[ v29 p990 ]
29:0990(73)NG
The decision of the Authority follows:
29 FLRA NO. 73
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF PRISON
LOCALS, LOCAL 1661
Union
and
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
DANBURY, CONNECTICUT
Agency
Case No. O-NG-1331
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 33 proposals. 1
II. Background
In early 1986, the Agency and the Union entered into negotiations for a supplemental agreement pursuant to the provisions of their master collective bargaining agreement. The Union submitted a proposed supplemental agreement. On July 22, 1986, in response to the Union's request, the Agency's Chief Negotiator at the level of local bargaining provided the Union in writing with a list of the parts of the Union's proposed supplemental agreement that management considered nonnegotiable. The Union did not file a petition for a review of that position with the Authority.
Thereafter, the Union submitted another proposed supplemental agreement and requested the Agency to provide it with a list of the parts of this proposed supplemental agreement that management considered nonnegotiable. The Agency supplied such a list by hand-delivery to the union on September 17, 1986. With certain exceptions discussed below, the negotiability appeal before us was timely filed with the Authority within 15 days of that date.
III. Procedural Issues
The Agency agrees that, of the 33 disputed proposals, six are properly before the Authority for consideration: Proposals 13, 28, 33, 38, 41 and 43. However, for the reasons which follow, the Agency contends that the Authority has no jurisdiction to decide the other proposals in this case.
A. Untimeliness
The Agency argues that the petition for review as to 12 of the proposals (identified below) is untimely because those proposals are substantially identical to proposals alleged to be nonnegotiable by the Agency in its memorandum of July 22, which allegation was not appealed to the Authority. 2 The Union argues that the later proposals were not exactly the same, and that in any event it can demand bargaining at any time on subject matters within the duty to bargain.
The proposals in question, as numbered by the parties, are as follows:
Sept. 17th Allegation July 22nd Allegation
Proposal 8 Proposal 10
Proposal 15 Proposal 16
Proposal 16 Proposal 19
Proposal 17 Proposal 20
Proposal 25 Proposal 22
(Sept. 17th) (July 22nd)
Proposal 31 Proposal 24
Proposal 32 Proposal 25
Proposal 34 Proposal 27
Proposal 35 Proposal 29
Proposal 36 Proposal 30
Proposal 37 Proposal 31
Proposal 42 Proposal 36
For the text of the proposals in the September 17, 1986 declaration, see Appendix B; for the text of those in the July 22, 1986 declaration, see Appendix C.
We agree with the Agency that the 12 proposals are substantially identical to proposals previously alleged to be nonnegotiable by the Agency on July 22, and that they are not properly before the Authority for consideration. Proposals 15 and 17 of the September proposals contain minor modifications which in our view do not change the substance of the corresponding July proposals. The remainder of the September proposals are identical or virtually identical to their corresponding July proposals. Consequently, we find that the Union's petition in essence seeks review of the Agency's July 22, 1986 allegation as to these 12 proposals. Therefore, the petition for review filed in September as to those proposals was filed more than 15 days from the date of that allegation and is untimely under the time limits set forth in section 2424.3 of our Regulations. See American Federation of Government Employees, AFL - CIO, Local 1786 and U.S. Marine Corps, Marine Corps Development and Education Command, Quantico, Virginia, 26 FLRA No. 21 (1987) and the cases cited in that decision. Accordingly, we will dismiss the petition for review as to those proposals.
B. Disputes Concerning Only Contractual Issues
As to Proposals 2, 5, 7, 9, 14, and 39, the Agency argues only that their subject matter is covered by the parties' Master Agreement, and therefore that the proposals are not properly before the Authority. The Agency does not argue that those proposals are inconsistent with law, rule or regulation.
In its response to the Agency's statement of position, the Union concedes that proposals which involve only issues as to a conflict with the parties' Master Agreement are matters for resolution by an arbitrator. See Union Response at 15. Since the Agency does not argue that these proposals are inconsistent with law, rule or regulation we will not consider these proposals in this proceeding. Rather, we will dismiss the Union's petition for review as to those proposals, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. See American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).
C. Disputes Concerning Both Contractual and Statutory issues
The Agency's allegations regarding Proposals 4, 18, 19, 21, 26, 29, and 30 present issues as to the proposals' alleged inconsistency with law, rule or regulation as well as issues as to alleged conflicts with the parties' Master Agreement. The Agency argues that the Authority should not resolve the statutory issues, but should defer to the arbitration of the contract dispute. The Agency contends that Article 9, Section d, of the parties' Master Agreement provides that disputes concerning whether a proposal conflicts with the parties' Master Agreement and with law, rule or regulation must first be submitted to arbitration. The Union argues that where proposals present mixed contractual and statutory negotiability questions, the Authority must resolve the statutory issues and may not defer to arbitration.
Under Authority precedent, where the conditions for review of negotiability issues have been met, a union is entitled to a decision by the Authority as to whether a proposal is within the duty to bargain under the Statute, despite the existence of additional issues in the case such as an alleged conflict between a proposal and a controlling agreement. See Department of Labor, 26 FLRA No. 89 and the cases cited in that decision. To the extent that there are additional issues regarding the duty to bargain in the specific circumstances of this case, these issues should be resolved in other appropriate proceedings.
D. Proposal Concerning Drug Testing
Finally, as to Proposal 43 concerning drug testing, we have requested the parties in this case and other cases involving drug testing proposals to take certain actions to respond to legal and regulatory developments in this area. Accordingly, we will sever Proposal 43 from this case and issue our decision as to that proposal separately. We will not consider it in this decision.
We will now resolve the negotiability of those proposals which are properly before us.
IV. Proposal 4
Article E, Paragraph 1, Second and Third Sentences The employer Will grant the requested days off or shift preference request based on seniority for three (3) quarters of the year. Those employees not submitting a request by the posted cut off date and those who are currently in their fourth quarter, will be considered as having no preference.
A. Positions of the Parties
The Agency contends that Proposal 4 would violate its right under section 7106(b)(1) of the Statute to determine the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty by affecting the availability of senior employees for night shifts and vacation periods. Further, the Agency argues that to the extent that the use of seniority would affect the availability of senior officers for assignment to certain shifts or vacation periods, the provision interferes with management's right under section 7106(a)(2)(A) and (B) to assign employees to positions and to assign work. The Agency also contends that the inability to properly staff posts affects management's ability to determine its internal security practices under section 7106(a)(1).
The Union states that the proposal sets seniority as the criterion for settling conflicts in employees' selection of days off. The Union states that "(t)he (proposal) subsumes within it the fact that the employer has already determined which employees were qualified for the duties and assigned them to the various posts." Union Response at 24. The Union further states that the proposal deals only with the assignment of days off and has nothing to do with assignments to particular posts. The Union concedes that where a special skill, personality trait, or certain higher level of the same skill is needed, only those employees having those "requisite skills and abilities" would be considered qualified. Union Response at 24. The Union also states that to the extent that the proposal may interfere with management's rights, as alleged by the Agency, the proposal is an appropriate arrangement pursuant to section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
The Agency's claim that the proposal affects its right to determine the numbers, types, and grades of the employees assigned under section 7106(b)(1) and its rights to assign employees and assign work under section 7106(a)(2)(A) and (B) is based on a misinterpretation of the proposal. By its wording and stated intent, the proposal is not concerned with assigning employees but with determining the shifts on which employees will be performing their assigned duties and the specific days employees will have off from work. The Union acknowledges that the Agency is to determine what types and grades of employees are needed for each assignment or post. Union Response at 24-25. While the Agency argues that the facility would be staffed only with junior employees during favorite vacation periods, the Union states that the Agency need only determine the minimum number of senior employees needed for a given shift or post, and then arrange leave schedules around that requirement. Construed in this manner, the proposal is merely concerned with when the employees will perform those duties already assigned to their positions and does not infringe on management's rights.
