[ v26 p532 ]
The decision of the Authority follows:
26 FLRA No. 63 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL CENTER, NEWINGTON, CONNECTICUT Agency Case No. 0-NG-1254 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authortiy because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of six proposals. The Union submitted the proposals following the Agency's establishment of new tours of duty for three work leaders which required the three work leaders to work on Sundays on a rotational basis. The new tours of duty changed a past practice under which one of the work leaders had not been assigned to work Sundays. The Union had filed an unfair labor practice charge against the Agency but withdrew the charge in exchange for the opportunity to submit bargaining proposals on the matter. II. Proposal 1 /1/ Management withdraw working leaders from weekend coverage, and allow the weekend crew to function as the evening crew in a non-supervised capacity. A. Positions of the Parties The Union argues that the weekend crew is essentially the same in size and function as the night crew, which is not supervised by work leaders, and therefore work leaders are not needed to supervise the weekend crew. The Agency contends that the proposal prevents it from assigning weekend duty to the work leaders and violates its right to assign work under section 7106(a)(2)(B) of the Statute. B. Analysis and Conclusions We agree with the Agency that Proposal 1 would prevent it from assigning weekend work to the work leaders. The Authority has consistently held that the right of management to assign work under section 7106(a)(2)(B) includes the right to determine: (1) what particular duties will be assigned, (2) when work assignments will occur, and (3) to whom or to what position duties will be assigned. See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 21 FLRA No. 65 (1986), petition for review filed sub nom. Department of the Navy, Navy Public Works Center, Norfolk, Virginia v. FLRA, No. 83-3870 (4th Cir. June 17, 1986). Particularly, the right to assign work includes the discretion to determine when management wants the duties it assigns to its imployees to be performed. See International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980). Proposal 1 clearly and expressly prohibits the use of work leaders on weekends and thereby denies management its reserved right to determine that work leaders are necessary to supervise weekend crews. Accordingly, we conclude that Proposal 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) and is outside the duty to bargain. III. Proposal 2 Management promote or hire a permanent weekend working leader. A. Positions of the Parties The Union asserts that the Agency could designate one of the weekend crew to provide guidance and supervision and relieve the work leaders of the need to work on weekends. The Agency contends that the proposal would violate its rights to assign work and to hire employees under section 7106(a) of the Statute because it would require the Agency to hire or promote a permanent weekend work leader. B. Analysis and Conclusions As explained by the Union, Proposal 2 provides that work leader duties would be assigned to one of the weekend crew to provide necessary supervision in the absence of a work leader. We agree with the Agency that the Union's proposal would require the hiring or assignment of an employee to perform work leader duties on weekends. Such a requirement is inconsistent with the discretion inherent in management's rights under section 7106(a)(2)(A) "to hire" employees and section 7106(a)(2)(B) to "assign work." American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Proposal 3). Accordingly, we find that Proposal 2 is contrary to section 7106(a)(2)(A) and (B) and is outside the Agency's duty to bargain. IV. Proposals 3, 6, and 7 The FLRA Members disagree over the negotiability of these proposals. The decision and order on Proposals 3, 6, and 7, and Chairman Calhoun's dissent immediately follow this decision. V. Proposal 4 Management allow Mr. Batchelor to perform an alternative work schedule in order for him to perform his church duties and responsibilities. A. Positions of the Parties The Union states that this proposal would allow Mr. Batchelor to rearrange his hours so that if he did work on Sunday he could work a split shift, which would enable him to perform his work leader duties and to retain his church position. The Agency contends that this proposal would require it to permit Mr. Batchelor to split his shift and thereby interferes with its right to assign work under section 7106(a)(2)(B). B. Analysis and Conclusion As explained by the Union, Proposal 4 is intended to provide for the rearrangement of Mr. Batchelor's hours of work to allow him to work a split shift and thereby to permit him to perform both his duties as church pianist and his work for the Agency. Union Submission dated April 23, 1986 at third page. We agree with the Agency that this proposal would violate its right to assign work. Proposal 