21:0580(74)NG - POPA and Patent and Trademark Office, Dept. of Commerce -- 1986 FLRAdec NG
[ v21 p580 ]
21:0580(74)NG
The decision of the Authority follows:
21 FLRA No. 74
PATENT OFFICE PROFESSIONAL
ASSOCIATION
Union
and
PATENT AND TRADEMARK OFFICE,
DEPARTMENT OF COMMERCE
Agency
Case No. 0-NG-806
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 four Union proposals. /1/ The proposals arose in
negotiations between the parties over ground rules to be followed in
bargaining over a new basic agreement.
II. Procedural Issues
Preliminarily, the Agency asserts that the petition for review is not
properly before the Authority. It contends that it has requested that
the Federal Service Impasses Panel (the Panel) resolve an impasse
between itself and the Union regarding Proposals 1 and 2 without regard
to their negotiability. As for the remaining proposals addressed the
petition, it contends that, because the Union has refused to affirm that
those proposals would be before the Panel if no negotiability dispute
existed, the Union has failed to establish that the proposals are "real"
as opposed to "hypothetical." Thus, the Agency contends that the
petition for review as to these proposals does not meet the requirements
for Part 2424 of the Authority's Rules and Regulations. The Authority
rejects this condition.
In the Authority's view, nothing in the Statute or the Authority's
Rules and Regulations precludes a union from filing a petition for
review of a negotiability issue even though an agency has requested the
Panel to resolve an impasse without regard to the negotiability of the
proposal involved. In fact, the Authority has held that negotiability
issues which arise during the collective bargaining process (of which
the Panel operates as one aspect) must be resolved through appeal to the
Authority. Thus, while the Panel may bargain problems, negotiability
issues may be resolved only by the Authority. Interpretation and
Guidance, II FLRA 626 (1983). Additionally, the Authority finds that
nothing in the Statute or its Rules and Regulations provides that a
union must either submit a proposal to the Panel or declare its intent
to do so as a prerequisite to instituting a negotiability appeal with
respect to that proposal.
The Agency additionally contends with respect to various of the
proposals that it has not declared them nonnegotiable. The Authority
notes that the Union specifically requested, in writing, a declaration
by the Agency of its position on the negotiability of those proposals
and that the Agency effectively failed to respond to the request. Such
failure constitutes a constructive declaration of nonnegotiability which
gives rise to a right of appeal to the Authority. American Federation
Of Government Employees, AFL-CIO, Local 3028 and Department of Health
and Human Services, Public Health Service, Alaska Area Native Health
Service, 13 FLRA 697 (1984). Therefore, the Authority finds that the
petition is appropriately before it.
III. Union Proposals 1 and 2
Union Proposal 1
Section 3. Time
In accordance with past practice in the PTO, all POPA
bargaining team members, if otherwise in a duty status, shall be
authorized a reasonable amount of official time to perform all
necessary and relevant activities related to these negotiations.
For those members of POPA'S bargaining team who are engaged in
activities related to these negotiations outside of their regular
work hours, they shall be on compensated overtime or compensatory
time status, at the election of the employee.
Union Proposal 2
Section 4. Schedule
c. If negotiations extend beyond 300 hours the schedule will
be modified to add paid overtime or compensatory time sessions on
Saturdays. Both POPA and the PTO recognize that such paid
overtime and compensatory time may be authorized by reason of the
fact that all time spent by the POPA negotiating team in actual
negotiations constitutes official duty time. Any compensatory
time earned can be used only after a new basic agreement is
signed. POPA team members may accrue and use such compensatory
time without limitation.
A. Positions of the Parties
These two proposals seek to authorize payment of overtime or
compensatory time for participation in preparation for, and actual,
negotiations when participation occurs outside an employee's normal
working hours. The Agency asserts that it must have specific statutory
authority to grant pay and that nothing in section 7131 of the Statute
authorizes overtime compensation for Union representatives'
participation in representational activity when they would not otherwise
be in duty status. The Union contends that the entitlement to official
time under section 7131(a) of the Statute extends to overtime hours as
long as the Agency approves the overtime in advance. Additionally, the
Union argues that under the legal provisions governing overtime, 5
U.S.C. Section 5542, the Agency has discretion to pay the overtime
sought by these proposals.
