43:1140(91)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1992 FLRAdec NG - - v43 p1140
[ v43 p1140 ]
The decision of the Authority follows:
43 FLRA No. 91
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
January 24, 1992
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 one proposal, which requires the Agency to adjust employee work schedules so that the employees can attend weekend National Guard drills during their off-duty time rather than on annual leave or on leave without pay. For the following reasons, we find that the proposal is negotiable.
This agreement is entered into by and between the Parties, the National Association of Government Employees, Local R1-109, hereinafter referred to as the Union, and the United States Department of Veterans Affairs Medical Center, Newington, Connecticut, hereinafter referred to as the Employer.
It is the purpose of this agreement to outline procedures to be followed by the Employer, regarding weekend guard drills performed by bargaining employees. The Parties hereby agree as follows:
1. When given at least two (2) weeks notice, and when there are qualified employees available to perform the necessary work, the Employer shall provide through advanced scheduling, days off for employees in the bargaining unit to attend military training drill.
2. If, because of emergency, the Employer is unable to schedule time off for bargaining unit employees to attend drills, the Employer shall afford the employee with an alternate work day within the administrative work week to prevent loss of pay or other benefits [annual leave].
3. Upon request the Union will be afforded a written and specific reason as to why the Employer is unable to schedule time off for an employee to attend a weekend drill.
(Brackets in original).
III. Positions of the Parties
A. The Agency
In its declaration of nonnegotiability, the Agency alleged without elaboration that the proposal was inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute. In its statement of position, the Agency contends that the proposal is inconsistent with law and Government-wide regulation. In particular, the Agency argues that the proposal is inconsistent with 5 C.F.R. § 610.121(b)(1), which, according to the Agency, requires it to schedule an employee's workweek to correspond with the employee's actual work requirements. The Agency contends that as membership in the National Guard is not a requirement to maintain a position in the Agency, there is "no basis upon which the [U]nion can claim that weekend military drills are a work requirement within the meaning of this regulation, thus necessitating workweek schedule adjustment." Statement of Position at 7.
Second, the Agency argues that the proposal is inconsistent with Federal Personnel Manual (FPM) Chapter 353, subchapter 1. According to the Agency, although subchapter 1-4 of Chapter 353 obligates the Agency "to grant leave to an employee attending . . . military training . . . '[t]he agency is not required to reschedule the employee's work to accommodate his or her military training obligation.'" Id. at 9 (quoting FPM Chapter 353, subchapter 1-4.(b)) (emphasis added by the Agency).
Third, the Agency contends that the proposal is inconsistent with 5 U.S.C. § 6323(a). In this connection, the Agency claims that in order to accommodate an employee's requirement to attend military training, an agency is obligated by 38 U.S.C. § 2024(d) "to grant a leave of absence . . . of which only 15 days will be paid leave [a]s stated in  U.S.C. § 6323." Id. at 10. According to the Agency, "[h]ad Congress intended to accommodate military training beyond the type of leave to grant, it would have done so." Id. The Agency claims that, as the "omission of accommodation beyond a mandatory grant of leave places no further mandatory duty on the employer to accommodate military training[,]" the proposal "is inconsistent with Congress' intent to only accommodate to the extent of granting paid versus unpaid leave." Id.
Finally, the Agency claims that the parties "have clearly and unmistakably waived their right to bargain mid-term through express language in the collective bargaining agreement." Id. at 11. The Agency asserts that, as "the [Union] has waived its right to bargain mid-term, . . . the petition should be dismissed." Id. at 12.
B. The Union
First, the Union disputes the Agency's claim that the Union waived its right to bargain mid-term. The Union argues that the proposal "is properly before the Authority." Reply Brief at 1.
Next, as to the merits of the proposal, the Union contends that the proposal is "intended to be [an] appropriate arrangement[ ], and constitute[s] procedures pertaining to employees who are adversely impacted by the exercise of [m]anagement's reserved rights." Petition for Review at 1. Further, the Union argues that none of the statutes or regulations cited by the Agency bars negotiation over the proposal. According to the Union, "[i]n order to bar negotiations any law or regulation would have to do so by specific reference, not as in the instant case by suggestion." Reply Brief at 2.
