44:0003(1)NG - - AFGE Local 2902 and Army Garrison, Fort A.P. Hill, Virginia - - 1992 FLRAdec NG - - v44 p3

[ v44 p3 ]
44:0003(1)NG
The decision of the Authority follows:


44 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2902

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY GARRISON

FORT A.P. HILL, VIRGINIA

(Agency)

0-NG-1848

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 19, 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 two provisions of a collective bargaining agreement that were disapproved by the head of the Agency under section 7114(c) of the Statute.

Provision 1 requires the Agency to compensate various employees who report for work as scheduled but are prevented from performing duties because of circumstances beyond their control. We conclude that Provision 1 is negotiable.

Provision 2 provides for Union membership on established committees that directly affect working conditions of unit employees, unless expressly prohibited by rules and regulations. Based on the parties' interpretation of the provision, we find that it is no longer in dispute.

II. Provision 1

If a temporary, intermittent, or seasonal employee reports for work at the prescribed starting hour on a scheduled work day and is prepared for and remains capable of work, but is prevented from performing his duties by circumstances beyond his control, the employee will receive at least two hours pay.

A. Positions of the Parties

1. Agency

The Agency contends that the provision is nonnegotiable because it interferes with management's rights to determine the number of employees under section 7106(a)(1) of the Statute and to layoff and direct employees under section 7106(a)(2)(A) of the Statute. The Agency further argues that the provision is inconsistent with law, rule and regulation and, therefore, that it is nonnegotiable under section 7117(a)(1) of the Statute.(1)

In support of its management rights arguments, the Agency asserts that the provision interferes with the right to direct employees by allowing employees, rather than management, to decide who will remain on duty. The Agency states that the provision is similar to a proposal found nonnegotiable in International Association of Machinists and Aerospace Workers and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 731-33 (1988) (Bureau of Engraving and Printing), which, among other things, would have permitted employees to decide to work during periods when management had decided to curtail its operations. The Agency claims that Provision 1 is similar in that it would require the Agency to find work for employees who had been released from duty and to keep specified employees on duty regardless of the need for their services. The Agency claims that, as a result, it would be forced to forego its decision to cease operations temporarily or to employ only the number of employees necessary to perform work. For essentially the same reasons, the Agency maintains that the provision interferes with the Agency's right to determine the number of employees required to perform work and with the Agency's right to layoff.

The Agency further contends that the provision is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with law and regulation in the following respects. First, the Agency states that the employees are not subject to and may not be compensated under the call-back overtime provisions contained in 5 C.F.R. §§ 532.503(c) and 550.112(h), because the employees are not in an overtime status. Second, the Agency argues that the provision would effectively place employees on standby status for two hours until additional work becomes available, despite the fact that the employees are not in a standby status under applicable laws and regulations. Third, the Agency asserts that the provision would improperly place employees on administrative leave. The Agency explains that while temporary and seasonal employees who work regularly scheduled tours of duty are entitled to accrue and use leave under applicable provisions of the Federal Personnel Manual (FPM), employees who work an intermittent tour of duty may not be granted leave benefits. The Agency further argues that the provision does not comport with the examples of administrative dismissals for groups or individuals set forth in the FPM.

With regard to the employees' eligibility for compensation under the terms of the provision, the Agency argues that the provision would require paid dismissal for temporary, intermittent and seasonal employees without regard to any entitlement to leave. As such, the Agency argues that the provision "is inconsistent with FPM Chapters 630 and 610, as well as section 7117(a)(2) of the Statute, and is outside the agency's duty to bargain." Statement of Position at 5. The Agency also states that to the extent seasonal employees work an intermittent schedule, they may not be paid for hours that are not worked. The Agency notes, in this regard, that the Comptroller General has ruled that intermittent employees may be compensated if they are furloughed as the result of an emergency but only if there is sufficient work to keep them on duty until the end of their normal workday. Comp. Gen. B-233656 (June 19, 1989) (unpublished). The Agency contends that the instant provision is distinguishable because it would apply to any furlough and is not limited to furloughs that result from an emergency. The Agency also argues that the provision is distinguishable because it would apply "to any circumstance," even if there were no work available for the intermittent employees to perform. Statement of Position at 3.

Finally, the Agency disputes the Union's contention that the provision constitutes an appropriate arrangement. The Agency argues that the Union has failed to create a record on which the Authority can assess whether the provision is an arrangement for employees adversely affected by the exercise of a management right. The Agency further argues that the provision excessively interferes with the Agency's rights to direct employees and to determine the number of employees necessary to perform specific duties. The Agency states that "it is unconscionable that the [A]gency should adopt a provision that would require payment to employees who are not working and are not entitled to payment under law and government wide regulations." Statement of Position at 6.

