40:0479(45)NG - - NAGE Local R12-33 and Navy, Pacific Missile Test Center, Point Mugu, CA - - 1991 FLRAdec NG - - v40 p479



[ v40 p479 ]
40:0479(45)NG
The decision of the Authority follows:


40 FLRA No. 45

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R12-33

(Union)

and

U.S. DEPARTMENT OF THE NAVY

PACIFIC MISSILE TEST CENTER

POINT MUGU, CALIFORNIA

(Agency)

0-NG-1761

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

April 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of a proposal which would: (1) define the tour of duty for police officers as an 8-hour day and place employees in a duty status for the entire 8 hours; (2) allow employees to use Government vehicles to obtain their meals; and (3) allow employees to eat their meals in the Government vehicles or at any dining facility at the Naval Air Station.

For the reasons which follow, we find that the portions of the proposal establishing an 8-hour daily tour of duty and placing the employees in a duty status for the entire 8-hour shift are outside the duty to bargain because they directly interfere with management's rights under sections 7106(a)(2)(B) and 7106(b)(1) of the Statute. Additionally, we find that they do not constitute negotiable procedures under section 7106(b)(2) of the Statute or appropriate arrangements under section 7106(b)(3) of the Statute. In this latter regard, we find that the matters raised by the Union are not properly before us for review.

The portions of the proposal allowing employees to use Government vehicles for obtaining and eating meals is nonnegotiable because it conflicts with 31 U.S.C. § 1344. The portion of the proposal allowing employees to eat at any dining facility aboard the Naval Air Station has not been addressed by the parties and we make no findings as to its negotiability.

Accordingly, we will dismiss the petition for review.

II. The Proposal(1)

[1] The normal pattern of work within the Patrol Branch consists of a three (3) shift system. [2]  A "tour of duty" for police officers is defined as eight (8) hours per day, five (5) days per work week. [3]  The employee is in a "duty status" for the entire eight (8) hour shift. [4]  Employees on duty status for an entire eight (8) hour shift shall be able to use their government vehicles to obtain their meals as long as such use is incidental to their patrol duties. [5] The employees will be able to either eat in their vehicle or eat at any dining facility aboard the Naval Air Station. [Only the underscored portions of the proposal are in dispute.]

III. Positions of the Parties

A. The Agency

The Agency argues that the second and third sentences of the proposal are outside the duty to bargain for two reasons: (1) they conflict with section 7106(b)(1) of the Statute by requiring a new tour of duty for the covered employees; and (2) they interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also argues that the fourth and fifth sentences of the proposal violate 31 U.S.C. § 1344 by authorizing the use of a Government vehicle for other than official purposes.

With regard to its contention that the second and third sentences of the proposal are negotiable only at the election of the Agency, the Agency argues that the proposal "would bring about a reduction in the tour of duty by one half hour each day and result in the employees . . . being assigned to a new tour of duty." Statement of Position at 3. The Agency also claims that the proposal would reduce the length of the existing tour of duty by 30 minutes and would, thereby, change the starting and ending times of the shift. The Agency further asserts that the proposed change would eliminate the overlap of shifts which exists with the current daily tour of duty of 8 and 1/2 hours. The Agency contends, therefore, that the proposal would change the current tour of duty and is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. In support of its position, the Agency relies on Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988) (Scott Air Force Base). The Agency also distinguishes this case from National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center Topeka, Kansas, 24 FLRA 126 (1986) (Veterans Administration Medical Center, Topeka, Kansas).

The Agency also argues that the second and third sentences of the proposal do not constitute a negotiable procedure under section 7106(b)(2) of the Statute. The Agency argues that as the proposal "would require establishment of a new tour of duty and assignment of employees to that tour[,]" the proposal directly interferes with section 7106(b)(1). Statement of Position at 6. Similarly, the Agency argues that this portion of the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Agency states that "[t]he union provided no explanation as to how this proposal could be considered an appropriate arrangement . . . ." Id. Instead, the Agency argues that the second and third sentences of the proposal would "totally abrogate" management's rights under section 7106(b)(1) since management "would be precluded from assigning employees to any tour of duty other than the eight-hour tour contained in [the] proposal." Id. at 7.

