[ v03 p438 ]
03:0438(66)NG
The decision of the Authority follows:
3 FLRA No. 66
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS
LOCAL F-61
(Union-Petitioner)
AND
PHILADELPHIA NAVAL SHIPYARD
(Activity)
Case No. 0-NG-6
DECISION ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
UNION PROPOSAL I
ARTICLE XX
TRAINING
SECTION 1-- THE EMPLOYER AND THE UNION AGREE THAT ANY
GIVEN TRAINING SESSION OR DRILL WILL NOT EXCEED ONE (1)
HOUR DURATION. IT IS FURTHER AGREED THAT ONLY ONE 1)
TRAINING SESSION OR DRILL, OF ONE (1) HOUR DURATION
OR LESS, WILL BE ASSIGNED TO ANY GIVEN WORKDAY. TRAINING
SESSIONS OR DRILLS MUST BE CONCLUDED BY 1500 HOURS
ON WEEKDAYS. NO TRAINING SESSIONS WILL BE HELD ON
SATURDAYS, SUNDAYS OR HOLIDAYS.
SECTION 2-- THE EMPLOYER AND THE UNION AGREE THAT NO
OUTDOOR TRAINING SESSIONS OR DRILLS WILL BE HELD ON
DAYS WHEN THE OUTSIDE TEMPERATURE EXCEEDS 80 DEGREES
FAHRENHEIT, OR DROPS BELOW 45 DEGREES FAHRENHEIT.
IT IS FURTHER AGREED THAT HIGH HUMIDITY, HIGH WINDS
AND PRECIPITATION SHALL BE CONSIDERED REASON FOR
CANCELLATION OF OUTDOOR TRAINING SESSIONS OR DRILLS.
THE EMPLOYER AND THE UNION FURTHER CONCUR THAT ALL
ON-DUTY PERSONNEL WILL PARTICIPATE IN TRAINING SESSIONS
OR DRILLS WITH THE EXCEPTION OF MEN ON OVERTIME STATUS,
COMPLETING SHIP INSPECTION OR EXTINGUISHER DETAIL,
WHENEVER POSSIBLE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION
7106(A)(2)(B) OF THE STATUTE /1/ AS ALLEGED BY THE AGENCY.
CONCLUSION: THE PROVISION VIOLATES MANAGEMENT'S RIGHT UNDER SECTION
7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513,
THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN IS SUSTAINED.
REASONS: THE WORKWEEK OF THE FIRE FIGHTERS INVOLVED IN THIS CASE CAN
INCLUDE, IN ANY GIVEN WEEK, A SATURDAY, A SUNDAY OR A HOLIDAY. FURTHER,
AS IS APPARENT FROM THE POSITIONS OF THE PARTIES BEFORE THE AUTHORITY,
FIRE FIGHTERS ARE ASSIGNED A CERTAIN AMOUNT OF TRAINING AS A REGULAR
PART OF THEIR FIRE FIGHTING DUTIES. AN AGENCY RETAINS THE RIGHT UNDER
SECTION 7106(A)(2)(B) TO ASSIGN WORK. SUCH RIGHT CLEARLY ENCOMPASSES
THE TRAINING INVOLVED IN THIS CASE, I.E., TRAINING ASSIGNED DURING THE
DUTY HOURS OF FIRE FIGHTERS. SECTION 1 OF THE UNION'S PROPOSAL,
HOWEVER, WOULD PLACE ABSOLUTE LIMITS ON THE ABILITY OF THE AGENCY TO
ASSIGN SUCH TRAINING AT ALL AFTER SPECIFIED HOURS OR ON CERTAIN DAYS OF
A FIRE FIGHTER'S WORKWEEK. TO THAT EXTENT THE PROPOSAL VIOLATES
MANAGEMENT'S RIGHT TO ASSIGN WORK.
IN ADDITION, WHILE IT MUST BE EMPHASIZED THAT HEALTH AND SAFETY
CONSIDERATIONS SUCH AS INCLEMENT WEATHER OR HIGH WINDS ARE LEGITIMATE
FACTORS TO CONSIDER IN CONDUCTING OUTDOOR TRAINING, SECTION 2 OF THIS
PROPOSAL CLEARLY GOES BEYOND CONSIDERATION OF SUCH FACTORS IN
IMPLEMENTING A DECISION TO ASSIGN TRAINING. INSTEAD, THIS PROPOSAL
WOULD ESTABLISH ARBITRARY ABSOLUTE LIMITS ON THE ASSIGNMENT OF OUTDOOR
TRAINING, WHICH LIMITS ARE NOT BASED ON HEALTH AND SAFETY
CONSIDERATIONS. THUS, THE UNION'S PROPOSAL, BY PLACING ABSOLUTE LIMITS
ON THE AGENCY'S ABILITY TO ASSIGN TRAINING TO UNIT PERSONNEL DURING DUTY
HOURS VIOLATES THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION
7106(A)(2)(B) OF THE STATUTE.
UNION PROPOSAL II
ARTICLE XXIV
HOLIDAYS
THE FOLLOWING DAYS ARE RECOGNIZED AS HOLIDAYS UNDER THIS AGREEMENT:
NEW YEARS DAY
LINCOLN'S BIRTHDAY
WASHINGTON'S BIRTHDAY
MEMORIAL DAY
FOURTH OF JULY
LABOR DAY
COLUMBUS DAY
VETERANS DAY
THANKSGIVING DAY
CHRISTMAS EVE DAY
CHRISTMAS DAY
1) WORKING CONDITIONS ON THE ABOVE DAYS WILL BE MINIMAL BASED ON THE
REDUCED WORKLOAD IN THE SHIPYARD ON THE ABOVE DAYS.
2) IN-STATION DUTIES SHALL ONLY CONSIST OF THOSE DETAILS WHOSE
COMPLETION IS NECESSARY FOR NORMAL STATION MAINTENANCE AND SAFE
LIVING CONDITIONS.
