International Association of Fire Fighters, Local F-61 (Union-Petitioner) and Philadelphia Naval Shipyard (Activity) 



[ v03 p438 ]
03:0438(66)NG
The decision of the Authority follows:


 3 FLRA No. 66
 
 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS
 LOCAL F-61
 (Union-Petitioner)
 
 AND
 
 PHILADELPHIA NAVAL SHIPYARD
 (Activity)
 
                              Case No. 0-NG-6
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                             UNION PROPOSAL I
 
                                ARTICLE XX
 
                                 TRAINING
 
         SECTION 1-- THE EMPLOYER AND THE UNION AGREE THAT ANY 
         GIVEN TRAINING SESSION OR DRILL WILL NOT EXCEED ONE (1)
         HOUR DURATION.  IT IS FURTHER AGREED THAT ONLY ONE 1) 
         TRAINING SESSION OR DRILL, OF ONE (1) HOUR DURATION 
         OR LESS, WILL BE ASSIGNED TO ANY GIVEN WORKDAY.  TRAINING
         SESSIONS OR DRILLS MUST BE CONCLUDED BY 1500 HOURS 
         ON WEEKDAYS.  NO TRAINING SESSIONS WILL BE HELD ON 
         SATURDAYS, SUNDAYS OR HOLIDAYS.
 
         SECTION 2-- THE EMPLOYER AND THE UNION AGREE THAT NO 
         OUTDOOR TRAINING SESSIONS OR DRILLS WILL BE HELD ON 
         DAYS WHEN THE OUTSIDE TEMPERATURE EXCEEDS 80 DEGREES
         FAHRENHEIT, OR DROPS BELOW 45 DEGREES FAHRENHEIT.  
         IT IS FURTHER AGREED THAT HIGH HUMIDITY, HIGH WINDS 
         AND PRECIPITATION SHALL BE CONSIDERED REASON FOR 
         CANCELLATION OF OUTDOOR TRAINING SESSIONS OR DRILLS.  
         THE EMPLOYER AND THE UNION FURTHER CONCUR THAT ALL 
         ON-DUTY PERSONNEL WILL PARTICIPATE IN TRAINING SESSIONS 
         OR DRILLS WITH THE EXCEPTION OF MEN ON OVERTIME STATUS, 
         COMPLETING SHIP INSPECTION OR EXTINGUISHER DETAIL, 
         WHENEVER POSSIBLE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION
 7106(A)(2)(B) OF THE STATUTE /1/ AS ALLEGED BY THE AGENCY.
 
    CONCLUSION:  THE PROVISION VIOLATES MANAGEMENT'S RIGHT UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513,
 THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN IS SUSTAINED.
 
    REASONS:  THE WORKWEEK OF THE FIRE FIGHTERS INVOLVED IN THIS CASE CAN
 INCLUDE, IN ANY GIVEN WEEK, A SATURDAY, A SUNDAY OR A HOLIDAY.  FURTHER,
 AS IS APPARENT FROM THE POSITIONS OF THE PARTIES BEFORE THE AUTHORITY,
 FIRE FIGHTERS ARE ASSIGNED A CERTAIN AMOUNT OF TRAINING AS A REGULAR
 PART OF THEIR FIRE FIGHTING DUTIES.  AN AGENCY RETAINS THE RIGHT UNDER
 SECTION 7106(A)(2)(B) TO ASSIGN WORK.  SUCH RIGHT CLEARLY ENCOMPASSES
 THE TRAINING INVOLVED IN THIS CASE, I.E., TRAINING ASSIGNED DURING THE
 DUTY HOURS OF FIRE FIGHTERS.  SECTION 1 OF THE UNION'S PROPOSAL,
 HOWEVER, WOULD PLACE ABSOLUTE LIMITS ON THE ABILITY OF THE AGENCY TO
 ASSIGN SUCH TRAINING AT ALL AFTER SPECIFIED HOURS OR ON CERTAIN DAYS OF
 A FIRE FIGHTER'S WORKWEEK.  TO THAT EXTENT THE PROPOSAL VIOLATES
 MANAGEMENT'S RIGHT TO ASSIGN WORK.
 
    IN ADDITION, WHILE IT MUST BE EMPHASIZED THAT HEALTH AND SAFETY
 CONSIDERATIONS SUCH AS INCLEMENT WEATHER OR HIGH WINDS ARE LEGITIMATE
 FACTORS TO CONSIDER IN CONDUCTING OUTDOOR TRAINING, SECTION 2 OF THIS
 PROPOSAL CLEARLY GOES BEYOND CONSIDERATION OF SUCH FACTORS IN
 IMPLEMENTING A DECISION TO ASSIGN TRAINING.  INSTEAD, THIS PROPOSAL
 WOULD ESTABLISH ARBITRARY ABSOLUTE LIMITS ON THE ASSIGNMENT OF OUTDOOR
 TRAINING, WHICH LIMITS ARE NOT BASED ON HEALTH AND SAFETY
 CONSIDERATIONS.  THUS, THE UNION'S PROPOSAL, BY PLACING ABSOLUTE LIMITS
 ON THE AGENCY'S ABILITY TO ASSIGN TRAINING TO UNIT PERSONNEL DURING DUTY
 HOURS VIOLATES THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.
 
                             UNION PROPOSAL II
 
                               ARTICLE XXIV
 
                                 HOLIDAYS
 
    THE FOLLOWING DAYS ARE RECOGNIZED AS HOLIDAYS UNDER THIS AGREEMENT:
 
                          NEW YEARS DAY
                          LINCOLN'S BIRTHDAY
                          WASHINGTON'S BIRTHDAY
                          MEMORIAL DAY
                          FOURTH OF JULY
                          LABOR DAY
                          COLUMBUS DAY
                          VETERANS DAY
                          THANKSGIVING DAY
                          CHRISTMAS EVE DAY
                          CHRISTMAS DAY
 
    1) WORKING CONDITIONS ON THE ABOVE DAYS WILL BE MINIMAL BASED ON THE
       REDUCED WORKLOAD IN THE SHIPYARD ON THE ABOVE DAYS.
 
