National Federation of Federal Employees, Local 2192 (Union) and United States, Department of the Interior, National Park Service, Pictured Rocks National Lakeshore, Munising, Michigan (Agency)

[ v59 p868 ]

59 FLRA No. 159

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES,
LOCAL 2192
(Union)

and

UNITED STATES
DEPARTMENT OF THE
INTERIOR, NATIONAL PARK SERVICE
PICTURED ROCKS NATIONAL LAKESHORE
MUNISING, MICHIGAN
(Agency)

0-NG-2690

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

April 28, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal with several parts. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position. [n2] 

      The proposal provides that the Agency must elect between two options which address different actions the Agency must take when an employee is assigned to fire duty, thereby causing a temporary reduction in the number of employees available to perform certain duties. For the reasons that follow, we find that both options are outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.      Proposal

      The proposal is set forth in the Appendix to this decision. [n3] 

III.      Meaning of the Proposal

      The parties agree that the proposal addresses what steps the Agency must take when a red-carded employee (that is, an employee who is certified as a fire fighter) is assigned to fire duty, thereby causing a temporary reduction in the number of employees available to accomplish the work of the Agency. Conference Record at 4. Under Option A, the Agency would "back fill for the hours" of the employee assigned to fire duty with another employee from among a group of qualified employees of the same division. Although the proposal does not define the term "back fill," the Union indicates that the term refers to assigning the duties of an employee on fire duty to other employees. See id. Option A also would require the Agency to assign those duties to employees based on the order of selection in the four categories listed in Section 5.b.

      Under Option B, the Agency would place the salary of the employee who was assigned to fire duty into the budget of that employee's division. Although the proposal states that the funds "will be used," the Union explains that Option B requires the Agency to "make every reasonable effort to utilize funds," Response at 9, to purchase "suppl[ies], tools, equipment, and materials" for use by the remaining employees to accomplish the work of the division. Id. at 5. The Agency does not dispute the Union's explanation, which we adopt.

      Section 6 of the proposal provides that when an employee is assigned to fire duty, the Agency is required to notify the Union whether it will use Option A or Option B. Section 7 provides that the Agency will take certain actions concerning the rescheduling of employees, such as discussing schedule changes with employees and providing copies of the revised schedule to the Union, depending on whether Option A or Option B is selected. [ v59 p869 ]

IV.      Positions of the Parties

A.      Agency

      The Agency contends that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute. See Statement of Position (SOP) at 4. The Agency also contends that how it "handles its allocated budget or special project funds is not within the duty to bargain." Attachment to SOP at 3. The Agency asserts "that there is a process already in place at each park to procure tools and equipment built into each division's budget to obtain any equipment necessary to accomplish its mission." Id.

      The Agency also contends that the proposal is not an appropriate arrangement under § 7106(b)(3). The Agency argues that the Union has not shown that employees have been adversely affected by the manner in which the Agency backfills, or decides not to backfill, positions of red-carded fire fighters or distributes overtime. See id. at 5. The Agency also argues that the proposal excessively interferes with management's right to assign work. The Agency asserts that the proposal would adversely "impact those red carded employees with less seniority." Id. at 3. The Agency further argues that, under the proposal, management would be "perceived by employees as being unfair with regard to back filling positions of red carded personnel, as well as depriving other bargaining unit employees of an opportunity to participate in overtime since this [proposal] would restrict overtime in backfilling to a select few individuals." Id.

B.      Union

      The Union contends that the proposal constitutes a procedure and an appropriate arrangement that "mitigate[s] the adverse and foreseeable adverse affect[s] of [m]anagement['s] right to assign work and determine [its] budget." See Response at 4. In support of its claim that Option A is a procedure, the Union cites NAGE, Local R14-52, 44 FLRA 738, 741-42 (1992) (NAGE). See id. at 8.

