48:0232(19)NG - - AFGE, Local 3258 and HUD, Boston Regional Office - - 1993 FLRAdec NG - - v48 p232



[ v48 p232 ]
48:0232(19)NG
The decision of the Authority follows:


48 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3258

(Union)

and

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

BOSTON REGIONAL OFFICE

(Agency)

0-NG-2116

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 16, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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 case concerns the negotiability of two proposals relating to the Agency's implementation of a mail meter machine system in its Boston Regional Office. The Agency's statement of position was contained in its allegation of nonnegotiability. The Authority granted the Union's request to file a supplemental submission.

Proposal 1 would require the Agency to redistribute, in a fair and equitable manner, work that arises from the additional duties created by the implementation of the new mail metering system. Proposal 2 would require the Agency to refrain from implementing its new mail metering system until a grievance is resolved involving the level at which bargaining over this matter should occur or until the Agency agrees to negotiate over the change at the national level.

For the following reasons, we find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Proposal 2 constitutes a procedure under section 7106(b)(2) and is negotiable.

II. Proposal 1

Adjustment in workload caused by the implementation of the mail meter machine system will be redistributed in a fair and equitable manner, with due consideration of the additional, tedious and technical work of weighing, stamping and ensuring mailing of all mail generated by the respective office.

A. Positions of the Parties

1. The Agency

The Agency contends that the proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the right to assign work includes the right to determine the particular duties and functions to be assigned and the right to determine the specific employees to whom these duties and functions will be assigned.

2. The Union

The Union argues that the proposal does not directly interfere with any management right under the Statute. It argues, however, that if the Authority finds that the proposal does interfere with a management right, the proposal constitutes an appropriate arrangement for adversely affected bargaining unit employees. The Union states that the Agency's decision to implement a mail meter machine system will entail additional and novel assignments of work for bargaining unit employees, and contends that this proposal is meant to ameliorate those adverse effects.

The Union states that the proposal requires only that the Agency adjust the workload of employees affected by the implementation of the new mail metering system by redistributing work requirements in a fair and equitable manner, and that it does not require management to make specific assignments to specific employees. The Union asserts that under the proposal the Agency would be free to evaluate the requisite skills and abilities needed for any particular task and to choose an employee to fit its requirements and that, therefore, any interference with the assignment of work would be minimal. The Union argues that the proposal benefits employees by providing relief from unreasonably burdensome assignments. The Union states that the Agency's employees would still have to perform the tasks assigned, despite their quantity and difficulty, but that the tasks would "be more equitably distributed." Supplemental submission at 3. The Union asserts that, for those reasons, the proposal constitutes a negotiable procedure or an appropriate arrangement for employees adversely affected by management's exercise of its rights.

B. Analysis and Conclusions

We conclude that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B).

1. Direct Interference with the Agency's Right to Assign Work

Proposal 1 requires management to redistribute work in a fair and equitable manner among bargaining unit employees who are adversely affected by management's decision to implement a new mail metering system. The effect of this proposal is the establishment of criteria governing management's right to assign work.

Proposals that establish general criteria restricting the range of management action pursuant to a right under section 7106 of the Statute constitute a substantive limitation on the exercise of that right. Proposals establishing substantive criteria governing the exercise of a management right directly interfere with that right. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1010 (1990). The Authority has held that terms such as "fair and equitable," "equitable" and "equitably," when used in proposals that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 707-09 (1992) (NTEU) (provision requiring management to select employees for training on a fair and equitable basis found nonnegotiable because it established a substantive criterion governing management's right to assign work and, therefore, directly interfered with that right); National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 684 (1991) (NAGE) (provision requiring that, to the extent possible, work would be distributed equitably within job classifications found nonnegotiable). We find that, by prescribing that work arising from implementation of the mail metering system be distributed among bargaining unit employees in a fair and equitable manner, Proposal 1 would impose substantive restrictions on the Agency's right to assign work. We conclude, therefore, that Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Appropriate Arrangement

Having found that the proposal directly interferes with management's right to assign work, we next consider whether the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Authority established an analytical framework for determining whether proposals that directly interfere with management's rights are nevertheless negotiable because they constitute appropriate arrangements under section 7106(b)(3) of the Statute in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG). Under that framework, we initially determine whether the proposal constitutes an arrangement. To do this, we ascertain whether the proposal in question seeks to address or compensate for adverse effects on employees produced by the exercise of management's rights. See KANG, 21 FLRA at 31. If the proposal satisfies the first part of this analysis, we then determine whether the proposed arrangement is appropriate. Under this second part, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with management's rights. See id. at 33.