IV. Analysis and Conclusions
A. Preliminary Matter
We reject the Agency's claim that the Union's petition for review should be dismissed because the Union waived its right to bargain mid-term. A union is entitled to a decision on a negotiability issue under part 2424 of our regulations if the parties are in dispute over whether the union's proposal is inconsistent with law, rule or regulation, and the union's petition is otherwise procedurally correct. In particular, a union is entitled to a decision despite the claimed existence of additional duty to bargain issues, including whether an agency is obligated to bargain under the terms of a master agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1275 (1991), request for reconsideration denied, 40 FLRA 1009 (1991). Issues regarding the duty to bargain should be resolved in other appropriate 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, 306 n.6 (1984).
Here, the Agency declared the Union's proposal nonnegotiable on the ground that the proposal was inconsistent with law, including the Statute, and Government-wide regulation. The Union disagreed with the Agency's allegation and filed a petition for review. The conditions governing review of a negotiability appeal, set forth in section 2424.1 of our regulations, have been met. Consequently, we conclude that the petition for review is properly before us.
B. The Merits
1. 38 U.S.C. § 2024(d) and 5 U.S.C. § 6323(a)
All employers, including the Federal Government, are obligated by 38 U.S.C. § 2024(d) to accommodate employee participation in National Guard and Reserve military training which is scheduled during the time the employee otherwise would be at work by granting the employees leaves of absence to attend the training. In addition, 5 U.S.C. § 6323(a) provides, with certain exceptions not relevant here, that Federal employees are entitled to 15 days of paid leave (military leave) per year in order to participate in military training. Taken together, these two provisions of law require the Agency to grant an employee who is obligated to perform National Guard and Reserve training a leave of absence, of which the first 15 days is without loss of pay or benefits. Once an employee exhausts his or her entitlement to military leave, the employee would be obligated to use annual leave or leave without pay to attend military training scheduled during the time the employee otherwise would be at work. See FPM Chapter 353, subchapter 1-4.c.(4).
As relevant here, the record establishes that some unit employees are members of the National Guard or Reserve and, as such, are required to participate in weekend military training. The record also establishes that these employees are assigned to tours of duty which regularly or occasionally include weekends. Based on the statutes cited above, employees who have exhausted their entitlement to military leave would be obligated to use annual leave or leave without pay in order to attend military training scheduled for a weekend on which they are scheduled to work. The proposal would require the Agency to revise employees' work schedules, in certain circumstances, so that they may attend military training during their normal off-duty time.
Contrary to the Agency's claims, we find that the proposal is not inconsistent with either 38 U.S.C. § 2024(d) or 5 U.S.C. § 6323(a). We note that nothing in 38 U.S.C. § 2024(d) or 5 U.S.C. § 6323(a) concerns work schedule adjustments for employees obligated to attend military training. In particular, 38 U.S.C. § 2024(d) involves only the obligation to grant employees leaves of absence to attend military training; 5 U.S.C. § 6323(a) involves only the accrual and use of military leave for Federal employees required to attend military training. Neither statute addresses other methods of accommodating employees' military training. We also note that the Agency has provided no support for its contention that, by authorizing a leave of absence for military duty in 38 U.S.C. § 2024(d) and providing for 15 days paid military leave in 5 U.S.C. § 6323(a), Congress intended to prohibit other methods of accommodating employees' military training. As indicated above, neither statute addresses other methods of accommodating employees' military training. In addition, the Agency refers to no provision in either statute's legislative history, and our research has disclosed no such provision, which indicates that Congress intended to prohibit other methods of accommodating employees' military training.
Further, nothing in the proposal obligates the Agency to take any action inconsistent with either 38 U.S.C. § 2024(d) or 5 U.S.C. § 6323(a). The proposal applies only to those employees who are required to attend National Guard or Reserve military training and concerns only work schedule adjustments. Nothing in the proposal obligates the Agency to grant a leave of absence under 38 U.S.C. § 2024(d) for any matter other than military training. Similarly, nothing in the proposal obligates the Agency to grant an employee more than the 15 days' paid military leave provided for in 5 U.S.C. § 6323(a).
