46:0049(3)NG - - National Weather Service Employees Organization and Commerce, NOAA, National Weather Service, Silver Spring, MD - - 1992 FLRAdec NG - - v46 p49
[ v46 p49 ]
The decision of the Authority follows:
46 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL WEATHER SERVICE EMPLOYEES
U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
NATIONAL WEATHER SERVICE
SILVER SPRING, MARYLAND
DECISION AND ORDER ON NEGOTIABILITY ISSUES
October 5, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals offered by the Union during negotiations over the impact and implementation of the Agency's decision to phase out the pilot weather briefing (PWB) service provided at certain of its field offices. The service is offered by the Agency to persons involved with commercial and general aviation.
Proposal 1 would delay implementation of the Agency's decision to terminate the PWB program for 180 days and require the Agency to inform users of the service that, unless requests for pilot weather briefings reach 100 per month, the service will be terminated. At field offices where demand for pilot weather briefings fails to meet the threshold number of requests, Proposal 2 would require the Agency to detail employees twice each year for a period of 2 weeks to field offices that continue to conduct pilot weather briefings in order for these employees to maintain their PWB certification.
For the following reasons, we find that Proposal 1 is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 2 is nonnegotiable because it directly and excessively interferes with the right to assign employees under section 7106(a)(2)(A) of the Statute.
The PWB provides a variety of weather information in a form usable by pilots in making pre-flight and/or in-flight decisions. Only employees who obtain a PWB certification may conduct such a briefing. The PWB certification consists of a self-study course, a written examination, and an oral examination during which an employee conducts a demonstration briefing. If an employee is transferred to a position not requiring PWBs, the certification is invalidated. If an employee's PWB certification has been invalid for 2 years or less and the employee transfers into a position requiring PWBs, the employee may be recertified by successfully completing the oral examination. If the certification has been invalid for more than 2 years, the employee must pass both the written and oral examinations in order to be recertified.
On or about October 3, 1991, the Agency notified the Union that it planned to discontinue the PWB service at its Southern Region field offices where the Agency had determined that the demand for the service was insufficient. The Agency defined insufficient demand as less than 100 briefing requests per month. The Agency also informed the Union that the termination of the PWB service would involve the revocation of the employees' PWB certification.(1) Thereafter, the Agency notified the Union that the phase-out of the PWB service was nationwide in scope and would involve regions in addition to the Southern Region. In response to the Agency's announcement, the Union submitted the two disputed proposals.
III. Proposal 1
The NWS shall hold in abeyance termination of pilot weather briefing for 180 days during which time management will contact local users such as fixed base operators, airport managers, corporate aviation departments, regional state and national groups and aviation associations such as AOPA, NBAA, EAA and explain that unless each office reaches 100 briefings a month, pilot weather briefings will be terminated. NWS shall notify NWSEO's national office of the language of the contact and provide a copy of all results.
A. Positions of the Parties
1. The Agency
The Agency contends that the proposal is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that the right to assign work includes the right to determine which duties will be assigned to particular positions. The Agency asserts that the effect of the proposal is not merely to delay Agency action for 180 days but, rather, also to prevent the Agency from phasing out the PWB program. Under the proposal, the Agency asserts that it would be required to continue the PWB service as long as the field offices continue to receive 100 briefing requests per month.
The Agency also contends that as Proposal 1 directly interferes with management's right to assign work, it cannot be considered a negotiable procedure under section 7106(b)(2) of the Statute. The Agency argues that the proposal affects not only the Agency's right to determine when the termination of the PWB service will occur but also whether the service will be terminated in any given office. For this reason, the Agency argues that Proposal 1 relates to the substance of its decision to terminate PWB service and is not procedural in nature.
The Agency also argues that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. First, the Agency states that the Union has not indicated that Proposal 1 is intended as an appropriate arrangement. According to the Agency, proposals that would simply improve employee opportunities for advancement are not negotiable. The Agency asserts that Proposal 1 concerns the establishment of job requirements, which by itself does not adversely affect employees. Rather, the Agency argues that any adverse effect from job requirements must flow from actions taken against an employee based on the application of those job requirements. Because Proposal 1 concerns only the decision to eliminate job requirements, the Agency maintains that it cannot be considered an arrangement for adversely affected employees.
The Agency claims that the Union has not shown how the elimination of PWBs would adversely affect employees. The Agency notes that this action is being taken only where there is no significant demand for the service. The Agency states that PWB service is not a grade determining function and that there is a method by which employees can receive a certificate of accomplishment denoting that they have received training to provide PWB service.