Proposal 4 also provides that conflicts in shift preference or preference for days off will be resolved by seniority. Section 7106(b)(1) of the Statute states that the numbers, types, and grades of employees assigned to a tour of duty are negotiable only at the election of the agency. Where a disputed proposal does not, on its face, relate to numbers, types, and grades, or where an agency is not able to demonstrate that a direct or integral relationship exists between a proposal and numbers, types, and grades, the proposal will be found to be within the duty to bargain. See American Federation of Government Employees, Log 1 2094L AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 8), petition for review filed on other grounds sub nom. American Federation of Government Employees, Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986). This proposal does not determine the numbers of employees to be assigned to any shift. Compare, for example, National Association of Government Inspectors and Quality Assurance Personnel, Unit #2 and Naval Air Engineering Center, Lakehurst, New Jersey, 8 FLRA 144, 146 (1982) (Proposal IV) (the proposal would have maintained 2-person crews while employees were in a travel duty status). Likewise, the proposal does not address the types or grades of employees required for a shift. compare, for example, American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice. Immigration and Naturalization Service, 8 FLRA 347, 379 (1982) (Proposal 15), rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (the proposal required that a journeyman or a supervisory officer be present on tours of duty where Immigration Inspectors, Investigators, and Deportation Officer Trainees ordinarily worked alone). That is, this proposal does not affect management's decision as to the numbers, types, and grades of employees assigned to shifts and weekly tours of duty.
Management also retains the right under section 7106(a)(2)(A) to assign employees to positions and under section 7106(a)(2)(B) to assign work. This proposal uses seniority to resolve shift preference requests during 3 quarters of the year. The duties assigned to each position and the assignment of employees to positions are not affected by the proposal, which is only concerned with the shift on which individual employees will perform the duties previously assigned to their positions. Accordingly, the proposal is a negotiable procedure which does not interfere with the Agency's rights. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 10, first sentence).
The Agency's reliance on U.S. Customs Service, Laredo, Texas and Chapter 145, National Treasury Employees Union, 17 FLRA 68 (1985) is misplaced in this situation. In that case, two female customs agents wished to exchange shifts with two male employees. With the two female employees gone, there would have been no female agent available for searching female suspects. In that case, the Authority found that although each agent possessed the same qualifications, the female agents were necessary at their assigned shift to carry out searches which the male agents could not perform. The Agency, in this case, makes no such similar argument.
In this case the Agency has not alleged or shown that there are distinctions between employees of the same type and grade which affect the assignment of those employees to a particular shift or a specific weekly tour of duty. This case is therefore distinguishable from cases in which there are differences between employees of the same type and grade due to special training and expertise which prevent their ready exchange of shift assignment or of days off. See, for example, Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987); and Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987).
The union clearly acknowledges that the Agency is to determine that the employees are qualified for the duties, and that where a special skill or higher level of the same skill is needed, only those employees having those requisite skills and abilities would be considered qualified. Thus, the Agency retains total discretion to determine the staff necessary to carry out its mission. See American Federation of Government Employees, AFL - CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 292, 295 (1981) (Provision I).
Finally, the Agency alleges that Proposal 4 interferes with its right to determine its internal security practices. However, the Agency has presented no evidence to demonstrate any security concern which would be affected by the proposal. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g 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 (1981). A party failing to meet this burden acts at its peril.
Consequently, we find that Proposal 4 is within the duty to bargain. Because of this determination, the Union's appropriate arrangement argument need not be addressed.
V. Proposal 13
Article N. Paragraph 4, Second Sentence
The supervisor(s) will not be on the same roster as the employees.
A. Positions of the Parties
The Agency contends that Proposal 13 is directly and integrally related to the numbers and grades of employees and positions assigned to a subdivision, work project, or tour of duty on any given day, in violation of section 7106(b)(1). The Agency also argues that the proposal would effectively interfere with management's ability to assign employees and to assign work pursuant to section 7106(a)(2)(A) and (B). Finally, the Agency contends that matters regarding supervisors are outside the duty to bargain.
The Union states that the intent of this proposal is to prevent competition between supervisors and employees for annual leave plans. The union indicates that separate rosters would prevent "supervisors from 'bumping' employees off of their leave preference dates." Union Response at 38. The Union asserts that the proposal does not deal with assignment of work or assignment of employees. Further, the Union states that the proposal does not require the employer to grant leave to any particular employee or supervisor. The Union argues that the Authority has held that the method of granting, leave and selection for leave are mandatory subjects of bargaining.
B. Analysis and Conclusions
In American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. FLRA, No. 86-1447 (D.C. Cir. August 11, 1986), the Authority held that it would determine the negotiability of proposals affecting conditions of employment of nonunit as well as unit employees by weighing the right of the union to negotiate over those conditions of employment against the right of the agency to set the conditions of employment of nonunit employees. The Authority held that, if it is determined that the impact of the proposals would have a direct effect on and would be intrinsically related to the working conditions of nonunit employees, management is not required to bargain. The Authority held that on the other hand, if it is deter-mined that the impact of the proposals would have only a limited or indirect effect on the interests of employees outside the bargaining unit, such proposals are within the duty to bargain. Id., slip op. at 5.
Subsequently, in American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 25 FLRA No. 82 (1987), a majority of the Authority (Member Frazier dissenting) held that, even where it is determined that the impact of proposals would have a direct effect on and would be intrinsically related to the working conditions of nonunit employees, the proposals may still be within the duty to bargain if the interests of the nonunit employees in those working conditions are not vital. In that case, it was held that although the proposals were subject to an interpretation under which they would have directly determined the location of office space occupied by nonunit employees, the proposals were not so intrinsically related to the working conditions of the nonunit employees so as to make them nonnegotiable. It was further noted that the interests of the nonunit employees involved (regarding the location of office space) were not vital, as contrasted with the vital interests of the nonunit employees involved in office of Personnel Management (whether and in what position an employee would be retained in the Federal service). Compare Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA No. 54 (1987), in which the Authority found that an office space proposal in the circumstances of that case would not directly determine a condition of employment for nonunit employees, although the proposal was found nonnegotiable because, unlike Department of Labor, the proposal interfered with the agency's right under section 7106 (b) (1) to determine the methods and means of performing work.
We do not reach the issues addressed in the cases cited above. We find, based on the record in this case, that the effect of Proposal 13 on the working conditions of nonunit employees is not sufficiently clear for us to determine the proposal's negotiability. In particular, we are unable to determine whether the proposal would make any difference at all in the conditions under which supervisors' leave requests are made or granted. Because the Union has not met its burden of creating a record containing information concerning this proposal upon which we can make a negotiability determination, the Union's petition for review as to Proposal 13 must be dismissed. See American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987) (Proposal 5). In view of this finding, the other contentions raised by the Agency need not be addressed.
VI. Proposal 18
Article T
Parkas will be issued to employee(s) assigned to custodial and CMS for the duration of the winter.
A. Positions of the Parties
The Agency contends that Proposal 18 interferes with management's right under section 7106(b)(1) of the Statute to determine the technology, methods, and means of performing the Agency's work. The Agency also alleges that the proposal violates the parties' Master Agreement.
The Union asserts that the proposal provides appropriate health and safety equipment for employees exposed to health hazards from the cold. The Union also asserts that the proposal does not violate management's rights and is a mandatory subject of bargaining.
B. Analysis and Conclusions
In American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13 (1986), the Authority held that proposals which sought to assure that employee uniforms are suitable for the conditions in which employees work did not involve the technology, methods, and means of performing the Agency's work. The proposals in that case generally described the type of uniforms to be provided employees during particular seasons of the year and specified the articles of clothing to be provided for wear during inclement weather. The Authority found that the proposals did not concern an instrumentality, including an agent, tool, device, measure, plan or policy, used by the Agency for the accomplishing or the furthering of the performance of its work. See id., slip op. at 6 (Proposals B and C).