      As to its claim that Option A is an appropriate arrangement, the Union asserts that it would lead to greater safety and productivity and lessen employees' stress levels and the adverse effects on their health and safety caused by an increased workload. See id. at 5. In this regard, the Union states that employees often work "alone" and "take chances with their personal safety" and that there is "additional burden and stress" on employees when too few are assigned to accomplish the workload. Id. The Union also asserts that Option A affords employees with seniority more opportunities for assignments to overtime. The Union explains that the Agency "has often assigned overtime" to the "less skilled employees." Id.

      The Union claims that the benefits afforded employees under Option A outweigh the intrusion on the exercise of management's rights. See id. at 8. In this regard, the Union states that management retains the right to determine "qualifications, the type and amount of backfilling, the scheduling of employees, [and] the work to be accomplished . . . ." Id. In support, the Union cites NAGE, 44 FLRA at 741-42 and Tidewater Virginia Federal Employees, Metal Trades Council, 42 FLRA 845 (1991) (Tidewater).

      The Union states that Option B would lessen the adverse effects on employees' health and safety when the staffing levels have diminished and the workload has increased. See Response at 5. The Union explains that "providing suppl[ies], tools, equipment and materials [will permit] the remaining employees [to] carry out their assigned duties more efficiently, more productively and with less additional burden and stress placed on them . . . ." Id. The Union maintains that the Agency retains the right to determine the amount of funds that will be utilized and how the funds will be applied. See id. at 9.

V.      Preliminary Issue

      The Union requests that the Authority sever and consider separately Options A and B. [n4] See Response at 10. The Union contends that Options A and B are "independent of each other and should be addressed for negotiability on their own individual merits." Id.

      Under § 2424.25(d) of the Authority's Regulations, a union "must support its [severance] request with an explanation of how the severed portion(s) of the proposal . . . may stand alone, and how such severed portion(s) would operate." If the severance request meets the Authority's regulatory requirements, then the Authority severs the proposal and rules on the negotiability of its separate components. See, e.g., AFGE, Local 3354, 54 FLRA 807, 811 (1998) (Local 3354).

      In the instant case, the Union has demonstrated that Options A and B have different meanings and can stand alone. Specifically, Option A requires the Agency [ v59 p870 ] to assign the duties of an employee assigned to fire duty to a different employee, with the selection made from among a group of qualified employees of the same division. When management decides not to backfill, Option B requires the Agency to make every reasonable effort to utilize funds from the salary of an employee assigned to fire duty to purchase supplies, tools, equipment, and materials for use by the remaining employees to accomplish the work of the division. In these circumstances, we grant the Union's severance request and separately address the negotiability of Options A and B.

VI.      Analysis and Conclusions

A.      Option A

1.      Option A affects management's right to assign work under § 7106(a)(2)(B) of the Statute

      It is well established that the right to assign work under § 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 AFGE, Local 1985, 55 FLRA 1145, 1148 (1999); NTEU, Chapter 26, 22 FLRA 314, 324-25 (1986) (NTEU, Chpt. 26). The right to assign work also encompasses the right to refrain from assigning work. See Local 3354, 54 FLRA at 812. Proposals that prevent an agency from assigning a certain duty to particular employees and, instead, require the agency to assign that duty to other employees have been found to affect the right to assign work. See, e.g., AFGE, Local 3694, 58 FLRA 148, 149-50 (2002).

      Under Option A, whenever an employee is sent on fire duty, the Agency would be required to assign the duties of that employee to a different employee, without regard to whether the Agency needs to assign such work. The Union does not dispute the Agency's claim that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute and, consistent with Authority precedent, we find that the proposal affects that right. See AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 451-52 (1999) (where the union did not dispute the agency's claim that proposals affected management's rights, the Authority found that the proposals affected those rights). See also AFGE, Local 3694, 58 FLRA at 150 (proposals requiring agency to assign specific types of duties to particular employees affect management's right to assign work).

2.      Option A does not constitute a procedure under § 7106(b)(2)

      In support of its claim that Option A is a procedure, the Union cites NAGE, 44 FLRA at 741-42. In that case, the Authority found negotiable a provision that established a roster for the rotational assignment of overtime based on seniority among employees whom management had determined were qualified. The Authority found that the provision did not affect management's right to assign work under § 7106(a)(2) of the Statute, but, instead, constituted a negotiable procedure. We note, however, that there was no claim by the agency that the proposal was outside the duty to bargain because it would have required the agency to assign work in the first instance.

