American Federation of Government Employees, Local 2755 (Union) and National Aeronautics and Space Administration, Goddard Space Flight Center, Greenbelt, Maryland (Agency)

[ v62 p93 ]

62 FLRA No. 25

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2755
(Union)

and

NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
GODDARD SPACE FLIGHT CENTER
GREENBELT, MARYLAND
(Agency)

0-NG-2911

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUE

May 31, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, 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. The Agency filed a statement of position (SOP), the Union filed a response, and the Agency filed a reply.

      For the reasons that follow, we find that the proposal is outside the duty to bargain.

II.     Proposal and Meaning

      The Agency conducted a reorganization of the Safety Office at its Wallops Flight Facility. The reorganized Safety Office has two branches -- the Range Safety Branch and the Safety and Mission Assurance Branch.

      The Union proposed the following: [n1] 

AFGE proposes an additional two (2) Full-Time Equivalents (FTE's) [n2]  to the Range Safety Branch in order to accommodate additional workload and minimize impact to bargaining unit employees.

      According to the Union, the meaning of the proposal is to provide two additional employees to the Range Safety Branch "as relief for employees adversely affected by the . . . increased workload as a result of the transfer of non-supervisor[y] FTE's to other components of the re-organization." Petition at 4. As the Union's explanation of the proposal's meaning comports with its wording, it is adopted. See NAGE, Local R1-100, 61 FLRA 480 (2006); AFGE, Local 1900, 51 FLRA 133, 138-39 (1995).

III.      Positions of the Parties

A.     Agency

      The Agency argues that the proposal's requirement to add two employees to the Range Safety Branch is contrary to its rights to hire and assign employees under § 7106(a)(2)(A) of the Statute. See SOP at 8 (citing Int'l Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2, 25 FLRA 113, 144-46 (1987) (Int'l Plate Printers)). In addition, the Agency argues that the proposal affects its rights to determine its organization and number of employees pursuant to § 7106(a)(1) of the Statute and its right to assign work pursuant to § 7106(a)(2)(B) of the Statute. The Agency asserts that its right to take actions under § 7106 also includes the "right to decide not to take such actions[.]" SOP at 8 (quoting AFGE, AFL-CIO, Local 12, 18 FLRA 418, 421 (1985)).

      The Agency also disputes various aspects of the Union's claim that the proposal constitutes an appropriate arrangement for adversely affected employees under § 7106(b)(3) of the Statute.

      First, the Agency claims that the Union has not established that the reorganization had an adverse effect on employees. In this regard, the Agency asserts that the two groups of employees that were combined to create the Range Safety Branch had the same number of employees after the reorganization as before. The Agency states that each group had a vacant position prior to the reorganization that the Agency determined did not need to be filled. In support of its claim that the reorganization did not have an adverse effect on employees, the Agency asserts that the amount of overtime [ v62 p94 ] worked by the employees at issue remained relatively constant before and after the reorganization. Further, the Agency claims that the Union has provided no evidence indicating that the workload of these employees will increase in the future.

      Second, the Agency claims that the Union's proposal is not "sufficiently tailored" to compensate employees suffering from the adverse impact it claims. Id. at 9 (quoting AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1319 (1996) (Nat'l Border Patrol Council)). In this regard, the Agency argues that, because the reorganization did not reduce the personnel rosters of the two employee groups at issue, an increase in employees for those groups would not address any adverse effects on employees.

      Third, the Agency argues that the proposal would excessively interfere with its exercise of its management rights and that the Authority has found that a similar proposal was not an appropriate arrangement under § 7106(b)(3) of the Statute. See id. at 10 (citing AFGE, Local 3354, 54 FLRA 807, 813-14 (1998) (proposal that agency fill positions not appropriate arrangement). In this regard, the Agency argues that the harm experienced by employees is speculative and not reasonably foreseeable, while the negative impact on its rights and on effective and efficient government operations is significant. According to the Agency, the implication of the proposal is that the Agency would never be permitted to reduce staffing levels and would have no discretion to allocate personnel resources as appropriate based on budget and workload. The Agency claims that this inflexibility would "hamper [its] ability . . . to perform its work in an efficient and effective manner." Id. at 11 (citing AFGE, Local 1923 v. FLRA, 819 F.2d 306, 308-09 (D.C. Cir. 1987) (AFGE, Local 1923)).

B.     Union

      The Union argues that the proposal would not affect the management rights claimed by the Agency. In this regard, the Union asserts that the proposal would have a "negligible impact on the Agency's discretion to determine staffing" and preserves the Agency's "broad discretion," because the proposal would merely require the Agency to reallocate positions from among the 3000 full-time employees of the Agency. Response at 3-4.

      With respect to whether the proposal is an appropriate arrangement for adversely affected employees under § 7106(b)(3) of the Statute, the Union argues in its petition that the proposal is intended to address adverse impacts caused by the transfer of two FTEs from the Range Safety Branch under the Agency's proposed reorganization. According to the petition, the reorganization and consequent loss of FTEs will cause additional workload for the employees with various adverse effects. See Petition at 5.

