34:0909(152)NG - - AFGE Local 1857 and Sacramento Air Logistics Center, McClellan AFB, CA - - 1990 FLRAdec NG - - v34 p909



[ v34 p909 ]
34:0909(152)NG
The decision of the Authority follows:


34 FLRA No. 152

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1857

(Union)

and

SACRAMENTO AIR LOGISTICS CENTER

McCLELLAN AIR FORCE BASE, CALIFORNIA

(Agency)

0-NG-1560

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 23, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves the negotiability of four proposals. The proposals concern the treatment of employees working a tour of duty, identified by the parties as the "graveyard shift," when the annual conversion to daylight saving time (DST) occurs.

For the reasons stated below, we find that Proposals 1, 2 and 3 are nonnegotiable because they violate management's rights to assign work under section 7106(a)(2)(B) of the Statute and to determine the number of employees assigned to a particular work project or tour of duty under section 7106(b)(1). We dismiss the petition for review of Proposal 4 because there is insufficient information on which to make a negotiability determination.

II. Background

Each year, during the spring conversion from standard time to DST, employees assigned to the "graveyard shift" work 7 rather than 8 hours. According to the record, the practice of the Agency has been to charge affected employees with 1 hour of annual leave to the extent that it is available. If annual leave is unavailable, leave without pay (LWOP) is charged to make up the lost hour of work. Attachment 3 to Petition for Review. The Union submitted the four disputed proposals in an effort to change the Agency's practice.

In its reply to the Union's request for a negotiability determination, the Agency claimed that no bargaining obligation existed as to the four proposals because the decision to require employees to use leave for the lost hour of work was based on law, as interpreted by the Comptroller General, and Agency regulations. Based on the Agency's reply, the Union filed an appeal with the Authority concerning the four proposals.

III. Proposals 1, 2 and 3

Proposal 1

Employees who are working graveyard shift when daylight saving is implemented will not be charged annual leave unless at the employee's request.

Proposal 2

Employees working graveyard shift when daylight saving time is implemented will be allowed to work their normal eight (8) hours and time cards will be manually annotated to reflect the actual time worked.

Proposal 3

If negotiations on the forced leave are not completed by the time DST is implemented, employees will have their 1 hour annual leave returned to them retroactively.

A. Positions of the Parties

The Agency contends that Proposals 1, 2 and 3 are nonnegotiable because they interfere with management's right under section 7106(a)(2)(B) of the Statute to assign work. The Agency also asserts that the proposals conflict with its right under section 7106(b)(1) of the Statute to determine the numbers, types and grades of employees assigned to a work project or tour of duty. The Agency further argues that the Union has failed to assume its burden of establishing that the proposals constitute an "appropriate arrangement" within the meaning of section 7106(b)(3). It also asserts that administrative leave in lieu of annual leave is not an available alternative under an applicable decision of the Comptroller General.

The Union did not submit a response to the Agency's statement of position. In its petition for review, the Union states that Proposal 1 "is self explanatory in that the Union was requesting that employees not be forced to take annual leave." Petition for Review at 2 (emphasis in original). According to the Union, Proposal 2 "gave the Employer the option of allowing employees to work their full eight (8) hour shift with no charge of leave to the employee." Id. The Union describes Proposal 3 as a "safeguard for employees who were forced to take leave when DST was implemented, and negotiations on this subject matter had not been completed." Id.

B. Preliminary Matter

As a preliminary matter, we note that the negotiability of Proposals 1 and 3 depends on whether the proposals are considered separately or as a package with Proposal 2. For the following reasons, we conclude that the three proposals are intended to operate together to permit employees on the graveyard shift, when the annual conversion to DST occurs, to elect to work an extra hour to make up for the time lost by the conversion instead of being charged leave for the time lost. We conclude that treatment of the Proposals 1, 2 and 3 separately would not effectuate the Union's stated intent to change the Agency's practice of charging employees on the graveyard shift with annual leave or LWOP in order to make up for the hour of work lost due to the annual conversion to DST.

Proposal 1 prevents the Agency from charging employees on the graveyard shift with an hour of annual leave to compensate for the hour lost due to conversion to DST unless the employees consent. A proposal to permit employees, at their request, to substitute LWOP for annual leave where the Agency has already decided to place the affected employees on leave is negotiable. See International Association of Machinists and Aerospace Workers and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 724-25 (1988) (Proposal 6) (Bureau of Engraving and Printing) (proposal entitling employees to request LWOP in the same manner as they request annual leave found not to infringe on management's rights because the option of allowing employees to request to be absent on LWOP rather than on annual leave does not alter in any way management's authority to decide whether to grant the requested leave). If the Union intended Proposal 1 merely to enable employees to substitute 1 hour of LWOP for 1 hour of annual leave that otherwise would be charged, Proposal 1 would be negotiable.

In this case, the Union states that its proposals "pertain[] to employees being forced to take one (1) hour of annual leave, or leave without pay (LWOP) if they had no annual leave[.]" Petition for Review at 2. The Union states further that Proposal 2, which would enable employees to work an additional hour, is intended to provide the Agency with an "option of allowing employees to work . . . with no charge of leave[.]" Id. In these circumstances, we are unable to conclude that the Union intends Proposal 1 to provide employees with the option to choose between being charged with annual leave or LWOP to make up for the hour of work lost due to the conversion to DST. Rather, it appears that Proposals 1 and 2 are intended to operate together to permit employees to choose to work an additional hour, instead of taking either annual leave or LWOP, in order to make up for the hour lost due to conversion to DST.