The Agency also argues that the second and third sentences of the proposal violate management's right to assign work under section 7106(a)(2)(B) of the Statute. More specifically, the Agency asserts that the right to assign work includes "the right not to assign duties to a specific individual . . . [and] not to assign work to individuals for a period of time during the tour of duty . . . ." Id. at 5 (emphasis in original). The Agency argues that this portion of the proposal is outside the duty to bargain because it "would require management to maintain security personnel in a duty status and assign work during the entire tour of duty, without a nonduty lunch break[.]" Id.

Finally, the Agency addresses the fourth and fifth sentences of the proposal, concerning the use of Government vehicles. According to the Agency, these portions of the proposal relate to management's agreement to an 8-hour tour of duty. The Agency argues, however, that such a matter is negotiable only at the election of the Agency and the Agency has elected not to bargain.

The Agency also addresses the fourth and fifth sentences, however, in the context of the current 8 and 1/2 hour workday. The Agency argues that providing employees with the use of Government vehicles to obtain meals and in which to eat meals is inconsistent with 31 U.S.C. § 1344, which restricts the use of Government vehicles to "official purposes." The Agency argues that the employees are not in an official duty or pay status during their 1/2 hour lunch periods. Therefore, the use of Government vehicles to obtain and in which to eat meals cannot be considered work, and does not meet the definition of "official purposes" within the meaning of 31 U.S.C. § 1344.

B. The Union

The Union contends that the second and third sentences of the proposal do not seek to change the employees' tour of duty but, rather, concern "a change in the practice regarding lunch hours[.]" Response at 3. The Union asserts that employees actually perform work during their nonpaid lunch periods without being compensated and that the "Union sought negotiation for an eight-hour day in which the employee was in 'duty status' for the entire shift to address the hardship being experienced by security personnel." Memorandum in Support of Petition for Review at 3. The Union states that under the proposal employees will continue to perform their duties during the 8 hour shift and that "[i]t is understood that security personnel will take their meal break when time permits during the eight hour shift." Id. at 6. Consequently, the Union maintains that the proposal is concerned only with when employees will take their meals and, as such, is a negotiable matter. In support, the Union relies on Veterans Administration Medical Center, Topeka, Kansas and other Authority decisions concerning the time at which lunch can be observed. The Union also argues that Scott Air Force Base is not applicable to this proposal.

In its petition for review, the Union also argued that if the Authority finds the proposal to constitute a change in the employees' tour of duty, then the proposal should be viewed as a negotiable procedure and an appropriate arrangement under sections 7106(b)(2) and 7106(b)(3) of the Statute. In its response to the Agency's statement of position, however, the Union states that it "was not arguing that the proposal at issue as [sic] an appropriate arrangement." Response at 6. Rather, the Union states that if the Authority finds the proposal to be negotiable at the election of the Agency, then the Union "requests bargaining over when the half-hour is taken by the employees." Id. The Union adds that "[a]llowing the employees flexibility regarding when they take the meal period is an 'appropriate arrangement' . . . ." Id. at 7. The Union further states that "another appropriate arrangement would be compensation . . ." for the time during which employees work through their meals. Id.

The Union also argues that the proposal does not interfere with the Agency's right to assign work under section 7106(a)(2)(B). In this connection, the Union asserts that the proposal does not require management to assign specific tasks to employees, and does not affect management's decision not to assign work to employees.

Finally, the Union contends that the fourth and fifth sentences of the proposal would place employees in a duty status for the entire shift. Therefore, the use of Government vehicles by employees to obtain meals, and in which to eat meals, is official business and is consistent with 31 U.S.C. § 1344. In support of this position, the Union cites Lynch v. Department of Justice, 32 MSPR 33 (1986) (Lynch). The Union also asserts that even if the proposal is found to be negotiable only at the election of the Agency, the use of Government vehicles during the 30-minute lunch period is authorized because employees are on duty during that time, and the vehicle would then be used "for official business." Response at 7-8. The Union also contends that the employees are subject to disparate treatment by the Agency because other individuals--namely, military police officers--are permitted to use their vehicles to obtain lunch. By contrast, the employees here must turn in their Government vehicles, prior to the lunch periods, and then use their privately owned vehicles to obtain lunch.