For similar reasons we find that Proposal 18, like Proposals B and C in VA Medical Center, Augusta, Georgia does not directly inter ere with management's right to determine the technology, methods, and means of performing the Agency's work. See American Federation of Government Employees, AFL - Cio, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 25 FLRA No. 85 (1987). Proposal 18 merely provides that the Agency shall supply a specific type of clothing (parkas) for wear during inclement weather. There is no evidence that the wearing of parkas concerns the instrumentalities, agents, tools, devices, measures, plans, or policies used by the Agency in the accomplishment or furtherance of its work.
Moreover, there is no evidence or allegation that Proposal 18 interferes with any mission-related purpose associated with the Agency's decision to provide special clothing for wear during the winter. The Authority has consistently held that a proposal does not violate management's rights under section 7106 (b)(1) to determine the methods and means of performing the agency's work if it does not interfere with the mission-related purpose for which the Agency established the method or means. See, for example, Naval Air Station, Oceana, Virginia, 25 FLRA No. 85. The Agency has not demonstrated that Proposal 18 is inconsistent with its rights under section 7106(b)(1) of the Statute. The proposal, therefore, is within the duty to bargain.
We note that the Agency has not supported in the record its assertion that Proposal 18 affects the Agency's security. Its concern that the parkas will reduce employees' field of vision is not sufficient to render the proposal nonnegotiable because it interferes with internal security practices. The Agency has discretion, under the proposal, to choose the type of parkas to be provided. Therefore, the Agency could select a parka design which would not decrease an employee's field of vision and would thereby eliminate its "security concern." See Agency Statement of Position at 17. see also VA Medical Center, Augusta, Georgia, 21 FLRA No. 13 (proposals which would assure that the clothing worn by employees is appropriate to the weather and work-place conditions do not interfere with the agency's internal security practices).
VII. Proposals 19, 20, and 21
Article V
Any employee needing to become familiarized or trained on posts that they are assigned to will have such familiarization/training accomplished while in a duty-paid status. (19). Employees who feel they are in need of such familiarization will notify their supervisor prior to being required to assume the post. (20). Such training will be accomplished prior to assigning the employee to the post. (21).
A. Positions of the Parties
Proposals 19, 20, and 21 were submitted by the Union as three separate proposals. The Agency argues, however, that they are actually parts of a single proposal. The Agency's objection to Proposal 19 (Article V, the first sentence) is that it violates the parties' Master Agreement. The Agency maintains that if Proposal 20 (Article V, the second sentence) is treated separately, it would merely establish a right to notify the supervisor of perceived inadequacies and would therefore be negotiable. The Agency argues, however, that when the second sentence is read in conjunction with Proposal 21 (Article V, the third sentence), it appears to require employees to be given training and familiarization as requested, and therefore interferes with management's rights to assign employees and assign work under section 7106(a) (2)(A) and (B) of the Statute. The Agency contends that the third sentence violates Article 6 of the parties' Master Agreement and interferes with management's rights to assign and direct employees and to assign work under section 7106(a)(2)(A) and (B). The Agency argues that Proposals 20 and 21 would allow an employee to declare, at any time before being assigned to a post, that he or she needs familiarization or training and thereby to bar assignment to that post until training is completed. The Agency argues further that Proposal 21 interferes with its right to assign work because it would require management to assign the employee to training or familiarization on duty time.
The Union contends that Proposals 19, 20, and 21 are severable and that the negotiability of each proposal is not dependent upon the negotiability of any other proposal. The Union maintains that since the Agency (1) raises no statutory allegation that Proposal 19 violates law, rule, or regulation and (2) states that Proposal 20 standing alone is within the duty to bargain, only Proposal 21 is in dispute. The Union states that whether Proposal 21 is "(r)ead together with (Proposals) 19 and 20, or independently, it means . . . that employees will not be assigned to a job that they do not know how to do before they are trained for it." Union Response at 75. The Union argues that Proposal 21 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
The Union submitted these proposals to the Agency as separate proposals. For that reason, and because they are readily severable, we will consider them separately. As to Proposal 19, because the Agency only asserts that Proposal 19 violates the parties' Master Agreement, that proposal is not properly before us. We will dismiss it on the same basis as the proposals treated above in Section III.B. of this decision. Because the Agency withdraws its allegation of nonnegotiability as to Proposal 20 if it is treated separately, we will not consider Proposal 20 further.
The Authority has held that proposals requiring management to provide formal training, or to assign employees to specific types of training programs, are outside the duty to bargain because they infringe on management's rights to assign work under section 7106 (a)(2)(B) of the Statute. Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA No. 35 (1987) (Proposal 9); Illinois Nurses' Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987) (Proposal 5). A proposal addressing the substantive aspects of training is a direct interference with management's right to assign work. VA Medical Center, New York, New York, 22 FLRA No. 81 (Proposal 6). See also American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA No. 92 (1986) (Proposal 3).
Proposal 21 provides that the Agency shall refrain from assigning an employee to a new post or position if the employee feels that additional training is necessary for him or her to perform the duties associated with the new assignment. This proposal would also require the Agency to provide the training deemed necessary by the employee before making the assignment to the new post. Proposal 21 would, therefore, prohibit the Agency from making new or additional assignments to an employee if the employee determined that additional training were required to perform the duties of the new assignment. Such a prohibition on the assignment of employees and duties directly interferes with the Agency's ability to determine the particular employees who will receive specific work assignments and training, in violation of management's rights under section 7106(a)(2)(A) and (B) to assign employees and assign work. See Bureau of Engraving and Printing, 25 FLRA No. 9 (Provision 15); American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA No. 49 (1986) (Proposal 1, Part 2).
Even assuming that Proposal 21 is an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3), we find, for the following reasons, that it is not an "appropriate" arrangement. The determination of what is an appropriate arrangement involves weighing the benefits to employees of the proposed arrangement against the effect on management's rights. See National Association of Government Employees. Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). In this case, affected employees will benefit from the training required by the proposal since it would ensure that employees are adequately trained to perform the duties of a new post before they are actually required to perform those duties. The proposal might also eliminate the adverse consequences associated with an employee's unsuccessful performance which are directly related to the employee's unfamiliarity with the new post or a lack of training.
Proposal 21 requires the Agency to provide training when an employee notifies the supervisor that he/she is unfamiliar with the tasks associated with a new post assignment. Such training, that is, the type of training identified by the employee as necessary to familiarize him/her with the tasks of the new assignment, must be accomplished before the employee may be assigned the new post. Proposal 21, therefore, does not allow management the discretion to determine the time or manner in which training will be provided. Additionally, management does not have the discretion to determine the type of training to provide. Clearly, the proposal requires training if the employee, not management, determines it is necessary.
The proposal also obligates the Agency to provide the type of training which the employee determines is necessary to familiarize him or her with the duties of the new post. Further, the proposal conditions the Agency's right to assign an employee to perform duties on the Agency first having trained the employee. The Union specifically states that the employees must be trained before they are assigned to do a job. Union Response at 75 and 77. The proposal is not limited to providing training for those employees who, in management's judgment, might profit from training. The benefits afforded to employees by Proposal 21, therefore, are not sufficient to justify depriving management of all discretion concerning training assignments and the assignment of an employee to a new post. See National Union of Hospital and Health Care Employees, AFL - CIO, District 1199; and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 14).
Consequently, Proposal 21 excessively interferes with management's rights under section 7106(a) of the Statute and does not constitute an appropriate arrangement for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute. it is therefore outside the duty to bargain. See American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Service, Social Security Administration, Baltimore, Maryland, 25 FLRA No. 2 (1986) (Proposal 1B). Compare AFGE and SSA, 22 FLRA No. 92 (Proposal 3) (proposal which obligated the agency to provide adequate training was an appropriate arrangement because it did not condition the agency's right to assign and evaluate employees on the agency first having provided training, and the agency had discretion to determine the type of training and when the training is to be provided).
VIII. Proposals 26, 27, and 28
Article AA
Management will designate an employee to distribute paychecks from 7:30 am to 4:00 pm on payday. (26).