However, assuming that Proposal 1 is an arrangement for employees adversely affected by the decision to eliminate PWB service, the Agency asserts that the proposal excessively interferes with management's right to assign work. The Agency explains that the proposal "would completely abrogate" the right to assign work for 180 days, during which time the proposal would require the Agency to notify users of the possible termination of PWB service. Statement of Position at 11. The Agency further states that if the action required by the proposal generates more than 100 requests for PWBs per month, the proposal would preclude the elimination of the PWB service and, thereby, prevent the Agency from assigning work beyond 180 days. Accordingly, the Agency argues that Proposal 1 is not negotiable as an appropriate arrangement.
2. The Union
The Union concedes that Proposal 1 infringes on management's reserved rights but contends that it is an appropriate arrangement for employees adversely affected by the Agency's decision to terminate the PWB service at offices with decreased demand. The Union argues that the Agency erroneously states that the Union did not specify that Proposal 1 was intended as an appropriate arrangement. The Union asserts that, in its petition for review, it clearly identified several ways in which employees would be adversely affected by the Agency's decision to terminate the PWB service as well as how the proposal was intended to mitigate those adverse effects.
More particularly, the Union states that employees who lose their PWB certifications would be at a competitive disadvantage relative to other certified employees when applying for promotion and/or transfer to stations where PWB service is continued. According to the Union, if employees from field offices where PWB service has been terminated are selected for such positions, they will be required to retake the certification examinations. If they fail the recertification examinations twice, they could face the risk of an adverse action being taken against them based on a lack of competence to perform the duties of the new position. In addition, the Union maintains that the PWB program traditionally has served as functional training for interns who may become aviation forecasters after completing their internships. The Union argues that these adverse effects were not disputed by the Agency.
The Union also explains that the intent of Proposal 1 is to increase the demand for PWB service and thereby minimize the number of offices at which the service is terminated. In this regard, the Union made the following statement in its petition for review:
The intent of this proposal is to provide notice to the users of the pilot weather briefing service that unless demand increases at particular offices, the service will be terminated. By informing the public that this service might be lost, [the Union] anticipates that demand would increase, thereby minimizing the number of offices at which the PWB program would be eliminated.
Petition for Review at 4. The Union further contends that the proposal would not prevent the Agency from phasing out the PWB service because the Agency would still be free to change the threshold number of briefing requests it deems necessary to maintain the service "or to eliminate that service entirely regardless of the demand created by proposal No. 1." Response at 2.
Contrary to the Agency's argument, the Union states that it has not claimed that Proposal 1 is a negotiable procedure. Instead, the Union argues that Proposal 1 is an appropriate arrangement and that the Agency has failed to demonstrate that it excessively interferes with the exercise of management's rights. The Union reiterates its argument that nothing in the proposal would prevent the Agency from terminating the PWB program if demand exceeds 100 briefings per month because the Agency retains the discretion to change the threshold number of requests necessary to maintain the service at any time. Accordingly, the Union argues that Proposal 1 is a negotiable appropriate arrangement.
B. Analysis and Conclusions
We conclude that the proposal is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.(2)
Proposal 1 does several things. It requires the Agency to hold termination of the PWB service in abeyance for 180 days and to contact a variety of users to advise them that unless PWB requests reach 100 per month the service will be terminated. Thus, for the 180-day period in which users are being contacted, the proposal would require the Agency to continue providing the PWB service at all of its locations. The proposal also requires the Agency to provide the Union with the language used to contact the users and with a copy of all "results." Inasmuch as the Union concedes that the proposal interferes with the exercise of management's rights under section 7106 of the Statute, for the purposes of this decision we will assume, without deciding, that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
Next, we address whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In determining whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
The Union claims that the proposal is designed to mitigate the adverse effects on unit employees of management's decision to phase out the PWB program. Specifically, the Union points to the fact that employees will lose their PWB certification at those locations where the service is terminated and will be at a competitive disadvantage when applying for positions at locations where the service is retained. Contrary to the Agency's assertion, we find that the Union has established that the proposal is intended as an appropriate arrangement for employees adversely affected by management's exercise of its right to assign work.
However, we further find that the proposal would excessively interfere with the Agency's right to assign work. As noted, the proposal is designed, in part, to prevent the Agency from implementing its decision to terminate the PWB service for at least 180 days even though the Agency has already identified the field offices at which the level of demand does not warrant continued operation of that service. Thus, the proposal does not merely require that the Agency delay making a determination regarding the fate of the PWB service; rather, it would require the Agency, for a period of at least 180 days, to reverse its decision to terminate the PWB service at certain locations. Moreover, as the Union explains, the purpose of the proposal is to generate increased demand for briefings in order to minimize the number of locations at which the service would be terminated. If, however, as a result of the Agency contacts mandated by the proposal, there is increased demand for the briefings but that demand turns out to be of short duration, it appears that under the proposal the Agency would be required to maintain the PWB service for another 180 days at those locations before it could finally effectuate its original decision to terminate the briefings.
