[ v53 p967 ]
The decision of the Authority follows:
53 FLRA No. 78
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
DECISION AND ORDER ON NEGOTIABILITY ISSUES
December 11, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
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), and concerns the negotiability of two proposals relating to a reorganization within the Agency.
For the reasons that follow, we find that Proposal 1, which requires the assignment of two specified employees to "advisor" positions, is not within the duty to bargain because it affects management's right to make selections under section 7106(a)(2)(C) of the Statute and the record does not establish that it constitutes an arrangement under section 7106(b)(3). Proposal 2, which requires that the Agency increase the number of FTEs (full-time equivalents) assigned to a particular division, is not within the duty to bargain because it affects the right to determine the organization of the Agency under section 7106(a)(1) and the record does not establish that it is an arrangement.
II. Preliminary Matter
The Union's response to the Agency's statement of position in this case was filed untimely. Pursuant to section 2429.23(b) of the Authority's Regulations,(1) the Union requests that the Authority waive the expired time limit.
The following is a summary of the relevant facts relating to the Union's request. Processing of the petition in this case was suspended as a consequence of the Union's selection to proceed with an unfair labor practice (ULP) case on the same issue as involved in this petition. When the Union advised it that the ULP was settled, the Authority ordered processing of this negotiability proceeding resumed. The Authority's order, which was sent to the parties by certified mail, included a statement of the time limits for filing the Agency statement of position and the Union's response thereto. An executed receipt for the copy of the order served on the Union was returned to the Authority. The Agency, having requested and received an extension of time in which to file its statement of position, filed that submission within the established time limit. However, the time limits prescribed by section 7117(c)(4) of the Statute and section 2424.7 of the Authority's Regulations had expired before the Union either filed its response or requested an extension of time in which to do so.
A. Position of the Parties
The Union contends that extraordinary circumstances exist warranting waiver of the expired time limit for filing its response to the Agency's statement of position. The Union asserts that it did not receive the Authority's order that resumed processing of this petition and "provided the 15 day time limits [sic]." Request for waiver at 1. Noting that it uses an Agency address, the Union conjectures that the Agency's mail room executed the return receipt and that the order was then lost in the Agency mail system. According to the Union, the first piece of correspondence that it received after it requested resumption of processing of the negotiability petition in this case was the Authority's order granting the Agency an extension of time in which to file its statement of position.
The Agency contends that the Union's reason for not meeting the time limit for filing its response does not rise to the level of extraordinary circumstances and, consequently, the Agency opposes waiver. The Agency argues that the Union's claim of no specific notice of the time limit for filing a response to the Agency's statement of position does not relieve the Union of responsibility for complying with statutory and regulatory provisions governing the filing of its response. Additionally, the Agency asserts that the Union's request for a waiver is flawed in that it does not reflect the Agency's position in the matter as required by section 2429.23(b) of the Authority's Regulations.
B. Analysis and Conclusions (2)
Pursuant to section 2429.23, the Authority may waive the expired time limit that is involved in this case in extraordinary circumstances. In support of its claim that extraordinary circumstances exist in this case, the Union cites its non-receipt of the Authority's order resuming processing of the petition in this case, which it attributes to a failure on the part of the Agency's internal mail system.
Although the Authority's order included a statement of the time limits for filing an Agency statement of position and Union response thereto, the Union was not totally dependent on the order for that information. Rather, the time limits specified were derived from section 7117 of the Statute and part 2424 of the Authority's Regulations. Although the statutory and regulatory provisions do not speak specifically to circumstances such as those involved here in which a case has been placed in abeyance, the time limit for the filing of a union's response to the agency statement of position in those circumstances is easily deduced from those provisions. That is, under the Statute and the regulations, it is clear that the time limit for that filing is triggered by the union's receipt of the agency's statement of position.
Additionally, the Union acknowledges that it received the Authority's order granting an extension of time to the Agency in which to file its statement of position. That order should have alerted the Union to the facts that processing of the negotiability petition had resumed and time limits were running with respect to the parties' filings. The Union should reasonably have expected that the time limit specified in the Statute and regulations was applicable and if it had any doubts could have made inquiry in a timely fashion.
