51:0843(71)NG - - National Association of Agriculture Employees and Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarrantine - - 1996 FLRAdec NG - - v51 p843



[ v51 p843 ]
51:0843(71)NG
The decision of the Authority follows:


51 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

PLANT PROTECTION AND QUARANTINE

(Agency)

0-NG-2134

___

DECISION AND ORDER ON REMAND

February 16, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.(1)

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in National Association of Agriculture Employees v. FLRA, No. 94-1033 (D.C. Cir. Dec. 28, 1994). The issue presented in this case is the negotiability of one proposal concerning Sunday overtime tours of duty for Plant Protection and Quarantine (PPQ) officers. For the following reasons, we find that the proposal is outside the duty to bargain under section 7117 of the Federal Service Labor-Management Relations Statute (the Statute).

II. Background and Proposal

The Agency proposed to pay a PPQ officer only for the number of overtime hours actually worked in circumstances where the PPQ officer begins a scheduled 8-hour Sunday overtime tour but that tour is terminated before the end of the eighth hour due to a lack of inspection work. The Union proposed in response that the scheduled 8-hour Sunday overtime tour of duty remain in effect.(2) In National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 48 FLRA 639 (1993) (DOA I), the Authority concluded that the proposal was nonnegotiable because it was inconsistent with 7 U.S.C. § 2260.(3) The Authority stated that, in the absence of statutory authority to the contrary, "the scheduling of overtime does not entitle an employee to overtime compensation unless the hours were actually worked." DOA I, 48 FLRA at 644.

Subsequently, in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 48 FLRA 914 (1993) (DOA II), the Authority denied the Union's motion for reconsideration of DOA I. The Authority rejected the Union's claim that the Authority's decision in DOA I conflicted with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. The Authority concluded that those provisions did not apply to the PPQ officers involved in this case because the officers were excepted from coverage by 5 C.F.R. § 550.101(d)(9).(4)

The Union filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, arguing that the Authority incorrectly interpreted 5 U.S.C. § 6101, 5 C.F.R. § 610.121, and 7 U.S.C. § 2260. Thereafter, the court granted the Authority's motion to remand the case in order for the Authority to further consider the issues in this case. Because 5 C.F.R. § 610.121 was promulgated by the Office of Personnel Management (OPM) to implement 5 U.S.C. § 6101, the Authority sought, under section 7105(i) of the Statute, an advisory opinion from OPM on: (1) whether the work schedule regulations in 5 C.F.R. Part 610 applied to inspection and quarantine services performed by PPQ officers, and, (2) if so, whether those regulatory provisions permitted the Agency to curtail a regularly scheduled overtime shift earlier than the scheduled end of the shift without incurring an obligation to pay employees overtime for the entire shift.

As to the first question, OPM responded that PPQ officers are covered by 5 U.S.C. § 6101 and 5 C.F.R. Part 610, including 5 C.F.R. § 610.121. As to the second question, OPM advised that because these provisions pertain only to the advance scheduling of workweeks and not to cancellation of overtime tours of duty due to a lack of work after a workweek begins, they do not constrain the ability of an agency to cancel overtime tours of duty. OPM also advised that, consistent with 5 U.S.C. § 5542(a), 5 C.F.R. § 550.111(a), and certain decisions of the Comptroller General (CG), PPQ Officers must actually perform work in order to be entitled to pay. Subsequently, at the Authority's request, OPM clarified its opinion. In particular, OPM stated that "[b]ecause the issue is whether an agency may cancel regularly scheduled overtime hours, not whether an agency may schedule such hours, . . . the provisions of 5 U.S.C. § 6101 and 5 C.F.R. Part 610 are not dispositive . . . ." OPM Clarification at 1.

III. Positions of the Parties (5)

A. Agency

Insofar as the Agency interprets the proposal as obligating it to compensate PPQ Officers until the end of an 8-hour Sunday overtime tour even when the tour is terminated early, the Agency argues that the proposal is inconsistent with 5 U.S.C. § 5542(a), 5 C.F.R. § 550.111(a)(2), and decisions of the CG. Insofar as the Agency interprets the proposal as preventing it from assigning less than 8 hours' overtime work on a Sunday, the Agency argues that the proposal conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency states that it agrees with OPM's advisory opinion concerning 5 U.S.C. § 6101 and 5 C.F.R. § 610.121.

