72 FLRA No. 150

NATIONAL TREASURY

EMPLOYEES UNION

(Union)

and

UNITED STATES

DEPARTMENT OF HOMELAND SECURITY

CUSTOMS AND BORDER PROTECTION

(Agency)

0‑NG‑3528

_____

DECISION AND ORDER

ON NEGOTIABILITY ISSUES

April 29, 2022

_____

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Chairman DuBester concurring in part,

dissenting in part)

Decision by Member Abbott for the Authority

1. Statement of the Case

    

   This case arises from an Agency decision to reassign forty-seven bargaining‑unit employees (BUEs) to different duty stations.  The matter 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 (Statute).[1]  The petition for review (petition) involves two proposals.[2]

    

   For the reasons that follow, we find that the two proposals are outside the duty to bargain.  Accordingly, we dismiss the petition.

1. Background

    

   The Agency reassigned forty-seven BUEs to different duty stations as part of its decision to revamp the training model it uses.  The Union requested to bargain over the reassignment of the BUEs.

    

   The Union timely filed its petition concerning four proposals with the Authority on August 25, 2020,[3] serving it on both the Agency Head and the chief bargaining representative via certified mail.  The Agency Head received the petition on September 1st.[4]  The copy sent to the chief bargaining representative was not delivered due to an error in the mailing address.  On September 8th, the chief bargaining representative asked the Union for a copy of the petition, and the Union provided a copy of the petition.  On October 9th, the Agency Head forwarded the petition to the chief bargaining representative, and the chief bargaining representative filed the Agency’s statement of position (statement) with the Authority.

    

   On October 14th, the Agency filed a motion with the Authority requesting a waiver of the time limit for filing its statement.  The Union filed an opposition to the Agency’s request on October 30th.

    

   Thereafter, an Authority representative conducted a post-petition conference (PPC) with the parties pursuant to § 2424.23 of the Authority’s Regulations,[5] at which the Union clarified the operation of Proposals 2 and 3.[6]  Based on these clarifications, the Agency agreed that the proposals are negotiable.[7]  The Union then requested to withdraw Proposals 2 and 3.[8]  The Authority representative granted the requests, and the proposals were withdrawn without prejudice.[9]

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

   The Union subsequently filed its timely response to the Agency’s statement (response),[10] the Agency filed a timely reply to the response (reply),[11] and the Union filed a supplemental submission regarding the reply.[12]

    

2. Preliminary Matters

    

   1. The Agency has failed to establish extraordinary circumstances to justify a waiver of the filing deadline for its untimely statement; therefore, we do not consider it.

       

      Consistent with § 7117(c)(3) of the Statute,[13] § 2424.24(b) of the Authority’s Regulations requires the Agency to file its statement within thirty days “after the date the head of the agency receives a copy of the petition.”[14]  Here, the Agency admits that the head of the agency received the petition on September 1st.[15]  Therefore, the Agency’s statement was due on October 1st.

       

      The Agency argues that extraordinary circumstances exist warranting waiver of the time limit for filing its statement because it “has not received the [U]nion’s service of the [petition], due to the [U]nion’s failure to use the correct address.”[16]  The Agency also acknowledges that while the head of the agency “received timely service . . . their receipt of service was not made known to or shared with [the chief bargaining representative] until October 9th.”[17]  As stated above, the filing deadline is determined by the date the head of the agency receives the copy of the petition.  Furthermore, the Authority has held that internal agency error does not demonstrate extraordinary circumstances.[18]  Similarly, extraordinary circumstances do not exist here simply because the head of the agency failed to expeditiously forward the petition to the chief bargaining representative.  Accordingly, we find the statement untimely, and we do not consider it.[19]

       

   2. We dismiss those portions of the Agency’s reply which are not properly before the Authority.

The Union argues that the Authority should not consider the Agency’s reply because “it is outside the regulatory scope and all arguments raised in the reply should have been raised in [the Agency’s] statement.”[20]  The Union is partially correct.

