49:0461(38)NG - - District No. 1, Marine Engineers Beneficial Association, Panama Canal Area and Panama Canal Commission - - 1994 FLRAdec NG - - v49 p461



[ v49 p461 ]
49:0461(38)NG
The decision of the Authority follows:


49 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DISTRICT NO. 1, MARINE ENGINEERS

BENEFICIAL ASSOCIATION, (AFL-CIO)

PANAMA CANAL AREA

(Union)

and

PANAMA CANAL COMMISSION

(Agency)

0-NG-2150

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 10, 1994

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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It involves the negotiability of three proposals, which concern work assignments on certain tugboats operated by the Agency. The Agency filed a statement of position. The Union filed a response.(2)

For the following reasons, we find that Proposal 1, which provides that certain employees will not be required to work alone, excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable. Proposals 2 and 3, which provide that employees will not be assigned to, or held accountable for, certain duties, also excessively interfere with management's right to assign work and are nonnegotiable.

II. Preliminary Matter

The bargaining unit represented by the Union in this matter consists of licensed marine engineers employed on the Agency's tugboats, floating cranes, and dredges. In 1991, the Agency changed minimum staffing requirements for certain of its tugboats to no longer require an oiler to work with an engineer in tugboat engine rooms. The major duties of an oiler include lubricating machinery, cleaning engine rooms, and maintaining maintenance records.

III. Proposal 1

Except in an emergency, no bargaining unit member/employee will be required to stand watch alone, in the engine room, while the vessel is underway, in order to ensure the safety of the unit employee.

A. Positions of the Parties

The Agency asserts that Proposal 1 is nonnegotiable because it directly and excessively interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work and its right under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a work project. Specifically, the Agency contends that the proposal would compel management to assign an employee, in addition to an engineer, to engine room work regardless of the employee's regular duties. According to the Agency, that employee's "own duties would not be performed during the time he accompanied the engineer. . . . [and] could not be performed until later, if at all." Statement of Position at 6.

The Union contends that Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute to ensure that, except in an emergency, unit employees are not required to work alone while a tug is underway. According to the Union, the proposal is a safety measure that would ensure that, in case of accident or injury in the engine room, another person would be present to give aid to or obtain assistance for the engineer.

B. Analysis and Conclusions

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 to what position duties will be assigned, and when work assignments will occur. 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 1152, 1156 (1993) (SSA, Hemet). The right to assign work also includes the right to establish employees' work priorities. See 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, 709 (1993).

Proposal 1 would preclude the Agency from assigning an engineer to work alone in an engine room, except in cases of emergency. By conditioning the assignment of the engineer's duties on the assignment of other work, we find that the proposal imposes a substantive condition on management's right to assign work and, therefore, directly interferes with the exercise of that right. See American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1289 (1993) (SSA). As such, the proposal is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Id.

Having found that Proposal 1 directly interferes with management's right to assign work, we next consider whether the proposal is nevertheless negotiable as 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 (1986) (KANG), the Authority established an analytical framework for determing whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz concurring in part and dissenting in part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

Assuming for purposes of this decision that Proposal 1 is an arrangement, it is apparent that engineers would benefit under the proposal by having another individual available in case of accidents occurring in a tugboat's engine room. Although the record does not disclose whether engine rooms are isolated from other work areas or employees such that engineers' safety is significantly affected by the Agency's changed staffing requirements, we will assume that, at least in the case of a serious injury or accident, the benefit to engineers could be significant. In this regard, the Union submitted records showing that 15 accidents and injuries occurred in and around the engine rooms of the Agency's tugboats over a 29-month period, of which approximately 7 involved engineers.

However, Proposal 1 also would impose substantial constraints on management's decisions concerning the assignment, timing, and completion of work in engine rooms. Clearly, under the proposal, management would be compelled to assign an additional employee to the engine room whenever an engineer is working there and the ship is underway, except in cases of emergency. Moreover, although it appears that, as the Union argues, engineers do not spend their entire watch in the engine room, that fact does not, in our view, significantly lessen the burden on management. In this regard, except in an emergency, an employee would be required to interrupt his or her own work every time an engineer entered an engine room to work, for whatever brief or lengthy period. As a result, management would be obliged to reassign or delay completing, on an ad hoc basis, duties left unperformed as a result. Further, unless engine work was available for the accompanying employee, that employee would not be productively employed while in the engine room.

