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59 FLRA No. 152
OF FIRE FIGHTERS
DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION EARLE
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
April 15, 2004
Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members
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 relating to work shifts of fire inspectors. The Agency filed a statement of position, to which the Union did not respond.
For the reasons set forth below, we find that the proposal is outside the duty to bargain and we dismiss the petition for review.
That the 3 Fire Inspectors be placed on a fixed schedule of six (6) twenty-four (24) hour shifts in each pay period.
The first would work Monday, Wednesday, Friday, Monday, Wednesday, Friday at the Main Side Area. The second would work Tuesday, Thursday, Saturday, Tuesday, Thursday, Saturday at the Water Front Area.
The third would work Tuesday, Thursday, Saturday, Monday, Wednesday, Friday, at the Main Side Area, and would be available to fill in at the Waterfront Area as required.
Petition for Review, Attachment 3 at 1. [ v59 p833 ]
III. Meaning of the Proposal
The proposal was made in response to the Agency's decision to reduce three fire inspectors' scheduled work hours from alternating 24-hour days (144 hours per pay period) to a fixed schedule, Monday-Friday (with eight 9-hour days and two 24-hour days equaling 120 hours per pay period). The parties agree that the proposal would establish the three fire inspectors' schedules, and would permit the Agency to rotate inspectors from one station to another and to determine which individual inspectors would be assigned which shifts.
IV. Positions of the Parties
The Agency contends that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute because it precludes the Agency from reducing or changing the scheduled work hours of fire inspectors. In this regard, the Agency maintains that the right to determine the duration of work assignments is an aspect of management's right to assign work. See Statement of Position at 3, citing VA, Wash., D.C., 30 FLRA 961 (1988). The Agency also asserts that the proposal affects its right to assign work because it prevents the Agency from assigning work on days other than the specific days and/or hours specified in the proposal. In addition, the Agency contends that the proposal obligates it to assign twenty-four hours of overtime work per fire inspector on weekends and nights when no inspection work is required, thereby significantly increasing Agency costs.
According to the Agency, the proposal does not constitute a procedure under § 7106(b)(2). The Agency also contends that the proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute because the Union has not identified the specific benefits afforded to employees by requiring the Agency to assign the fire inspectors to specific work days, hours and locations. In addition, the Agency states that the intent of the proposal is to interfere with management's right to determine the number of employees assigned to perform work under § 7106(b)(1) of the Statute, and the Agency has elected not to negotiate on this right. Finally, the Agency asserts that the proposal is contrary to 5 C.F.R. § 610.121(b)(2), which requires an agency head to revise an employee's administrative workweek to comport with the hours during which the employee will actually be required to work when the agency head knows in advance that such revision is necessary.
The Union did not file a response to the Agency's statement of position. In its petition for review, the Union asserts that VA, Wash., D.C. does not support the Agency's management rights claim because firefighters' hours in that case were reduced primarily for economic reasons. According to the Union, the only reason given by the Agency for reducing work hours here was the Fire Chief's inability to manage the work force. The Union asserts that the schedule set forth in the proposal addresses this issue by guaranteeing at least one fire inspector on duty at both work sites on a continuing basis. See Petition for Review, Attachment 3 at 1. Further, the Union contends that the proposal removes the "adverse impact" on the fire inspectors of a reduction in salary and retirement benefits due to the reduced hours of the Agency's proposed work schedule. Petition for Review, Attachment 4 at 1. In addition, the Union requests a hearing in order for the Authority "to fully understand [the issue], and make an informed judgment[.]" Id.
V. Preliminary matter
Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact . . . ." 5 C.F.R. § 2424.31. Here, the parties agree that there are no facts in dispute that affect the negotiability of the proposal. See Record of Post-Petition Conference at 2. Therefore, we deny the Union's request for a hearing.
VI. Analysis and Conclusions
A. The proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute.
The Authority has held that management's right to assign work under § 7106(a)(2)(B) of the Statute includes the right to determine when work assignments will be performed. See United States Dep't of Justice, Fed. Bureau of Prisons, Mgmt. and Specialty Training Ctr., Aurora, Colo., 56 FLRA 943, 944 (2000). Because the determination of employees' daily work schedules --employees' daily starting and quitting times -- constitutes a determination of the length of the workday and when during the day assigned work will be performed, it constitutes an exercise of management's right to assign work under § 7106(a)(2)(B). See Nat'l Ass'n of Agric. Employees, Branch 11, 57 FLRA 424, 426 (2001). Similarly, because the determination of employees' basic workweeks constitutes a determination of when during the week assigned work will be performed, the decision as to when employees will begin and end the workweek, for example, Monday through Friday, also constitutes [ v59 p834 ] an exercise of management's right to assign work under § 7106(a)(2)(B). See AFGE, Local 3157, 44 FLRA 1570, 1579 (1992).
The Union contends that VA, Wash., D.C. supports a conclusion that the proposal does not affect the Agency's right to assign work. In particular, the Union asserts that the reason for reducing the employees' work hours in the instant case is different from the reason in VA, Wash., D.C. However, an agency's determination to reduce work hours, regardless of the reason, involves its right to assign work. See VA, Wash., D.C. at 965. Therefore, the Union's reliance on Va, Wash., D.C. is misplaced. There, as here, the decision to reduce work hours constitutes the exercise of the right to assign work.
Accordingly, as the proposal determines the fire inspectors' schedule regarding both the hours of each work shift and the days of the work schedule, we find that it affects management's right to assign work under § 7106(a)(2)(B) of the Statute.
B. The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.
The Union asserts that the proposal removes the "adverse impact" on the fire inspectors of a reduction in salary and retirement benefits due to the reduced hours of the Agency's proposed work schedule. Petition for Review, Attachment 4 at 1. We construe the Union's assertion as an argument that the proposal is intended as an appropriate arrangement under § 7106(b)(3) of the Statute.
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. Id. at 31; 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. The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Nat'l Council of Field Labor Locals, 58 FLRA 616, 617-18 (2003) (citing NAGE, Local R1-100, 39 FLRA 762, 766 (1991)). 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 against the intrusion on the exercise of management's rights. Id.
As the Union alleges, the proposal would benefit the fire inspectors by allowing them to retain their current salary and retirement benefits. However, the proposal also places significant burdens on the Agency. Specifically, the Agency would be required to assign fire inspectors to work at times that the Agency has determined they are not required and to pay each fire inspector twenty-four hours of overtime that the Agency has determined are unnecessary. The Agency would also be prohibited from determining the length of the fire inspectors' workday and when during the day and week assigned work will be performed. In addition, the proposal does not provide any circumstances under which the Agency would be permitted to change the work schedule.
On balance, the burdens on management's right to assign work are not outweighed by the benefits afforded the fire inspectors under the proposal. See, e.g., Prof'l Airways Sys. Specialists, 59 FLRA 485, 487-88 (2003) (Chairman Cabaniss concurring) (proposal's restriction of agency's ability to deny an employee's request to take work home outweighs its benefit of essentially permitting employees to determine when work would be performed on an overtime basis); AFGE, Local 3694, 58 FLRA 148, 150 (2002); AFGE, Local 3807, 54 FLRA 642, 649 (1998) (proposal's requirements of agency to maintain a pilot position, pay an additional pilot, and alter its reorganization plan outweigh its benefit of retaining a single employee's current position). Consequently, we find that the proposal excessively interferes with management's right to assign work and, therefore, does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.
Based on the foregoing, we conclude that the proposal is outside the duty to bargain. [n1]
The petition for review is dismissed.
Footnote # 1 for 59 FLRA No. 152 - Authority's Decision