33:0187(21)NG - - Navy, Supervisor of Shipbuilding, Conversion and Repair, Boston, MA and IFPTE Local 15 - - 1988 FLRAdec NG - - v33 p187



[ v33 p187 ]
33:0187(21)NG
The decision of the Authority follows:


33 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING

CONVERSION AND REPAIR, BOSTON, MASSACHUSETTS

and

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS, LOCAL 15, AFL-CIO

0-NG-1533

DECISION

October 17, 1988

Before Chairman Calhoun and Member McKee.

I. 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). It concerns the negotiability of one provision of a negotiated agreement which was disapproved by the Agency head in the course of review under section 7114(c) of the Statute. The provision requires the Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Boston, Massachusetts (the Agency), (1) to record the reasons for ordering mission-accomplishing travel during an employee's nonduty hours, and, if requested, to provide those reasons to the employee affected; and (2) to schedule employee travel during the employee's regular work hours when the event causing the travel is within the Agency's control.

We find this provision to be nonnegotiable because it is inconsistent with 5 U.S.C. § 6101(b)(2). We also conclude that the provision is not a negotiable procedure under section 7106(b)(2) of the Statute, but, rather, violates management's right to assign work under section 7106(a)(2)(B) of the Statute.

II. Provision

When travel outside the regularly scheduled work hours is necessary in order to accomplish the assigned mission, the Employer agrees to record the reasons for ordering travel during non-duty hours and shall, upon request, furnish a copy of the reasons to the employee affected; otherwise, for events which are within the Employer's control, the Employer shall schedule the time to be spent by a Unit employee in a travel status within the regularly scheduled working hours of the employee.

III.Positions of the Parties

The Agency disapproved this provision on the ground that it interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute because it provides that employee travel shall be scheduled during an employee's regular duty hours for events within the Agency's control. In its Statement of Position, the Agency asserts that the last clause of the provision is nonnegotiable because it imposes a mandatory requirement to schedule travel during regular duty hours. The Agency argues that the last clause of the provision violates 5 U.S.C. § 6101(b)(2), which requires the scheduling of business travel during the normal workday only to the maximum extent practicable. The Agency also argues that the last clause of the provision violates management's rights to assign work under section 7106(a)(2)(B) of the Statute.

The International Federation of Professional and Technical Engineers, Local 15, AFL-CIO (the Union) contends that because the employees in this case are professionals, they are not covered by the Fair Labor Standards Act. Therefore, they are not compensated for the time they spend traveling outside of normal duty hours. Supplement to Petition for Review at 1. The Union asserts that the intent of this provision is to ensure that a mission requirement exists to schedule such uncompensated travel.

Contrary to the Agency's claim, the Union argues that the entire provision is in dispute. The Union contends that because the last clause of the provision, when read in conjunction with the first clause of the provision, does not impose an absolute prohibition on the scheduling of travel outside regular working hours, the provision is consistent with Authority precedent. The Union also argues that the Agency is obligated by 5 U.S.C. § 6101(b)(2) to schedule employee travel within the employee's regularly scheduled workweek to the maximum extent practicable. The Union asserts that this provision provides a negotiated definition of the appropriate reasons for determining when the scheduling of travel within the regularly scheduled workweek is not practicable. According to the Union, these reasons include a mission requirement to schedule travel during nonduty hours and events outside the Agency's control. In addition, the Union argues that the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute by which the Agency will exercise its authority under 5 U.S.C. § 6101(b)(2) to schedule employee travel.

IV.Analysis and Conclusions

According to the Agency, the employees in this case are frequently in a travel status performing their job duties away from their normal duty station. See Statement of Position at 2. The scheduling of employee travel is governed by 5 U.S.C. § 6101(b)(2) which provides as follows:

(2) To the maximum extent practicable, the head of an agency shall schedule the time to be spent by an employee in a travel status away from his official duty station within the regularly scheduled workweek of the employee.

Proposals which require travel during a scheduled workweek even when such travel is not practicable are inconsistent with 5 U.S.C. § 6101(b)(2). See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 877-79 (1986) (Proposal 5) (Federal Deposit Insurance Corporation, Madison Region). Moreover, a requirement that employee travel be scheduled during an employee's duty hours prevents management from requiring an employee to work a full day and to travel on nonduty time. This requirement interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Federal Deposit Insurance Corporation, Madison Region, and cases cited in that decision; American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985).

The Union argues that the provision must be read as a whole and, if so read, the entire provision does not prohibit the scheduling of employee travel during nonduty hours. Contrary to the Union's claim, however, we find that when read as a whole the provision prohibits the scheduling of travel during an employee's nonduty hours in the specified circumstances and, therefore, is nonnegotiable.

The first clause of this provision merely requires that the Agency record the reasons for ordering mission-accomplishing travel during an employee's nonduty hours and, if requested, to furnish those reasons to the employee affected. The second clause of the provision, to which the Agency specifically objects, provides that when an event which necessitates employee travel is within the Agency's control, the Agency is required to schedule that travel during the employee's regular duty hours.

The first clause, standing alone, is consistent with 5 C.F.R. § 610.123 which provides that when travel is scheduled during an employee's nonduty time and the employee may not be paid overtime, an agency is required to record the reasons for ordering such travel at those hours and, if requested, to furnish those reasons to the employee concerned. Thus, standing alone, the first clause would be negotiable.

As we previously noted, the record establishes that employees are frequently required to travel away from their normal duty stations in order to perform assigned duties. Statement of Position at 2. In the absence of any contention to the contrary, we find that all travel to which this provision would apply is mission-accomplishing travel. Consequently, under the first clause, if mission travel is necessitated by an event outside the Agency's control the Agency could schedule the travel during the employee's nonduty hours. Under the first clause the Agency only would be required to provide the reasons for ordering such travel.

On the other hand, under the second clause, if mission-accomplishing travel is necessitated by an event within the Agency's control, the Agency would be required to schedule such travel during an employee's regular duty hours even if it were not practicable to do so. In other words, the Agency would be prohibited from scheduling employee travel during the employee's nonduty time.

Therefore, by requiring employee travel to be scheduled during an employee's workweek even if it is not practicable to do so, the provision is inconsistent with 5 U.S.C. § 6101(b)(2) and with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Federal Deposit Insurance Corporation, Madison Region. Compare American Federation of Government Employees, Local 1799, AFL-CIO and U.S. Army, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 26 FLRA 926, 929-30 (1987) (Provision 2). Provision 2 required that employee travel normally will be arranged within the employee's scheduled hours of work. We found that because Provision 2 only required that travel normally be arranged with the employee's scheduled hours of work when practicable it did not prohibit travel outside regular duty hours. Thus, we concluded that Provision 2 was consistent with 5 U.S.C. § 6101(b)(2) and did not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. In contrast, however, the provision in this case prohibits the scheduling of employee travel during nonduty hours if the event necessitating the travel is within the Agency's control.

Because we find that the provision directly interferes with management's right under section 7106(a)(2)(B) to assign work, it is not a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512 (1986). Further, although the Agency also disapproved this provision on the ground that the provision interfered with management's right to direct employees under section 7106(a)(2)(A) of the Statute, the Agency did not address or othe