22:0496(52)NG - AFGE, Meat Grading Council of Locals and Agriculture, Meat Grading and Certification Branch -- 1986 FLRAdec NG



[ v22 p496 ]
22:0496(52)NG
The decision of the Authority follows:


 22 FLRA No. 52
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, MEAT GRADING
 COUNCIL OF LOCALS
 Union
 
 and
 
 DEPARTMENT OF AGRICULTURE, 
 MEAT GRADING AND CERTIFICATION 
 BRANCH
 Agency
 
                                            Case No. 0-NG-867
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    The petition for review in this case comes 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).
 /1/ It raises issues concerning the negotiability of four Union
 Proposals.  /2/
 
                           II.  Union Proposal 1
 
          Established schedules for tours of duty will remain in effect.
 
                       A.  Positions of the Parties
 
    The Agency's position is that the proposal seeking to maintain
 current tours of duty violates 5 CFR 610.120(b)(1) and (2), which
 requires the head of the Agency to "schedule an employee's regularly
 schedules administrative workweek so that it corresponds with the
 employee's actual work requirements" and to "reschedule the employee's
 regularly scheduled administrative workweek" when it is known in advance
 that the actual work requirements for the ensuing week differ from the
 specific days and/or hours of the current workweek.
 
    The Union asserts that the regulation quoted by the Agency does not
 establish a unilateral mandate for the Agency to establish the workweek.
  It further argues that any interpretation of the regulation giving the
 Agency the right to establish the workweek without negotiations is
 contrary to statute, i.e., 5 U.S.C. Section 6101, which is the statutory
 basis for the regulation.  Moreover, the Union argues that 5 U.S.C.
 Section 6101 provides the Agency discretion to establish workweeks, and
 a discretionary matter is within the duty to bargain under the Statute.
 
                        B.  Analysis and Conclusion
 
    The proposal locks in the established schedules for tours of duties
 and as a result precludes the Agency from making any changes in the
 tours of duty for whatever reason.  The disputed proposal is to the same
 effect as Provision 1 in American Federation of Government Employees,
 AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17
 FLRA 769 (1985), petition for review filed sub nom.  American Federation
 of Government Employees, AFL-CIO, Local 2484 v. FLRA, No. 85-1405 (D.C.
 Cir. July 3, 1985), which would have prevented a change in tours of duty
 unless advance notice of such change has been provided, and which the
 Authority found to be inconsistent with an applicable Government-wide
 regulation, 5 CFR 610.121.  Based on the reasoning in U.S. Army
 Garrison, Fort Detrick, the Authority concludes that this proposal is
 likewise outside the duty to bargain.
 
                          III.  Union Proposal 2
 
          The grader regularly assigned to service an applicant requiring
       overtime will have the primary responsibility of performing the
       necessary service during the week and on weekends.
 
                       A.  Positions of the Parties
 
    The Agency asserts that the proposal conflicts with its right to
 assign employees and work under section 7106(a)(2)(A) and (B), and with
 5 CFR 610.121.  The Union maintains that the proposal is negotiable
 because it is essentially the same as Proposal 1 in American Federation
 of Government Employees, AFL-CIO, National Joint Council of Food
 Inspection Locals and Department of Agriculture, Food Safety and Quality
 Service, Washington, D.C., 9 FLRA 663 (1980).
 
                        B.  Analysis and Conclusion
 
    The Authority agrees with the Union's position.  The proposal
 concerns only which employee among those in the bargaining unit to whom
 management has already assigned certain work will be selected to perform
 such work in an overtime status when management determines that overtime
 is required.  As such, the proposal is essentially the same as the
 portion of Proposal 1 found negotiable in Food Safety and Quality
 Service, 9 FLRA 663 (1980).  In that case, the Authority held a proposal
 that concerned which particular employee, among those in the bargaining
 unit to whom management in its discretion has already assigned certain
 work, will be selected to perform such work in an overtime status when
 management determines that overtime is required was negotiable.  It
 reasoned that the proposal was concerned only with when such employees
 would perform the previously assigned duties of their positions.
 Moreover, contrary to the Agency's argument, 5 CFR 610.121 is
 inapplicable to the proposal in this case because the proposal concerns
 the assignment of overtime and not the establishment of an employee's
 administrative workweek.  Therefore, for the reasons more fully set
 forth in Food Safety and Quality Service, 9 FLRA 663 (1980), the
 Authority concludes that Union Proposal 2 is within the duty to bargain
 under the Statute.
 
