NTEU Chapter 153 and U.S. Customs Service (Authority decision, May 30, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority’s order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union offered seven proposals connected with a workplace change. The Authority found Proposals 2, 3, 5, and 6 negotiable, including transportation between work sites during the duty day. It rejected Proposals 1, 4, and 7, including a guaranteed period to wash and change uniforms that would bar assignment of work. It ordered bargaining on the four lawful proposals.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Bargaining ordered on Proposals 2, 3, 5, and 6; three dismissed.
• Key point: Transportation between work sites can be a working condition, but guaranteed personal time can restrict work assignments.

Full text (FLRA public release)

[ v21 p1116 ]

21:1116(128)NG

The decision of the Authority follows:

21 FLRA No. 128

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 153
Union

and

DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE
Agency

Case No. 0-NG-814

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of seven Union Proposals.

II. Procedural Issues

The Agency contends that the Union's petition for review should be dismissed because the Union failed to furnish an explicit statement of the proposals' meaning as required by section 2424.4(a)(2) of the Authority's Rules and Regulations and because the Union failed to serve a copy of its petition on the Agency head as required by section 2424.4(b) of the Rules. However, the Union provided a satisfactory statement of the meaning attributed to the disputed proposals in its completion of the appeal. In addition, while the initial petition was served on the Agency official who alleged that the proposals were nonnegotiable, the completion of the appeal was served on the Agency head's designee. Thus, the Union's petition for review is properly before the Authority.

III. Background

It appears from the record that the disputed proposals in this case respond to the Agency's announced plan to establish a new tour of duty for its employees at several locations within the Baltimore District. The current tour of duty extends between 8:00 a.m. and 5:00 p.m. The new tour, beginning at 11:00 a.m. and ending at 8:00 p.m., was to be established, as explained by the Agency, to service flights arriving at Baltimore-Washington International Airport in the late afternoon and early evening with the result being that such service could be provided without personnel receiving overtime pay, as had been the prior practice.

IV. Duty to Bargain

The Agency did not contest the negotiability of the proposals in this case but only contended that it had no duty to bargain on them. Specifically, the Agency argues that it has no duty to bargain on Proposals 1, 3, 4, 5 and 6 essentially because the matters sought to be bargained are covered by provisions pertaining to shift changes in an expired national agreement between the parties which provisions must be maintained pending renegotiation. The Agency also contends it has no duty to bargain on Proposal 2 because the subject matter sought to be bargained is not related to the Agency's decision to create a new tour of duty. Finally, the Agency argues that because Proposal 7 addresses matters which were not substantially changed by the decision to create a new tour of duty, it has no obligation to bargain on such matters.

The Authority will decide only the negotiability issues presented under section 7105(a)(2)(D) and (E) of the Statute. To the extent there are factual issues in dispute between the parties in the circumstances of a case, such issues should be resolved in other appropriate proceedings. American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). Thus the Agency's position on these proposals cannot be sustained.

V. Union Proposals 1 and 4

Proposal 1

No change, the Customs Service has failed to support any need to establish the new tour of duty. In addition, the change is an abuse of discretion, mismanagement and a gross waste of funds. Furthermore, the change has the effect of seriously impacting upon the Baltimore area economy.

Proposal 4

The Customs Service agrees that the established tour of duty shall be 11:00 a.m. to 7:00 p.m.

A. Position of the Union

According to the Union, at the time the new tour of duty was announced, there existed no regularly scheduled work at the airport to warrant the assigning of personnel after 5:00 p.m. The Union asserts that flight records indicate the absence of any work on at least two days each week after 5:00 p.m. for employees on the new tour of duty. As a consequence, the Union contends Customs House brokers and importers would be without sufficient Agency employees between 8:00 a.m. and 11:00 a.m. to permit release of their imported cargoes.

As to Proposal 4, the Union asserts that such proposal is consistent with other established tours of duty within the region of the Agency.

B. Analysis

Although not expressly addressed by either party, the issue with respect to Union Proposals 1 and 4 is whether, under the Statute, the Union may seek by negotiation to nullify management's decision to establish the new tour of duty. It is well established that the decision to establish a shift or tour of duty involves the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" within the meaning of section 7106(b)(1) of the Statute and, thus, is negotiable only at the election of an agency. See, for example, Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984) and U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116, 118 (1982).

Because Proposals 1 and 4 effectively nullify management's decision to establish a new tour of duty, they also fall within the compass of section 7106(b)(1) of the Statute.

This view is not altered by the Union's argument that the Agency's new tour of duty is unnecessary or that Proposal 2 is consistent with tours of duty which exist elsewhere in the Agency. Such arguments concern only the desirability of the proposals and not whether the proposals are within the duty to bargain under the Statute.

C. Conclusion

The Authority finds, therefore, based on the reasoning and cases cited in Lowry Air Force Base and in U.S. Customs Service, Region V, that Union Proposals 1 and 4 are not within the Agency's duty to bargain.

VI. Union Proposal 2

The initial staffing at the various Baltimore District facilities will be made utilizing volunteers among qualified employees.

A. Position of the Union

The Union asserts that the proposal establishes a procedure for the initial staffing of the new tour of duty.

