23:0106(11)NG - National Border Patrol Council, AFGE and INS -- 1986 FLRAdec NG
[ v23 p106 ]
The decision of the Authority follows:
23 FLRA No. 11 NATIONAL BORDER PATROL COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union and UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE Agency Case No. 0-NG-664 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of the following Union proposal: All negotiations time, including travel to and from meetings, will be excludable for AUO purposes. II. Background This proposal arose in the context of ground rules for negotiations which were being conducted pursuant to an agreement between the parties in settlement of an unfair labor practice charge. AUO refers to "administratively uncontrollable overtime." Under the AUO concept, heads of agencies may, pursuant to regulations prescribed by the Office of Personnel Management (OPM) at 5 C.F.R. Section 550.151-550-164 and consistent with law, /1/ authorize premium pay on an annual basis for an employee in a position for which the hours of duty cannot be controlled administratively and which requires substantial amounts of irregular, unscheduled overtime. In accordance with applicable regulations, AUO may be paid only if the amount involved would be less than the employee would be entitled to under regular overtime. Premium pay for AUO in the Agency is governed by a Department of Justice regulation, DOJ 1551.4A, which sets forth policies and procedures for the implementation of such payments within the Department. As relevant here, that regulation has established a system for the computation and payment of premium pay which consists of an ongoing, two-part process. Under the Agency's procedure, determinations of an employee's continuing eligibility for such pay and the rate appropriate are made during a 12 pay period interval referred to as the "computation period." The "computation period" ends 3 pay periods before the "eligibility period" for which the particular determination was made. The "eligibility period" is a 4 pay period interval during which an employee is compensated for AUO at the particular rate determined to be appropriate based on experience during the "computation period." The Proposal would exclude the days spent in the negotiations flowing from the settlement agreement from computations used to determine the "average" number of hours of AUO worked by employees representing the Union during the "computation period(s)" in which the negotiations occur. The proposal does not concern any payments or benefits for, or in connection with, such negotiations. Rather, it is solely concerned with minimizing or eliminating the future adverse economic impact on certain employees of spending regulatory restriction discussed above, the effect of the proposal would be to minimize the difference between the AUO and the amount an employee would receive if paid regular overtime. III. Positions of the Parties As a procedural matter the Agency contends, in essence that the scope of the negotiations involved is strictly limited to the impact and implementation of assigning Border Patrol personnel to assist in the Cuban Refugee Program and that the proposal is beyond that limited scope. The Agency argues that this is particularly true in view of the existence of a question concerning representation (QCR) stemming from pending petitions for exclusive recognition (RO) and unit consolidation (UC). Substantively, the Agency contends that the proposal is nonnegotiable because: 1. The proposal conflicts with a Government-wide rule or regulation, specifically the regulations issued by OPM which are found at 5 C.F.R. Section 550.151-550.164; 2. The proposal is contrary to an Agency regulation, DOJ Order 1551.4A, for which there is a compelling need; 3. The proposal violates section 7131(a) of the Statute. The Union disputes both the Agency's procedural contention that it has no obligation to bargain over the proposal and its substantive contentions. IV. Analysis A. Procedural Issue The Authority has found that the negotiation of ground rules is an integral part of the collective bargaining process. Department of Health and Human Services, Region VII, Kansas City, Missouri, 14 FLRA 258 (1984); American Federation of Government Employees, AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA 461 (1984) (Proposal 1). In the Authority's view, contrary to the Agency, the question of how an employee's participation in a particular set of negotiations will affect that employee's future eligibility for premium pay is appropriately within the scope of ground rules for those negotiations pursuant to the terms of the settlement agreement. /2/ The Authority also rejects the Agency's contention that a UC petition raises a QCR. By definition a UC petition does not bring into question whether the existing exclusive representative will continue as such. It is limited to a determination of whether existing units will be consolidated, as specified in section 7112(d) of the Statute. Therefore, in view of the fact that the proposal relates to a subject which is appropriately encompassed within the scope of ground rules relating to the parties' negotiations, there is no merit in the Agency's position that the proposal is outside the scope of bargaining. B. Substantive Issues 1. Proposal's Consistency with 5 C.F.R. Section 550.151-550.164 The Agency contends that 5 C.F.R. Section 550.151-550.164 reserves to it the responsibility for authorizing and determining the appropriate rate of premium pay for AUO. The Authority finds that pursuant to the OPM regulations involved, the Agency is given the discretion to determine the specific procedures by which computations as to appropriate rates of premium pay for AUO will be made. It is well established that to the extent that an agency has discretion with respect to a matter affecting conditions of employment of bargaining unit employees and where the discretion is not intended to be sole and exclusive, the matter is within the duty to bargain. See, for example, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). There is nothing in the OPM regulations cited which would preclude the Agency from exercising its discretion regarding AUO computation by negotiations. Additionally, the Agency contends that the regulations set forth specific exclusions for AUO computation purposes and that because the exclusions proposed by Union are not among those specified by the OPM, proposal therefore conflicts with the regulation. The specific exclusions set forth in the OPM regulations are contained in 5 C.F.R. Section 550.162. However, those provisions directly concern the actual payment of premium pay when employees are on temporary assignments and leave with pay. They do not concern the determination of future eligibility for, and appropriate rates of, such pay. As the regulatory provisions relied upon by the Agency concern not computation but actual payment of premium pay under AUO, the Agency's assertion that a conflict exists cannot be sustained. Finally, the Agency contends that the proposal violates 5 C.F.R. Section 550.152. That provision specifies that an agency may pay premium pay for AUO only if such pay would, over a