[ v24 p126 ]
24:0126(17)NG
The decision of the Authority follows:
24 FLRA No. 17
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-8
Union
and
VETERANS ADMINISTRATION MEDICAL
CENTER, TOPEKA, KANSAS
Agency
Case No. 0-NG-1218
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of five Union proposals. /1/
II. Union Proposal 1
ARTICLE 10
Section 4. A steward or employee may request permission from
his/her supervisor to report on duty one hour early or late, and
be relieved from duty one hour early or late, whichever may be
required to permit the steward to assist an employee, who is
working a different shift, in the processing of a grievance during
both the steward's and employee's on-duty time. Determination to
grant the request will be based on staffing workload requirements
as well as whether the change would result in the tour of duty
extending over two days.
A. Positions of the Parties
The Agency contends that the proposal would interfere with its right
under secion 7106(a)(2)(B) to assign work by prohibiting it from
assigning duties to a Union officer or steward during the first or last
hour of a shift so that the employee could process grievances. The
Agency also argues that Proposal 1 would have the effect of granting
compensatory time to an employee in circumstances not authorized under 5
U.S.C. Section 5543. The Agency further contends that the proposal is
inconsistent with 5 C.F.R. Section 610.121, a Government-wide
regulation. It claims that the proposed adjustment would require the
Agency to schedule employees on the basis of union representational
activities rather than the Agency's mission as required by the
regulation.
The Union contends that its proposal would only require the Agency to
consider the request of a Union officer or steward for official time.
It claims that the proposal would enhance an employee's ability to have
the Union representative of his or her choice. The Union also argues
that the proposal would not require the Agency to adjust schedules but
instead would allow the Union representative and the employee to use the
official time to which they are otherwise entitled at a time which would
be convenient. Finally, the Union contends that Proposal 1 would not
require the grant of compensatory time since it would not affect the
number of hours worked by an employee during the week.
B. Analysis and Conclusions
As the Authority has previously indicated, parties may negotiate
procedures and practices which do not negate an agency's rights but
which would enable a union to implement its statutory rights and duties
with respect to the representation of employees. See American
Federation of Government Employees, AFL-CIO, Local 2272 and Department
of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
1014-15 (1982) (Union Proposal 7). In National Treasury Employees
Union, Chapter 66 and Internal Revenue Service, Kansas City Service
Center, 1 FLRA 926 (1979), the Authority found that a proposal that
would adjust the starting and quitting times of employees did not
violate the agency's rights under section 7106(b)(1) and was within the
duty to bargain. Union Proposal 1 is similarly concerned with adjusting
the starting and quitting times of Union officials when those officials
are processing grievances involving an employee on a shift other than
their own. Contrary to the Agency's contentions, the proposal does not
prohibit it from assigning duties to the Union officials covered by the
proposal. Rather, Proposal 1 merely concerns the time when those
officials will perform either duties which the Agency has already
assigned to them or representational functions on official time as
negotiated pursuant to section 7131(d) of the Statute. See 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, 665 (1982) (Union
Proposal 1). Moreover, by its terms, the Union's proposal does not
require the request to be granted and specifically provides for
consideration of the Agency's staffing workload requirements.
Consequently, we find that Union Proposal 1 constitutes a procedure
within the meaning of section 7106(b)(2) which does not violate
management's right to assign work.
We find no basis upon which to conclude that the Union's proposal
constitutes a grant of compensatory time. Additionally, the Agency has
not demonstrated that Union Proposal 1 would require it to schedule
employees in a manner other than that required by 5 C.F.R. Section
610.121. Compare National Association of Government Employees, Local
R7-23 and Department of the Air Force, Scott Air Force Base, Illinois,
23 FLRA No. 97 (1986), in which the Authority found that Union Proposal
1 requiring 14 days advance notice of a scheduling change was outside
the duty to bargain in that the proposal made no allowance for
exceptions to the 14-day requirement as provided under 5 C.F.R. Section
610.121 and 5 U.S.C. Section 6101. Accordingly, Union Proposal 1 is
within the duty to bargain.
III. Union Proposal 2
ARTICLE 11
Section 2. When an employee changes work shifts, he/she will
not be required to report for duty for eleven (11) hours.
