25:0003(1)NG - Tidewater Virginia FEMT Council and Navy, Navy Public Works Center, Norfolk, Virginia -- 1987 FLRAdec NG



[ v25 p3 ]
25:0003(1)NG
The decision of the Authority follows:


 25 FLRA No. 1
 
 TIDEWATER VIRGINIA FEDERAL 
 EMPLOYEES METAL TRADES COUNCIL
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 NAVY PUBLIC WORKS CENTER 
 NORFOLK, VIRGINIA
 Agency
 
                                            Case No. 0-NG-1160
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                           Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of five Union proposals.  /1/ We find that all five
 proposals are nonnegotiable.
 
                           II.  Union Proposal 1
 
          Article 12, Section 3 (Basic Workweek & Hours of Work)
 
          Proposal:  Except for the specific functions set forth in
       Section 2, the EMPLOYER will notify and, if desired by the
       COUNCIL, meet to discuss any proposed changes in the designation
       of workdays constituting the basic workweek of any employee in the
       UNIT.  Such meetings will be held for the purpose of attempting to
       work out mutually acceptable changes to the basic workweek or
       other acceptable alternatives that provide for meeting the needs
       of the EMPLOYER.  The basic workweek of employees in the UNIT will
       be changed only to meet the needs of the EMPLOYER.  Should the
       parties hereto fail to reach agreement in regards to the necessity
       to effect changes, the EMPLOYER shall have the right to effect
       changes, and any dispute resulting therefrom shall be processed in
       accordance with the Grievance Procedure Article of this Agreement.
        The basic workweek of employees in the UNIT will not be changed
       unless there are substantial and reasonable considerations which
       dictate the change and in no instance shall the provisions of this
       Section be applied in a manner which substitutes a change in work
       schedule with the intent of avoiding the payment of overtime, nor
       will a workweek be changed to perform work that could reasonably
       be performed in any other manner.  (Only the underscored portions
       are in dispute.)
 
    A.  Positions of the Parties
 
    The Agency contends that the disputed portions of the proposal
 conflict with a Government-wide regulation and are contrary to
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.  The Union essentially contends in its petition for review that
 the proposal is fully consistent with applicable laws and regulations.
 The Union also notes in connection with this proposal that it has been a
 part of the parties' agreements since at least 1969.  The Union did not
 file a response to the Agency's statement of position in this case.
 
    B.  Analysis
 
    This proposal requires the Agency to negotiate with the Union over
 changes to the basic workweek of bargaining unit employees, and permits
 the Union to grieve such changes should the parties fail to reach
 agreement on their necessity.  It also would require that changes in an
 employee's basic workweek only be made where there are "substantial and
 reasonable considerations" which dictate the changes, and prohibits a
 change in workweek to perform work that could reasonably be performed in
 any other manner.  Finally, the proposal would prohibit such changes
 where the purpose of the change is to avoid the payment of overtime.
 
    The Agency contends that the proposal conflicts with Office of
 Personnel Management (OPM) regulation 5 C.F.R. Section 610.121(b)(1) and
 (2).  /2/ In support of this contention the Agency relies upon the
 Authority's decision in American Federation of Government Employees,
 AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17
 FLRA 769 (1985), remanded sub nom. American Federation of Government
 Employees, Local 2484 v. Federal Labor Relations Authority, No. 85-1405
 (D.C. Cir. Order, Nov. 17, 1986).  In that case the Authority held
 nonnegotiable a proposal requiring two week notice before any changes in
 established work schedules could be made.  The Authority concluded that
 it conflicted with 5 C.F.R. Section 610.121(b)(2) by precluding the
 agency from complying with that regulation unless it became aware of the
 need to change work schedules not less than two weeks prior to the
 rescheduling.
 
