54:0642(69)NG - - AFGE Local 3807 & DOE, Western Area Power Administration, Golden, CO [ DOE = Department of Energy ] - - 1998 FLRAdec NG - - v54 p642



[ v54 p642 ]
54:0642(69)NG
The decision of the Authority follows:


54 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3807

(Union)

and

U.S. DEPARTMENT OF ENERGY

WESTERN AREA POWER ADMINISTRATION

GOLDEN, COLORADO

(Agency)

0-NG-2394

DECISION AND ORDER ON NEGOTIABILITY ISSUES

July 31, 1998

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.Statement of the Case

This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains four proposals.

For the following reasons, we find that all four of the proposals are negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, we dismiss the petition, pursuant to section 2424.10 of the Authority's Regulations.

II.Background

In the past, the Agency has utilized two low-flying helicopters to inspect its high-voltage electric power lines for equipment deterioration and damage. These two helicopters are maintained at the Agency's Bismarck, North Dakota, and Huron, South Dakota sites, respectively.

The Agency concluded that its mission could be better served if it employed one long-range helicopter at Huron; this helicopter would perform the same work as that currently performed by the two low-flying helicopters.

According to the Union (and not disputed by the Agency), the pilot position at Bismarck would be eliminated under the Agency's plan. In response to the Agency's plan to eliminate the helicopter and the pilot position at the Bismarck site, the Union presented the four proposals at issue here.

III. Union's Proposals (1)

Proposal 1:

Retain one GS-2181-12 helicopter pilot position located at the North Dakota Maintenance Office in Bismarck,

North Dakota.

Proposal 2:

Retain one helicopter located at the Bismarck, North Dakota Maintenance Office as a method and means of the pilot performing work.

Proposal 3:

Retain one GS-2181-12 helicopter pilot position located at the South Dakota Maintenance Office in Huron, South Dakota.

Proposal 4:

Retain one helicopter located at the Huron, South Dakota Maintenance Office as a method and means of the pilot performing work.

IV.Positions of the Parties

A.The Agency

The Agency cites American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 800 (1996) (SSA, Mid-America), for the proposition that "where a union proposes both that an organization be maintained, and proposes the numbers of employees assigned to that organization, the dominant requirement of both proposals is the maintenance of the organization and mission." Statement of Position at 3. The Agency's arguments address the four proposals, taken together, rather than addressing them on a proposal-by-proposal basis.

Additionally, the Agency asserts that the four proposals "propose what work is to be performed, [i.e. the] fact of whether or not [the Agency] stations helicopters in Bismarck and Huron as well as who will operate them[.]" Id. (emphasis in original). As a result, according to the Agency, the proposals interfere with its right "to assign work (or not assign it)" under section 7106(a)(2)(B) of the Statute. Id. at 4. The Agency also asserts that the four proposals interfere with its right to determine its mission and organization (and its "future" mission and organization) under section 7106(a)(1) of the Statute, because the "dominant requirement" of the proposals is that the Agency maintain its current mission and organization. Id. at 3.

The Agency disputes the Union's contention that the proposals concern the numbers, types, or grades of employees, or the methods of performing work, within the meaning of section 7106(b)(1) of the Statute. The Agency does not address the Union's assertion that the Agency has elected, via the parties' Transformation Agreement and the Memorandum of Understanding, to bargain over section 7106(b)(1) matters. The Agency also does not address the Union's contention that the proposals constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.

B.The Union

The Union argues that the Agency's reliance on the Authority's decision in SSA, Mid-America, 52 FLRA 794, is misplaced because "that case dealt with a request to move and staff several separate offices and complete the staffing of several other offices." Response at 3. The Union also contends that case "involved numerous employees[,]" as opposed to the "one employee located in Bismarck" in the present case. Id.

The Union does not contest the Agency's assertion that the proposals concern rights reserved to management under section 7106(a) of the Statute. The Union asserts that the proposals constitute appropriate arrangements, within the meaning of section 7106(b)(3) of the Statute, for the pilot stationed at Bismarck, because that pilot "will be adversely affected by the loss of his job if the agency plan for the reorganization is not reviewed." Id. at 2. According to the Union, the Agency has not cited any credible studies to support its assertion that it is operationally inefficient to retain two helicopters and two pilot positions.

The Union also argues that the proposals constitute "numbers, types, grades, and methods" proposals, which are negotiable at the Agency's election under section 7106(b)(1) of the Statute. Id. Additionally, the Union asserts that the Agency has elected, via a Transformation Agreement and a Memorandum of Understanding, to negotiate over the numbers, types, grades, and methods of performing work.(2)

V.Analysis

A.The Analytical Framework for Assessing Section 7106(b) Matters.

