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23:0224(29)NG
The decision of the Authority follows:
23 FLRA No. 29
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
PRISONS LOCALS, LOCAL 171
Union
and
DEPARTMENT OF JUSTICE, FEDERAL
PRISON SYSTEM, FEDERAL CORRECTIONAL
INSTITUTION, EL RENO, OKLAHOMA
Agency
Case No. 0-NG-1172
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority on a petition for review of
negotiability issues filed by the Union under section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute).
The petition seeks review of the disapproval of a number of provisions
in the parties' local supplemental agreement during review of that
agreement by the Agency head pursuant to section 7114(c) of the Statute.
II. Procedural Issues
The Agency argues that the Union's petition for review was untimely
filed and that it is otherwise procedurally defective because the Union
did not serve a copy of the petition on the Agency head and did not
attach a copy of management's declaration of negotiability to the
petition filed with the Authority. The Agency moves that the petition
be dismissed on those procedural grounds. The Authority has determined,
however, that the Union's petition was timely filed under the
Authority's Rules and Regulations and that any other procedural
deficiencies were corrected by the Union upon notification and within
the time provided by the Authority for such corrective action.
Accordingly, the Agency's motion to dismiss the appeal is denied.
In addition, the Authority will not consider the Union's petition
regarding Article 18, Section E of the parties' agreement since the
Agency states that it did not disapprove that provision. Likewise, the
Authority will not consider the Union's petition regarding Article 27,
Section A since the Union withdrew its petition for review as to that
provision.
III. Provision 1
Article 18 -- Assignment and Hours of Work
Section C: Any institutional department finding it necessary
to pay overtime will give first consideration for overtime work to
employees within the department, then to other qualified employees
of the institution.
A. Positions of the Parties
In its disapproval of the provision, the Agency declared that the
language was negotiable only if management retained the authority to
make final determinations as to the qualifications required to perform
overtime work and if the provision did not preclude management from
assigning work to employees in other departments on a non-overtime
basis. In its petition for review, the Union states that the provision
allows management to unilaterally determine the qualifications needed to
perform work and to assign work to any employee, regardless of
department, consistent with the "first consideration" for overtime work
requirement of the provision. The Union further argues that the
provision does not pertain to non-overtime work and, therefore, that it
does not preclude management from acting in any way with respect to
non-overtime work assignments. In its statement of position concerning
the Union's petition, the Agency acknowledges that, in view of the
Union's interpretation of the disputed provision, its objection to the
provision based on the Agency's concern for ensuring management's right
to determine qualifications for performing work is now moot. However,
the Agency continues to maintain that it is not clear whether the
provision is intended to preclude management from assigning work to
employees in other departments during regular duty hours. The Agency
argues that, if the provision is so intended, then it is nonnegotiable
because it would interfere with management's right to assign work under
section 7106(a)(2)(B) of the Statute.
B. Analysis and Conclusions
The agreement provision disapproved by the Agency head expressly
deals with overtime work. Moreover, as clearly and unequivocally
interpreted by the Union, which interpretation is consistent with the
plain language of the provision, the provision in no manner prevents
management from assigning work to employees in other departments during
regular duty hours. The Authority therefore concludes that the
provision does not interfere with management's rights under section
7106(a)(2)(B) of the Statute and that it is within the duty to bargain.
IV. Provision 2
Article 18 -- Assignment and Hours of Work
Section H: The principal day shift hours of work will be 7:30
AM to 4:00 PM with a half hour uninterrupted lunch period.