    We recently reconsidered the basis of the Fort Detrick decision in
 National Association of Government Employees, Local R7-23 and Department
 of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (9186).
  As we stated in Scott Air Force Base, 5 U.S.C. Section 6101(a)(3)(A),
 /3/ provides that an agency shall schedule employees' tours of duty not
 less than seven days in advance, except where it is determined that the
 agency would be seriously handicapped in carrying out its functions or
 that costs would be substantially increased.  5 C.F.R. Section
 610.121(a)(1) /4/ implements that statutory provision and contains
 essentially the same language.  In Fort Detrick, the Authority
 interpreted 5 C.F.R. Section 610.121(b)(2) as requiring an agency to
 change employee work schedules as soon as it became aware that such a
 change would be necessary.  Upon further review, we concluded in Scott
 Air Force Base that this interpretation does not fully take into account
 the statutory requirement that work schedules may be revised less than
 seven days in advance only where it is necessary to prevent the agency
 from being handicapped in the execution of its functions or to forestall
 a substantial increase in operational costs.  In other words,
 interpreting 5 C.F.R. Section 610.121(b) consistent with 5 U.S.C.
 Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a), employees must
 have a minimum of seven days advance notice of a change in work
 schedules unless the change is being made for reasons set forth in 5
 U.S.C. Section 6101(a)(3)(A) (and repeated in 5 C.F.R. Section
 610.121(a)).
 
    The proposal in this case permits work schedules to be changed when
 the change is based on "substantial and reasonable considerations." The
 Union contends that this phrase is consistent with the criterion
 established in 5 C.F.R. Section 610.121(a).  That is, the Union argues
 that under this proposal the Agency could change work schedules if it
 determined it would otherwise be seriously handicapped in carrying out
 its functions or would incur a substantial increase in costs.  We find,
 however, that the Union's claim that the proposal permits the Agency to
 change work schedules if there are "substantial and reasonable
 considerations" cannot be sustained.  This proposal expressly provides
 that "in no instance shall (the Agency change work schedules) with the
 intent of avoiding the payment of overtime." Thus, the proposal prevents
 the Agency from changing work schedules to avoid the payment of overtime
 even in circumstances when the Agency determines that the requirements
 of 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) are
 met.  That is, even if the Agency determines that it would be seriously
 handicapped in carrying out its functions or that costs would be
 substantially increased if it does not change work schedules to avoid
 overtime, this proposal precludes such changes.  Finally, we also find
 no merit in the Union's apparent contention that the proposal merely
 assures that employees who work more than a 40 hour workweek are paid
 overtime under applicable laws and regulations.  There is nothing in the
 language of this proposal which concerns such a requirement.
 
    C.  Conclusion
 
    Based on Scott Air Force Base, Proposal 1 is nonnegotiable because it
 is inconsistent with 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section
 610.121(a).  In light of this result it is necessary to address the
 Agency's additional contection that the proposal interferes with its
 right to assign work.  In addition, even if previous agreements between
 the parties included provisions similar to Proposal 1, as claimed by the
 Union, this cannot alter the fact that the proposal is nonnegotiable
 under law and Government-wide regulations.
 
                          III.  Union Proposal 2
 
          Article 13, Section 4 (Shift Work)
 
          Proposal:  Unit employee shifts normally will not be changed
       without notice of at least 72 hours before the first
       administrative workweek affected by the change.  Deviations from
       this provision for advance notification may be made when dictated
       by unforeseen or unusual circumstances beyond control of the
       EMPLOYER.  The COUNCIL will be notified of all deviations and upon
       request will be furnished an explanation of the reasons for the
       deviations.  No deviations from the 72 hours notice shall be
       affected to circumvent or avoid the payment of overtime.
 
    A.  Positions of the Parties
 
    The Agency contends that the proposal is nonnegotiable because it
 conflicts with a Government-wide regulation, 5 C.F.R. Section
 610.121(b)(2).  The Union contends, on the other hand, that the proposal
 is fully consistent with the cited regulation.
 
