54:1391(121)NG - - Federal Education Association and DOD, Education Activity - - 1998 FLRAdec NG - - v54 p1391



[ v54 p1391 ]
54:1391(121)NG
The decision of the Authority follows:


54 FLRA No. 121

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL EDUCATION ASSOCIATION

(Union)

and

DEPARTMENT OF DEFENSE

EDUCATION ACTIVITY (1)

(Agency)

0-NG-2366

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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 three proposals.(2)

For the reasons that follow, we dismiss the petition as to Proposal 3, which provides compensation for duties performed outside the workday, without prejudice. We find that Proposal 5, which provides Environmental Differential Pay, and Proposal 6, which gives employees the option of receiving living quarters allowance during summer months, are outside the duty to bargain.(3)

II. Proposal 3 (4)

Compensation for Duties Required to Perform Outside the Workday: For duties required to [be] perform[ed] outside the workday which are not compensated as extra-curricular activities, unit employees shall be compensated at the following rate:

Weekdays:  Regular hourly rate 
Saturdays/Sundays:  1.25 times regular hourly rate 
Holidays:  2.00 times regular hourly rate 

III. Positions of the Parties

A. Agency

Relying on U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (HHS), the Agency argues that the subject matter of the proposal is "covered by" a preexisting contract provision. Statement of Position at 2. The Agency contends that where an existing contract provision concerns a proposal raised during midterm bargaining, there is no duty to bargain. Specifically regarding Proposal 3, the Agency argues that it is covered by Articles 27 and 46. Further, the Agency argues that the Union's current compensation argument is inconsistent with an earlier argument that it made before an arbitrator in another proceeding.

B. Union

The Union disputes the Agency's assertion that Proposal 3 involves a subject matter covered by the parties' agreement. According to the Union, Proposal 3 "would establish a formula to fairly compensate bargaining unit employees for duties performed outside the workday not otherwise compensated as extra-curricular activities." Petition at 2. The Union asserts that the parties' contract does not contain a provision that addresses the matter presented in the proposal.

The Union contends that the Agency's reliance on the "covered by" doctrine set forth in HHS is misplaced. According to the Union, Article 7B, Section (1)(a) of the parties' agreement contains a "reverse zipper clause" that enables the Union to raise "`matters not specifically addressed during the negotiations which led to [the] Agreement.'" Response at 4 (quoting Article 7B of the parties' contract).(5)

Finally, the Union contends that the proposal is similar to proposals previously found negotiable and, therefore, is within the duty to bargain. In support, the Union cites Department of Defense Dependents Schools v. FLRA, 911 F.2d 743 (D.C. Cir. 1990) (per curiam).

IV. Analysis and Conclusions

Under section 2424.1 of the Authority's Regulations, the Authority will consider a petition for review only where the parties are in dispute over whether a proposal is inconsistent with law, rule or regulation. The Agency makes no claim that the proposal is inconsistent with law, rule or regulation under section 7117(a)(1) of the Statute. Rather, it argues that the proposal is "covered by" the parties' agreement.(6)

We find that the petition for review as to Proposal 3 does not meet the conditions governing review and must be dismissed. See, e.g., Professional Airways Systems Specialist, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 53 FLRA 1246, 1248-49 (1998) (agency did not allege that amended proposal was inconsistent with law, rule or regulation); National Federation of Federal Employees, Local 2079 and U.S. Department of Agriculture, Forest Service, Umpqua National Forest, Roseburg, Oregon, 49 FLRA 396, 396-97 (1994) (agency claimed only that union waived its right to bargain). The dismissal is without prejudice to the Union's right to file an appeal if the conditions governing review are met.(7)

V. Proposal 5

Environmental Differential Pay: Bargaining unit employees assigned to the Pacific (Japan, Okinawa, and Korea) shall receive a 15% Environmental Differential Pay [EDP] to compensate for exposure to hazardous conditions.

VI. Positions of the Parties

A. Union

The Union argues that Proposal 5 is consistent with EDP provisions contained in 5 C.F.R. Part 532, Subpart E, App. A, Part II, 4 or 5 (high and low degree exposure to poison).(8) The Union asserts that EDP is negotiable, citing National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414, 424 (1991) (VA) in support. According to the Union: (1) the proposal would "establish a standard to determine the amount of compensation bargaining unit employees are entitled to receive from the [Agency] for exposure to hazardous conditions while assigned to the Pacific"; (2) unit employees located in the Pacific are continuously exposed to poisons; and (3) the Department of State Standard Regulations (DSSRs) do not adequately address exposure to hazardous conditions. Petition at 2.