2. Union

In its petition for review, the Union states that the provision "would provide two hours pay for employees in the specified categories of employment who report to work at a scheduled day and time." Petition for Review at 2. The Union states that the term "circumstances beyond his control" refers to employees who would be advised, following their arrival at work, that there is no work for them to perform. The Union also explains that the term "at least" means that if work becomes available during the first two hours and the Agency assigns such work to an employee, "the employee would be paid for the actual time worked and . . . the total amount of pay would be the original two hours plus the amount of time, if any, that the newly-available work extended beyond the two hours." Id.

In its response to the Agency's statement of position, the Union makes a general request that the Authority divide the provision into two separate categories of employees: (1) temporary and seasonal employees; and (2) intermittent employees. However, the Union makes no further arguments to support the basis of its request. As for its specific arguments, the Union states that the circumstances here are similar to those in Comp. Gen. B-213179 (October 2, 1984) (unpublished), in which the Comptroller General determined that sleep and mealtime for certain employees was compensable under the Fair Labor Standards Act. The Union argues that just as sleep and mealtime compensation are considered pay for work that is not performed, "the circumstances in the union's proposal here are similar to those in B-213179 and are negotiable as conditions of employment." Union Response at 2-3 (emphasis omitted). The Union further explains that the employees are scheduled for and must report to work as a condition of their employment or face discipline or discharge.

The Union also relies on Comp. Gen. B-233656, the same decision cited by the Agency, for the principle that under the FPM the closing of the activity for brief periods of time, such as when normal operations are interrupted by events beyond the control of management or employees, is within the administrative authority of an agency. The Union states that the circumstances under the proposal that would interrupt normal operations are "events beyond the control of management or employees such as rain, equipment failure, etc." Union Response at 3. The Union further states that "[a]pplying administrative leave in these instances is certainly as legal and more justifiable than paying employees for tardiness in circumstances beyond their control." Id. at 3-4.

Finally, the Union contends that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union notes that employees drive up to 30 miles or more each way to report to work as scheduled. The Union adds that dismissal of the employees upon their arrival at work, without compensation, "adversely affects morale, productivity, and retention of employees . . . during the work season." Id. at 3.

B. Analysis and Conclusions

We conclude that Provision 1 is negotiable. This provision would require the Agency to compensate temporary, intermittent or seasonal employees who report for work as scheduled but are prevented from performing their duties because of circumstances beyond their control. Initially, we note that the Union defines the term "circumstances beyond [an employee's] control" as referring to employees being told, on their arrival at work, that there is no work for them to perform. The Union further explains, in its response to the Agency's statement of position, that the circumstances are those interrupting normal operations and are "events beyond the control of management or employees such as rain, equipment failure, etc." Response at 3. As so explained, the Union has modified the intent of the provision. For purposes of our decision, we adopt the Union's explanation contained in its response. We interpret the provision as applying in circumstances where there is work to be performed if "normal operations" were maintained, but where employees are prevented from performing their duties because of uncontrollable events.

The Agency argues that the provision is nonnegotiable because it would require payment to employees who are not working and who are not entitled to payment under law and regulations. The Agency's argument fails for two reasons. First, under the terms of the provision, at least 2 hours pay would be required, but only when employees are scheduled for work, arrive at their prescribed times and are prevented from performing that work due to circumstances beyond their control. Significantly, the provision would not require compensation for employees who are not scheduled and ready for work and for whom there is no available work to be performed. Thus, in contrast to the Agency's contention that the provision would require indiscriminate payments to employees who are not working, it would be operative only when the Agency has already determined that the employees' services are necessary because work is available to be performed and has scheduled the employees to work at particular times. Accordingly, the provision is consistent in this regard with the Comptroller General decision cited by the Agency.

Second, although stating that the employees "are not entitled to payment under law and government wide regulations[,]" the Agency has not cited any laws or regulations, other than the references to call-back overtime and standby discussed below, that it claims would prevent the Agency from compensating employees in the manner described in the provision. Statement of Position at 6. In this connection, the Agency has not set forth the applicable legal and regulatory provisions governing pay for temporary, seasonal and intermittent employees and has not stated in what manner Provision 1 is inconsistent with such provisions. The Agency's mere allegation that payment may not be made does not satisfy the obligation of parties to create a record on which the Authority can make a negotiability determination. It is well established that parties act at their peril when they fail to do so. See, for example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).