B. Analysis and Conclusions
As is relevant here, /2/ payment of overtime compensation and
granting of compensatory time off are governed by the provisions of 5
U.S.C. sub-Section 5542 and 5543. /3/ Entitlement to overtime pay is
governed by Section 5542, and Section 5543 addresses eligibility for
compensatory time off in lieu of the monetary compensation to which the
employee would be entitled under Section 5542. Representational
activities performed by a union official outside his or her workday do
not constitute the performance of "hours of work" within the meaning of
5 U.S.C. Section 5542. See Social Security Administration and American
Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4
(1985) and NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983) /4/ Nor do
the provisions of section 7131 of the Statute authorize overtime
compensation for time spent in representational activities when the
employee involved was not otherwise in a duty statue. /5/ See NTEU v.
Gress. Thus, because Union proposals 1 and 2 go beyond the conditions
under which overtime compensation is specifically authorized under
Statute, they conflict with Federal statute and are not within the duty
to bargain. See National Treasury, Employees Union and Department of
the Treasury, Internal Revenue Service, 6 FLRA 508 (1981)) (Union
Proposal 1).
IV. Union Proposal 3
Section 2. Attendance, Priorities and other Negotiations
f. Except for changes in working conditions mandated by
statute or government wide regulation, negotiations regarding
impact and implementation of future management changes in working
conditions will be combined with these negotiations on a new basic
agreement. Management recognizes its obligation to defer
implementation of such proposed changes until a new basic
agreement is signed, except where immediate implementation is
required by an overriding exigency. For example, management
recognizes that no overriding exigency exists with respect to
automation and that automation of the PTO constitutes a
significant impact on working conditions that would preclude
implementation until negotiations on a new basic agreement are
concluded.
A. Positions of the Parties
This proposal would require that, with certain stated exceptions,
negotiations over the impact and implementation of management proposed
changes in working conditions would be combined with negotiations over
the basic agreement. It would further require that, absent an
overriding exigency, any proposed change be deferred until the new basic
agreement had been signed.
The Agency's arguments as to this proposal are limited to the
procedural ones discussed above in section II. It has presented no
arguments on the merits of this proposal. The Union contends that the
proposal constitutes a negotiable procedure for orderly conduct of
negotiations over changes in conditions of employment.
B. Analysis and Conclusions
During the pendency of this case the Authority issued several
decisions which addressed an agency's duty to bargain when, in
exercising a management right under section 7016 of the Statute, it
changes conditions of employment of unit employees. The Authority had
held that no duty to bargain arises from the exercise of a management
right that results in an impact or a reasonably foreseeable impact on
bargaining unit employees which is no more than de minimis. Department
of Health and Human Services, Social Security Administration, Chicago
Region , 15 FLRA 922, (1984); Department of Health and Human Services,
Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No.
101 (1985). Insofar as negotiation over the impact and implementation
of management changes in working conditions is concerned, Union Proposal
3 does not distinguish between those management intitiated changes which
have no more than a de minimis impact on bargaining unit employees and
those which have more than a de minimis impact. Thus the proposal would
effectively impose upon the Agency a duty to bargain which is broader
than that prescribed by the Statute. Given this, it extends beyond the
duty to bargain imposed upon the Agency by the Statute. An Agency could
elect to bargain over the impact and implementation of changes of a de
minimis nature as long as proposals do not conflict with law or
Government-wide rule or regulation. See Federal Deposit Insurance
Corporation, Headquarters. 18 FLRA No. 92 (1985). However, since the
record in this case does not show that the Agency has elected to bargain
over Union Proposal 3, the Authority finds that it is not within the
Agency's duty to bargain.
