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

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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