B. Union

The Union argues that its sole purpose throughout this "long, convoluted" proceeding has been to require the Agency to comply with 5 U.S.C. § 6101, 5 C.F.R. § 610.121, and Agency directives when it changes a Sunday overtime tour of duty. Union Response to OPM Advisory Opinion at 13. The Union also argues that, unless the Agency complies with the requirements of 5 U.S.C. § 6101 and 5 C.F.R. § 610.121, the Agency may not terminate a Sunday overtime tour of duty after the tour has begun and that, if it does, it is obligated under the Back Pay Act to pay PPQ officers to the end of the tour. In this regard, the Union agrees with OPM's opinion that 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 apply in this case. However, the Union disputes OPM's opinion that these provisions pertain only to the advance scheduling of workweeks. The Union responds to OPM's assertion that, under 5 U.S.C. § 5542, 5 C.F.R. § 550.111, and decisions of the CG, employees are required to perform work to be entitled to overtime pay by arguing, in general, that there are several situations in which employees are paid for hours they do not work. As to this case in particular, the Union claims that OPM's argument "begs the question" because, under the Back Pay Act, employees "would be entitled to compensation for the work they were precluded from performing because of and but for the unauthorized actions" of their supervisors. Union Response to OPM Advisory Opinion at 6. The Union also claims that OPM's reliance on decisions of the CG is misplaced because the CG has no jurisdiction to address overtime compensation claims that are subject to resolution under negotiated grievance procedures.

As to the Agency's claim that the proposal is inconsistent with management's right to assign work, the Union asserts that the Agency "has consistently found" other, non-inspection, work for employees to perform when there are no available inspection duties. Reply Brief at 9. The Union "knows of no reason why [m]anagement could not and would not continue to assign employees to perform those same kinds of duties" in the situation addressed by the proposal. Id. The Union contends that, insofar as the proposal concerns the assignment of work, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

IV. Analysis and Conclusions

The long and convoluted path of this negotiability appeal has resulted, in large part, from confusion over the meaning of the Union's proposal. Accordingly, at the outset, we address what the proposal means. The proposal states that, in the situation where a scheduled Sunday overtime tour is terminated early, "[t]he actual . . . Sunday OT hours are eight (8)." As written, the proposal does not reference either requirements for terminating Sunday overtime tours of duty and the pay consequences thereof, or the assignment of work. However, it is clear from the Union's submissions that the Union seeks, by the proposal, to require the Agency to take one of two actions. First, the Union seeks to require the Agency to comply with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 when canceling a Sunday overtime tour of duty. The Union explains that, in its view, a failure to comply with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 when canceling a Sunday overtime tour of duty after the tour has begun would obligate the Agency, under the Back Pay Act, to pay employees for the entire duration of the scheduled overtime tour. Second, the Union states that the Agency could assign non-inspection work for the balance of the Sunday overtime tour, presumably to avoid obligations to pay employees under the Back Pay Act.

With respect to the former construction of the proposal, we note the Union's statement that:

The Agency's proposal to authorize local management to terminate scheduled overtime shifts . . . without any advance notice and in the middle of the shifts, violates 5 C.F.R. Part 610 and thus constitutes an unjustified and unwarranted personnel action for which the terminated employees are entitled to full compensation for their entire shifts under the Back Pay Act.

Response to OPM Advisory Opinion at 5.(6) With respect to the latter construction, we note the Union's statement, quoted above, regarding the Agency's alleged practice of assigning non-inspection duties.

When a proposal is silent as to a particular matter, a union statement clarifying the matter is considered consistent with the proposal's wording as long as the statement otherwise comports with the proposal's wording. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA No. 63 (1996), slip op. at 5. The proposal unconditionally defines the number of Sunday overtime hours as 8 in the situation where an employee scheduled to work an 8-hour Sunday overtime shift is sent home early, and is silent as to how the number of overtime hours can be 8 when a shift is terminated before 8 hours are worked. We note, in this regard, that nothing in the wording of this proposal conditions the statement that "Sunday OT hours are eight" on an obligation under the Back Pay Act to pay employees for a violation of 5 U.S.C. § 6101 or 5 C.F.R. § 610.121, or on an assignment of non-inspection work. Moreover, as the proposal applies in a situation where an overtime tour of duty is terminated before its scheduled end, it is difficult to interpret in any logical fashion the proposal as requiring the Agency to assign additional work in lieu of terminating the tour.