In addition, the assignment of PWB duties for the 180-day period would operate in a potentially large number of offices. In this regard, the Agency's decision to terminate the service, though originally applicable to offices in the Agency's Southern Region, was expanded to include all offices nationwide. The record indicates that the Agency is comprised of six regions and that the Southern Region alone has 41 field offices that were identified as having insufficient user demand. Consequently, the continued assignment of PWB services would operate in 41, and potentially far more, field offices.
On the other hand, the benefits that would be afforded employees under the proposal include the maintenance of their PWB certifications and the assurance that employees would not be at a competitive disadvantage when competing for positions requiring PWB certification. However, we note that the loss of PWB certification does not affect an employee's grade level and, for those employees who wish to maintain their certifications, there is a means of doing so. Thus, the record indicates that employees can maintain their certifications by retaking and successfully completing the pertinent portions of the certification examination. Therefore, on balance, we view the intrusion on the exercise of management's right to assign work occasioned by the proposal as outweighing the benefits afforded to employees. Consequently, we conclude that the proposal excessively interferes with the Agency's right to assign work and that it does not constitute a negotiable appropriate arrangement.
We also find that Proposal 1 is distinguishable from the proposals found negotiable in National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990) and American Federation of Government Employees, Local 1812 and United States Information Agency, Washington, D.C., 45 FLRA 923 (1992). In those cases, the proposals merely required the respective agencies to maintain the status quo to enable the parties to satisfy their bargaining obligations under the Statute. In contrast, Proposal 1 says nothing about suspending the planned termination of the program until the parties have fulfilled their bargaining obligations. Instead, the proposal would require the Agency, after it has fulfilled its bargaining obligation, to continue for 180 days the assignment of duties attendant to the PWB service despite the Agency's decision to terminate the service based on insufficient user demand.
IV. Proposal 2
At those NWS stations where PWB's fall below the established quality [sic] threshold, management will detail employees TDY, with full per diem, two times a year for a period of two weeks to offices that still conduct PWB's in order that these employees maintain proficiency and certification.
A. Positions of the Parties
1. The Agency
The Agency contends that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it requires the Agency to detail employees for training. The Agency further contends that the requirement to detail employees to specific field offices twice a year for two weeks interferes with its right to determine the numbers, types, and grades of employees or positions assigned to any organizational subdivision or work project and with its right to determine the methods and means of performing work all under section 7106(b)(1) of the Statute. The Agency argues that it would be required to assign additional staff or direct overtime in those field offices from which employees are detailed. The Agency claims that the proposal would create staffing problems and require the reassignment of work during the period of the details.
As it argued with regard to Proposal 1, the Agency contends that the Union has not shown that Proposal 2 is either a negotiable procedure or an arrangement for employees adversely affected by the exercise of management's rights. However, the Agency argues that if the Authority finds that Proposal 2 is an arrangement under 7106(b)(3) of the Statute, it is not appropriate because it excessively interferes with management's right to assign work. The Agency asserts that, although proposals requiring an agency to provide training may be negotiable as appropriate arrangements, Proposal 2 would deprive it of all discretion to determine the type and duration of training. Specifically, the Agency argues that Proposal 2 would impermissibly prescribe the methodology, scheduling, duration, type, content, and characteristics of the PWB training. The Agency further asserts that the negative impact of the proposal on the exercise of management's right to assign work "outweighs the any [sic] adverse impact caused by management's elimination of the PWB from offices where there has been little or no demand for the service." Statement of Position at 13.
2. The Union
The Union acknowledges that Proposal 2 infringes on the Agency's reserved rights. However, the Union contends that Proposal 2 is an arrangement for employees adversely affected by the Agency's decision to terminate PWB service at certain field offices. In this regard, the Union asserts that Proposal 2 mitigates the adverse effects by providing employees with a means to maintain their PWB certification after the service has been terminated.
The Union further contends that Proposal 2 does not excessively interfere with the exercise of management's rights. Contrary to the Agency's position, the Union argues that the proposal is unrelated to training. Rather, the Union asserts that the proposal applies only to employees who are already trained and certified and allows them to retain their certification by maintaining proficiency on the duties attendant to PWBs. Accordingly, the Union claims that the proposal is negotiable as an appropriate arrangement.
B. Analysis and Conclusions
We conclude that the proposal is nonnegotiable because it directly and excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.
Initially, we agree with the Union that the Agency's arguments regarding training are misplaced. Generally, training involves the provision of instruction on employees' duties and responsibilities. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 560 (1991). Proposals that require agencies to provide such training to employees directly interfere with management's right to assign work. See, for example, National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 611 (1992). Clearly, Proposal 2 is not concerned with providing instruction to employees on the duties and responsibilities of their jobs. Rather, the pr