In cases where a union disputes an agency's assertion that a proposal affects a management right or rights -- or asserts that a proposal is within the duty to bargain under section 7106(b)(2) and/or (b)(3) -- the Authority follows the sequence of analysis set forth in American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 177-78, 178 n.10 (1998) (HUD Council of Locals) (refining the sequence of analysis set forth in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995)). Under the HUD Council of Locals framework, first the Authority addresses the union's arguments regarding section 7106(a), (b)(2) or (b)(3). If the Authority concludes that the proposal does not affect management's rights under 7106(a), or that the proposal constitutes a 7106(b)(2) or (b)(3) matter, then the Authority will direct the agency to bargain, and will not address whether the proposal concerns matters negotiable only at the Agency's election under section 7106(b)(1). Id.

In the instant case, the Union does not dispute the Agency's arguments that the proposals affect managements rights under section 7106(a) of the Statute. However, the Union does contend that the proposals constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. In order to assess the Union's arguments that the proposals constitute appropriate arrangements for employees adversely affected by the exercise of management's rights, we first address whether the proposals affect the management rights asserted by the Agency.

B.The Proposals Affect Management's Rights Under Section 7106(a) of the Statute.

The Agency contends that the proposals, as a group, violate its rights to assign work under section 7106(a)(2)(B) of the Statute, and to determine its mission and organization under section 7106(a)(1) of the Statute. Statement of Position at 3. As discussed below, we conclude that Proposals 1 and 3 affect management's right to assign work under section 7106(a)(2)(B) of the Statute, and Proposals 2 and 4 affect management's right to determine the organization of the Agency under section 7106(a)(1).

1.Proposals 1 and 3 Affect Management's Right to Assign Work.

The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996).

Proposals 1 and 3 require the Agency to assign its aviation work to two employees, rather than to one employee. Effectively, the proposals require the Agency to assign work to an additional employee, where the Agency has determined that it is not operationally efficient to do so. As such, the proposals affect the Agency's right to determine to whom or what positions the duties of its aviation mission are assigned. Accordingly, we find that Proposals 1 and 3 affect the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, e.g., Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 42 FLRA 845, 853 (1991) (a proposal effectively requiring an agency to maintain the existing number of employees on duty, without regard to periods of temporary shutdown or curtailment of operations, violates management's rights to assign work and assign employees).(3)

Proposals 2 and 4 require the Agency to maintain two helicopters. Unlike Proposals 1 and 3, Proposals 2 and 4 do not require the Agency to assign work to particular positions or to particular employees. Accordingly, we find that the Agency has not demonstrated that Proposals 2 and 4 affect its right to assign work under section 7106(a)(2)(B) of the Statute.

2.Proposals 2 and 4 Affect Management's Right to Determine the Organization of the Agency.

Management's right to determine its organization under section 7106(a)(1) of the Statute encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, e.g., SSA, Mid-America, 52 FLRA at 802. That is, this right includes the authority to determine how an agency will structure itself to accomplish its mission and functions. Id. Additionally, management's right to determine its organization includes such matters as, inter alia, the geographical locations in which an agency will provide services or otherwise conduct its operations, and how various responsibilities will be distributed among the agency's organizational subdivisions. Id. at 802-03. See also, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1604-05 (1993).

Proposals 2 and 4, by preventing the Agency from trading in its two short-range helicopters for one long-range helicopter, effectively require the Agency to maintain two separate, short-range aviation missions at two separate sites. As such, the proposals would affect the Agency's right to determine the geographic locations in which it will conduct its operations. Such a proscription would affect the Agency's right to determine its organization. See SSA, Mid-America, 52 FLRA at 802. See also National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 526, 534 (1997). Thus, we conclude that Proposals 2 and 4 affect management's right to determine the organization of the Agency under section 7106(a)(1) of the Statute.(4)

C.The Proposals Do Not Constitute Appropriate Arrangements Under Section 7106(b)(3) of theStatute.

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Authority set forth a two-step approach to determining whether a proposal is within the duty to bargain under section 7106(b)(3) of the Statute. The Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by management's exercise of its rights. If the proposal is determined to be an arrangement, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with management's exercise of its rights. Id. at 31-33.

An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); see also, American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 141 (1995). The purported arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). For the following reasons, we conclude that none of the proposals here constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.