Notwithstanding the foregoing, however, the parties' arguments demonstrate their understanding of the proposal as requiring either: (1) compliance with 5 U.S.C. § 6101 and/or 5 C.F.R. § 610.121 and resultant, future liability under the Back Pay Act in the event of noncompliance(7); or (2) the assignment of non-inspection work. The parties' arguments also demonstrate that they disagree over whether, under either construction, the proposal is within the Agency's duty to bargain. Accordingly, in view of the unique circumstances in which this case now is before us and in the interest of fully resolving the issues, we will analyze the proposal under both alternative constructions.

1. To the Extent the Proposal Requires the Agency to Comply With 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 in Terminating Sunday Tours of Duty and to Compensate Employees in the Event of Noncompliance, It is Outside the Duty to Bargain

A threshold issue before the Authority in this remand is whether 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 apply to the PPQ officers involved in this case. This is the issue on which OPM's advisory opinion was sought. If these provisions apply, an additional issue is whether, as the Union argues, they constrain the Agency's ability to terminate Sunday tours of duty in the circumstances addressed by this proposal, so as to permit the Union to include such constraint in a collective bargaining agreement and, thereby, create a pay entitlement for affected PPQ officers under the Back Pay Act.

The regulations in 5 C.F.R. Part 610, governing work schedules, were promulgated by OPM pursuant to specific statutory authority. An agency's interpretation of its own regulations is controlling unless it is "plainly erroneous or inconsistent" with the language of the regulation. FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1454 (1989), cert. denied, 493 U.S. 1055 (1990) (FLRA v. Treasury). Moreover, 5 C.F.R. § 610.121 was promulgated to implement 5 U.S.C. § 6101 pursuant to specific statutory authorization in 5 U.S.C. § 6101(c). Where Congress has not directly spoken to a precise question, an agency's interpretation of the statutory scheme it is entrusted to administer is to be accorded considerable weight so long as its interpretation is based on a permissible construction of the statute. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984).

OPM states that the Authority erred in concluding that 5 C.F.R. § 550.101(d)(9) excludes PPQ Officers from coverage of the work scheduling requirements in subpart A of 5 C.F.R. Part 610. OPM's interpretation of the regulations is consistent with the plain wording of the regulations. In addition, neither party disputes that interpretation. As no basis for disagreement with OPM's opinion is alleged or apparent, we find that PPQ Officers are covered by the work scheduling requirements of 5 C.F.R. Part 610, and we will no longer follow our contrary conclusion in DOA II.

OPM also states that the work scheduling requirements in 5 C.F.R. § 610.121 apply only to advance scheduling of an employee's workweek and do not prevent an agency from canceling a regularly scheduled overtime tour after the workweek begins due to a lack of overtime work to perform. In this respect, OPM's opinion is consistent with the plain wording of both 5 U.S.C. § 6101 and 5 C.F.R. § 610.121, which expressly and repeatedly reference requirements that assignments to tours of duty be "scheduled" and "scheduled in advance." Accordingly, we will apply OPM's interpretation in this case. In so doing, we reject the Union's argument that OPM's opinion is inconsistent with the decision of the U.S. District Court in American Federation of Government Employees v. OPM, No. 85-4031 (D.D.C. Aug. 7, 1986) (mem.) and the Authority's decisions in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 25 FLRA 908 (1987) and Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA 3 (1987). Contrary to the Union's claim, those decisions concerned only the application of 5 C.F.R. § 610.121 to changes in basic workweek schedules, not to the termination of an overtime tour of duty after the tour has begun.(8)

Consistent with the foregoing, we conclude that 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 do not apply to, and thus do not constrain, an agency's ability to terminate a Sunday overtime tour of duty before its scheduled end due to a lack of work. As such, termination of such a tour without complying with those provisions would not constitute an unjustified or unwarranted personnel action, within the meaning of the Back Pay Act.(9) Accordingly, contrary to the Union's claim, there is no basis on which to conclude that an employee whose Sunday overtime tour of duty is terminated without complying with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 may be paid for any hours remaining in the tour under the Back Pay Act.