    2) IN-STATION DUTIES SHALL ONLY CONSIST OF THOSE DETAILS WHOSE
       COMPLETION IS NECESSARY FOR NORMAL STATION MAINTENANCE AND SAFE 
       LIVING CONDITIONS.
 
    3) ANY DAY DECLARED A FEDERAL HOLIDAY BY ANY FEDERAL AGENCY, THE
       ABOVE PROVISIONS WILL BE OBSERVED.
 
    4) SATURDAY AFTERNOON AND SUNDAYS SHALL APPLY TO THE ABOVE
       PROVISIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION
 7106(A)(2)(B) OF THE STATUTE /2/ SINCE IT CONCERNS THE ASSIGNMENT OF
 WORK AND, IN ADDITION, WHETHER THAT PORTION OF THE PROPOSAL LISTING
 HOLIDAYS VIOLATES 5 U.S.C. 6103.  /3/
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL VIOLATES MANAGEMENT'S RIGHT UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK AND, IN ADDITION, THAT
 PORTION OF THE PROPOSAL LISTING HOLIDAYS VIOLATES 5 U.S.C. 6103.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS
 NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  BY ITS EXPRESS PROVISIONS, THE PROPOSAL SEEKS TO LIMIT THE
 PARTICULAR DUTIES WHICH MAY BE ASSIGNED TO UNIT EMPLOYEES ON SATURDAY
 AFTERNOONS, SUNDAYS AND HOLIDAYS.  NOTWITHSTANDING THE FACT THAT THE
 BASIC WORKWEEK OF FIRE FIGHTERS INCLUDES SATURDAYS, SUNDAYS AND
 HOLIDAYS, THERE IS NOTHING IN THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE OR ITS LEGISLATIVE HISTORY WHICH INDICATES THAT THE
 RIGHT TO ASSIGN WORK IS LIMITED TO NORMAL DUTY DAYS.  THUS, THE UNION'S
 PROPOSAL BY PROSCRIBING THE DUTIES FIRE FIGHTERS MAY BE ASSIGNED ON
 CERTAIN DAYS VIOLATES MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) TO
 ASSIGN WORK.  IN ADDITION, BY INCLUDING IN A LIST OF HOLIDAYS DAYS WHICH
 ARE NOT RECOGNIZED AS HOLIDAYS IN FEDERAL LAW, THE PROPOSAL, TO THAT
 EXTENT, ALSO VIOLATES 5 U.S.C. 6103.
 
                             PROPOSAL NO. III
 
                                ARTICLE XV
 
         SECTION 5-- MERIT PROMOTION EVALUATION PROCEDURES WILL 
         BE SO CONDUCTED AS TO DETERMINE THE MOST HIGHLY QUALIFIED 
         CANDIDATES FROM A LIST OF ELIGIBLES.  ALL EVALUATION 
         METHODS WILL BE ADMINISTERED SO AS TO DETERMINE SKILL 
         LEVELS ON A CUMULATIVE BASIS UP TO THE VACANCY ANNOUNCEMENT 
         DATE.  EVALUATION DATA MUST BE DETERMINED BY SUPERVISORS
         EVALUATION, PERFORMANCE EVALUATION, ORAL INTERVIEW, AND 
         ACADEMIC ACHIEVEMENT.  EACH OF THE METHODS OUTLINED IN
         SUB-PARAGRAPHS 5A, 5B, 5C, WILL COUNT 30;  TOWARD THE 
         FINAL SCORE. ACADEMIC ACHIEVEMENT OUTLINED IN SUB-PARAGRAPH 
         1D, WILL COUNT THE ADDITIONAL 10% NEEDED TO TOTAL 100%.
 
    A.  SUPERVISOR'S EVALUATION
 
        1.  SUPERVISORY EVALUATION WILL BE LIMITED TO TWO SUPERVISORS.
 
            A.  NO EVALUATION WILL COVER ANY PERIOD OF PERFORMANCE IN 
                EXCESS OF 2 1/2 YEARS PAST.
 
    2.  THE EVALUATOR MUST HAVE BEEN EMPLOYEE'S SUPERVISOR FOR A PERIOD
 OF THREE MONTHS EXCEPT IN CASES WHERE EMPLOYEE'S PRIOR SUPERVISOR IS 
 UNABLE TO TENDER AN EVALUATION DUE TO SICKNESS OR DEATH.
 
    3.  NO EVALUATION IS TO BE SUBMITTED BY ANY SUPERVISOR BELOW RANK OF
 GS-6 (EXCEPT IN CASES OF TEMPORARY PROMOTIONS TO GS-6, AND THEN ONLY 
 DURING THE TIME THE PROMOTION IS IN EFFECT, AND THE SUPERVISOR IS HIMSELF 
 NOT COMPETING FOR THE SAME POSITION.)
 
    4.  EVALUATIONS WILL BE DISCUSSED WITH APPLICANT BY RATER PRIOR TO
 SUBMISSION OF EVALUATION FORM TO THE CIVILIAN PERSONNEL OFFICER IF 
 REQUESTED BY THE APPLICANT. (ANY EVALUATION BASED ON POTENTIAL WILL 
 NOT BE DISCUSSED WITH APPLICANT.)
 
    5.  SUPERVISORS EVALUATIONS WILL CARRY THE FOLLOWING RELATIVE WEIGHT:
 
    A.  CURRENT SUPERVISOR = 100%
 
    B.  ANY OTHER SUPERVISOR = 80%
 
    C.  SUPERVISORS EVALUATIONS WILL BE COMPUTED AS FOLLOWS:
 
        1.  SUBTRACT LOW SCORE FROM HIGH SCORE.
 
        2.  TAKE 80% OF THE DIFFERENCE.
 
        3.  DIVIDE THE DIFFERENCE BY 2.
 
        4.  ADD THE RESULT TO THE CURRENT SUPERVISOR'S SCORE IF IT IS LOWER
            THAN THE "OTHER" SUPERVISOR'S SCORE, OR SUBTRACT THE RESULT FROM 
            THE CURRENT SUPERVISOR'S SCORE IF IT IS HIGHER THAN THE "OTHER" 
            SUPERVISOR'S SCORE.  AN EXAMPLE FOLLOWS:
 
                     CURRENT SUPERVISOR'S RATE = 92.0
                     OTHER SUPERVISOR = 76.0
                     DIFFERENCE IN SCORES = 16.0
                     80% OF 16 = 12.8
                     1/2 OF 12.8 = 6.4
                     92.0-- 6.4 FINAL EVALUATION SCORE OF 85.6
 
    6.  NO EMPLOYEE WILL BE RATED BY A FORMER SUPERVISOR WHO HAS LEFT THE
 EMPLOY OF THE FIRE DEPARTMENT OF PHILADELPHIA NAVAL SHIPYARD.
 