Similarly, the Union describes Proposal 3 as a safeguard for employees forced to take 1 hour of annual leave prior to concluding negotiations over the issue of how to treat the hour lost because of the conversion to DST. Standing alone, Proposal 3 simply would enable employees to retroactively substitute LWOP for the hour of annual leave they were charged to make up for the hour of work lost due to the annual conversion to DST. We note that the Agency made no claim that a requirement to retroactively substitute LWOP for annual leave is inconsistent with any law, rule or regulation. Further, and as stated earlier, a requirement to substitute LWOP for annual leave is negotiable. See Bureau of Engraving and Printing. Consequently, if the Union intended Proposal 3 to stand alone we would find it negotiable.

As is the case with Proposal 1, however, we are unable to conclude that the Union intends Proposal 3 merely to provide employees with the option retroactively to substitute LWOP for annual leave. Rather, in our view, Proposal 3 is intended to operate together with Proposals 1 and 2. Viewed in this light, Proposal 3 would enable employees who were charged annual leave to have their leave balances recredited and, under the option provided in Proposal 2, be permitted to work an extra hour to make up for the hour of leave.

For these reasons, we conclude that Proposals 1, 2 and 3 are intended to operate together. Accordingly, we will analyze them together in this decision.

C. Analysis and Conclusion

Proposals 1, 2 and 3 would obligate the Agency to assign an extra hour of work to employees who decline to be charged annual leave or LWOP to compensate for the hour of work lost due to the conversion to DST. Under Proposals 1 and 2, the Agency would be obligated to extend the graveyard shift beyond the scheduled 7 hours on the day of the conversion to DST. Under Proposal 3, the Agency would be required to assign an extra hour of work to employees to enable them retroactively to substitute work for leave. Under all three proposals, the Agency would be required to revise its plans by assigning those employees work normally performed by others, assigning tasks which would otherwise be undertaken by the affected employees at another time, or creating work to be performed for the additional hour. The Agency would, therefore, be forced to alter its work assignments in violation of its right to assign work under section 7106(a)(2)(B) of the Statute. See Department of the Navy, Navy Public Works Center, Norfolk, Virginia v. FLRA, 814 F.2d 982 (4th Cir. 1987) (Navy Public Works Center), reversing Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 21 FLRA 497 (1986).

Furthermore, permitting graveyard shift employees to work their normal 8 hours on the day of conversion to DST, results in those employees working 1 hour into the tour of the following shift. This circumstance conflicts with the Agency's normal scheme in which the end of the "graveyard shift" is followed immediately by the start of the day shift. Statement of Position at 6. Proposals 1 and 2 would require the Agency to have more employees on duty than it considers necessary during the hour of the morning when conversion occurs. Id. Since more employees than the Agency otherwise requires would be at work during 1 hour on the morning of conversion, the proposals determine the numbers, types and grades of employees assigned to a work project or tour of duty.

Likewise, Proposal 3 would require the Agency to assign an extra hour of work to employees to enable them retroactively to substitute work for leave. In a shift operation, assignment of an extra hour of work inevitably would require the Agency to have more employees on duty than it otherwise considers necessary. As such, Proposal 3, like Proposals 1 and 2, also determines the numbers, types and grades of employees assigned to a work project or tour of duty.

Because proposals that determine the numbers, types and grades of employees assigned to a work project or tour of duty are negotiable only at the Agency's election under section 7106(b)(1) of the Statute, and the Agency has elected not to bargain, the proposals are nonnegotiable. See Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 33 FLRA 532, 541-43 (1988), aff'd as to other matters sub nom. National Association of Government Employees, Local R7-23, v. FLRA, No. 86-1080 (D.C. Cir. Jan. 26, 1990); Navy Public Works Center, 814 F.2d at 985.

Accordingly, Proposals 1, 2 and 3 are nonnegotiable because they interfere with management's rights, under section 7106(a)(2)(B) and (b)(1), to assign work and to determine the numbers, types and grades of employees assigned to a work project or tour of duty.

IV. Proposal 4

Any other proposals deemed appropriate.

A. Positions of the Parties

The Agency contends that the petition for review of Proposal 4 should be dismissed because it is not specific enough to determine its negotiability. The Agency argues that the proposal would constitute a waiver of the management right to dispute the negotiability of any subsequent proposal. Statement of Position at 9.

The Union asserts that Proposal 4 was introduced to cover unknown factors that the Agency might raise in the course of collective bargaining.

B. Analysis and Conclusion

There is no explanation in the record of what obligations the Agency would assume if it were to agree to the terms of Proposal 4, and the proposal itself sheds no light on that matter. For example, there is no indication of the standard by which the "appropriateness" of subsequent proposals will be measured, nor does the proposal identify which person or agency will judge the future proposals' appropriateness.

Proposal 4 is not sufficiently specific to provide a basis for determining its negotiability. The proposed wording is not sufficiently clear to indicate the proposal's purpose and effect. Therefore, it is not possible to determine whether bargaining on the proposal would be consistent with applicable law and regulations. Because Proposal 4 does not indicate its purpose and effect, it is impossible for us to assess its impact on management rights. See, for example, American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army