We further find that, although the provision references pay for employees, the effect of the provision is comparable to placing employees on administrative leave during periods of agency closings. In fact, the Union variously refers to the provision as requiring either pay or the application of administrative leave. The Agency also views the provision as requiring paid dismissal for employees. When so viewed, the Agency argues that the provision does not comport with the provisions of the FPM pertaining to administrative leave. The Agency further argues that paid dismissal without regard to the employees' entitlement to leave is inconsistent with other provisions of the FPM. These assertions must be rejected.

Administrative leave is defined as "an absence from duty administratively authorized without loss of pay and without charge to leave." FPM chapter 630, subchapter 11-7. Group dismissals are authorized for employees "when conditions are severe or where normal agency operations would be significantly disrupted." FPM chapter 610, subchapter 3-3. The FPM includes as reasons permitting group dismissals "interruption of transportation or building services[,]" supplying such examples as "malfunctioning equipment" and "renovation of facilities, etc." FPM chapter 610, subchapter 3-6. Also contained in FPM chapter 610, subchapter 3-2, are examples of situations in which agency operations may be curtailed. Included are extreme weather conditions, interruptions of transportation or building services and better utilization of funds or resources. In finding that Provision 1 is intended to apply when there are interruptions to the Agency's operations due to "events beyond the control of management or employees such as rain, equipment failure, etc[,]" we conclude that the use of administrative leave in such circumstances is consistent with the applicable provisions of the FPM. Response at 3.

Additionally, we find nothing in the FPM provisions that would preclude the granting of administrative leave to the categories of employees specified in Provision 1. In fact, with respect to intermittent employees, the decision in Comp. Gen. B-233656 establishes that administrative leave may be authorized for such employees when there is sufficient work to perform but circumstances beyond the control of management or the employees prevents the employees form performing their duties. We further find no basis on which to limit the availability of administrative leave for intermittent employees only to the type of situation present in that Comptroller General decision, namely, the closing of an office due to a waterline break. Rather, the FPM provisions outlining the appropriate use of administrative leave are not limited to that particular type of "emergency" but, rather, are more encompassing. As stated above, we view the circumstances under which administrative leave would be granted under the provision to intermittent employees, as well as temporary and seasonal employees, to be consistent with the types of situations for which administrative leave may be authorized under the FPM.

We further find that under the relevant provisions of the FPM the Agency has the discretion to negotiate over the authorization of administrative leave. In this regard, the Authority previously has addressed the negotiability of proposals authorizing administrative leave for various activities, including those encompassed by Provision 1. In National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993 (1991) (Rock Island Arsenal), for example, we found negotiable a proposal that required the agency to place employees on 40 hours of administrative leave for the period of a holiday shutdown. We found that the FPM vests agencies with the discretion to grant administrative leave in certain situations for brief periods of time and that such discretion is subject to negotiations. See also National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414, 430-31 (1991) (proposal requiring agency to permit employee to remain on duty or grant administrative leave when agency decides employee's services are not needed on a particular day found negotiable).

Similar results were reached in other cases involving the use of administrative leave for periods when agency operations were curtailed. See National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019 (1991) (Proposal 1 requiring, among other things, that the agency grant employees administrative leave during a shutdown due to lack of production or to promote production efficiency); Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 494-95 (1987), enf'd as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990) (no reduction in employees' pay where operations curtailed because of adverse weather conditions or other situations barring the conduct of regular classroom activities); National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 26 FLRA 59 (1987) (employees affected by holiday closure placed on administrative leave without charge to annual leave); National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105, 1114 (1986) (Eastern Mapping Agency) (providing administrative leave or excused absence for short periods of agency closure due to circumstances beyond the agency's control).

We reject the Agency's assertion that Provision 1 is nonnegotiable because it is inconsistent with the leave entitlements for the various categories of employees enumerated in the provision. Although the Agency has not clearly set forth the basis for this contention, the Agency apparently claims that administrative leave cannot be authorized for employees who do not earn and, therefore, are not authorized to use other types of leave. We find no support for such an assertion. As we stated above, we find nothing in the FPM provisions that would preclude the granting of administrative leave to the categories of employees covered by Provision 1.

We also find it unnecessary to address the Agency's contentions concerning the applicability of various regulatory provisions governing call-back overtime and standby. Nothing in the provision or the Union's submissions in this case either references call-back or standby or would require the Agency to place employees in either status.

