53:0606(60)NG - - AFGE Local 1815 and Army Aviation Center, Fort Rucker, Fort Rucker, AL - - 1997 FLRAdec NG - - v53 p606



[ v53 p606 ]
53:0606(60)NG
The decision of the Authority follows:


53 FLRA No. 60

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1815

(Union)

and

U.S. DEPARTMENT OF THE ARMY

U.S. ARMY AVIATION CENTER AND FORT RUCKER

FORT RUCKER, ALABAMA

(Agency)

0-NG-2304

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

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 16 provisions disapproved by the Agency head under section 7114(c) of the Statute.(1)

For the reasons set forth below, we reach the following conclusions:

Provision 1, which restricts management's ability to make holiday work assignments, is contrary to law. See infra Part III.

Provision 2, which requires management to provide each employee with at least 2 consecutive weeks of annual leave, is contrary to law. See infra Part III.

Provision 3, which requires management to provide employee blood donors with up to 4 hours of excused leave, is contrary to law. See infra Part III.

Provision 4, which requires management to select the Union's nominee for Equal Employment Opportunity Counselor, is contrary to law. See infra Part III.

Provision 5, which requires raters to occupy a specified grade level, is contrary to law. See infra Part III.

Provision 6, which requires the presence of a Union observer at rating-panel meetings, is contrary to law. See infra Part IV.

Provision 7, which prevents the Agency from considering candidates from outside sources if an installation search reveals a highly qualified individual, is contrary to law. See infra Part V.

Provision 8, which precludes management from disciplining employees for refusing to obey orders, is contrary to law. See infra Part VI.

Provision 9, which requires management to assign rating duties only to employees who satisfy specified criteria, is contrary to law. See infra Part VII.

Provision 10, which permits management to make changes in tours of duty with less than 7 days' notice only when there is an emergency that would hamper accomplishment of the Agency's mission, is contrary to law. See infra Part VIII.

Provision 11, which requires management to provide employees who work more than 4 hours of overtime with a compensated meal break, is contrary to law. See infra Part IX.

Provision 12, which requires management to negotiate with the Union over competitive areas, is not contrary to law. See infra Part X.

Provision 13, which requires management to provide training to interviewers, is not contrary to law. See infra Part XI.

Accordingly, we dismiss the Union's petition as to Provisions 1 through 11 and direct the Agency head to rescind its disapproval of Provisions 12 and 13.

II. Preliminary Arguments

A. Positions of the Parties

1. Union

The Union presents two preliminary arguments. First, the Union contends that the Agency head's disapproval of the agreement was prohibited by section 2424.3 of the Authority's Regulations. According to the Union, section 2424.3 authorizes agency heads to disapprove only matters "proposed to be bargained" and not matters "that have been negotiated to closure" by the Union and the Agency's local representatives. Petition at 1.

Second, the Union cites Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (Montana ACT). Following is the Union's argument in its entirety:

[I]n [Montana Act], the D.C. Circuit found that the permissive subjects of bargaining delineated in 5 USC 7106(b) constituted an exception to 5 USC 7106(a)'s prohibition on bargaining over statutory managerial prerogatives in cases when, as here, the Agency had voluntarily undertaken to negotiate on these issues. The court ruled that after the local Activity reached an agreement with the Union, the agency head could not lawfully disapprove the agreement on the basis that it ran contrary to 5 USC 7106(a)(1).

Petition at 1.

2. Agency

With respect to the Union's first contention, the Agency argues that "it is well established that the disapproval of an agreement under agency head review constitutes an allegation of nonnegotiability under 5 CFR 2424.3." Statement of Position at 1-2.

As for the Union's second contention, the Agency argues that the Union's "very generic reference" to Montana ACT does not provide a basis for determining whether that case operates to shield any portion of the agreement from agency-head disapproval. Statement of Position at 2.

