23:0146(17)NG - AFGE, National Border Patrol Council and Justice, INS -- 1986 FLRAdec NG

[ v23 p146 ]
The decision of the Authority follows:

 23 FLRA No. 17
                                             Case No. 0-NG-682
                           I.  State of the Case
    This case comes 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 two Union proposals.
                              II.  Background
    These proposals were offered by the Union during negotiations held as
 the result of a settlement agreement between the parties resolving an
 unfair labor practice (ULP) charge filed against the Agency.  The
 settlement agreement obligated the Agency to bargain over the impact and
 implementation of detailing bargaining unit employees to work at sites
 used for detention of illegal Cuban and Haitian aliens.  The proposals
 specifically address the fact that unit employees lose their eligibility
 under Agency regulations for administratively uncontrollable overtime
 (AUO) while on detail to the detention centers.
    The purpose and method of computing AUO is fully explained in
 National Border Patrol Council, American Federation of Government
 Employees, AFL-CIO and United States Immigration and Naturalization
 Service, 23 FLRA No. 11 (1986).  In accordance with applicable
 regulations, AUO may be paid only if the amount involved would be less
 than employees would be entitled to under regular overtime.  These
 proposals seek to mitigate the effect upon employee entitlements to AUO
 payments which results from the details.  In essence, the proposal would
 minimize the difference between AUO and the amount the employee would
 receive if paid regular overtime.
                             Union Proposal 1
       The initial ten (10) working days of a detail to the Cuban/Haitian
       Refugee Program will be considered excludable for AUO purposes and
       immediately upon return to his official duty station, the employee
       will be certified for the same percentage of AUO for which he was
       certified prior to detail to the Cuban/Haitian Refugee Program.
                       A.  Positions of the Parties
    As a procedural matter, the Agency asserts that the Union's
 negotiability appeal should be dismissed for failure to comply with
 section 2424.5 of the Authority's Rules and Regulations.  That is, the
 Agency asserts that the Union filed a ULP charge against the Agency
 concerning the same matter as Union Proposal 1, yet did not select, as
 required by section 2424.5 of the Rules, which procedure (the ULP charge
 or the negotiability appeal) the Authority should process first.
    The Agency further argues that it has no duty to bargain on Union
 Proposal 1 in the circumstances of this case because, in essence, the
 proposal falls outside the scope of the parties' settlement agreement.
    Substantively, the Agency argues that Union Proposal 1 is
 nonnegotiable because:
          1.  The proposal violates law and/or Office of Personnel
       Management (OPM) regulations.  In particular, the proposal
       conflicts with 5 C.F.R. Section 550.151 to .164 which was issued
       pursuant to 5 U.S.C. Section 5545(c);
          2.  The proposal constitutes an attempt to negotiate rates of
       pay in violation of law;  and
          3.  The proposal violates an Agency regulation, DOJ Order
       1551.4A, for which there is an asserted compelling need.
    The Union contends that a negotiability determination is warranted
 because the issues present in the ULP proceeding cited by the Agency are
 distinguishable from the issue raised in its proposal.  Substantively,
 the Union asserts that the matter of excluding days from AUO computation
 is within the discretion of the Agency and, therefore, is within its
 duty to bargain.
                               B.  Analysis
                           1.  Procedural Issue
    The ULP charge, which the Agency claims concerns the same issue as
 Union Proposal 1, was closed by the Regional Director without any
 substantive determination having been made on the underlying issue
 shortly after the Agency filed its Statement of Position in the
 negotiability appeal.  Thus, even assuming that the Union failed to make
 the election required by section 2424.5 of the Rules as to which
 procedure (the ULP charge or the negotiability appeal) should be
 processed first, such procedural issue has been rendered moot.
                            2.  Duty to Bargain
    When a union files a negotiability appeal under section 7105(a)(2)(D)
 and (E) of the Statute, section 7,17(c) entitles it to a decision on the
 negotiability issues in the appeal.  To the extent that there are
 factual issues in dispute between the parties in the circumstances of a
 case, such issues should be resolved in other appropriate proceedings.
