21:0667(85)NG 21 FLRA NO -- 1986 FLRAdec NG

[ v21 p667 ]
The decision of the Authority follows:

21 FLRA NO. 85






Case No. 0-NG-711



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 two Union proposals which were made in response to a management determination to modify tours of duty.

II. Procedural Issues

The Agency contends that one of the proposals (Union Proposal 2) is not properly before the Authority because its text was not included in the petition for review. The Agency's argument is spurious, since the language of Proposal 2 was included and discussed in the Agency's Statement of Position. The record provides an adequate basis for an Authority determination on Proposal 2. The agency also contends that the Union's petition for review should be dismissed for failure to furnish a statement of meaning attributed to its proposals as required by section 2424.4(a)(2) of the Authority's Rules and Regulations. In accordance with established practice, the Union was afforded an opportunity to, and did, timely correct its failure to furnish a statement of the meaning attributed to its [ v21  p667 ] proposals. The procedural defect has therefore been corrected and the Agency's motion to dismiss is denied. See American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 909 (1984). The Agency further asserts that the petition for review is untimely with regard to Union Proposal 2. The Authority notes that, in response to the Union's request for an Agency head determination with respect to a revised Union Proposal 1, the Agency reiterated its position with respect to Union Proposal 2. The Union's petition was timely when calculated from the date of that Agency response. Finally, the Agency contends that the dispute is more appropriately resolved by resort to unfair labor practice procedures because of unresolved factual questions. Such an argument does not provide a basis for dismissing a negotiability appeal. American Federation of Government Employees, AFL - CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984).

III. Proposal 1

Volunteers will be solicited to change their shift to 6:45 a.m. The numbers of employees needed to accommodate the overlap of shifts will be selected either by lowest SCD (service computation date) in unit if not enough volunteers are obtained or highest SCD in the unit if too many volunteers come forward.

A. Positions of the Parties

The Agency argues that this proposal conflicts with management's right, under section 7106(a)(2)(B) of the Statute, to determine the personnel by which its operations are carried out. Further, the Agency asserts that this proposal concerns the numbers, types and grades of employees and positions assigned to a tour of duty, and is negotiable only at the election of the Agency pursuant to section 7106(b)(1). The Union did not file a Reply Brief in this case.

B. Analysis

The proposals in this case were offered in response to the Agency's announced plan to change the bargaining unit employees' tour of duty from a 7:45 a.m. to 4:15 p.m. tour to a 6:45 a.m. to a 3:15 p.m. tour. The Agency also planned to add a second shift, running from 3:45 p.m. to 12:15 a.m. [ v21  p668 ] This proposal would, in effect, require the Agency to continue the 7:45 a.m. starting time and solicit volunteers for the new 6:45 a.m. starting time. Selection for the earlier starting time would be based on earliest or latest service computation date depending on whether too many or too few employees volunteered for the shift starting at 6:45 a.m.

The Agency has failed to demonstrate how this proposal would interfere with management's right to determine the personnel by which agency operations are carried out. Since the Union did not propose a change in the 3:45 p.m. starting time of the afternoon shift planned by the Agency, retention of the shift beginning at 7:45 a.m., as required by the proposal, would result in a shift overlap of 30 minutes. That is, the 7:45 a.m. shift proposed by the Union would end at 4:15 p.m. and the afternoon shift established by the Agency would commence at 3:45 p.m. This circumstance contrasts with the Agency's proposed shift scheme which would result in a 30 minute gap between the end of the morning shift and start of the afternoon shift. As a result, this proposal has the effect of requiring management to have on duty during the period from 3:15 p.m. to 4:15 p.m. more employees than, in its judgment, are deemed necessary. 1 In our view, Union Proposal 1 has the same effect as the proposed shift structure found nonnegotiable i