If paychecks are not ready for distribution on the normal Wednesday payday, management will notify the union of the delay. (27). If checks are not ready for distribution by 8:00 am the following Friday, management will insure that a $200.00 advance is issued to all employees requesting it. However, employees must repay the advance prior to having the checks issued. (28).
A. Positions of the Parties
The Agency asserts that Proposals 26, 27, and 28 are, in fact, a single proposal, although the Union submitted them as three separate proposals. The Agency argues that Proposal 26 (Article AA, Paragraph 1) directly interferes with management's rights, under section 7106(a)(2)(A) and(B), to assign employees and to assign work. The Agency also argues that the parties' Master Agreement bars negotiations on Proposal 26. The Agency has withdrawn its objection to Proposal 27 (Article AA, Paragraph 2, First Sentence) if it is treated separately. The Agency contends that Proposal 28 (Article AA, Paragraph 2, Second and Third Sentences) is "overbroad" and inconsistent with 31 U.S.C. 3528, which establishes the responsibilities of the Agency's certifying officer in authorizing monetary advances issued under the circumstances described in the proposal. The Agency also argues that it has limited authority to issue advances.
The Union contends that Proposal 26 does not interfere with management's rights to assign employees and assign work. The Union states that the proposal only requires the Agency to designate an employee--any employee--to distribute paychecks. The Union maintains that the intent of Proposal 26 is to provide that employee paychecks will be distributed between the designated hours on payday. The Union argues that Proposal 28 is not contrary to 31 U.S.C. 3528 because the proposal assumes that only proper and legal advances will be made. The Union explains that the proposal is intended to alleviate the hardship placed on employees who, through no fault of their own, are not paid at the regular time.
B. Analysis and Conclusions
The Union submitted these proposals to the Agency as separate proposals. For that reason, and because they are readily severable, we will dispose of the proposals separately. Because the Agency withdraws its allegation of nonnegotiability as to Proposal 27 if it is treated separately, we will not consider Proposal 27 further.
Proposal 26 concerns the manner of paycheck delivery. The Union states that the intent of the proposal is to provide that employees' paychecks will be delivered at the workplace between the hours of 7:30 a.m. and 4:30 p.m. on the regular payday. The Union explains that "the (proposal) does not specify what type of employee, i.e., type, grade, unit or non-unit, or classification, will accomplish the distribution." Union Response at 82.
In Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California; American Federation of Government Employees, Local 1533 and Department of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary Store, Alameda, California, 25 FLRA No. 31 (1987), we determined, among other things, that the manner of paycheck delivery related to conditions of employment under section 7103(a)(14) and did not involve the method and means of performing work under section 7106 (b) (1). We also held that the proposals in that case, which specified the manner in which paychecks would be delivered, were within the duty to bargain.
The Agency's assertions that Proposal 26 in this case directly interferes with its rights to assign employees and assign work lack merit. We find, contrary to the Agency's argument, that the proposal does not require management to assign a specific employee to the specific task of distributing checks during specific hours. The proposal is not directly or integrally related to the assignment of work but merely provides that management will assign someone to distribute employee paychecks during the specified hours of the workday on the day employees are scheduled to be paid. The Agency does not indicate that the proposal requires management to implement a new policy of hand delivering paychecks or that it requires the assignment of any task not currently performed by Agency personnel. We conclude that Proposal 26 does not conflict with management's right to assign employees and assign work. See id., slip op. at 10. See also National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 25 FLRA No. 69 (1987). Proposal 26 is within the duty to bargain.
As explained by the Union, the second and third sentences of Article AA, Paragraph 2, submitted by the Union as Proposal 28, require the payment of advances to employees who request them, if (1) the employees have not received their regular paychecks by a time specified in the proposal and (2) the delay in payment is not due to any fault of the employee. The Agency initially contends that it lacks sufficient authority to negotiate over the subject of monetary advances. The Agency acknowledges that it has been granted authority by the Department of the Treasury to issue advances under the circumstances described in the proposal, but asserts that the authority may be removed at any time.
We find that the Agency has not established that it lacks the authority to negotiate on the subject of advances. We have consistently held that an agency is obligated to bargain to the extent that it has discretion concerning that condition of employment. See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986); American Federation of State, County and Municipal Employees, AFL - CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578 (1982) (Proposals XI - XVI), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Therefore, the Agency is obligated to bargain on the subject of advances, to the extent that it has discretion, unless this proposal is nonnegotiable for reasons other than the Agency's asserted lack of authority over the subject.
The Agency also argues that Proposal 28 is nonnegotiable because it is overbroad and contrary to law. The Agency maintains that under the delegation of authority to issue advances, the payments may only be released if certified by the Agency's certifying officer in accordance with the officer's responsibilities as set forth at 31 U.S.C. 3528. 3 The Agency interprets the proposal as requiring the issuance of advances in the amount of $200.00 to "any employee who asks" regardless of whether the certifying officer has determined that the Government is indebted to the employee for at least that amount. See Agency Statement of Position at 20-21. The Agency argues that the proposal is contrary to law because under 31 U.S.C. 3528, the certifying officer may only release such advances to the extent that documents in his possession show that the Government has incurred an obligation for at least that amount.
Proposal 28 provides for the issuance of salary advances under the circumstances described in the proposal in accordance with the Agency's delegated authority. The Union states that the clause assumes that "only proper and legal advances will be made." Union Response at 84. Section 3528(a)(3) of title 31 of the United States Code provides that a certifying official is responsible for the legality of proposed payments under the particular appropriation or fund involved. The Agency has not demonstrated, nor is it evident from the cited statute, that the Agency's certifying officer may not legally issue an advance in the amount of $200.00, under the appropriation or fund involved, irrespective of the amount of an employee's delayed paycheck. Further, section 3528 does not provide that a certifying officer may release salary advances only to the extent of the Government's previously incurred obligation, as indicated by the documents in his possession. The Agency has not identified any statute or regulation restricting its authority to issue advances under these circumstances and has not demonstrated that Proposal 28 requires the issuance of advances which are inconsistent with the governing provisions of any law or regulation. We therefore have no basis on which to conclude that the proposal is inconsistent with law, rule or regulation. Proposal 28 is within the duty to bargain.
IX. Proposal 29
Article AA, Paragraph 4
Employees traveling to high cost areas shall receive 100% travel advance.
A. Positions of the Parties
The Agency contends that Proposal 29 (1) violates a Government-wide regulation, specifically Federal Travel Regulations, Part 10, 1-10.3; (2) interferes with the Agency's right under section 7106(b)(1) to determine the technology, methods, and means for making travel payments because it would effectively prevent the institution of a credit card system to replace most travel advances; and (3) interferes with its right to assign work under section 7106(a)(2)(B) since it could require assignment to an employee of the task of paying travel advances.
The Union contends that Proposal 29 is not inconsistent with the general guidance of the Federal Travel Regulations (FTRs) because those regulations require only that travel advances be kept to a minimum. The Union claims that the Agency did not prove that Proposal 29 involves the technology of performing work. The Union notes that the implementation of a credit card system is speculative and that the Agency has not shown that the proposal interferes with any present methodology.
B. Analysis and Conclusion
This proposal is to the same effect as a proposal declared nonnegotiable in International Federation of Professional and Technical Engineers, Local 12 and Department of the Navy, Puget Sound Naval Shipyard, 26 FLRA No. 100 (1987). In Puget Sound Naval Shipyard, we found that a pro-posal to maintain travel advances at 90 percent of estimated expenses was inconsistent with section 1.1-10.3(a) of the FTRs because that regulation limits advances to 80 percent of estimated expenses. We also found that the FTRs are Government-wide regulations within the meaning of section 7117 of the Statute, and that the proposal therefore was outside the duty to bargain because it was inconsistent with a Government-wide regulation under section 7117 of the Statute.
