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26:0600(74)NG
The decision of the Authority follows:
26 FLRA No. 74
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2182, AFL-CIO
Union
and
PROPULSION LABORATORY
U.S. ARMY RESEARCH AND
TECHNOLOGY LABORATORIES
Agency
Case No. 0-NG-1159
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). It concerns the
negotiability of six provisions of a negotiated agreement disapproved by
the Agency head (U.S. Army Materiel Command) under section 7114(c) of
the Statute. /1/
II. Procedural Issue
The Union contends that the negotiated agreement became binding when
it did not receive the Agency's letter of disapproval within the 30-day
period provided in section 7114(c)(3). It states that the letter was
received ten days after the time limit, and therefore the time
requirement was not met. This contention misses the point. It is
"service" and not "receipt" which is the significant event in measuring
the timeliness of an agency's disapproval.
It is well established that an agency head's notice of disapproval
must be served on the union involved within 30 days from the date the
agreement is executed by the parties. It can be either mailed by
certified mail or delivered in person to the union's designated
representative within the 30-day time period. New York State Nurses
Association and Veterans Administration, Bronx Medical Center, 6 FLRA
151, 152 (1981). If the disapproval is mailed, the date it is placed in
the mail constitutes the date of "service."
In this case, the Agency's notice of disapproval was timely served on
the Union. The record indicates that the parties signed the negotiated
agreement on May 29, 1985, and the Agency mailed its notice of
disapproval by certified mail on June 28, 1985.
III. Provision 1
Article 8 - Equal Employment Opportunity Section 8.06 The Union
shall have the right to have an observer present at discrimination
complaint hearings unless the employee who requests the hearing
objects on the grounds of privacy and the complaints examiner
determines that the objection is valid. The right of the Union to
have an observer at the hearing does not in any way impair the
right of the employee to choose his or her own representative.
A. Position of the Parties
The Agency contends that Provision 1 conflicts with Equal Employment
Opportunity Commission (EEOC) regulation 29 C.F.R. section 1613.218(c).
It argues that the provision "obviates the hearing examiner's authority
to determine attendance at the hearing."
The Union contends that it is entitled to attend the hearing because
the hearing is a formal discussion under section 7114(a)(2)(A) of the
Statute.
B. Conclusion and Analysis
For the following reasons, we find that Provision 1 involves a matter
within an agency's discretion which is within the duty to bargain.
Under EEOC regulations, agencies have the responsibility for
establishing regulations governing their processing of complaints of
discrimination. Agencies must ensure that their regulations comply with
certain principles and requirements established by the EEOC. See 29
C.F.R. section 1613.211 through 1613.222. One of these principles is
that agencies control the powers vested in the complaints examiner who
conducts the hearing on a complaint of discrimination.
We have previously addressed the authority of EEOC's procedural
regulations related to agencies' equal employment opportunity
responsibilities. In U.S. Army Corps of Engineers, Kansas City
District, Kansas City, Missouri and National Federation of Federal
Employees, Local 29, 22 FLRA No. 74 slip op. at 2 n.3 (1986), we held
that EEOC procedural regulations serve only as guidelines to agencies.
That is, they involve matters which are within an agency's discretion.
See National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748, 759-60 (1980).
Provision 1 concerns who can attend a discrimination complaint
hearing. In our view, like the issue in Corps of Engineers, Kansas City
District, this is a matter which is covered by an EEOC procedural
regulation and therefore is within the Agency's discretion. The Agency
does not claim in this case that the provision: (1) does not involve
conditions of employment, or (2) is otherwise inconsistent with
applicable law or regulation. We find that no bases for such assertions
are apparent. Consequently, the provision is within the duty to
bargain.
IV. Provision 2 and 3
Provision 2
Article 9 -- Union Officers Section 9.04 The Employer agrees to
make every reasonable effort to avoid assigning elected Union
officials to a tour of duty other than day shift during the terms
of their office. Should such assignment be necessary and for
other than voluntary or emergency reasons, the Employer will
provide the Union with two weeks advanced written notice providing
a full explanation of the necessity for the tour change.
Provision 3
Article 11 -- Stewards Section 11.05 The employer agrees that
no Steward will be transferred to a different tour of duty without
two weeks notification to the Union except in emergency
situations.
A. Positions of the Parties
The Agency contends that the provisions conflict with a
Government-wide regulation, 5 C.F.R. section 610.121(b)(2), concerning
the establishment of work schedules, citing American Federation of
Government Employees, AFL-CIO, Local 2484 and U.S., Army Garrison, Fort
Detrick, Maryland, 17 FLRA 769 (1985). It also contends that these
provisions do not constitute appropriate arrangements or procedures,
citing American Federation of Government Employees, Local 1546 and
Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA
No. 118 (1985).
