49:0793(73)NG - - AFGE, Local 3369 and HHS, SSA, Patchogue, NY - - 1994 FLRAdec NG - - v49 p793
[ v49 p793 ]
The decision of the Authority follows:
49 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
PATCHOGUE, NEW YORK
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 18, 1994
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) and concerns the negotiability of four proposals relating to the establishment of a cap on the number of employees who will be permitted to be on annual leave on any given day.(1) For the following reasons, we find that the proposals are nonnegotiable.
The Agency notified the Union on August 5, 1993, that, effective October 1, 1993, it was reducing the number of Title 2 Claims Representatives (T2 CRs), Title 16 Claims Representatives (T16 CRs), and Service Representatives (SRs) who would be allowed to take annual leave under the 6-month advance leave request procedure set forth in Article 31, Section 2C of the parties' National Agreement.(2) Under that procedure, in February and August of each year, employees are required to submit requests for extended annual leave of 1 calendar week or more and requests for annual leave on days immediately preceding or following holidays. The requests for annual leave that must be made in February and August cover, respectively, the 6-month periods of April through September and October through March. The procedure also provides that conflicts in scheduling annual leave during the 6-month periods will be resolved on the basis of a continuously rotating seniority list.
The parties' practice had been to maintain the seniority list according to the type of position and to limit the number of employees in a particular type of position who could be on annual leave on any given day. Specifically, the practice was that only as many as 5 T2 CRs, 3 T16 CRs, and 2 SRs could be on leave on any given day. The Agency proposed to reduce the number of T2 CRs who could be on leave on any particular day from 5 to 4, the number of T16 CRs from 3 to 2, and the number of SRs from 2 to 1. In response, the Union proposed that, because of increases in staff size and experience, the number of T2 CRs who could be on leave on any one day should be increased from 5 to 7, the number of T16 CRs from 3 to 4, and the number of SRs from 2 to 3.
III. Preliminary Matters
The Agency contends that the Union's petition for review should be dismissed as untimely filed under section 2424.3 of the Authority's Rules and Regulations. The Agency states that it mailed a written allegation of nonnegotiability to the Union on August 17, 1993. According to the Agency, allowing the Union an additional 5 days for filing under section 2429.22 because the allegation was served by mail, the petition for review was due at the Authority no later than September 8, 1993. The Agency claims that, because the Union's petition for review was not filed with the Authority until October 26, 1993, the petition is untimely.
There is no assertion or evidence in the record, however, that the Union requested the written allegation of nonnegotiability that was mailed by the Agency to the Union on August 17, 1993. We find, therefore, that the Agency's August 17 allegation was an unsolicited allegation of nonnegotiability. A union is not required to respond to an agency's unsolicited written allegations of nonnegotiability. Rather, the union may ignore unsolicited allegations and instead elect to request a written allegation from the agency. See American Federation of Government Employees, Local 3006 and U.S. Department of Defense, National Guard Bureau, State of Idaho, Office of the Adjutant General, 47 FLRA 155, 157 (1993) (Adjutant General); National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723 (1990).
Based on the record in this case, we find that the Union, as was its right, chose not to appeal the Agency's August 17 unsolicited allegation, but, instead, on October 1, 1993, requested a written allegation from the Agency. The Agency responded in a letter dated October 12, 1993, alleging that the proposals are nonnegotiable because they interfere with management's rights under section 7106(a)(2) of the Statute. The Union filed its petition for review with the Authority on October 15, 1993, within 15 days from the date of the Agency's response. We find, therefore, that, under section 2424.3 of the Authority's Rules, the Union's petition for review was timely filed. See Adjutant General, 47 FLRA at 157; American Federation of Government Employees, AFL-CIO, National Council of Field Assessment Locals and Department of Health and Human Services, Social Security Administration, 32 FLRA 982, 984 (1988). Consequently, we reject the Agency's claim.