Proposal 29 requires that employees receive a 100 percent travel advance. This proposal, like the proposal in Puget Sound Naval Shipyard, is inconsistent with section 1.1-10.3(a) of the FTRs which limits advances to 80 percent. Therefore, the proposal is inconsistent with a Government-wide regulation under section 7117 of the Statute. Accord-ingly, without addressing,the Agency's other allegations, we conclude that Proposal 29 is nonnegotiable.
X. Proposal 30
Article BB (30)
The employer will annually provide the union with a summary of discipline/adverse actions. This list will provide the employee's position, department (if position is utilized in more than one department), proposal charge(s) and decision. The employer will also provide the union with a list of all employees with name and home address and phone numbers and dates entered on duty when requested.
The employer will provide the union with monthly summary of the total number of shifts that were filled by using overtime, by department and the number of shifts that were abandoned.
A. Positions of the Parties
The Agency contends that the disclosure of disciplinary and adverse actions, as well as employee names and home addresses and phone numbers would violate the Privacy Act, 5 U.S.C. 552(a). The Agency argues that in a small facility, like Danbury, the provision which mandates disclosure of position and department is obviously intended to permit the Union to discover the actual identity of the employee(s) involved which would also violate the Privacy Act. The Agency also argues that the proposal is overly broad since it covers all employees, not just bargaining unit employees, and thus is outside the duty to bargain. Finally, the Agency makes no argument regarding the negotiability of the request for overtime data.
The Union cites several cases in which the Authority has held that a Union is entitled to information necessary to fulfill its representational responsibilities. The Union also cites the Authority's decision on remand in Farmers Home Administration Finance Office, St. Louis, Missouri and American Federation of Government Employees, AFL - CIO, Local 3354, 23 FLRA No. 101 (1986), petition for review filed sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23, 1986), regarding release of names and home addresses of bargaining unit members to their exclusive representative. The Union states that the Agency's reading of the proposal is overly broad. The Union indicates that the term "employee" as used in the proposals refers to a bargaining unit employee, in keeping with the meaning of the term in the parties' Master Agreement. Union Response at 92, 93.
B. Analysis and Conclusions
The Union asserts that the term "employee" as used throughout this proposal refers only to bargaining unit employees, consistent with the terms of the parties' Master Agreement. Based on this statement of intent, we find that the Agency's concern regarding the breadth of Proposal 30 has been satisfied. Consistent with this interpretation, the proposal will be considered as applying only to bargaining unit employees.
The first sentence of Proposal 30 (paragraph 1 of Article BB) requires the Agency to furnish the Union with a summary of discipline and adverse actions on an annual basis. Although the Agency contends that the Union's proposal may violate the Privacy Act, it has failed to point out any part of the proposal which is inconsistent with that law. The first sentence only requires that a summary be prepared. A summary need not contain personal identifiers or other unique, personal information the disclosure of which would be prohibited by the Privacy Act. In these circumstances, we are unable to conclude that the proposal is inconsistent with the requirements of the Privacy Act. See National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service. Region IT, 21 FLRA No. 102 (1986) (Proposal 3).
Based upon the above discussion, we find that the first and second sentences of Proposal 30 are within the duty to bargain. The proposal requires nothing more than an annual summary of information, which the Agency prepares and which the Agency may ensure is not violative of the Privacy Act. The provision of the second sentence which calls for the employee's position and department does not involve personal information.
The third sentence of Proposal 30 requires the Agency to provide the Union, upon request, with a listing of employees' names, home addresses, phone numbers, and dates entered on duty. We have found that proposals which require the Agency to furnish an exclusive representative with the names and home addresses of bargaining unit members are within the duty to bargain. See, for example, National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel and the Board, 24 FLRA No. 88 (1986), petition for review filed sub nom. National Labor Relations Board, et al. v. FLRA, No. 7-1108 (D.C. Cir. Feb. 26, 1987); National Federation of Federal Employees Local 1655 and Adjutant General of Illinois, 24 FLRA No. 1 (1986). The portion of the third sentence which concerns names and home addresses of bargaining unit employees is to the same effect as the proposals in the National Labor Relations Board and Adjutant General of Illinois decisions. Therefore, that portion of the third sentence is within the duty to bargain.
The third sentence also requires the Agency to disclose to the Union the employees' dates of entry on duty. The Agency does not allege that release of this information would infringe on employees' privacy interests or that its release would violate any law or regulation. Therefore, we find that release of dates of employees' entry on duty is within the duty to bargain.
The remaining item of information sought in the third sentence is phone numbers. From the documents submitted by the parties we are unable to determine whether the phone numbers sought are home telephone numbers or work telephone numbers. There is no indication, if home telephone numbers are sought, whether the Agency even maintains a listing of employees' home telephone numbers which could be disclosed to the Union. Finally, a privacy question is involved which has not been addressed by the parties. Any release of personal information requires that the impact of disclosure be weighed or balanced against the benefit of the disclosure. The record contains no data upon which such a determination may be made. Because the Union has not met its burden of creating a record containing information concerning this portion of the third sentence upon which we can make a negotiability determination, the union's petition for review as to this portion of Proposal 30 must be dismissed. See American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987) (Proposal 5).
The last portion of Proposal 30 requires the Agency to supply the Union with a monthly summary of overtime and abandoned shifts. The Agency has not specifically alleged that this portion of Proposal 30 is nonnegotiable, nor does it address this part of the proposal in its Statement of Position. Because the Agency has raised no grounds on which to base a finding that this portion of the proposal is outside the duty to bargain and because there is no basis in the record to indicate that the last sentence of Proposal 30 is intended to be applied in a manner inconsistent with any law or Government-wide regulation, we find that the last sentence of Proposal 30 is negotiable. See American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).
XI. Proposal 33
Article HH
Employees will be provided with a locker or a lockable space in a convenient location. Employees will not be required to leave a key at the institution.
A. Positions of the Parties
The Agency contends that the first sentence conflicts with management's right to determine the technology of performing work under section 7106(b)(1). The Agency argues that providing lockers or a lockable space, as opposed to some unspecified other means, limits management's discretion in the technology for storing employees' property. The Agency contends that the second sentence of Proposal 33 conflicts with management's right to determine internal security practices under section 7106(a)(1). The Agency maintains that this sentence of the proposal would limit management's ability to search lockers in order to ensure that inmates or staff are not hiding weapons or contraband in the lockers.
The Union argues that the Agency has not established that providing lockers for employees' storage of their personal gear is in any way connected with the Agency's mission, and therefore could not be determinative of the technology of performing work. The Union argues that the second sentence assures employees that they will be present during any search of their personal items, since the locker could not be searched without the employee providing the key to open it. The Union asserts that this practice would ensure employees privacy in maintaining their personal items and would protect employees from unreasonable searches. Finally, the Union argues that the Agency's fear of inmate concealment of weapons or controlled substances inside the lockers can be overcome by placing the lockers in areas to which the inmates do not have access.
B. Analysis and Conclusions
To sustain a claim that a proposal interferes with management's right to determine the technology used in performing its work, an agency must establish: (1) the technological relationship of the proposal to performance of the agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. See American Federation of Government Employees, AFL - CIO, National Council of Social Security Field Office Locals and department of Health and Human Services, Social Security Administration, 24 FLRA No. 81 (1986); and American Federation of State, County and Municipal Employees, AFL - CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983).
The Agency has not demonstrated on the record in this case that there is a technological relationship between providing lockers to employees for storage of personal effects and the work of running a prison. Because the Agency has not shown a technological relationship, the Agency has failed to meet the test outlined above. Therefore, the first sentence is within the duty to bargain.
The second sentence of Proposal 33 provides that employees will not be required to leave a key for their locker with management. The Agency asserts that this part of the proposal would interfere with their ability to control internal security at the facility. The Agency maintains that the lack of keys would hamper its ability to conduct searches to ensure that inmates or staff are not hiding weapons or contraband. This portion of Proposal 33 is to the same effect as Proposal 2 in National Association of Government Employees, SEIU, AFL - CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 361 (1984). In that case, the Authority found that a proposal which limited the agency's ability to conduct unannounced searches in furtherance of its plan to safeguard its property would interfere with the agency's right to determine its internal security practices.