    7.  EVERY EFFORT WILL BE MADE TO SECURE TWO EVALUATIONS.  IN CASES
 WHERE THIS IS NOT POSSIBLE, DUE TO AN EMPLOYEE ONLY HAVING ONE SUPERVISOR, 
 DEATH TO A SUPERVISOR, OR UNDER THE CONDITIONS OUTLINED IN NO. 6 ABOVE, 
 A SECOND EVALUATION WILL BE OBTAINED FROM THE EMPLOYEE'S PLATOON ASSISTANT 
 CHIEF.  THE ASSISTANT CHIEF MAY NOT THEN BE DESIGNATED AS THE SELECTING 
 OFFICIAL IF THE EMPLOYEE RATED BY HIM IS IN THE AREA OF CONSIDERATION.
 
    B.  PERFORMANCE EVALUATION
 
    1.  THE TYPE OF EVALUATION WILL BE DETERMINED BY FIRE DEPARTMENT
 CHIEF OFFICERS.  THE UNION PRESIDENT WILL BE CONSULTED REGARDING THE 
 TYPE OF EVALUATION.  (IF UNION PRESIDENT IS TO BE EVALUATED, THE 
 CONSULTATION WILL BE WITH THE NEXT IN LINE UNION OFFICER NOT TO BE EVALUATED.)
 
    2.  THE EVALUATION WILL BE OBSERVED BY A NON-PARTICIPATING UNION
 REPRESENTATIVE UNLESS AN INDIVIDUAL OBJECTS, OBJECTIONS TO BE SUBMITTED 
 IN WRITING.
 
    3.  GRADES WILL BE DETERMINED BY PANEL OF AT LEAST TWO FIRE
 DEPARTMENT DESIGNATED GS-5'S AND/OR GS-6'S WHO WILL USE A NUMERICAL 
 SCORING SYSTEM AND AWARD EACH APPLICANT AN AVERAGE OF HIS TOTAL POINTS.  
 IN THE EVENT THE APPLICANT'S DRIVING ABILITY IS TO BE EVALUATED, THE 
 SERVICES OF A THIRD PARTY SUCH AS THE MOTOR VEHICLE OPERATOR LICENSING 
 EXAMINER OR A MOTOR VEHICLE OPERATOR FOREMAN, WILL BE ACQUIRED FOR 
 THAT PURPOSE. (EXAMPLE:  #1 EVALUATOR SCORES 90, #2 - 85 SCORE, 
 #3-84 SCORE = 86.3)
 
    C.  ORAL INTERVIEW
 
    1.  INTERVIEW WILL BE CONDUCTED BY AT LEAST THREE BUT NOT MORE THAN
 FIVE FIRE DEPARTMENT CHIEF OFFICERS.
 
    2.  ALL INTERVIEWERS WILL ASK SAME AMOUNT OF JOB RELATED QUESTIONS.
 THE APPLICANT'S SCORE WILL THEN BE TOTALED AND AVERAGED TO DETERMINE 
 EACH APPLICANT'S ORAL NTERVIEW RATING.
 
    3.  APPROPRIATE MEASURES WILL BE TAKEN TO INSURE THAT THERE WILL BE
 NO RELATED VERBAL EXCHANGES BETWEEN THOSE APPLICANTS ALREADY INTERVIEWED AND THOSE NOT
 YET INTERVIEWED.
 
    4.  INTERVIEW WILL BE OBSERVED BY A NON-PARTICIPATING UNION
 REPRESENTATIVE UNLESS AN INDIVIDUAL OBJECTS;  SUCH OBJECTION TO BE 
 SUBMITTED IN WRITING.
 
    D.  CREDIT FOR ACADEMIC ACHIEVEMENT WILL BE GIVEN AS FOLLOWS:
 
    1.  60 UNITS OF COLLEGE CREDIT WILL COUNT 100% OF THE 10;  DESIGNATED
 FOR ACADEMIC ACHIEVEMENT.
 
    2.  FIRE SCIENCE AND JOB RELATED COURSES COUNT FULL VALUE.
 
    3.  OTHER COURSES INCLUDED IN THE FIRE SCIENCE A.A. DEGREE CURRICULUM
 (WITH THE EXCEPTION OF PHYSICAL EDUCATION, AND CREDITS GIVEN WITHOUT CLASSROOM
  ATTENDANCE) WILL RECEIVE ONE-HALF VALUE.
 
    4.  CREDITS EARNED BY COURSE CHALLENGES WILL GET THEIR PROPER VALUE
 AS LONG AS THEY MEET THE REQUIREMENTS OF 2 AND 3 ABOVE.
 
    SECTION 6-- IT SHALL BE THE RESPONSIBILITY OF MANAGEMENT, WITH
 COOPERATION OF THE UNION, TO MAKE EVERY EFFORT TO INSURE THAT ALL FIRE 
 DEPARTMENT PERSONNEL BE GIVEN A COMPLETE BRIEFING ON ALL RESPECTS OF 
 THIS EVALUATION PROCEDURE.
 
    SECTION 7-- PROMOTION REGISTERS TO GS-5 AND GS-6 WILL STAND FOR NO
 LONGER THAN NINE (9) MONTHS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE
 OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE, /4/ BECAUSE IT
 CONCERNS MATTERS THAT ARE NOT CONDITIONS OF EMPLOYMENT OF UNIT
 EMPLOYEES.
 