On balance, we find that the benefit to employees fails to outweigh the burden on the Agency's right to assign work. Accordingly, we conclude that the proposal excessively interferes with the exercise of that right and is nonnegotiable.(3) See 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 168, 189-91 (1993) (portion of proposal prohibiting agency in some circumstances from assigning employees to work in isolated areas held to excessively interfere with right to assign work; portion of proposal prohibiting agency in some circumstances from assigning employees to work in areas without natural ventilation held negotiable as an appropriate arrangement).

IV. Proposals 2 and 3

Proposal 2

No bargaining unit member/employee assigned any watch aboard Panama Canal floating equipment will be required to perform chipping, painting, soogee, general housekeeping, janitorial duties or other exclusively oiler work.(4)

Proposal 3

No bargaining unit member/employee assigned any watch aboard Panama Canal Commission floating equipment will be held responsible for oilers' duties being performed when an oiler has not been assigned to watch.

A. Positions of the Parties

The Agency asserts that Proposal 2 directly and excessively interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by imposing an absolute prohibition on assigning any "oiler" duties to engineers. The Agency makes the same arguments regarding Proposal 3. In addition, the Agency argues that Proposal 3 directly and excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) because it "would exonerate any marine engineer from a failure to perform or carry out an oiler's duty no matter how egregious the failure to do so." Statement of Position at 10.

The Union states that Proposal 2 would "ensure that the licensed engineers are not required to perform the work of the oilers . . . ." Petition for Review at 3. According to the Union, it would be "inappropriate to blur" the "historic distinction" between the job duties of the engineers and the oilers. Response at 6. The Union also states that Proposal 3 would relieve engineers "from responsibility (in the context of performance appraisal, discipline and general overall supervisory accountability) if the oiler's work has not been performed on his or her watch when no oiler has been assigned to the watch." Petition for Review at 3.

B. Analysis and Conclusions

As we noted in our discussion of Proposal 1, 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 to what position duties will be assigned, and when work assignments will occur. See, for example, SSA, Hemet, 46 FLRA at 1156. Proposals which preclude an agency from requiring employees to perform certain duties or restrict the agency's ability to assign duties directly interfere with management's right to assign work under section 7106(a)(2)(B). See Service Employees International Union, Federal Employees Metal Trades Council of Charleston, Local 696 and U.S. Department of the Navy, Naval Station, Charleston, South Carolina, 38 FLRA 10, 14 (1990). As Proposals 2 and 3 would preclude management from requiring an engineer to perform or be accountable for certain duties, the proposals impose substantive limitations on, and directly interfere with, the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

As we did in connection with Proposal 1, we will assume that Proposals 2 and 3 constitute arrangements, within the meaning of section 7106(b)(3) of the Statute. However, for the reasons which follow, we conclude that they are not appropriate arrangements.

The Union asserts that Proposals 2 and 3 would benefit engineers by precluding management from assigning an engineer to perform or be responsible for work which is traditionally done by an oiler. In addition, the Union urges that requiring engineers to do the work of oilers will undermine discipline, and distract engineers from their "duties of maintaining the safe and efficient operation of the vessel's engine, which is critical to the safety of the vessel and the rest of the crew." Response at 6. However, the Union does not dispute the Agency's argument that, as oiler duties also "include certain tasks to safeguard the vessel[]" the proposals could have "disastrous results." Statement of Position at 11-12.

Proposals 2 and 3 constitute blanket prohibitions on the assignment of certain duties and, as such, impose a substantial burden on the Agency's right to assign work. See, for example, National Federation of Federal Employees, Local 1214 and U.S. Department of the Army Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1121, 1130-31 (1992) (proposal prohibiting the assignment of duties outside employees' position description or regular duties held to excessively interfere with right to assign work). Compare 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 (1992)(proposal requiring agency to avoid "insofar as possible" requiring employees to "perform duties that are inappropriate to their position or qualifications[]" held negotiable as an appropriate arrangement).

