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59 FLRA No. 79
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
KANSAS CITY, MISSOURI
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
December 8, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position, to which the Union filed a response. The Agency did not file a reply.
For the reasons that follow, we find that the proposal is outside the duty to bargain. Accordingly, we dismiss the petition for review.
II. Proposal [n2]
BUEs [bargaining unit employees] are allowed to take any additional work assignments home. These assignments can be completed either during the weekend and/or any evening during the week. As compensation they will receive comp time or true time and a half.
The proposal was submitted during negotiations in compliance with a settlement agreement of an unfair labor practice complaint. See Statement of Position (SOP) at 2, Exhibits #1-3. In the settlement agreement, the Agency agreed to bargain over legally negotiable proposals submitted by the Union related to the impact and implementation of certain changes in assignments of work in the Air Carrier Branch (ACE-250). See id., Exhibit #3.
IV. Positions of the Parties
The Agency states that the proposal would require a supervisor to approve an employee's request to take work home whenever the employee provides justification for the request. The Agency also states that management would not have the discretion to deny such requests or to take other action as needed, such as approving compensatory time for work completed at the work site, redistributing the work, or modifying deadlines for the completion of the work.
The Agency contends that the proposal excessively interferes with management's rights to determine budget, assign and direct employees, assign work, and determine the personnel by which Agency operations shall be conducted. See SOP at 7. The Agency asserts that, under the proposal, the "BUEs would be able to accrue comp time/overtime at will[.]" Id. The Agency adds that "management would lose the discretion to direct employees, assign work, and determine who will perform the work." Id. In this connection, the Agency asserts that, under the proposal, employees would decide what work assignments would be completed, when they will be completed, whether they will be completed at work or at home, and how much time will be spent on the work assignments.
In addition, the Agency contends that the proposal is negotiable only at its election under § 7106(b)(1) of the Statute, and that it has elected not to bargain. The Agency also maintains that the proposal is outside the duty to bargain because it is "covered by" the parties' agreement. Id. at 6. The Agency argues that, although the parties' current agreement does not specifically address the issue of employees taking work home, the bargaining history indicates that the issue was raised, and subsequently withdrawn, by the Union. The Agency also argues that as other provisions of the parties' agreement address "the issues of [o]vertime, FLSA, and [c]omp [t]ime, respectively[,]" the Agency similarly is not obligated to bargain over the proposal [ v59 p486 ] because it addresses issues that are covered by the agreement. Id.
Finally, the Agency argues that there is no obligation to negotiate at the local level because the level of exclusive recognition is at the national level and the parties "have tentatively agreed upon this issue during negotiations of a new term agreement." Id.
The Union acknowledges that the assignment of work is a management right and states that the proposal does not interfere with management's right to assign work. See Response at 3, 7 and Attachment #1 at 1. The Union argues that the proposal is negotiable as a procedure under § 7106(b)(2) of the Statute because it "sets forth procedures for when work assignments cannot be accomplished during normal duty hours." Response at 4.
The Union also argues that the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's rights. The Union explains that the proposal addresses situations when work volume is high and bargaining unit employees are unable to complete their assigned work during regular work hours. See Conference Record at 2. The Union states that staffing levels have diminished in an area in which bargaining unit employees are assigned and that the workload has increased. The Union asserts that the proposal would allow employees "to complete their work professionally and with competence, thus maintaining a credible reputation for future advancements" and would increase productivity for the Agency. Response at 6.
The Union further states that the proposal does not concern a § 7106(b)(1) matter. See id. at 4.
V. Meaning of the Proposal
The proposal would permit employees to take additional work assignments home and be compensated for completing those assignments with either compensatory time or "true time and a half." [n3] See Conference Record at 2. The parties appear to dispute the operation of the proposal. The Union explained that when an employee is unable to complete work assignments during the workday, the employee could submit a request to the supervisor to take work home, that the request would contain the employee's justification, and that "management generally will be expected to approve the request if the employee has presented justification . . . ." Id. The Agency stated that the proposal would "require" the supervisor to approve the request whenever an employee "provides what he/she determines as justification for the request." SOP at 3.
The Authority has previously held that where, as here, a proposal is silent with respect to a particular matter, a union's statement clarifying the matter will be adopted if it is otherwise consistent with the wording of the proposal. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association, 51 FLRA 733, 737 (1996) (Laurel Bay). In this case, the proposal does not state that employees would provide justification along with their requests to take work assignments home and does not state whether management must approve all such requests. Nevertheless, as the Union's statement of intent is consistent with the proposal, we interpret the proposal to mean that an employee wishing to take a work assignment home, in order to complete the assignment on a weekend or during the evening, would submit a request to do so and provide justification supporting the request. Upon receipt of a request with justification, management would generally be expected to approve such a request. An employee would be compensated with compensatory time or time and a half for the completion of work assignments at home.
VI. Preliminary Matter
In its petition for review, the Union requested that the Authority hold a hearing in this case. In this connection, the Union stated that employees deal with multiple technical issues involving Federal Aviation Administration policies and "[g]uidance and [c]ertification and [s]urveillance issues." Petition at 6. The Union further stated that "[o]ften the impact of these working conditions [is] hard to articulate in writing when addressing individuals unfamiliar with the specific issues." Id. At the post-petition conference, the Union stated that a hearing would provide a better understanding of the negotiability appeals process and legal arguments. See Conference Record at 3.
Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact." We find that the Union's claim presents no disputed issues of material fact. Consequently, we conclude that a hearing is not necessary to resolve the negotiability of the proposal and we deny the Union's request for a hearing. See, e.g., AFGE, Local 1546, 58 FLRA 368, 369 (2003). [ v59 p487 ]
VII. Analysis and Conclusions
A. Analytical framework for resolving negotiability disputes under § 7106(a) and § 7106(b) of the Statute
In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider whether the proposal affects a management right under § 7106(a).
