47:0397(30)NG - - International Brotherhood of Police Officers and GSA, Region 2, NY, NY - - 1993 FLRAdec NG - - v47 p397



[ v47 p397 ]
47:0397(30)NG
The decision of the Authority follows:


47 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS

(Union)

and

GENERAL SERVICES ADMINISTRATION

REGION 2

NEW YORK, NEW YORK

(Agency)

0-NG-2085

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 15, 1993

_____

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 concerns the negotiability of six proposals.

For the reasons stated below, we make the following findings. Proposal 1, which requires the Agency to use certain equipment in its police cruisers, is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices.

Proposal 2, which requires the Agency to pay employees at a certain hourly rate when assigned to certain details, concerns a matter which is specifically provided for by a Federal statute and is nonnegotiable. Proposal 3, which provides that excused, paid absences during an employee's administrative workweek will not reduce the amount of overtime pay to which an employee may be entitled, is negotiable.

Proposal 5, which requires the Agency to grant a step increase to employees who acquire certain academic degrees, is nonnegotiable because it is contrary to a Government-wide regulation. Proposals 4 and 6, which concern the selection of employees for certain details and certain shifts, will be dismissed because there is insufficient information in the record on which to make a negotiability determination.

II. Proposal 1

All cruisers will be provided with a divider between front and rear seats.

A. Positions of the Parties

The Agency contends that Proposal 1 is nonnegotiable because it interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency argues that its existing method of transporting prisoners, without the proposed dividers, "represents [the] way in which it protects the safety and well-being of . . . its . . . police officers." Statement of Position at 6.

The Agency also contends that Proposal 1 interferes with its right to determine the technology and means of performing its work. In this regard, the Agency argues that part of its mission is to protect Federal property, and that the equipment it chooses to use in transporting prisoners is directly related to this aspect of its mission.

The Union argues that the use of a divider between the front and rear seats in Agency police cruisers promotes the safety of police officers and constitutes proper police procedure.

B. Analysis and Conclusions

The term "internal security practices" includes those policies and actions which are part of the Agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. For example, Fraternal Order of Police Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944 (1988) (VAMC, Providence). The determination of the practices and policies which are necessary to the accomplishment of the security function of an agency, including the equipment to be used, is directly related to the determination of an agency's internal security practices. VAMC, Providence 32 FLRA at 957.

In this case, the Agency has chosen to transport prisoners in police cruisers without a divider between the front and rear seats. By requiring the Agency to install a divider in its police cruisers, Proposal 1 obligates the Agency to change both the manner in which it safeguards its personnel and its practice of transporting prisoners. Because the proposal would require the Agency to adopt a particular practice for safeguarding its personnel, Proposal 1 directly interferes with the Agency's right to determine its internal security practices. For example, id.

As the proposal directly interferes with management's right to determine its internal security practices, it is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In this case, the Union does not assert that the proposal constitutes an appropriate arrangement. Accordingly, without addressing the Agency's other arguments regarding the proposal, we conclude that Proposal 1 is nonnegotiable.(1)

III. Proposal 2

RWA details will not be compensated by overtime pay. These details will be outside of a federal police officer's normal duties and shall be paid separately at a rate of $20.00 per hour.(2)

A. Positions of the Parties

The Agency contends that Proposal 2 violates Subchapters IV and V of Chapter 55 of Title 5 of the U.S. Code, as well as the Fair Labor Standards Act (FLSA). The Agency also contends that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute.

The Agency argues that the Union mischaracterizes RWA details as "something other than official duties." Statement of Position at 7. The Agency states that, through RWA details, it provides security services to other Federal agencies and that RWA details are a routine part of its police work. Moreover, the Agency argues that RWA details are not always overtime assignments. In this connection, the Agency states that it pays overtime under the FLSA when the details are performed during overtime.

The Union states only that, with respect to RWA details, a police officer is a "revenue producing asset of [the Agency] and not serving in his normal capacity or in his usual work environment." Petition For Review at 2. According to the Union, such a detail "is outside the normal scope of employment and the hourly rate of such a detail should be negotiable." Id.