3) ANY DAY DECLARED A FEDERAL HOLIDAY BY ANY FEDERAL AGENCY, THE
ABOVE PROVISIONS WILL BE OBSERVED.
4) SATURDAY AFTERNOON AND SUNDAYS SHALL APPLY TO THE ABOVE
PROVISIONS.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION
7106(A)(2)(B) OF THE STATUTE /2/ SINCE IT CONCERNS THE ASSIGNMENT OF
WORK AND, IN ADDITION, WHETHER THAT PORTION OF THE PROPOSAL LISTING
HOLIDAYS VIOLATES 5 U.S.C. 6103. /3/
OPINION
CONCLUSION: THE PROPOSAL VIOLATES MANAGEMENT'S RIGHT UNDER SECTION
7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK AND, IN ADDITION, THAT
PORTION OF THE PROPOSAL LISTING HOLIDAYS VIOLATES 5 U.S.C. 6103.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS
NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
REASONS: BY ITS EXPRESS PROVISIONS, THE PROPOSAL SEEKS TO LIMIT THE
PARTICULAR DUTIES WHICH MAY BE ASSIGNED TO UNIT EMPLOYEES ON SATURDAY
AFTERNOONS, SUNDAYS AND HOLIDAYS. NOTWITHSTANDING THE FACT THAT THE
BASIC WORKWEEK OF FIRE FIGHTERS INCLUDES SATURDAYS, SUNDAYS AND
HOLIDAYS, THERE IS NOTHING IN THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE OR ITS LEGISLATIVE HISTORY WHICH INDICATES THAT THE
RIGHT TO ASSIGN WORK IS LIMITED TO NORMAL DUTY DAYS. THUS, THE UNION'S
PROPOSAL BY PROSCRIBING THE DUTIES FIRE FIGHTERS MAY BE ASSIGNED ON
CERTAIN DAYS VIOLATES MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) TO
ASSIGN WORK. IN ADDITION, BY INCLUDING IN A LIST OF HOLIDAYS DAYS WHICH
ARE NOT RECOGNIZED AS HOLIDAYS IN FEDERAL LAW, THE PROPOSAL, TO THAT
EXTENT, ALSO VIOLATES 5 U.S.C. 6103.
PROPOSAL NO. III
ARTICLE XV
SECTION 5-- MERIT PROMOTION EVALUATION PROCEDURES WILL
BE SO CONDUCTED AS TO DETERMINE THE MOST HIGHLY QUALIFIED
CANDIDATES FROM A LIST OF ELIGIBLES. ALL EVALUATION
METHODS WILL BE ADMINISTERED SO AS TO DETERMINE SKILL
LEVELS ON A CUMULATIVE BASIS UP TO THE VACANCY ANNOUNCEMENT
DATE. EVALUATION DATA MUST BE DETERMINED BY SUPERVISORS
EVALUATION, PERFORMANCE EVALUATION, ORAL INTERVIEW, AND
ACADEMIC ACHIEVEMENT. EACH OF THE METHODS OUTLINED IN
SUB-PARAGRAPHS 5A, 5B, 5C, WILL COUNT 30; TOWARD THE
FINAL SCORE. ACADEMIC ACHIEVEMENT OUTLINED IN SUB-PARAGRAPH
1D, WILL COUNT THE ADDITIONAL 10% NEEDED TO TOTAL 100%.
A. SUPERVISOR'S EVALUATION
1. SUPERVISORY EVALUATION WILL BE LIMITED TO TWO SUPERVISORS.
A. NO EVALUATION WILL COVER ANY PERIOD OF PERFORMANCE IN
EXCESS OF 2 1/2 YEARS PAST.
2. THE EVALUATOR MUST HAVE BEEN EMPLOYEE'S SUPERVISOR FOR A PERIOD
OF THREE MONTHS EXCEPT IN CASES WHERE EMPLOYEE'S PRIOR SUPERVISOR IS
UNABLE TO TENDER AN EVALUATION DUE TO SICKNESS OR DEATH.
3. NO EVALUATION IS TO BE SUBMITTED BY ANY SUPERVISOR BELOW RANK OF
GS-6 (EXCEPT IN CASES OF TEMPORARY PROMOTIONS TO GS-6, AND THEN ONLY
DURING THE TIME THE PROMOTION IS IN EFFECT, AND THE SUPERVISOR IS HIMSELF
NOT COMPETING FOR THE SAME POSITION.)
4. EVALUATIONS WILL BE DISCUSSED WITH APPLICANT BY RATER PRIOR TO
SUBMISSION OF EVALUATION FORM TO THE CIVILIAN PERSONNEL OFFICER IF
REQUESTED BY THE APPLICANT. (ANY EVALUATION BASED ON POTENTIAL WILL
NOT BE DISCUSSED WITH APPLICANT.)
5. SUPERVISORS EVALUATIONS WILL CARRY THE FOLLOWING RELATIVE WEIGHT:
A. CURRENT SUPERVISOR = 100%
B. ANY OTHER SUPERVISOR = 80%
C. SUPERVISORS EVALUATIONS WILL BE COMPUTED AS FOLLOWS:
1. SUBTRACT LOW SCORE FROM HIGH SCORE.
2. TAKE 80% OF THE DIFFERENCE.
3. DIVIDE THE DIFFERENCE BY 2.
4. ADD THE RESULT TO THE CURRENT SUPERVISOR'S SCORE IF IT IS LOWER
THAN THE "OTHER" SUPERVISOR'S SCORE, OR SUBTRACT THE RESULT FROM
THE CURRENT SUPERVISOR'S SCORE IF IT IS HIGHER THAN THE "OTHER"
SUPERVISOR'S SCORE. AN EXAMPLE FOLLOWS:
CURRENT SUPERVISOR'S RATE = 92.0
OTHER SUPERVISOR = 76.0
DIFFERENCE IN SCORES = 16.0
80% OF 16 = 12.8
1/2 OF 12.8 = 6.4
92.0-- 6.4 FINAL EVALUATION SCORE OF 85.6
6. NO EMPLOYEE WILL BE RATED BY A FORMER SUPERVISOR WHO HAS LEFT THE
EMPLOY OF THE FIRE DEPARTMENT OF PHILADELPHIA NAVAL SHIPYARD.