Consequently, we conclude that the Agency has not established that the proposal is inconsistent with either 38 U.S.C. § 2024(d) or 5 U.S.C. § 6323(a).
2. FPM Chapter 353, Subchapter 1-4
FPM Chapter 353 was promulgated by the Office of Personnel Management to implement 38 U.S.C. § 2024(d) with respect to Federal employees. See 5 C.F.R. § 353.101. As relevant here, FPM Chapter 353, subchapter 1-4.(b) provides that an "agency is not required to reschedule an employee's work in order to accommodate his or her [military training] obligation, and may not require the employee to reschedule his or her work in order to perform such military duty on his or her own time."
This FPM provision makes it clear that an agency may not force an employee to reschedule his or her work to attend military training on their own time. The provision also makes it clear that an agency is not required by law or regulation to reschedule an employee's work so that the employee may attend military training on his or her own time. However, nothing in FPM Chapter 353, subchapter 1-4 precludes an agency, at an employee's request, from rescheduling the employee's work to accommodate the employee's military training obligation. Rather, such matter is left to an agency's discretion. Consequently, a requirement that the Agency reschedule an employee's work so that the employee may attend military training on his or her own time is not inconsistent with FPM Chapter 353, Subchapter 1-4.
3. Right to Assign Work
Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular qualifications and skills necessary to perform the work and the right to make judgments in determining whether particular employees meet those qualifications. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 519-20 (1990). However, proposals providing for selection of particular employees to perform work, from a group of employees who are determined by management to be qualified to perform that work, do not directly interfere with management's right to assign work and, therefore, are negotiable. See, for example, id. Further, where management establishes more than one shift during which the same work is performed and the affected employees have the required qualifications and skills to perform the duties, a proposal concerning which employees will be assigned to the shifts does not directly interfere with the agency's right to assign work. Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687 (1984).
The proposal provides that, if the Agency is given 2 weeks' notice and other qualified employees are available to perform the necessary work on a particular weekend, the Agency will reschedule the work of employees who are scheduled for both weekend work and weekend military training so that they may attend the training on their own time. In effect, the proposal would require the Agency to assign qualified employees who are not scheduled for weekend military training to weekend work, if requested 2 weeks in advance, to enable other employees to attend such military training during off-duty time. In other words, the proposal concerns only which qualified employee will work particular weekends.
As noted, the proposal applies only if there are other qualified employees available to work a weekend in question. The Agency contends that only four employees in different types of positions would be affected by the proposal. The Agency makes no claim, however, that these four employees are the only employees who occupy the positions they encumber. Further, nothing in the plain wording of the proposal or in the record indicates that the Agency would be restricted in any manner from determining the particular qualifications and skills necessary to perform the work on a particular weekend or from determining whether particular employees meet those qualifications. In this regard, the Agency has not shown, or alleged, that there are work-related distinctions between individual employees which would affect the assignment of those employees to a particular shift or tour of duty or weekend. Finally, the proposal permits the Agency to deny an employee's request for a work schedule change in emergencies, even if other qualified employees are available.
In these circumstances, we find no basis on which to conclude that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we need not address the Union's contention that the proposal constitutes an appropriate arrangement, within the meaning of section 7106(b)(3).
4. 5 C.F.R. § 610.121(b)(1)
Under 5 C.F.R. § 610.121(b)(1),(1) an agency is required to schedule: (1) employees' work so as to accomplish the agency's mission, and (2) employees' administrative workweeks to correspond with actual work requirements. Contrary to the Agency's claim, the proposal does not prevent the Agency from satisfying either requirement and, accordingly, is not inconsistent with the regulation.
First, we find nothing in the proposal that would interfere with the Agency's ability to schedule work so as to accomplish its mission. For example, nothing in the proposal would interfere with the Agency's determination as to the number of shifts, the starting and ending times of a shift, the work days and non-work days within a shift, or the number of employees assigned to a shift in order to meet mission requirements. Rather, as noted above, the proposal concerns only which qualified employee will work on particular weekends. Also as noted above, the Agency has not established, or alleg