The Agency also claims that the petition for review should be dismissed under section 2429.27(a) and (b) of the Authority's Rules because the Union failed to serve the Agency head's designee by certified mail on October 26, 1993, with a copy of its petition for review. However, when the Union's petition in this case was initially filed, the Authority noted certain deficiencies and issued an order to the Union to cure those deficiencies. The order directed the Union, among other things, to file a statement showing service of its petition for review, with all attachments, on the Agency head or her designee. In response, the Union timely filed a statement showing that it had served its petition, with all attachments, by certified mail on the Agency head's designee, thus curing the deficiency. Consequently, we reject the Agency's claim that the petition for review should be dismissed. See, for example, International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 43 FLRA 1202, 1203-04 (1992), reversed and remanded as to other matters sub nom. U.S. Department of Treasury, Bureau of Engraving and Printing v. FLRA, 995 F.2d 301 (D.C. Cir. 1993).
1. Effective 10/1/93, for T2 CRs the cap shall be established at 7 employees.
2. Effective 10/1/93, for T16 CRs the cap shall be established at 4 employees.
3. Effective 10/1/93, for SRs the cap shall be established at 3 employees.
4. If the number of employees in any one of the aforementioned employee groups shall increase by two or more employees, negotiations to increase the cap can be reopened at the request of either party.
V. Positions of the Parties
The Agency claims that Proposals 1-3 mandate the approval of leave for a certain number of employees and that Proposal 4 mandates reopening negotiations to increase those numbers if the number of employees in the groups covered by Proposals 1-3 increases by two or more. The Agency contends that, under Authority precedent, proposals that require management to approve leave for employees directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, such proposals interfere with management's ability to determine when work will be performed and to deny employees' requests for leave because the skills of those employees are needed on the days covered by the requests. The Agency claims that, because the proposals "require that leave requests, up to the cap, be approved, regardless of the Agency's need to efficiently and effectively fulfill the mission of the Agency[,]" the proposals directly interfere with management's right to assign work. Agency's Statement of Position at 6. The Agency also claims that, because the proposals "do not give the Agency any leeway[,]" the proposals excessively interfere with management's right to assign work and are not appropriate arrangements under section 7106(b)(3) of the Statute. Id.
The Union did not file a response to the Agency's statement of position. In its petition for review, the Union claims that, by prescribing the numbers of employees who can be on annual leave at any one time, the proposals do not directly interfere with management's rights under section 7106(a)(2) of the Statute. The Union contends that although management must have enough employees available to accomplish its mission, employees have the right to take annual leave. The Union maintains that Congress did not intend that, out "of 7 employees[,] only 1 can have annual leave." Union's Petition for Review at 2. The Union also claims that, because the proposals do not concern the numbers of employees assigned to any organizational subdivision, work project, or tour of duty, the proposals do not concern a matter that is permissibly negotiable under section 7106(b)(1) of the Statute. According to the Union, "[r]egardless of the number of employees allowed advanced annual leave on any one day, the number of employees assigned . . . in any unit or on any tour remains the same." Id.
VI. Analysis and Conclusions
For the following reasons, we find that Proposals 1-4 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable.
As interpreted by the Agency in its statement of position, Proposals 1-3 provide that, where employees have submitted in advance requests for annual leave under Article 31, Section 2C of the parties' National Agreement, management must grant all leave requests for any given day up to the maximum prescribed by the proposals. Under Proposal 1, for example, as interpreted by the Agency, if, pursuant to Article 31, Section 2C, seven T2 CRs request annual leave for the same day or the same week, management would be required to grant those seven requests. Under the Agency's interpretation, therefore, Proposal 1 would preclude management from denying one or more of those requests if it determined that one or more of those T2 CRs were needed to perform assigned duties. Similarly, under the Agency's interpretation, Proposals 2 and 3 would require management to grant advance annual leave requests pursuant to Article 31, Section 2C covering the same day or days for up to four T16 CRs and up to three SRs and would preclude management from denying one or more of those requests for each group of employees.
As noted above, the Union did not file a response disputing the Agency's interpretation of the proposals. Consequently