      In contrast, in this case, Option A would require the Agency to assign work without regard to whether it wishes to assign the duties of the employee otherwise engaged in fire duty. The Authority previously has held that a similar proposal was not a negotiable procedure under § 7106(b)(2) of the Statute. See, e.g., Local 3354, 54 FLRA at 815-16. Applying that precedent, which is not challenged by the parties, to our finding that Option A affects the right to assign work, we conclude that Option A is not a procedure under section § 7106(b)(2) of the Statute.

3.      Option A does not constitute an appropriate arrangement under § 7106(b)(3)

      In determining whether a proposal is an appropriate arrangement under § 7106(b)(3) of the Statute, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). The Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995). The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Local 2280, Iron Mountain, Mich., 57 FLRA 742, 743 (2002). As the Authority has explained, relying on United States Dep't of the Interior, Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain proposals that provide a balm only to the hurts arising as a consequence of the management actions under § 7106 giving rise to a bargaining obligation. AFGE, Nat'l Border Patrol Council, 51 FLRA [ v59 p871 ] 1308, 1319 (1996). See also NAGE, Local R14-23, 53 FLRA 1440, 1443 (1998).

      If a proposal is determined to be an arrangement pertaining to the exercise of management's rights, then the Authority determines whether it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.

      In our view, even assuming that Option A constitutes an arrangement that is sufficiently tailored, we find that it is not appropriate because it would excessively interfere with the right to assign work.

      According to the Union, the benefits to employees under Option A involve greater safety and productively, less stress, and an increased availability of overtime work. Although it is not clear precisely how Option A would provide a safer work environment, it is reasonable to conclude that a decrease in stress and an increase in overtime opportunities provide an obvious benefit to employees.

      However, we find that these benefits do not outweigh the burdens Option A would place on management. Under this option, management would be required to assign the duties of an employee on fire duty to a different employee, without regard to whether the Agency needs to assign such work. Thus, Option A would place a significant burden on management's ability to decide not to assign work. See, e.g., AFGE, Local 3529, 56 FLRA 1049, 1051-52 (2001) (blanket prohibition on management's ability to take certain actions constituted significant burden that outweighed possible benefits to employees).

      In addition, if the Agency decided to assign the work, it would be required to make such work assignments in the order of the four categories listed in Section 5.b. Option A would completely preclude management from assigning work to other qualified employees who are not in those four categories. Additionally, because the work assignments would start at the top of the order of rotation each time, as opposed to completing the order of rotation, the proposal would require the Agency repeatedly to assign work to a few select employees, to the exclusion of other employees whose names appear lower in the order of rotation.

      On balance, therefore, we conclude that the benefits afforded employees by Option A are outweighed by the intrusion on management's right to assign work under § 7106(a)(2)(B) and that Option A is not a negotiable appropriate arrangement.

      The Union's reliance on NAGE and Tidewater is misplaced. In NAGE, the Authority did not consider, as here, whether the provision constituted an appropriate arrangement under § 7106(b)(3) because there was no effect, at all, on the exercise of management's rights. See 44 FLRA at 741-42. In Tidewater the Authority found that the proposal's requirement that the agency attempt to place employees in areas of need within the workplace imposed a minimal burden on management's exercise of its rights because it did not impose an absolute requirement on the agency to take such action. See 42 FLRA at 855. Here, in contrast, Option A would require the Agency to assign work, without regard to the Agency's need to do so.

      In sum, we find that Option A is outside the duty to bargain.

B.     Option B

1.      Option B affects management's right to determine the means of performing work under § 7106(b)(1) of the Statute

      Option B requires the Agency to make every reasonable effort to utilize funds from the salary of an employee assigned to fire duty to purchase supplies, tools, equipment, and materials for use by the remaining employees to accomplish the work of the division. Option B applies in circumstances when management decides not to assign the duties of an employee assigned to fire duty to a different employee. See Response at 5, 9.

