[ v14 p432 ]
14:0432(68)NG
The decision of the Authority follows:
14 FLRA No. 68
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL 570, AFL-CIO-CLC
Union
and
DEPARTMENT OF THE ARMY,
YUMA PROVING GROUND, ARIZONA
Agency
Case No. O-NG-444
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
relating to the negotiability of six Union Proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Article XVI, Section 12.
All work shall be performed by personnel familiar with the code
requirements and are qualified for the class of work to be
performed.
Union Proposal 2
Article I, New Section 4.
All work and work tasks normally performed by "nonsupervisory
employees whose jobs are classified within the Department of Army
wage board job family as inside, outside electricians, electrical
lineman, and electrical motor repairer" will come under the
jurisdiction of the International Brotherhood of Electrical
Workers, Local 570, and under no circumstances be assigned outside
the unit.
Union Proposal 3
Article V, Section 2.
Bargaining unit employees will not be displaced by those
outside the bargaining unit except in the event of an emergency.
In National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981), the
Authority determined that a proposal which would limit management's
right to assign bargaining unit work violated section 7106(a)(2)(B) of
the Statute /2/ and hence was nonnegotiable. In this context, Union
Proposal 1 herein bears no material difference from Union Proposal 5
held to be outside the duty to bargain in Federal Aviation
Administration which would have required the continued assignment of
bargaining unit work to "qualified" bargaining unit employees. The
plain language of Union Proposal 1, herein, similarly would require the
Agency to assign work to "personnel familiar with code requirements and
qualified for the class of work to be performed." Hence, it also is
outside the duty to bargain.
Union Proposal 2 would, among other things, require that all work
normally performed by employees within certain job classifications would
under no circumstances be assigned outside the unit. Union Proposal 3,
similarly, would prevent the Agency from assigning bargaining unit work
to employees outside the bargaining unit in non-emergency situations.
Thus, these proposals restrict management's right to assign work and,
for the reasons stated in Federal Aviation Administration, are
inconsistent with the Agency's right to assign work pursuant to section
7106(a)(2)(B) of the Statute and are outside the duty to bargain.
Union Proposal 4
Article V, Section 1.
Overtime work for bargaining unit employees shall be paid for
at not less than time and one-half for the first two (2) hours
overtime. All overtime in excess of two (2) hours shall be at
double the straight time rate. Saturday overtime for the first
eight (8) hours will be paid for at time and one-half and all work
in excess will be paid at double the straight time rate. All
Sunday work will be double time. Holiday work will be time and
one-half plus Holiday Pay. (Only the underlined portions are
alleged to be nonnegotiable.)
Union Proposal 5
Article V, Section 4.
Employees required to work more than two (2) hours overtime
after his normal quitting time will be provided with one of the
following:
(1) A hot meal to be eaten on employer's time.
(2) A meal ticket to be used at employee's convenience.
(3) One (1) hour straight time pay in lieu of either (1) or
(2).
Under section 7103(a)(14)(C) of the Statute, matters specifically
provided for by Federal statute are expressly excluded from the
definition of conditions of employment and, hence, are not within the
duty to bargain. Union Proposal 4 concerns rates of premium pay to be
paid under certain conditions. However, as the Authority stated in
International Brotherhood of Electrical Workers, Local 2080, AFL-CIO-CLC
and Department of the Army, U.S. Corps of Engineers, Nashville,
Tennessee, 10 FLRA 222 (1982), the conditions under which premium pay
may be paid for prevailing rate employees, such as those involved in the
instant case, are specifically provided for by Federal statute, 5 U.S.C.
5544. /3/ Accordingly, Union Proposals 4 and 5 concern matters excluded
from the definition of "conditions of employment" and, therefore, are
not within the duty to bargain. American Federation of Government
Employees, AFL-CIO, Council of Federal Grain Inspection Locals and
United States Department of Agriculture, Federal Grain Inspection
Service, Washington, D.C., 3 FLRA 520 (1980), enforced sub nom. American
Federation of Government Employees, AFL-CIO, Council of Federal Grain
Inspection Locals v. Federal Labor Relations Authority, 653 F.2d 669
(D.C. Cir. 1981).
Union Proposal 6
Article V, Section 5.