B. Analysis

Based on the record, the new tour of duty was intended to be implemented at some, but not all, of the Agency's work stations. Since the proposal has the objective, as explained by the Union, of accomplishing the staffing of the new tour with volunteers, it is to the same effect as the proposal found negotiable in American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 15 FLRA 545 (1984). The proposal in that case required that positions in a particular organizational element first be filled by volunteers qualified for the positions. Noting that the proposal in that case left management with the discretion to determine the qualifications required in filling the positions and to decide upon the occupational types required to perform the work, the Authority concluded that the proposal constituted a negotiable procedure, within the meaning of section 7106(b)(2) of the Statute.

C. Conclusion

Accordingly, based on the reasons and case cited in Social Security Administration, the Authority finds that Union Proposal 2 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

VII. Union Proposal 3

Every effort shall be made to insure uniformity in assignment of personnel to inspectional activities and tours of duty.

A. Position of the Union

The Union asserts that the intent of this proposal is to assure that shift assignments among qualified employees will be made in a uniform manner. Further, according to the Union, the proposal is consistent with Agency regulations.

B. Analysis

Based on the express language of the proposal itself, and the Union's explanation thereof, it is determined that Union Proposal 3 is to the same effect as Union Provision 1 found negotiable in National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1982). Provision 1 in that case required that certain details to positions affording qualifying experience or to those of a higher grade "be rotated among qualified employees to the fullest extent feasible." The Authority noted that the cited provision did "not in any way limit management's discretion to establish the particular qualifications and skills needed to perform the work . . . or limit management's judgment in determining whether a particular employee meets those qualifications
. . . ." The Authority concluded that, as the provision "established a general, nonquantitative standard by which the Agency's exercise of its reserved authority to assign employees could be evaluated in a subsequent grievance," it did not interfere with management's right to assign employees, under section 7106(a)(2)(A).

C. Conclusion

Because Union Proposal 3 in this case likewise establishes a general nonquantitative standard, specifically "uniformity," in making assignments to new shifts, it is, based on the reasons and cases cited in Vint Hill Farms Station, within the duty to bargain.

VIII. Union Proposal 5

In the alternative, the established tour of duty shall be from 11:00 a.m. to 8:00 p.m. with a lunch break between the hours of 3:00 p.m. to 5:00 p.m.

A. Position of the Union

The Union asserts that, "consistent with workload requirements," under the proposal employees will not be scheduled to work during lunch periods unless otherwise compensated. The Union also states that the proposal is not intended to abridge management's section 7106(a) rights under the Statute.

B. Analysis

It appears from the record that the Agency has misinterpreted the proposal. That is, this proposal has nothing to do with the starting and ending times of a shift. Rather, the proposal is consistent with the Agency's decision to establish an 11:00 a.m. to 8:00 p.m. shift and only sets out the time frame within that shift when employees' unpaid half-hour lunch breaks will be taken.

The Authority has previously determined that the time at which breaks and lunch may be observed within the workday (and not the length of the breaks, lunch or workday themselves) is a matter within an agency's duty to bargain. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 19 FLRA No. 123 (1985).

C. Conclusion

Based on the reasoning and cases cited in Social Security Administration, Baltimore, Union Proposal 5 is within the duty to bargain.

IX. Union Proposal 6

Any employee subsequently assigned from his/her duty station to the BWIA (Baltimore-Washington International Airport shall be provided with a government vehicle.

A. Position of the Union

The Union states that the national agreement provides that employees are responsible for transportation to their regular duty stations, but does not concern transport to subsequent work sites. Consequently, the Union seeks to have furnished government vehicles for travel to subsequent assignments. The Union asserts that the Agency has vehicles available for such purposes.

B. Analysis

In American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982), the Authority decided that Proposal 1, requiring the transportation by shuttle bus of employees to and from research facilities in connection with the performance of their duties, was within the duty to bargain. In so deciding, the Authority noted that the proposed transportation was unrelated to the performance of the agency's work and therefore did not concern the technology, methods or means of performing such work within the meaning of section 7106(b)(1) of the Statute. Rather, the Authority found that the proposal concerned a matter "which principally affects working conditions of employees who would be adversely impacted by relocation; such transportation would be only incidental to the performance of the Agency's work." In like manner, the instant proposal is concerned only with furnishing transportation for employees who are required to travel from one work site to another during their established tours of duty.

C. Conclusion

Hence, based on Board of Immigration Appeals, and the reasons and cases cited therein, Union Proposal 6, concerning the transportation of employees from one work site to another, is also within the duty to bargain.

X. Union Proposal 7

All employees affected by this change and agreement shall be afforded a reasonable amount of personal time for washing up and changing uniforms.

A. Position of the Union

The Union contends that this proposal will preserve the professional image of the Agency because employees' appearance will be enhanced when dealing with passengers at the airport.

B. Analysis

Proposal 7 expressly would require the Agency to give employees time during their hours of duty to clean up and change uniforms prior to starting work at the airport. This proposal is to the same effect as Union Proposal 1 found nonnegotiable in American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 19 FLRA No. 120 (1985). Proposal 1 in that case sought to provide employees with 15 minutes prior to the end of their shift to be used for personal hygiene and changing clothing. The Authority found that Proposal 1 interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute because it would preclude the assignment of other types of work during the specified period.

C. Conclusion

Based on reasons and cases cited in Veterans Administration Medical Center, Union Proposal 7 violates the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain.

XI. Order

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as it relates to Union Proposals 1, 4, and 7 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on Union Proposals 2, 3, 5 and 6. /*/

Issued, Washington, D.C., May 30, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.