A Federal correctional facility is different from general office space. The Agency has special security concerns not routinely present in other work locations. At a correctional facility, internal security practices are of paramount importance, and the need to ensure that no unauthorized weapons or contraband are present is critical. Based on the above discussion, we find that the second sentence of Proposal 33 is outside the duty to bargain because it establishes a direct, substantive limitation on the Agency's ability to search employee lockers, an internal security practice within the meaning of section 7106(a)(1) of the Statute.
This case is distinguishable from National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA No. 30 (1986), in which we found negotiable a procedure which stated that the agency could not search an employee's locker without either the employee or his representative present. See also National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 987 (1982) (Article 3, Section 14); National Treasury Employees Union and NTEU Chapter 61 and Department of the Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA 304 (1981). Management's decision to require employees to leave a key concerns the policies which it will adopt to protect its personnel and property. By denying management a key, the proposal would prevent access to lockers, when in management's judgment a possible threat to personnel and property requires it to search those lockers. Precluding access to the lockers is a different matter from providing for employees to be present. The latter is a procedure which does not interfere with management's ability to protect its personnel and property.
XII. Proposal 38
Article PP, Section 1
Probationary employees will be rotated between shifts quarterly. Although Management is free to change their posts or assignments as needed.
A. Positions of the Parties
The Agency contends that the requirement of Proposal 38 that employees be rotated quarterly without taking into account workload: (1) is inconsistent with 5 C.F.R. 610.121 as it would bar revision of a work schedule, and (2) interferes with management's right under section 7106(a)(2)(A) to direct employees and its right under section 7106(a)(2)(B) to assign work. Additionally, the Agency contends that because the proposal requires that particular employees at a certain grade level, namely probationary employees, be rotated, it interferes with its right under section 7106(b)(1) to determine the numbers, types, and grades assigned to a tour of duty. In this regard, the Agency claims that the proposal will prevent the assignment of probationary employees to the day shift where their work can be closely supervised. Finally, the Agency argues that Proposal 38 interferes with its right under section 7106(b)(1) to determine its internal security practices because it requires the assignment of inexperienced employees to staff evening and night shifts.
The Union contends that Proposal 38, when read in the context of the Master Agreement's requirement that any interpretation must conform to law and regulation, would not require the rotation or assignment of any employee if there were no work available. The Union contends that Proposal 38 does not interfere with management's right to assign work because it is a procedure and does not specify which duties will be assigned. The Union contends further that Proposal 38 does not affect "numbers, types and grades of employees assigned to particular work projects or tours of duty" because it does not require any particular distribution of probationers among the shifts. Finally, with respect to the Agency's internal security contention, the Union claims that the term "probationer" is not synonymous with "inexperienced" and therefore the proposal does not require the Agency to staff evening and night shifts with inexperienced employees.
B. Analysis and Conclusion
We conclude that Proposal 38 interferes with the Agency's right under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a tour of duty. Based on the record in this case, the term "probationary" refers to "entry level" employees who are at the same grade. Therefore, the proposal, by requiring the rotation of probationers between shifts, directly affects and is thus determinative of the grade levels of employees assigned to a tour of duty, because it requires that probationary employees be rotated and thus assigned to all of the Agency's tours of duty.
Further, as noted by the Agency (Statement of Position at 30-31) the proposal would prevent it from assigning all probationary employees to the day shift where they can be closely supervised, as the proposal would require the Agency to assign probationary or entry grade employees to tours of duty to which it had not planned to assign them. See, for example, National Federation of Federal Employees, Local 1332 and U.S. Army Material Development and Readiness Command (DARCOM), 3 FLRA 200 (1980), in which the Authority found nonnegotiable a proposal concerning the qualifications of individuals assigned to a tour because, among other things, it would have an impact on the grade levels the agency must assign to a tour; American Federation of Government Employees, AFL - CIO, Council 36 and General Services Administration, 9 FLRA 825 (1982) (Proposal 1), in which the Authority found nonnegotiable a proposal requiring negotiation on the number and grade of positions to be transferred.
Moreover, the proposal, by referencing only probationary employees, directly affects and is determinative of the type of employees assigned to a tour of duty. See American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 379-81 (1982) (Proposal 15) rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), in which a proposal would have required the assignment of a journeyman or a supervisory officer to tours of duty where the agency would ordinarily assign trainee officers alone. Proposal 38, like the proposal in the cited case, would require the Agency to assign probationary employees to a tour of duty that the Agency did not intend.
We reject the Union's claim that Proposal 38 does not interfere with section 7106(b)(1) because it does not require management to "overload" any shift. The proposal on its face requires the Agency to rotate probationary employees among all shifts including those shifts to which the Agency does not intend to assign probationary employees.
Accordingly, without passing on the Agency's other allegations, we find that Proposal 38 interferes with the Agency's right to determine the numbers, types, and grades assigned to a tour of duty under section 7106(b)(1) of the Statute. Because the Agency has elected not to bargain over Proposal 38, we conclude that it is outside the Agency's duty to bargain.
XIII. Proposal 41
Article PP, Section 5
Employees working 10 or more consecutive hours will be given adequate time to take care of personal affairs. This time will not be compensated by the Employer.
A. Positions of the Parties
The Agency contends that Proposal 41 interferes with management's right to assign work under section 7106(a)(2)(B) because it requires the Agency to give employees as much leave as is necessary, during a tour of duty, to handle their personal affairs. The Agency likens it to a requirement that it provide break periods during which an employee could leave the premises to handle his affairs and during which no work could be assigned. The Agency states that the right to assign work includes the right to determine when work will be performed and the right to deny leave requests.
The Union argues that Proposal 41 is both a negotiable procedure under section 7106(b)(2) and an appropriate arrangement under section 7106(b)(3) of the Statute. The Union contends that the Agency's interpretation of this proposal is unreasonable because any interpretation must be consistent with law, rule, and regulation, meaning that employees' breaks and their timing are subject to work load conditions. Further, the Union states that under Proposal 41 time must be requested and only such time that is "adequate" under the circumstances must be given. The Union states that Proposal 41 does not anticipate an unreasonable length of time to take care of personal affairs, and that it is meant for such matters as "telephone calls, obtaining transportation, switching car pools, etc." Union Response at 123-24.
B. Analysis and Conclusion
We conclude that Proposal 41 interferes with the Agency's right under section 7106(a)(2)(B) to assign work. The proposal requires that the Agency give "adequate" time of unspecified duration to an employee to take care of personal affairs when an employee is scheduled to work 10 or more consecutive hours. As contrasted with proposals held negotiable involving duty time breaks in which management retained the discretion to assign work during the break, this proposal prevents management from assigning any work during the time the employee is taking care of personal affairs. See, for example, Social Security Administration, 24 FLRA No. 81 (1986). Our decision in American Federation of Government Employees, AFL - CIO, Council of Prisons Local 171 and Department of Justice, Federal Prison System, Federal Correctional Institution, El Reno, Oklahoma, 23 FLRA No. 29 (1986) (Provision 3) does not compel a different result. In that case, a proposal granting time to employees working 3 hours in excess of 8 hours to obtain or purchase a meal was found negotiable, where it was clear that the proposal did not authorize overtime for meal times.
Because the proposal conflicts with management's right under section 7106(a)(2)(B), the proposal is nonnegotiable unless it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. Kansas Army National Guard, 21 FLRA No. 4. As explained in Kansas Army National Guard, to determine whether the proposal constitutes a negotiable appropriate arrangement, we determine whether the proposal is intended to be an arrangement for employees who may be adversely affected by the exercise of management's statutory rights. If the proposal is so intended, we determine whether the intended arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the exercise of management's rights.