7. EVERY EFFORT WILL BE MADE TO SECURE TWO EVALUATIONS. IN CASES
WHERE THIS IS NOT POSSIBLE, DUE TO AN EMPLOYEE ONLY HAVING ONE SUPERVISOR,
DEATH TO A SUPERVISOR, OR UNDER THE CONDITIONS OUTLINED IN NO. 6 ABOVE,
A SECOND EVALUATION WILL BE OBTAINED FROM THE EMPLOYEE'S PLATOON ASSISTANT
CHIEF. THE ASSISTANT CHIEF MAY NOT THEN BE DESIGNATED AS THE SELECTING
OFFICIAL IF THE EMPLOYEE RATED BY HIM IS IN THE AREA OF CONSIDERATION.
B. PERFORMANCE EVALUATION
1. THE TYPE OF EVALUATION WILL BE DETERMINED BY FIRE DEPARTMENT
CHIEF OFFICERS. THE UNION PRESIDENT WILL BE CONSULTED REGARDING THE
TYPE OF EVALUATION. (IF UNION PRESIDENT IS TO BE EVALUATED, THE
CONSULTATION WILL BE WITH THE NEXT IN LINE UNION OFFICER NOT TO BE EVALUATED.)
2. THE EVALUATION WILL BE OBSERVED BY A NON-PARTICIPATING UNION
REPRESENTATIVE UNLESS AN INDIVIDUAL OBJECTS, OBJECTIONS TO BE SUBMITTED
IN WRITING.
3. GRADES WILL BE DETERMINED BY PANEL OF AT LEAST TWO FIRE
DEPARTMENT DESIGNATED GS-5'S AND/OR GS-6'S WHO WILL USE A NUMERICAL
SCORING SYSTEM AND AWARD EACH APPLICANT AN AVERAGE OF HIS TOTAL POINTS.
IN THE EVENT THE APPLICANT'S DRIVING ABILITY IS TO BE EVALUATED, THE
SERVICES OF A THIRD PARTY SUCH AS THE MOTOR VEHICLE OPERATOR LICENSING
EXAMINER OR A MOTOR VEHICLE OPERATOR FOREMAN, WILL BE ACQUIRED FOR
THAT PURPOSE. (EXAMPLE: #1 EVALUATOR SCORES 90, #2 - 85 SCORE,
#3-84 SCORE = 86.3)
C. ORAL INTERVIEW
1. INTERVIEW WILL BE CONDUCTED BY AT LEAST THREE BUT NOT MORE THAN
FIVE FIRE DEPARTMENT CHIEF OFFICERS.
2. ALL INTERVIEWERS WILL ASK SAME AMOUNT OF JOB RELATED QUESTIONS.
THE APPLICANT'S SCORE WILL THEN BE TOTALED AND AVERAGED TO DETERMINE
EACH APPLICANT'S ORAL NTERVIEW RATING.
3. APPROPRIATE MEASURES WILL BE TAKEN TO INSURE THAT THERE WILL BE
NO RELATED VERBAL EXCHANGES BETWEEN THOSE APPLICANTS ALREADY INTERVIEWED AND THOSE NOT
YET INTERVIEWED.
4. INTERVIEW WILL BE OBSERVED BY A NON-PARTICIPATING UNION
REPRESENTATIVE UNLESS AN INDIVIDUAL OBJECTS; SUCH OBJECTION TO BE
SUBMITTED IN WRITING.
D. CREDIT FOR ACADEMIC ACHIEVEMENT WILL BE GIVEN AS FOLLOWS:
1. 60 UNITS OF COLLEGE CREDIT WILL COUNT 100% OF THE 10; DESIGNATED
FOR ACADEMIC ACHIEVEMENT.
2. FIRE SCIENCE AND JOB RELATED COURSES COUNT FULL VALUE.
3. OTHER COURSES INCLUDED IN THE FIRE SCIENCE A.A. DEGREE CURRICULUM
(WITH THE EXCEPTION OF PHYSICAL EDUCATION, AND CREDITS GIVEN WITHOUT CLASSROOM
ATTENDANCE) WILL RECEIVE ONE-HALF VALUE.
4. CREDITS EARNED BY COURSE CHALLENGES WILL GET THEIR PROPER VALUE
AS LONG AS THEY MEET THE REQUIREMENTS OF 2 AND 3 ABOVE.
SECTION 6-- IT SHALL BE THE RESPONSIBILITY OF MANAGEMENT, WITH
COOPERATION OF THE UNION, TO MAKE EVERY EFFORT TO INSURE THAT ALL FIRE
DEPARTMENT PERSONNEL BE GIVEN A COMPLETE BRIEFING ON ALL RESPECTS OF
THIS EVALUATION PROCEDURE.
SECTION 7-- PROMOTION REGISTERS TO GS-5 AND GS-6 WILL STAND FOR NO
LONGER THAN NINE (9) MONTHS.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE
OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE, /4/ BECAUSE IT
CONCERNS MATTERS THAT ARE NOT CONDITIONS OF EMPLOYMENT OF UNIT
EMPLOYEES.
OPINION
CONCLUSION: TO THE EXTENT THAT THE PROPOSAL CONCERNS PROMOTION
PROCEDURES FOR BARGAINING UNIT POSITIONS IT IS WITHIN THE OBLIGATION TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE. HOWEVER, TO THE EXTENT THAT
THE PROPOSAL WOULD APPLY PROMOTION PROCEDURES TO NONBARGAINING UNIT
SUPERVISORY POSITIONS IT IS NEGOTIABLE ONLY AT THE ELECTION OF THE
AGENCY. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS, 45 F.R. 3513, SINCE THE AGENCY HAS ELECTED NOT TO
NEGOTIATE PROMOTION PROCEDURES FOR NONBARGAINING UNIT SUPERVISORY
POSITIONS, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN BECAUSE IT EXTENDS TO SUCH NONBARGAINING UNIT
SUPERVISORY POSITIONS IS TO THAT EXTENT SUSTAINED.