Section 9. Employees will not be required to work more than
two tours of duty in one workweek except to allow for a minimum of
eleven (11) hours between the end of one tour and the beginning of
the next.
A. Positions of the Parties
The Agency contends that Union Proposal 2 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. The
Agency argues that the proposal would require it to provide employees
with eleven hours between each shift worked by an employee regardless of
actual work requirements.
The Union contends that the proposal does not conflict with the
regulation cited by the Agency. It claims that Proposal 2 does not
prevent the Agency from acting at all to schedule employees in
accordance with mission requirements.
B. Analysis and Conclusion
The Authority finds that Union Proposal 2 is outside the duty to
bargain for a reason other than that raised by the Agency. Union
Proposal 2 would prohibit the Agency from scheduling an employee to work
on a shift if that employee had worked during the previous eleven hours,
or to schedule an employee for two different tours of duty in the same
week except to provide the employee with an eleven hour interval between
shifts, regardless of the Agency's work requirements and whether that
employee's particular skills were needed on a particular shift. Such
requirements would place a condition upon the Agency's exercise of its
right to assign work and could prevent the Agency from determining what
duties were to be performed on what shift in violation of section
7106(a)(2)(B). See National Labor Relations Board Union, Local 19 and
National Labor Relations Board, Region 19, 2 FLRA 774 (1980). By
contrast, Union Proposal 1 would not affect the Agency's discretion to
determine what work was to be performed on what shift, and enables the
Agency to consider its staffing workload requirements when acting on
requests for adjustments in starting and quitting times. Accordingly,
we conclude that Union Proposal 2 is outside the duty to bargain. In
view of this determination, we need not determine whether the proposal
is also inconsistent with 5 C.F.R. Section 610.121.
IV. Union Proposal 3
ARTICLE 11
Section 6. Ordinarily, employees' days off will be
consecutive. Employees' days off will not be arbitrarily split.
An employee's written request for alternative scheduling including
split days off will be considered.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. It
argues that Union Proposal 3 would require it to schedule employees for
consecutive days off regardless of the Agency's actual work
requirements. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
The Authority finds that Union Proposal 3 is to the same effect as
the proposal which we found to be within the duty to bargain in American
Federation of State, County and Municipal Employees, Local 2477 and
Library of Congress, 14 FLRA 59 (1984). In that case we held that a
proposal to rotate days off for certain agency employees was not
contrary to any of the management rights raised by the agency.
Similarly, the Agency does not contend, and it is not otherwise
apparent, that Union Proposal 3 here is inconsistent with any management
rights.
Additionally, we reject the Agency's contention that the proposal
would prevent it from scheduling employees consistent with actual work
requirements. The proposal provides that employees will "ordinarily" be
given consecutive days off. The Union states that the Agency need not
provide employees with consecutive days off where patient care would be
adversely affected. Union Petition for Review at 2. We accept the
Union's interpretation and find that, while it would require the Agency
to attempt to provide consecutive days off in most cases, the proposal
would not require consecutive days off where the Agency determines that
patient care would be adversely affected. Accordingly, we conclude that
Union Proposal 3 is not inconsistent with 5 C.F.R. Section 610.121 and
is within the duty to bargain.
V. Union Proposal 4
ARTICLE 11
Section 7. Since the eating of meals by GS employees between
6:00 p.m. and 6:00 a.m. will reduce the amount of night
differential pay for the shift, these employees will not
ordinarily be required to eat their meals within this time period.
A. Positions of the Parties
The Agency contends that Union Proposal 4 violates its right under
section 7106(a)(2)(B) to assign work. The Union contends that the
proposal is merely concerned with when employees will take the 30-minute
meal period to which they are entitled.
B. Analysis and Conclusion
The Authority finds that Union Proposal 4, like Union Proposal 1
discussed above, does not prevent the Agency from assigning duties to
the employees covered by the proposal. Proposal 4 does not concern
whether employees are entitled to a meal period or how long that period
should be. Rather, the proposal is concerned with when employees will
take the 30-minute meal period to which they are entitled.