Based on the Union's statement of intent, we find that Proposal 41 is intended to be an arrangement for employees adversely affected by the exercise of management's right to assign work beyond an employee's normal work schedule. The Union states in its response that the proposal is intended to provide that employees will have an off duty, uncompensated break if needed to take care of personal matters made necessary by the extra length of the day. The Union states that such breaks and their timing are subject to work load conditions and that "adequate time" does not mean an unreasonable length of time. Given this explanation, we find that the benefit flowing to employees from this proposal outweighs the slight interruption in management's right to assign work to employees, where as here the record reflects that both the determination of whether to grant the break and its timing is within management's discretion. Therefore, we conclude that Proposal 41 constitutes an appropriate arrangement under section 7106(b)(3) that does not excessively interfere with management's right to assign work to employees.
XIV. Order
The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning the following proposals, or portions thereof: Proposal 28, Article AA, Paragraph 2, the second and third sentences; Proposal 33, Article HH, the first sentence; and Proposal 41, Article PP, Section 5.
To the extent that the Agency has a duty to bargain in the circumstances of this case, it must upon request (or as otherwise agreed to by the parties) bargain concerning the following proposals, or portions thereof: Proposal 4, Article E, Paragraph 1, the second and third sentences; Proposal 18, Article T; Proposal 26, Article AA, Paragraph 1; and Proposal 30, Article BB, all except one portion of Paragraph 1, the third sentence. 4
The Union's petition for review is dismissed as to the following proposals, or portions thereof: Proposal 8; Proposal 13, Article N, Paragraph 4, the second sentence; Proposal 15; Proposal 16; Proposal 17; Proposal 21, Article V, the third sentence; Proposal 25; Proposal 29, Article AA, Paragraph 4; Proposal 30, Article BB, the portion of Paragraph 1, third sentence, that requires the Agency to provide phone numbers to the Union; Proposal 31; Proposal 32; Proposal 33, Article HH, the second sentence; Proposal 34; Proposal 35; Proposal 36; Proposal 37; Proposal 38, Article PP, Section 1; and Proposal 42. The petition for review as to Proposals 2, 5, 7, 9, 14, 19, and 39 is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal.
Issued, Washington, D.C., October 20, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A 5
Proposal 1 - Article D, Paragraph 1, First Sentence
The principal day shift for all employees other than correctional, will be 7:30 a.m. to 4:00 p.m.
Proposal 2 - Article D, Paragraph 3
When it becomes necessary to change an employee's shift during the quarter, Management will make a reasonable effort (as defined in Article 18 of the Master Agreement) to insure that the employee has the same days off.
Proposal 3 - Article D, Paragraph 4
All departments that rotate shift/assignments, except power plant, will rotate quarterly.
Proposal 4 - Article E, Paragraph 1, Second and Third Sentences
The employer will grant the request for days off or shift-preference request based on seniority for three (3) quarters of the year. Those employees not submitting a request by the posted cut-off date and those who are currently in their fourth quarter, will be considered as having no preference.
Proposal 5 - Article E, Paragraph 2
Days off or shift-preference requests for other reasons than seniority will not be granted ahead of seniority unless the parties mutually agree.
Proposal 6 - Article E, Paragraph 3
Employees realize that they must rotate their shifts and days off during the year and that they will not necessarily be choosing posts.
Proposal 7 - Article H, Paragraph 1
Any refresher training or orientation to specific post(s) will be accomplished during the employees' duty tours.
Proposal 8 - Article H, Paragraph 2
No employee shall be required to perform work at their home.
Proposal 9 - Article M
Employees calling in sick will provide the supervisor with the following information:
- Employees name - Shift the employee is calling in for - Nature of illness - Expected duration
Employees will not be required to call in sick daily during an illness. Rather just notify the supervisor of the expected duration of the illness and of any changes of that expected duration.
Proposal 10 - Article N, Paragraph 1, First Sentence
The parties agree that in scheduling annual leave, all employees may pick up to two (2) weeks in each round.
Proposal 11 - Article N, Paragraph 2, First Sentence
If an employee is transferred from one leave roster to another, as a result of a promotion or employee request, the employee must choose annual leave in a manner that will not cause another employee(s), in the gaining leave roster, to lose their approved leave.
Proposal 12 - Article N, Paragraph 2, Second Sentence
If the transfer from one leave roster to another is the result of a Management decision (i.e. re-organization), the employee will carry their approved leave to the new leave roster and will not cause any employee to lose their approved leave.
Proposal 13 - Article N, Paragraph 4, Second Sentence
The supervisor(s) will not be on the same roster as the employees.
Proposal 14 - Article N, Paragraph 4, Last Three
Sentences
The Union representatives will be informed of the maximum number of employees from that department that may be on leave during each one-week period and those weeks closed for training/military leave. Ordinarily, this meeting will be held in October, unless otherwise designated by the supervisor. If the supervisor so designates, the union will be notified of the change of date.
Proposal 15 - Article O
Management will provide battery jumper cables for employees' use.
Proposal 16 - Article R, Paragraph 2
Further, inmates will not be allowed to handle or see any documents that relate to employees or have information about employees that is restricted under the Privacy Act. This includes, but not limited to, performance standards, travel vouchers, time and attendance reports.
Proposal 17 - Article S
The employer will notify both: any employee(s) concerned, and the union, of any life-threatening situation to employee(s) health, hazards, or escape risk as soon as possible, to protect employees safety and health.
Proposal 18 - Article T
Parkas will be issued to employee assigned to custodial and CMS for the duration of the winter.
Proposal 19 - Article V, First Sentence
Any employee needing to become familiarized or trained on post that they are assigned to will have such familiarization/training accomplished while in a duty-paid status.
Proposal 20 - Article V. Second Sentence
Employees who feel they are in need of such familiarization will notify their supervisor prior to being required to assume the post.
Proposal 21 - Article V, Third Sentence
Such training will be accomplished prior to assigning the employee to the post.
Proposal 22 - Article W, First Sentence
Both parties recognize that holidays are an important and favorable time in which to be in an off-duty status.
Proposal 23 - Article W, Second Sentence
Recognizing this fact, the employer should make a reasonable effort to honor requests by employees asking for holidays off.
Proposal 24 - Article W, Last Sentence
Employees who wish to work a holiday when they are scheduled to be off work should submit their request to their supervisor at least 3 weeks prior to the holiday to assist the supervisor in granting the holiday-off requests.
Proposal 25 - Article X
A copy of any BP-9's received concerning an employee's action(s) will be forwarded to the named employees for comment prior to answering.
Proposal 26 - Article AA, Paragraph 1
Management will designate an employee to distribute paychecks from 7:30 a.m. to 4:00 p.m. on payday.
Proposal 27 - Article AA, Paragraph 2, First Sentence
If paychecks are not ready for distribution on the normal Wednesday payday, management will notify the union of the delay.
Proposal 28 - Article AA, Paragraph 2, Second and Third Sentences
If checks are not ready for distribution by 8:00 a.m. the following Friday, management will insure that a $200.00 advance is issued to all employees requesting it. However, employees must repay the advance prior to having the checks issued.
Proposal 29 - Article AA, Paragraph 4
Employees traveling to high-cost areas shall receive 100% travel advance.
Proposal 30 - Article BB
The employer will annually provide the union with a summary of discipline/adverse actions. This list will provide the employee's position, department (if position is utilized in more than one department), proposal, charge(s) and decision. The employer will also provide the union with a list of all employees with name and home address and phone numbers and dates entered on duty when requested.
The employer will provide the union with monthly summary of the total number of shifts that were filled by using overtime, by department and the number of shifts that were abandoned.
Proposal 31 - Article FF
Annual leave and sick leave will be charged in six-minute or one-tenth of an hour increments.