The Union states that the proposal is intended to address the adverse effect on employees of additional and novel work assignments arising from management's decision to implement the mail metering system. This statement is consistent with the plain language of the proposal, and we adopt it for purposes of this decision. The proposal directly addresses the adverse effects on those employees who suffer an "adjustment in workload" caused by the implementation of the mail metering system. Therefore, it is designed to ameliorate the effects of management's right to assign work associated with the new system. The proposal would benefit employees by ensuring that they are not unfairly burdened with "additional, tedious and technical" duties as a result of an inequitable distribution of work arising from the change to the new system. Consequently, we conclude that the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. See NAGE, 40 FLRA at 686.(2)

We further find that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) because it does not excessively interfere with management's right to assign work. According to the Union, any interference with the Agency's right to assign work would be minimal because under the proposal management would be free to choose an employee whose qualifications met its requirements for the task to be performed. There is nothing in the express wording of the proposal or in the record to indicate that the proposal would require the Agency to assign work to unqualified employees. While there may be some additional administrative burdens placed on management by the requirement to spread additional work arising from the implementation of the mail metering system fairly and equitably among employees affected by the change, the Agency has made no argument to this effect.(3) Thus, we find no indication in the record that such a burden would be more than negligible.

In contrast, we find that the benefits accorded to employees by the proposal would be substantial. Employees who are faced with new tasks as a result of the new system would be assured that the more tedious and technical assignments would be apportioned fairly among all the qualified employees, thereby giving each employee an equal opportunity to master, and to excel in, the new work. Moreover, the employees would also be free of any adverse effects that disproportionately onerous assignments might impose on their performance of the other duties associated with their positions.

Consequently, based on the record before us, we conclude that the burden on management of providing for the fair and equitable distribution of work under Proposal 1 is outweighed by the benefits to employees of requiring that the additional work arising from the implementation of the mail metering program be distributed in such a manner. The Agency does not assert any other basis on which to find the proposal nonnegotiable, and none is apparent to us. We conclude, therefore, that the proposal does not excessively interfere with management's right to assign work under section 7106(b)(3) of the Statute. Consequently, we conclude that Proposal 1 is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

III. Proposal 2

There will be no implementation at the local level until after resolution of the Grievance of the Parties filed or to be filed by the [Union] at the national level regarding [the Agency's] duty to bargain at the national level or until [the Agency] bargains at the National level, whichever occurs first.

A. Positions of the Parties

1. The Agency

The Agency contends that this proposal constitutes an absolute bar to the implementation of its mail metering system until after the Union resolves its grievance over whether the duty to bargain over the matter lies at the national or local level. The Agency argues that the proposal precludes it from implementing its mail metering system even if the Agency determines that implementation is necessary before resolution of the grievance. The Agency also notes that at the time of its allegation of nonnegotiability a grievance over the level of bargaining had not yet been filed.

By requiring management to delay its implementation of the mail metering program, the Agency argues that this proposal directly interferes with "rights reserved to Management under [sections] 7106(a) and [7106](b)(1)." Petition, Attachment 1. The Agency contends that the proposal would directly interfere with its right to assign work, "which includes the discretion to determine when the work which has been assigned will be performed." Id. The Agency argues that the proposal also directly interferes with its right to implement a new program in order to accomplish its mission in a more effective and efficient manner. Finally, the Agency argues that the proposal is not a procedure under section 7106(b)(2) of the Statute because it does not provide for the Agency to observe any requirement before it exercises its right to choose the means by which its work will be done but, rather, it requires the Agency to refrain from exercising its right to implement the system "for an undetermined amount of time." Id.