                                  OPINION
 
    CONCLUSION:  TO THE EXTENT THAT THE PROPOSAL CONCERNS PROMOTION
 PROCEDURES FOR BARGAINING UNIT POSITIONS IT IS WITHIN THE OBLIGATION TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.  HOWEVER, TO THE EXTENT THAT
 THE PROPOSAL WOULD APPLY PROMOTION PROCEDURES TO NONBARGAINING UNIT
 SUPERVISORY POSITIONS IT IS NEGOTIABLE ONLY AT THE ELECTION OF THE
 AGENCY.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS, 45 F.R. 3513, SINCE THE AGENCY HAS ELECTED NOT TO
 NEGOTIATE PROMOTION PROCEDURES FOR NONBARGAINING UNIT SUPERVISORY
 POSITIONS, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN BECAUSE IT EXTENDS TO SUCH NONBARGAINING UNIT
 SUPERVISORY POSITIONS IS TO THAT EXTENT SUSTAINED.
 
    REASONS:  THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO THE
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.  /5/ IN THIS
 REGARD, SUPERVISORS ARE SPECIFICALLY EXCLUDED FROM INCLUSION IN
 COLLECTIVE BARGAINING UNITS.  /6/ AS RELEVANT IN THE CIRCUMSTANCES OF
 THIS CASE, THE AGENCY CLAIMS AND THE UNION TACITLY ADMITS, THAT THE GS-6
 POSITIONS IDENTIFIED IN THE PROPOSED PROMOTION PROCEDURES ARE CLASSIFIED
 AS SUPERVISORY AND, THUS, ARE OUTSIDE OF THE BARGAINING UNIT.  /7/
 
    WHILE AN AGENCY IS NOT PROHIBITED FROM BARGAINING ON AND, THEREFORE,
 MAY, AT ITS ELECTION, BARGAIN ON THE PROMOTION PROCEDURES FOR SUCH
 NONBARGAINING UNIT SUPERVISORY POSITIONS, IT IS NOT OBLIGATED TO DO SO.
 CONSEQUENTLY, SINCE THE AGENCY IN THIS CASE HAS ELECTED NOT TO BARGAIN
 ON THE PROMOTION PROCEDURES FOR SUPERVISORY PERSONNEL, THE AGENCY'S
 ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN, IS TO
 THAT EXTENT, SUSTAINED.
 
                             UNION PROPOSAL IV
 
                                 ARTICLE X
 
                                 OVERTIME
 
      SECTION 4-- THE EMPLOYER AGREES THAT FOR THE PURPOSE OF APPLYING
      SECTION 7(K) OF THE FAIR LABOR STANDARDS ACT, /8/ THE WORK PERIOD 
      SHALL CONSIST OF A 7 DAY PERIOD.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN EITHER BECAUSE IT CONCERNS A MATTER SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE AND IS, THUS, EXCLUDED FROM THE DEFINITION OF CONDITIONS
 OF EMPLOYMENT UNDER SECTION 7103(A)(14) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, /9/ OR BECAUSE IT VIOLATES
 MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE /10/ TO
 DETERMINE THE AGENCY'S BUDGET, ORGANIZATION AND NUMBER OF EMPLOYEES.
 
    CONCLUSION:  THE UNION'S PROPOSAL DOES NOT CONCERN A MATTER WHICH IS
 SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE AND, FURTHER, DOES NOT
 VIOLATE SECTION 7106(A)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513,
 THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN IS SET ASIDE.  /11/
 
                                  OPINION
 
    REASONS:  AS PREVIOUSLY INDICATED, (NOTE 8, SUPRA) SECTION 7(K) OF
 THE FSLA PROVIDES, AS RELEVANT IN THIS CASE, THAT FIRE FIGHTERS WILL
 RECEIVE OVERTIME UNDER THE FLSA FOR ALL HOURS WORKED IN EXCESS OF 216
 HOURS IN A 28 DAY PERIOD OR PROPORTIONALLY FEWER HOURS FOR A
 PROPORTIONALLY SHORTER WORK PERIOD, E.G., 108 HOURS FOR A 14 DAY WORK
 PERIOD (AS IS CURRENTLY UTILIZED BY THE AGENCY) OR 54 HOURS FOR A SEVEN
 DAY WORK PERIOD (AS PROPOSED BY THE UNION).  /12/
 
    THIS UTILIZATION OF A SEVEN DAY WORK PERIOD RESULTS IN SOME
 CIRCUMSTANCES IN A DIFFERENT OVERTIME ENTITLEMENT THAN IF A FOURTEEN DAY
 WORK PERIOD IS SELECTED.  FOR EXAMPLE, THE FIRE FIGHTERS IN THIS CASE
 ARE SCHEDULED TO WORK THREE 24 HOUR DAYS EACH WEEK FOR A TOTAL OF 144
 HOURS FOR THE TWO WEEK PERIOD.  THUS, UNDER THE AGENCY'S PRACTICE THESE
 FIRE FIGHTERS WILL BE ENTITLED TO 36 HOURS (144 MINUS 108) OF OVERTIME.
 
    UNDER THE UNION'S PROPOSAL ON THE OTHER HAND, WHICH CONTEMPLATES A
 SEVEN DAY PERIOD FOR THE CALCULATION OF OVERTIME, FIRE FIGHTERS WOULD BE
 ENTITLED TO OVERTIME COMPENSATION FOR ALL HOURS WORKED IN EXCESS OF 54 A
 WEEK.  ASSUMING, THE FIRE FIGHTERS WORK THE SAME 72 HOURS (THREE 24 HOUR
 DAYS) EACH WEEK THEY WOULD BE ENTITLED TO 18 HOURS OF OVERTIME EACH WEEK
 (72 MINUS 54) OR 36 HOURS FOR TWO WEEKS.  IN THIS SITUATION THEN, THE
 UNION'S PROPOSAL WILL RESULT IN THE SAME OVERTIME ENTITLEMENT AS UNDER
 THE CURRENT AGENCY PROCEDURE.
 
