National Weather Service Employees Organization (Union) and United States, Department of Commerce, National Weather Service, Alaska Region, Anchorage, Alaska (Agency)

[ v61 p241 ]

61 FLRA No. 46

NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION
(Union)

and

UNITED STATES
DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
ALASKA REGION
ANCHORAGE, ALASKA
(Agency)

0-NG-2782

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

September 16, 2005

_____

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 relating to staffing at the Anchorage forecast office. The Agency filed a statement of position (SOP), to which the Union filed a response. The Agency filed a reply to the Union's response.

      For the reasons that follow, we find that the proposal is outside the duty to bargain and is negotiable only at the election of the Agency.

II.      Background

      The United States Department of Commerce, National Weather Service (NWS) provides weather, hydrologic, and climate forecasts and warnings. NWS includes six geographic regions. The Alaska Region has Weather Forecast Offices (WFOs) in Fairbanks, Juneau, and Anchorage. Due to its larger coverage area, the Anchorage WFO has five more forecasters than the other two WFOs and operates with three forecast desks rather than two.

      In the late 1990s, the NWS began phasing in the Interactive Forecast Preparation System (IFPS), a new computerized forecast method that became operational in the continental United States in September, 2003. Due to the greater areas of responsibility and differences in climate in the Alaska Region, the IFPS in Alaska required changes from the system developed for the lower 48 states and was phased in later. The third phase of implementation of IFPS, a month-long test plan called the Operational Readiness Demonstration (ORD), took place in the 48 states from in 2003 and in the Alaska Region in 2004. The ORD revealed significant problems with the IFPS in the Alaska Region and another ORD was tentatively scheduled to take place in 2005, contingent upon the successful mitigation of the deficiencies discovered in the first ORD.

      In May 2004, following discussions about IFPS at the local office level, the Union submitted the proposal at issue in this case.

III.      Proposal

      Increase staff [at the Anchorage Forecast Office] by 5 forecasters, 4 HMTs [hydrological meteorological technicians] and 1 IT [information technology officer] to bring it into line with the staffing level that would accompany two grid domains in the CONUS [continental United States].

IV.      Meaning of the Proposal

      The parties agree that the proposal would require the Agency to increase the number of staff at the Anchorage WFO. See Record of Post-Petition Conference at 2.

V.      Positions of the Parties                    

A.     Agency

      The Agency claims that the proposal excessively interferes with its right to determine the numbers, types, and grades of employees. The Agency asserts that because the proposal "calls for an increase in the numbers of specific positions at the Anchorage Forecast Office, which is a subdivision of the NWS[,]" the proposal involves the determination of staffing, which is an exclusive management right under § 7106(b)(1) of the Statute. SOP at 11.

      In addition, citing NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG), the Agency disputes the Union's contention that the proposal is a negotiable appropriate arrangement. In this regard, the Agency asserts that: (1) the determination of adverse effects [ v61 p242 ] resulting from IFPS is premature because testing has not been completed; and (2) the Union failed to take into account the Agency's attempts to mitigate the effect of IFPS on workload with, among other things, alternative work schedules (AWS). The Agency also argues that, even assuming that employees are adversely affected, the proposal excessively interferes with management's rights because it does not give the Agency any discretion with regard to the type or number of positions that will be filled. In this regard, the Agency contends that "the negative impact on management's rights is disproportionate to the benefits derived from the proposed arrangement." Id. at 16.

B.     Union

      The Union states that the proposal "admittedly interferes with management's rights under [§] 7106(a)[.]" Petition for Review at 6. The Union also states that the proposal concerns a matter negotiable at the election of the Agency under § 7106(b)(1), and that the Agency has elected not to negotiate over it. However, the Union argues that the proposal "is nonetheless a negotiable appropriate arrangement under § 7106(b)(3) for the employees who are adversely impacted by the additional workload occasioned by the implementation of IFPS at the Anchorage WFO." Id. According to the Union, "an increase in staffing commensurate with the Anchorage WFO's responsibilities would mitigate the adverse impact the additional workload IFPS has created." Union's Response, Attachment B ("Union's Position Statement") at 8.