The Union contends that the provisions do not infringe on the
Agency's right to assign work but only require them to plan ahead.
B. Conclusion and Analysis
We find that Provisions 2 and 3 are outside the duty to bargain.
They limit the Agency's ability to revise work schedules of the
employees involved in a manner inconsistent with the applicable
statutory framework.
The fact that these provisions would apply to employees who are union
representatives has no bearing on our decision. Under the Statute, an
agency has the right to assign work to all employees whether or not they
are union officials. American Federation of Government Employees,
AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service,
District of Columbia, 9 FLRA 1004, 1014 (1982).
In National Association of Government Employees, Local R7-23 and
Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No.
97 (1986), we held that Proposal 1, which required the agency to give 14
days' notice before changing work schedules, except in emergencies, was
outside the duty to bargain. Specifically, we found that applicable
law, 5 U.S.C. section 6101(a)(3)(A) and 5 C.F.R. section 610.121(a),
provides a minimum 7-day notice period except where: (1) the agency
would be seriously handicapped in carrying out its functions, or (2)
costs would be substantially increased. We determined that because
Proposal 1 in that case restricted the Agency's ability to revise work
schedules within the 7-day notice period to emergencies, it was narrower
than the exceptions permitted under the statutory framework and,
therefore, inconsistent with law and regulation.
Provisions 2 and 3 are to the same effect as the proposal in Scott
Air Force Base. The provisions require that the Agency provide Union
officials and stewards two weeks' notice before changing their tours of
duty, except in emergency situations or when the change is voluntary.
The provisions do not incorporate the statutory and regulatory
exceptions to the notice period stated above. Thus, for the reasons
expressed in Scott Air Force Base, we conclude that the provisions are
inconsistent with applicable law and regulation and therefore outside
the duty to bargain.
V. Provision 4
Article 21 -- Safety Section 21.02 The Employer agrees that an
employee will not be required to operate equipment, or perform
duties where he/she is not qualified to, under conditions which
may endanger himself/herself or other employees, or cause damage
to property.
A. Positions of the Parties
The Agency contends that the provision interferes with its right to
assign work under section 7106(a)(2)(B) by precluding it from
determining which position or employee will be assigned certain work,
citing National Labor Relations Board Union, Local 19 and National Labor
Relations Board, Region 19, 2 FLRA 775 (1980). The Agency further
contends that the provision restricts its right to assign work by
imposing an obligation to assign work only to qualified personnel,
citing National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981).
The Union contends that the provision concerns matters contained in
29 C.F.R. section 1960.46, which implements Executive Order 12196,
Occupational Safety and Health Programs for Federal Employees.
B. Conclusion and Analysis
Provision 4 is outside the duty to bargain. It is inconsistent with
the Agency's right to assign work under section 7106(a)(2)(B).
Proposals which limit an agency's right to assign work by restricting
the assignment of work to "qualified" employees are outside the duty to
bargain. International Brotherhood of Electrical Workers, Local 570,
AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14
FLRA 432, 433-34 (1984) and National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588, 594-95 (1981).
Proposals which establish a condition upon management's ability to
exercise its right to assign work eliminate the discretion inherent in
the right to assign work and are also outside the duty to bargain.
Laborers International Union, Local 1276, AFL-CIO and Defense Logistics
Agency, Defense Depot Tracy, Tracy, California, 15 FLRA 49, 50 (1984)
and National Labor Relations Board Union, Local 19 and National Labor
Relations Board, Region 19, 2 FLRA 775, 777 (1980).
Provision 4 is to the same effect as the proposals in Yuma Proving
Ground and Defense Depot Tracy. The provision precludes management from
assigning work, including the operation of equipment: (1) to employees
who are not "qualified" to perform the work, and (2) under conditions
which may endanger employees or cause damage to property. Thus, it
precludes management from assigning work to certain employees and
establishes a condition upon management when assigning work, thereby
eliminating the discretion inherent in the right to assign work. It is
therefore distinguishable from a proposal which does not preclude the
assignment of work but requires management to consider health and safety
factors in assigning work. Proposals which merely require consideration
of health and safety factors have been found to be within the duty to
bargain. See National Federation of Federal Employees, Local 1622 and
Department of the Army, Headquarters, Vint Hill Farms Station,
Warrenton, Virginia, 16 FLRA 578, 581 (1984); American Federation of
Government Employees, AFL-CIO, Local 3511 and Veterans Administration
Hospital, San Antonio, Texas, 12 FLRA 76, 91 (1983); National
Federation of Federal Employees, Local 1167 and Department of the Air
Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
Force Base, Florida, 6 FLRA 574, 586 (1981).