In view of the statutory and regulatory provisions governing the filing of the Union's response, the fact that the Union may not have received specific instruction from the Authority on this point does not constitute an extraordinary circumstance. Cf. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 35 FLRA 929, 929 n.* (1990) (fact that Authority's practice of acknowledging the receipt of exceptions to an arbitrator's award inadvertently was not followed in case did not warrant considering the agency's untimely filed opposition). Moreover, even if non-receipt of the Authority's order could in some situations constitute an extraordinary circumstance, non-receipt caused by a failure within an internal mail system used by the Union is not one of those situations. In this regard, the Authority has previously held that a delay caused by an internal mail system that results in a party's submission to the Authority being untimely does not constitute extraordinary circumstances. See, e.g., International Organization of Masters, Mates and Pilots and Panama Canal Commission, 49 FLRA 1370, 1371 (1994). This applies even in circumstances where the delay caused by an agency mailing system works to the detriment of a union using that system. See, e.g., U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 49 FLRA 95, 95 n.1 (1994).
We deny the Union's request that we waive the expired time limit for filing its response to the Agency's statement of position. Consequently, we will not consider the response to the Agency's statement of position in resolving this case.
The Agency initiated a reorganization of the Concessions Division, Washington Office, National Park Service (Washington Office). Under the reorganization, "policy, program, direction and oversight" functions remained in the Washington Office while "technical" functions moved to the Concession Program Center (CPC) located in Denver. The number of FTEs assigned to the Washington Office was reduced to eight and a number of FTEs previously assigned to that office were reassigned to the CPC in Denver. However, the Agency allowed those incumbents of positions reassigned to Denver who did not want to move to Denver to remain "duty-stationed" in Washington. Petition, Attachment 7, p. 3. That is, some employees could remain physically located in Washington even though their positions were organizationally assigned to the CPC in Denver. Additionally, the reorganization reduced the number of supervisors assigned to the Washington Office by eliminating Branch Chief positions and replacing them with lead, or advisor, positions.
IV. Proposal 1 (3)
The two existing same graded individuals, both occupying senior positions in the office, be assigned to two of the proposed "advisor" positions.
A. Positions of the Parties
The Union contends, in essence, that this proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. More specifically, the Union asserts that this proposal is intended to mitigate the adverse effects of the loss of higher-graded work. The Union claims that the creation of the advisor positions removes all of the policy responsibilities from the remaining employees, leaving them vulnerable to classification downgrade. The Union argues that the two senior employees are especially vulnerable.
The Agency argues that this proposal excessively interferes with management's rights to select under section 7106(a)(2)(C); determine organization under section 7106(a)(1); and determine the personnel by which agency operations will be conducted under section 7106(a)(2)(B). The Agency contends that there has been no attempt to downgrade any unit employees and none is anticipated. Moreover, the Agency asserts that the Union presents no evidence that any employees have lost higher-graded work. The Agency, therefore, maintains that this proposal is not an appropriate arrangement under section 7106(b)(3).
B. Analysis and Conclusions
1. Meaning of the Proposal
According to the Union, this proposal applies to three non-supervisory lead, or advisor, positions that the Agency established to replace branch chief positions. As written and explained by the Union, this proposal requires the Agency to assign two employees who occupied senior positions in the Washington Office to two of the advisor positions.
2. This proposal affects management's right to make selections under section 7106(a)(2)(C).
Under section 7106(a)(2)(C) of the Statute, agencies have discretion to fill positions by selecting candidates from any appropriate source without restriction. See, e.g., American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 616 (1997). It follows that proposals that limit the source from which selections can be made in filling positions affect management's right to select. See, e.g., Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 683 (1994). By requiring that the Agency fill two of the advisor positions by assigning two specified employees to them, this proposal limits the source from which selections can be made in filling those advisor positions and affects management's right to select.
3. The Union does not establish that this proposal constitutes an appropriate arrangement under section 7106(b)(3).
The approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns or are otherwise unrelated to management's exercise of its reserved rights do not constitute arrangements. See, e.g., National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 766 (1991) (Naval Submarine Base New London). The adverse effect need not flow from the management right that a given proposal affects. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 185 (1994) (Member Armendariz concurring in part and dissenting in part).
If the Authority finds that a proposal constitutes an arrangement, it then determines whether it is "appropriate," or whether it is inappropriate because it excessively interferes with the relevant management right(s). See, KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.
In this case the Union is asserting that it is reasonably foreseeable that employees will be adversely affected by the establishment of the advisor positions. Although the Union does not specify the particular management right or rights from which the claimed adverse effect flows, it is reasonable to infer from the Union's arguments that the claimed adverse effect flows from, at a minimum, the right to assign work. In particular, the Union asserts that in establishing the advisor positions the Agency has siphoned higher-graded duties from other positions leaving the occupants of the other positions vulnerable to downgrading.