    IN TWO OTHER SITUATIONS HOWEVER, THE UNION'S PROPOSAL WOULD RESULT IN
 MORE OVERTIME BEING PAYABLE THAN UNDER THE AGENCY'S CURRENT PRACTICE.
 THE FIRST OF THOSE TWO SITUATIONS WOULD OCCUR WHEN A FIRE FIGHTER IS ON
 LEAVE FOR ONE DAY DURING THE TWO WEEK PERIOD.  UNDER THE FLSA, TIME NOT
 WORKED IS SUBTRACTED FROM THE SCHEDULED TIME TO DETERMINE THE FIRE
 FIGHTERS POTENTIAL OVERTIME ENTITLEMENT AS FOLLOWS:
 
    1.  UNDER THE AGENCY'S CURRENT PROCEDURE (OVERTIME FOR HOURS WORKED
 IN EXCESS OF 108 IN A 14 DAY PERIOD) (TABLE OMITTED)
 
    2.  UNDER THE UNION'S PROPOSAL (OVERTIME FOR HOURS WORKED IN EXCESS
 OF 54 IN A SEVEN DAY PERIOD) (TABLE OMITTED)
 
    THUS, UNDER THE UNION'S PROPOSAL THE FIRE FIGHTER WOULD BE ENTITLED
 TO SIX MORE HOURS OVERTIME THAN UNDER THE AGENCY'S CURRENT PRACTICE (18
 HOURS INSTEAD OF 12 HOURS).
 
    IN THE SECOND SITUATION, WHERE A FIRE FIGHTER IS OFF ONE DAY THE
 FIRST WEEK AND THEN WORKS AN ADDITIONAL SHIFT THE SECOND WEEK, THE FIRE
 FIGHTER WOULD BE ENTITLED TO MORE OVERTIME UNDER THE UNION'S PROPOSAL
 THAN UNDER THE AGENCY'S CURRENT PRACTICE AS FOLLOWS:
 
    1.  UNDER THE AGENCY'S CURRENT PRACTICE (TABLE OMITTED)
 
    2.  UNDER THE UNION'S PROPOSAL (TABLE OMITTED)
 

    Thus, under the union's proposl the fire fighter would be entitled
 to six more hours overtime under the agency's current practice (18 hours
 instead of 12 hours).

    In the second situration, where a fire fighter is off one day the
first week and then works an additional shift the second week, the 
fire figher would be entitled to more overtime under the union's
current proposal then under the agency's current practice as follows:
   
    1. Under the agency's current practice ( TABLE OMMITTED )

    2. Under the union's proposal ( TABLE OMMITTED )

    THUS, IN THIS SITUATION THE FIRE FIGHTER WOULD BE ENTITLED TO 42
 HOURS OF OVERTIME INSTEAD OF 36 HOURS UNDER THE AGENCY'S CURRENT
 PRACTICE.
 
    THE AGENCY FIRST CLAIMS THAT UNDER SECTION 7(K) OF THE FLSA THE
 AGENCY HEAD HAS SOLE DISCRETION TO DETERMINE THE LENGTH OF THE WORK
 PERIOD REFERRED TO IN SECTION 7(K).  THUS, THE AGENCY ARGUES, SINCE THE
 DETERMINATION OF WORK PERIODS IS SPECIFICALLY PROVIDED FOR BY FEDERAL
 STATUTE, SUCH DETERMINATION IS EXCLUDED FROM THE OBLIGATION TO BARGAIN
 BY SECTION 7103(A)(14) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.  IN SUPPORT THE AGENCY PRINCIPALLY RELIES ON THE LEGISLATIVE
 HISTORY OF SECTION 7(K) OF THE FLSA, TWO UNSUCCESSFUL LEGISLATIVE
 ATTEMPTS TO ACHIEVE A REDUCTION IN THE WORK WEEK AND A FEDERAL COURT
 DECISION SUSTAINING THE USE OF THE 14 DAY WORK PERIOD IN CALCULATING
 FLSA OVERTIME.
 
    THE AGENCY'S CLAIM CANNOT BE SUSTAINED.  IT IS CLEAR FROM THE
 LEGISLATIVE HISTORY OF SECTION 7103(A)(14) OF THE STATUTE THAT ONLY
 THOSE MATTERS SPECIFICALLY PROVIDED FOR BY OTHER FEDERAL STATUTES ARE
 EXCEPTED FROM THE OBLIGATION TO NEGOTIATE.  /13/ IN THIS REGARD, THE
 AGENCY HAS FAILED TO DEMONSTRATE THAT THE DETERMINATION OF THE LENGTH OF
 THE WORK PERIOD USED TO CALCULATE FLSA OVERTIME CANNOT UNDER SECTION
 7(K) OF THE FLSA BE ARRIVED AT THROUGH NEGOTIATIONS AS LONG AS THE
 CONSTRAINTS SPECIFIED IN SECTION 7(K) ARE MET, I.E., THAT THE LENGTH OF
 THE WORK PERIOD BE AT LEAST SEVEN AND NOR MORE THAN 28 DAYS.  IN
 ADDITION, THERE IS NO INDICATION IN THE IMPLEMENTING REGULATIONS
 CONTAINED IN THE FEDERAL PERSONNEL MANUAL /14/ THAT THE DISCRETION
 DELEGATED TO AGENCY HEADS TO DETERMINE THE LENGTH OF THE WORK PERIOD
 ALSO COULD NOT BE EXERCISED THROUGH NEGOTIATIONS.
 
    AS TO THE AGENCY'S RELIANCE ON TWO UNSUCCESSFUL LEGISLATIVE ATTEMPTS
 TO CHANGE THE WORK WEEK OF FIRE FIGHTERS AS SUPPORT FOR THE CLAIM THAT
 THE SECTION 7(K) DETERMINATION IS WITHIN THE AGENCY'S SOLE DISCRETION,
 SUCH RELIANCE IS MISPLACED.  BOTH H.R. 4634 INTRODUCED IN THE 94TH
 CONGRESS AND H.R. 3161 INTRODUCED IN THE 95TH CONGRESS WOULD HAVE CAUSED
 A REDUCTION IN THE ACTUAL HOURS FIRE FIGHTERS WORK FROM 72 TO AN AVERAGE
 OF 54 (H.R. 4634) OR AN AVERAGE OF 54 (H.R. 3161 WITH NO REDUCTION IN
 TITLE 5 OVERTIME (NOTE 12, SUPRA).  THE UNION'S PROPOSAL HERE INVOLVED
 HOWEVER, CONCERNS ONLY THE CALCULATION OF FLSA OVERTIME AND WOULD NOT
 REQUIRE ANY REDUCTION IN THE 72 HOUR WORKWEEK OF FIRE FIGHTERS.
 