      In this regard, the Union asserts that the increased workload "has created a high stress, high tension environment with consequent adverse impact on the employees' health, well being, family life and career satisfaction." Id. at 7. The Union claims that the Agency has recognized the decline in quality and timeliness of forecasts as a result of IFPS as well as the negative effect of staffing limitations in the Anchorage WFO. The Union contends that "[t]he performance of the Anchorage forecasters is appraised on the basis of the quality and timeliness of their forecast products." Id. at 8. The Union claims that AWS was implemented prior to the ORD in March and April, and that "the impact of IFPS on the workload was still at unacceptable levels." Id. at 12.

      Further, the Union argues that the Agency is "hard pressed to argue that the proposal excessively interferes with management's rights, when it was the senior manager of the Anchorage WFO who suggested the staff increase in the first place in order to bring the staffing at his office in line with the `standard staffing to domain ratio' found elsewhere in the NWS." Id. at 14. The Union claims that the proposal "preserves broad discretion on how to reallocate the [employees] necessary to raise the staffing levels at the Anchorage WFO, and how to go about filling these positions." Id. at 15.

VI.     Analysis and Conclusions

A.     Preliminary Matter

      The Union asserts that the "proposals for additional forecasters, additional HMT[s], and an addition[al] IT specialist can be treated and considered independently[,]" Petition for Review at ¶ 14(a), and that the proposal is severable "in the event that the Authority determines that the [U]nion's proposal to increase some, but not all, of the positions enumerated is negotiable." Union's Response at ¶ 10. According to the Union, the Authority "should not hold the entire proposal to be nonnegotiable in the event that it determines that an increase in the numbers of any one of the three particular positions mentioned therein is not an `appropriate arrangement.'" Id.

      The Agency opposes the Union's request to sever on the ground that the proposal does not present distinct legal or factual questions. According to the Agency, "[e]ven if the proposal was divided into subsections, each one would involve the numbers and types of a particular position at the Anchorage WFO [and] the subsections would not present distinct factual or legal questions." Agency's Reply at 6.

      The Authority's Regulations require a union to "support its request [for severance] with an explanation of how each severed portion of the proposal . . . may stand alone, and how such severed portion would operate." 5 C.F.R. §§ 2424.2(h), 2424.22(c), and 2424.25(d). "[S]everance is only used where a legal issue applies differently to any paragraph or any part of a proposal." Ass'n of Civilian Technicians, Wichita Air Capitol Chapter, 58 FLRA 310, 312 (2003) (citations omitted), petition for review granted on other grounds sub nom. Ass'n of Civilian Technicians v. FLRA, 353 F.3d 46 (D.C. Cir. 2004). As the Union has failed to demonstrate that different legal issues apply to forecasters, HMTs, and IT specialists, we deny the motion for severance on that basis. See id.

B.     The Proposal Is Not an Appropriate Arrangement

      The Agency asserts that the proposal affects its right under § 7106(b)(1) of the Statute to determine the numbers, types, and grades of employees. The Union concedes that the proposal concerns a matter negotiable at the election of the Agency under § 7106(b)(1), and [ v61 p243 ] that the Agency has elected not to negotiate over it. Generally, a proposal that concerns a § 7106(b)(1) matter is bargainable at the election of the agency. However, if the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute, then the agency has an obligation to bargain over the proposal. The Union argues that the proposal in this case constitutes an appropriate arrangement under § 7106(b)(3).

      In determining whether a proposal or provision constitutes an appropriate arrangement within the meaning of § 7106(b)(3), the Authority applies the analytical framework set forth in KANG. Under this framework, 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 KANG, 21 FLRA at 33; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992).

      To establish that a proposal is an arrangement, a union must identify the adverse effects or reasonably foreseeable adverse effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Nat'l Council of Field Labor Locals, 58 FLRA 616, 617-18 (2003). If the proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      Even assuming that the proposal constitutes an arrangement, we find that it excessively interferes with management's right to determine staffing.

