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
                                            Case No. 0-NG-664
                         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
                      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
                               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
    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
    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.