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32 FLRA No. 55

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 2080
Union

and 

DEPARTMENT OF THE ARMY
U.S. ARMY ENGINEER DISTRICT
NASHVILLE, TENNESSEE
Agency

Case No. 0-NG-1473

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 six provisions of a negotiated agreement which were disapproved by the Agency head in the course of review under section 7114(c) of the Statute.

Provision 1, the first and second sentences, concerning agreement to and posting of a master schedule indicating shift rotation and duration of days and off days, are negotiable because they do not violate applicable law and regulation. We find that Provision 1, the third sentence, and Provision 2, which concern shift scheduling and notice of shift changes, are nonnegotiable because they conflict with applicable law and Government-wide regulation. Provisions 3 and 4, which require the Agency to reassign employees who are in classifications with surplus employees, are not appropriate arrangements under section 7106(b)(3) because they excessively interfere with management's rights to select and assign employees and are outside the duty to bargain. Provision 5, which permits the Union to participate in evaluating trainees' progress, is nonnegotiable because it would interject the Union into management's evaluation process in violation of its rights under section 7106(a)(2)(B). Finally, Provision 6, which provides cleanup time prior to lunch and at the end of the workday, is outside the duty to bargain because it conflicts with Federal law and interferes with management's right to assign work under section 7106(a)(2)(B).

II. Preliminary Matters

The Union contends that because the provisions in this agreement were negotiated prior to enactment of the Statute, section 7135(a)(1) requires that the provisions be found negotiable.

Section 7135(a)(1) of the Statute provides:

§ 7135. Continuation of existing laws, recognitions, agreements and procedures

(a) Nothing contained in this chapter shall preclude--

(1) the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter.

The Union interprets section 7135(a)(1) to mean that provisions of contracts negotiated prior to the enactment of the Statute are grandfathered into all subsequent agreements. We find this interpretation to be erroneous.

There is no evidence in the record of this case to show that the provisions in dispute were included in an agreement which was entered into before the effective date of the Statute. Rather, the record indicates only that the provisions were included in an agreement which became effective in 1983. However, even assuming that the provisions at issue in this case were negotiated before the enactment of the Statute, section 7135(a)(1) does not require that these provisions be continued in a new collective bargaining agreement. Section 7135(a)(1) of the Statute permits the parties to a lawful agreement entered into before the effective date of the Statute to renew or continue its terms if they so desire. Either party may object to the continuation of provisions which they assert are inconsistent with the requirements of the Statute. Such assertions are properly subject to Authority review. Interpretation and Guidance, 2 FLRA 274, 278 (1979). See also Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 10 FLRA 172, 178 (1982). By alleging that these provisions are nonnegotiable, the Agency is obviously objecting to their continuation in the parties' new collective bargaining agreement.

Since the Union's appeal of the Agency's allegations of nonnegotiability is properly before us, we must decide whether each of the disputed provisions is within the duty to bargain under the Statute. Accordingly, we reject the Union's claim that section 7135(a)(1) requires that the provisions be found negotiable because they were negotiated prior to the effective date of the Statute.

III. Provisions 1 and 2

Provision 1

Article 5, Section 5.4

A master schedule, mutually agreed to by the EMPLOYER and the Employees, indicating the cycle of shift rotation, duration in days of a particular shift and the off days under normal conditions for employees working rotating shifts, shall be posted at the regular work locations. Established schedules (pay period schedules) will be prepared, using the master schedule as a guide, and will be posted at least two weeks in advance at the respective work locations. When a condition necessitates a change in the established schedule (posted pay period schedule), affected employees will receive at least twenty-four hours notice of the change in the established schedule (posted pay period schedule).

Provision 2

Article 5, Section 5.6

When multiple-shift operation is initiated for repairs and channel maintenance, at least 24-hours notice must be given to the affected employee.

A. Positions of the Parties

The Agency asserts that the first sentence of Provision 1 is inconsistent with law and Government-wide regulation by requiring bargaining over any basic workweek that includes any cycle of shift rotations, the duration of shifts, and designated days off for employees. Further, in the Agency's view, the second sentence of Provision 1 interferes with its right to assign work under section 7106(a)(2)(B) because changes in tours of duty would be authorized only in conjunction with the third sentence, that is, only after 24 hours' notice. Finally, the Agency contends that the requirements for a 24-hour notice of changes in work schedules as set out in the third sentence of Provision 1 and in Provision 2 violate a Government-wide regulation, specifically 5 C.F.R. § 610.121(a).