      According to the Union, increasing the staff by five forecasters, four hydrological meteorological technicians and one information technology officer would address the adverse consequences of the greater workload created by IFPS. [n2]  Clearly, this proposal would provide some benefit to the current employees at the Anchorage WFO by distributing the workload to a greater number of staff. However, the proposal would burden the Agency by requiring that it increase the staff by a specific number, effectively leaving the Agency with no discretion as to the numbers and types of staff to assign to the Anchorage WFO. The proposal restricts management's ability to increase the number of staff by fewer numbers or different positions, or to not increase the staff at all and address the effects of IFPS by other means. Because the restriction on the Agency's ability to determine the numbers and types of positions to be filled is absolute, the Agency's right to determine staffing would be substantially impaired.

      On balance, we conclude that the burden on the Agency outweighs any benefit to the employees. Its effect is similar to that of other proposals that impose an absolute requirement on management to take action and have been found not to constitute appropriate arrangements. See, e.g., NFFE, Local 2192, 59 FLRA 868, 871 (2004) (Chairman Cabaniss dissenting, in part, as to another matter) (proposal imposing absolute requirement on management to make certain work assignments not a negotiable appropriate arrangement); AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1332-33 (1996) (provision permitting no exception to requirement that an employee be assigned to one of three positions identified by the employee not an appropriate arrangement). Accordingly, we conclude that the proposal excessively interferes with management's rights and, therefore, does not constitute an appropriate arrangement under § 7106(b)(3). Therefore, the Agency is not required to bargain over the proposal.

C.     There Is No Dispute that the Proposal Relates to a Matter Subject to § 7106(b)(1) of the Statute; It Is Therefore Negotiable Only at the Election of the Agency

      As set forth above, the Agency asserts that the proposal affects its right under § 7106(b)(1) of the Statute to determine the numbers, types, and grades of employees. The Union acknowledges that the proposal concerns a matter negotiable at the election of the Agency under § 7106(b)(1), and that the Agency has elected not to negotiate over it. As the Union does not contest the Agency's argument that the proposal affects its right under § 7106(b)(1) of the Statute to determine the numbers, types, and grades of employees within the meaning of § 7106(b)(1) of the Statute, we conclude that the proposal is negotiable only at the election of the Agency. See Tidewater Va. Fed. Employees Metal Trades Council, 58 FLRA 561, 563 (2003) (Tidewater FEMTC) (citing AFGE, Local 1164, 55 FLRA 999, 1004 (1999)).

VII.     Order

      Because the duty to bargain does not extend to the proposal, the petition for review is dismissed. [n3]  The proposal is bargainable only at the election of the Agency. [ v61 p244 ]


Concurring opinion of Chairman Cabaniss:

      I write separately to discuss the procedural consideration of how the Authority should resolve a negotiability question where the parties agree that a proposal is negotiable at the election of the agency under § 7106(b)(1) and instead dispute only whether there is a mandatory duty to bargain over the proposal under § 7106(b)(2) or (3) in response to the agency's exercise of its rights under § 7106(b)(1). I would not, as is being done in this case, state that the petition for review is dismissed because the proposal is not an appropriate arrangement under § 7106(b)(3) in response to the Agency's exercise of its rights under § 7106(b)(1), and then go on to find that the proposal is also negotiable at the election of the Agency under § 7106(b)(1). Rather, where (as here) the parties raise no "negotiability dispute" under § 2424.2(c) of the Authority's Regulations as to whether the proposal is negotiable at the election of the Agency under § 7106(b)(1), and dispute only whether under § 7106(b)(3) there is a mandatory duty to bargain over the proposal, I would limit the decision to just the issue(s) presented by the negotiability dispute. As a result, because the parties here dispute only whether under § 7106(b)(3) there is a mandatory duty to bargain over the proposal, I would dismiss the petition for review on that basis, and I would not address an issue (here the § 7106(b)(1) issue) the parties have not included in their negotiability dispute and for which we have no case or controversy.