IV. Analysis and Conclusions

A.The Second and Third Sentences of the Proposal Directly Interfere with Management's Right to Determine the Numbers, Types, and Grades of Employees Assigned to a Tour of Duty Under Section 7106(b)(1)

The second and third sentences of the proposal would define the daily tour of duty for police officers as 8 hours per day, during which employees would be in a duty status. The existing daily tour of duty consists of 8 and 1/2 hours, which includes a nonpaid 30-minute meal period.

The Union claims that the proposal does not attempt to change the employees' tour of duty but, rather, concerns a change in employee lunch hours. We disagree.

The Authority has held that an agency's right to determine the numbers, types, and grades of employees assigned to a tour of duty under section 7106(b)(1) encompasses the right to determine the number of employees it considers necessary to have on duty. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 400 (1990) (National Weather Service). The Authority also has held that the right to determine the number of employees necessary to have on duty encompasses the right to determine whether, and to what extent, various work shifts will overlap. In National Weather Service, for example, the Authority found that a change in starting and quitting times which reduced the overlap between two shifts and created an overlap between other shifts involved a determination as to the numbers of employees assigned to a tour of duty. In Veterans Administration, Washington, D.C., 30 FLRA 961, 966 (1988), the Authority found that an agency's decision to reduce the length of the workweek, ending a 12-hour overlap on shifts each week, involved management's right to determine the number of employees assigned to a tour of duty.

In this case, the Agency argues, without contradiction, that the second and third sentences of the proposal would eliminate the overlap between shifts. We find that the elimination of the overlap would affect the number of employees assigned to a tour of duty. The second and third sentences of the proposal would prevent the Agency from determining how many employees it considers necessary to have on a tour of duty and, in this manner, directly interfere with management's right to determine the numbers, types and grades of employees assigned to a tour of duty within the meaning of section 7106(b)(1) of the Statute.

The Union argues that the proposal here is analogous to that in Veterans Administration Medical Center, Topeka, Kansas and other cases concerning the time at which lunch can be observed. The Union's arguments are without merit. The proposal here does more than simply address when, during an established workday, employees may take their meal breaks. The proposal here would reduce the workday by eliminating the nonpaid meal period, thus creating a new tour of duty. The establishment of the new tour of duty, with the concomitant elimination of the overlap period is a matter falling within section 7106(b)(1) and does not involve merely when meal periods will be observed. See also Scott Air Force Base (the Authority found that a change in an employee's starting and quitting times created a new tour of duty within the meaning of section 7106(b)(1)).

We note, also, that the second and third sentences of the proposal are distinguishable from proposals recently addressed by the Authority. In American Federation of Government Employees, Local 1940 and U.S. Department of Agriculture, Agricultural Research Service, Plum Island Animal Disease Center, 37 FLRA 1058, 1061-62 (1990), the union sought to reduce the lunch period of the day shift from 1 hour to 1/2 hour. We found that the proposal did not change the employees' tour of duty because the agency could retain the existing tour and, further, that the proposal did not, in any way, restrict the agency's right to determine the number of employees it considered necessary to have on duty. Similarly, in National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1393-97 (1991), we found that Proposal 1, involving the assignment of employees to fixed shifts and rotating days off did not prevent the agency from determining the numbers, types, and grades of employees assigned to particular tours of duty. Here, however, the second and third sentences of the proposal would eliminate the overlap between shifts, thereby preventing the Agency from determining the number of employees it considers necessary to have on duty.

In sum, we conclude that the second and third sentences of the proposal directly interfere with the exercise of management's discretion to determine the numbers, types, and grades of employees assigned to a tour of duty within the meaning of section 7106(b)(1) of the Statute.

B.The Second and Third Sentences of the Proposal Directly Interfere With Management's Right to Assign Work Under Section 7106(a)(2)(B)

It is well established that management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See National Weather Service, 37 FLRA at 399.

In National Weather Service, we discussed the effect of a change in tours of duty on the exercise of management's right to assign work, as well as the effect on management's right to determine the numbers, types, and grades of employees assigned to a tour of duty, as discussed above. We found that the decision to change the starting and quitting times of the day shift constituted an exercise of the agency's right to assign work because the agency had the right to determine when the duties of the day shift would be performed and when, and to what extent, it would be necessary for the duties of the day shift to overlap with the duties of other shifts.

