46:1285(121)NG - - AFGE Local 1760 and HHS, SSA, Office of Hearings and Appeals, Region II - - 1993 FLRAdec NG - - v46 p1285



[ v46 p1285 ]
46:1285(121)NG
The decision of the Authority follows:


46 FLRA No. 121

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1760

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

REGION II

(Agency)

0-NG-2043

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

January 29, 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 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 provision of a memorandum of understanding that was disapproved by the Agency head under section 7114(c) of the Statute. The memorandum of understanding relates to the Agency's decision to schedule employees' morning break periods. Previously, employees were permitted to take unscheduled break periods. Under the disputed provision, if an employee is precluded from taking his or her scheduled morning break because the employee is involved in a hearing, the Agency would be required to make every attempt to find a replacement for the employee and allow the employee to take the scheduled break. For the following reasons, we find that the provision is nonnegotiable.

II. Provision

Section 8: If an employee is taking a hearing that would delay the beginning of the employee's break beyond the time frames in Section 1, management will make every attempt to secure a replacement for the employee and allow the employee to take his scheduled break.

III. Positions of the Parties

A. Agency

The Agency contends that the provision interferes with its rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. According to the Agency, the provision "requires management to replace an employee who is scheduled to take a break and thus directly interferes with" these management rights. Agency Head Letter of Disapproval dated March 16, 1992 (Agency's Letter). See Statement of Position at 2. The Agency asserts that the Authority has "consistently held that employees must remain subject to the assignment of work during breaks." Id. at 3.

The Agency argues that the provision's use of the phrase "'make every attempt' . . . does not [make negotiable] an otherwise nonnegotiable provision." Agency's Letter. See Statement of Position at 2. The Agency claims that "the [provision] at issue in this case absolutely requires that management replace employees who are scheduled to take a break." Id. at 6 (emphasis deleted). As such, the Agency asserts that the provision imposes a substantive condition on management's right to assign work.

Further, the Agency argues that the provision would make subject to review its decision not to replace "an employee involved in operating transcription equipment and taking notes during a hearing when the employee's break period begins." Id. at 7. The Agency claims that subjecting to "scrutiny" its determination that "work would be more efficiently and effectively completed by having the employee remain at the hearing rather than be replaced" would "seriously hamper . . . [its] ability . . . to fulfill its mission in fairly and accurately hearing a claimant's appeal of the denial of Social Security benefits." Id. The Agency claims that because the provision would force management to make determinations concerning whether "replacing [an] employee could be accomplished without causing an undue delay in, or a negative impact on, the [hearing] proceedings[,]" it directly interferes with management's rights to assign employees and assign work. Id.

Additionally, the Agency contends that the provision does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because the provision is not an arrangement intended to mitigate an adverse consequence resulting from a management action. According to the Agency, "replacing unscheduled [morning breaks] with scheduled morning breaks did not create a situation which adversely impacted on employees . . . ." Id. at 10. The Agency asserts that the situation which the provision seeks to avoid would arise infrequently and that affected employees would merely have their break delayed. The Agency further contends that, if the Authority finds that the provision constitutes an arrangement within the meaning of the Statute, it nevertheless is not an appropriate arrangement because it excessively interferes with management's rights to assign work and assign employees. The Agency claims that "any possible adverse impact caused by adopting the [provision] is minimal and pales in comparison to the total abrogation of management's right[s] to assign work [and employees] that would result if the [provision] were adopted." Id. at 8.

B. Union

The Union contends that the provision is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union asserts that the provision "merely establishes a mechanism to insure employees have access to their break period." Response at 2. The Union states that, prior to the Agency's decision to change the manner in which employees took their morning breaks, employees were permitted to take two 15-minute rest periods during their 8-hour days. The Union further states that, based on the parties' agreement, management has consistently held that "a missed break period cannot be added to either the lunch period, another break period or to reduce the workday." Id. (emphasis in original). The Union argues that under the Agency's new system of scheduling morning breaks, employees could "be required to work through [their] scheduled break and then be unable to take . . . missed rest period[s] simply because [a break] would encroach on [their] lunch, afternoon break or departure time." Id. at 3.

The Union asserts that the provision "would clearly provide an arrangement to mitigate the inherently adverse impact of an employee who would be denied [a] scheduled break period and quite possibly, denied a negotiated entitlement" to two 15-minute breaks a day. Id. The Union claims that the Agency concedes that the provision "in no way excessively interferes with management's right to assign work" by stating that "any possible adverse impact is minimal." Response at 2 (citing Statement of Position at 8; emphasis deleted). In this regard, the Union states that "[t]he duration of the replacement would be extremely short and temporary . . . and management could avoid any future disruptions to the hearing by simply assigning an employee who had already observed his/her break so that a second disruption would not be needed." Id. at 3. Accordingly, the Union argues that "any interference with management's right[s] . . . would be inescapably minimal in degree and scope because it would not exceed even a full [workday]." Id.