In its petition, the Union provides no factual support for its claim that employees are adversely affected by the establishment of the advisor positions. The Agency denies that it has attempted or anticipates any such downgrading. In view of the Agency's denial that downgrading may occur as a consequence of the establishment of the advisor positions and in the absence of anything in the record before us to support the Union's claim, the Union fails to establish that it is reasonably foreseeable that bargaining unit employees will be downgraded as a consequence of the establishment of the advisor positions. See Naval Submarine Base New London, 39 FLRA at 766 (no basis in the record on which to conclude that it was reasonably foreseeable that the assignment of the duty of saluting blue-stickered vehicles would adversely affect the safety of employees). Based on the record before the Authority, the Union fails to show that its concern with downgrading is anything more than speculation.
The Union has failed to establish that this proposal addresses adverse effects that are reasonably foreseeable. Consequently, the Union has failed to establish that the proposal constitutes an arrangement. In view of this finding, it is unnecessary to address whether the proposal is "appropriate" within the meaning of section 7106(b)(3). We conclude that Proposal 1 is not within the duty to bargain.(4)
V. Proposal 2
The Concessions Division FTEs be raised to 11 from the proposed 8 to eliminate any physical moves.
A. Positions of the Parties
The Union maintains that this proposal seeks to mitigate the adverse effects of the reorganization on those employees who were organizationally transferred to the Denver CPC but who remain "duty stationed" in Washington. The Union contends that those employees are adversely affected by physical separation from their supervisors and the continuing threat of a physical move. The Union characterizes the transfer as a "paper change." Petition at 2. The Union states that the transferred employees continue to receive direction and supervision from within the Washington Office and that their work flow has not "fundamentally" changed. Id. The Union contends that this proposal requires the Agency to "formally recognize what actually exists." Id.
The Agency asserts that Proposal 2 excessively interferes with its right to determine organization under section 7106(a)(1). In this regard, the Agency asserts that the right to determine organization includes the right to determine where official duty stations of organizational units and positions in those units will be established and maintained.
B. Analysis and Conclusions
1. Meaning of the Proposal
As written and explained by the Union, this proposal would alter the Agency's reorganization plan by increasing the number of FTEs assigned to the Washington Office from eight to eleven. In explaining this proposal, the Union makes reference to the fact that the FTE totals for both the Denver and Washington offices are included in the same FTE ceiling and asserts that "changes between the two have no effect on the ceiling." Petition at 1. From that statement it appears that the Union intends the three additional FTEs for the Washington Office to come from the number that the Agency has assigned to the Denver CPC in its reorganization plan. As the stated purpose of the increase is to prevent physical moves to Denver, it follows that the Union intends the three FTEs to consist of positions occupied by employees who were organizationally transferred to the Denver CPC but who remain "duty stationed" in Washington.
As explained by the Union, this proposal would entail the assignment of those employees to the Washington Office without any change in their functions. From the record, it appears that the transfer of the three positions from Washington to the Denver CPC involved no change in the duties of the occupants of the positions. See Petition, seventh attachment, third page. In view of this and the Union's characterization of the transfer of the employees who remained duty stationed in Washington as merely a "paper change," its description of this proposal as requiring that the Agency "formally recognize what actually exists," indicates that the Union seeks no change in the status quo with respect to the functions that the three perform. Rather, it appears that the Union seeks only to have the three FTEs formally assigned to the Washington Office.
In sum, we construe this proposal as requiring the shift of three FTEs occupied by employees who are currently assigned organizationally to Denver but "duty stationed" in Washington from Denver to the Washington Office with no change in the functions performed by the three FTEs.
2. This proposal affects management's right to determine the organization of the agency under section 7106(a).
The Authority has described the right to determine organization as follows:
Management's right to determine its organization under section 7106(a)(1) encompasses an agency's authority to determine its administrative and functional structure, including the relationship of personnel through lines of control and the distribution of responsibilities for delegated and assigned duties. That is, the right includes the authority to determine how the agency will structure itself to accomplish its mission and functions. This determination includes such matters as where organizationally certain functions shall be established and where the duty stations of the positions providing those functions shall be maintained.
National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 526, 531-32 (1997). (Citations omitted.)
As construed above, this proposal would require the Agency to assign to the Washington Office three FTEs occupied by employees who, under the Agency's reorganization plan, are organizationally assigned to Denver but remain duty stationed in Washington. The assignment would entail no change in the functions that those employees perform.
The assignment of the three positions that are the focus of this proposal to Denver was part of an Agency reorganization that consolidated the technical functions in the Denver CPC. Thus, the decision to assign the three positions to Denver constitutes a decision as to where organizationally the technical function will be established. The proposal to assign those three positions to Washington would preclude the Agency from consolidating that function in the Denver CPC and affects the Agency's right to determine its organization under section 7106(a)(1) of the Statute. See id. (proposal directed at continuing specified functions at specified site affected right to determine organization under section 7106(a)(1)).