    B.  Analysis and Conclusion
 
    Proposal 2 requires that except for unforeseen or unusual
 circumstances, shift changes may be made only after 72 hours of notice.
 Moreover, this proposal expressly provides that "(n)o deviations from
 the 72 hours notice shall be affected to circumvent or avoid the payment
 of overtime." Thus, we find that the issues presented here are
 essentially the same as those presented with respect to Union Proposal
 1.  That is, like Proposal 1, this proposal prevents the Agency from
 making a shift change with less than 72 hours notice even where the
 requirements of 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section
 610.121(a) are met.  Consequently, we find that Proposal 2 is
 nonnegotiable because it is inconsistent with law and Government-wide
 regulations.  As with Proposal 1, there is nothing in the language of
 this proposal to support the Union's apparent contention that it merely
 assures employees the payment of legally entitled overtime.
 
                           IV.  Union Proposal 3
 
          Article 12, Section 5 (Basic Workweek and Hours of Work)
 
          Proposal:  The EMPLOYER will schedule the basic workweek so
       that Unit employees will have 2 consecutive days off unless
       mutually agreed to by the EMPLOYER and the COUNCIL.
 
    A.  Positions of the Parties
 
    The Agency contends that this proposal conflicts with the provisions
 of a Government-wide regulation and with management's right to assign
 work under section 7106(a)(2)(B) of the Statute.  The Union contends
 that the proposal, when read in the context of the rest of the parties'
 agreement, provides a mechanism for accommodating exceptions to a basic
 5-day, Monday through Friday, workweek.  It also states that the
 language of the proposal is not inconsistent with law.  Finally, the
 Union notes, as it did in connection with Union Proposal 1, that this
 proposal has been a part of the parties' agreements since at least 1969.
 
    B.  Analysis
 
    5 U.S.C. Section 6101(a)(3)(B), set out in the Appendix to this
 decision, states that except when the head of an agency determines that
 his organization would be seriously handicapped in carrying out its
 functions or that costs would be substantially increased, he shall
 provide that the basic 40-hour workweek of his employees is scheduled on
 5 days, Monday through Friday when possible, and that the 2 days outside
 the basic workweek are consecutive.  5 C.F.R. Section 610.121(a)(2), set
 out in the Appendix to this decision, implements 5 U.S.C. Section
 6101(a)(3)(B) and contains the same language.  Both law and regulation,
 therefore, authorize the Agency head in this case to schedule the basic
 workweek of his employees in a manner which does not provide for two
 consecutive days off where he determines that the Agency would otherwise
 be seriously handicapped in carrying out its functions or that costs
 would be substantially increased.  The proposal would prevent the Agency
 head from scheduling the basic workweek in a manner which does not
 provide for two consecutive days off, unless the Union agrees.  Thus,
 Proposal 3 in this case is distinguished from Proposal 3 in National
 Association of Government Employees, Local R-14 and Veterans
 Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986) and
 Proposal 4 in National Association of Government Employees, SEIU,
 AFL-CIO and Veterans Administration Medical Center, Grand Junction,
 Colorado, 24 FLRA No. 21 (1986).  The cited proposals in those cases,
 unlike Proposal 3 in this case, expressly permitted management to take
 into account actual work requirements in scheduling days off and, as
 interpreted by the Authority, thereby incorporated the statutory and
 regulatory requirements concerning the scheduling of days off.  Proposal
 3 in this case is therefore, inconsistent with the cited law and
 regulation.  Accordingly, the Union's contention that the proposal
 merely provides a mechanism for accommodating exceptions to a basic
 5-day workweek is without merit.
 
    In light of this result, we find it unnecessary to address the
 Agency's additional contention that the proposal interferes with its
 right to assign work.  Moreover, as we stated in connection with Union
 Proposal 1 above, even if previous agreements between the parties
 included a provision similar to this proposal, the proposal is
 inconsistent with law and Government-wide regulations.
 
    C.  Conclusion
 
    For the reason provided above, we find that Union Proposal 3 is
 inconsistent with 5 U.S.C. Section 6101(a)(3)(B) and 5 C.F.R. Section
 610.121(a)(2) and, under section 7117 of the Statute, is outside the
 duty to bargain.
 
                           V.  Union Proposal 4
 
          Article 20, Section 11 (Employee Performance)
 
          Proposal:  Persons assigned as EEO counselors or committee
       members, COUNCIL representatives, etc., will not be rated marginal
       or unsatisfactory on the critical elements of the job unless
       his/her actual work performance demonstrates such performance.
       Collateral duties are not critical elements.  (Only the
       underscored portion is in dispute.)
 