B. Analysis and Conclusions

1. The Agency Head's Disapproval of the Agreement Was Not Prohibited by Section 2424.3 of the Authority's Regulations

Section 2424.3 of the Authority's Regulations provides: "The time limit for filing a petition for review is fifteen (15) days after the date the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the exclusive representative." In interpreting section 2424.3, the Authority has held that an agency head's disapproval of a negotiated agreement constitutes an allegation of nonnegotiability as to the disapproved provisions. E.g., Tidewater Virginia Federal Employees, Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 42 FLRA 845, 848 (1991). That interpretation has been affirmed on judicial review. See Montana ACT, 22 F.3d at 1154; American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d 850, 853 (D.C. Cir. 1985).

The Union correctly points out that section 2424.3 could be interpreted to mean that an agency may make an allegation of nonnegotiability only as to matters "proposed to be bargained" and not as to matters "that have been negotiated to closure[.]" Petition at 1. As outlined above, however, that interpretation would be inconsistent with both Authority and appeals-court precedent. Consequently, we conclude that the Agency head's disapproval of the agreement was not prohibited by section 2424.3 of the Authority's Regulations.

2. The Agency Head's Disapproval of the Agreement Was Not Prohibited by the Court's Decision in Montana ACT

In Montana ACT, the court held that once local agency negotiators and a union reach agreement on a subject covered by section 7106(b)(1) of the Statute, the agency head cannot disapprove the agreement on the ground that the subject also is covered by section 7106(a) of the Statute. Montana ACT, 22 F.3d at 1155-56. Subsequently, the Authority developed a framework for applying the Montana ACT holding to provisions alleged by the union to be negotiable under section 7106(b)(1) and by the agency to be contrary to law under section 7106(a). See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 393-94 (1995) (VAMC, Lexington) (applied to provisions imposing one requirement on management). See also American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 800-01 (1996) (SSA, Mid-America) (applied to provisions imposing two or more inseparable requirements on management), petition for review withdrawn, No. 97-1066 (D.C. Cir. May 30, 1997).

Here, the Union does not identify the specific provisions believed to be unlawfully disapproved under Montana ACT. In addition, the Union makes no argument as to how the particular subject matter of any of the provisions falls within the ambit of section 7106(b)(1). The bare assertion that the Agency head's disapproval of the agreement was contrary to Montana ACT simply does not provide us with a sufficient basis for applying VAMC, Lexington and SSA, Mid-America to the disputed provisions. Accordingly, we review the disputed provisions only on the grounds asserted by the Agency. See National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 53 FLRA 139, 141-42 (1997) (holding that a party advancing a particular legal theory has the burden of creating a record on which that theory can be applied), petition for review filed, No. 97-1522 (D.C. Cir. Aug. 25, 1997).

III. Provisions 1 Through 5 (2)

Provision 1

Article 12, Section 2. Holidays shall be observed as non-workdays and no work except that which is necessary will be required of employees on such days.

Provision 2

Article 14, Section 3. All employees shall be afforded the opportunity to take a minimum of two (2) consecutive weeks annual leave each year.

Provision 3

Article 15, Section 6. Employees shall be excused up to four (4) hours for each occasion to donate blood, for recuperation following blood donations, and for travel time.

Provision 4

Article 16, Section 6. The Union shall nominate a minimum of one employee to serve as an Equal Employment Opportunity Counselor for an unlimited term. The Employer agrees to provide initial training to each designated Union counselor. Official time will be granted for all subsequent training.

Provision 5

Article 45, Section 6j-c(2)(a). The rater(s) will occupy a position at a level no lower than that of the position being filled and will be capable of making sound decisions regarding criteria and qualifications in the occupational field.

A. Positions of the Parties 

1. Agency

The Agency contends that Provisions 1 through 5 are contrary to law because they affect management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, Authority precedent supports its contention with respect to each provision.

2. Union

The Union responds that the provisions must stand because the Agency already has agreed to them. The Union also asserts that the provisions are not contrary to law, rule, or regulation. The Union does not argue that Provisions 1 through 5, or any of the other provisions alleged to affect management's rights, fall within the coverage of section 7106(b)(2) or (3) of the Statute. In addition, the Union does not challenge any of the precedent cited by the Agency.