Section 2424.24(a) of the Authority’s Regulations requires the Agency, in its statement, to “supply all arguments and authorities in support of its position.”[21]  As discussed above, we do not consider the Agency’s untimely statement of position.  However, the Authority has held that it will consider arguments raised in an allegation of nonnegotiability when an agency fails to timely file its statement.[22]  In its allegation of nonnegotiability, the Agency asserted that Proposal 1 impermissibly infringes on management’s right to determine its organization,[23] and that Proposal 4 impermissibly infringes on management’s right to retain employees.[24]  Thus, we consider those management rights arguments.

Furthermore, § 2424.26 of the Authority’s Regulations provides that the Agency “is required in [its] reply to . . . provide the reasons why the proposal . . . does not fit within any exceptions to management rights that were asserted by the [union] in its response,”[25] but “must limit [its] reply to matters that the [union] raised for the first time in its response.”[26]  The Agency, for the first time in its reply, argues that the proposals are contrary to government‑wide regulations.[27]  Because the Agency did not raise these arguments in its allegation of nonnegotiability, and its statement is untimely, it cannot now raise them in its reply.  However, the Union made new arguments in its response regarding why Proposals 1 and 4 are allegedly appropriate arrangements.[28]  Thus, we do consider the Agency’s arguments that the proposals are not appropriate arrangements because the Authority’s regulations allow these arguments to be raised in the reply.[29]

Accordingly, we dismiss the Agency’s   contrary-to-government-wide-regulation arguments, but consider the Agency’s arguments that the proposals impermissibly affect management rights and are not appropriate arrangements.

1. Proposal 1

    

1. Wording of Proposal 1

    

Reassignment Without Relocation.  To mitigate the adverse impact of relocating employees outside of their current commuting area, management agrees to reassign each position as identified in Appendix A but allow employees to remain at their current location to the greatest extent possible.  To that extent, management has determined that: a. BPA Employees.  There are currently ten (10) bargaining unit positions for BPA Employees, of which, four (4) are vacant.  The ten (10) bargaining unit positions within BPA will be reassigned to Artesia, NM.  The six (6) current BPA Employees identified in Appendix A will have the option of relocating within the commuting distance of the BPA or may continue to work remotely from their current location.  The remaining four (4) bargaining unit vacancies will be located at BPA and will support    on-site operations in addition to their instructor duties.  Once the six (6) current BPA Employees’ positions have been vacated through separation or retirement, the position will not be subject to the same remote work identified above. b. DLC Employees.  The DLC Employees identified in Appendix A will be reassigned to Harpers Ferry, WV, but will be allowed to work remotely from their current locations.  c. TSD Employees.  TSD Employees identified in Appendix A will be reassigned to Harpers Ferry, WV but will be allowed to work remotely from their current locations.[30]

1. Meaning of Proposal 1

    

   At the PPC, the Union confirmed that the term “BPA” referred to Border Patrol Academy, “DLC” referred to Distance Learning Center, “TSD” referred to Training Support Division, and that “Appendix A” referred to Appendix A of the MOU.[31]

    

   Regarding the proposal’s operation, the parties agreed that the proposal is “intended to meet the [A]gency’s interest of having on-site training staff and mitigate . . . current BPA employees from having to relocate”; and “allow the [A]gency to exercise its right to assign [DLC and TSD] employees to the proposed duty location, but mitigate the impact of relocation by allowing [DLC and TSD] employees to telework and/or work at current [Agency] facilities . . . within their current commuting areas.”[32]  Therefore, the proposal would permit the Agency to fill vacancies at the new locations, but allow employees currently occupying those positions to telework – or remote work from their current Agency facility – rather than relocate.[33]

    

    

    

2. Analysis and Conclusion

    

   A proposal that affects management’s rights under § 7106(a) may nevertheless be a mandatory subject of bargaining if the proposal is an appropriate arrangement under § 7106(b)(3) of the Statute.[34]  The Union concedes that the proposal affects management’s right to determine its organization,[35] and the Agency does not dispute that the proposal is an arrangement.[36]  Therefore, we find that the proposal is an arrangement,[37] and only analyze whether the arrangement is appropriate.