We find, on balance, that the benefit to the engineers of being relieved of "traditional oiler work" is not so significant as to outweigh the burden placed on management. Response at 7. Accordingly, we find that Proposals 2 and 3 excessively interfere with management's rights to direct employees and assign work under section 7106(a)(2)(B) of the Statute. In view of our decision, we find it unnecessary to address the Agency's argument that Proposal 3 also excessively interferes with the management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 670 (1992).

V. Order

The petition for review is dismissed.

Opinion of Member Talkin, Dissenting in Part as to Proposal 1

Although I agree with my colleagues that Proposal 1 directly interferes with the Agency's right to assign work, I would find that proposal negotiable under section 7106(b)(3) of the Statute as an appropriate arrangement.

Applying the first part of the analytical framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), I would find that Proposal 1 is an arrangement designed to protect employees from the potential adverse effects of management's right to assign work in its engine rooms. More particularly, by prescribing that except in emergencies no employee will be required to work alone in an engine room while a vessel is underway, the proposal seeks to avoid the enhanced dangers inherent in lone performance of a duty that the record in this case demonstrates to be extremely hazardous. As each engineer is potentially at risk and, therefore, as it is impossible to know in advance which employees might in fact be endangered by the Agency's new policy, I would find the proposal sufficiently tailored to address the potential harm to the entire bargaining unit. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24, slip op. at 16-19 (1994) (Member Armendariz dissenting in relevant part).

Contrary to the decision of my colleagues, in applying the second portion of the KANG analysis I conclude that the benefits to the employees from the operation of Proposal 1 would outweigh any burdens on management. Consequently, I would find that Proposal 1 is negotiable as an appropriate arrangement. In reaching this conclusion, I find compelling the accident report in the record disclosing that from January 1990 through May 1993 there were at least seven serious accidents in the engine room, and that management determined that two of these accidents might have been avoided if more than one person had been on duty. In light of the record, I find persuasive the Union's statement that "[i]f an engineer stands watch alone, no one will know if he or she is injured in the event of a fire, collision, or engine room accident." Petition at 2. It is irrelevant that the other person assigned to engine room duty would also be subjected to hazards, as argued by the Agency, in view of the fact that the engineers, whom the proposal seeks to protect, would bear the full risk of engine room injury if required to work alone. Because the proposal would alleviate some of this risk, it would, in my view, provide a significant benefit to the employees who perform their work in such a hazardous environment as well as a benefit to the Agency, which certainly profits from the safe operation of its vessels and the prompt attention to injured employees.

In this context, the burdens on management of complying with the proposal are not as severe. By its terms, the proposal permits the Agency to staff the engine room with one person in emergencies. Therefore, it does not completely nullify the substantive effect of management's decision, as claimed by the Agency. In addition, as the Agency acknowledges, even under the new policy "some watches will have more than one engineer assigned . . . and many of the watches (about 50%) will continue to have an oiler assigned to work with the engineer . . . ." Statement of Position at 3. Consequently, the intrusion on management's right to assign work would be limited to a minority of watches and, because an engineer does not perform work in the engine room during the entire watch, to only a portion of those assignments. As the Agency contends, the proposal might require a crew member to put aside other assigned duties each time he or she had to accompany an engineer to the engine room. However, there is no reason to believe that duties could not be assigned to those crew members in a manner that would permit such disruptions without an untoward effect on the operation of the vessels.

In sum, in my view, Proposal 1 accords significant benefits to the employees in enhanced safety in a hazardous operation that far outweigh any interference that it would cause with management's right to assign work.




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

1. Member Talkin's opinion, dissenting in part as to Proposal 1, is set forth at the end of this decision.

2. The Agency requested permission to file a supplemental submission in response to the Union's response. Pursuant to section 2424.8 of our Rules and Regulations, we have considered the Agency's request and find that it provides no basis on which to allow the supplemental submission. Accordingly, the Agency's request is denied.

3. While this case was pending, Executive Order 12871 was issued, requiring management to negotiate over subjects set forth in 5 U.S.C. § 7106(b)(1). Because the Agency ar