In addition to its conclusions regarding 5 U.S.C. § 6101 and 5 C.F.R. § 610.121, OPM asserts that, consistent with the 5 U.S.C. § 5542(a) and 5 C.F.R. § 550.111, employees must perform work in order to be entitled to overtime compensation. OPM's interpretation of both of the latter provisions is consistent with their plain wording, which provides that overtime work is work that, among other things, is "performed by an employee . . . ." In addition, OPM has specific statutory authority under 5 U.S.C. § 5548 to promulgate the regulation in order to implement 5 U.S.C. § 5542(a). OPM's interpretation of its regulation is not "plainly erroneous or inconsistent" with the language of the regulation. FLRA v. Treasury, 884 F.2d at 1454. Moreover, it does not appear that, as a general matter, the Union disagrees with OPM's interpretation. Instead, as set forth above, the Union argues that, as applied in this case, the interpretation "begs the question" because employees would be entitled under the Back Pay Act to compensation. Union Response to OPM Advisory Opinion at 6. Accordingly, there is no dispute with the general principle that employees must perform work to be entitled to overtime compensation; there is only a dispute as to whether an exception to the general rule applies in this case.

With respect to the latter point, the Union posits several exceptions to the requirement in 5 U.S.C. § 5542(a).(10) However, the only exception asserted to apply in this case is the Back Pay Act, as a remedy for noncompliance with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. We have concluded, for the reasons fully set forth above, that 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 do not constrain the Agency's ability to terminate a Sunday overtime tour of duty. Accordingly, we also conclude that, insofar as the Union's proposal requires the Agency to pay PPQ officers for 8 hours' overtime in situations where they are released from work in a manner that does not comply with these provisions, the proposal is inconsistent with 5 U.S.C. § 5542 and, as a result, is outside the Agency's obligation to bargain.(11)

2. To The Extent The Proposal Requires The Agency to Assign Non-inspection Duties For The Balance of A Sunday Overtime Tour In The Circumstances of This Case, It is Outside the Duty to Bargain

As noted above, an alternative construction of the Union's proposal is that it requires the Agency to assign non-inspection duties to fill out a tour of duty that otherwise would be terminated because of lack of inspection duties.

It is well established that management's right to assign work under section 7106(a)(2)(B) includes the right to determine when that work will be performed. National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 670-71 (1991). Proposals that require an agency to assign a specified amount or number of hours of overtime, or preclude an agency from assigning a lesser amount or fewer hours, have been found to directly interfere with management's right to assign work. See American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1106-07 (1988). Thus, by requiring the Agency to assign PPQ Officers non-inspection work for the balance of a Sunday overtime shift, the proposal would "affect the authority" of management to assign work, within the meaning of 5 U.S.C. § 7106(a)(2)(B), and the proposal is outside the duty to bargain unless, as claimed by the Union, the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute.

In determining whether a proposal constitutes an appropriate arrangement, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). The purported arrangement must be "tailored" to compensate or benefit employees suffering adverse effects flowing from the exercise of management's rights. See, for example, National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). If the proposal is intended to be an "arrangement," the Authority then determines whether the proposed arrangement is "appropriate," or whether it is inappropriate because it excessively interferes with management's rights. See KANG, 21 FLRA at 31-33.

To address the threshold question of whether a proposal is intended to be an arrangement for employees adversely affected by management's exercise of its rights, "the union should identify the management right or rights claimed to produce the alleged adverse effects . . . ." Id., 21 FLRA at 31. The union also "must articulate how employees will be detrimentally affected by management's actions . . . ." Id.

Here, the Union has identified management's right to assign work as the right that, when exercised to curtail a Sunday overtime shift, has two adverse effects because employees: (1) are unable to plan Sunday off-duty activities; and (2) will incur child care expenses for a full 8 hours even though 8 hours of care will not be required. As to the first claim, the Union does not explain how an inability to plan such activities constitutes an adverse effect, within the meaning of section 7106(b)(3) of the Statute, flowing from the exercise of management's right to assign work. However, even assuming that some employees would be adversely affected by management's actions because they are unable to plan off-duty activities on a Sunday on which they are scheduled to perform overtime, the proposed arrangement is not tailored in any way to apply to those employees. In this regard, it has not been asserted, and it is not otherwise apparent, that all employees would be unable to plan Sunday activities because of early termination of a Sunday overtime shift. For example, termination of a Sunday overtime tour shortly before its scheduled end would not necessarily create additional time which "planning" could have better utilized.

Similarly, as to the second claim, the Union also provides no information on whether any, or how many, employees have child care needs on a Sunday on which they are scheduled to perform overtime. Again, even assuming that some employees have child care needs and that the requirement to pay for 8 hours' of child care in circumstances where 8 hours' of child care would not be required constitutes an adverse effect within the meaning of section 7106(b)(3) of the Statute, the proposed arrangement is not tailored in any way to apply to those employees.