REASONS: THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO THE
CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. /5/ IN THIS
REGARD, SUPERVISORS ARE SPECIFICALLY EXCLUDED FROM INCLUSION IN
COLLECTIVE BARGAINING UNITS. /6/ AS RELEVANT IN THE CIRCUMSTANCES OF
THIS CASE, THE AGENCY CLAIMS AND THE UNION TACITLY ADMITS, THAT THE GS-6
POSITIONS IDENTIFIED IN THE PROPOSED PROMOTION PROCEDURES ARE CLASSIFIED
AS SUPERVISORY AND, THUS, ARE OUTSIDE OF THE BARGAINING UNIT. /7/
WHILE AN AGENCY IS NOT PROHIBITED FROM BARGAINING ON AND, THEREFORE,
MAY, AT ITS ELECTION, BARGAIN ON THE PROMOTION PROCEDURES FOR SUCH
NONBARGAINING UNIT SUPERVISORY POSITIONS, IT IS NOT OBLIGATED TO DO SO.
CONSEQUENTLY, SINCE THE AGENCY IN THIS CASE HAS ELECTED NOT TO BARGAIN
ON THE PROMOTION PROCEDURES FOR SUPERVISORY PERSONNEL, THE AGENCY'S
ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN, IS TO
THAT EXTENT, SUSTAINED.
UNION PROPOSAL IV
ARTICLE X
OVERTIME
SECTION 4-- THE EMPLOYER AGREES THAT FOR THE PURPOSE OF APPLYING
SECTION 7(K) OF THE FAIR LABOR STANDARDS ACT, /8/ THE WORK PERIOD
SHALL CONSIST OF A 7 DAY PERIOD.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN EITHER BECAUSE IT CONCERNS A MATTER SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE AND IS, THUS, EXCLUDED FROM THE DEFINITION OF CONDITIONS
OF EMPLOYMENT UNDER SECTION 7103(A)(14) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, /9/ OR BECAUSE IT VIOLATES
MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE /10/ TO
DETERMINE THE AGENCY'S BUDGET, ORGANIZATION AND NUMBER OF EMPLOYEES.
CONCLUSION: THE UNION'S PROPOSAL DOES NOT CONCERN A MATTER WHICH IS
SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE AND, FURTHER, DOES NOT
VIOLATE SECTION 7106(A)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513,
THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN IS SET ASIDE. /11/
OPINION
REASONS: AS PREVIOUSLY INDICATED, (NOTE 8, SUPRA) SECTION 7(K) OF
THE FSLA PROVIDES, AS RELEVANT IN THIS CASE, THAT FIRE FIGHTERS WILL
RECEIVE OVERTIME UNDER THE FLSA FOR ALL HOURS WORKED IN EXCESS OF 216
HOURS IN A 28 DAY PERIOD OR PROPORTIONALLY FEWER HOURS FOR A
PROPORTIONALLY SHORTER WORK PERIOD, E.G., 108 HOURS FOR A 14 DAY WORK
PERIOD (AS IS CURRENTLY UTILIZED BY THE AGENCY) OR 54 HOURS FOR A SEVEN
DAY WORK PERIOD (AS PROPOSED BY THE UNION). /12/
THIS UTILIZATION OF A SEVEN DAY WORK PERIOD RESULTS IN SOME
CIRCUMSTANCES IN A DIFFERENT OVERTIME ENTITLEMENT THAN IF A FOURTEEN DAY
WORK PERIOD IS SELECTED. FOR EXAMPLE, THE FIRE FIGHTERS IN THIS CASE
ARE SCHEDULED TO WORK THREE 24 HOUR DAYS EACH WEEK FOR A TOTAL OF 144
HOURS FOR THE TWO WEEK PERIOD. THUS, UNDER THE AGENCY'S PRACTICE THESE
FIRE FIGHTERS WILL BE ENTITLED TO 36 HOURS (144 MINUS 108) OF OVERTIME.
UNDER THE UNION'S PROPOSAL ON THE OTHER HAND, WHICH CONTEMPLATES A
SEVEN DAY PERIOD FOR THE CALCULATION OF OVERTIME, FIRE FIGHTERS WOULD BE
ENTITLED TO OVERTIME COMPENSATION FOR ALL HOURS WORKED IN EXCESS OF 54 A
WEEK. ASSUMING, THE FIRE FIGHTERS WORK THE SAME 72 HOURS (THREE 24 HOUR
DAYS) EACH WEEK THEY WOULD BE ENTITLED TO 18 HOURS OF OVERTIME EACH WEEK
(72 MINUS 54) OR 36 HOURS FOR TWO WEEKS. IN THIS SITUATION THEN, THE
UNION'S PROPOSAL WILL RESULT IN THE SAME OVERTIME ENTITLEMENT AS UNDER
THE CURRENT AGENCY PROCEDURE.
IN TWO OTHER SITUATIONS HOWEVER, THE UNION'S PROPOSAL WOULD RESULT IN
MORE OVERTIME BEING PAYABLE THAN UNDER THE AGENCY'S CURRENT PRACTICE.