B. Analysis and Conclusions

1. Provision 1

Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to make holiday work assignments without restriction. E.g., International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, CA, 31 FLRA 158, 168-69 (1988). Provision 1, by its plain terms, would permit such assignments only when "necessary." It is clear, therefore, that the provision affects management's right to assign work under the Statute. See id.

Contrary to the Union's assertion, the fact that Provision 1 was agreed to by the Agency's local negotiators is not dispositive of the provision's lawfulness. A provision that affects a management right under section 7106(a) of the Statute will be determined to be unlawful unless it either: (1) falls within the coverage of section 7106(b) of the Statute, see Montana ACT, 22 F.3d at 1154-55, or (2) is in accordance with an applicable law outside the Statute, see Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922, 930 (1990). As discussed above, the Union makes only a bare assertion that the provisions at issue fall within section 7106(b)(1) and does not argue that any of them constitute a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3). In addition, it is neither argued nor apparent that any of the provisions are in accordance with applicable outside law.

Based on the foregoing, we conclude that Provision 1 is contrary to law as alleged. Accordingly, we dismiss the Union's petition as to Provision 1.

2. Provision 2

As the Agency points out, management's right to assign work under section 7106(a)(2)(B) includes the right to determine the amount of annual leave that may be used at any given time. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 375-80 (1992) (holding that Provision 15, which required management to grant 2 consecutive weeks of annual leave, was both contrary to law and not an appropriate arrangement), union petition for review withdrawn, No. 92-1370 (D.C. Cir. Aug. 5, 1993), and agency petition for review withdrawn, No. 92-1380 (D.C. Cir. Apr. 22, 1993). Provision 2 would require the Agency to provide all employees with at least 2 consecutive weeks of annual leave. By its plain terms, the provision would preclude management from granting annual leave for periods of less than 2 consecutive weeks, regardless of staffing needs. The provision, therefore, affects management's right to assign work and is contrary to law as alleged. See id. at 378. Accordingly, we dismiss the Union's petition as to Provision 2.

3. Provision 3

The Authority has held that management's right to assign work includes determining whether to excuse employees from work assignments so that they may donate blood. E.g., National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874, 880 (1994). Provision 3 would require the Agency to grant excused absences to employee blood donors without regard to the effect of the absences on management's work assignments. The provision, therefore, affects management's right to assign work and is contrary to law as alleged. See id.; cf. National Federation of Federal Employees, Local 1429 and U.S. Department of the Army, Letterkenny Army Depot, 23 FLRA 117, 119 (1986) (holding that provision was not contrary to law because it "would not restrict the Agency's right to deny an employee's request when the Agency needed the employee to perform work[]"). Accordingly, we dismiss the Union's petition as to Provision 3.

4. Provision 4

It is well-settled that a provision authorizing a union to select an agency EEO counselor is contrary to section 7106(a)(2)(B) of the Statute because it affects management's right to assign work. See American Federation of Government Employees, AFL-CIO, Local 1692 and Department of the Air Force, Mather Air Force Base, California, 8 FLRA 194, 194-95 (1982) (Mather AFB) (reviewing provision requiring agency to appoint one EEO counselor nominated by union); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 622-23 (1980) (Wright-Patterson AFB) (reviewing proposal requiring agency to select half of its EEO counselors from a list provided by union), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981); cf. International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 137-38 (1987) (holding that provision authorizing use of an EEO committee was a negotiable procedure under section 7106(b)(2) of the Statute). It is undisputed that Provision 4 would require the Agency to appoint the Union's nominee for EEO counselor to an unlimited term. Statement of Position at 10. The provision, therefore, affects management's right to assign work and is contrary to law as alleged. See Mather AFB, 8 FLRA at 195; Wright-Patterson, 2 FLRA at 623. Accordingly, we dismiss the Union's petition as to Provision 4.