                           IV.  Union Proposal 3
 
          Employees may be relieved for four (4) Saturdays per calendar
       year for any reason by requesting such relief in writing to the
       Main Station Supervisor at least ten (10) working days prior to
       the requested Saturday off.
 
                             Union Proposal 4
 
          Temporary duty assignments will be on a rotational basis.  A
       list of the graders' names expected to be assigned to temporary
       duty assignments will be placed on the rotation schedule.  When
       temporary duty assignments are needed, the assignments may also be
       exchanged with qualified volunteers.  When there are no available
       volunteers to exchange TDY, the assigned grader will perform the
       assignment.  Each GS-9, GS-7, and GS-5, when qualified must take
       his turn in relief assignments.  A grader may not be relieved of
       his responsibility to take his turn at a relief assignment, except
       for compelling reasons of annual leave, medical reasons which
       preclude travel, or personal hardship and an exchange of
       assignment.  (Only the underlined portion of the proposal is in
       dispute.)
 
                       A.  Positions of the Parties
 
    As to Union Proposal 3, the Agency contends that it requires the
 Agency to relieve employees from Saturday work on four occasions upon
 the employee's request and therefore conflicts with the right to assign
 work and employees under the Statute and with 5 CFR Part 610.  In
 response, the Union asserts that the Agency is misreading Union Proposal
 3, which does not require that employee requests be granted.
 
    As to Union Proposal 4, the Agency maintains that its intent is to
 prevent the Agency from assigning any other meat grader to a location if
 a volunteer exists.  The Agency therefore concludes that the proposal
 conflicts with management's right to assign employees under the Statute.
  The Agency also asserts that the proposal could result in an individual
 continually volunteering for the same plant assignment thus frustrating
 the Agency's rotation policy and resulting in possible conflicts of
 interests and conflicts in relationships with plant management.
 Therefore, the Agency asserts that the proposal conflicts with its right
 to determine its internal security practices pursuant to section
 7106(a)(1) of the Statute.  The Union, in response, states that the
 Agency has failed to comprehend the intent of the proposal.  The Union
 asserts that the use of discretionary language, "assignments may be
 exchanged," does not interfere with and does not mandate the assignment
 of employees or work in violation of the Agency's rights under the
 Statute.  The Union maintains that the proposal only provides for a
 procedure for the use of a pool of volunteers if the Agency chooses to
 use it.
 
                       B.  Analysis and Conclusions
 
    The language of Proposals 3 and 4 and the Union's stated intent
 establish that the proposals are discretionary and do not mandate
 certain courses of action by the Agency.  Under this interpretation, the
 Agency could disapprove 1) all employee requests for Saturday time off
 and 2) all utilization of volunteers for temporary duty assignments.
 The proposals only provide a procedure under section 7106(b)(2) for the
 Agency to consider employee requests for Saturday time off and for
 volunteering for temporary duty assignments related to the Agency's
 exercise of its management rights under section 7106(a) of the Statute.
 Also, because of the discretionary nature of the proposals, the Agency's
 argument that Union Proposal 3 conflicts with 5 CFR Part 610 by
 establishing an employee's administrative workweek is not supported.
 Therefore, the Authority concludes that Union Proposals 3and 4 are
 within the duty to bargain under the Statute.
 
                                 V.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request, or as
 otherwise agreed to by the parties, bargain concerning Union Proposals
 2-4.  /3/ It is FURTHER ORDERED that the Union's petition for review as
 to Union Proposal 1 be, and it hereby is, dismissed.  /4/
 
    Issued, Washington, D.C., July 10, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Agency in its Response raises a question as to the timeliness
 of the Union's petition for review because it had already provided
 allegations of nonnegotiability to the Federal Service Impasses Panel
 prior to the Union's written request.  In this case, however, in
 accordance with established precedent, the Authority finds that the
 Union's petition for review was timely from the date the Agency
 responded to the Union's written request for an allegation of
 nonnegotiability.  International Brotherhood of Electrical Workers,
 AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving
 and Printing, Washington, D.C., 10 FLRA 198 (1982).
 
    (2) With respect to additional Union Proposals 5, 6, and 7, the Union
 in its opposition withdrew those proposals from its appeal.  They will
 not be considered further here.
 
    (3) In finding Union Proposals 2-4 to be within the duty to bargain,
 the Authority makes no judgment as to their merits.
 
    (4) The Union makes a general contention that the proposals are
 within the duty to bargain pursuant to section 7106(b)(2) and (3).
 Since Proposal 1 is violative of 5 CFR 61