23:0224(29)NG - AFGE, Council of Prisons Locals, Local 171 and Justice, Federal Prison System, Federal Correctional Institution, El Reno, OK -- 1986 FLRAdec NG



[ v23 p224 ]
23:0224(29)NG
The decision of the Authority follows:


 23 FLRA No. 29
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF
 PRISONS LOCALS, LOCAL 171
 Union
 
 and
 
 DEPARTMENT OF JUSTICE, FEDERAL
 PRISON SYSTEM, FEDERAL CORRECTIONAL
 INSTITUTION, EL RENO, OKLAHOMA
 Agency
 
                                            Case No. 0-NG-1172
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority on a petition for review of
 negotiability issues filed by the Union under section 7105(a)(2)(E) of
 the Federal Service Labor-Management Relations Statute (the Statute).
 The petition seeks review of the disapproval of a number of provisions
 in the parties' local supplemental agreement during review of that
 agreement by the Agency head pursuant to section 7114(c) of the Statute.
 
                          II.  Procedural Issues
 
    The Agency argues that the Union's petition for review was untimely
 filed and that it is otherwise procedurally defective because the Union
 did not serve a copy of the petition on the Agency head and did not
 attach a copy of management's declaration of negotiability to the
 petition filed with the Authority.  The Agency moves that the petition
 be dismissed on those procedural grounds.  The Authority has determined,
 however, that the Union's petition was timely filed under the
 Authority's Rules and Regulations and that any other procedural
 deficiencies were corrected by the Union upon notification and within
 the time provided by the Authority for such corrective action.
 Accordingly, the Agency's motion to dismiss the appeal is denied.
 
    In addition, the Authority will not consider the Union's petition
 regarding Article 18, Section E of the parties' agreement since the
 Agency states that it did not disapprove that provision.  Likewise, the
 Authority will not consider the Union's petition regarding Article 27,
 Section A since the Union withdrew its petition for review as to that
 provision.
 
                             III.  Provision 1
 
                Article 18 -- Assignment and Hours of Work
 
          Section C:  Any institutional department finding it necessary
       to pay overtime will give first consideration for overtime work to
       employees within the department, then to other qualified employees
       of the institution.
 
                       A.  Positions of the Parties
 
    In its disapproval of the provision, the Agency declared that the
 language was negotiable only if management retained the authority to
 make final determinations as to the qualifications required to perform
 overtime work and if the provision did not preclude management from
 assigning work to employees in other departments on a non-overtime
 basis.  In its petition for review, the Union states that the provision
 allows management to unilaterally determine the qualifications needed to
 perform work and to assign work to any employee, regardless of
 department, consistent with the "first consideration" for overtime work
 requirement of the provision.  The Union further argues that the
 provision does not pertain to non-overtime work and, therefore, that it
 does not preclude management from acting in any way with respect to
 non-overtime work assignments.  In its statement of position concerning
 the Union's petition, the Agency acknowledges that, in view of the
 Union's interpretation of the disputed provision, its objection to the
 provision based on the Agency's concern for ensuring management's right
 to determine qualifications for performing work is now moot.  However,
 the Agency continues to maintain that it is not clear whether the
 provision is intended to preclude management from assigning work to
 employees in other departments during regular duty hours.  The Agency
 argues that, if the provision is so intended, then it is nonnegotiable
 because it would interfere with management's right to assign work under
 section 7106(a)(2)(B) of the Statute.
 
                       B.  Analysis and Conclusions
 
    The agreement provision disapproved by the Agency head expressly
 deals with overtime work.  Moreover, as clearly and unequivocally
 interpreted by the Union, which interpretation is consistent with the
 plain language of the provision, the provision in no manner prevents
 management from assigning work to employees in other departments during
 regular duty hours.  The Authority therefore concludes that the
 provision does not interfere with management's rights under section
 7106(a)(2)(B) of the Statute and that it is within the duty to bargain.
 
                             IV.  Provision 2
 
                Article 18 -- Assignment and Hours of Work
 
          Section H:  The principal day shift hours of work will be 7:30
       AM to 4:00 PM with a half hour uninterrupted lunch period.
 