The Authority has held that the time at which means or breaks will be
observed is within the duty to bargain. See American Federation of
Government Employees, Local 3342, AFL-CIO and Department of Health and
Human Services, Social Security Administration, 19 FLRA No. 124. slip
op. at 2-3 (1985) (breaks); Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland, 19 FLRA No. 123,
slip op. at 4 (1985) (lunch periods). Additionally, the proposal
provides that the employees "ordinarily" will not be required to eat
their meals during the 6:00 p.m. to 6:00 a.m. period. The Union states
that this will give the Agency flexibility to require the meal period to
occur during the specified hours if necessary. Union Reply Brief at 8.
The language of the proposal is not inconsistent with the Union's stated
intent and we adopt the Union's interpretation. Accordingly, for the
reasons set forth above, we find that Union Proposal 4 does not violate
the Agency's rights and is within the duty to bargain.
VI. Union Proposal 5
ARTICLE 15
Section 2. Employees will not be held responsible for
conditions in their immediate work area beyond what can be
reasonably expected based on job training or duties beyond the
scope of their position description; however, employees have the
obligation to report obvious hazards or unlawful activities of
which they become aware.
A. Positions of the Parties
The Agency contends that Union Proposal 5 violates its right under
section 7106(a)(2)(B) to assign work by preventing it from requiring an
employee to perform duties for which the employee has not been given job
training or which are outside the employee's position description.
The Union contends that the proposal would not prevent the Agency
from assigning duties to employees. Rather, the Union states that its
proposal merely provides that an employee will not be held responsible
or be subject to a performance-based action because of duties for which
the employee has not been trained or which are outside the employee's
position description. The Union suggests the proposal merely
incorporates into the parties' agreement circumstances in which an
arbitrator would not uphold a performance-based action against an
employee.
B. Analysis and Conclusions
The Authority finds, contrary to the Agency's interpretation, that
Proposal 5 would not prevent the Agency from assigning duties to
employees. Rather, as contended by the Union, the proposal would
prohibit the Agency from using assigned duties as the basis for a
performance evaluation or a performance-based action where (1) an
employee has not been trained to perform the assigned duties; or (2)
the assigned duties are beyond the scope of the duties in the employee's
position description.
The Authority has found that a proposal prohibiting an agency from
evaluating employees' performance of duties not within their job
descriptions is within the duty to bargain. American Federation of
Government Employees, Council of Social Security District Office Locals
and Department of Health and Human Services, Social Security
Administration, 11 FLRA 608, 611-12 (1983) (Union Proposal 2). The
Authority held that such a proposal would not prevent the agency from
evaluating employees on any particular duties since the agency could
always add the functions upon which it wished to evaluate employees to
the employees' position description.
The Authority has also held, however, that a proposal prohibiting an
agency from evaluating employees upon certain functions unless the
agency first provides training violates management's rights. American
Federation of Government Employees, AFL-CIO, Local 3004 and Department
of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723 (1982).
The Authority found that the proposal in Otis Air Force Base would
condition the agency's exercise of one of its reserved rights upon the
prior exercise of another of its rights. That is, the proposal
conditioned the agency's determination of the duties and functions upon
which employees' performance would be appraised, an exercise of its
right to direct employees and assign work under section 7106(a)(2)(A)
and (B), upon its prior decision as to what training should be assigned,
an exercise of its right to assign work under section 7106(a)(2)(B).
Similarly, the portion of Union Proposal 5 here that prevents the Agency
from holding an employee responsible for those duties for which it has
not provided training would prohibit the Agency from exercising its
rights to direct employees and assign work by evaluating employees
unless it had first exercised its right to provide training to those
employees. Accordingly, to the extent that Union Proposal 5 prevents
the Agency from holding employees responsible for duties for which it
has not provided training, it is outside the duty to bargain.
VII. 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
1, 3, and 4. /2/ IT IS FURTHER ORDERED that the Union's petition for
review as to Union Proposals 2 and 5 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union withdrew its appeal as to one additional proposal
concerning Agency searches of desks and lockers. Consequently, this
proposal will not be considered further here.
(2) In finding these proposals to be within the duty to bargain the
Authority makes no judgment as to their merits.