4 would require the Agency to set Mr. Batchelor's work schedule so that he would not work on Sunday morning, and would thereby interfere with the Agency's right to determine when assigned work should be performed. See National Treasury Employees Union and Internal Revenue Service, 17 FLRA 379 (1985) (Proposal 1), affirmed as to Proposal 1 sub nom. NTEU v. FLRA, No. 85-1320 (D.C. Cir. Feb. 6, 1987). Therefore, for the reasons set forth in Internal Revenue Service, Proposal 4 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain. VI. Consideration of Whether Proposals 1, 2 and 4 Constitute Appropriate Arrangements Under Section 7106(b)(3) The Union contends that its proposals relate to a management-initiated change in conditions of employment and therefore are negotiable under section 7106(b)(3) of the Statute. Specifically, the Union asserts that the proposals are intended to be appropriate arrangements for employees (namely, Mr. Batchelor) adversely affected by the exercise of management's rights, and cites the Authority's decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). We find, however, that under the test articulated in Kansas Army National Guard, Proposal 1, 2, and 4 do not constitute appropriate arrangements within the meaning of section 7106(b)(3). Even assuming that these proposals constitute "arrangements" for adversely affected employees, they are not "appropriate." Although the proposals would make it possible for Mr. Batchelor to continue his outside employment as a church orgainist, they would do so by eliminating management's discretion, under section 7106(a)(2)(B), to determine when work assignments will be performed and its discretion, under section 7106(a)(2)(A), to hire and to assign employees. We have consistently held that proposals which totally abrogate the exercise of management's rights excessively interfere with those rights and are not "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provisions 6, 7 and 8). Accordingly, we find that Proposals 1, 2, and 4 are not appropriate arrangements under section 7106(b)(3). VII. Order The Union's petition for review is dismissed as to Proposals 1, 2 and 4. Issued, Washington, D.C., April 2, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON PROPOSALS 3, 6, AND 7 Proposals 3, 6, and 7 3. Management maintain the former schedule, which established a set routine and allowed for persons to structure their lives and livelihoods accordingly. 6. Management allow Mr. Batchelor to work the fifth Sunday of the month plus all Saturdays. 7. Management allow Mr. Batchelor to work one fixed Sunday of each month plus all/majority of saturdays. A. Positions of the Parties The Union states that these proposals would be for the primary benefit of one employee, Mr. Batchelor, either by permitting him to maintain his existing schedule of working all Saturdays with all Sundays off or by assigning him to a new schedule of working only one Sunday a month. The Union contends that any of these proposals would grant that employee the seniority status he is allowed under the master agreement and would allow him to retain his position as a church pianist. The Agency contends that all three proposals are contrary to its right to assign work under section 7106(a) and its right to establish and assign employees to tours of duty under section 7106(b)(1), a matter on which it has elected not to negotiate. Additionally, the Agency contends that these proposals are not negotiable because they concern the equitable scheduling of Saturday and Sunday duty, a matter controlled by the master agreement and the local supplcmental agreement. The Agency also contends that these agreements prohibit midterm union bargaining proposals. B. Analysis and Conclusion 1. Duty to Bargain When 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 which are in dispute and are within the statutory authority of the Federal Labor Relations Authority to resolve. To the extent that there are factual issues in dispute or to the extent that the parties disagree as to whether the matters are controlled by a master agreement and/or a local supplemental agreement, these issues should 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, 306 n.6 (1984). Therefore, the Agency's contentions -- that these proposals are nonnegotiable because they concern the equitable scheduling of Saturday and Sunday duty, a matter controlled by the master agreement and the local supplemental agreement, and that these agreements prohibit mid-term bargaining proposals -- should be resolved in other appropriate proceedings. 