[ v22 p496 ]
22:0496(52)NG
The decision of the Authority follows:
22 FLRA No. 52
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, MEAT GRADING
COUNCIL OF LOCALS
Union
and
DEPARTMENT OF AGRICULTURE,
MEAT GRADING AND CERTIFICATION
BRANCH
Agency
Case No. 0-NG-867
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes 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).
/1/ It raises issues concerning the negotiability of four Union
Proposals. /2/
II. Union Proposal 1
Established schedules for tours of duty will remain in effect.
A. Positions of the Parties
The Agency's position is that the proposal seeking to maintain
current tours of duty violates 5 CFR 610.120(b)(1) and (2), which
requires the head of the Agency to "schedule an employee's regularly
schedules administrative workweek so that it corresponds with the
employee's actual work requirements" and to "reschedule the employee's
regularly scheduled administrative workweek" when it is known in advance
that the actual work requirements for the ensuing week differ from the
specific days and/or hours of the current workweek.
The Union asserts that the regulation quoted by the Agency does not
establish a unilateral mandate for the Agency to establish the workweek.
It further argues that any interpretation of the regulation giving the
Agency the right to establish the workweek without negotiations is
contrary to statute, i.e., 5 U.S.C. Section 6101, which is the statutory
basis for the regulation. Moreover, the Union argues that 5 U.S.C.
Section 6101 provides the Agency discretion to establish workweeks, and
a discretionary matter is within the duty to bargain under the Statute.
B. Analysis and Conclusion
The proposal locks in the established schedules for tours of duties
and as a result precludes the Agency from making any changes in the
tours of duty for whatever reason. The disputed proposal is to the same
effect as Provision 1 in American Federation of Government Employees,
AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17
FLRA 769 (1985), petition for review filed sub nom. American Federation
of Government Employees, AFL-CIO, Local 2484 v. FLRA, No. 85-1405 (D.C.
Cir. July 3, 1985), which would have prevented a change in tours of duty
unless advance notice of such change has been provided, and which the
Authority found to be inconsistent with an applicable Government-wide
regulation, 5 CFR 610.121. Based on the reasoning in U.S. Army
Garrison, Fort Detrick, the Authority concludes that this proposal is
likewise outside the duty to bargain.
III. Union Proposal 2
The grader regularly assigned to service an applicant requiring
overtime will have the primary responsibility of performing the
necessary service during the week and on weekends.
A. Positions of the Parties
The Agency asserts that the proposal conflicts with its right to
assign employees and work under section 7106(a)(2)(A) and (B), and with
5 CFR 610.121. The Union maintains that the proposal is negotiable
because it is essentially the same as Proposal 1 in American Federation
of Government Employees, AFL-CIO, National Joint Council of Food
Inspection Locals and Department of Agriculture, Food Safety and Quality
Service, Washington, D.C., 9 FLRA 663 (1980).
B. Analysis and Conclusion
The Authority agrees with the Union's position. The proposal
concerns only which employee among those in the bargaining unit to whom
management has already assigned certain work will be selected to perform
such work in an overtime status when management determines that overtime
is required. As such, the proposal is essentially the same as the
portion of Proposal 1 found negotiable in Food Safety and Quality
Service, 9 FLRA 663 (1980). In that case, the Authority held a proposal
that concerned which particular employee, among those in the bargaining
unit to whom management in its discretion has already assigned certain
work, will be selected to perform such work in an overtime status when
management determines that overtime is required was negotiable. It
reasoned that the proposal was concerned only with when such employees
would perform the previously assigned duties of their positions.
Moreover, contrary to the Agency's argument, 5 CFR 610.121 is
inapplicable to the proposal in this case because the proposal concerns
the assignment of overtime and not the establishment of an employee's
administrative workweek. Therefore, for the reasons more fully set
forth in Food Safety and Quality Service, 9 FLRA 663 (1980), the
Authority concludes that Union Proposal 2 is within the duty to bargain
under the Statute.
IV. Union Proposal 3
Employees may be relieved for four (4) Saturdays per calendar
year for any reason by requesting such relief in writing to the
Main Station Supervisor at least ten (10) working days prior to
the requested Saturday off.