The Union contends that applicable law does not prevent the Agency from establishing workweek schedules through negotiation. The Union denies that Provision 1 interferes with the right to assign work, noting that management is allowed, when necessary, to depart from the negotiated schedule. The Union emphasizes that the master schedule in Provision 1 serves as a guide. The Union also rebuts the Agency's assertion that the two provisions would have severe adverse impact on its operations by pointing out that the same provisions were contained in a prior negotiated agreement without adverse impact. Finally, the Union claims that Provisions 1 and 2 are protected by section 7135(a)(1) of the Statute since they were originally negotiated prior to the Statute's enactment.

B. Analysis and Conclusion

We rejected the Union's argument concerning the effect of section 7135(a)(1) on the provisions in this case in section II of this decision because we found that the parties are not required by that section to continue the terms of previous agreements. We will not discuss this argument further with regard to Provisions 1 and 2. Therefore, we will proceed to examine the substance of the parties' positions on the negotiability of Provisions 1 and 2.

As noted above, the Agency head determined that the first sentence of Provision 1 was nonnegotiable because it conflicted with applicable law and a Government-wide regulation. The Agency specifically cited 5 U.S.C. § 6101(a)(3)(B) and 5 C.F.R. § 610.121(a)(2) to support its contention. 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 both provide that an agency head shall establish a basic 40-hour workweek for his or her employees which will be scheduled at least 7 days in advance over 5 days, Monday through Friday, when possible, and that employees will have 2 consecutive days off outside the basic workweek. The law and the regulation further provide that an agency head need not follow the statutory and regulatory guidelines when he or she determines that the organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased by adherence to the specified tour of duty.

Proposals concerning the scheduling of a basic workweek and days off have been found to be negotiable. See, for example, National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA 654, 661 (1987) (Proposal 3, second paragraph, second sentence), petition for review filed sub nom. Illinois National Guard v. FLRA, No. 87-1290 (D.C. Cir. June 26, 1987) (proposal prescribed a 40-hour basic workweek); American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 171 and Department of Justice, Federal Prison System, Federal Correctional Institution, El Reno, Oklahoma, 23 FLRA 224, 226 (1986) (Provision 2) (provision described the hours of the existing principal day shift).

Further, we recently held that we will find a decision to change the starting and quitting times of bargaining unit employees to be negotiable unless an agency demonstrates that the change is an exercise of management's right to determine (1) the numbers, types or grades of employees or positions assigned to a work project or tour of duty under section 7106(b)(1); or (2) the agency's mission under section 7106(a)(1). We stated that in deciding whether a particular change in starting and quitting times involves the exercise of management's rights, we will carefully consider the record and balance the facts and circumstances set forth in the record. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 32 FLRA No. 44 (1988) (agency obligated to bargain concerning the decision to change the existing Tuesday through Saturday tour of duty by changing by 1 hour the wage grade employees' starting and quitting times for Saturday).

Additionally, proposals governing individual assignments to shifts have been found to be negotiable in specific circumstances. See, for example, National Union of Hospital and Health Care Employees, AFL-CIO, District 1199 and Veterans Administration Medical Center, Dayton Ohio, 28 FLRA 435, 462 (1987) (Proposal 15, section 4.d, sentence 2), petition for review filed sub nom. Veterans Administration Medical Center, Dayton, Ohio v. FLRA, No. 87-1521 (D.C. Cir. Sept. 28, 1987) (proposal required that rotation between tours of duty be distributed on an equitable basis); Colorado Nurses Association and Veterans Administration medical Center, Ft. Lyons, Colorado, 25 FLRA 803, 822 (1987) (Proposal 6), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987) (proposal required that assignments to relief and night shifts be distributed as equitably as possible); Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687 (1984) (Proposal 1) (proposal required that otherwise eligible employees be offered vacancies on a more desirable shift on the basis of seniority).