2. The Union

The Union argues that the proposal is a negotiable procedure or, alternatively, that it constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right under section 7106(b)(3) of the Statute. The Union argues that the proposal does not preclude the Agency from "acting at all" in exercising any management right. Supplemental submission at 2. The Union maintains that the proposal is intended to be a procedure that provides for a hiatus during which the parties may resolve the contractual issue of whether negotiations over this matter should be conducted at the local or national level. Thus, the Union asserts that the Agency would be free to implement its new mail metering system when the grievance over the proper bargaining level is resolved or at the completion of its bargaining obligation at the national level.

The Union cites National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1114-18 (1991) (NFFE, Local 405), as an example of a similar proposal that the Authority found to be negotiable. The Union argues that in NFFE, Local 405 the Authority addressed the issue of delaying a contracting out decision until an appeal over the decision was resolved and found that the proposal at issue was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

The Union argues that in this case, as in NFFE, Local 405, the proposal provides for a delay in the exercise of a management right until the underlying dispute described in the proposal has been resolved. The Union argues that the dispute in this case concerns the parties' disagreement over which level--the national or local--is appropriate for bargaining over the proposed change. The Union asserts that the proposal would delay implementation only for a few months "until the matter of contract interpretation over the level of bargaining is resolved." Supplemental submission at 6.

The Union notes that the proposed mail metering system affects relatively few employees at the regional office but that the change possibly could affect over one hundred employees nationwide. It argues that the impact of the new mail metering program is considerable on each employee affected by the proposed change. The Union also argues that the effect of the change on the Union is "significant when viewed toward the future interpretations of the national contract." Id. In this regard, the Union argues that because the parties engage in extensive mid-term bargaining, the grievance that underlies the proposal in this case is "significant in determining the future conduct of mid-term bargaining." Id. at 7.

The Union asserts that the Agency does not have much at stake in delaying implementation of its new mail metering system. The Union argues that "[i]f mail is metered rather than franked a few weeks or months later, there is very little damage to management's rights or the agency's budget." Id. The Union also asserts that there is only a remote effect on the Agency's right to assign work and employees. The Union argues that if the Agency implements the new system and the Union prevails in the grievance, the remedy could be far more substantial than the delay at issue in the proposal. The Union also argues that, unlike the Authority's contracting out cases, "the singular agency implementation is rather insignificant in scale." Id. Consequently, the Union asserts that any impact from the proposal on management's rights "is respectively of a small scale." Id.

B. Analysis and Conclusions

We conclude that Proposal 2 is a negotiable procedure under section 7106(b)(2) of the Statute.

Proposal 2, by its express wording, requires the Agency to suspend the implementation of its new mail metering system until after the resolution of the Union's grievance over the proper level at which negotiations over this matter should occur. According to the Agency, the Union bargained, "under protest," at the local level regarding the impact and implementation of the new mail metering system. Petition, Attachment 1. The Agency contends that those negotiations were in compliance with Article 5, Section 5.03 of the parties' collective bargaining agreement. Id. Consequently, it is clear from the record that there is a contractual dispute between the parties as to the level at which a mid-term bargaining obligation lies and that the Union has taken measures to resolve that dispute.(4)

The Agency claims that the proposal would operate to delay its assignment of mail metering work and, consequently, that the proposal directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Authority has held that certain proposals precluding an agency from exercising a management right unless or until other events occurred directly interfered with that right. See, for example, American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA No. 15 (1993) (proposal that conditioned the assignment of certain work on the prior amendment of position descriptions directly interfered with agency's right to assign work); 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) (proposal requiring that agency delay the planned termination of a pilot project for 180 days, during which time the agency would take certain measures to inform users of the termination, excessively interfered with right to assign work).

In contrast, the Authority has found certain proposals that would stay management action only pending the completion of the negotiated grievance procedure or other applicable appellate procedures to be within the duty to bargain under section 7106(b)(2) of the Statute. See American Federation of Government of Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 131-34 (1990) (proposal requiring, in most circumstances, that the agency stay a suspension or removal pending exhaustion of contractual review procedures, found to be a procedure); American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 167 (1987) (citing American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979) (Dix-McGuire), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982)).

We conclude that this proposal, which requires only that the Agency delay the implementation of the new system until the Union has pursued its statutory rights with regard to negotiations over that system, is procedural in nature. In other words, the Agency retains the right to operate a mail metering system as it sees fit so long as it delays the operation of that system until the grievance has been resolved.

