31:0031(8)NG - NTEU and Customs Service -- 1988 FLRAdec NG



[ v31 p31 ]
31:0031(8)NG
The decision of the Authority follows:


 31 FLRA NO. 8


NATIONAL TREASURY EMPLOYEES UNION

                   Union

      and

UNITED STATES CUSTOMS SERVICE

                   Agency

                                                   Case No. 0-NG-1449

               DECISION AND ORDER ON NEGOTIABILITY ISSUE

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of a single proposal. The
proposal would permit employees assigned to a particular duty
station to remain at that same duty station for a maximum of 10
years. We find that the proposal is within the duty to bargain
because it does not excessively interfere with management's
rights to assign employees and to assign work under sections
7106(a)(2)(A) and (B) of the Statute.

     II. Background and Proposal

     This case concerns the duration of assignments at
preclearance facilities for customs inspectors. Preclearance
facilities are United States Customs facilities located outside
the United States where passengers boarding flights for
destinations within the United States are "pre-cleared" through
U.S. Customs.

     In 1980 the Agency decided that the term of assignments to
preclearance facilities would be increased from 5 years to 10
years (an initial 2-year assignment with a maximum of four 2-year
extensions) in order to provide greater stability both for
employees and the Customs Service. Reply Brief at Attachment A.
On March 3, 1986, the Customs Service advised the Union of
its decision to reduce the maximum tour of duty of customs
inspectors located at these preclearance facilities overseas from
a maximum of 10 years to 5 years (an initial 2-year assignment
with a 2-year extension followed by a 1-year extension for
extenuating circumstances). The Agency determined to phase in the
5-year reduction in the length of an assignment by permitting
employees with more than 5 years' service at a preclearance
facility who were in the last year of a 2-year extension to
extend their assignment for 1 additional year. Statement of
Position at 2.  The Agency also indicated that further extensions
would be permitted for extenuating circumstances such as
dependents' schooling or health problems. Attachment 4 to
Statement of Position. The Union requested bargaining and
submitted the following proposal:

     Employees presently assigned to preclearance facilities will
     be permitted to remain for the full year period presently
     proposed commencing with the effective date of the new
     directive.

     III. Positions of the Parties

     The Agency argues that this proposal violates management's
rights to assign employees and to assign work under sections
7106(a)(2)(A) and (B) of the Statute, because it restricts the
duration of assignments. The Agency contends that the
complexities of the mission of the Customs Service and the
necessity for inspection personnel to be assigned a wide range of
duties mandate the curtailment of assignments to preclearance
facilities from a maximum of 10 years to 5 years.

     The Union explains that the purpose of this proposal is to
allow those inspectors who accepted an assignment to a
preclearance facility under the previous directive, which
permitted a 10-year tour of duty, to remain at that facility for
the full 10-year term. The Union argues that management's right
to assign employees and to assign work is not affected because
the Agency already had determined that these employees were
qualified to occupy these positions and already had assigned them
to those locations.

     The Union also argues that the proposal constitutes a
procedure for the selection and retention of a qualified
applicant under section 7106(b)(2) or an appropriate arrangement
under section 7106(b)(3) of the Statute. 

     IV. Analysis and Conclusion

     1. The Proposal Interferes with the Right to Assign
Employees and the Right to Assign Work

     The right to decide when an assignment should begin and end
is inherent in the right to assign employees under section
7106(a)(2)(A). See American Federation of Government Employees,
AFL - CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 
292 (1981). See also American Federation of State, County and
Municipal Employees, Local 2910 and Library of Congress, 18 FLRA 
241, 243 (1985) (Proposal 1). This proposal prevents the Agency
from reducing the duration of a particular duty assignment. Thus,
it directly interferes with management's right to assign
employees under section 7106(a)(2)(A).

     In addition, this proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B).
According to the Agency's uncontested statement, customs
inspectors assigned to preclearance facilities perform a limited
scope of duties. By preventing the Agency from reassigning
inspectors from preclearance facilities to other positions for up
to 5 years, this proposal prevents the Agency from assigning
duties to these inspectors other than the limited preclearance
inspection duties. Therefore, we find this proposal also directly
interferes with management's right to assign work. Proposals
which prevent an agency from assigning particular duties to
employees violate management's right to assign work. See, for
example, National Federation of Federal Employees, Local 1214 and
Headquarters, United States Army Training Center, Fort Jackson,
South Carolina, 11 FLRA  580 (1983).

     We reject the Union's claim that this proposal merely delays
the exercise of those rights. Rather, this proposal permits
employees to determine when they will be reassigned to positions
or when they will perform particular duties associated with their
positions. Compare National Treasury Employees Union and U.S.
Customs Service, Northeast Region, 25 FLRA  731 (1987) (Proposals
requiring, among other things, that employees would rotate to
particular work locations every 6 months where the agency sought
to rotate employees every 2  weeks found not to violate
management's rights to assign employees or to assign work under
sections 7106(a)(2)(A) and (B) because the record did not
establish any linkage between the length of a rotational
assignment and the particular duties performed). 

     Because this proposal directly interferes with management's
right to assign employees and to assign work under sections
7106(a)(2)(A) and (B), it does not constitute a negotiable
procedure under section 7106(b)(2). See American Federation of
Government Employees, AFL - CIO and Air Force Logistics Command,
Wright - Patterson Air Force Base Ohio, 2  FLRA  604 (1980),
enforced as to other matters sub nom. Department of Defense v.
FLRA,  659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE
v. FLRA,  455 U.S. 945 (1982).

2.  The Proposal is an Appropriate Arrangement

     The proposal directly interferes with management's right to
assign employees and to assign work under sections 7106(a)(2)(A)
and (B) and is outside the duty to bargain unless it is a
negotiable appropriate arrangement under section 7106(b)(3).

     In National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 2