   In determining whether an arrangement is appropriate, the Authority weighs the benefits afforded to employees under the arrangement against the proposal’s burden on the exercise of management’s rights.[38]  Further, the Authority has held that an appropriate arrangement “may not ‘negate’ the exercise of a management right by reversing management’s substantive decision altogether.”[39]

    

                   The Union argues that the proposal is an appropriate arrangement under § 7106(b)(3) of the Statute because it “completely obviates the need for employees to relocate to another state while also meeting [the Agency’s] interest.”[40]  The Agency argues that the proposal excessively interferes with management’s right to determine its organization by preventing it from “implement[ing] the organization it has determined better promotes the good and efficient use of Agency resources.”[41]

    

                   An agency’s right to “determine its organization” includes “the geographic 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.”[42]  The Agency’s new organization decision involves moving all BPA, DLC, and TSD employees from their current locations to locations the Agency determined “better promote[d] the good and efficient use of [A]gency resources.”[43]  The plain language of the proposal – allowing existing employees to work remotely from their current locations indefinitely – effectively negates the Agency’s substantive decision to reorganize because it prevents the Agency from fully implementing the reorganization.[44]  Accordingly, the proposal is not an appropriate arrangement, and therefore, is outside the Agency’s duty to bargain.[45]

    

1. Proposal 4

    

1. Wording of Proposal 4

    

VERA/VSIP.  Voluntary Early Retirement and/or Voluntary Separation Incentive Pay (VERA/VSIP) will be offered to the 47 affected employees.  The terms and conditions for VERA/VSIP will be governed by individual agreements between the Employer and the employees.  Employees who are eligible for VERA/VSIP, will be notified of their eligibility at the same time the reassignment is announced pursuant to section 1 above.  Eligibility will be separated into three categories:  1) optional retirement and VSIP; 2) early retirement and VSIP; and 3) VSIP with resignation.  Employees will be provided two opportunities to request their VERA/VSIP:  1) within thirty (30) calendar days of the announcement of the reassignment; and 2) within thirty (30) calendar days after receiving directed reassignment letters.  If an employee elects VERA/VSIP, the employee will be provided no less than sixty (60) calendar days to submit the respective personnel action                (i.e. retirement or resignation).  Nothing will preclude an employee from seeking reassignment pursuant to this Agreement, then electing VERA/VSIP if the employee does not receive his/her first ranked reassignment option.[46]

1. Meaning of Proposal 4

    

   At the PPC, the Union confirmed that “VERA” referred to the Voluntary Early Retirement Authority granted by the Office of Personnel Management (OPM), and that “VSIP” referred to the Voluntary Separation Incentive Pay authorized by OPM.[47]

    

   Regarding the operation of the proposal, the parties agreed that the proposal would require the Agency to obtain VERA and VSIP authority, and offer VERA and VSIP to the impacted employees who qualified for these programs.[48]  The parties also agreed that the proposal provides mechanisms for employees to choose VERA/VSIP within thirty days, starting the day after being notified of the reassignment or after receiving a directed reassignment letter.[49]  Finally, the parties agreed that the proposal gave the employee up to sixty days, starting the day after the employee elected VERA/VSIP, to submit the resignation or retirement personnel action.[50]

    

2. Analysis and Conclusion

    

   As stated above, a proposal that affects management’s rights under § 7106(a) may nevertheless be a mandatory subject of bargaining if the proposal is an appropriate arrangement under § 7106(b)(3) of the Statute.[51]  The Union concedes that the proposal affects management’s right to retain employees,[52] and the Agency does not dispute that the proposal is an arrangement.[53]  Therefore, we find that the proposal is an arrangement,[54] and only analyze whether the arrangement is appropriate.