Based on the foregoing, we conclude that the proposal, if constructed to require the Agency to assign non-inspection duties in situations where Sunday overtime tours of duty otherwise would be terminated early, does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Because the proposal would "affect the authority" of management to assign work, 5 U.S.C. § 7106(a)(2)(B), and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3), it is outside the duty to bargain.(12)

V. Order

The Union's petition for review is dismissed.

APPENDIX

1/ Proposal

The actual end of the tour is actually 1630; Sunday OT hours are eight (8).

2/ Pertinent portions of statutory and regulatory provisions cited in the decision.

5 U.S.C. § 5542(a) provides, in pertinent part:

For full-time, . . . tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work . . . .

5 U.S.C. § 6101(a)(3) provides:

(3) Except when the head of an Executive agency, . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--

(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week;

(B) the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

(C) the working hours in each day in the basic workweek are the same;

(D) the basic nonovertime workday may not exceed 8 hours;

(E) the occurrence of holidays may not affect the designation of the basic workweek; and

(F) breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

7 U.S.C. § 2260 provides:

The Secretary of Agriculture is authorized to pay employees of the United States Department of Agriculture performing inspection or quarantine services relating to imports into and exports from the United States, for all overtime, night, or holiday work performed by them at any place where such inspection and quarantine services are performed, at such rates as he may determine, and to accept from persons for whom such work is performed reimbursement for any sums paid out by him for such work.

5 C.F.R. § 550.101(d)(9) provides:

(d) This subpart does not apply to overtime, . . . services for which additional pay is provided by the act of:

. . . .

(9) [7 U.S.C. § 2260], involving employees of the Department of Agriculture performing inspection or quarantine services relating to imports into and exports from the United States.

5 C.F.R. § 550.111 provides, in pertinent part:

(a) [O]vertime work means work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek that is--

(1) Officially ordered or approved; and

(2) Performed by an employee. . . .

5 C.F.R. § 550.112(h) provides:

(h) Call-back overtime work. Irregular or occasional overtime work performed by an employee on a day when work was not scheduled for him, or for which he is required to return to his place of employment, is deemed at least 2 hours in duration for the purposes of [overtime entitlement] . . . .

5 C.F.R. § 610.121 provides:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--

(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week;

(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

(3) The working hours in each day in the basic workweek are the same;

(4) The basic nonovertime workday may not exceed 8 hours;

(5) The occurrence of holidays may not affect the designation of the basic workweek; and

(6) Breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.

(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work.

(3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under subpart A of Part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. This case was considered and all deliberations were completed prior to the date on which Donald S. Wasserman was sworn in as a Member of the Authority. Therefore, Member Wasserman did not participate in this decision. Member Armendariz' concurring opinion that the proposal does not constitute an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute appears at note 12.

2. The proposal is set out in the Appendix to this decision.

3. 7 U.S.C. § 2260 and the pertinent portions of other relevant statutory and regulatory provisions are set forth in full in the Appendix to this decision.

4. In view of its conclusions in DOA I and II, the Authority found it unnecessary to address Agency arguments that the proposal also was outside the duty to bargain because it was inconsistent with 5 U.S.C. § 5542, 5 C.F.R. § 550.111, and management's right to assign work under section 7106(a)(2)(B) of the Statute.

5. In addition to the Union's petition for review, the Agency's statement of position and the Union's reply brief, the Agency and the Union each filed a response to OPM's advisory opinion. Only the Union filed a response to OPM's clarification.

6. In its response to OPM's Advisory Opinion, the Union also states that "the issue of compensation is not properly before [the] FLRA at this time and is not relevant to this proceeding." Response at 3 (emphasis in original). However, in view of the Union's numerous references to employees' entitlement to pay under the Back Pay Act, including a reference in the same document as this statement, see id. at 5, we view the statement only as confirming that the proposal itself does not specify the amount of pay to be provided employees.

7. As such, this case is distinguishable from American Federation of Government Employees, AFL-CIO, Local 1867 and Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado, 42 FLRA 787, 794 (1991), where the Authority dismissed a petition for review of a proposal seeking overtime compensation for certain employees. As the proposal constituted a claim for overtime compensation for events that had already occurred, the Authority concluded that