25:0731(61)NG - NTEU and Customs Service, Northeast Region -- 1987 FLRAdec NG
[ v25 p731 ]
25:0731(61)NG
The decision of the Authority follows:
25 FLRA No. 61
NATIONAL TREASURY
EMPLOYEES UNION
Union
and
U.S. CUSTOMS SERVICE
NORTHEAST REGION
Agency
Case No. 0-NG-1180
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 six Union proposals. For the reasons which follow we
find five of these proposals negotiable and one proposal nonnegotiable.
II. Threshold Issue
The Agency contends that the Union's proposals concern matters which
the parties have already agreed to in their National Agreement. The
Agency also argues that the proposals are outside the scope of the
change in working conditions. The record in this case fails to provide
a basis for substantiating the Agency's assertion that provisions in the
parties' master agreement limit negotiation on the six proposals in this
case. Further, to the extent that there are factual issues in dispute
between the parties concerning the duty to bargain in the specific
circumstances of this case, these issues may be resolved in other
appropriate proceedings. 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 at 306 n. 6 (1984).
III. Proposal 1
All Qualified Employees (Custom Inspectors, Inspectional Aides and
Customs Entry Aides) will be assigned to work locations which have been
identified by the employer utilizing the bid process based on
occupational seniority in a descending order. If there is a tie, in
Customs service will be utilized to break the tie. If a tie still
exists, service computation date will be used to break the tie. If the
tie still exists, a lottery will be used to break the tie. In the
alternative, Merit Promotion Principles will be utilized to assign
employees.
Proposal 2
All qualified employees (Customs Inspectors, Inspectional Aides and
Customs Entry Aides) will rotate utilizing the bid process or in the
alternative Merit Promotions Principles, every 6 months.
Proposal 3
In order to maintain proficiency in significant aspects of the
employees' assigned duties, employees will change work locations once a
year. For purposes of this agreement, only the airport passenger
(Volpe) assignment will be considered one work location and only the
7/3, 3/11, 4/12 shifts' assignments will be considered as one work
location.
Proposal 13
Assignments of Custom Inspectors to Duty Officer, Terrorist Team and
Cargo Accountability Team (C.A.T.) will be made in accordance with
Article 20, Section 5, of the National Agreement. These assignments
will have a duration of 6 months.
Proposal 14
The assignment of Customs Entry Aides to the Cargo Accountability
team will be in accordance with Article 20, Section 5, of the National
Agreement. This assignment will have a duration of 6 months.
A. Positions of the Parties
The Agency contends that these proposals violate its right to assign
employees under section 7106(a)(2)(A) of the Statute and its right to
assign work under section 7106(a)(2)(B). The Union contends that these
proposals provide as follows: Proposal 1 establishes a procedure for
assigning particular employees to specific work locations; Proposal 2
establishes a procedure for rotating employees among work assignments
and the duration of those work assignments; proposal 3 concerns the
duration of an assignment to a work location; and Proposals 13 and 14
apply provisions of the master agreement of assignments to specific
programs and the duration of such assignments.
B. Analysis and Conclusion
These proposals were submitted as a result of the closing of the
container inspection operations at Mystic Terminal in the port of
Boston, Massachusetts. Prior to this closing Customs Inspectors at the
Mystic Terminal, as well as at other established work locations in the
port of Boston, were rotated between "slots" or work locations every two
weeks. According to the Agency, the closing of the Mystic operation
necessitated changes in the rotational assignments of Customs Inspectors
at the various work locations in the port of Boston. Agency Statement
of Position at 2-3. The Agency relies on American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Proposals
IV-VI), enforced sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982) to support its claim that the
proposals in this case violate its right under section 7106(a)(2)(A) to
assign employees. This reliance is misplaced. Proposals IV-VI in that
case were found to violate managment's right to assign employees because
they prevented management from utilizing individual job-related
characteristics such as judgment and reliability to determine which
employee to assign to particular positions in the Agency. None of the
proposals in this case would in any manner restrict management's right
to assign employees to particular positions. Rather, the employees in
this case have already been assigned to positions in the port of Boston
and these proposals merely concern determinations as to the specific
work locations where these employees will perform the duties that have
already been assigned to their positions.
Further, and in support of its argument that the requirement to
rotate employees among the various established work locations every six
months violates its right to assign, the Agency relies on the following
cases: American Federation of Government Employees, Local 32, AFL-CIO
and Office Personnel Management, 17 FLRA 326 (1985); International
Association of Firefighters, Local F-109, AFL-CIO and Department of the
Army, Headquarters, Carlisle Barracks, Carlisle, Pennsylvania, 8 FLRA 35
(1982); and American Federation of Government Employees, AFL-CIO, Local
695 and Department of the Treasury, U.S. Mint, Denver Colorado, 3 FLRA
43 (1980). The proposals found nonnegotiable in those cases either
prevented management from taking into account valid individual
characteristics in making work assignments (Office of Personnel
Management and Carlisle Barracks) or required the weekly rotation of
employees regardless of whether any new work was available or whether
work previously assigned had been completed (Denver Mint-Proposal I).
The record in this case, however, establishes that the employees in the
port of Boston currently rotate among the various work locations on a
regular basis pursuant to procedures in the parties' master agreement
and as to a result, perform all the duties incident to an assignment to
a specific work location. Agency Statement of Position at 3. Union
Reply Brief at 2-3. There is nothing in the express language of these
proposals or otherwise in the record to support a claim that these
proposals prevent the Agency from continuing to analyze individual
characteristics in requiring employees to rotate in the port of Boston.
Further, unlike the circumstance involving Proposal I in Denver Mint,
the record in this case does not establish any linkage between the
length of a rotational assignment and the particular duties performed.
For the reasons set forth above, we find that these proposals do not
interfere with management's right to assign employees under section
7106(a)(2)(A) or to assign work under section 7106(a)(2)(B) but rather,
are within the duty to bargain.
IV. Proposal 4
In the event of a bona fide emergency situation, and if the
Employer chooses to assign personnel outside of the above
identified provisions, the Employer will provide notice to the
Union and negotiate over this change in accordance with Article 37
of the National Agreement.
A. Positions of the Parties
The Agency argues that the proposal interferes with its right to
assign work under section 7106(a)(2)(B). The Union contends that the
proposal merely requires notice to the Union when the Agency acts under
section 7106(a)(2)(D) and therefore, the proposal is consistent with
management's right to take action in an emergency under section
7106(a)(2)(D).
B. Analysis and Conclusion
Although not raised by the Agency, we find that Proposal 4 violates
section 7106(a)(2)(D). That is, and contrary to the Union's assertion,
Proposal 4 does not merely require the Agency to notify the Union
whenever it determines that an emergency exists which necessitates
changes in the rotational system of work assignments. Rather, the
proposal expressly requires the Agency to negotiate on the changes it
will make in the rotational system during an emergency. Thus, the
proposal directly interferes with management's right, under section
7106(a)(2)(D) of the Statute, "to take whatever actions may be necessary
to carry out the agency mission during emergencies." 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 2 requiring "three days advance notice" of
certain reassignments even in an emergency found to violate section
7106(a)(2)(D)).
V. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning Proposals 1, 2, 3, 13, and 14. /*/ The
Union's petition for review as to Proposal 4 is dismissed.
Issued, Washington, D.C., February 13, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding these proposals to be within the duty to bargain we
make no judgment as to their merits.