The first sentence of Provision 1 merely calls for agreement to a "master schedule" indicating the cycle of shift rotations, duration in days of a particular shift and the off-days "under normal conditions." The sentence, therefore, does not conflict with any applicable law or regulation since it does not oblige management to act in a manner inconsistent with law or regulation. Furthermore, the provision's proviso that the agreed upon schedule would be followed "under normal conditions" allows management to revise schedules where such revisions are authorized by the applicable regulation. Compare our discussion of the balance of Provision 1 and Provision 2 below. Moreover, the wording of the first sentence does not support the argument advanced by the Agency that failure to agree on a master schedule would preclude management from posting a schedule and assigning work to employees. The sentence only provides for a mutually agreed to schedule; it does not prohibit the assignment of work. Accordingly, the first sentence of Provision 1 is within the duty to bargain.

The second sentence of Provision 1 provides that established work schedules will be posted at least 2 weeks in advance. That sentence does not restrict management's right to establish or change work schedules. Rather, the second sentence merely provides a procedure for the posting of work schedules. See, for example, American Federation of Government Employees, Local 1799, AFL-CIO and U.S. Army, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 26 FLRA 926, 926 (1987) (Provision 1). Therefore, the second sentence is negotiable.

The third sentence of Provision 1 provides that posted work schedules may not be changed unless employees received 24 hours' notice of the change. Similarly, Provision 2 requires 24 hours' notice of the establishment of a multiple-shift operation.

Under 5 U.S.C. § 6101(a)(3)(A), an agency shall schedule employees' tours of duty not less that 7 days in advance, except when the agency determines that it would be seriously handicapped in carrying out its functions or that costs would be substantially increased. 5 C.F.R. § 610.121(a)(1) implements that statutory provision. We have found this regulation to be a Government-wide regulation within the meaning of section 7117(a) of the Statute. American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 25 FLRA 908, 909 (1987). The regulation requires that management provide employees with at least 7 days' advance notice of any change in work schedules unless adherence to that requirement would seriously handicap the agency in performing its functions or would substantially increase costs.

In National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 753 (1986) (Proposal 1) (Scott Air Force Base), we reviewed a proposal requiring at least 14 days' advance written notice of changes in work schedules except in emergencies. We found the proposal to be nonnegotiable because the exception to the normal notice period did not comport with applicable law and regulation. That is, the proposed "emergencies" exception did not equate to the statutory and regulatory exception allowing less than required advance notice in circumstances which would seriously handicap the agency in accomplishing its functions or would substantially increase costs. We found that a serious handicap in accomplishing functions or substantially increased costs would not necessarily rise to the level of "emergencies," the only exceptions to the proposal's 14-day notice period. Consequently, we held that the proposal was nonnegotiable because it conflicted with applicable law and Government-wide regulation.

Scott Air Force Base indicates that parties are free to negotiate over the timing of the prior notice required before management may change a work schedule, so long as management retains authority to make schedule changes upon shorter notice in circumstances where changes on short notice are authorized by law and regulation. The second sentence of Provision 1 provides for posting of work schedules at least 2 weeks in advance, but the third sentence prohibits any revision to that schedule without at least 24 hours' advance notice. Provision 2 prevents establishing multiple-shift operations unless affected employees are notified at least 24 hours' in advance. Both provisions fail to authorize any exception to the minimum 24-hour notice period. Therefore, by their terms, the provisions would bar changes to work schedules on less than 24 hours' prior notice even where such revisions are authorized by law and regulation. That is, no change would be permitted even when failure to revise the schedules would seriously handicap the Agency in executing its functions or would substantially increase costs. Consequently, in the absence of any reference to these exceptions to the proposed notice period, the two provisions impermissibly restrict the Agency's right under law and regulation to modify employee work schedules. For that reason, the third sentence of Provision 1, and Provision 2, are nonnegotiable under section 7117(a) of the Statute.

In summary, we find the first and second sentences of Provision 1 to be negotiable because they do not conflict with applicable law or regulation. We find that the third sentence of Provision 1, and Provision 2, are nonnegotiable because they are inconsistent with law and a Government-wide regulation. Furthermore, the Union's argument that section 7135 of the Statute authorizes continuance of Provisions 1 and 2 was examined and rejected in Section II of this decision.

In view of these findings, it is unnecessary for us to address the Agency's additional claims concerning the nonnegotiability of Provisions 1 and 2.

