24:0126(17)NG - NAGE Local R14-8 and VA Medical Center, Topeka, KS -- 1986 FLRAdec NG



[ 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.