 American Federation of Government Employees, AFL-CIO, Local 2736 and
 Department of the Air Force, Headquarters, 279th Combat Support Group
 (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984).  Hence,
 the Agency arguments that under the circumstances it has no duty to
 bargain on the disputed proposal are not relevant in the context of a
 negotiability appeal.
                          3.  Substantive Issues
           a.  Conflict with Law and Government-wide Regulation
    While the Agency concedes that the development of a formula for
 establishing AUO entitlements is left to agencies' discretion, it
 contends that the law and regulations implicitly require all similarly
 situated employees within an agency to be treated in like manner.  In
 support, the Agency relies on two decisions of the Court of Claims,
 namely, Byrnes, et al. v. United States, 330 F.2d (Ct. Cl. 1964) and
 Fix, et al. v. United States, 368 F.2d 609 (Ct. Cl. 1966).
    The Agency's reliance on the two Court of Claims decisions is
 misplaced.  Those cases dealt with agency attempts to exclude certain
 employees from eligibility for overtime pay in violation of statutory
 eligibility criteria.  The cases did not specifically examine the
 agencies' methods of computing AUO overtime pay.  In fact, the court in
 the Fix case noted that an agency does have discretion in the
 calculation of overtime pay under an AUO statute.  368 F.2d at 614.
 Further, the court in the Fix case stated that a "necessary consequence"
 of the AUO scheme is that "some will get the same pay for much more
 work." 368 F.2d at 615.
    The Agency contends that its own regulations are applicable
 throughout the entire Department of Justice and ensure the required
 uniform treatment of all Justice employees.  The Agency argues that
 Union Proposal 1 would set up a different computational scheme for unit
 employees detailed to the detention centers, which would result in
 higher subsequent AUO payments to covered employees than those received
 by non-bargaining unit employees assigned to other details of similar
 length for which AUO pay is also not authorized.
    The Authority finds that neither the governing statute nor the
 related OPM regulations, either literally or as judicially interpreted,
 requires absolute equity between Executive agencies or even between
 similarly situated employees within an agency.  Rather, the law and
 regulations leave agencies with discretion to decide how to arrive at
 individual AUO entitlements.  To the extent that an agency has
 discretion respecting a matter sought to be bargained affecting
 conditions of employment within a bargaining unit and where the grant of
 discretion is not sole and exclusive, the matter is within the duty to
 bargain.  National Treasury Employees Union, Chapter 6 and Internal
 Revenue Service, New Orleans District, 3 FLRA 758 (1980).  In this case,
 the Agency has proffered no persuasive arguments that either the
 statutory or regulatory grants of discretion are limited so as to bar
 bargaining over the methods of computing AUO entitlements.
                      b.  Negotiation over Pay Rates
    The Agency's view that Union Proposal 1 constitutes an unlawful
 attempt to bargain over rates of pay is based on the fact that exclusion
 of the first ten days of a detail to the detention centers, as required
 by the proposal, would result in the concerned employees receiving a
 higher rate of AUO upon return to their regular assignments than
 otherwise would be granted under the Agency regulation.  This proposal,
 however, merely concerns the computation of AUO within the specific
 constraints set by law and implementing Government-wide regulations.
 That is, 5 U.S.C. Section 5545(c)(2) establishes that an employee
 eligible for AUO payments may receive "not less than 20 percent nor more
 than 25 percent, of such part of the rate of basic pay for the position
 as does not exceed the minimum rate of basic pay for GS-10, by taking
 into consideration the frequency and duration of irregular unscheduled
 overtime duty required in the position." The Agency has not alleged, nor
 is it otherwise apparent, that this proposal seeks to circumvent these
 statutory limitations.
    The OPM regulations issued pursuant to 5 U.S.C. Section 5545(c)
 state, at 5 CFR Section 550.161(d) (1986), that determinations as to AUO
 payments ". . . shall be based on consideration of available records of
 the hours of irregular or occasional overtime work required in the past,
 and any other information bearing on the number of hours of duty which
 may reasonably be expected to be required in the future." The Agency
 does not suggest that the proposal is inconsistent with the quoted
 regulatory guidelines nor does it assert that the proposal is an
 inherently inaccurate indicator of future uncontrollabel overtime work.