IV. Provisions 3 and 4

Article 13, Section 13.3

Lateral reassignments, except those to positions with known promotion potential, may be accomplished without regard to the competitive provisions of the Merit Placement and Promotion Program. When a vacancy exists and the EMPLOYER is to fill such vacancy, employees who are in a classification where a surplus of employees exists shall first be offered a lateral transfer. (This does not include employees covered by the Mobility Agreement.) Employee requests will be in writing through their supervisor to their Branch Chief. Employees will accept reassignment to location and position for which they make application unless their application is withdrawn in writing prior to date selected for reassignment. Employees must update their applications at least once every year. If more than one qualified employee makes a request for lateral reassignment to the same position within the bargaining unit, the EMPLOYER shall make its selection on the basis of merit and fitness. All other factors being equal, first consideration will be given to length of Corps of Engineers service. An employee requested lateral reassignment will be made at no additional expense to the Government for per diem, transportation, moving expenses or travel, if made within four (4) years from the last employee requested reassignment. [Only the underscored sentence is in dispute.]

Article 14, Section 14.1

It is agreed that prior to any reduction-in-force action, if time permits management will take action to reduce the impact of the force reduction. Such action will include restricting recruitment, meeting ceiling limitations through attrition, reassigning employees in surplus positions to other positions for which they are fully qualified as they become vacant, and terminating temporary employees. Reduction-in-force actions will be effected in compliance with the existing statutory requirements and Office of Personnel Management, Department of Defense, and Department of the Army rules and regulations. [Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that the second sentences in Provisions 3 and 4 are outside the duty to bargain because they interfere with management's right to select employees under section 7106(a)(2)(C) of the Statute and Requirement 4 of the Federal Personnel Manual (FPM), chapter 335, subchapter 1-4. In addition, the Agency contends that these sentences interfere with its right to assign employees under section 7106(a)(2)(A). Furthermore, the Agency asserts that because the disputed sentences in Provisions 3 and 4 would require, respectively, that management reassign surplus employees in general schedule and supervisory positions to vacancies and restrict recruitment, they affect nonbargaining unit positions.

Concerning Provision 3, the Agency argues that the right to assign includes the discretion to determine the qualifications necessary to perform the job. The Agency also notes that the second sentence in Provision 3 conflicts with 5 C.F.R. § 230.201, which requires agencies to comply with qualification standards and regulations established by the Office of Personnel Management when taking personnel actions. Finally, with regard to Provision 4, the Agency argues that the language "and terminating temporary employees" is nonnegotiable because it interferes with its right to layoff under section 7106(a)(2)(A) and concerns nonbargaining unit employees.

The Union argues that Provisions 3 and 4 are protected by section 7135(a)(1) of the Statute since they were originally negotiated prior to the enactment of the Statute. Additionally, the Union argues that by agreeing to the disputed language in its original agreement, the Agency exercised discretion comparable to the discretion it would have exercised unilaterally in making selection decisions. Finally, the Union states that the Agency's contention about the impact of the disputed sentences on nonbargaining unit positions is misplaced because these positions are not covered by the contract. Finally, the Union states that the words "and terminating temporary employees" are no longer part of the disputed sentence in Provision 4.

B. Analysis and Conclusion

We rejected the Union's argument concerning the effect of section 7135(a)(1) in Section II of this decision because the parties are not required by that section to continue terms of previous agreements. We will not discuss this argument further with regard to Provisions 3 and 4.

The Union states that the parties withdrew the language "and terminating temporary employees" from Provision 4. Reply Brief at 2. In these circumstances, we conclude that the Union has withdrawn the phrase "and terminating temporary employees" from its petition for review, and we will not consider this language further.

1. The Disputed Sentences in Provisions 3 and 4 Conflict with Management's Rights to Assign and Select Employees

The disputed sentence in Provision 3 requires that when management decides to fill a vacancy, the Agency must offer lateral reassignments to employees who are in a classification where surplus of employees exists. The disputed sentence in Provision 4 requires that in a reduction-in-force (RIF) action, the Agency limit recruitment, meet ceiling limitations through attrition, and reassign employees who are in positions where a surplus exists.

The effect of the disputed sentences in Provisions 3 and 4 is to require the Agency to fill vacancies from a single source, namely from internal candidates who are in classifications where a surplus of employees exists. Therefore, the disputed sentences interfere with management's right in filling vacancies to select from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute. See, for example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878, 882 (1985) (Proposal 3) (requirement that agency honor employee requests for assignment and/or transfer prevented agency from filling vacancies with outside applicants).

In addition, we find that the disputed sentences in Provisions 3 and 4 interfere with management's right to assign employees to positions under 7106(a)(2)(A) because they would require that management reassign particular employees to vacancies. Under the terms of the disputed sentences, management would be unable, for example, to fill vacancies with internal candidates from organizational units which do not have a surplus of employees. Therefore, we find that the disputed sentences directly interfere with management's right to assign employees under section 7106(a)(2)(A).

We reject the Agency's argument that Provisions 3 and 4 concern nonbargaining unit employees. Contrary to the Agency's argument, Provision 3 does not require the reassignment of general schedule and supervisory employees. As the Union states, these employees are not in the bargaining unit and, therefore, are not covered by the provisions of the parties' collective bargaining agreement at issue in this case. Furthermore, there is no evidence that the second sentence in Provision 4 would have an impact on recruitment for nonbargaining unit positions because these positions are not included within this agreement.

We also reject the Agency's argument that the disputed sentence in Provision 3 conflicts with 5 C.F.R. § 230.201. Although the sentence does not so state, the balance of the provision makes clear that employees must be qualified for vacancies by stating "[i]f more than one qualified employee makes a request for lateral reassignment to the same position within the bargaining unit, the EMPLOYER shall make its selection on the basis of merit and fitness." Thus, we find no conflict between the proposal and 5 C.F.R. § 230.201, which requires compliance with qualification standards.

In conclusion, we find that the second sentences in Provisions 3 and 4 conflict with management's rights under section 7106(a)(2)(A) and 7106(a)(2)(C)(ii) to assign and select employees.

2. The Disputed Sentences Do Not Constitute Negotiable Appropriate Arrangements

The Union did not assert that Provisions 3 and 4 should be considered as proposals to assist employees adversely affected by management action. However, the Authority consistently has considered proposals relating to the effect of a RIF on employees under section 7106(b)(3) because the adverse effect on employees of a RIF action is clear. American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA 987, 990 (1987) (Proposal 1).

Although Provision 3 does not specifically mention a RIF, use of the term "surplus" indicates that the Union is concerned about the likelihood of a future management action, such as a RIF, which might adversely affect employees who are in classifications with a surplus of employees. Provision 4 specifically states that its purpose is to reduce the impact on employees adversely affected by a management decision to conduct a RIF action. This intent is clear from the language "management will take action to reduce the impact of the force reduction." Therefore, we find that the disputed sentences are intended to be "appropriate arrangements" within the meaning of section 7106(b)(3) for employees adversely affected by the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

Thus, the issue is whether the second sentences in Provisions 3 and 4 are negotiable appropriate arrangements under the section 7106(b)(3) of the Statute.

The disputed sentence in Provision 3 is apparently intended to ameliorate a situation, an excess of employees in a particular classification, which might lead to future Agency action which would adversely affect employees. In other words, the sentence can be viewed as a precautionary measure. The harm to employees that is contemplated in the disputed sentence in Provision 3 is not immediate. Indeed, absent the proposal, the Agency could take a variety of other actions to relieve the overstaffing or attrition may eliminate the problem. However, under the disputed sentence in Provision 3, management would be required to eliminate the potentially adverse staffing situation by offering reassignments to employees who are in classifications where there is an excess of employees. The Agency, therefore, loses the right to make reassignment decisions as it chooses even though there is no present identifiable or specific harm to employees. In these circumstances, we find that the benefit to employees in classifications with surplus employees is outweighed by the harm to management's right to assign employees. Thus, we conclude that Provision 3 is not a negotiable appropriate arrangement.

The disputed sentence in Provision 4 requires management to fill vacancies with qualified employees in surplus positions. In prior cases, we have considered proposals which require management to fill vacancies with employees who are threatened with the loss of their jobs due to a RIF. Where these proposals took effect after management had decided to fill the vacancies and provided that employees be qualified for the vacancies, we have found that the proposals constitute appropriate arrangements. See, for example, American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 43 (1987) (Provision 1).

Although the disputed sentence in Provision 4 preserves management's right to fill positions with qualified employees, it does not protect management's discretion to decide whether to fill or not to fill vacant positions. By its terms, the disputed sentence in Provision 4 provides that vacancies must be filled, as they become available, with employees from classifications where there is a surplus. The provision states that management action "will include . . . reassigning employees . . . to other positions . . . as they become vacant." Furthermore, the record does not provide any evidence that the requirement operates only after management has decided to fill vacant positions.

Consequently, the Agency's discretion concerning whether to fill vacancies would be eliminated by the second sentence in Provision 4. Management would lose the flexibility to decide whether to utilize existing positions or merge vacant positions. Although employees in surplus positions would benefit by being reassigned, management would be harmed by loss of the right to decide whether to fill vacancies. We find that the harm to management outweighs the benefit to employees and conclude that the second sentence in Provision 4 is not a negotiable appropriate arrangement.

In conclusion, we find that the second sentences of Provisions 3 and 4 excessively interfere with management rights to assign and select employees under section 7106(a)(2)(A) and 7106(a)(2)(C)(ii) and are not negotiable appropriate arrangements under section 7106(b)(3). National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA 905, 908 (1986) (Proposal 2) (proposal which did not preserve management's discretion to decide whether to fill vacancies and determine employees' qualifications held not an appropriate arrangement).

In view of our conclusion that Provisions 3 and 4 do not constitute negotiable appropriate arrangements, we find it unnecessary to reach the Agency's argument that the provisions conflict with Requirement 4 of the FPM, chapter 335, subchapter 1-4. Compare American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380, 389-403 (1987) (separate opinions by each member of the Authority) (Proposal 2), petition for review filed sub nom. Office of Personnel Management v. FLRA, No. 87-1726 (D.C. Cir. Nov. 27, 1987) (where proposal requiring selection of reemployment eligibles constituted an appropriate arrangement, negotiations not barred by Requirement 4, FPM chapter 335, subchapter 1-4).

V. Provision 5

Article 17, Section 17.3

When evaluating sessions are held, at which oral questions are asked by a rating panel to evaluate the progress of a trainee, the UNION agrees where circumstances permit, to have a representative present at no additional expense to the EMPLOYER. The UNION representative will have full participation as an evaluation panel member. In order to be effective, the UNION representative participating on an oral evaluation shall be at the same level or above that of the person being evaluated. Failure of the UNION representative to be present will not preclude administration of the evaluation.

A. Positions of the Parties

The Agency contends that the provision interferes with its rights to direct employees and assign work under section 7106 of the Statute. The Agency asserts that the committee constitutes an integral part of the managerial decision-making process as it relates to matters concerning the staffing of the organization, laying off and retaining employees, assignment of work, and determining the personnel by which agency operations will be conducted. The Union repeats its claim that this provision predates the passage of the Statute and is guaranteed continued protection under section 7135(a)(1).

B. Analysis and Conclusion

We rejected the Union's argument concerning the effect of section 7135(a)(1) in Section II of this decision because we found that the parties are not required by that section to continue the terms of previous agreements. We will not discuss this argument further with regard to Provision 5.

We conclude that this provision is nonnegotiable because it would interject the Union into the deliberative process by which a management committee evaluates trainees.

The management rights enumerated in section 7106 include more than merely the right to decide to take the final actions specified. The exercise of these rights also encompasses the right to take actions integral to the exercise of the rights, including discussion and deliberation concerning the relevant factors on which the decision to exercise the rights will be made. See National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 28 FLRA 647, 647-49 (1987) (Proposal 1) (Health and Human Services, Region V) and the cases cited therein.

Union participation on a committee whose work involves deliberations related to the exercise of management's rights interferes with an agency's rights by allowing the union to interject itself into the agency's deliberative process. See American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 643-45 (1985) (Provision 3), in which the Authority found that union participation on a promotion rating panel interferes with management's right to select; and National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982), where the Authority held that union representation on a Professional Standards Board and Position Management Committee interferes with management's rights under section 7106 of the Statute. Further, if a committee's work involves deliberations related to the exercise of management's rights, a union observer's presence, whether active or passive, interferes with an agency's right to engage freely in internal discussion and deliberation prior to making decisions to take actions under section 7106 of the Statute. See, for example, Health and Human Services, Region V, 28 FLRA at 648-49.

The assignment of training, including the decisions as to the types of training to be assigned and the frequency and duration of training, constitutes an exercise of management's right under section 7106(a)(2)(B) to assign work. International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 124-27 (1987) (Proposals 17-20). Moreover, the evaluation of employee performance is an exercise of management's rights to direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute. American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 168-70 (1987) (Provision 7).

According to the Agency's uncontroverted statement, the evaluation panel referred to in this provision consists of supervisory and, sometimes, non-supervisory personnel who are graduates of a particular training program. The panel administers an oral test to current trainees to determine whether the trainees have successfully completed programs from which the panel members have graduated. An employee who twice fails the test is no longer eligible to remain in the program. Thus, the evaluation panel is a body created by management to carry out its responsibility to determine whether employees have successfully completed a training program. The second sentence of the provision states that the Union representative will have "full participation" in the rating panel's deliberations, presumably including the right to rate trainees and have an impact on their evaluation.

We conclude that the provision would interject the Union into the deliberative process by which a management committee evaluates trainees. Therefore, the provision improperly interferes with the Agency's right to direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.

VI. Provision 6

Article 25, Clean Up Time

The EMPLOYER will provide a reasonable amount of time consistent with the nature of the work performed for employees to clean up prior to lunch and at the end of the workday.

A. Positions of the Parties

The Agency contends that the provision directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Union contends that "Clean Up" is a job related duty in the interest of safety and industrial hygiene. On this basis, it argues that a negotiated provision that requires that employees be paid for time worked is negotiable. The Union also claims that this provision is negotiable because it was agreed upon prior to the enactment of the Statute, which would allow it to be continued and renewed pursuant to section 7135(a)(1).

B. Analysis and Conclusion

We discussed and rejected the Union's claim concerning the effect of section 7135(a)(1) in Section II of this decision because we found that the parties are not required by that section to continue the terms of previous agreements. We will not discuss this argument further with regard to Provision 6.

Provision 6 requires the Agency to provide employees with time both prior to the lunch break and at the end of the workday to clean up. Proposals which require an agency to provide employees time during their hours of duty to clean up interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because they preclude the assignment of other types of work during the specified period. National Federation of Federal Employees Local 1655 and Illinois National Guard, 26 FLRA 654, 666 (1987) (Proposal 10) (Illinois National Guard) petition for review filed on other grounds sub nom. Illinois National Guard v. FLRA, No. 87-1290 (D.C. Cir. June 26, 1987); National Treasury Employees Union, Chapter 153 and Department of the Treasury U.S. Customs Service, 21 FLRA 1116, 1122 (1986) (Proposal 7) (U.S. Customs Service); American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 19 FLRA 1027, 1027 (1985) (Proposal 1). Compare The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988) where we upheld an arbitrator's award enforcing an agreement which provided "[r]easonable time not to exceed 10 minutes will be allowed employees for cleanup before lunch." In so finding, the arbitrator noted that the agency agreed that personal cleanup after contact with toxic substances was "necessary for printers' health and safety and is, thus, an activity which is a legitimate part of the workday." He also found that the agency not only required printers to wash up before lunch, but could discipline them if they failed to perform required personal cleanup. We concluded that the disputed contract language constituted an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because it mitigated the adverse effect on employees of the unclean and potentially unhealthful conditions inherent in their work as printers.

In contrast to Bureau of Engraving and Printing, nothing in the record of this case indicates that inherently toxic materials are used and that the Agency requires employees to clean up. Like the proposals in Illinois National Guard and U.S. Customs Service, Provision 6 prevents management from assigning other types of work during the cleanup periods. Thus, Provision 6 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.

Further, we also find that Provision 6, which requires non-work activity--personal cleanup--to be included in the 40 hours of "work," to be inconsistent with Federal law. 5 U.S.C. § 6101 requires that the basic workweek consist of 40 hours of "work." We conclude that insofar as time set aside for personal cleanup is concerned, such activity cannot be considered "work" or "employment" for purposes of fulfilling the requirement for a 40-hour workweek. Since Provision 6 would require time set for an activity that is not "work", to be included in the 40 hours of "work" required by 5 U.S.C. § 6101, it conflicts with Federal law and is nonnegotiable under section 7117(a)(1) of the Statute. National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 515 (1987) (Proposal 2); American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600 (1987).

VII. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, over the first and second sentences of Provision 1.^(*) The remainder of the petition for review is dismissed.

Issued, Washington, D.C.,

_________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In finding the first and second sentences of Provision 1 to be negotiable, we make no judgment as to their merits

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