Like the situation in National Weather Service, the proposal here would eliminate the overlap between shifts, thereby preventing the Agency from determining when the duties of the shifts are to be performed, and the extent to which it is necessary that the duties of one shift overlap with the duties of another shift. For example, if there are particular duties that need to be performed at times falling within the overlap period, management would be unable to assign those duties to the employees who previously were available during that time period. Additionally, the proposal would require all the duties that are currently performed to be assigned within an 8-hour period, without regard to whether some or all of the duties need to be performed at another time of day. Moreover, as the Agency argues, management has the right not to assign work. By requiring that duties be assigned during an 8-hour tour of duty, the proposal would prevent management from determining not to assign work during what is currently the employees' meal period.

Based on the foregoing, we conclude that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

C.The Second and Third Sentences of the Proposal Do Not Constitute a Negotiable Procedure Under Section 7106(b)(2)

As noted, the second and third sentences of the proposal directly interfere with management's right to determine the numbers, types and grades of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. These sentences also directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Authority has held that proposals which directly interfere with the exercise of a management right do not constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 248 (1990); American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 984 (1990). As the second and third sentences of the proposal conflict with the exercise of management rights, they do not constitute a negotiable procedure within the meaning of section 7106(b)(2).

D. The Union's Argument Concerning Section 7106(b)(3) is Not Properly Before the Authority

The Union's argument that the second and third sentences of the proposal constitute an appropriate arrangement is not properly before us. We note, first, that the Union has effectively withdrawn any assertion that the language of the proposal was intended to be an appropriate arrangement. In this connection, and in response to the Agency's statement of position, the Union indicated that it was requesting bargaining over procedures and appropriate arrangements if the Authority were to find the proposal negotiable only at the election of the Agency. The Union then added that it was not arguing that the proposal at issue was an appropriate arrangement. Instead, the Union identified other matters over which it was requesting bargaining. These other matters relate to the continuation of the existing 8 and 1/2 hour tour of duty and pertain, specifically, to when the 1/2 hour meal period will be taken by employees and appropriate compensation for employees who work during their meal periods.

These additional matters essentially constitute new proposals that are not properly before us. Section 7117(c) of the Statute entitles a union to appeal an agency's allegation that the duty to bargain in good faith does not extend to matters proposed to be bargained. See also section 2424.1 of the Authority's Rules and Regulations, prescribing the conditions governing review of negotiability issues. There is no indication in the record that these new proposals were ever the subject of negotiations or presented to the Agency for a declaration of nonnegotiability. Consequently, these matters are not properly before us for a determination as to whether they would constitute negotiable appropriate arrangements.(2)

E.The Fourth and Fifth Sentences of the Proposal Are Inconsistent with 31 U.S.C. § 1344

The fourth and fifth sentences of the proposal would allow police officers who are in a duty status for an entire 8-hour shift to use Government vehicles to obtain their meals as long as such use is incidental to their patrol duties. This portion of the proposal also would allow police officers to eat their meals in the vehicles or at any dining facility "aboard" the Naval Air Station.

31 U.S.C. § 1344 governs the use of passenger vehicles owned by the Government and prescribes the circumstances under which funds may be expended for the operation, maintenance and repair of passenger vehicles that are used for "official purposes."

The Union argues that the fourth and fifth sentences of the proposal are consistent with law because if the employees are in a duty status for an entire 8-hour shift, the employees are on official business. The Union argues, alternatively, that if the proposal is found to be negotiable only at the election of the Agency, the use of Government vehicles during the 30-minute lunch period is authorized because employees work during their meal periods, and the use of the vehicle would be for official business. In this connection, the Union states that police officers are always on duty in that they maintain radio contact with the field, complete paper work, and respond to emergency calls. The Union also asserts that the employees are subject to disparate treatment compared with military police officers who use their vehicles to obtain meals.