B. Agency

The Agency contends that the proposed environmental differential does not satisfy any of the categories of payment for exposure to hazardous conditions. The Agency notes that 5 C.F.R. § 532.511 lists the percentage of environmental differential pay prescribed for exposure to hazardous conditions. Because the percentage stated in the proposal is inconsistent with the percentage prescribed in 5 C.F.R. § 532.511, the Agency argues that the proposal is outside the duty to bargain.

The Agency argues that it is prohibited from paying the proposed differential. According to the Agency, the unit employees involved here are authorized to receive differentials pursuant to 5 U.S.C. § 5925. The Agency contends that DSSR 512 implements 5 U.S.C. § 5925, which provides additional compensation for service in foreign areas where environmental conditions differ from those in the U.S. The Agency asserts that a regulation governing the payment of EDP, 5 C.F.R. § 532.511(b)(4), prohibits the payment of more than one environmental differential, and since the Agency already provides one environmental differential, it is prohibited from providing another.

The Agency also asserts that another agency, the Department of State (State), "has sole authority to grant a differential for working conditions of employees stationed in overseas locations[,]" and that the Agency is therefore precluded from providing the proposed differential. Statement of Position at 7.

VII. Analysis and Conclusions

A. Meaning of the Proposal

On its face, Proposal 5 requires the Agency to pay unit employees in the Pacific a 15 per cent Environmental Pay Differential for exposure to hazardous conditions.

B. The Proposal Is Not Within The Duty to Bargain Because It Is Contrary to a Government-wide Regulation, 5 C.F.R. Part 532, Subpart E, App. A, Part II, 4 and 5

The Union states that Proposal 5 seeks "Environmental Differential Pay" that is "consistent with [Office of Personnel Management's (OPM's)] categories as provided under 5 U.S.C. [§] 5343(c)(4)." Response at 8. The Union relies on Authority precedent holding that parties may negotiate "specific situations for which an environmental differential is payable under the categories in" OPM regulations. VA, 43 FLRA at 425.

Proposal 5 does not, however, fall within this precedent, because it does not seek a differential payable under the categories in OPM's regulations. The categories of the regulations that the Union points to--"Poisons (toxic chemicals)--high degree hazard" and "Poisons (toxic chemicals)--low degree hazard"--provide for specific differentials of 8 and 4 per cent, respectively. 5 C.F.R. § 532.511, Subpart E, Part II, 4 and 5. The 15 per cent differential proposed by the Union is inconsistent with these Government-wide regulations, and Proposal 5 is, therefore, not within the duty to bargain.(9)

VIII. Proposal 6

Unit members receiving LQA will have the option of receiving advance LQA during summer recess.

IX. Positions of the Parties

A. Union

According to the Union, Proposal 6 "establishes an option for bargaining unit employees to receive advance living quarters allowance [LQA] during summer recess, prior to the start of the next school year." Petition at 3. The Union contends that it is not "attempting to alter any part of [the] LQA [requirement], except the timing procedures in regarding disbursement during the summer months." Response at 9. Citing Department of Veterans Affairs v. FLRA, 33 F.3d 1391 (D.C. Cir. 1994), the Union asserts that the proposal does not interfere with any management right but rather constitutes a negotiable procedure.(10)

B. Agency

The Agency first contends that, for the reasons expressed with respect to Proposal 5, Proposal 6 is outside the duty to bargain because State has "sole authority" to render decisions concerning overseas allowances. Statement of Position at 9. According to the Agency, it has no authority to vary from the DSSRs' requirements on granting allowances.

Second, the Agency contends that Section 113.3 of the DSSRs only authorizes advance payment of LQA in specific instances. The Agency asserts that the times specified in this section are the "only times that LQA may be advanced." Id. at 10. The Agency contends that there is no authority under Section 113.3 to advance LQA during the summer recess.

X. Analysis and Conclusions

A. Meaning of the Proposal

Proposal 6, on its face, grants unit employees receiving LQA the option of receiving advance LQA during the summer recess.

B. Proposal 6 Is Contrary to a Government-Wide Regulation, DSSR 113.3

The Authority has previously found that the DSSRs constitute Government-wide regulations within the meaning of 5 U.S.C. §7117. See U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 428 (1991). DSSR 113.3 permits advance LQA in certain circumstances only. Those circumstances are: (1) where local custom necessitates advance payment and where an individual lessor requires the customary advance payment, and (2) at posts that require excessive rental expenses. Thus, the regulation states an express standard governing the Agency's advancement of LQA to unit employees.