A. Positions of the Parties
The Agency's position essentially is that the provision concerns a
permissive subject of bargaining under section 7106(b)(1) of the Statute
and that the parties' National Controlling Agreement prohibits local
supplemental bargaining on such permissive subjects. In support of its
position, the Agency relies on the Authority's decision in Department of
the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984), and
argues that since the provision concerns the hours of the day shift, the
shift when most of the institution's offices are open and business and
activities are conducted, the provision would have the effect of
determining the numbers, types and grades of employees assigned to a
tour of duty, a matter covered by section 7106(b)(1), which is
negotiable only at management's election. The Agency also states that
if the provision simply requires the Union to be informed of any
proposed change in existing day shift hours and given an opportunity to
bargain on the impact and implementation of such a change, the provision
is negotiable.
The Union argues that the provision simply describes the principal
day-shift hours at the institution; that it does not establish a shift
or tour of duty within the meaning of section 7106(b)(1) of the Statute;
that it does not limit management from conducting any business on any
shift; and that it does not preclude the employer from adjusting the
shift or establishing a new one so long as the rights of the exclusive
representative are respected. The Union therefore maintains that there
is no section 7106(b)(1) issue presented by the provision and that the
Authority's decision in Lowry is not applicable in this case. Moreover,
the Union argues that even if the provision concerns a permissive
subject of bargaining under section 7106(b)(1), since the local parties
bargained and agreed upon the provision, management was thereafter
precluded from asserting any section 7106(b)(1) arguments as a basis for
disapproving the provision during review of the agreement under section
7114(c) of the Statute.
B. Analysis and Conclusions
The Authority finds that the Agency has made no showing that the
disputed provision establishes a new shift or changes the hours of an
existing shift. Thus, the Agency has failed to establish that the
provision affects the numbers, types and grades of employees assigned to
a tour of duty within the meaning of section 7106(b)(1) of the Statute.
The provision, as interpreted by the Union, simply describes the hours
of the existing principal day shift at the institution. Moreover, the
provision does not prevent management from changing the hours of that
shift or establishing any new shift, consistent of course with the
rights of the Union in such a situation. The Authority therefore
concludes that the provision is within the duty to bargain.
Consequently, it is irrelevant whether or not the parties' Master
Agreement prohibits local supplemental agreements on permissive subjects
of bargaining.
V. Provision 3
Article 18 -- Assignment and Hours of Work
Section I: The employer agrees that when an employee works
three (3) hours in excess of eight hours, he/she, shall be given
the opportunity to purchase a meal or time off to obtain a meal.
A. Positions of the Parties
In its disapproval notice, the Agency stated that this provision
would be appropriate if the local parties agreed that the time spent
away from work obtaining and eating a meal is not compensable as
overtime. In its petition for review, the Union maintains that the
provision does not provide authorization to approve or deny overtime.
The Union further maintains that circumstances may or may not warrant
overtime in a particular situation, but that overtime compensation
determinations are subject to other provisions of the parties' agreement
and governing laws and decisions of the Comptroller General. In its
statement of position regarding the Union's petition, the Agency states
that since the Union appears to recognize that the provision cannot
authorize overtime pay for meal times and that overtime is subject to
law and Comptroller General decisions, the issue "appears to be moot."
Agency Statement at 8. However, the Agency did not rescind its
disapproval of the provision.
B. Analysis and Conclusions
The Union has specifically interpreted the disputed provision as not
authorizing overtime for meal times and acknowledged that overtime
compensation is a matter subject to law, Comptroller General decisions
and other provisions of the parties' agreement. Given that
interpretation, which the Agency does not refute and which is consistent
with the plain language of the provision, the Authority concludes that
the provision is within the duty to bargain.
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency rescind its disapproval of
the provisions of the local parties' agreement numbered 1, 2 and 3
above. /*/
Issued, Washington, D.C., August 15, 1986
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) The Agency acknowledged that its disapproval of Provisions 1 and
3 might be moot. As discussed in our decision, the Union's clear and
unequivocal statements of intent concerning these provisions show that
the Agency's claims are baseless. Any disagreement over these
provisions should have been resolved bilaterally. In the future, we
urge the Agency to act in a more positive manner, so as not to burden
the Union and the Authority with the resolution of unnecessary disputes.