    

   In determining whether an arrangement is appropriate, the Authority weighs the benefits afforded to employees under the arrangement against the proposal’s burden on the exercise of management’s rights.[55]

    

   The Union argues that the proposal is appropriate because “the benefit to employees in avoiding an out-of-state relocation and/or a transfer of function outweighs the impact on management’s right to retain its employees.”[56]  The Agency argues that the proposal excessively interferes with management’s right to retain employees by “depriving [it] of the services of employees who perform work necessary to accomplish [its] mission.”[57]

    

   While the benefits to employees identified by the Union are significant, they do not outweigh the burden on the Agency’s exercise of its right to retain employees.  The Agency, which seeks to keep all of the employees covered by the proposals,[58] would instead be forced to incentivize employee retirements and separations.  This would then require the Agency to hire new employees in order to carry out its mission.[59]  Unlike, AFGE, Local 1827, where proposals requiring an agency to provide VERA/VSIP were appropriate arrangements because the agency eliminated the “functions and positions of the employees covered by the proposals,”[60] here, the Agency is not eliminating the positions.  Accordingly, we find that the proposal excessively interferes with the Agency’s right to retain employees, and therefore, is not an appropriate arrangement.[61]

    

   Because we find that the proposal is not an appropriate arrangement, it impermissibly affects management’s right to retain employees, and is outside the Agency’s duty to bargain.[62]

    

1. Order

    

   We dismiss the Union’s petition.

Chairman DuBester, concurring in part and dissenting in part:

                I agree that the Agency’s statement of position and certain parts of its reply are not properly before us, and that it is appropriate to grant the Union’s request to file a supplemental submission. 

                I also agree that Proposal 1 is outside the Agency’s duty to bargain, but for reasons different from the majority.  As an initial matter, the majority incorrectly states that the Union “concedes that the proposal affects management’s right to determine its organization.”1  Rather, the Union expressly, with supporting arguments, contends that the proposal does not affect that management right.2  To support its finding of a concession, the majority relies on the Union’s claim that Proposal 1 is an appropriate arrangement, as well as a heading from the Union’s response brief.3 

                With respect to the Union’s                appropriate-arrangement claim, equating that claim with a concession that a proposal affects management rights is inconsistent with Authority practice.4  Regarding the heading from the response brief, that heading pertinently states that the benefit provided by the proposal “outweighs the impact on management’s right to determine its organization.”5  But the majority takes that statement out of context.  After the heading, the Union expressly contends that the proposal does not affect management’s right, but goes on to state, “To the extent the Authority finds that Proposal 2 does impact a management right, the benefit of the proposal greatly outweighs [the Agency’s] interest in exercising such right.”6  In context, any reasonable reader – or reviewing court, for that matter – would read the Union’s contentions as alternative arguments, not a concession that the proposal affects management’s right.  Thus, the majority errs in finding a concession.

                Nevertheless, I would find that the proposal affects the right to determine organization because the Agency has demonstrated that there is a direct and substantive relationship between the duty stations to which it plans to relocate the affected employees and the Agency’s administrative or functional structure.7  Specifically, the Agency has demonstrated that:             (1) Border Patrol Academy (BPA) employees are needed to perform onsite training duties at Artesia, New Mexico;8 (2) Distance Learning Center employees cannot fully perform the full range of their             training-video-development duties anywhere other than Harpers Ferry, West Virginia, because the Agency’s    test-bed servers are located there and cannot be accessed remotely;9 and (3) Training Support Division (TSD) employees are needed onsite in the locations where Office of Training and Development (OTD) employees work because the TSD employees’ duties require          in-person interaction with OTD employees, who are their customers, as well as the completion of time‑sensitive forms that require wet-ink signatures.10

                As for whether Proposal 1 is an appropriate arrangement under § 7106(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute),11 I agree with the majority that the Agency concedes that Proposal 1 is an arrangement.  I also agree that the proposal is not “appropriate” within the meaning of § 7106(b)(3). 