B. Analysis and Conclusions

5 U.S.C. §§ 5541-5550a. address the payment of premium pay for overtime work. In particular, 5 U.S.C. § 5542(a)(1)(3) specifies the hourly rate of overtime pay for employees whose basic pay rates do not exceed the minimum rate of basic pay for GS-10 Government employees.

The unit employees covered by Proposal 2 are GS-6 employees. See Attachment 3 to Statement of Position. Proposal 2 requires the Agency to compensate these employees at a certain hourly rate in lieu of other overtime pay. Because the overtime rates for these employees are specifically provided for by 5 U.S.C. § 5542(a)(1), a Federal statute, the rates are not a condition of employment under section 7103(a)(14)(B) of the Statute. Accordingly,

Proposal 2 is nonnegotiable. See Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990). In view of our determination, we need not address the Agency's other arguments regarding the negotiability of the proposal.

IV. Proposal 3

Absence on sick leave, absence on legal holidays, non-work days established by executive or administrative order or absence on compensatory time during the basic work week does not reduce the amount of overtime pay to which an employee may be entitled to during an administrative workweek.

A. Positions of the Parties

The Agency interprets Proposal 3 as enabling unit employees to request, and be granted, compensatory time in lieu of overtime pay for irregular or occasional overtime. Interpreted in this manner, the Agency contends that the proposal is nonnegotiable under section 7117(a)(2) of the Statute because it is contrary to an Agency regulation for which a compelling need exists. The Agency argues that its regulations prohibit employees who are not exempt from the FLSA from accepting compensatory time in lieu of overtime pay.

The Union states only that Proposal 3 is not contrary to law.

B. Analysis and Conclusions

We reject the Agency's interpretation of Proposal 3 as an attempt by the Union to bargain for compensatory time in lieu of overtime pay. Nothing in the proposal requires the Agency to grant to employees compensatory time in lieu of overtime pay. Rather, the proposal provides only that the amount of overtime pay to which an employee is entitled during an administrative workweek will not be reduced, when, during that same workweek, the employee is also absent for the reasons described in the proposal.

In our view, the Agency's claim that the Union is attempting to bargain for compensatory time in lieu of overtime pay is not supported by, or consistent with, the plain wording of the proposal. Additionally, we note that the plain wording of the proposal is consistent with the provisions of 5 C.F.R. § 551.401(b) and (d),(4) which provide generally that time spent in a paid nonwork status is considered hours of work for determining employee entitlement to overtime pay under the FLSA. Interpreted consistent with its plain wording, we are unaware of any grounds on which the proposal is nonnegotiable. Accordingly, we find that

Proposal 3 is negotiable.

V. Proposal 5

An employee who attains a degree in law enforcement, associate, bachelor or master, shall be given a step increase upon presentation of proof of such a degree.

A. Positions of the Parties

The Agency contends that Proposal 5 is nonnegotiable because it is contrary to Government-wide regulations. In particular, the Agency argues that the proposal requires the Agency to grant a quality step increase (QSI) for reasons other than those provided for by 5 C.F.R. §§ 531.501-508.

The Union contends that the Agency "has the latitude under the provisions of Federal Personnel Manual 451 (FPM Chapter 451) to recognize individual achievement that contributes to the effectiveness of the mission of the [Agency]." Petition For Review at 3.

B. Analysis and Conclusions

At the outset, we agree with the Agency that Proposal 5 addresses, and requires, grants of QSIs. In this regard, we note that the employees in this case are paid pursuant to the general schedule (GS) and, as such, are eligible for two types of step increases. First, 5 U.S.C. § 5335 provides for periodic step increases for GS employees based on the length of time an employee has served in his or her current grade. Second, 5 U.S.C. § 5336 provides for QSIs.

Proposal 5 requires the Agency to grant step increases to employees upon proof of obtaining a degree in law enforcement. The Union states, in this regard, that Proposal 5 is intended "to recognize individual achievement." Petition for Review at 3. Consistent with its plain wording and the Union's statement of intent, we conclude that the step increases referred to in Proposal 5 are not based on longevity and are not, therefore, authorized under 5 U.S.C. § 5335.