THE FIRST OF THOSE TWO SITUATIONS WOULD OCCUR WHEN A FIRE FIGHTER IS ON
LEAVE FOR ONE DAY DURING THE TWO WEEK PERIOD. UNDER THE FLSA, TIME NOT
WORKED IS SUBTRACTED FROM THE SCHEDULED TIME TO DETERMINE THE FIRE
FIGHTERS POTENTIAL OVERTIME ENTITLEMENT AS FOLLOWS:
1. UNDER THE AGENCY'S CURRENT PROCEDURE (OVERTIME FOR HOURS WORKED
IN EXCESS OF 108 IN A 14 DAY PERIOD) (TABLE OMITTED)
2. UNDER THE UNION'S PROPOSAL (OVERTIME FOR HOURS WORKED IN EXCESS
OF 54 IN A SEVEN DAY PERIOD) (TABLE OMITTED)
THUS, UNDER THE UNION'S PROPOSAL THE FIRE FIGHTER WOULD BE ENTITLED
TO SIX MORE HOURS OVERTIME THAN UNDER THE AGENCY'S CURRENT PRACTICE (18
HOURS INSTEAD OF 12 HOURS).
IN THE SECOND SITUATION, WHERE A FIRE FIGHTER IS OFF ONE DAY THE
FIRST WEEK AND THEN WORKS AN ADDITIONAL SHIFT THE SECOND WEEK, THE FIRE
FIGHTER WOULD BE ENTITLED TO MORE OVERTIME UNDER THE UNION'S PROPOSAL
THAN UNDER THE AGENCY'S CURRENT PRACTICE AS FOLLOWS:
1. UNDER THE AGENCY'S CURRENT PRACTICE (TABLE OMITTED)
2. UNDER THE UNION'S PROPOSAL (TABLE OMITTED)
Thus, under the union's proposl the fire fighter would be entitled
to six more hours overtime under the agency's current practice (18 hours
instead of 12 hours).
In the second situration, where a fire fighter is off one day the
first week and then works an additional shift the second week, the
fire figher would be entitled to more overtime under the union's
current proposal then under the agency's current practice as follows:
1. Under the agency's current practice ( TABLE OMMITTED )
2. Under the union's proposal ( TABLE OMMITTED )
THUS, IN THIS SITUATION THE FIRE FIGHTER WOULD BE ENTITLED TO 42
HOURS OF OVERTIME INSTEAD OF 36 HOURS UNDER THE AGENCY'S CURRENT
PRACTICE.
THE AGENCY FIRST CLAIMS THAT UNDER SECTION 7(K) OF THE FLSA THE
AGENCY HEAD HAS SOLE DISCRETION TO DETERMINE THE LENGTH OF THE WORK
PERIOD REFERRED TO IN SECTION 7(K). THUS, THE AGENCY ARGUES, SINCE THE
DETERMINATION OF WORK PERIODS IS SPECIFICALLY PROVIDED FOR BY FEDERAL
STATUTE, SUCH DETERMINATION IS EXCLUDED FROM THE OBLIGATION TO BARGAIN
BY SECTION 7103(A)(14) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE. IN SUPPORT THE AGENCY PRINCIPALLY RELIES ON THE LEGISLATIVE
HISTORY OF SECTION 7(K) OF THE FLSA, TWO UNSUCCESSFUL LEGISLATIVE
ATTEMPTS TO ACHIEVE A REDUCTION IN THE WORK WEEK AND A FEDERAL COURT
DECISION SUSTAINING THE USE OF THE 14 DAY WORK PERIOD IN CALCULATING
FLSA OVERTIME.
THE AGENCY'S CLAIM CANNOT BE SUSTAINED. IT IS CLEAR FROM THE
LEGISLATIVE HISTORY OF SECTION 7103(A)(14) OF THE STATUTE THAT ONLY
THOSE MATTERS SPECIFICALLY PROVIDED FOR BY OTHER FEDERAL STATUTES ARE
EXCEPTED FROM THE OBLIGATION TO NEGOTIATE. /13/ IN THIS REGARD, THE
AGENCY HAS FAILED TO DEMONSTRATE THAT THE DETERMINATION OF THE LENGTH OF
THE WORK PERIOD USED TO CALCULATE FLSA OVERTIME CANNOT UNDER SECTION
7(K) OF THE FLSA BE ARRIVED AT THROUGH NEGOTIATIONS AS LONG AS THE
CONSTRAINTS SPECIFIED IN SECTION 7(K) ARE MET, I.E., THAT THE LENGTH OF
THE WORK PERIOD BE AT LEAST SEVEN AND NOR MORE THAN 28 DAYS. IN
ADDITION, THERE IS NO INDICATION IN THE IMPLEMENTING REGULATIONS
CONTAINED IN THE FEDERAL PERSONNEL MANUAL /14/ THAT THE DISCRETION
DELEGATED TO AGENCY HEADS TO DETERMINE THE LENGTH OF THE WORK PERIOD
ALSO COULD NOT BE EXERCISED THROUGH NEGOTIATIONS.
AS TO THE AGENCY'S RELIANCE ON TWO UNSUCCESSFUL LEGISLATIVE ATTEMPTS
TO CHANGE THE WORK WEEK OF FIRE FIGHTERS AS SUPPORT FOR THE CLAIM THAT
THE SECTION 7(K) DETERMINATION IS WITHIN THE AGENCY'S SOLE DISCRETION,
SUCH RELIANCE IS MISPLACED. BOTH H.R. 4634 INTRODUCED IN THE 94TH
CONGRESS AND H.R. 3161 INTRODUCED IN THE 95TH CONGRESS WOULD HAVE CAUSED
A REDUCTION IN THE ACTUAL HOURS FIRE FIGHTERS WORK FROM 72 TO AN AVERAGE
OF 54 (H.R. 4634) OR AN AVERAGE OF 54 (H.R. 3161 WITH NO REDUCTION IN
TITLE 5 OVERTIME (NOTE 12, SUPRA). THE UNION'S PROPOSAL HERE INVOLVED
HOWEVER, CONCERNS ONLY THE CALCULATION OF FLSA OVERTIME AND WOULD NOT
REQUIRE ANY REDUCTION IN THE 72 HOUR WORKWEEK OF FIRE FIGHTERS.