5. Provision 5

A provision specifying the qualifications of employees assigned to rating panels affects management's right to assign work. See NTEU, 53 FLRA No. 59, slip op. at 30 (Article 12, Section 4(G)). Provision 5 would prevent the Agency from selecting employees as rating-panel members unless they "occupy a position at a level no lower than that of the position being filled[.]" The provision, therefore, affects management's right to assign work and is contrary to law as alleged. See id. Although a provision specifying the qualifications of rating-panel members may, under certain circumstances, constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute, see id. at 31-35, the Union makes no argument to this effect. Accordingly, we dismiss the Union's petition as to Provision 5.

IV. Provision 6

Article 45, Section 6j-c(2)(d). The Union will be given timely advance notice of rating panels and will be provided the opportunity to have an observer present. The observer may, as the need arises during the panel operation, consult with the assigned specialist/personnel representative regarding the rating process and may, in consultation with the staffing specialist, review record of candidate(s) that are questionable.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 6 affects management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute. The Agency also contends that the provision affects management's right to assign work under section 7106(a)(2)(B).

2. Union

The Union's position, in its entirety, is that "[t]his provision has . . . been in place in the Ft. Rucker Merit Placement Plan for many years. It [is] simply a rollover of a provision contained in the current contract." Petition at 4.

B. Analysis and Conclusion

Provisions requiring the presence of union observers on rating panels affect management's right to make selections for appointments by impairing management's ability to engage freely in internal discussions and deliberations prior to making decisions. See American Federation of Government Employees, Local 3434 and National Aeronautics and Space Administration, Marshall Space Flight Center, Alabama, 49 FLRA 382, 387 (1994) (AFGE, Local 3434), overruled as to other matters, NTEU, 53 FLRA No. 59, slip op. at 33; cf. National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 778-80 (1992) (holding that proposal requiring the use of a rating panel was within the duty to bargain), petition for review withdrawn, No. 93-1076 (D.C. Cir. Apr. 27, 1993). Provision 6 would require management to provide the Union with "the opportunity to have an observer present" at rating-panel meetings. The provision, therefore, affects management's right to make selections for appointments and is contrary to law as alleged. See AFGE, Local 3434, 49 FLRA at 388. Although a provision requiring union participation on a rating panel may, under certain circumstances, constitute an appropriate arrangement under section 7106(b)(3) of the Statute, cf. NTEU, 53 FLRA No. 59, slip op. at 31-35, the Union makes no argument to this effect. Accordingly, we dismiss the Union's petition as to Provision 6.(3)

V. Provision 7

Article 45, Section 5b(4). Should no highly qualified individual be located in an initial installation search, in the interest of furthering affirmative action and to correct identified out-of-balance situations in the installation work force, the normal minimum area of consideration will be expanded for the purpose of locating highly qualified minority and female candidates from "outside" labor market sources and concurrent consideration will be directed to those sources.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 7 affects management's right "to select for appointments from any source under 5 USC 7106(a)(2)(C)." Statement of Position at 13. In particular, the Agency argues that the provision unlawfully "restricts management to selecting from the existing installation workforce unless there is a lack of highly qualified candidates in the existing work force." Id.

2. Union

In the Union's view, Provision 7 "correctly represents the intention of the parties to restrict the selection of candidates from outside the installation unless one of two specific situations exist: a lack of highly qualified candidates in the existing installation workforce or a workforce imbalance warranting affirmative action." Petition at 3. The Union adds that the provision "does not v[io]late any law, rule, or regulation" and, therefore, "is negotiable and should stand as written." Id.

B. Analysis and Conclusion

Under section 7106(a)(2)(C) of the Statute, agencies have discretion to fill positions by selecting candidates from any appropriate source without restriction. See American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1320 (1996). As the parties point out, Provision 7 would preclude management from exercising its discretion to consider candidates from outside the installation if an "initial installation search" turns up a "highly qualified individual[.]" The provision, therefore, affects management's right to make selections from any appropriate source and is contrary to law as alleged. See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135-36 (1988) (reviewing proposal to limit the area of consideration to the bargaining unit unless the unit "fail[ed] to produce one highly qualified candidate"). Accordingly, we dismiss the Union's petition as to Provision 7.

