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U.S. Federal Labor Relations Authority

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25:0731(61)NG - NTEU and Customs Service, Northeast Region -- 1987 FLRAdec NG

[ v25 p731 ]
The decision of the Authority follows:

 25 FLRA No. 61
                                            Case No. 0-NG-1180
                         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
                                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
                                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
                        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
                                 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.