      The Agency claims that the proposal is outside the duty to bargain because:

there is a process already in place at each park to procure tools and equipment built into each division's budget to obtain any equipment necessary to accomplish its mission. However, how the Agency handles its allocated budget or special project funds is not within the duty to bargain.

Attachment to SOP at 3. We construe the Agency's contention as a claim that Option B concerns the exercise of management's right to determine the means of performing work under § 7106(b)(1) of the Statute. [n5] 

      The Union states that "[h]ow the Agency handles its allocated budget is within the duty to bargain when it [ v59 p872 ] adversely affects bargaining unit employees under 7106(b)(2), (3)." Response at 2. By arguing that Option B is a negotiable procedure or appropriate arrangement, the Union effectively concedes that the proposal affects management's rights.

      Under the current test for determining whether a matter concerns the methods and means of performing work under § 7106(b)(1), it must be shown that the proposal concerns a "method" or "means" as defined by the Authority. [n6] It must also be shown that: (1) there is a direct and integral relationship between the particular method and means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., AFGE, Local 1812, 59 FLRA 447, 449 (2003) (Chairman Cabaniss concurring as to result); AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 452 (1999), petition for review denied sub nom. AFGE, Council of GSA Locals, Council 236 v. FLRA, Case No. 99-1244 (D.C. Cir. March 7, 2000).

      First, we find that the tools or equipment an agency uses in accomplishing its mission constitute a determination as to the means of performing work. See Overseas Education Association, Inc., 29 FLRA 734, 753 (1987), aff'd as to other matters, 872 F.2d 1032 (D.C. Cir. 1988) (per curium) (OEA, Inc.). Next, it is undisputed that there is a direct and integral relationship between the tools or equipment that would be purchased and the accomplishment of the Agency's mission. By requiring the Agency to make reasonable efforts to purchase equipment, Option B would interfere with the Agency's ability to determine, for mission-related purposes, whether equipment should be purchased. Accordingly, we find that Option B concerns the exercise of management's right to determine the means of performing work under § 7106(b)(1) of the Statute. See OEA, Inc., 29 FLRA at 755 (Proposal 13, which required the agency to make every reasonable effort to obtain necessary equipment, affected management's right to determine the means of performing work under § 7106(b)(1)).

2.      Option B does not constitute a procedure under § 7106(b)(2)

      The Union claims that "the provisions of its proposals under Sect. 5, 6, and 7 are in fact procedures and appropriate arrangements . . . ." Response at 4. The Union provides no arguments or authority to support this claim with respect to Option B. Consistent with Authority precedent, we reject the Union's claim as a bare assertion. See, e.g., AFGE, Local 1858, 56 FLRA 1115, 1116 (2001).

3.      Option B does not constitute an appropriate arrangement under § 7106(b)(3)

      The Union states that Option B is intended as an arrangement for employees who are adversely affected by management's decision not to assign the duties of an employee on fire duty to other employees. According to the Union, Option B would lessen the adverse effects on employees' health and safety when the staffing levels have diminished and the workload has increased. Even assuming that Option B constitutes an arrangement, we find that the Union has not established that it is sufficiently tailored to those employees who are likely to be adversely affected by the Agency's decision not to backfill positions.

      As we stated in connection with Option A, supra at 8, a claimed arrangement must be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. Option B, however, would include all employees within its scope. This option is not limited to those employees, for example, whose workloads would increase as a result of the decision not to backfill and for whom additional equipment or supplies are necessary to perform work. Consistent with Authority precedent, we find that Option B is not sufficiently tailored. See, e.g., AFGE, Local 1164, 54 FLRA 1327, 1332-33, 1349-50 (1998) (even assuming there was an increase in workload resulting from a change in employees' duties, proposals were not tailored to address those employees who would be assigned an increased workload); NAGE, Local R14-23, 53 FLRA 1440 (1998) (proposal allowing temporarily disabled employee to decline work assignments to certain tours of duty not limited and, therefore, not sufficiently tailored to employees who would suffer scheduling problems the proposal was designed to address).