    Union Proposal 5
 
          Article 20, Section 12 (Employee Performance)
 
          Proposal:  Ratings of outstanding must include two or more
       examples of performance exceeding the highly satisfactory level
       for each critical element in which the employee's performance was
       outstanding.  Ratings of marginal or unsatisfactory must include
       two or more examples of performance failing to meet the
       performance standard for each critical element rated marginal or
       unsatisfactory.
 
    A.  Preliminary Issue
 
    Subsequent to filing its petition for review in this case, the Union
 submitted a letter to the Authority alleging that the dispute over
 Proposals 4 and 5 is moot.  Specifically, the Union asserts that during
 bargaining over these proposals the Agency agreed to include the
 disputed language in the parties' collective bargaining agreement.  The
 Union has included documentation which it believes supports this
 allegation.  However, the Agency has submitted a statement disputing the
 Union's allegation and reasserting its position that the referenced
 proposals are nonnegotiable.
 
    The Authority finds that the negotiability dispute concerning Union
 Proposals 4 and 5 has not been rendered moot.  The documentation
 provided by the Union consists of photocopies of the proposals
 purportedly initialed by the Agency's bargaining representative.  We
 conclude that this documentation is insufficient to substantiate the
 Union's allegation.  As the Union has not withdrawn its petition for
 review with respect to the proposals, we will consider the parties'
 substantive arguments concerning their negotiability.  Any remaining
 factual disputes concerning this matter should be resolved in unfair
 labor practice proceedings.  See American Federation of Government
 Employees, AFL-CIO, Local 2736 and Department of the Air Force,
 Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base,
 Michigan, 14 FLRA 302 at 306 n.6 (1984).
 
    B.  Positions of the Parties
 
    The Agency contends that Union Proposals 4 and 5 conflict with
 management's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute.  It also contends that Union
 Proposal 5 is contrary to a Government-wide regulation.
 
    The Union contends that both proposals are consistent with law and
 regulation.  It also notes that the proposals are in the parties' 1982
 agreement.
 
    C.  Analysis
 
    1.  Union Proposal 4
 
    It is clear from the context of this proposal that the phrase
 "collateral duties" refers to employees assigned to perform functions as
 Equal Employment Opportunity (EEO) counselors or committee members,
 Union representatives, and the like.  The Union states that the disputed
 portion of the proposal is intended as a simple statement of the
 following fact:  Critical elements and standards must be consistent with
 an employee's duties and responsibilities as contained in a position
 description.
 
    The Union's designation of an individual as a Union representative is
 not a management assignment of work under section 7106(a)(2)(B) of the
 Statute.  Therefore, management cannot establish critical elements for
 an employee's performance of his responsibilities as a union
 representative.  However, this proposal clearly involves other types of
 "collateral duties" which constitute ligitimate assignments of work
 under the Statute.  Contrary to the Union's position, Proposal 4 has the
 effect of preventing management from establishing critical elements for
 the other types of collateral duties it describes.  In other words, the
 disputed portion of the proposal is prescriptive, not descrpitive, in
 nature.  In this regard, proposals which seek to place limitations on
 the inclusion of certain matters in performance standards are attempts
 to negotiate over the substance of performance standards and infringe on
 management's discretion to direct employees and to assign work under
 section 7106(a)(2)(A) and (B) of the Statute.  See, for example,
 American Federation of Government Employees, AFL-CIO, Local 1708 and
 Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
 3 (1984) (Union Proposal 2) and cases cited therein.  Union Proposal 4
 has the same effect.
 
    Finally, even if previous agreements included provisions similar to
 this proposal, the proposal is nonnegotiable under the Statute.
 