QSIs, on the other hand, may be granted in recognition of high quality job performance, and are described generally in FPM Chapter 451 as part of the Government-wide incentive awards system, which recognizes employee achievement. Moreover, the Union argues that the Agency "has the latitude under the provisions of FPM Chapter 451," to grant the step increases encompassed by Proposal 5. Petition for Review at 3. We conclude, therefore, that Proposal 5 requires the Agency to grant quality step increases.

Interpreted as requiring a quality step increase, we conclude that Proposal 5 is contrary to C.F.R. § 531.504.(5) That regulation provides that, although an agency is not required to grant a QSI, one may be granted only when an employee has received an "outstanding" performance rating. In this respect, the Proposal 5 requires the Agency to grant step increases to employees for the circumstances described in the proposal. In this connection, we reject the Union's contention that FPM Chapter 451 enables the Agency to grant a QSI in recognition of individual achievement unrelated to an outstanding performance rating. The Union cites no specific provision of FPM Chapter 451 which purports to grant such authority, and none is apparent to us.

5 C.F.R. § 531.504 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. National Treasury Employees Union, Chapter 245 and Department of Commerce, Patent and Trademark Office, 30 FLRA 1219, 1224-26 (1988). As Proposal 3 requires the Agency to grant a QSI in situations where step increases may not be granted under 5 C.F.R. § 531.504, it is inconsistent with the regulation. Proposal 3, therefore, is nonnegotiable. Id.

VI. Proposal 4

Paid details and special details shall be filled using the overtime roster.

Proposal 6

Any position within the bargaining unit that has a five day work week with [S]aturday and [S]unday as days off shall be considered a desirable assignment. Such assignment shall be filled by rotation of the available officers at the work location involved.

A. Positions of the Parties

The Agency contends that Proposals 4 and 6 directly interfere with its right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency argues that both proposals deprive the Agency of its discretion to determine individual employee qualifications for work assignments.

The Union contends that the details specified in Proposal 4 are "choice assignments and should be rotated." Petition For Review at 2. The Union further contends that Proposal 6 is self-explanatory and is not contrary to section 7106 of the Statute.

B. Analysis and Conclusions

The right to assign employees under section 7106(a)(2)(A) of the Statute encompasses the right to determine the particular qualifications and skills needed to perform the work of the position, and to determine whether employees meet those qualifications. For example, American Federation of Government Employees, AFL-CIO Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990) (Robins Air Force Base).

Proposals establishing procedures for determining which one of two or more employees who perform the same work will be selected for assignments are negotiable if applied "when management finds that two or more employees are equally qualified for an assignment." Robins Air Force Base, 35 FLRA at 270 (emphasis in original) citing American Federation of Government Employees, AFL-CIO, Local 738 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380, 383 (1988). For example, where management establishes more than one shift during which the same work is performed and the employees have the required qualifications and skills to perform the duties, a proposal concerning which employees will be assigned to various shifts is negotiable. Robins Air Force Base, 35 FLRA at 270. See also, National Association of Government Employees Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 740-41 (1992) (Red River Army Depot) (the Authority found negotiable a proposal which required the agency to make assignments from an overtime roster based on employee seniority).

On the other hand, proposals which preclude management from exercising its rights to determine the qualifications required to perform the work, and to determine individual employee qualifications before making assignments, directly interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute. Absent a demonstration that such proposals constitute appropriate arrangements under section 7106(b)(3), they are nonnegotiable. See, for example, Robins Air Force Base, 35 FLRA at 270-73.

In this case, Proposal 4 requires the Agency to fill certain assignments from the "overtime roster." Petition For Review at 2. Similarly, Proposal 6 requires the Agency to assign employees to a particular shift by "rotation of the available officers at the work location involved." Id. at 3. No further explanation as to the circumstances in which the proposals will operate was provided in the record by either party.

Absent information in the record which clarifies the nature of the overtime roster referred to in Proposal 4, or the general circumstances in which both proposals would operate, we are unable to assess their negotiability. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). Accordingly, the petition for review of Proposals 4 and 6 is dismissed. See National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information