14:0432(68)NG - IBEW Local 570 and Army, Yuma Proving Ground, AZ -- 1984 FLRAdec NG



[ v14 p432 ]
14:0432(68)NG
The decision of the Authority follows:


 14 FLRA No. 68
 
 INTERNATIONAL BROTHERHOOD
 OF ELECTRICAL WORKERS,
 LOCAL 570, AFL-CIO-CLC
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 YUMA PROVING GROUND, ARIZONA
 Agency
 
                                            Case No. O-NG-444
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of six Union Proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Article XVI, Section 12.
 
          All work shall be performed by personnel familiar with the code
       requirements and are qualified for the class of work to be
       performed.
 
                             Union Proposal 2
 
          Article I, New Section 4.
 
          All work and work tasks normally performed by "nonsupervisory
       employees whose jobs are classified within the Department of Army
       wage board job family as inside, outside electricians, electrical
       lineman, and electrical motor repairer" will come under the
       jurisdiction of the International Brotherhood of Electrical
       Workers, Local 570, and under no circumstances be assigned outside
       the unit.
 
                             Union Proposal 3
 
          Article V, Section 2.
 
          Bargaining unit employees will not be displaced by those
       outside the bargaining unit except in the event of an emergency.
 
    In National Association of Air Traffic Specialists and Department of
 Transportation, Federal Aviation Administration, 6 FLRA 588 (1981), the
 Authority determined that a proposal which would limit management's
 right to assign bargaining unit work violated section 7106(a)(2)(B) of
 the Statute /2/ and hence was nonnegotiable.  In this context, Union
 Proposal 1 herein bears no material difference from Union Proposal 5
 held to be outside the duty to bargain in Federal Aviation
 Administration which would have required the continued assignment of
 bargaining unit work to "qualified" bargaining unit employees.  The
 plain language of Union Proposal 1, herein, similarly would require the
 Agency to assign work to "personnel familiar with code requirements and
 qualified for the class of work to be performed." Hence, it also is
 outside the duty to bargain.
 
    Union Proposal 2 would, among other things, require that all work
 normally performed by employees within certain job classifications would
 under no circumstances be assigned outside the unit.  Union Proposal 3,
 similarly, would prevent the Agency from assigning bargaining unit work
 to employees outside the bargaining unit in non-emergency situations.
 Thus, these proposals restrict management's right to assign work and,
 for the reasons stated in Federal Aviation Administration, are
 inconsistent with the Agency's right to assign work pursuant to section
 7106(a)(2)(B) of the Statute and are outside the duty to bargain.
 
                             Union Proposal 4
 
          Article V, Section 1.
 
          Overtime work for bargaining unit employees shall be paid for
       at not less than time and one-half for the first two (2) hours
       overtime.  All overtime in excess of two (2) hours shall be at
       double the straight time rate.  Saturday overtime for the first
       eight (8) hours will be paid for at time and one-half and all work
       in excess will be paid at double the straight time rate.  All
       Sunday work will be double time.  Holiday work will be time and
       one-half plus Holiday Pay.  (Only the underlined portions are
       alleged to be nonnegotiable.)
 
                             Union Proposal 5
 
          Article V, Section 4.
 
          Employees required to work more than two (2) hours overtime
       after his normal quitting time will be provided with one of the
       following:
 
          (1) A hot meal to be eaten on employer's time.
 
          (2) A meal ticket to be used at employee's convenience.
 
          (3) One (1) hour straight time pay in lieu of either (1) or
       (2).
 
    Under section 7103(a)(14)(C) of the Statute, matters specifically
 provided for by Federal statute are expressly excluded from the
 definition of conditions of employment and, hence, are not within the
 duty to bargain.  Union Proposal 4 concerns rates of premium pay to be
 paid under certain conditions.  However, as the Authority stated in
 International Brotherhood of Electrical Workers, Local 2080, AFL-CIO-CLC
 and Department of the Army, U.S. Corps of Engineers, Nashville,
 Tennessee, 10 FLRA 222 (1982), the conditions under which premium pay
 may be paid for prevailing rate employees, such as those involved in the
 instant case, are specifically provided for by Federal statute, 5 U.S.C.
 5544.  /3/ Accordingly, Union Proposals 4 and 5 concern matters excluded
 from the definition of "conditions of employment" and, therefore, are
 not within the duty to bargain.  American Federation of Government
 Employees, AFL-CIO, Council of Federal Grain Inspection Locals and
 United States Department of Agriculture, Federal Grain Inspection
 Service, Washington, D.C., 3 FLRA 520 (1980), enforced sub nom. American
 Federation of Government Employees, AFL-CIO, Council of Federal Grain
 Inspection Locals v. Federal Labor Relations Authority, 653 F.2d 669
 (D.C. Cir. 1981).
 