An employee shall receive at least a minimum of four (4) hours
pay at the appropriate overtime rate if he is called back to work
on an overtime basis within his basic work week, or on one of his
scheduled non-workdays, even if he is not utilized for the full
four (4) hours. Overtime continuous with the starting or ending
of a shift is not covered by this section. Overtime to commence
when call back is acknowledged, and freedom of movement is
restricted by the mandate to return to his duty station.
Employees will be compensated for standing by when on call back
status and will be reimbursed at the rate of twenty-five cents
(25[) for each mile round trip from their home at Yuma Proving
Ground if called out. (Only the underlined portions are in
dispute.)
The first sentence of this proposal would establish four hours as the
minimum amount of callback overtime to be paid, even if the employee
does not work the full four hours. Thus, that portion of the proposal
is substantially identical to Union Proposal 3 in IBEW, Local 2085 and
Department of the Army, U.S. Corps of Engineers, 10 FLRA 222 (1982). In
that case, the Authority held the proposal inconsistent with the
provisions of 5 CFR 532.503(c) governing callback overtime for
prevailing rate employees covered under the instant proposal. /4/ The
Authority further found that 5 CFR 532.503(c) is a Government-wide rule
or regulation within the meaning of section 7117(a)(1) of the Statute.
Therefore, for the reasons stated in that case, the first sentence of
Union Proposal 6 is inconsistent with regulation and outside the duty to
bargain.
The second disputed sentence of Union Proposal 6 seeks to have the
callback overtime pay computation commence when the employee is
requested to return to the place of employment. The last sentence of
Union Proposal 6 would compensate an employee for standby when on
callback status and reimburse an employee for the mileage for travel
between residence and agency incident to callback overtime. However,
without statutory authority, overtime pay can only be made for actual
performance of work. /5/ Specifically, employees must place themselves
at their regular places of work and return to their own homes at their
own expense, absent statutory or regulatory authority to the contrary.
/6/ Since the Union has not presented such statutory authority the
Authority finds that these portions of the proposal are not within the
duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Union Proposals 1-6 be, and it hereby is, dismissed. Issued,
Washington, D.C., May 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency's request to dismiss the Union's petition for review
as untimely filed is denied. The petition was not untimely filed under
the Authority's Rules and Regulations based on the date of the Agency's
allegation made in response to the Union's written request. American
Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home
Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
/2/ Section 7106(a)(2)(B) provides 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(.)
/3/ 5 U.S.C. 5544 provides, in pertinent part:
Sec. 5544. Wage-board overtime and Sunday rates; computation.
(a) An employee whose pay is fixed and adjusted from time to
time in accordance with prevailing rates under section 5343 or
5349 of this title, or by a wage board or similar administrative
authority serving the same purpose, is entitled to overtime pay
for overtime work in excess of 8 hours a day or 40 hours a week.
However, an employee subject to this subsection who regularly is
required to remain at or within the confines of his post of duty
in excess of 8 hours a day in a standby or on-call status is
entitled to overtime pay only for hours of duty, exclusive of
eating and sleeping time, in excess of 40 a week. The overtime
hourly rate of pay is computed as follows:
(1) If the basic rate of pay of the employee is fixed on a
basis other than an annual or monthly basis, multiply the basic
hourly rate of pay by not less than one and one-half.
(2) If the basic rate of pay of the employee is fixed on an
annual basis, divide the basic annual rate of pay by 2,080 and
multiply the quotient by one and one-half.
(3) If the basic rate of pay of the employee is fixed on a
monthly basis, multiply the basic monthly rate of pay by 12 to
derive a basic annual rate of pay, divide the basic annual rate of
pay by 2,080, and multiply the quotient by one and one-half.
An employee subject to this subsection whose regular work
schedule includes an 8-hour period of service a part of which is
on Sunday is entitled to additional pay at the rate of 25 percent
of his hourly rate of basic pay for each hour of work performed
during that 8-hour period of service.
/4/ 5 CFR 532.503(c) provides:
Sec. 532.503 Overtime pay.
. . . .
(c) Callback overtime work. Irregular or occasional overtime
work performed by an employee on a day when work was not regularly
scheduled for the employee or for which the employee has been
required to return to the place of employment shall be considered
to be at least two hours in duration for the purpose of overtime
pay,
regardless of whether the employee performs work for two hours.
/5/ Comptroller General decision B-175452 (May 1, 1972).
/6/ 25 Com.Gen. 151, 155 (1945); Comptroller General decision
B-185974 (March 21, 1977).