VI. Provision 5
Article 35 -- Hour of Duty Section 35.02 To meet operational
requirements at the Laboratory, it may be necessary to assign
certain personnel to shift work or a tour of duty other than the
normal basic workweek. Employees will be given as much advance
notice as possible of any changes in their regular scheduled hours
of duty. As a minimum, employees will be given at least 3
calendar days advance notice unless there are emergency conditions
or unforeseen circumstances which preclude this. Tours of duty
will not be established or modified for the purpose of avoiding
the payment of holiday or overtime pay or for the convenience of
the employee. (Only the underlined portion of the provision is in
dispute.)
A. Positions of the Parties
Regarding the first disputed sentence, the Agency's position is the
same as stated for Provision 2. Regarding the second disputed sentence,
the Agency contends that it interferes with management's right to assign
work by prohibiting the assignment of work during holidays except under
certain conditions.
The Union contends that management should schedule work in advance
and that the provision would not prevent management from "acting at
all." Union Response at 3.
B. Conclusion and Analysis
Provison 5 is outside the duty to bargain. The disputed sentences
would, under statutory and regulatory authority, impermissibly restrict
the Agency's right to revise employee work schedules.
In Scott Air Force Base, 23 FLRA No. 97, we determined that because
Proposal 1 in that case restricted the Agency's ability to revise work
schedules within the 7-day notice period to emergencies, provided by
applicable law, it was narrower than the exceptions permitted under the
statutory framework and, therefore, inconsistent with law and
regulation.
In International Association of Machinists and Aerospace Workers,
Local Lodge 2424 and Department of the Army, Aberdeen Proving Ground,
Aberdeen Proving Ground, Maryland, 24 FLRA No. 55 (1986), we held that a
proposal was outside the duty to bargain which precluded changing tours
of duty to avoid payment of overtime, night differential, Sunday or
holiday pay, unless two weeks notice was given.
Like Provision 4, the two disputed sentences are to the same effect,
respectively, as the proposals in Scott Air Force Base and Aberdeen
Proving Ground. The disputed sentences would, under statutory and
regulatory authority, impermissibly restrict the Agency's right to
revise employee work schedules.
VII. Provision 6
Article 36 -- Overtime Section 36.02 The Employer recognizes
the desirability of maintaining an equitable balance of overtime
among the maximum of qualified employees of the same trade within
each work area. For purpose of this Article, "qualified" means:
having the trade skills, background knowledge and facility
experience necessary to accomplish the overtime tasks assigned in
a safe and efficient manner as judged in the light of the specific
facts of the work situation.
A. Positions of the Parties
The Agency contends that the second sentence of the provision
interferes with management's right to assign employees and to assign
work. It argues that the provision interferes with its right: (1) to
make qualification determinations when assigning employees by limiting
management's ability to establish other qualifications than those
enumerated in the provision, and (2) to assign work to employees having
qualifications other than those enumerated in the provision. In support
of its position, the Agency cites American Federation of Government
Employees and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 2 FLRA 604 (1980).
The Union contends that the provision is an agreement with management
on the definition of "qualified" and that management would still retain
the right to determine who is qualified.
B. Conclusion and Analysis
Provisions 6 is outside the duty to bargain. The provision would
limit the Agency's discretion, inherent in its right to assign
employees, to determine the qualifications and skills necessary to do
assigned work.
In American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604,
613 (1980), enforced sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert.
denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), the Authority stated
that the right to assign employees, pursuant to section 7106(a)(2)(A),
includes not only the right to decide to assign an employee to a
position but also the discretion to determine the personnel requirements
of the work of the position. That is, the right includes the discretion
to determine the qualifications and skills needed to do the work as well
as such job-related individual characteristics as judgment and
reliability.
Provision 6 expressly limits the Agency's discretion to determine the
qualifications and skills necessary to accomplish assigned overtime
tasks. Thus, it directly interferes with the Agency's exercise of its
right to assign employees.
VIII. Order
The Agency must bargain, upon request or as otherwise agreed to by
the parties, over Provision 1. /2/ Provision 2 through 6 are dismissed.
Issued, Washington, D.C., April 20, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) We will not consider in this decision nine additional provisions
contained in the petition for review. The Agency withdrew its
allegations of nonnegotiability on four provisions rendering the
disputes irrelevant: Sections 22.04 (Employee Training and
Development), 23.03 (Job Classification), 35.06 (Hours of Duty), and
38.02 (25 Percent Premium Pay). The Union withdrew its appeal of five
other provisions: Sections 5.06 (Rights and Obligations of Employees),
14.02 (Temporary Assignments), 28.03 (Career Promotions), 36.05
(Overtime), and 37.01 (Tools).
(2) In finding Provision 1 to be within the duty to bargain, the
Authority makes no judgment as to its merits.