1.Proposal 1

The Union intends Proposal 1 to be an arrangement for the pilot located at Bismarck, who, according to the Union (and not disputed by the Agency), would lose his job if the Agency is not restrained in the exercise of its rights to assign work and to determine its organization. However, even assuming that Proposal 1 constitutes an "arrangement" under the first inquiry in the KANG analysis, we find, for the following reasons, that Proposal 1 is not "appropriate" under the second inquiry in the KANG analysis.(5)

Under KANG, we balance the interests involved in order to determine whether the arrangement excessively interferes with management's exercise of its rights, and thus, whether the arrangement is or is not "appropriate" within the meaning of section 7106(b)(3) of the Statute. On the one hand, the arrangement would only benefit one employee, i.e., the pilot at Bismarck. However, the detriment that the employee would experience under the Agency's reorganization plan could be considerable, as he would no longer occupy the pilot position at Bismarck.

On the other hand, Proposal 1 would require the Agency to maintain a pilot position at Bismarck, to pay an additional pilot, and to alter its reorganization plan. The proposal also would prevent the Agency from making its operations more efficient. Consequently, Proposal 1 would place a heavy burden on the Agency, for the sake of a single employee's retention of his current position. On balance, the Agency's interests outweigh those of the pilot at Bismarck, because the interests of a single employee in retaining his current position are not weighty enough to justify an effective prohibition of the Agency's reorganization plan. Thus, we find that the arrangement is not "appropriate" within the meaning of section 7106(b)(3) of the Statute. See, e.g., Federal Union of Scientists and Engineers and Department of Navy, Naval Underwater Systems Center, 22 FLRA 731, 734 (1986) (despite its potential job-retention benefits for full-time employees, a proposal requiring that an agency RIF part-time employees before RIFing full-time employees does not constitute an appropriate arrangement, in part because by "removing the [a]gency's discretion to determine which positions to eliminate[], the proposal excessively interferes with management's right to layoff and retain employees").

2.Proposal 3

Proposal 3 would allow the pilot at Huron to retain his position. However, the Union does not assert, and there is no basis in the record for concluding, that the pilot at Huron is in danger of losing his job under the Agency's reorganization plan. As such, the Union fails to establish that Proposal 3 constitutes an arrangement for an employee adversely affected by management's exercise of its rights. Thus, we conclude that Proposal 3 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

3.Proposals 2 and 4

Proposals 2 and 4 require only that the Agency maintain two short-range helicopters at two separate sites; they do not require the Agency to maintain its current staff. Proposals 2 and 4 do not benefit employees adversely affected by the exercise of management's rights. Accordingly, we conclude that Proposals 2 and 4 do not constitute arrangements within the meaning of section 7106(b)(3) of the Statute.

D.The Proposals Concern Matters That Are Negotiable At the Election of the Agency Under Section7106(b)(1) of the Statute.

Having determined that the proposals affect management's rights under section 7106(a), and that they do not constitute appropriate arrangements under section 7106(b)(3), we now address whether the proposals concern matters negotiable at the Agency's election under section 7106(b)(1). For the reasons that follow, we conclude that all four of the proposals concern matters negotiable at the Agency's election under section 7106(b)(1) of the Statute, and we dismiss the Union's petition.

1.Proposals 1 and 3 Concern the Numbers, Types,and Grades of Employees Assigned to a Tour of Duty.

Under section 7106(b)(1) of the Statute, proposals relating to the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty," are negotiable at the election of the agency. This phrase in section 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030-31 (1997) (holding that a proposal requiring the Agency to assign dental assistant's duties to dental hygienists concerned the numbers, types and grades of employees within the meaning of section 7106(b)(1)). The determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 432 (1997) (holding that a proposal requiring bilateral agreement concerning the number of employees or positions assigned to an organizational subdivision, work project or tour of duty comes within the scope of section 7106(b)(1), regardless of whether the proposal would increase, decrease, or maintain the number that the agency proposes to assign or has assigned).(6)

Proposals 1 and 3 would require the Agency to continue to employ two separate pilots, at two separate locations, in order to conduct its aviation work. The proposals would effectively require bilateral agreement concerning the allocation of some of the Agency's staff. As such, these proposals concern the allocation of staff for the purpose of the Agency's organization and the accomplishment of its work. Thus, Proposals 1 and 3 relate to the numbers of positions assigned to two organizational subdivisions within the Agency, and they constitute matters negotiable at the Agency's election under section 7106(b)(1) of the Statute. Cf. American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center, Richmond, Virginia, 48 FLRA 53, 59 (1993) (a proposal requiring an agency to retain its existing tours of duty impermissibly determines the numbers of employees assigned to a tour of duty, and thus directly interferes with the agency's right to determine the numbers, types, and grades of employees assigned to a tour of duty). Accordingly, pursuant to Section 2424.10 of the Authority's Regulations, we dismiss the Union's Petition with regard to Proposals 1 and 3.

2.Proposals 2 and 4 Concern the Methods and Means of Performing Work.