2. Management Rights The Agency requires work leaders to work on weekends. In the circumstances of this case, two of the three work leaders rotated work on the Sunday shift and the third, Mr. Batchelor, worked only on Saturdays. In response to employee complaints, the Agency changed this arrangement to require all three work leaders to rotate on the Sunday shift. Proposals 3, 6, and 7 would, in essence, restrict the Agency's ability to assign Mr. Batchelor to the Sunday shift. As we recently stated, where more than one employee is qualified to perform the work of a position, a union may negotiate procedures for the selection of the particular employee who will perform that work. International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 3). There is nothing in the record in this case which indicates that the three employees involved are not equally qualified to perform the duties of a work leader. Moreover, the Agency does not claim, for example, that there are particular duties which are only performed on Sundays and that in order for all work leaders to develop the skills to perform those duties it is necessary that they all rotate through the Sunday shift. Thus, Proposals 3, 6, and 7 have the same effect as Provision 3 in Bureau of Engraving and Printing. That provision required that particular individuals be assigned to a particular shift. The Authority held that because the provision merely concerned when, or on which shift the employees would perform the work of their positions, it was within the duty to bargain. Proposals 3, 6, and 7 in this case likewise merely concern which employee, among equally qualified employees, will be assigned to a particular weekend shift. For the reasons set forth in Bureau of Engraving and Printing, therefore, those proposals are within the duty to bargain. C. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposals 3, 6, and 7. /2/ Issued, Washington, D.C., April 2, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Dissenting Opinion of Chairman Calhoun The proposals over which the Union seeks to bargain in this case followed the settlement of an unfair labor practice charge filed by the Union after the Agency instituted a change in the weekend work schedules of three work leaders. Before the change, Mr. Batchelor was not required to work on Sundays; Sunday work was performed by the other two work leaders. The change, which required all three employees to work on Sundays on a rotational basis, was initiated by the Agency in response to a grievance filed by the other two employees which alleged that the Agency was unfairly distributing Sunday work. Proposal 3 would require the Agency to rescind the change and reinstitute the former schedule. Proposals 6 and 7 would replace the new schedule with ones where Mr. Batchelor would work either the fifth Sunday of each month and all Saturdays, or one Sunday each month and the majority of Saturdays. In finding these proposals to be negotiable, the majority relies on its decision in International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987). I disagreed with the majority as to Provision 3 in Bureau of Engraving and Printing, stating that unlike provisions which establish general procedures to assign employees to shifts, provisions which compel the assignment of particular individuals to particular shifts conflict, in my view, with an agency's right to assign work. Proposals 3, 6 and 7 in this case would also require the Agency to assign specific individuals to specific tours of duty. In National Treasury Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982), the court stated that "the right to determine what work will be done, and by whom and when it is to be done, is at the very core of successful management of the employer's business." In my view, Proposals 3, 6 and 7, like Provision 3 in Bureau of Engraving and Printing, would enable the Union to interfere with the Agency's management of its business and are nonnegotiable. Moreover, I would also find that these proposals do not constitute appropriate arrangements under section 7106(b)(3) of the Statute. Under section 7106(b)(3), agencies and unions may negotiate appropriate arrangements for employees adversely affected by the exercise of any authority under section 7106 by management officials. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). As is true under the Statute in general, negotiations under section 7106(b)(3) must relate to unit employees' conditions of employment. See generally Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986). These proposals, however, are not appropriate arrangement within the meaning of section 7106(b)(3). While the proposals would change Mr. Batchelor's hours of work, the adverse effect that the Proposals are intended to ameliorate is unrelated to his conditions of employment; rather, the adverse effect is related to his ability to retain his position as church pianist. While I would urge the parties to approach matters like those involved in this case in a spirit of problem-solving and reasonable accommodation to their respective interests without the need to resort to the negotiability appeals procedure of the Statute, I nonetheless find that for the reasons stated above, these proposals are outside the Agency's statutory duty to bargain. --------------- FOOTNOTES$ --------------- (1) The proposals are numbered as submitted by the Union. (2) In finding Proposals 3, 6, and 7 to be within the duty to bargain, we make no judgment as to their merits.