We find that Proposal 2 affects the right to determine the organization of the Agency under section 7106(a)(1).
3. The Union fails to establish that this proposal is an appropriate arrangement under section 7106(b)(3).
As discussed above, a proposal must address adverse effects that flow from the exercise of a management right to constitute an appropriate arrangement. Proposals addressing purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights do not constitute arrangements under section 7106(b)(3).
Here, the Union identifies physical separation from a supervisor and the threat of physical relocation as the adverse effects that this proposal addresses. Although the Union does not expressly identify the management right(s) from which these claimed adverse effects flow, its arguments imply that the right or rights involved are those normally exercised during a reorganization, for example, the rights to determine the organization of the agency, assign work, assign employees.
As to the first adverse effect identified by the Union, that is, physical separation from a supervisor, the Union offers no explanation of how employees are adversely affected by such circumstance. In conjunction with stating that the employees continue to receive direction and supervision from within the office and that their actual work flow has not fundamentally changed, the Union asserts only that "this organizational situation has an adverse day to day impact on these employees[.]" Petition at 2. The adverse impact is not apparent to us. Moreover, in today's world of flexiplace, telecommuting, and increased reliance on electronic communications, it cannot be assumed that physical distance from a supervisor, per se, adversely affects employees.
We find that the Union has failed to establish how the first identified effect is adverse and, consequently, has failed to provide a record to support that particular claim. See National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1146 (1991).
The other adverse effect identified by the Union is the "threat" that "physical moves will be required." Petition at 2. The Union does not elaborate on this claim. Thus, the Union does not explain whether it is asserting that the adverse effect lies in the anxiety and uncertainty experienced by employees who suspect that the Agency may require them to move at some point in the future or in the move itself. In either case, the identified adverse effect flows from an Agency requirement that employees move.
The Agency has not exercised its management rights to impose a requirement that employees unwilling to relocate from Washington to Denver do so. Although the Agency acknowledges that it cannot guarantee that it won't eventually require that such employees relocate to Denver, it asserts that it does not contemplate doing so in the foreseeable future. However, as presented in this proposal, the implementation of the arrangement is not contingent on the future exercise of a management right that would result in such a requirement. Under this proposal, the Agency must put the increased number of FTEs assigned to the Washington Office into effect regardless of whether it ever exercises a management right to relocate unwilling employees to Denver. In this circumstance, the proposed arrangement stands independently of, and is unrelated to, the exercise of any management right requiring that employees physically relocate.
This proposal is distinguishable from Provision 1 in West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1009-14 (1990) (West Point). In that case, the Authority found that Provision 1, which required the agency to keep non-teaching duties to a minimum, constituted an arrangement notwithstanding that there was no existing or proposed agency practice to assign non-teaching duties to the extent that employees would be adversely affected. 34 FLRA at 1013. However, unlike the proposal in this case, Provision 1 in West Point had no operative effect unless and until there was an exercise of a management right.
Insofar as the second identified adverse effect--the threat that physical moves will be required--is concerned, the Union fails to establish that the proposed arrangement is related to the exercise of a management right.
We reject the Union's claim that Proposal 2 constitutes an arrangement. In view of this, it is unnecessary to address whether this proposal would be "appropriate" within the meaning of section 7106(b)(3). We conclude that Proposal 2 is not within the duty to bargain.
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1. Section 2429.23(b) of the Authority's Regulations provides:
(b) Except as provided in paragraph (d) of this section, the Authority . . . may waive any expired time limit in this subchapter in extraordinary circumstances. Request for a waiver of time limits shall state the position of the other parties and shall be served on the other parties.
2. Although the Union's request for a waiver does not comply with the regulatory requirement that it state the position of the other party, the Agency has stated its position to the Authority. Consequently, the Union's failure to state the Agency's position, which is a curable defect, has resulted in no prejudice to the Agency and we will consider the request.
3. The wording of the two proposals in the petition varies from that originally presented to the Agency. However, the variation in the wording of the proposals does not affect the negotiability dispute in this case. Moreover, the Agency does not object to the Authority's consideration of, and has directed its arguments to, the proposals as worded in the petition. In these circumstances, we will consider the proposals as worded in the petition. See, e.g., American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1079 n.2 (1990).
4. It is unnecessary to the disposition of this case to determine whether this proposal also affects the rights to determine organization and personnel by which agency operations are conducted as claimed by the Agency. Consequently, we do not address those claims.