    FINALLY, THE AGENCY'S RELIANCE ON A FEDERAL COURT DECISION SUSTAINING
 THE USE OF A 14 DAY WORK PERIOD IS ALSO MISPLACED.  IN THAT CASE, /15/
 THE COURT REJECTED A UNION CONTENTION THAT AN AGENCY WAS MANDATED BY
 TITLE 5 TO UTILIZE A SEVEN DAY WORK PERIOD.  THE COURT INDICATED THAT
 THE FLSA-SANCTIONED WORK PERIODS WHICH RANGED FROM SEVEN TO 28 DAYS AND
 THAT "CONGRESS INTENDED TO VEST DISCRETION WITH THE . . . CIVIL SERVICE
 COMMISSION IN ESTABLISHING THE APPLICABLE WORK PERIODS.  . . . " AS
 NOTED ABOVE, SUCH DISCRETION WAS IN TURN DELEGATED TO AGENCY HEADS.
 
    THEREFORE, SINCE NOTHING IN SECTION 7(K) OF THE FLSA SPECIFICALLY
 PROVIDES FOR THE LENGTH OF THE WORK PERIOD USED TO CALCULATE FLSA
 OVERTIME OR PRECLUDES THE NEGOTIATION OF SUCH PERIOD, THE MATTER IS NOT
 EXCLUDED FROM THE DUTY TO BARGAIN BY SECTION 7103(A)(14) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    TURNING NOW TO THE AGENCY'S ALLEGATIONS THAT THE UNION'S PROPOSAL
 WOULD VIOLATE MANAGEMENT'S 7106(A)(1) RIGHTS TO DETERMINE THE BUDGET,
 ORGANIZATION AND NUMBERS OF EMPLOYEES, SUCH ALLEGATIONS WILL BE DEALT
 WITH IN TURN.
 
    THERE IS NO QUESTION BUT THAT CONGRESS INTENDED THAT ANY PROPOSAL
 WHICH WOULD DIRECTLY INFRINGE ON THE EXERCISE OF MANAGEMENT RIGHTS UNDER
 SECTION 7106 OF THE STATUTE WOULD BE BARRED FROM NEGOTIATIONS.  /16/ THE
 RIGHT TO DETERMINE THE "BUDGET" WAS INTERPRETED AND APPLIED IN THE AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO CASE.
 /17/ THAT DECISION STATED IN PERTINENT PART:
 
        . . . THE AGENCY'S AUTHORITY TO DETERMINE ITS BUDGET EXTENDS 
        TO THE DETERMINATION OF THE PROGRAMS AND OPERATIONS WHICH WILL 
        BE INCLUDED IN THE ESTIMATE OF PROPOSED EXPENDITURES AND
        THE DETERMINATION OF THE AMOUNTS REQUIRED TO FUND THEM.  UNDER THE
        STATUTE, THEREFORE, AN AGENCY CANNOT BE REQUIRED TO NEGOTIATE THOSE 
        PARTICULAR BUDGETARY DETERMINATIONS.  THAT IS, A UNION PROPOSAL 
        ATTEMPTING TO PRESCRIBE THE PARTICULAR PROGRAMS OR OPERATIONS THE 
        AGENCY WOULD INCLUDE IN ITS BUDGET OR TO PRESCRIBE THE AMOUNT TO 
        BE ALLOCATED IN THE BUDGET FOR THEM WOULD INFRINGE UPON THE 
        AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1) 
        OF THE STATUTE.
 
       [HOWEVER], WHERE A PROPOSAL DOES NOT BY ITS TERMS PRESCRIBE THE
       PARTICULAR PROGRAMS OR AMOUNTS TO BE INCLUDED IN AN AGENCY'S 
       BUDGET, NEVERTHELESS IS ALLEGED TO VIOLATE THE AGENCY'S RIGHT 
       TO DETERMINE ITS BUDGET BECAUSE OF INCREASED COST, CONSIDERATION 
       MUST BE GIVEN TO ALL THE FACTORS INVOLVED.  THAT IS, RATHER 
       THAN BASING A DETERMINATION AS TO THE NEGOTIABILITY OF THE PROPOSAL 
       ON INCREASED COST ALONE, THAT ONE FACTOR MUST BE WEIGHED AGAINST 
       SUCH FACTORS AS THE POTENTIAL FOR IMPROVED EMPLOYEE PERFORMANCE, 
       INCREASED PRODUCTIVITY, REDUCED TURNOVER, FEWER GRIEVANCES, AND 
       THE LIKE.  ONLY WHERE AN AGENCY MAKES A SUBSTANTIAL DEMONSTRATION 
       THAT AN INCREASE IN COSTS IS SIGNIFICANT AND UNAVOIDABLE AND IS 
       NOT OFFSET BY COMPENSATING BENEFITS CAN AN OTHERWISE NEGOTIABLE 
       PROPOSAL BE FOUND TO VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS
       BUDGET UNDER SECTION 7106(A) OF THE STATUTE.
 
    THE PROPOSAL HERE IN DISPUTE DOES NOT BY ITS EXPRESS TERMS PRESCRIBE
 THE PARTICULAR AMOUNT TO BE INCLUDED IN THE AGENCY'S BUDGET.  THE AGENCY
 ARGUES THAT ADOPTION OF THE PROPOSAL WOULD RESULT IN AN INCREASED COST
 IN EXCESS OF $3.1 MILLION PER YEAR "WITH NO COUNTERVAILING BENEFITS TO
 THE GOVERNMENT." THIS CLAIMED INCREASE IN COST IS NOT BASED SOLELY ON
 ADOPTION OF THE PROPOSAL IN THE BARGAINING UNIT HERE INVOLVED WHICH
 CONTAINS LESS THAN 50 FIRE FIGHTERS.  /18/ RATHER, IT IS THE PRODUCT OF
 COMPUTATIONS INVOLVING ALL THE MORE THAN 10,000 FIRE FIGHTERS IN THE
 DEPARTMENT OF DEFENSE AND ASSUMES THAT THE ALL ARRANGE FOR WORK AND
 LEAVE SCHEDULES WHICH WOULD ENTITLE THEM TO THE MAXIMUM AMOUNT OF
 OVERTIME TO WHICH ONE COULD BE ENTITLED UNDER THE DISPUTED PROPOSAL.
 MOREOVER, THE AGENCY HAS MADE NO SUBSTANTIAL DEMONSTRATION THAT THE
 INCREASED COSTS, WHICH IT HYPOTHESIZES, ARE UNAVOIDABLE AND WILL NOT BE
 OFFSET BY INCREASED EMPLOYEE PERFORMANCE, REDUCED TURNOVER, FEWER
 GRIEVANCES AND THE LIKE.  CONSEQUENTLY, PROPOSAL IV DOES NOT VIOLATE THE
 RIGHT OF THE AGENCY TO DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1) OF
 THE STATUTE.
 