The Union disputes the Agency's contentions with respect to the provision's use of the phrase "make every attempt" and contends that "management's interpretation is in error." Id. at 3-4. The Union claims that the language "outlines steps management will take to ensure that there is coverage . . . so that employees will be able to go on their breaks without interruption and without jeopardizing [the Agency's mission]." Id. Further, the Union asserts that the phrase preserves "the right of management to accomplish the work which must be done, while at the same time ensuring employees maximum opportunity to have an uninterrupted break." Id.

IV. Analysis and Conclusions

For the following reasons, we find that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Further, we find that we are unable, based on the record before us, to conclude that the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Consequently, we find that the provision is nonnegotiable.

A. The Provision Directly Interferes with Management's Right to Assign Work

Management retains the right under section 7106(a)(2)(B) to assign work to employees during their break periods. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 34 FLRA 765, 769 (1990); American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 844 (1986). Provisions that impose a substantive limitation on the exercise of management's right to assign work directly interfere with that right. 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). Consequently, a provision that would place a substantive limitation on management's right to assign work to employees during their break periods would directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Based on the wording of the provision at issue in this case and the Union's explanation, we find that the provision requires the Agency to make every attempt to replace employees who would be precluded from taking their scheduled 15-minute morning break because they are involved in a hearing and to reassign the hearing duties to a replacement employee. Because the provision obligates the Agency to free employees from their hearing assignments so that they can take their morning breaks and to reassign hearing duties to an available employee, we find that the provision imposes a substantive condition on management's ability to assign hearing duties and, therefore, directly interferes with management's right to assign work. See, for example, American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387-88 (Provision 10) (1992). Consequently, the provision is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. The Record Does Not Contain Information Sufficient to Determine Whether the Provision Is an Appropriate Arrangement

The Union contends that the provision is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-35 (1986) (KANG), the Authority established an analytical framework for evaluating proposals intended to constitute appropriate arrangements. Specifically, in determining whether a proposal constitutes an arrangement, we first ascertain whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If the proposal is determined to be an arrangement, we examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of that right. KANG, 21 FLRA at 31-35.

For the purposes of this decision, we will assume, without deciding, that the provision constitutes an arrangement. See, for example, American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Branch Office, Hemet, California, 46 FLRA No. 106, slip op. at 7 (1993). Consequently, we next seek to determine whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3) because it does not excessively interfere with the exercise of management's rights or whether it excessively interferes with management's rights under the Statute. KANG, 21 FLRA at 31-32. In assessing whether a proposal excessively interferes with a management right, we balance the competing practical needs of managers and employees. Id. In other words, we will determine whether the burden imposed on the exercise of management's rights by the provision is excessive when weighed against the benefit the provision affords to employees.(1)

The Union claims that the provision "merely establishes a mechanism to insure employees have access to their break period" and that "any interference with management's right[s] . . . would be inescapably minimal in degree and scope because it would not exceed . . . a full [workday]." Response at 2, 3. The Agency claims, however, that the provision places a burden on its right to decide that hearings "would be more efficiently and effectively completed" by having "an employee involved in operating transcription equipment and taking notes during a hearing" remain at the hearing instead of being replaced. Statement of Position at 7. As such, the Agency asserts that the provision "unduly restricts the Agency in the exercise of its rights" and excessively interferes with its right to assign work. Id. at 10-11.

We find that the record is insufficient for us to assess the competing practical needs of employees and managers in the circumstances of this case. Consequently, we are unable to balance those competing needs so as to determine whether the provision excessively interferes with management's right to assign work. For example, the parties do not explain the nature of the hearings or the significance of employees' participation in those hearings. The Agency states, and the Union does not dispute, that the affected employees are "involved in operating transcription equipment and taking notes . . . ." Id. at 7. Neither party, however, adequately explains the extent of the role of employees in the hearing or how the replacement of an employee would affect the conduct of the hearing. Moreover, neither party presents evidence as to how often employees are involved in the type of hearing covered by the provision. Although the Agency states, and the Union does not dispute, that the occasions on which employees would be required to miss their break because they are involved in a hearing would be "infrequent," the Agency does not further explain what it means by the term. Id. at 9. Accordingly, we are unable to balance the competing needs of the parties and determine whether the provision excessively interferes with management's right to assign work.

The parties bear the burden of creating a record on which we can base a negotiability determination. Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 21 (1992) (Division of Military and Naval Affairs). A party failing to satisfy its burden acts at its peril. See National Federation of Federal Employees Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). As the record does not contain sufficient information for us to determine whether the provision constitutes an appropriate arrangement, and as the provision directly interferes with the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute, the provision is nonnegotiable.(2)

See, for example, Division of Military and Naval Affairs, 45 FLRA at 21-22.

V. Order

The Union's petition for review is dismissed.




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

1. We reject the Union's assertion that the Agency "concede[s]" that the provision does