VI. Provision 8

Article 19, Section 7. An employee will not be subject to discipline for refusing to obey an unlawful order or an order that would endanger the employee's personal safety or the safety of others.

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of Provision 8 "interferes with management's right to discipline under 5 USC 7106(a)(2)(A)" because it "would preclude management from disciplining an employee if he or she refused an order to perform an assignment 'that would endanger the employee's safety or the safety of others.'" Statement of Position at 11. In support of its position, the Agency cites American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 199-203 (1993) (AFGE, Local 1345).

2. Union

According to the Union, "The language of this provision accurately reflects the intention of the parties and does not v[io]late any law, rule, or regulation. The mere fact that the parties have negotiated to agreement on this issue makes it negotiable." Petition at 3.

B. Analysis and Conclusion

Provisions that prevent management from disciplining employees for specified conduct are contrary to section 7106(a)(2)(A) of the Statute. See AFGE, Local 1345, 48 FLRA at 202 (holding that proposal prohibiting discipline for a "refus[al] to obey . . . an order which would require the employee to place himself/herself in danger of death or serious bodily harm" was outside the duty to bargain and not an appropriate arrangement). Provision 8 would prevent management from disciplining employees for specified conduct, namely, for refusing to obey "an order that would endanger the employee's personal safety or the safety of others." The provision, therefore, affects management's right to discipline and is contrary to law as alleged. See id. Accordingly, we dismiss the Union's petition as to Provision 8.

VII. Provision 9

Article 45, Section 6j-d. The rating of applications shall be performed only by persons in the job series 0203 or 0212, or by properly designated rating panels of occupational experts and shall be reviewed by persons holding the grade of GS-09 or above in job series 0212.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 9 affects management's right to assign work and, therefore, is contrary to section 7106(a)(2)(B) of the Statute. The Agency also argues that Provision 9 is contrary to section 7112(b)(3) of the Statute.

2. Union

According to the Union, "This provision reflects the way the Employer and the Union have been and continue to conduct business on a daily basis." Petition at 4. The Union also argues that "[t]his provision does not v[io]late any law, rule, or regulation" and, therefore, "is negotiable and should stand as written." Id.

B. Analysis and Conclusion

Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular employees to whom, and the particular positions to which, work will be assigned. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 818 (1991). Provision 9 would preclude management from assigning the rating of applications to any employee who is not a designated occupational expert or whose job series is not 0203 or 0212. In addition, the provision would preclude management from assigning related duties to any employee who does not occupy a grade level of GS-9 or higher in job series 0212. Because Provision 9 would restrict the employees and positions to which work can be assigned, it affects management's right to assign work and is contrary to law as alleged.(4) See id. As noted in the analysis of Provision 5, a provision establishing the qualifications of those assigned to be raters may, under certain circumstances, constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See NTEU, 53 FLRA No. 59, slip op. at 31-35. However, because the Union did not raise that question, we do not address it here. For the foregoing reasons, we dismiss the Union's petition as to Provision 9.

VIII. Provision 10

Article 10, Section 4. Changes in tours of duty with less than seven days' notice shall not be made unless there is an emergency that would hamper accomplishment of the mission.

A. Positions of the Parties

1. Agency

The Agency contends that "[t]he provision is . . . inconsistent with 5 CFR 610.121." Statement of Position at 3. According to the Agency, that regulation permits agencies to change tours of duty with less than 7 days notice when either: (1) "the agency would be seriously handicapped in carrying out its functions," or (2) "costs would be substantially increased." Id. Provision 10, the Agency asserts, "allows for the first situation but does not allow for the second." Id.

2. Union

In the Union's view, "[w]hile the Agency argues correctly that 5 CFR 610.121(a) allows management to make tour of duty changes with less than seven [days] notice in two different circumstances . . . the local activity has made a conscious decision to limit its own authority to those situations in which 'there is an emergency that would hamper accomplishment of the mission.'" Petition at 2. Under these circumstances, the Union asserts, Provision 10 "does not violate any law, rule, or regulation" but rather "clarifies the circumstances under which management will exercise its authority." Id.