    AS TO THE AGENCY'S ARGUMENTS THAT THE UNION'S PROPOSAL WOULD REQUIRE
 THE AGENCY TO ALTER ITS ORGANIZATION AND NUMBER OF EMPLOYEES ASSIGNED,
 SUCH ARGUMENTS CANNOT BE SUSTAINED.  THERE IS NOTHING IN THE PROPOSAL
 WHICH WOULD REQUIRE OR RESULT IN A CHANGE OF EITHER THE NUMBER OF FIRE
 FIGHTERS ASSIGNED OR A CHANGE IN THE 72 HOUR PER WEEK WORK SCHEDULE.
 THE UNION'S PROPOSAL ONLY WOULD ESTABLISH A DIFFERENT WORK PERIOD FOR
 THE CALCULATION OF FLSA OVERTIME, AND IN THIS REGARD, THE AGENCY HAS NO
 LAW OR REGULATION INDICATING THAT THIS WORK PERIOD MUST COINCIDE WITH AN
 ALREADY ESTABLISHED PAY PERIOD OR AN ALREADY ESTABLISHED WORK SCHEDULE.
 THEREFORE, SINCE THE UNION'S PROPOSAL IS NOT DIRECTLY RELATED TO THE
 "ORGANIZATION" OF THE AGENCY OR TO "THE NUMBER OF EMPLOYEES ASSIGNED,"
 IT IS NOT EXCLUDED FROM THE DUTY TO BARGAIN BY SECTION 7106(A)(1) OF THE
 STATUTE.
 
    IN SUMMARY, THE AGENCY HAS DISCRETION UNDER SECTION 7(K) OF THE FLSA
 AND IMPLEMENTING REGULATIONS TO ESTABLISH THE WORK PERIOD TO BE USED TO
 CALCULATE OVERTIME AS AT LEAST SEVEN AND NOT MORE THAN 28 DAYS.  THERE
 IS NO INDICATION THAT SUCH DISCRETION WAS INTENDED TO BE SOLE AND
 EXCLUSIVE AND COULD NOT BE EXERCISED THROUGH NEGOTIATION WITH THE UNION.
  FURTHERMORE, NEGOTIATION OF THE WORK PERIOD WITHIN THE STATUTORY LIMITS
 DOES NOT VIOLATE THE RIGHTS RESERVED TO MANAGEMENT UNDER THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    ACCORDINGLY, SINCE UNION PROPOSAL IV CONCERNS A MATTER WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, THE AGENCY'S ALLEGATION TO
 THE CONTRARY IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JUNE 24, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                       LEON B. APPLEWHAITE, MEMBER
 
                       FEDERAL LABOR RELATIONS AUTHORITY
 
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    /1/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (B) TO ASSIGN WORK . . .
 
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   /2/ SECTION 7106(A)(2)(B) WHICH IS SET OUT IN FULL IN NOTE 2 SUPRA,
 PROVIDES AS HERE RELEVANT THAT "NOTHING . . . SHALL AFFECT THE AUTHORITY
 OF ANY MANAGEMENT OFFICIAL . . . TO ASSIGN WORK."
 
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   /3/ 5 U.S.C. 6103 PROVIDES, AS HERE RELEVANT, AS FOLLOWS:
 
    SEC. 6103.  HOLIDAYS
 
    (A) THE FOLLOWING ARE LEGAL PUBLIC HOLIDAYS:
 
    NEW YEAR'S DAY, JANUARY 1.
 
    WASHINGTON'S BIRTHDAY, THE THIRD MONDAY IN FEBRUARY
 
    MEMORIAL DAY, THE LAST MONDAY IN MAY.
 
    INDEPENDENCE DAY, JULY 4.
 
    LABOR DAY, THE FIRST MONDAY IN SEPTEMBER.
 
    COLUMBUS DAY, THE SECOND MONDAY IN OCTOBER.
 
    VETERANS DAY, NOVEMBER 11.
 
    THANKSGIVING DAY, THE FOURTH THURSDAY IN NOVEMBER.
 
    CHRISTMAS DAY, DECEMBER 25 . . .
 
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   /4/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATIONS.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
   *          *          *          *
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . .
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS . . .
 
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   /5/ ID.
 
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   /6/ SECTION 7112(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7112.  DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
 REPRESENTATION
 
   .          .          .          .
 
 
    (B) . . . NOR SHALL A UNIT BE DETERMINED TO BE APPROPRIATE IF IT
 INCLUDES--
 
    (1) . . . ANY . . . SUPERVISOR . . .
 
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   /7/ NO DETERMINATION IS MADE IN THIS CASE AS TO WHETHER GS-6 "FIRE
 CAPTAIN" POSITIONS WOULD BE CONSIDERED SUPERVISORY UNDER SECTION
 7103(A)(10) OF THE STATUTE.  SUCH A DETERMINATION WOULD PROPERLY BE THE
 SUBJECT OF A PETITION FOR CLARIFICATION OF AN EXISTING UNITS FILED UNDER
 PART 2422 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3498.
 
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   /8/ SECTION 7K OF THE FAIR LABOR STANDARDS ACT (FLSA) (29 U.S.C.
 207(K) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (K) NO PUBLIC AGENCY SHALL BE DEEMED TO HAVE VIOLATED (THE
 REQUIREMENT TO PAY OVERTIME FOR
 
    HOURS WORKED IN EXCESS OF 40 HOURS) WITH RESPECT TO THE EMPLOYMENT OF
 ANY EMPLOYEE IN FIRE
 
    PROTECTION ACTIVITIES . . . IF--
 
   .          .          .          .
 