FINALLY, THE AGENCY'S RELIANCE ON A FEDERAL COURT DECISION SUSTAINING
THE USE OF A 14 DAY WORK PERIOD IS ALSO MISPLACED. IN THAT CASE, /15/
THE COURT REJECTED A UNION CONTENTION THAT AN AGENCY WAS MANDATED BY
TITLE 5 TO UTILIZE A SEVEN DAY WORK PERIOD. THE COURT INDICATED THAT
THE FLSA-SANCTIONED WORK PERIODS WHICH RANGED FROM SEVEN TO 28 DAYS AND
THAT "CONGRESS INTENDED TO VEST DISCRETION WITH THE . . . CIVIL SERVICE
COMMISSION IN ESTABLISHING THE APPLICABLE WORK PERIODS. . . . " AS
NOTED ABOVE, SUCH DISCRETION WAS IN TURN DELEGATED TO AGENCY HEADS.
THEREFORE, SINCE NOTHING IN SECTION 7(K) OF THE FLSA SPECIFICALLY
PROVIDES FOR THE LENGTH OF THE WORK PERIOD USED TO CALCULATE FLSA
OVERTIME OR PRECLUDES THE NEGOTIATION OF SUCH PERIOD, THE MATTER IS NOT
EXCLUDED FROM THE DUTY TO BARGAIN BY SECTION 7103(A)(14) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
TURNING NOW TO THE AGENCY'S ALLEGATIONS THAT THE UNION'S PROPOSAL
WOULD VIOLATE MANAGEMENT'S 7106(A)(1) RIGHTS TO DETERMINE THE BUDGET,
ORGANIZATION AND NUMBERS OF EMPLOYEES, SUCH ALLEGATIONS WILL BE DEALT
WITH IN TURN.
THERE IS NO QUESTION BUT THAT CONGRESS INTENDED THAT ANY PROPOSAL
WHICH WOULD DIRECTLY INFRINGE ON THE EXERCISE OF MANAGEMENT RIGHTS UNDER
SECTION 7106 OF THE STATUTE WOULD BE BARRED FROM NEGOTIATIONS. /16/ THE
RIGHT TO DETERMINE THE "BUDGET" WAS INTERPRETED AND APPLIED IN THE AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO CASE.
/17/ THAT DECISION STATED IN PERTINENT PART:
. . . THE AGENCY'S AUTHORITY TO DETERMINE ITS BUDGET EXTENDS
TO THE DETERMINATION OF THE PROGRAMS AND OPERATIONS WHICH WILL
BE INCLUDED IN THE ESTIMATE OF PROPOSED EXPENDITURES AND
THE DETERMINATION OF THE AMOUNTS REQUIRED TO FUND THEM. UNDER THE
STATUTE, THEREFORE, AN AGENCY CANNOT BE REQUIRED TO NEGOTIATE THOSE
PARTICULAR BUDGETARY DETERMINATIONS. THAT IS, A UNION PROPOSAL
ATTEMPTING TO PRESCRIBE THE PARTICULAR PROGRAMS OR OPERATIONS THE
AGENCY WOULD INCLUDE IN ITS BUDGET OR TO PRESCRIBE THE AMOUNT TO
BE ALLOCATED IN THE BUDGET FOR THEM WOULD INFRINGE UPON THE
AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1)
OF THE STATUTE.
[HOWEVER], WHERE A PROPOSAL DOES NOT BY ITS TERMS PRESCRIBE THE
PARTICULAR PROGRAMS OR AMOUNTS TO BE INCLUDED IN AN AGENCY'S
BUDGET, NEVERTHELESS IS ALLEGED TO VIOLATE THE AGENCY'S RIGHT
TO DETERMINE ITS BUDGET BECAUSE OF INCREASED COST, CONSIDERATION
MUST BE GIVEN TO ALL THE FACTORS INVOLVED. THAT IS, RATHER
THAN BASING A DETERMINATION AS TO THE NEGOTIABILITY OF THE PROPOSAL
ON INCREASED COST ALONE, THAT ONE FACTOR MUST BE WEIGHED AGAINST
SUCH FACTORS AS THE POTENTIAL FOR IMPROVED EMPLOYEE PERFORMANCE,
INCREASED PRODUCTIVITY, REDUCED TURNOVER, FEWER GRIEVANCES, AND
THE LIKE. ONLY WHERE AN AGENCY MAKES A SUBSTANTIAL DEMONSTRATION
THAT AN INCREASE IN COSTS IS SIGNIFICANT AND UNAVOIDABLE AND IS
NOT OFFSET BY COMPENSATING BENEFITS CAN AN OTHERWISE NEGOTIABLE
PROPOSAL BE FOUND TO VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS
BUDGET UNDER SECTION 7106(A) OF THE STATUTE.
THE PROPOSAL HERE IN DISPUTE DOES NOT BY ITS EXPRESS TERMS PRESCRIBE
THE PARTICULAR AMOUNT TO BE INCLUDED IN THE AGENCY'S BUDGET. THE AGENCY
ARGUES THAT ADOPTION OF THE PROPOSAL WOULD RESULT IN AN INCREASED COST
IN EXCESS OF $3.1 MILLION PER YEAR "WITH NO COUNTERVAILING BENEFITS TO
THE GOVERNMENT." THIS CLAIMED INCREASE IN COST IS NOT BASED SOLELY ON
ADOPTION OF THE PROPOSAL IN THE BARGAINING UNIT HERE INVOLVED WHICH
CONTAINS LESS THAN 50 FIRE FIGHTERS. /18/ RATHER, IT IS THE PRODUCT OF
COMPUTATIONS INVOLVING ALL THE MORE THAN 10,000 FIRE FIGHTERS IN THE
DEPARTMENT OF DEFENSE AND ASSUMES THAT THE ALL ARRANGE FOR WORK AND
LEAVE SCHEDULES WHICH WOULD ENTITLE THEM TO THE MAXIMUM AMOUNT OF
OVERTIME TO WHICH ONE COULD BE ENTITLED UNDER THE DISPUTED PROPOSAL.