      This was the approach taken by the Authority in AFGE, Local 520, 60 FLRA 615, 616-17 (2005) (Member Pope dissenting), one of the cases discussed at note 3 of the majority opinion. I have examined the other cases noted there and find that they all present different legal issues than the present case or the 60 FLRA 615 decision, and thus do not find them to answer the question posed here. In that regard, in Tidewater Va. Fed. Employees Metal Trades Council, 58 FLRA 561, 563 (2003) (the third sentence of the proposal), the union never asserted that the agency had a mandatory duty under § 7106(b)(2) or (3) to bargain over the exercise of the agency's rights under § 7106(b)(1): rather, the only § 7106(b)(1) issue presented by the negotiability dispute was whether the proposal fell under § 7106(b)(1). As a result, I would expect that the Authority would address whether the proposal was negotiable at the election of the agency. In AFGE, Local 3129, SSA Gen. Comm., 58 FLRA 273, 274-75 (2002), the agency disputed whether the proposal was even a § 7106(b)(1) proposal, and the § 7106(b)(3) issue addressed the exercise of an agency right under § 7106(a). As a result, I would expect that the Authority would address whether the proposal was negotiable at the election of the agency. Finally, in AFGE, Local 3529, 57 FLRA 172, 175-76 (2001) (proposals 1 and 10), there was no agreement that the proposals addressed § 7106(b)(1) matters, and the parties disputed whether the proposals were negotiable procedures under § 7106(b)(2) in response to the exercise of the agency's rights under § 7106(a). As a result, I would expect that the Authority would address whether the proposals were negotiable at the election of the agency.

      Again, however, none of those cases provide any validation for the proposed disposition of this case, as in all three of those cases the negotiability dispute raised by the parties included the express issue of whether the proposal was negotiable at the election of the agency under § 7106(b)(1). And, none of those cases raised a negotiability dispute as to whether the agency had a mandatory duty under § 7106(b)(2) or (3) to bargain over the proposal in response to the exercise of an agency right under § 7106(b)(1). Even the analytical model used by the Authority to resolve those three cases is different than the analytical model for the present case. All three of those cases rely on the analytical model set out in AFGE, HUD, Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998). However, the analytical model used in the present case does not use this analysis, because the present case presents different legal issues. Consequently, and consistent with our precedent, the petition for review should be dismissed here and not address an issue the parties themselves didn't raise as a negotiability dispute, i.e., whether the proposal is negotiable under § 7106(b)(1) at the election of the Agency.



Footnote # 1 for 61 FLRA No. 46 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 46 - Authority's Decision

   We note that the ORD Assessment Report stated that some improvement in performance was expected "with experience and tool efficiencies[.]" Petition for Review, Attachment D at 3. This would indicate that any adverse consequence on employees could be expected to diminish over time.


Footnote # 3 for 61 FLRA No. 46 - Authority's Decision

   In this regard, we note that § 2424.40(b) of the Authority's Regulations states in relevant part:

If the Authority finds that the duty to bargain does not extend to the proposal, then the Authority will dismiss the petition for review. If the Authority finds that the proposal is bargainable only at the election of the agency, then the Authority will so state. . . .

   In previous decisions in which the Authority has found both that the duty to bargain did not extend to a proposal and that the proposal was negotiable only at the election of the agency, the Authority's order has either dismissed the petition for review, see AFGE, Local 520, 60 FLRA 615, 616-17 (2005) (Member Pope dissenting), or stated that the matter was negotiable only at the election of the agency. See, e.g., Tidewater FEMTC, 58 FLRA at 564 (third sentence of proposal); AFGE, Local 3129, SSA Gen. Comm., 58 FLRA 273, 275 (2002) (Chairman Cabaniss concurring); AFGE, Local 3529, 57 FLRA 172, 179 (2001) (Proposals 1 and 10) (Member Wasserman concurring in part and dissenting in part). We take this opportunity to clarify that in this and future decisions in which the Authority finds both that the duty to bargain does not extend to a proposal and that the proposal is negotiable only at the election of the agency