We find this case to be distinguishable from Department of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880 (D.C. Cir. 1988) (IRS v. FLRA). See also American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 364-66 (1991) (Member Talkin dissenting in part as to other matters). In IRS v. FLRA, the court found nonnegotiable a proposal providing that the agency could award no outside contracts "'until all grievance procedures, up to and including arbitration' had been exhausted." Id. at 881. The court concluded that the proposal "would oblige the agency to await an arbitrator's decision before going forward with a private sector procurement," and found that "the delay alone could compromise the managerial judgment involved in procuring products or services necessary to the agency's mission when they are needed." Id. at 883. In contrast, there has been no showing that the case before us involves a matter with regard to which the delay imposed by the proposal could have such a significant effect. Unlike the proposal in IRS v. FLRA, which sought to impose delays on the agency each time it chose to contract out for goods or services, the proposal in this case seeks only to delay Agency action until the resolution of an issue that arose during the negotiation of the proposal itself. Moreover, the Agency action involved--the implementation of a mail metering system--is a matter that is at most peripheral to the Agency's mission. Compare United States Customs Service v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988) (court found proposal nonnegotiable that would have delayed implementation for six months, pending completion of a union study, of a program to grant vessels arriving from abroad conditional permission to enter U.S. ports).

We find it significant that the grievance addressed in the proposal concerns an issue involving the Agency's obligation to bargain. The Authority has long held that a proposal is a negotiable procedure if it requires an agency to maintain the status quo pending a determination of the agency's statutory duty to bargain concerning procedures to be followed and appropriate arrangements for employees adversely affected by a proposed change. For example, NFFE, Local 405, 42 FLRA at 1119-20 (proposal requiring the agency to fulfill its bargaining obligations under the Statute before separating or displacing employees); National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1202-04 (1991) (proposal prohibiting the agency from implementing new certification requirements for paramedics until the Authority had made negotiability determinations regarding the new program); International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1503-06 (1991) (proposal requiring delay in implementation of drug testing program pending a satisfactory resolution of negotiations); National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392 (1990) (proposal requiring delay in implementation of new starting and quitting times until negotiations were held).

Consistent with Authority precedent, we find that this proposal does not directly interfere with management's right to assign work. Similarly, we reject the Agency's claim that the proposal directly interferes with its rights under section 7106(b)(1). Accordingly, we find that Proposal 2 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

IV. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 1 and 2.(5)

Concurring Opinion of Member Armendariz

I agree with my colleagues that Proposal 1, while directly interfering with the Agency's right to assign work under section 7106(a)(2)(A) of the Statute, is negotiable as an appropriate arrangement. However, I cannot join in the analysis employed by my colleagues in determining that Proposal 1 is an arrangement within the meaning of section 7106(b)(3) of the Statute. The issue of whether a proposal constitutes an arrangement under section 7106(b)(3) of the Statute has been the subject of two recent court decisions. In United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) (INS) and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management), the courts concluded that various proposals were not arrangements for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute because the proposals were not tailored to benefit or compensate only those employees suffering adverse effects flowing from some management action that comes within the ambit of management's rights.

Specifically, in Minerals Management the court held that "the plain language of [section] 7106(b)(3) [of the Statute] demands that the FLRA assure that arrangements are tailored to address only those employees adversely affected by a management action." Minerals Management, 969 F.2d at 1162 (emphasis added); see INS, 975 F.2d at 226. Further, the court went on to state that section 7106(b)(3) of the Statute unambiguously applies "only when the proposed arrangement is tailored to benefit or compensate those employees suffering those adverse effects." Minerals Management, 969 F.2d at 1162 (emphases added); see INS, 975 F.2d at 226. The court stated that by failing to apply section 7106(b)(3) of the Statute in this manner "[the Authority] acted contrary to law." Minerals Management, 969 F.2d at 1162; see INS, 975 F.2d at 226.

Therefore, consistent with INS, Minerals Management, and my separate opinion in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705 (1993) (Member Armendariz, concurring in part and dissenting in part), I conclude that in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be narrowly tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right. As so interpreted, I would apply Minerals Management and INS to determine whether a