 In fact, the Agency states, at 20 of its Statement of Position, that it
 does not "claim that there is a specific . . . need to include or
 exclude the first 10 days of an assignment to 'other duties' within the
 meaning of 5 CFR Section 550.162(c)(1)."
              c.  Compelling Need for the Agency's Regulation
    The Agency argues that its regulations governing AUO computations
 meet the criterion for compelling need set forth at section 2424.11(b)
 and (c) of the Authority's Rules and Regulations.  Both of these
 compelling need arguments were raised in United States Immigration and
 Naturalization Service, 23 FLRA No. 11 and were rejected by the
 Authority.  For the reasons fully stated in that case, they are likewise
 rejected here.
               d.  Recertification After Return from Detail
    In the Agency's assertion of nonnegotiability it contended that the
 portion of the proposal requiring recertification of employees at the
 same percentage of AUO for which they were certified prior to their
 detail is moot.  The Agency has not argued that this portion of the
 proposal is nonnegotiable, nor is it otherwise apparent that it is
 inconsistent with any law, rule or regulation.  In fact, this portion of
 the proposal appears to be consistent with the Agency's regulation, as
 modified by the first part of the proposal, concerning the calculation
 and payment of AUO for employees returning from a detail.  Thus, the
 Authority finds this portion of the proposal to be within the duty to
                              C.  Conclusion
    The proposal is properly before the Authority and does not conflict
 with 5 U.S.C. Section 5545(c) of 5 C.F.R. Section 550.151 to .164.
 Further, the Agency has not demonstrated that negotiation of the
 proposal is barred by an Agency regulation, DOJ Order 1551.4A, for which
 a compelling need exists.  Consequently, Union Proposal 1 is within the
 duty to bargain.
                           IV.  Union Proposal 2
       The Service agrees where possible to attempt to avoid assigning
       employees who are within three years of retirement to details
       which have the effect of reducing the employees' compensation for
       their "high three" years (for retirement purposes).
                       A.  Positions of the Parties
    The Agency contends that the proposal is inconsistent with
 management's rights to assign employees and work, under section
 7106(a)(2)(A) and (B) of the Statute.
    The Union characterizes the proposal as being "hortatory rather than
 mandatory" and, thus, within the duty to bargain.
                               B.  Analysis
    In effect, Union Proposal 2 prevents the Agency from assigning
 certain employees to details which would render them ineligible for AUO
 payments.  A provision similar in effect was before the Authority in
 National Treasury Employees Union and Department of the Treasury,
 Internal Revenue Service, 14 FLRA 243 (1984).  Provision 2 in that case
 sought to prevent the agency from rotating details among employees to
 avoid compensating them at a higher level.  Finding that the provision
 imposed substantive restrictions on management's right to assign
 employees by limiting its discretion to determine which particular
 employees would be assigned, the Authority held the provision to be
 inconsistent with section 7106(a)(2)(A) of the Statute.  In like manner,
 Union Proposal 2 would prevent the Agency from assigning the specified
 employees to certain types of details.
    The detailing of employees in this case involves a change in the work
 which is assigned to those employees.  In this case management would be
 prevented from assigning to certain employees work for which AUO pay is
 not authorized.  In National Federation of Federal Employees, Local 1622
 and Department of the Army, Headquarters, Vint Hill Farms Station,
 Warrenton, Virginia, 16 FLRA 578 (1984), Union Provision 2 required
 management, "insofar as possible," to refrain from assigning to
 employees work which was inappropriate to their positions or
 qualifications.  The Authority determined that the provision was
 inconsistent with management's right, under section 7106(a)(2)(B) of the
 Statute, to assign work because it specifically prevented the agency
 from requiring employees to perform certain duties.
    Further, this analysis is not altered by the inclusion of the
 qualifying term "to attempt" in the proposal.  An argument that
 qualifying words made a proposal nonmandatory, similar to that urged by
 the Union here, was addressed in National Federation of Federal
 Employees, Local 943 and Department of the Air Force, Headquarters
 Keesler Technical Training Center, Keesler Air Force Base, Mississippi,
 19 FLRA No. 113 (1985) (Union Proposal 2).  In that case, the union
 suggested that the proposal only required management to "attempt" to