                But the majority’s analysis of the latter issue is flawed.  As it did in Ass’n of Civilian Technicians, Kentucky Long Rifle Chapter & Bluegrass Chapter (ACT),12 the majority finds that an appropriate arrangement “may not ‘negate’ the exercise of a management right by reversing management’s substantive decision altogether.”13  As I stated in my separate opinion in ACT, this “‘negates’ test has no foundation in the Statute or the Authority’s case law”14 and itself “negates core collective-bargaining principles.”15

                Applying the correct test – the well-established balancing test set forth in NAGE, Local R14-87 (KANG)16 – I would find that the proposal would provide significant benefits to the affected employees.  As the Union asserts, directing those employees to relocate to different states would adversely affect them by, among other things, requiring them to “sell their homes and/or seek an early termination of lease obligations, uproot their spouses[’] work situations and/or children’s school environment[s], and relocate to . . . rural areas of the country that do not present the same opportunities for the employees and/or their families as their current cities offer.”17  Proposal 1 would ameliorate – in fact, it would entirely eliminate – the adverse effects of management’s decision to relocate the employees.

                On the other hand, the burdens on management’s right to determine the Agency’s organization are substantial because the proposal would preclude the Agency, without exception, from involuntarily reassigning the incumbent employees to the only locations where they can perform the full range of their positions’ duties.  I acknowledge that there are four vacant BPA positions that could immediately be transferred.18  But for the six incumbent BPA employees, and the other groups of affected employees, Proposal 1 would effectively preclude the Agency from assigning those employees the full range of their duties for as long as they remain in their positions – which Proposal 1 might actually prolong if the employees are allowed to remain in their existing geographic locations. 

                Based on this record, I believe that, on balance, the burdens on management’s right to determine the Agency’s organization outweigh the benefits that the proposal would provide the employees.  Accordingly, applying the KANG test, I would find that Proposal 1 excessively interferes with management’s right to determine the Agency’s organization and, thus, is not an appropriate arrangement.19

                Proposal 4 is a different matter altogether.  I agree with the majority that the Union concedes that the proposal affects management’s right to retain employees.  But, again, I would not rely on the Union’s       appropriate-arrangement argument to find such a concession; instead, I would rely on the Union’s failure to dispute the Agency’s claim.20

                And, unlike the majority, I would find that the arrangement is “appropriate” under § 7106(b)(3) of the Statute.  On this point, the Union incorporates its Proposal 1 arguments regarding the adverse effects of directed relocations and discusses the various benefits that Proposal 4 also would provide.21  As discussed above in connection with Proposal 1, avoiding involuntary relocation can, by itself, provide significant benefits to employees.  And the Union claims, without dispute, that it has identified numerous employees who simply cannot relocate due to medical, family, or personal-hardship issues.22  Proposal 4 would allow eligible employees to avoid directed relocation by giving them the opportunity to retire early or earn Voluntary Separation Incentive Pay of up to $25,00023 – a significant economic benefit in and of itself.24  In short, involuntary relocation would impose significant burdens on employees, and Proposal 4 would provide significant benefits to employees by allowing them to avoid such burdens.25 

                By contrast, Proposal 4’s burdens on management’s right to retain are relatively slight.  On one hand, the Agency asserts that it is facing staffing shortages and that the affected employees are experienced trainers that it needs to retain, rather than encourage to depart.26  On the other hand, the Union claims, without dispute, that a survey of the forty-seven affected employees showed that nearly half of them already plan to retire, resign, or transfer with the intention of subsequently resigning if a position in their current duty locations becomes available.27  In other words, nearly half of the affected employees plan to leave the Agency due to the directed reassignments themselves.  Proposal 4’s ameliorative benefits are unlikely to add a significant, additional burden on management’s ability to retain those employees.  Moreover, as with the proposal found negotiable in AFGE, Local 1827, “the Agency retains the ability to take additional steps or institute any policies or programs to encourage particular employees to remain Agency employees.”28

                In short, applying the KANG balancing test, I would find that Proposal 4’s substantial benefits to employees outweigh the relatively slight burdens on management’s right to retain.29  Thus, I would find that the proposal is an appropriate arrangement.30

                Accordingly, I concur in part and dissent in part.