    2.  Union Proposal 5
 
    In American Federation of State, County, and Municipal Employees,
 AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578, 579
 (1984), the Authority found nonnegotiable a proposal requiring that an
 employee demonstrate outstanding performance in a majority of the
 critical elements of his position and that no individual performance
 element be less than fully successful in order to receive an outstanding
 performance rating.  We found that the proposal was nonnegotiable
 because it established what quality of performance in individual job
 elements was required to achieve a particular summary rating and,
 therefore, was inconsistent with management's rights to direct employees
 and to assign work under section 7106(a)(2)(A) and (B).  Union Proposal
 5 has the same effect by requiring two or more examples of performance
 exceeding the highly satisfactory level for each critical element in
 which the employee's performance is outstanding, and two or more
 examples of performance failing to meet the performance standard for
 each critical element rated marginal or unsatisfactory.
 
    As a result of this analysis it is unnecessary to address the
 parties' additional contentions with respect to this proposal.  As with
 Union Proposal 4, even if previous agreements included similar language,
 under the Statute Proposal 5 is nonnegotiable.
 
    D.  Conclusion
 
    For the reasons and cases cited above, Union Proposals 4 and 5
 interfere with management's rights to direct employees and assign work,
 under section 7106(a)(2)(A) and (B) of the Statute, and are, therefore,
 outside the duty to bargain.
 
                                VI.  Order
 
    Accordingly, the petition for review is dismissed.
 
    Issued, Washington, D.C., January 6, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Union's appeal contained three additional proposals.
 However, based on the record, the dispute over a proposal originally
 submitted as Article 22, Sections 8 and 10, apparently was resolved
 during negotiations subsequent to the filing of the negotiability appeal
 in this case and is moot.  In addition, the Union specifically states
 that is does not dispute the Agency's allegation of nonnegotiability
 concerning a proposal originally submitted as Article 24, Section 9,
 thereby also rendering it moot.  Finally, the Agency has withdrawn its
 allegation of nonnegotiability with respect to a third proposal
 originally submitted as Article 20, Section 4.  Accordingly, these three
 proposals will not be considered further.
 
    (2) For the text of 5 C.F.R. Section 610.121(b)(1) and (2) see the
 Appendix attached to decision.
 
    (3) For the text of 5 U.S.C. Section 6101(a)(3)(A) see the Appendix
 attached to this decision.
 
    (4) For the text of 5 C.F.R. Section 610.121(a)(1) see the Appendix
 attached to this decision.
 
 
                                 APPENDIX
 
    2/ 5 C.F.R. Section 610.121(b)(1) and (2)(1986) provide:
 
          Section 610.121 Establishment of work schedules.
 
          (b)(1) The head of an agency shall schedule the work of his or
       her employees to accomplish the mission of the agency.  The head
       of an agency shall schedule an employee's regularly scheduled
       administrative workweek so that it corresponds with the employee's
       actual work requirements.
 
          (2) When the head of an agency knows in advance of an
       administrative workweek that the specific days and/or hours of a
       day actually required of an employee in that administrative
       workweek will differ from those required in the current
       administrative workweek, he or she shall reschedule the employee's
       regularly scheduled administrative workweek to correspond with
       those specific days and hours.  The head of the agency shall
       inform the employee of the change, and he or she shall record the
       change on the employee's time card or other agency document for
       recording work.
 
    3/ 5 U.S.C. Section 6101(a)(3)(A) and (B) provide as follows:
 
          Section 6101.  Basic 40-hour workweek;  work schedules;
       regulations
 
          (a)(3) Except when the head of an Executive agency, a military
       department, or of the government of the District of Columbia
       determines that his organization would be seriously handicapped in
       carrying out its functions or that costs would be substantially
       increased, he shall provide, with respect to each employee in his
       organization, that --
 
          (A) assignments to tours of duty are scheduled in advance over
       periods of not less than 1 week;
 
          (B) the basic 40-hour workweek is scheduled on 5 days, Monday
       through Friday when possible, and the 2 days outside the basic
       workweek are consecutive(.)
 
    4/ 5 C.F.R. Section 610.121(a)(1) and (2) provide:
 
          Section 610.121 Establishment of work schedules.
 
          (a) Except when the head of an agency determines that the
       agency would be seriously handicapped in carrying out its
       functions or that costs would be substantially increased, he or