MOREOVER, THE AGENCY HAS MADE NO SUBSTANTIAL DEMONSTRATION THAT THE
INCREASED COSTS, WHICH IT HYPOTHESIZES, ARE UNAVOIDABLE AND WILL NOT BE
OFFSET BY INCREASED EMPLOYEE PERFORMANCE, REDUCED TURNOVER, FEWER
GRIEVANCES AND THE LIKE. CONSEQUENTLY, PROPOSAL IV DOES NOT VIOLATE THE
RIGHT OF THE AGENCY TO DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1) OF
THE STATUTE.
AS TO THE AGENCY'S ARGUMENTS THAT THE UNION'S PROPOSAL WOULD REQUIRE
THE AGENCY TO ALTER ITS ORGANIZATION AND NUMBER OF EMPLOYEES ASSIGNED,
SUCH ARGUMENTS CANNOT BE SUSTAINED. THERE IS NOTHING IN THE PROPOSAL
WHICH WOULD REQUIRE OR RESULT IN A CHANGE OF EITHER THE NUMBER OF FIRE
FIGHTERS ASSIGNED OR A CHANGE IN THE 72 HOUR PER WEEK WORK SCHEDULE.
THE UNION'S PROPOSAL ONLY WOULD ESTABLISH A DIFFERENT WORK PERIOD FOR
THE CALCULATION OF FLSA OVERTIME, AND IN THIS REGARD, THE AGENCY HAS NO
LAW OR REGULATION INDICATING THAT THIS WORK PERIOD MUST COINCIDE WITH AN
ALREADY ESTABLISHED PAY PERIOD OR AN ALREADY ESTABLISHED WORK SCHEDULE.
THEREFORE, SINCE THE UNION'S PROPOSAL IS NOT DIRECTLY RELATED TO THE
"ORGANIZATION" OF THE AGENCY OR TO "THE NUMBER OF EMPLOYEES ASSIGNED,"
IT IS NOT EXCLUDED FROM THE DUTY TO BARGAIN BY SECTION 7106(A)(1) OF THE
STATUTE.
IN SUMMARY, THE AGENCY HAS DISCRETION UNDER SECTION 7(K) OF THE FLSA
AND IMPLEMENTING REGULATIONS TO ESTABLISH THE WORK PERIOD TO BE USED TO
CALCULATE OVERTIME AS AT LEAST SEVEN AND NOT MORE THAN 28 DAYS. THERE
IS NO INDICATION THAT SUCH DISCRETION WAS INTENDED TO BE SOLE AND
EXCLUSIVE AND COULD NOT BE EXERCISED THROUGH NEGOTIATION WITH THE UNION.
FURTHERMORE, NEGOTIATION OF THE WORK PERIOD WITHIN THE STATUTORY LIMITS
DOES NOT VIOLATE THE RIGHTS RESERVED TO MANAGEMENT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
ACCORDINGLY, SINCE UNION PROPOSAL IV CONCERNS A MATTER WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, THE AGENCY'S ALLEGATION TO
THE CONTRARY IS SET ASIDE.
ISSUED, WASHINGTON, D.C., JUNE 24, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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/1/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . .
(B) TO ASSIGN WORK . . .
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/2/ SECTION 7106(A)(2)(B) WHICH IS SET OUT IN FULL IN NOTE 2 SUPRA,
PROVIDES AS HERE RELEVANT THAT "NOTHING . . . SHALL AFFECT THE AUTHORITY
OF ANY MANAGEMENT OFFICIAL . . . TO ASSIGN WORK."
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/3/ 5 U.S.C. 6103 PROVIDES, AS HERE RELEVANT, AS FOLLOWS:
SEC. 6103. HOLIDAYS
(A) THE FOLLOWING ARE LEGAL PUBLIC HOLIDAYS:
NEW YEAR'S DAY, JANUARY 1.
WASHINGTON'S BIRTHDAY, THE THIRD MONDAY IN FEBRUARY
MEMORIAL DAY, THE LAST MONDAY IN MAY.
INDEPENDENCE DAY, JULY 4.
LABOR DAY, THE FIRST MONDAY IN SEPTEMBER.
COLUMBUS DAY, THE SECOND MONDAY IN OCTOBER.
VETERANS DAY, NOVEMBER 11.
THANKSGIVING DAY, THE FOURTH THURSDAY IN NOVEMBER.
CHRISTMAS DAY, DECEMBER 25 . . .
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/4/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATIONS.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE:
SEC. 7103. DEFINITIONS; APPLICATION
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . .
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . .
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/5/ ID.
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/6/ SECTION 7112(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
REPRESENTATION
. . . .
(B) . . . NOR SHALL A UNIT BE DETERMINED TO BE APPROPRIATE IF IT
INCLUDES--
(1) . . . ANY . . . SUPERVISOR . . .
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/7/ NO DETERMINATION IS MADE IN THIS CASE AS TO WHETHER GS-6 "FIRE
CAPTAIN" POSITIONS WOULD BE CONSIDERED SUPERVISORY UNDER SECTION
7103(A)(10) OF THE STATUTE. SUCH A DETERMINATION WOULD PROPERLY BE THE
SUBJECT OF A PETITION FOR CLARIFICATION OF AN EXISTING UNITS FILED UNDER
PART 2422 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3498.
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/8/ SECTION 7K OF THE FAIR LABOR STANDARDS ACT (FLSA) (29 U.S.C.
207(K) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(K) NO PUBLIC AGENCY SHALL BE DEEMED TO HAVE VIOLATED (THE
REQUIREMENT TO PAY OVERTIME FOR
HOURS WORKED IN EXCESS OF 40 HOURS) WITH RESPECT TO THE EMPLOYMENT OF
ANY EMPLOYEE IN FIRE
PROTECTION ACTIVITIES . . . IF--
. . . .
