[ v27 p90 ]
27:0090(15)NG
The decision of the Authority follows:
27 FLRA No. 15
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1974, AFL-CIO
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 3415th AIR BASE
GROUP (ATC), LOWRY AIR FORCE
BASE, COLORADO
Agency
Case No. O-NG-1322
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 presents issues as
to the negotiability of two proposals. The proposals were presented in
negotiations over the impact and implementation of an Agency decision to
expand commissary hours to allow Sunday openings. We find that the
proposals are nonnegotiable.
II. Proposal 1
5. When management should have scheduled an employee to work,
as part of the employee's regularly scheduled administrative work
week and did not, the employee will receive premium pay for those
hours that were not part of the employee's administrative work
week at the start of his/her set tour of duty. The tour of duty
will not be changed without notifying the employee at least seven
days in advance.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency argues that this proposal conflicts with a Government-wide
regulation, 5 C.F.R Section 610.121, and is, therefore, nonnegotiable.
/1/ The Union asserts that the proposal would only incorporate in the
contract legal and regulatory requirements relating to changes in tour
of duty. It further argues that the proposal does not excessively
interfere with the Agency's management rights.
B. Analysis and Conclusions
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. In that decision we noted that applicable
law /2/ and regulation /3/ require that employees must have a minimum of
7 days advance notice of a change in work schedule unless the change is
necessary to prevent an agency from being handicapped in the execution
of its functions or to forestall a substantial increase in operational
costs. Because the proposal 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. The present proposal would not allow a change in tour of
duty where less than 7 days notice had been given to employees even when
the two circumstances specified by the governing legal and regulatory
authorities exist. The proposal would, therefore, impermissibly
restrict the Agency's right, under law and regulation, to revise
employee work schedules. For that reason we find that the disputed
portion of the proposal is inconsistent with 5 U.S.C. Section
6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) and (b) and, under section
7117 of the Statute, is outside the duty to bargain.
Because we find that this proposal is nonnegotiable based on its
inconsistency with 5 U.S.C. Section 6101 and 5 C.F.R. Section 610.121 we
do not address the Union's argument that the proposal does not
excessively interfere with the Agency's exercise of its rights under
section 7106. See, for example, National Treasury Employees Union, NTEU
Chapter 202 and Department of the Treasury, Bureau of Government
Financial Operations, 22 FLRA No. 58 (1986) (Proposal 1).
III. Proposal 2
7. The union and management agree that the commissary operates
on a man-hour basis using full-time equivalency positions to
accomplish their mission. When a position for full-time permanent
becomes available through the use of the allotted man-hours
management will notify the union and the part time career
employees already working in the same or similar work will be
placed in the position noncompetitively. This would not apply to
filling vacancies that occur for existing FTP positions.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency argues that this proposal is nonnegotiable becauses it
conflicts with Government-wide regulations -- 5 C.F.R. Section
300.103(a) and Federal Personnel Manual (FPM) Chapter 335, subchapter
1-4, requirement 4, and with the Agency's right under section
7106(a)(2)(C) to make selections from any appropriate source. It also
asserts that this proposal is unrelated to the change in commissary
hours which is the focus of the bargaining.
The Union asserts that the proposal does not relate to filling
positions but, rather, concerns converting part-time employees to
full-time status. Consequently, it contends that the authorities relied
upon by the Agency do not apply.
B. Analysis and Conclusions
1. Procedural Issue
In addition to claims that this proposal conflicts with law and
Government-wide regulation, the Agency has raised a threshold question
of its duty to bargain under the circumstances of this case. This
question should be resolved in other appropriate proceedings. But the
claimed existence of a threshold duty to bargain question does not
preclude us from determining the negotiability of proposals that are
otherwise properly before us. Anerican Federation of Government
Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA No. 89
(1987).
2. The Interpretation of the Proposal
The Union's intended meaning of the proposal is not consistent with
the language of the proposal. The proposal, as written, requires that,
where a full-time position is created, part-time employees performing
the same or similar work will be placed in the position
noncompetitively. The Union's explanation of the proposal, on the other
hand, suggests that what is involved is not filling positions but
converting part-time positions to full-time positions. For purposes of
this decision, we interpret the proposal consistent with its language as
requiring noncompetitive placement of current part-time employees in new
full-time positions created as a result of expanded commissary hours.
Consequently, the legal and regulatory authorities which are applicable
are those which relate to filling positions.
3. The Proposal Interferes with the Right to Select
This proposal is to the same effect as Proposal 3 in American
Federation of Government Employees, AFL-CIO, Local 3186 and Department
of Health and Human Services, Office of Social Security Field
Operations, Philadelphia Region, 23 FLRA No. 30 (1986), in that it would
require selection of part-time employees for specified full-time
positions. In that decision the Authority found that Proposal 3
directly interfered with the agency's right under section 7106(a)(2)(C)
in that it would prevent the agency from making selections from any
appropriate source. Based on the reasons and the decision relied upon
in that case, we conclude that Proposal 2 interferes with the Agency's
management right with respect to making selections in filling positions.
4. There Is No Basis for Concluding That This Proposal Is
an Appropriate Arrangement
Based on the circumstances present in Office of Social Security Field
Operations, Philadelphia Region, the Authority found that Proposal 3
constituted an appropriate arrangement within the meaning of section
7106(b)(3). In that case, the part-time employees involved were former
full-time employees whose hours had been reduced because of agency
funding problems. The circumstances here are markedly different: The
man-hours available to the Agency have been increased as a result of
expanded operating hours at the commissary.
In National Association of Government Employees, Local R-14-87 and
Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority set
forth a test to be applied in determining whether a proposal which
interfered with management's rights was negotiable as an appropriate
arrangement under 7106(b)(3). Among other things the Authority stated:
In making that determination, the Authority will first examine
the record in each case to ascertain as a threshold question
whether a proposal is in fact intended to be an arrangement for
employees adversely affected by management's exercise of its
rights. In order to address this threshold question, the union
should identify the management right or rights claimed to produce
the alleged adverse effects, the effects or foreseeable effects on
employees which flow from the exercise of those rights, and how
those effects are adverse. In other words, a union must
articulate how employees will be detrimentally affected by
management's action and how the matter proposed for bargaining is
intended to address or compensate for the actual or anticipated
adverse effects of the exercise of the management right or rights.
In this case the Union has not articulated, nor does the record
otherwise indicate, how this particular proposal is intended to address
or compensate employees for the actual or anticipated adverse effects of
the exercise of the management right or rights associated with the
Agency's decision to expand operating hours. Consequently, we have no
basis for concluding in the circumstances of this case that this
proposal is an appropriate arrangement under section 7106(b)(3).
In view of this finding, it is unnecessary to address the Agency's
contention that the proposal also conflicts with 5 C.F.R. Section
300.103(a) and FPM Chapter 335.
5. Conclusions
This proposal directly interferes with the Agency's right under
section 7106(a)(2)(C) and there is no basis for concluding that it is an
appropriate arrangement negotiable under section 7106(b)(3). It is,
therefore, nonnegotiable.
IV. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., May 21, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Agency filed a supplemental submission and requested that we
consider it pursuant to section 2424.8 of the Authority's regulations.
The submission is not necessary to the disposition of this case and we
deny the Agency's request that we consider it.
(2) 5 U.S.C Section 6101(a)
(3) 5 C.F.R. Section 610.121