Proposal 32 - Article GG, Paragraph 2
The selection of short-sleeve or long-sleeve shirts be at the employee's option. The wearing of ties and blazers are optional. However, if the blazer is worn, a tie must be worn. Employees may elect to wear a tie clip/tack with the tie. The tie clip/tack must meet the same standards as described in Article 6, Section e.
Proposal 33 - Article HH
Employees will be provided with a locker or a lockable space in a convenient location. Employees will not be required to leave a key at the institution.
Proposal 34 - Article LL, Paragraph 1
Any change of an employee's shift (other than quarterly changes) will be given the employee in writing within the timeframe specified in the Master Agreement.
Proposal 35 - Article LL, Paragraph 2
All changes in hours of duty of an employee will be provided to that employee in writing.
Proposal 36 - Article MM
All equipment, including but not limited to, motor vehicles, radios, body alarms, and tools will be maintained in good working condition.
Proposal 37 - Article NN
Employees who are required to check-in shall only report to control room to pick up equipment prior to preceding to their assigned posts.
Proposal 38 - Article PP, Section 1
Probationary employees will be rotated between shifts quarterly. Although Management is free to change their posts or assignments as needed.
Proposal 39 - Article PP, Section 2
Annual work schedules will be used by all departments that have employees who rotate shift/or job assignments.
Proposal 40 - Article PP, Section 3
Employees will be rotated on shifts clockwise to minimize biological clock disruption.
Proposal 41 - Article PP, Section 5
Employees working 10 or more consecutive hours will be given adequate time to take care of personal affairs. This time will not be compensated by the Employer.
Proposal 42 - Article QQ
Employees required to attend weekend training with National Guard or Reserve units who are scheduled to work that weekend shall be free to mutually exchange days off/shift with another employee, take leave without pay, or annual leave.
Proposal 43 - Article RR
If an employee is required to submit a specimen for a drug test, they will be told exactly what drug(s) or class of drugs they are being tested for. The employer will allow up to 4 hours of administrative leave to allow the employee to have a specimen collected for processing by an independent lab. If the employer elects, a supervisor and a union representative will accompany the employee to the site for collection of the specimen and verify the collection.
APPENDIX B
September 17, 1986 Declaration
Proposal 8 (10) 6
Article H, Paragraph 2 home. No employee shall be required to perform work at their
Proposal 15 (16)
Article O
Management will provide battery jumper cables for employees' use.
Proposal 6 (19)
Article R, Paragraph 2
Further, inmates will not be allowed to handle or see any documents that relate to employees or have information about employees that is restricted under the Privacy Act. This includes, but not limited to, performance standards, travel vouchers, time and attendance reports.
Proposal 17 (20)
Article S
The employer will notify both: any employee(s) concerned, and the union, of any life-threatening situation to employee(s) health, hazards, or escape risk as soon as possible, to protect employees safety and health.
Proposal 25 (22)
Article X
A copy of any BP-9's received concerning an employee's action(s) will be forwarded to the named employees for comment prior to answering.
Proposal 31 (24)
Article FF
Annual leave and sick leave will be charged in six-minute or one-tenth of an hour increments.
Proposal 32 (25)
Article GG, Paragraph 2
The selection of short-sleeve or long sleeve shirts shall be at the employee's option. The wearing of ties and blazers are optional. However, if the blazer is worn, a tie must be worn. Employees may elect to wear a tie clip/tack with the tie. The tie clip/tack must meet the same standards as described in Article 6 section e.
Proposal 34 (27)
Article LL, Paragraph 1
Any change of an employee's shift (other than quarterly changes) will be given the employee in writing within the timeframe specified in the Master Agreement.
Proposal 35 (29)
Article LL, Paragraph 2
All changes in hours of duty of an employee will be provided to that employee in writing.
Proposal 36 (30)
Article MM
All equipment, including but not limited to, motor vehicles, radios, body alarms, and tools will be maintained in good working condition.
Proposal 37 (31)
Article NN
Employees who are required to check-in shall only report to control room to pick up equipment prior to preceding to their assigned posts.
Proposal 42 (36)
Article QQ
Employees required to attend weekend training with National Guard or Reserve units who are scheduled to work that weekend shall be free to mutually exchange days off/shift with another employee, take leave without pay, or annual leave.
APPENDIX C
July 22, 1986 Declaration
Proposal 10 (8) 7
Article H, Paragraph 4
No employee shall be required to preform work at the residences.
Proposal 16 (15)
Article 0
Management recognized that the institution is in a remote section of the town, that lacks dependable public transportation. It also recognize that its employees must start and end work at hours that road service is not available. Therefore, management will provide a set of battery cables for the use of its employees. These cables will be stored in the outside patrol vehicle, which qualified employees may use to jump there vehicles.
Proposal 19 (16)
Article R, Paragraph 2
Further, inmates will not be allowed to handle or see any documents that relate to employees or have information about employees that is restricted under the Privacy Act. This includes, but not limited to, performance standards, travel vouchers, time and attendance sheets.
Proposal 20 (17)
Article S
The employer will notify both any employee(s) concerned and the union, of any life threaten situation the employee(s), health hazards or escape risk as soon as possible.
Proposal 22 (25)
Article X
A copy of any BP-9s received concerning an employees action(s) will be forwarded to the named employees for comment prior to answering.
Proposal 4 (31)
Article DD
Annual leave and sick leave will be charged in six (6) minute or one tenth (1/10) of an hour increments.
Proposal 25 (32)
Article GG, Paragraph 2
The selection of short sleeve or long sleeve shirts shall be at the employees option. The wearing of ties and blazers are optional. However, if the blazer is worn, a tie must be worn. Employees may elect to wear a tie clip/tack with the tie. The tie clip/tack must meet the same standard as described in Article 6 section e.
Proposal 27 (34)
Article LL, Paragraph 1
Any change of an employees' shifts (other than quarterly changes) will be given the employees in writing within the time frame specific in the Master Agreement.
Proposal 29 (35)
Article LL, Paragraph 3
All changes in hours of duty of an employee will be provided to that employee in writing.
Proposal 30 (36)
Article MM
All equipment, including but not limited to, motor vehicles, radios, body alarms and tools will be maintained in good working conditions.
Proposal 31 (37)
Article NN
Employees who are required to check-in shall only report to control room to pick up equipment/keys prior to preceding to their assigned post.
Proposal 36 (42)
Article QQ
Employees requiring to a attend week end training with the National Guard or Reserve units who are scheduled to work that weekend, shall be free to mutually exchange days off/shift with another employee, take leave without pay or annual leave.
FOOTNOTES
Footnote 1 The proposals refer to specific clauses of the parties' proposed collective bargaining agreement, as identified in this decision. We will refer to the clauses, as numbered by the parties, as proposals. The Union appealed 43 proposals to the Authority. See Appendix A. However, in responding to the Union's petition for review, the Agency withdrew its allegations of nonnegotiability as to Proposals 1, 3, 6, 10, 11, 12, 22, 23, 24, and 40. Those proposals will not be considered further.
Footnote 2 The Agency made this contention as to 14 proposals; however, the Agency has withdrawn its allegation of nonnegotiability as to Proposals 1 and 40. See note 1.
Footnote 3 The relevant portions of 31 U.S.C. 3528 provide: (a) A certifying official certifying a voucher is responsible for-- (1) information stated in the certificate, voucher and supporting records; (2) the computation of a certified voucher under this section and section 3325 of this title; (3) the legality of proposed payment under the appropriation or fund involved; and (4) repaying a payment (A) illegal, improper or incorrect because of an inaccurate or misleading certificate; (B) prohibited by law; or (C) that does not represent a legal obligation under the appropriation or fund involved.
Footnote 4 In finding these proposals within the duty to bargain, we make no judgment as to their merits.
Footnote 5 All proposals are set forth as stated in the Union's petition for review.
Footnote 6 The numbers in parentheses are the numbers of the comparable proposals in the July 22, 1986 declaration.
Footnote 7 The numbers in parentheses are the numbers of the comparable proposals in the September 17, 1986 declaration.