V. Union Proposal 4
Section 8. Attendance at Mediation
The commissioner and the President of POPA will personally
attend all mediation sessions held under the auspices of the FMCS
A. Positions of the Parties
The Agency contends that the Union has no right to insist on a
provision which prescribes who will represent management in
negotiations. The Union asserts that this proposal would not actually
restrict the Agency's ability to choose its own representatives. In
support it contends that, as the principal with whom they are trying to
reach agreement, the Commissioner is "inherently" the "ultimate
representative". The proposal would allow it to communicate directly
with that principal and eliminate potential inaccuracies resulting from
use of intermediaries. It maintains that this proposal provides a
procedure for facilitating its statutory right to present its views to
the head of the Agency.
B. Analysis and Conclusions
This proposal requires that the Commissioner attend mediation sessions
in his capacity as "ultimate" management representative as opposed to
relying solely on his/her designated representatives. The Authority has
held that it is within the discretion of both agency management and
labor organizations holding exclusive recognition to designate their
respective representatives when fulfilling their responsibilities under
the Statute. American Federation of Government Employees, AFL-CIO, 4
FLRA 272 (1980). Moreover, insofar as Union Proposal 4 requires that
the Commissioner of the Agency personally attend mediation sessions, it
concerns matters which go beyond those directly affecting unit
employees. The designation of those individuals who will attend
mediation sessions on behalf of the Agency is not a matter directly
related to the conditions of employment of unit employees, contrary to
the Union's argument. See National Federation of Federal Employees,
Local 1451 and Naval Training Center, Orlando, Florida, 3 FLRA 88
(1980). While the Agency may elect to bargain concerning such matters,
the record does not establish that it has chosen to do so. See Federal
Deposit Insurance Corporation, Headquarters, 18 FLRA No. 92 (1985).
Therefore, this proposal is not within the Agency's 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 be, and
it hereby is, dismissed.
Issued, Washington, D.C., April 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) the Union's appeal originally involved a fifth proposal. The
Union has subsequently withdrawn that proposal from its appeal. And it
will not be considered in this case.
(2) The record indicates that the grade levels of the members of the
Union's representatives are such that they are exempt from coverage
under the Fair Labor Standards Act. See Federal Personnel Manual Letter
551-1. Thus, overtime entitlements under that statute are not germane
to this dispute.
(3) 5 U.S.C. Section 5542 provides, in relevant part:
Section 5542. Overtime rates; computation
(a) For full-time, part-time and intermittent tours of duty,
hours of work officially ordered or approved in excess of 40 hours
in an administrative workweek, or . . . in excess of 8 hours a
day, performed by an employee are overtime work and shall be paid
for. 5 U.S.C. Section 5543 provides, in relevant part: Section
5543. Compensatory time off
(a) The head of an agency may --
(1) on request of an employee, grant the employee compensatory
time off from his scheduled tour of duty instead of payment for an
equal amount of time spent in irregular or occasional overtime
work; and
(2) provide that an employee whose rate of basic pay is in
excess of the maximum rate of basic pay for GS-10 shall be granted
compensatory time off from his scheduled tour of duty equal to the
amount of time spent in irregular or occasional overtime work
instead of being paid for that work under Section 5542 of this
title.
(4) In NTEU v. Gregg, the court found, among other things, that two
employees of an agency who spent time beyond their normal workweek
serving on a union negotiating team were not entitled to overtime
compensation under section 7131 of the Statute, 5 U.S.C. Section 5542,
or the Fair Labor Standards Act. Insofar as the latter two provisions
were concerned, the court noted that such representational activities
did not fall within the definition of "work" within the meaning of those
statutes. In Social Security Administration the Authority noted that
the legal basis for granting compensatory time off arises under 5 U.S.C.
Section 5543 as a result of overtime work performed by an employee.
Citing NTEU v. Gregg in support, the Authority found that a union
official's performance outside his workday of representational functions
did not constitute hours of work within the meaning of 5 U.S.C. Section
5542 for which either overtime pay or compensatory time off could be
legally granted.
(5) It is unnecessary to reach, and the Authority does not pass upon,
the question of entitlement to overtime compensation where
representational activities occur when the employee involved would
otherwise be on duty in an overtime status.