B. The proposal affects management's right to assign work
The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See Laurel Bay, 51 FLRA at 739. Management's right to assign work includes the right to assign overtime and to determine when the overtime will be performed. AFGE, Local 1302, Council of Prison Locals C-33, 55 FLRA 1078, 1079 (1999).
In this case, the proposal applies when employees are unable to finish their work assignments during the workday and would permit employees to take their work assignments home to complete them during evening hours or on weekends. As such, the proposal would determine when work assignments will occur, including when overtime will be performed, and to whom the duties will be assigned. We find that the proposal affects management's right to assign work.
C. The proposal does not constitute a procedure under § 7106(b)(2)
The Authority has previously held that proposals that restrict management's ability to determine to whom overtime assignments will be made do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See, e.g., AFGE, Local 1827, 58 FLRA 344, 352-53 (2003) (proposal that limited management's discretion to assign overtime to certain employees found not to constitute a procedure). Applying that precedent, which is not challenged by the parties, to the proposal in this case, we find that the proposal does not constitute a procedure under § 7106(b)(2) of the Statute.
D. The proposal does not constitute an appropriate arrangement under § 7106(b)(3)
In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also United States Dep't of the Treasury, Office of the Chief Counsel, IRS 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's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns do not constitute arrangements. See NTEU, 55 FLRA 1174, 1187 (1999).
In addition, the claimed arrangement must be sufficiently "tailored" to compensate those employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1317 (1996). If the proposal is determined to be an arrangement, then the Authority 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. See id.
In this case, the Union claims that the proposal is an arrangement for employees who are adversely affected by the exercise of management's rights. In particular, the Union asserts that, based on an increase in the volume of work and a diminished staff, employees are unable to complete their work assignments during their regular work hours. Assuming that the proposal constitutes an arrangement that is sufficiently tailored, we nonetheless find that the proposal is outside the duty to bargain because it excessively interferes with management's right to assign work.
The Union claims that the proposal would benefit employees by allowing them to complete their work [ v59 p488 ] assignments "in a timely and professional manner[,]" thereby increasing their opportunities for advancement. See Response at 7.
In our view, these asserted benefits do not outweigh the burdens the proposal places on the exercise of management's right to assign work. The proposal would essentially permit employees to determine when and where to perform their work -- that is, during the workday at their assigned duty locations, or at home, during evening hours or on weekends. In addition, the proposal would permit employees to determine when work would be performed on an overtime basis. Although the Agency would retain the right to deny an employee's request to take work home, the proposal would operate to severely restrict the Agency's right to do so. As we have interpreted the proposal, it would require the Agency "generally" to approve employee requests to take work home. The Union explained that, by use of the term "generally," management "will be expected to approve the request if the employee has presented justification . . . ." Conference Record at 2. Management would be able to deny an employee's request only where there is no justification at all or in other limited, unspecified circumstances. On balance, we find that the intrusion on the exercise of management's right to assign work outweighs any benefits to employees.
Accordingly, we conclude that the proposal is outside the duty to bargain because it excessively interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute. See AFGE, Local 3694, 58 FLRA 148, 150 (2002); NAGE, SEIU, AFL-CIO, 40 FLRA 657, 677 (1991). [n4]
The petition for review is dismissed.
Concurring opinion of Chairman Cabaniss:
I write separately to address an additional consideration that is equally significant in finding that this proposal is not within the duty to bargain. While the Union's submission raises a legitimate issue as to whether the proposal is actually meant to be an "arrangement" for employee difficulties in accomplishing work, rather than dealing with any action by the employer, I would conclude that the proposal is not sufficiently tailored such that it is within the Agency's duty to bargain.
In that regard, the Union's submission notes that the proposal would benefit employees who are sick or who cannot get to work for reasons unrelated to any action by the Agency (the Union submission speaks of employees unable to get to work because of some physical disability), and there is nothing in the proposal that would prevent the proposal from being further applied to other adverse circumstances not relating to the underlying Agency actions here. As the proposal is thus also intended to compensate employees suffering adverse effects attributable to something other than the Agency's exercise of its management rights, the proposal is not sufficiently tailored because it is not limited to only those employees who are adversely affected by the Agency's exercise of its rights. See, e.g., AFGE, Local 1164, 54 FLRA 1327, 1349-50 (1998). And, consistent with that decision, I would find no need to address whether the proposed arrangement is "appropriate."
Footnote # 1 for 59 FLRA No. 79 - Authority's Decision
Footnote # 2 for 59 FLRA No. 79 - Authority's Decision
In its petition for review, the Union requested to sever the proposal. However, at the post-petition conference and in its response, the Union withdrew that request. See Post-Petition Conference Record (Conference Record) at 3; Response at 8.
Footnote # 3 for 59 FLRA No. 79 - Authority's Decision
Footnote # 4 for 59 FLRA No. 79 - Authority's Decision
In view of our decision, we have not addressed the parties' remaining arguments, including the Agency's claims that arguably raise a bargaining obligation dispute, such as the assertion that there is no obligation to bargain at the local level. See 5 C.F.R. § 2424.2 (defining "bargaining obligation dispute" as "a disagreement between an exclusive representative and an agency concerning whether, in the specific circumstances involved in a particular case, the parties are obligated to bargain over a proposal that otherwise may be negotiable"). As the proposal here is not otherwise negotiable, it is unnecessary to address those Agency claims and the effect, if any, of the parties' settlement agreement on the parties' bargaining obligations.