplished, and the public is best served, by assigning three CRs to Shift 2. In this regard, the Union does not suggest that there is insufficient work to be performed on Shift 2 or that, for any other reason, the current schedule is inappropriate. Moreover, even if, as the Union suggests, the Agency could take other actions to effect temporary changes in the scheduling required by the proposal, there is no dispute that such changes would be temporary only and would require case-by-case justification.

We note the Union's argument that the proposal "requires only that the [Agency] conduct an experiment[.]" Reply Brief at 12 (emphasis omitted). In National Weather Service Employees Organization (MEBA/NMU) and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 46 FLRA 49, 54-56 (1992), the Authority addressed the negotiability of a proposal that would have required the agency to hold in abeyance for 180 days its decision to stop providing a certain service to the public. The Authority noted, as relevant here, that the proposal "would require the [a]gency, for a period of at least 180 days, to reverse its decision . . . ." Id. at 55. The Authority concluded that the proposal directly and excessively interfered with the agency's right to assign work. See also United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1417-19 (D.C. Cir. 1988) (court found nonnegotiable a proposal requiring agency to withhold implement