      In sum, we conclude that Option B does not constitute an arrangement that is sufficiently tailored. As a result, there is no need to address whether the arrangement is appropriate and we find that Option B is outside the duty to bargain.

VII.      Order

      The petition for review is dismissed. [ v59 p873 ]


APPENDIX

Section 5. Methods of Back filling

a. The method by which back filling is accomplished shall be determined by the Employer (Option A - Option B)
Option A - remaining employees will back fill for the hours of fire assigned employees, or
Option B - the fire duty employee goes into the park budget
b. Option A - Employee shall be selected under Option A for the purpose of back filling from among a group of qualified employees of the same division
1st - From those employees who have been previously red carded and denied or taken off of or have become ineligible for fire duty, due to medical reasons, by seniority.
2nd - From those employees passed over in rotation on a western fire call out list because of an unforseen emergency.
3rd - From those employees in order of seniority by the call out of another divisional employees [sic].
4th - From those employees denied fire duty because of specific sensitive workloads required by the Employer would be selected prior to seasonals in order of seniority in Step 3.
c. Option B
As an Appropriate Arrangement the salary of the fire duty employee shall go into the budget of that employees [sic] division. These funds will be used to lessen the adverse impact of management's decision not to back fill for these absent fire duty assigned employees.
The Employer agrees to fully consider the comments and suggestion of the employees regarding how the funds will be used to lessen the adverse impact.
Section 6. Notification of Methods of Backfilling
The employer agrees to inform the Union as to the determination of methods Option A or B or as soon as each group [] of employees (normally 2) is up at the top of the call out list, awaiting call out, etc.
Section 7. Rescheduling of Employees
As an Appropriate Arrangement or procedure
a. When Option A has been selected the employer, as early as possible, shall meet with employees to discuss schedule changes. The Employer will give full consideration to the request and input of employees.
Pending release for fire duty, employee's [sic] schedules (those of fire duty employee and those selected to back fill) shall be adjusted with input from the employee as in past practice to maximize the utilization of back fill hours and in accordance with procedures for selection of among a group of qualified employees (Methods of Backfilling Option A)
b. A copy of the employee's schedules with hours of back fill circled will be provided to the Union and each affected employee.
. . . .
d. The Employer agrees to inform the Union of methods Option A or B before an employee is put on standby or released for fire duty and as soon as the next group of red carded employees are known. [ v59 p874 ]

Opinion of Chairman Cabaniss, dissenting in part:

      I write separately regarding why I would not find Option B outside of the Agency's duty to bargain because the proposal affects the Agency's right to determine the means of performing work under § 7106(b)(1) of the Statute.

      As relates to the Agency's position regarding Option B, the record supports little more than that the Agency made a bare assertion that Option B interfered with some unnamed, non-designated agency right regarding how the Agency handled its allocated budget or special project fund, and that there is a process already in place at each park, in its budget, to obtain and tools and equipment necessary for the park to accomplish its mission. There is no identification of any agency right affected by Option B, and there is no assertion as to why Option B is neither a negotiable procedure nor an appropriate arrangement. At best, there might be a budget argument under § 7106(a)(1) of the Statute being made by the Agency, but that is not what the majority found, and there certainly is no reference in the Agency's generic comments to any attempt to identify the means by which the Agency must perform its duties.

      In contrast to its vague handling of Option B, the Agency's handling of Option A had no such problem identifying agency rights or specific arguments. The Agency's right to assign work under § 7106(a)(2)(B) is clearly set out and the Agency argues that the proposal is not an appropriate arrangement under § 7106(b)(3) because there has been no showing of any adverse impact on employees from the Agency's actions, and that the proposal would excessively interfere with the Agency's rights. Also of contrast is the majority's rejection, as a bare assertion, of the Union's argument that Option B constituted a negotiable procedure under § 7106(b)(2) while at the same time permitting the Agency to bootstrap its equally (if not even more) bare assertion into an allegation that the Agency's § 7106(b)(1) rights are being impermissibly infringed upon by Option B. I believe the majority h