 
    (2) IN THE CASE OF SUCH AN EMPLOYEE TO WHOM A WORK PERIOD OF AT LEAST
 7 BUT LESS THAN 28
 
    DAYS APPLIES, IN HIS WORK PERIOD THE EMPLOYEE RECEIVES FOR TOURS OF
 DUTY WHICH IN THE
 
    AGGREGATE EXCEED A NUMBER OF HOURS WHICH BEARS THE SAME RATIO TO THE
 NUMBER OF CONSECUTIVE
 
    DAYS IN HIS WORK PERIOD . . . AS 216 HOURS BEARS TO 28 DAYS . .  .
 COMPENSATION AT A RATE NOT
 
    LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS
 EMPLOYED.
 
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   /9/ SECTION 7103(A)(14) OF THE STATUTE PROVIDES, IN PERTINENT PART,
 AS FOLLOWS:
 
    (14) "CONDITIONS OF EMPLOYMENT" . . . DOES NOT INCLUDE POLICIES,
 PRACTICES, AND MATTERS--
 
   .          .          .          .
 
 
    (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE.
 
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   /10/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE . . . BUDGET, ORGANIZATION, NUMBER OF EMPLOYEES
 . . . OF THE AGENCY
 
    . . .
 
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   /11/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, NO JUDGMENT IS MADE AS TO THE MERITS OF THE PROPOSAL.
 
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   /12/ IN ADDITION TO FLSA OVERTIME, FIRE FIGHTERS RECEIVE UNDER 5
 U.S.C. 5545(C) A FIXED PERCENTAGE OF THEIR BASIC PAY (UP TO 25%) AS
 COMPENSATION FOR STANDBY TIME, SUNDAY WORK AND HOLIDAY WORK.
 
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   /13/ SEE STATEMENT OF CONGRESSMAN CLAY CONCERNING THAT PORTION OF THE
 BILL PASSED BY THE HOUSE (THE "UDALL SUBSTITUTE") WHICH EXCLUDED MATTERS
 SPECIFICALLY PROVIDED FOR BY OTHER FEDERAL STATUTES FROM THE OBLIGATION
 TO BARGAIN WHICH PORTION WAS ENACTED AS 7103(A)(14)(C):
 
    MR. CLAY.
 
   .          .          .          .
 
 
    SECTION 7103(A)(14)(D), REMOVING FROM SUBJECTS OF BARGAINING THOSE
 MATTERS SPECIFICALLY
 
    PROVIDED FOR BY FEDERAL STATUTE, WAS ADOPTED BY THE COMMITTEE AND
 RETAINED IN THE UDALL
 
    SUBSTITUTE WITH THE CLEAR UNDERSTANDING THAT ONLY MATTERS
 "SPECIFICALLY" PROVIDED FOR BY
 
    STATUTE WOULD BE EXCLUDED UNDER THIS SUBSECTION.  THUS, WHERE A
 STATUTE MERELY VESTS AUTHORITY
 
    OVER A PARTICULAR SUBJECT WITH AN AGENCY OFFICIAL WITH THE OFFICIAL
 GIVEN DISCRETION IN
 
    EXERCISING THAT AUTHORITY, THE PARTICULAR SUBJECT IS NOT EXCLUDED BY
 THIS SUBSECTION FROM THE
 
    DUTY TO TO BARGAIN OVER CONDITIONS OF EMPLOYMENT.
 
    124 CONG.REC.H 9638 (DAILY ED. SEPT. 13, 1978).
 
    SEE ALSO THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN 124 CONG.REC.H
 9638 (DAILY ED. SEPT. 13, 1978).
 
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   /14/ SEE FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 5551-5, JAN.  15,
 1975.
 
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   /15/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS V. UNITED STATES, 23
 WH CASES 471 (D.D.C. JULY 15, 1977).
 
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   /16/ SEE, FOR EXAMPLE, THE STATEMENT OF CONGRESSMAN CLAY, ONE OF THE
 PROPONENTS OF THE "UDALL SUBSTITUTE," CONCERNING THE RIGHTS CLAUSE OF
 THE "UDALL SUBSTITUTE:"
 
    MR. CLAY.
 
   .          .          .          .
 
 
    THE UDALL SUBSTITUTE CONTAINS A MANAGEMENT RIGHTS CLAUSE
 SUBSTANTIALLY ENLARGED BEYOND THAT
 
    IN THE COMMITTEE PRINT.  AN IMPORTANT ELEMENT IN OUR AGREEING TO
 ENTRUST SUCH AN EXPANDED
 
    MANAGEMENT RIGHTS CLAUSE TO THE HANDS OF THE NEW AUTHORITY IS THE
 EXAMPLE OF THE PROTECTION
 
    AFFORDED THE COLLECTIVE BARGAINING PROCESS BY CONSCIENTIOUS SCRUTINY
 OF MANAGEMENT CLAIMS OF
 
    INFRINGEMENTS ON MANAGEMENT RIGHTS, ESPECIALLY AS FOUND IN THE TWO
 1978 DECISIONS ABOVE.  IF
 
    THE NEW AUTHORITY IS FAITHFUL TO THESE INTERPRETATIVE GUIDELINES, THE
 ULTIMATE EXERCISE OF THE
 
    SPECIFIED MANAGERIAL RESPONSIBILITY, THE ONLY SUBJECT EXEMPTED FROM
 THE BARGAINING OBLIGATION,
 
    WILL BE PROTECTED AND THE GENERAL OBLIGATION TO BARGAIN OVER
 CONDITIONS OF EMPLOYMENT WILL BE
 
    UNIMPAIRED.  HOWEVER, IT IS ESSENTIAL THAT ONLY THOSE PROPOSALS THAT
 DIRECTLY AND INTEGRALLY
 
    GO TO THE SPECIFIED MANAGEMENT RIGHTS BE BARRED FROM THE
 NEGOTIATIONS.
 
    124 CONG.REC. H9638 (DAILY ED. SEPT. 13, 1978).
 
    S