The Authority has construed "method" to refer to "the way in which an agency performs its work." See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996). The Authority has construed "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by the agency from the accomplishment or furtherance of the performance of its work." Id. The Authority employs a two-part test to determine whether a proposal interferes with management's right to determine the methods and means of performing work. First, the agency must show a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposals would directly interfere with the mission-related purpose for which the method or means was adopted. See National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Region V, Walnut Creek, California, 41 FLRA 1195, 1202 (1991) (NRC, Region V).

The Agency has determined that its aviation mission will be performed most efficiently if it employs one long-range helicopter, rather than two short-range helicopters. Although the Agency's mission could continue to be performed in the manner in which it is currently being carried out, i.e., with two helicopters, the Agency has decided to reorganize the way in which its mission is conducted, by acquiring a single long-range helicopter. As such, the Agency's plan regards the "methods" in which its work will be carried out.

Additionally, the helicopters that the Agency uses in carrying out its mission constitute "instrumentalities," and hence "means," of the performance of the Agency's work within the meaning of section 7106(b)(1) of the Statute. See, e.g., Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 959 (1988) (VAMC Providence) (proposal requiring agency to provide vehicles for use by employees in performing work). See also, National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA 314, 318-20 (1986) (where travel is a necessary aspect of an agency-conducted program, a proposal requiring the agency to request cars from GSA for the purpose of providing those cars to employees involved in that program, concerns "means" of performing the work assignments associated with that program). The relative importance of a particular "means" of performing work is irrelevant to a determination of whether a proposal interferes with the right to determine the methods and means of performing work. See NRC, Region V, 41 FLRA at 1202. The means need not be indispensable to the accomplishment of the agency's mission; rather, the means need only be "a matter that is 'used to attain or make more likely the attainment of a desired end' or 'used by the agency for the accomplishing or furthering of the performance of its work.'" Id.

Proposals 2 and 4 would require the Agency to maintain the status quo, i.e., to maintain two separate helicopters. Although the type of work that would be performed under these proposals is the same type of work that would be performed under the Agency's proposed reorganization, the means that the Agency would use differ significantly under the two plans. As a result, the way in which the Agency's work will be carried out also varies significantly under the proposals from the methods that the Agency would use under its reorganization plan. As Proposals 2 and 4 would directly interfere with the mission-related purpose for which the Agency intends to utilize a single helicopter, the proposals constitute matters regarding the methods and means of performing work, and they are bargainable only at the Agency's election under section 7106(b)(1) of the Statute.(7) Accordingly, we dismiss the Union's petition with regard to Proposals 2 and 4.

VI.Order

Proposals 1, 2, 3, and 4 are all negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, under section 2424.10 of the Authority's Regulations, the Union's petition for review is dismissed.




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

1. Neither party contends that these proposals mean anything in addition to, or different from, what the plain wording of these proposals indicate. Thus, we will address the negotiability of these proposals in accordance with their plain wording.

2. The Union does not cite to any particular provisions of either the Transformation Agreement or the Memorandum of Understanding. However, the Union attached a copy of both documents to its petition. The relevant provision of the Transformation Agreement provides that "[n]umbers, types, grades, and methods of doing work will be negotiated for each unit in [the Agency] that has [bargaining unit] employees." Exhibit A to Union Petition at 5 (item 32). The relevant provision of the Memorandum of Understanding provides that "[t]he parties . . . agree that [the Union] shall retain full rights to negotiate numbers, types, grades, and methods of doing work as pertains to the helicopter pilots in the Upper Great Plains Region." See Exhibit A.

3. Given our conclusion, as discussed below, that Proposals 1 and 3 are not appropriate arrangements under section 7106(b)(3) of the Statute, we need not address whether Proposals 1 and 3 also affect management's right to determine the mission or organization of the Agency, under section 7106(a)(1).

4. In light of our conclusion below that Proposals 2 and 4 are not appropriate arrangements under section 7106(b)(3) of the Statute, it is unnecessary to address whether Proposals 2 and 4 also affect management's right to determine its mission under section 7106(a)(1).

5. Given our conclusion that Proposal 1 excessively interferes with management's rights, we need not address whether Proposal 1 is sufficiently "tailored" to compensate employees suffering the adverse effects of management's exercise of its rights.

6. The Agency does not dispute, and there is no basis in the record for rejecting, the Union's contention that the Agency's operations at Bismarck and at Huron constitute "organizational subdivision[s]" within the meaning of section 7106(b)(1).

7. The Authority has noted that its current test for determining whether a proposal concerns methods and means within the meaning of section 7106(b)(1) may no longer be appropriate in cases where the union, rather than the agency, contends that the proposal concerns methods and means. See National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1438 n.3 (1998). However, we note that neither of the parties in the instant case requested reconsideration of the Authority's existing methods and means test. Additionally, a