B. Analysis and Conclusion

Under section 7117(a)(1) of the Statute, a negotiated provision cannot be inconsistent with any Government-wide regulation. The regulation at issue here, 5 C.F.R. § 610.121, is Government-wide. See Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 530 (1990) (SEIU, Local 150).

Entitled "Establishment of work schedules," 5 C.F.R. § 610.121 provides in pertinent part:

(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[.]

The Authority has interpreted the regulation to mean that "employees must have a minimum of seven days advance notice of a change in work schedules unless the change is being made for the reasons set forth in . . . [subsection] (a)." National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 756 (1986). Applying that interpretation, the Authority has held that provisions that would restrict management's power to act under subsection (a) are contrary to law. See id.

Provision 10 permits management to change work schedules with less than 7 days notice only when "there is an emergency that would hamper accomplishment of the mission." The provision narrows management's authority to act under subsection (a) by precluding work-schedule changes when "costs would be substantially increased." The provision, therefore, is contrary to law as alleged. See SEIU, Local 150, 35 FLRA at 530-31. Accordingly, we dismiss the Union's petition as to Provision 10.

IX. Provision 11

Article 11, Section 6. Employees who are required to work overtime in excess of four hours shall be given a meal break of not less than thirty (30) compensated minutes associated with such overtime period.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 11 "is contrary to the [portion] of the Fair Labor Standards Act . . . implemented in 5 CFR 551.411[(c)]." Statement of Position at 5. In the Agency's view, "[s]ince[,]" under the regulation, "meal periods cannot be considered hours of work, it follows that they cannot be compensated." Id. According to the Agency, "at least some of the employees in the bargaining unit . . . are covered by the Fair Labor Standards Act" and, therefore, "application of this provision to them would violate the cited regulation[]." Id.

2. Union

The Union argues that Agency employees covered by the Fair Labor Standards Act "are currently afforded a 'meal time' during their regular eight hour shifts" and that "[t]his provision simply provides the same opportunity for nourishment" to employees required to work long overtime shifts. Petition at 2. The Union adds that "[t]he provisions of 5 CFR 551.411(c) were not meant to be oppressive, but were meant to prevent abuse of overtime compensation." Id.

B. Analysis and Conclusion

As the Agency points out, 5 C.F.R. pt. 551 implements the Fair Labor Standards Act (the FLSA) in the federal sector. 5 C.F.R. § 551.101. The portion of part 551 addressing overtime pay provides in pertinent part: "An agency shall compensate an employee . . . for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee's hourly regular rate of pay . . . ." 5 C.F.R. § 551.501. It is well-settled that under the FLSA time set aside for eating is not work for purposes of compensation unless it involves activities "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer . . . ." Armour & Co. v. Wantock, 323 U.S. 126, 132 (1944) (Wantock). See also 5 C.F.R. § 551.411(c) (providing that "[b]ona fide meal periods shall not be considered hours of work").(5)

It is undisputed that the intent of Provision 11 is to provide unit employees on overtime with an "opportunity for nourishment[.]" Petition at 2. There is no evidence or argument that the employees covered by Provision 11 would be expected to perform any work-related activity during that time. Under these circumstances, the requirement of Provision 11 that the meal period be "compensated" is inconsistent with the FLSA as applied in the federal sector under 5 C.F.R. pt. 551. As such, Provision 11 is contrary to law as alleged. Cf. American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600, 603 (1987) (holding that proposal to treat time set aside for eating as work time was contrary to 5 U.S.C. § 6101). Accordingly, we dismiss the Union's petition as to Provision 11.

X. Provision 12

Article 20, Section 8. Prior to changing any competitive areas affecting bargaining unit positions, the Employer agrees to negotiate the new competitive areas with the Union.

A. Positions of the Parties

1. Agency

The Agency contends that "competitive areas are nonnegotiable because they unavoidably impact the conditions of employment of supervisors and other employees who are not in bargaining units." Statement of Position at 12. In support of that assertion, the Agency cites American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995) (AFGE, Local 32), aff'd, 110 F.3d 810 (D.C. Cir. 1997).