      In response to the Agency's claim that there was no reduction in the staffing of the Range Safety Branch in the reorganization and, thus, no adverse effect on employees, the Union claims that the "actual basis" of its proposal is that there be "additional" FTEs in that branch and that the Agency's claim of no reduction is "irrelevant." Response at 3 (emphasis in original). Further, the Union claims that the Agency conceded that the "absence of additional staffing" is an adverse effect because the Agency stated during a presentation explaining the proposed reorganization that the loss of one engineer in the flight safety group and "double duty" of the Range Safety Branch Head were negative aspects of the reorganization. Id. at 4. Additionally, the Union claims that the increased workload of the Ground Safety Group in the Range Safety Branch caused by the reorganization is demonstrated by the following: (1) various documents describing the work performed by that Group, (2) a discussion during a group meeting where "overall workload" was a topic discussed under the subject "things that need improvement," and (3) an e-mail exchange in which the Group was described as "pretty busy." Id at 6. According to the Union, the "high-tension, low-morale environment" of the Range Safety Branch has an adverse effect on "the employee's health, well being, family life and career satisfaction." Id. at 9.

      Further, the Union argues that the proposal would not excessively interfere with the Agency's rights because it would enhance the ability of the Agency to provide mission services and protect the safety of the public and "other protected assets." Id. at 10. In this regard, the Union relies on authority indicating that a proposal that affects management rights is nevertheless negotiable if it does not "significantly hamper the ability of an agency to get its job done[.]" Petition at 6 (quoting AFGE, Local 1923, 819 F.2d at 309).

IV.     Analysis and Conclusions

A.     The Union's proposal affects management rights set out in § 7106(a) of the Statute.

      The Authority has held that an agency's decision whether to fill positions is encompassed within management's rights to "hire" and "assign" employees set out in § 7106(a)(2)(A) of the Statute. AFGE, Local 3354, 54 FLRA at 812; Int'l Plate Printers, 25 FLRA at 144-46. Consequently, a proposal requiring an [ v62 p95 ] agency to fill positions affects those rights. AFGE, Local 3354, 54 FLRA at 812; AFGE, Local 1923, 44 FLRA 1405, 1465-68 (1992). Here, the Union's proposal would require that the Agency hire an additional two employees for the Range Safety Branch.

      The Union asserts that any effect on the Agency's management rights is negligible, compared to the overall size of the Agency and its flexibility in allocating staff. The Union provides no support for concluding that this is relevant to determining whether there is an effect on management rights. In this regard, the above authority indicates that any proposal that requires an Agency to fill positions affects its rights to hire and assign employees. The fact that the number of employees is small relative to the size of the Agency or that the Agency could reallocate employees from another office to the office at issue does not eliminate this effect. As the Authority explained in AFGE, Local 3354, a proposal that requires that an agency fill positions "when the Agency determines that it is operationally inefficient to maintain the number of employees" proposed by the union affects an agency's rights to hire and assign. 54 FLRA at 813. The proposal here would require the Agency to maintain more employees in the Range Safety Branch than it deems efficient.

      As such, we conclude that the proposal affects the Agency's rights to hire and assign employees.

B.     The Union's proposal does not constitute an appropriate arrangement for adversely affected employees pursuant to § 7106(b)(3) of the Statute.

      The approach for determining whether a proposal is within the duty to bargain under § 7106(b)(3) of the Statute is set forth in NAGE, Local R14-87, 21 FLRA 24 (1986). 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 Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). Proposals that are unrelated to management's exercise of its reserved rights do not constitute arrangements. See, e.g., NFFE, Local 2015, 53 FLRA 967, 977-78 (1997) (Proposal 2). The purported arrangement must be sufficiently "tailored" to compensate or benefit employees suffering adverse effects resulting from the exercise of management's rights. See, e.g., NTEU, Chapter 243, 49 FLRA 176, 184 (1994). That is, § 7106(b)(3) brings within the duty to bargain provisions that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. Nat'l Border Patrol Council, 51 FLRA at 1319. 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. NFFE, Local 2015, 53 FLRA at 973.

      In explaining why the proposal constitutes an arrangement for adversely affected employees, the Union makes two inconsistent arguments. In its petition, the Union asserts that the proposal is intended to relieve the workload of employees affected by the "transfer of non-supervisor FTE's to other components[.]" Petition at 4. However, in its response to the Agency's SOP, which claimed that there was no reduction in FTE's in the branch at issue, the Union claims that the "actual basis" of the proposal is to increase the staff of the branch because the Agency conceded that there would be some negative effects of the reorganization and because there has been an increased workload in the Ground Safety Group generally. Response at 3.

      With respect to the Union's initial claim that employees were adversely affected by the transfer of FTEs to other components, the Union does not dispute in its response that the transfer of FTEs had no impact on employees, because those positions were vacant prior to the reorganization. Far from being "irrelevant," as the Union claims, this fact demonstrates that the adverse impact that the Union claimed in its petition did not exist. Id.

      With respect to the Union's later claim