                       A.  Positions of the Parties
 
    The Agency's position essentially is that the provision concerns a
 permissive subject of bargaining under section 7106(b)(1) of the Statute
 and that the parties' National Controlling Agreement prohibits local
 supplemental bargaining on such permissive subjects.  In support of its
 position, the Agency relies on the Authority's decision in Department of
 the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984), and
 argues that since the provision concerns the hours of the day shift, the
 shift when most of the institution's offices are open and business and
 activities are conducted, the provision would have the effect of
 determining the numbers, types and grades of employees assigned to a
 tour of duty, a matter covered by section 7106(b)(1), which is
 negotiable only at management's election.  The Agency also states that
 if the provision simply requires the Union to be informed of any
 proposed change in existing day shift hours and given an opportunity to
 bargain on the impact and implementation of such a change, the provision
 is negotiable.
 
    The Union argues that the provision simply describes the principal
 day-shift hours at the institution;  that it does not establish a shift
 or tour of duty within the meaning of section 7106(b)(1) of the Statute;
  that it does not limit management from conducting any business on any
 shift;  and that it does not preclude the employer from adjusting the
 shift or establishing a new one so long as the rights of the exclusive
 representative are respected.  The Union therefore maintains that there
 is no section 7106(b)(1) issue presented by the provision and that the
 Authority's decision in Lowry is not applicable in this case.  Moreover,
 the Union argues that even if the provision concerns a permissive
 subject of bargaining under section 7106(b)(1), since the local parties
 bargained and agreed upon the provision, management was thereafter
 precluded from asserting any section 7106(b)(1) arguments as a basis for
 disapproving the provision during review of the agreement under section
 7114(c) of the Statute.
 
                       B.  Analysis and Conclusions
 
    The Authority finds that the Agency has made no showing that the
 disputed provision establishes a new shift or changes the hours of an
 existing shift.  Thus, the Agency has failed to establish that the
 provision affects the numbers, types and grades of employees assigned to
 a tour of duty within the meaning of section 7106(b)(1) of the Statute.
 The provision, as interpreted by the Union, simply describes the hours
 of the existing principal day shift at the institution.  Moreover, the
 provision does not prevent management from changing the hours of that
 shift or establishing any new shift, consistent of course with the
 rights of the Union in such a situation.  The Authority therefore
 concludes that the provision is within the duty to bargain.
 Consequently, it is irrelevant whether or not the parties' Master
 Agreement prohibits local supplemental agreements on permissive subjects
 of bargaining.
 
                              V.  Provision 3
 
                Article 18 -- Assignment and Hours of Work
 
          Section I:  The employer agrees that when an employee works
       three (3) hours in excess of eight hours, he/she, shall be given
       the opportunity to purchase a meal or time off to obtain a meal.
 
                       A.  Positions of the Parties
 
    In its disapproval notice, the Agency stated that this provision
 would be appropriate if the local parties agreed that the time spent
 away from work obtaining and eating a meal is not compensable as
 overtime.  In its petition for review, the Union maintains that the
 provision does not provide authorization to approve or deny overtime.
 The Union further maintains that circumstances may or may not warrant
 overtime in a particular situation, but that overtime compensation
 determinations are subject to other provisions of the parties' agreement
 and governing laws and decisions of the Comptroller General.  In its
 statement of position regarding the Union's petition, the Agency states
 that since the Union appears to recognize that the provision cannot
 authorize overtime pay for meal times and that overtime is subject to
 law and Comptroller General decisions, the issue "appears to be moot."
 Agency Statement at 8.  However, the Agency did not rescind its
 disapproval of the provision.
 
                       B.  Analysis and Conclusions
 
    The Union has specifically interpreted the disputed provision as not
 authorizing overtime for meal times and acknowledged that overtime
 compensation is a matter subject to law, Comptroller General decisions
 and other provisions of the parties' agreement.  Given that
 interpretation, which the Agency does not refute and which is consistent
 with the plain language of the provision, the Authority concludes that
 the provision 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 rescind its disapproval of
 the provisions of the local parties' agreement numbered 1, 2 and 3
 above.  /*/
 
    Issued, Washington, D.C., August 15, 1986
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) The Agency acknowledged that its disapproval of Provisions 1 and
 3 might be moot.  As discussed in our decision, the Union's clear and
 unequivocal statements of intent concerning these provisions show that
 the Agency's claims are baseless.  Any disagreement over these
 provisions should have been resolved b