2. Union

According to the Union: "This provision specifically states that the only competitive areas that will require negotiation are the ones that affect bargaining unit positions. This is rightly within the Union's area of responsibility. To exclude negotiations on all topics that could possibly impact the conditions of employment of supervisors would preclude the possibility of any collective bargaining taking place at all." Petition at 3.

B. Analysis and Conclusion

As the Agency points out, contract proposals concerning the working conditions of supervisors are outside the scope of mandatory bargaining. See AFGE, Local 32, 51 FLRA at 500-01. However, "an agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors" because such proposals address permissive subjects of bargaining. American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 681-82 (1996) (AFGE, Local 3302). "Once an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute." Id. at 682.

Provision 12, which would require bargaining over "any competitive areas affecting bargaining unit positions" has been agreed to by the Union and the Agency's local negotiators. Consequently, even if some of the competitive areas covered by Provision 12 also include supervisors, the provision is enforceable under AFGE, Local 3302 unless it is otherwise inconsistent with the Statute. The Agency has not demonstrated such an inconsistency. Although the Agency states that "competitive areas are nonnegotiable because they unavoidably impact . . . employees who are not in bargaining units," the Agency does not specify any nonunit employees who would be affected by Provision 12. In addition, the Agency does not specify any section of the Statute that would render Provision 12 unlawful.

Based on the foregoing, we conclude that the provision is not contrary to law as alleged. See AFGE, Local 3302, 52 FLRA at 683. Accordingly, we direct the Agency head to rescind its disapproval of Provision 12.

XI. Provision 13

Article 45, Section 6h(2). Prospective interviewers will be provided training by the CPD, which also will assure compliance with Privacy Act provisions.

A. Positions of the Parties

1. Agency

According to the Agency, "Most or all prospective interviewers are supervisors, and thus this provision mandates training for supervisors. Such provisions are nonnegotiable because they seek to regulate the conditions of employment of personnel outside the bargaining unit." Statement of Position at 14. In support of its position, the Agency cites National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 45 FLRA 640 (1992).

2. Union

In the Union's view, "The intent of the parties in this instance is to provide for a reasonable level of competence. The parties have agreed to these provisions in good faith and they do not violate any law, rule, or regulation." Petition at 4.

B. Analysis and Conclusion

As noted in our analysis of Provision 12, once an agency and a union agree to a proposal concerning the working conditions of supervisors, the proposal is enforceable provided that it is otherwise consistent with the Statute. See AFGE, Local 3302, 52 FLRA at 681-82. Consequently, contrary to the Agency's assertion, Provision 13 is not unlawful merely because it seeks to regulate the conditions of employment of supervisors. As the Agency does not challenge Provision 13 on any other grounds under the Statute, we conclude that it is not contrary to law as alleged. See id. at 682-83. Accordingly, we direct the Agency head to rescind its disapproval of Provision 13.

XII. Order

The petition for review is dismissed as to Provisions 1 through 11. The Agency head shall rescind its disapproval of Provisions 12 and 13.(6)




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

1. The Agency withdrew its allegation of nonnegotiability with respect to two provisions, and the Union modified a third provision to the Agency's satisfaction. Accordingly, those provisions will not be considered in this decision. See National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 51 FLRA 1362 n.2 (1996); American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 137-38 (1995).

2. Underlined text signifies that only that portion of the provision is at issue. The Union has not requested the Authority to sever and separately consider any of the text that is not in dispute, and there is no other basis on which to do so. Accordingly, where the Agency objects only to a portion of a provision and we find that the disputed portion is not contrary to law, we will order the Agency head to rescind its disapproval of the provision in its entirety. Where, on the other hand, the disputed portion is found to be contrary to law, we will dismiss the petition for review as to the entire provision. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA No. 59, slip op. at 5 (Sept. 30, 1997) (NTEU).

3. In light of our conclusion that the provision is contrary to section 7106(a)(2)(C), the Agency's 7106(a)(2)(B) argument need not be addressed. We also note, contrary to the Union'