Proposal 6 requires advance LQA in a circumstance where it is not permitted under DSSR 113.3 by requiring the payment of advance LQA during the summer recess. The Authority has previously found that a proposal seeking to extend the option of receiving, among other things, a living quarters allowance during the summer recess was outside the duty to bargain because it was inconsistent with the DSSR governing LQA. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492, 498-99 (1987). As Proposal 6 expands the circumstances under which advance LQA is permitted, it is inconsistent with DSSR 113.3 and not within the duty to bargain. See id.; Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 649 (1997) (where a regulation states an express standard governing the exercise of an agency's authority, and the proposal expands that regulatory standard, the proposal is inconsistent with the regulation).

Because the proposal is inconsistent with a Government-wide regulation, the Union's assertion that the proposal is a procedure under section 7106(b)(2) is not applicable. See National Federation of Federal Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA 829, 832 n.4 (1985). It is also not necessary to consider the Agency's argument that the LQA is within the sole authority of State.

XI. Order

The Union's petition for review is dismissed as to Proposal 3, without prejudice, and as to Proposals 5 and 6.


APPENDIX

1. Article 7B, Section (1)(a) states:

Proposals appropriate for negotiations at the national level concern conditions of employment affecting unit employees which fall within the scope of bargaining and which deal with matters not specifically addressed during the negotiations which lead to this Agreement.

2. 5 C.F.R. Part 532(e)(II)(4) and (5) states in pertinent part:

4. 5 percent poisons (toxic chemicals)--high degree hazard. Working with or in close proximity to poisons (toxic chemicals), other than tear gas or similar irritants, which involves potential serious and/or loss of life including exposure of an unusual degree to toxic chemicals, dust, or fumes of equal toxicity generated in work situations by processes required to perform work assignment wherein protective devices and/or safety measures have been developed but have not practically eliminated the potential for such personal injury.

. . . .

5. 4 percent Poisons (toxic chemicals)--low [degree] hazard. a. Working with or in close proximity to poisons (toxic chemicals other than tear gas or similar irritating substances) in situations for which the nature of the work does not require the individuals to be in as direct contact with, or exposure to the more toxic agents as in the case with the work described under high hazard for this class of hazardous agents.

b. Working with or in close proximity to poisons (toxic chemicals other than tear gas or similar irritating substances) in situations for which the nature of the work does not require the individuals to be in as direct contact with, or exposure to, the more toxic agents as in the case with the work described under high hazard for this class of hazardous agents and wherein protective devices and/or safety measures have not practically eliminated the potential for personal injury[.]

3. DSSR 113.3 states:

a. ADVANCE payment of living quarters allowances may be made in localities where local custom necessitates such ADVANCE payments for periods of at least 3 months and where the individual lessor requires the customary ADVANCE payment of rent.

b. Additionally, at posts which require initial excessive rental expenses[,] . . . employees may receive an ADVANCE of the living quarters allowance not to exceed 3 months of the annual rate of payment.

c. Refundable security deposits cannot be included in the ADVANCE, Agent's fees cannot be included in the ADVANCE unless there exist the specific conditions cited in Sections 131.2 and 131.3.




FOOTNOTES:
 

1. During the pendency of this case, the Agency changed its name to Department of Defense Education Activity from U.S. Department of Defense Office of Dependents Schools.

2. In its response, the Union withdrew a fourth proposal regarding household goods weight restrictions. This proposal will not be considered.

3. Preliminarily, the Agency contends that the petition for review (petition) should be dismissed because it does not, as required by section 2424.4(a) of the Authority's Regulations, provide "an explicit statement of the meaning attributed to the proposal" or describe the circumstances regarding each proposal. We find that the petition complies with section 2424.4(a) because the Union states the express language of the proposals, explains each proposal and acronyms, and provides a description of the circumstances so that the Authority may understand the context in which the proposals apply. Accordingly, the Agency's request is denied. See, e.g., International Federation of Professional and Technical Engineers and U.S. Department of the Interior, Bureau of Reclamation, Denver Office, Denver, Colorado, 43 FLRA 998, 999 (1992).

4. The proposals are numbered according to the Union's numbering scheme.

5. The text of Article 7B, Section (1)(a) is set forth in the Appendix to this decision.

6. The Agency also contends that the Union's argument in support of Proposal 3 is inconsistent with an argument the Union made regarding compensation in a separate arbitration proceeding. However, we do not reach this contention, because the contention does not address the negotiability of Proposal 3.

7. Similarly, we do not address the Agency's "covered by" arguments with respect to Proposals 5 and 6, infra.

8. The text of this and other cited materials is set forth in the Appendix to this decision.

9. As Proposal 5 clearly refers to EDP, we make no finding whether a proposal seeking another type of differential is within the duty to bargain. Further, based on our finding that Proposal 5 is not within the duty to bargain because it is contrary to a Government-wide regulation, it is not necessary to address the Agency's argument regarding whether State has sole authority to provide such differentials.

10. Although the Union states that the