Union Proposal 4
Temporary duty assignments will be on a rotational basis. A
list of the graders' names expected to be assigned to temporary
duty assignments will be placed on the rotation schedule. When
temporary duty assignments are needed, the assignments may also be
exchanged with qualified volunteers. When there are no available
volunteers to exchange TDY, the assigned grader will perform the
assignment. Each GS-9, GS-7, and GS-5, when qualified must take
his turn in relief assignments. A grader may not be relieved of
his responsibility to take his turn at a relief assignment, except
for compelling reasons of annual leave, medical reasons which
preclude travel, or personal hardship and an exchange of
assignment. (Only the underlined portion of the proposal is in
dispute.)
A. Positions of the Parties
As to Union Proposal 3, the Agency contends that it requires the
Agency to relieve employees from Saturday work on four occasions upon
the employee's request and therefore conflicts with the right to assign
work and employees under the Statute and with 5 CFR Part 610. In
response, the Union asserts that the Agency is misreading Union Proposal
3, which does not require that employee requests be granted.
As to Union Proposal 4, the Agency maintains that its intent is to
prevent the Agency from assigning any other meat grader to a location if
a volunteer exists. The Agency therefore concludes that the proposal
conflicts with management's right to assign employees under the Statute.
The Agency also asserts that the proposal could result in an individual
continually volunteering for the same plant assignment thus frustrating
the Agency's rotation policy and resulting in possible conflicts of
interests and conflicts in relationships with plant management.
Therefore, the Agency asserts that the proposal conflicts with its right
to determine its internal security practices pursuant to section
7106(a)(1) of the Statute. The Union, in response, states that the
Agency has failed to comprehend the intent of the proposal. The Union
asserts that the use of discretionary language, "assignments may be
exchanged," does not interfere with and does not mandate the assignment
of employees or work in violation of the Agency's rights under the
Statute. The Union maintains that the proposal only provides for a
procedure for the use of a pool of volunteers if the Agency chooses to
use it.
B. Analysis and Conclusions
The language of Proposals 3 and 4 and the Union's stated intent
establish that the proposals are discretionary and do not mandate
certain courses of action by the Agency. Under this interpretation, the
Agency could disapprove 1) all employee requests for Saturday time off
and 2) all utilization of volunteers for temporary duty assignments.
The proposals only provide a procedure under section 7106(b)(2) for the
Agency to consider employee requests for Saturday time off and for
volunteering for temporary duty assignments related to the Agency's
exercise of its management rights under section 7106(a) of the Statute.
Also, because of the discretionary nature of the proposals, the Agency's
argument that Union Proposal 3 conflicts with 5 CFR Part 610 by
establishing an employee's administrative workweek is not supported.
Therefore, the Authority concludes that Union Proposals 3and 4 are
within the duty to bargain under the Statute.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning Union Proposals
2-4. /3/ It is FURTHER ORDERED that the Union's petition for review as
to Union Proposal 1 be, and it hereby is, dismissed. /4/
Issued, Washington, D.C., July 10, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
--------------- FOOTNOTES$ ---------------
(1) The Agency in its Response raises a question as to the timeliness
of the Union's petition for review because it had already provided
allegations of nonnegotiability to the Federal Service Impasses Panel
prior to the Union's written request. In this case, however, in
accordance with established precedent, the Authority finds that the
Union's petition for review was timely from the date the Agency
responded to the Union's written request for an allegation of
nonnegotiability. International Brotherhood of Electrical Workers,
AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving
and Printing, Washington, D.C., 10 FLRA 198 (1982).
(2) With respect to additional Union Proposals 5, 6, and 7, the Union
in its opposition withdrew those proposals from its appeal. They will
not be considered further here.
(3) In finding Union Proposals 2-4 to be within the duty to bargain,
the Authority makes no judgment as to their merits.
(4) The Union makes a general contention that the proposals are
within the duty to bargain pursuant to section 7106(b)(2) and (3).
Since Proposal 1 is violative of 5 CFR 610.121, a Government-wide
regulation, and since proposals 2-4 do not concern a violation of
management rights, the Authority finds it unnecessary to address the
Union's contention regarding section 7106(b)(2) and (3).