Finally, we reject the Agency's assertions that Provision 1 directly interferes with various management rights. See Rock Island Arsenal (proposal that employees be placed on administrative leave during period of holiday shutdown held not to directly interfere with numerous management rights but, even if such interference existed, proposal found to be a negotiable appropriate arrangement).

The Agency claims that the provision interferes with the right to determine the number of employees under section 7106(a)(1) of the Statute because it would require the Agency to find work for employees who choose to remain at the worksite after being released from duty. According to the Agency, this would have the effect of requiring the Agency to employ a greater number of employees than would otherwise be necessary. Contrary to this contention, we find nothing in the provision that would require the Agency to keep on duty employees who are prevented from performing their work. The provision is concerned only with compensation and not with assigning work. Therefore, it would not require the Agency to find other work for employees to perform.

The Agency's assertion that the provision directly interferes with management's rights to layoff and direct employees similarly is predicated on the view that the provision would require the Agency to find work for employees who choose to remain at the worksite after being released from duty. The Agency further argues that the provision would prevent the Agency from curtailing its operations. Finally, and more specifically as to the right to direct employees, the Agency maintains that the provision would allow employees, rather than management, to determine who will remain on duty.

As we found above, nothing in the provision would require the Agency to keep on duty employees who are prevented from performing their work or to find other work for the employees to perform. Additionally, we find that nothing in the provision suggests that employees, rather than management, would determine when duties could not be performed. The portion of the provision referring to circumstances beyond an employee's control simply serves to define the occasions on which administrative leave may be authorized and does not lead to the conclusion that employees would decide when they will remain on duty. We also find that the provision would not prevent the Agency from curtailing its operations. Rather, the provision is designed to take effect only after management has determined that there are circumstances preventing employees from performing their work. For this reason, the Agency's reliance on Bureau of Engraving and Printing is inapposite. In that case, the disputed proposal would have enabled employees to thwart the agency's decision to curtail its operations by refusing to take annual leave. In contrast, the provision here would operate only after management has decided that employees are unable to perform work.

Based on the foregoing, we conclude that Provision 1 is not inconsistent with law, rule or regulation and does not directly interfere with the exercise of management's right. In view of this finding, we need not address the Agency's contention that the provision does not constitute an appropriate arrangement.

III. Provision 2

Unless expressly prohibited by rules and regulations, the Union shall have membership on established committees directly affecting the working conditions of employees in the unit.

A. Positions of the Parties

1. Agency

The Agency states that if the intent of the provision is for management to retain the right to exclude Union representation on "panels" that involve the "management deliberative process," the Agency withdraws its allegation of nonnegotiability. Statement of Position at 6. In the alternative, the Agency contends that the provision is nonnegotiable if its intent is to provide Union representation on "any committee." Id. The Agency cites various Authority decisions in which the Authority held that proposals authorizing union membership on committees were nonnegotiable because the committees involved management's internal deliberative process. The Agency states that Provision 2 would enable the Union to participate in any committee unless the Authority has previously ruled that the Union is not entitled to representation on that particular committee. Finally, the Agency argues, as it did with Provision 1, that the Union has failed to establish a record on which to assess whether the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

2. Union

The Union states that the term "'expressly prohibited by rules and regulations' includes operative limitations on committee membership emanating from the . . . Statute." Petition for Review at 2 and Union Response at 4. The Union further states that the provision does not name specific committees because it is intended "to apply to all committees which exist or may come into existence, as long as union membership is not expressly prohibited by rules and regulations." Id. The Union adds that "this provision would prohibit union membership on any committee which would have as their [sic] purpose internal management's business." Union Response at 4-5. The Union also contends that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

We find, based on the language of the provision and the Union's stated intent, that the provision is not in dispute. Consequently, we will dismiss the petition for review as to Provision 2.

As noted, the Agency states that if the intent of the provision is for management to retain the right to exclude union representation on committees that involve management's deliberative process, the Agency withdraws its allegation of nonnegotiability. Clearly, the Agency's concern is that the Union not participate on committees in which internal management deliberations take place. The Union has responded to this concern by stating that the provision would prohibit Union membership on committees that have as their purpose internal management business. As further explained by the Union, the provision "includes operative limitations on committee membership emanating from the . . . Statute". Petition for Review at 2 and Union Response at 4. Given these statements, it is clear that the provision would not authorize Union participation on committees that engage in the management deliberative process.

Finally, we note that although the Union has not specifically stated that management would retain the discretion to determine when Union participation would not be authorized, the Union has not objected to the Agency's assertion in this regard in its submissions to the Authority. Also, it follows that the Agency would be in a better position to ascertain that the nature of a