                             Union Proposal 6
 
          Article V, Section 5.
 
          An employee shall receive at least a minimum of four (4) hours
       pay at the appropriate overtime rate if he is called back to work
       on an overtime basis within his basic work week, or on one of his
       scheduled non-workdays, even if he is not utilized for the full
       four (4) hours.  Overtime continuous with the starting or ending
       of a shift is not covered by this section.  Overtime to commence
       when call back is acknowledged, and freedom of movement is
       restricted by the mandate to return to his duty station.
       Employees will be compensated for standing by when on call back
       status and will be reimbursed at the rate of twenty-five cents
       (25[) for each mile round trip from their home at Yuma Proving
       Ground if called out.  (Only the underlined portions are in
       dispute.)
 
    The first sentence of this proposal would establish four hours as the
 minimum amount of callback overtime to be paid, even if the employee
 does not work the full four hours.  Thus, that portion of the proposal
 is substantially identical to Union Proposal 3 in IBEW, Local 2085 and
 Department of the Army, U.S. Corps of Engineers, 10 FLRA 222 (1982).  In
 that case, the Authority held the proposal inconsistent with the
 provisions of 5 CFR 532.503(c) governing callback overtime for
 prevailing rate employees covered under the instant proposal.  /4/ The
 Authority further found that 5 CFR 532.503(c) is a Government-wide rule
 or regulation within the meaning of section 7117(a)(1) of the Statute.
 Therefore, for the reasons stated in that case, the first sentence of
 Union Proposal 6 is inconsistent with regulation and outside the duty to
 bargain.
 
    The second disputed sentence of Union Proposal 6 seeks to have the
 callback overtime pay computation commence when the employee is
 requested to return to the place of employment.  The last sentence of
 Union Proposal 6 would compensate an employee for standby when on
 callback status and reimburse an employee for the mileage for travel
 between residence and agency incident to callback overtime.  However,
 without statutory authority, overtime pay can only be made for actual
 performance of work.  /5/ Specifically, employees must place themselves
 at their regular places of work and return to their own homes at their
 own expense, absent statutory or regulatory authority to the contrary.
 /6/ Since the Union has not presented such statutory authority the
 Authority finds that these portions of the proposal are not within the
 duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Union Proposals 1-6 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., May 8, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency's request to dismiss the Union's petition for review
 as untimely filed is denied.  The petition was not untimely filed under
 the Authority's Rules and Regulations based on the date of the Agency's
 allegation made in response to the Union's written request.  American
 Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home
 Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
 
 
    /2/ Section 7106(a)(2)(B) provides 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(.)
 
 
    /3/ 5 U.S.C. 5544 provides, in pertinent part:
 
          Sec. 5544.  Wage-board overtime and Sunday rates;  computation.
 
          (a) An employee whose pay is fixed and adjusted from time to
       time in accordance with prevailing rates under section 5343 or
       5349 of this title, or by a wage board or similar administrative
       authority serving the same purpose, is entitled to overtime pay
       for overtime work in excess of 8 hours a day or 40 hours a week.
       However, an employee subject to this subsection who regularly is
       required to remain at or within the confines of his post of duty
       in excess of 8 hours a day in a standby or on-call status is
       entitled to overtime pay only for hours of duty, exclusive of
       eating and sleeping time, in excess of 40 a week.  The overtime
       hourly rate of pay is computed as follows:
 
          (1) If the basic rate of pay of the employee is fixed on a
       basis other than an annual or monthly basis, multiply the basic
       hourly rate of pay by not less than one and one-half.
 
          (2) If the basic rate of pay of the employee is fixed on an
       annual basis, divide the basic annual rate of pay by 2,080 and
       multiply the quotient by one and one-half.
 
          (3) If the basic rate of pay of the employee is fixed on a
       monthly basis, multiply the basic monthly rate of pay by 12 to
       derive a basic annual rate of pay, divide the basic annual rate of
       pay by 2,080, and multiply the quotient by one and one-half.
 
          An employee subject to this subsection whose regular work
       schedule includes an 8-hour period of service a part of which is
       on Sunday is entitled to additional pay at the rate of 25 percent
       of his hourly rate of basic pay for each hour of work performed
       during that 8-hour period of service.
 
 
    /4/ 5 CFR 532.503(c) provides:
 
          Sec. 532.503 Overtime pay.
 
                                .  .  .  .
 
          (c) Callback overtime work.  Irregular or occasional overtime
       work performed by an employee on a day when work was not regularly
       scheduled for the employee or for which the employee has been
       required to return to the place of employment shall be considered
       to be at least two hours in duration for the purpose of overtime
       pay,
 
 regardless of whether the employee performs work for two hours.
 
 
    /5/ Comptroller General decision B-175452 (May 1, 1972).