(2) IN THE CASE OF SUCH AN EMPLOYEE TO WHOM A WORK PERIOD OF AT LEAST
7 BUT LESS THAN 28
DAYS APPLIES, IN HIS WORK PERIOD THE EMPLOYEE RECEIVES FOR TOURS OF
DUTY WHICH IN THE
AGGREGATE EXCEED A NUMBER OF HOURS WHICH BEARS THE SAME RATIO TO THE
NUMBER OF CONSECUTIVE
DAYS IN HIS WORK PERIOD . . . AS 216 HOURS BEARS TO 28 DAYS . . .
COMPENSATION AT A RATE NOT
LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS
EMPLOYED.
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/9/ SECTION 7103(A)(14) OF THE STATUTE PROVIDES, IN PERTINENT PART,
AS FOLLOWS:
(14) "CONDITIONS OF EMPLOYMENT" . . . DOES NOT INCLUDE POLICIES,
PRACTICES, AND MATTERS--
. . . .
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE.
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/10/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . BUDGET, ORGANIZATION, NUMBER OF EMPLOYEES
. . . OF THE AGENCY
. . .
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/11/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, NO JUDGMENT IS MADE AS TO THE MERITS OF THE PROPOSAL.
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/12/ IN ADDITION TO FLSA OVERTIME, FIRE FIGHTERS RECEIVE UNDER 5
U.S.C. 5545(C) A FIXED PERCENTAGE OF THEIR BASIC PAY (UP TO 25%) AS
COMPENSATION FOR STANDBY TIME, SUNDAY WORK AND HOLIDAY WORK.
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/13/ SEE STATEMENT OF CONGRESSMAN CLAY CONCERNING THAT PORTION OF THE
BILL PASSED BY THE HOUSE (THE "UDALL SUBSTITUTE") WHICH EXCLUDED MATTERS
SPECIFICALLY PROVIDED FOR BY OTHER FEDERAL STATUTES FROM THE OBLIGATION
TO BARGAIN WHICH PORTION WAS ENACTED AS 7103(A)(14)(C):
MR. CLAY.
. . . .
SECTION 7103(A)(14)(D), REMOVING FROM SUBJECTS OF BARGAINING THOSE
MATTERS SPECIFICALLY
PROVIDED FOR BY FEDERAL STATUTE, WAS ADOPTED BY THE COMMITTEE AND
RETAINED IN THE UDALL
SUBSTITUTE WITH THE CLEAR UNDERSTANDING THAT ONLY MATTERS
"SPECIFICALLY" PROVIDED FOR BY
STATUTE WOULD BE EXCLUDED UNDER THIS SUBSECTION. THUS, WHERE A
STATUTE MERELY VESTS AUTHORITY
OVER A PARTICULAR SUBJECT WITH AN AGENCY OFFICIAL WITH THE OFFICIAL
GIVEN DISCRETION IN
EXERCISING THAT AUTHORITY, THE PARTICULAR SUBJECT IS NOT EXCLUDED BY
THIS SUBSECTION FROM THE
DUTY TO TO BARGAIN OVER CONDITIONS OF EMPLOYMENT.
124 CONG.REC.H 9638 (DAILY ED. SEPT. 13, 1978).
SEE ALSO THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN 124 CONG.REC.H
9638 (DAILY ED. SEPT. 13, 1978).
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/14/ SEE FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 5551-5, JAN. 15,
1975.
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/15/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS V. UNITED STATES, 23
WH CASES 471 (D.D.C. JULY 15, 1977).
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/16/ SEE, FOR EXAMPLE, THE STATEMENT OF CONGRESSMAN CLAY, ONE OF THE
PROPONENTS OF THE "UDALL SUBSTITUTE," CONCERNING THE RIGHTS CLAUSE OF
THE "UDALL SUBSTITUTE:"
MR. CLAY.
. . . .
THE UDALL SUBSTITUTE CONTAINS A MANAGEMENT RIGHTS CLAUSE
SUBSTANTIALLY ENLARGED BEYOND THAT
IN THE COMMITTEE PRINT. AN IMPORTANT ELEMENT IN OUR AGREEING TO
ENTRUST SUCH AN EXPANDED
MANAGEMENT RIGHTS CLAUSE TO THE HANDS OF THE NEW AUTHORITY IS THE
EXAMPLE OF THE PROTECTION
AFFORDED THE COLLECTIVE BARGAINING PROCESS BY CONSCIENTIOUS SCRUTINY
OF MANAGEMENT CLAIMS OF
INFRINGEMENTS ON MANAGEMENT RIGHTS, ESPECIALLY AS FOUND IN THE TWO
1978 DECISIONS ABOVE. IF
THE NEW AUTHORITY IS FAITHFUL TO THESE INTERPRETATIVE GUIDELINES, THE
ULTIMATE EXERCISE OF THE
SPECIFIED MANAGERIAL RESPONSIBILITY, THE ONLY SUBJECT EXEMPTED FROM
THE BARGAINING OBLIGATION,
WILL BE PROTECTED AND THE GENERAL OBLIGATION TO BARGAIN OVER
CONDITIONS OF EMPLOYMENT WILL BE
UNIMPAIRED. HOWEVER, IT IS ESSENTIAL THAT ONLY THOSE PROPOSALS THAT
DIRECTLY AND INTEGRALLY
GO TO THE SPECIFIED MANAGEMENT RIGHTS BE BARRED FROM THE
NEGOTIATIONS.
124 CONG.REC. H9638 (DAILY ED. SEPT. 13, 1978).
SEE ALSO THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN, 124
CONG.REC.H 9649 (DAILY ED. SEPT. 13, 1978).
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/17/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE NO.
O-NG-40, 2 FLRA 77 (JAN. 31, 1980), REPORT NO. 31 AT 5 OF DECISION.
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/18/ SEE OFFICE OF LABOR MANAGEMENT RELATIONS, U.S. CIVIL SERVICE
COMMISSION, UNION RECOGNITION IN THE FEDERAL GOVERNMENT, 252 (1978).