The Agency initially claimed that these sentences were tied to management's agreement to an 8-hour tour of duty, which was a matter falling within section 7106(b)(1) of the Statute. The Agency also argues, assuming the continuation of the existing 8 and 1/2 hour tour of duty, that employees are not in an official duty or pay status during their 1/2 hour lunch periods. Therefore, the use of Government vehicles is not an official purpose. Finally, the Agency notes that the Union did not define the circumstances under which the use of a Government vehicle would be incidental to the employees' duties, as stated in the proposal. The Agency asserts that the Union's intent is to allow employees to use vehicles to obtain lunch on a daily basis and that "[i]t is difficult to conceive that, on a daily basis, it would be 'incidental' for all security personnel to use their government vehicles to obtain and eat their lunch." Statement of Position at 9.

The language of the proposal clearly provides that the use of Government vehicles will be available to employees who are on duty status for an entire 8-hour shift. To the extent that we have found the proposed 8-hour tour of duty to be outside the duty to bargain, the sentences authorizing the use of Government vehicles in such an 8-hour tour of duty would also be nonnegotiable.

We note, however, that the parties have made alternative arguments based on the continuation of the existing 8 and 1/2 hour tour of duty. To the extent the parties have given independent meaning to the fourth and fifth sentences of the proposal, and their alternative arguments are consistent with the maintenance of the existing 8 and 1/2 hour shift, we will address the parties' contentions. Compare, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990) (Authority will not base negotiability determinations on a union's statement of intent which is inconsistent with the plain wording of a provision).

We find, in agreement with the Agency, that the circumstances of this case do not establish that the use of Government vehicles would be for official purposes within the meaning of 31 U.S.C. § 1344.

Under the existing 8 and 1/2 hour tour of duty, employees are in a nonpaid status during a 30-minute meal period. The Union states that during the meal period, "[g]enerally, security personnel eat in the trailer, behind the security office, provided by the Employer." Memorandum in Support of Petition for Review at 4.

The language of the proposal would authorize the use of Government vehicles whenever the use is incidental to patrol duties. The Union, however, has not defined what is meant by "incidental to patrol duties" or who would make such determinations. In our view, the proposal would allow employees to use Government vehicles on a daily basis when, in the employees' view, such use is incidental to their duties. The proposal is not limited to situations where employees are using their vehicles while engaged in the performance of duties when the meal period arises. In such a situation, it might be both advantageous to the Agency and sensible to the employee to allow that employee to remain in the vehicle for the purpose of eating or to obtain lunch at what may be a nearby food service facility. We find little support for the Union's assertion that employees work during their meal periods and, therefore, the use of vehicles would be for official purposes. It is not apparent to us that employees would be able to respond to emergencies, for example, if they were out of their vehicles obtaining lunch, or that employees would be able to complete paper work while travelling to obtain lunch.

Consequently, we find that as the fourth and fifth sentences of the proposal would require the Agency to allow employees to use Government vehicles for other than official purposes, this portion of the proposal is inconsistent with 31 U.S.C. § 1344. Therefore, it is nonnegotiable.

In reaching our conclusion that the proposal is not consistent with 31 U.S.C. § 1344, we note that this case does not present a situation where employees are in a travel status or at a temporary duty station where the use of a Government vehicle to obtain meals or for other purposes could fall within 31 U.S.C. § 1344. In this regard, the Union's reliance on Lynch is misplaced. In that case, an employee was engaged in intrastate travel on official business. The employee was found not to have misused a Government vehicle when he stopped en route for dental appointments, because the primary use of the vehicle was for official business. This case also does not present a situation where, for example, employees may be unexpectedly detained at the work site or work in remote locations where the use of a Government vehicle properly may be authorized.

The Union's additional contention that the employees are subject to disparate treatment because military police officers use their vehicles to obtain lunch does not, in our view, serve as a basis on which to find the proposal consistent with law.

Finally, we note that neither party has made any arguments with regard to the portion of the fifth sentence which would allow employees to eat at any dining facility "aboard" the Naval Air Station. It is not clear from the language of the proposal whether the use of dining facilities is contingent on the use of Government vehicles or whether the parties intended to give the language independent meaning. The parties bear the burden of creating a record upon which we can base a negotiability determination. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 518 (1990). In the absence of any arguments from the parties as to the nature and effect of this portion of the fifth sentence, we make no findings as to its merits.

V. Order

The petition for review is dismissed.




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