period of time, be less than the premium pay to which the particular employee would otherwise be eligible if paid overtime pursuant to 5 U.S.C. section 5542. According to the Agency, premium pay for AUO would exceed that to which the employees covered by the proposal would be entitled if overtime payments had been made pursuant to 5 U.S.C. Section 5542, and, thus, the proposal would result in payments which exceed those permissable under the regulations. The Agency has not shown nor is it otherwise apparent that the proposal would necessarily result in excess payments in violation of 5 C.F.R. Section 550.152. Moreover, the Union has specifically stated that in any instances where the operation of the exclusions proprosed would result in excess payment the Agency could cease applying the exclusion. Noting particularly the Union's stated intent, which is not incompatible with the plain terms of the proposal, the Authority finds that the proposal is not inconsistent with the provisions of 5 C.F.R. Section 550.152. /3/ 2. Compelling Need for DOJ Order 1551.4A Under Section 7117(a)(2) The Agency contends that there is a compelling need under section 2424.11(a)(b) and (c) of the Authority's Rules and Regulations for its agency-wide regulation DOJ Order 1551.4A. However, the Agency has not demonstrated that DOJ Order 1551.4A meets the criteria for concluding that a compelling need exists for agency rules and regulations. Under section 2424.11(a), the Agency must demonstrate that its regulation is essential to the accomplishment of its mission in a manner consistent with the requirements of an effective and efficient government. While the Agency argues that the Union's proposal would make payroll administration inefficient and ineffective, the Authority notes that the record does not support this contention. DOJ Order 1551.4A, paragraph 11(c), provides for exclusion of days in certain circumstances, such as paid and unpaid leave, from the computation of weekly averages of AUO. The Agency has not demonstrated how the addition of another circumstance to an already existing list would render payroll administration inefficient or ineffective. Thus, the Agency has not established that the regulation cited is essential to the execution of its function. American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441 (1981) (Union Proposal 4). The Agency further argues that DOJ Order 1551.4A is necessary to the maintenance of merit system principles, which is the compelling need criterion established by the Authority under section 2424.11(b) of the Authority's Rules and Regulations. /4/ See, generally, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981). Specifically, it contends that the regulation is necessary to assure equal payment of overtime within the various bureaus of the Department of Justice which are subject to AUO payments. However, the Agency has failed to demonstrate that its regulation is essential, as opposed to helpful or desirable, in the achievement of the objective of providing equal pay for work of equal value. The Agency has not established that the procedures set forth in that regulation for the administration and implementation of premium pay for AUO are the only means of achieving that particular objective and, hence, has not established that the regulation is necessary to insure the maintenance of basic merit principles. Moreover, the Agency's argument that DOJ Order 1551.4A is a regulation which implements the principle of equal pay for work of equal value is not supported in the record. That regulation implements a system which is based on projections and prescribes the same payment for a range of average hours of AUO and, thus, is inherently inequitable. The Agency has not demonstrated that such a system constitutes an application of the concept of equal pay for work of equal value. The Agency has not shown that the regulation implements a mandate of law or other outside authority which is essentailly nondiscretionary, under section 2424.11(c) of the Authority's Rules and Regulations. According to the Agency, DOJ Order 1551.4A implements 5 U.S.C. Section 5545(c)(2) and 5 C.F.R. Section 550.161. It characterizes this mandate as making the Agency head responsible for determining and reviewing AUO payments on a regular basis. As noted earlier, to the extent that an agency has discretion with respect to a matter affecting conditions of employment of its employees and such discretion is not intended to be sole and exclusive, the discretion is subject to negotiations with the representative. Contrary to the Agency's assertion, there is nothing in either the law or the implementing OPM regulations governing premium pay for AUO which mandates that the discretion allowed agencies with respect to administration of AUO must be sole and exclusive. Therefore, the Agency's regulation which embodies the exercise of that discretion does not constitute, in and of itself, the nondiscretionary implementation of a mandate to the Agency under law or other outside authority. 3. No Inconsistency with Section 7131(a) The Agency's contention that the proposal is inconsistent with section 7131(a) of the Statute is similarly without merit. Section 7131(a) addresses entitlement to official time by employees who are representing an exclusive agreement. The Union's proposal addresses how time spent in such negotiations will be treated for purposes of determining eligibility for, and the appropriate rate of, premium pay in the future. The proposal does not relate to actual compensation for time spent in contract negotiations. It concerns a subject which is separate and distinct from that covered by section 7131(a) of the Statute and does not conflict with that provision. V. Conclusion There is no merit in the Agency's procedural contention that the proposal is beyond the scope of negotiations. Furthermore, the proposal does not conflict with 5 C.F.R. Section 550.151-550.164 or with section 7131(a) of the Statute, nor is it contrary to an Agency regulation, DOJ Order 1551.4A, for which there is a compelling need. Therefore, the proposal is within the duty to bargain. VI. 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 the Union's proposal. /5/ Issued, Washington, D.C., August 13, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 5 U.S.C. Section 5545. (2) See United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982) reversed in part sub nom. United States Department of Justice, United States Immigration and Naturalization Service v. Federal Labor Relations Authority, 727 F.2d 481 (5th Cir. 1984) for a discussion as to changes in conditions of employment during the pendancy of a QCR. (3) In view of these findings it is unnecessary to rule on whether 5 C.F.R. Section 550.151-550.164 constitute Government-wide regulations within the meaning of the Statute. (4) 5 U.S.C. Section 2301(b)(3) provides: Section 2301. Merit system principles (b) Federal personnel management should be implemented consistent with the following merit system principles: . . . . . . . (3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance. (5) In finding this proposal to be within the duty to bargain the Authority makes no judgment as to its merits.