25:0675(55)NG - NFFE Local 1945 and Interior, Bureau of Land Management -- 1987 FLRAdec NG

 25 FLRA No. 55
 
 NATIONAL FEDERATION OF 
 FEDERAL EMPLOYEES, LOCAL 1945
 Union
 
 and
 
 U.S. DEPARTMENT OF THE INTERIOR 
 BUREAU OF LAND MANAGEMENT
 Agency
 
                                            CASE NO. O-NG-1257
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of the following proposal.
 
    II.  Proposal
 
          1.  The hours for the early shift would remain the same.
 
          2.  The hours for the late shift would become 0745-1615.
 
    A.  Background and Positions of the Parties
 
    The Key Entry Section of the Agency's Denver Service Center formerly
 operated on a two shift schedule;  one shift from 6:00 a.m. to 2:30 p.m.
 and the second shift from 9:30 a.m. to 6:00 p.m.  The Agency decided to
 abolish the two shifts and move all employees to a single shift from
 7:45 a.m. to 4:15 p.m.  According to the Agency, the new shift schedule
 would:  reduce turnover;  increase operating efficiency;  permit one
 position to be abolished;  and result in only minimal disruption of
 employees.  See Agency Statement of Position at 3rd page.
 
    The Agency contends that a provision in the parties' current
 collective bargaining agreement precludes bargaining on the disputed
 proposal and, therefore, it has no duty to bargain.  The Agency further
 asserts that this proposal interferes with management's rights under
 section 7106(a)(2)(A) and (B) to assign and direct employees and to
 assign work and with management's rights under section 7106(b)(1) to
 determine the numbers, types and grades of employees or positions
 assigned to a tour of duty and the methods and means of performing work.
 
    The Union did not file a Reply Brief in this case but the record
 indicates that the Union considered its proposal to be an appropriate
 arrangement within the meaning of section 7106(b)(3) of the Statute.
 See Attachment 4 to the Union's Petition for Review.
 
    B.  Analysis and Conclusion
 
    1.  Duty to Bargain
 
    Wnen a union files a negotiability appeal under section 7105(a)(2)(E)
 of the Statute, section 7117(c) entitles it to a decision on the
 negotiability issues in the appeal.  The record in this case fails to
 provide a basis for substantiating the Agency's assertion that the
 parties' current collective bargaining agreement precludes negotiations
 on the proposal.  To the extent that there are factual issues in dispute
 between the parties concerning the duty to bargain in the specific
 circumstances of the case, such issues should be raised in other
 proceedings.  See American Federation of Government Employees, AFL-CIO,
 Local 2736 and Department of the Air Force, Headquarters 379th Combat
 Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302,
 306 n. 6 (1984).  Hence, the Agency's contention that, under the
 circumstances, it has no duty to bargain on the disputed proposal is not
 relevant in the context of a negotiability dispute and will not be
 addressed further.
 
    2.  Management's Rights
 
    This proposal expressly concerns the Agency's shift structure and
 thus does not involve the assignment of employees to positions in the
 Agency or the assignment of work to employees under section
 7106(a)(2)(A) and (B).  See Laborers' International Union of North
 America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense
 Depot Tracy, Tracy, California, 14 FLRA 686 (1984) (Proposal 1).
 
    Further, the Agency has not established that this proposal in any way
 interferes with its right to direct employees under section
 7106(a)(2)(A) of the Statute.  See National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 at 775
 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691
 F.2d 553 (D.C. Cir. 1982) in which the Authority determined that the
 phrase "to direct . . . employees in the agency" means "to supervise and
 guide them in the performance of their duties on the job."
 
    Similarily, the Agency has not established in what manner this
 proposal interferes with the method it would use to perform its work,
 that is, the way in which the Key Entry Section processes various
 payroll and financial data for the Agency.  See American Federation of
 Government Employees, AFL-CIO, Local 2875 and Department of Commerce,
 National Oceanic and Atmospheric Administration, National Marine
 Fisheries Service, Southeast Fisheries Center, Miami Laboratory,
 Florida, 5 FLRA 441 (1981) (flexible work schedule not a "method" of
 performing work).  Nor does the proposal concern the means, that is, the
 "tools," "devices," or "instrumentalities" by which the Agency will do
 its work.  See American Federation of Government Employees, AFL-CIO,
 International Council of U.S. Marshalls Service Locals and Department of
 Justice, U.S. Marshalls Service, 4 FLRA 384 (1980) (firearms held to be
 a "means" of performing work).
 
    In agreement with the Agency, however, we find that this proposal
 involves the numbers, types, and grades of employees or positions
 assigned to a tour of duty within the meaning of section 7106(b)(1).
 Specifically, this proposal is to the same effect as the proposal found
 nonnegotiable in National Federation of Federal Employees, Local 1461
 and Department of the Navy, U.S. Naval Observatory, 16 FLRA 995 (1984).
 The agency in that case also sought to replace a two shift operation
 with one shift while the union proposed retaining the two shift
 schedule.  The Authority determined that the union's proposal directly
 related to the numbers, types, and grades assigned to a tour of duty
 within the meaning of section 7106(b)(1) because the proposal
 specifically identified the number of employees who would remain on the
 second shift.  Further, the Authority distinguished this determination
 from its holding in National Treasury Employees Union, Chapter 66 and
 Internal Revenue Service, Kansas City Service Center, 1 FLRA 927, 928-9
 (1978) where a proposal requiring management to maintain existing
 starting times of shifts was found to be negotiable.  The Authority
 stated that the proposal in Kansas City Service Center contemplated only
 "a relatively minor adjustment" (30 minutes) to the starting times of
 employees already assigned to an existing tour of duty and did not
 explicitly relate to the matters enumerated in section 7106(b)(1).
 Based on U.S. Naval Observatory, we conclude that the proposal in this
 case directly concerns matters within the scope of section 7106(b)(1)
 because it also determines the specific number of employees assigned to
 a particular shift.  Hence, this proposal is likewise distinguished from
 the proposal found negotiable in Kansas City Service Center.  Since this
 proposal is negotiable only at the Agency's election and the Agency has
 declined to bargain on it, this proposal is not within the duty to
 bargain.
 
    3.  Appropriate Arrangement
 
    We turn now to the Union's claim that the proposal constitutes an
 appropriate arrangement within the meaning of section 7106(b)(3) of the
 Statute.  In this respect, the Union's proposal requires the Agency to
 reverse its decision to operate only one shift.  In so doing, this
 proposal, as we concluded above, interferes with management's right
 under section 7106(b)(1).  Clearly, a proposal which conpletely reverses
 the substantive effect of a management decision under section 7106 does
 not constitute an appropriate arrangement under section 7106(b)(3).
 American Federation of Government Employees, AFL-CIO, Local 2782 v.
 Federal Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983).
  Since the proposal negates the exercise of management's right it is not
 necessary to balance the factors discussed in National Association of
 Government Employees, Local R14-87 and Kansas Army National Guard, 21
 FLRA No. 4 (1986).
 
    III.  Order
 
    The petition for review is dismissed.
 
    Issued, Washington, D.C., February 12, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean Mckee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY