National Labor Relations Board, Region 5 (Activity)  and National Labor Relations Board Union, Local 5 (Union)




[ v02 p328 ]
02:0328(42)NG
The decision of the Authority follows:


 2 FLRA No. 42
 
 NATIONAL LABOR RELATIONS BOARD,
 REGION 5
 (Activity)
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION,
 LOCAL 5
 (Union)
 
                                           Case No. 0-NG-62
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                            UNION PROPOSAL /1/
 
    ARTICLE III
 
    IT IS RECOGNIZED BY THE REGIONAL DIRECTOR AND THE UNION THAT THE
 NATURE OF THE WORK OF THE NLRB AT TIMES NECESSITATES THAT PROFESSIONAL
 EMPLOYEES WORK OUTSIDE OF REGULAR OFFICE HOURS (EIGHT HOURS PER DAY
 AND/OR FORTY HOURS PER WEEK).  IN RECOGNITION OF THIS FACT IT IS
 UNDERSTOOD THAT ALL PROFESSIONAL EMPLOYEES WHOSE ASSIGNMENTS
 NECESSITATE
 THEIR WORKING OUTSIDE REGULAR OFFICE HOURS WILL BE PERMITTED TO CLAIM
 PAID OVERTIME OR COMPENSATORY TIME FOR ALL WORK PERFORMED OUTSIDE
 REGULAR OFFICE HOURS BASED ON THE FOLLOWING:
 
    1.  PROFESSIONAL EMPLOYEES WILL WORK EIGHT HOURS A DAY.
 
   *          *          *          *
 
 
    5.  PROFESSIONAL EMPLOYEES ARE ENTITLED TO ONE 30 MINUTE GRACE PERIOD
 PER PAY PERIOD.  PROFESSIONAL EMPLOYEES MAY USE ALL OR PART OF THIS
 GRACE PERIOD TO COVER OCCASIONAL AND UNAVOIDABLE INSTANCES OF TARDINESS
 IN REPORTING FOR WORK IN THE MORNING.
 
    (ONLY SECTION 5 IS DISPUTED IN THE INSTANT CASE.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL FOR, IN EFFECT, EXCUSED
 ABSENCE OF UP TO THIRTY MINUTES PER PAY PERIOD PER EMPLOYEE FOR
 OCCASIONAL AND UNAVOIDABLE TARDINESS IN REPORTING TO WORK, IS WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE(THE STATUTE) OR IS OUTSIDE THE DUTY TO BARGAIN BECAUSE
 IT WOULD VIOLATE LAW AND GOVERNMENT-WIDE REGULATIONS, AS ALLEGED BY THE
 AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONCERNS MATTERS WITHIN THE DUTY TO BARGAIN
 IN GOOD FAITH UNDER SECTION 7117(A) OF THE STATUTE.  /2/ ACCORDINGLY,
 PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44
 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  /3/
 
    REASONS:  THE AGENCY CONSTRUES THE DISPUTED PROPOSAL IN THIS CASE TO
 BE AN ATTEMPT TO NEGOTIATE A WORKWEEK OF LESS THAN FORTY HOURS.  IT
 CONTENDS THAT, SINCE FEDERAL STATUTE AND GOVERNMENT-WIDE REGULATION(5
 U.S.C. 6101 AND FPM SUPPLEMENT 990-1, PART 610) PROHIBIT A REDUCTION OF
 THE BASIC WORKWEEK TO LESS THAN FORTY HOURS, THE PROPOSAL, THEREFORE, IS
 NOT WITHIN THE DUTY TO BARGAIN.
 
    THE AGENCY HAS MISINTERPRETED THE SUBJECT PROPOSAL AND ITS CONTENTION
 IS WITHOUT MERIT VIS-A-VIS THE PLAIN LANGUAGE AND INTENDED MEAN