Hawaii Federal Employees Metal Trades Council (Union) and United States Department of Defense, Pearl Harbor Naval Shipyard, Intermediate Maintenance Facility, Pearl Harbor, Hawaii (Agency)

[ v57 p450 ]

57 FLRA No. 82

HAWAII FEDERAL EMPLOYEES
METAL TRADES COUNCIL
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
PEARL HARBOR NAVAL SHIPYARD
INTERMEDIATE MAINTENANCE FACILITY
PEARL HARBOR, HAWAII
(Agency)

0-NG-2573

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

September 7, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, 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 one proposal. For the reasons that follow, we find that the proposal is contrary to law and dismiss the petition for review.

II.     Background

      The Agency occasionally drydocks nuclear submarines through a five-day process called a buoyancy assist modules system (BAMS) evolution. On the fourth day of a BAMS evolution, the submarine is maneuvered into a docking area, where the Agency's pumpwell employees lower it into a brace by pumping out seawater. Based on the tide schedule, the Agency projects when it will be possible to perform the docking maneuver, and adjusts its pumpwell employees' schedules accordingly. As a result, the pumpwell employees' usual start time of 6:30 a.m. is sometimes delayed on the fourth day of a BAMS evolution.

      Pursuant to a settlement agreement in resolution of an unfair labor practice charge filed by the Union, the parties bargained over procedures regarding BAMS evolutions. During negotiations, the Agency agreed to implement all of the Union's proposals except a proposal to limit the change in its pumpwell employees' start time on the fourth day of BAMS evolutions, which the Agency asserted was nonnegotiable. The Union then filed an unfair labor practice charge alleging that the Agency's failure to bargain violated the parties' settlement agreement. The Union subsequently withdrew the charge and filed the present negotiability appeal.

III.     The Proposal

On the fourth (4th) day of a BAMS evolution, if the projected end time for that day is prior to 8:30 p.m., then the Agency will not adjust pumpwell employees' scheduled shift start time to begin after 6:30 a.m. If on the fourth day the projected end time for that day is after 8:30 p.m., then the Agency will schedule pumpwell employees' shifts to start no later than fourteen (14) hours prior to the projected end time.

IV.     Positions of the Parties

A.     Agency

      The Agency objects to the "revision of the substance" of the proposal during the post-petition conference, which it claims denied "the parties the opportunity to fully explore the proposal[] at the bargaining table" and "is not what . . . the Authority's regulations . . . provide for." Statement of Position at 1-2. In this regard, the Agency contends that the Union "never articulated during negotiations" that the proposal requires the Agency to schedule its pumpwell employees to work fourteen-hour shifts on the fourth day of a BAMS evolution only when the projected end time of the shift is after 8:30 p.m. Id. at 2.

      The Agency argues that the proposal is contrary to 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(a)(1). [n1] In this regard, the Agency contends that the proposal would restrict its authority under those provisions to make changes to its employees' tours of duty when the Agency: (1) provides seven days notice; (2) otherwise would be handicapped in carrying out its mission; or (3) otherwise would be subject to substantially increased costs. The [ v57 p452 ] Agency also argues that the proposal is contrary to 5 C.F.R. § 610.121(b)(1)-(2). [n2] In this regard, the Agency contends that the proposal interferes with its ability to schedule the start time of its pumpwell crew to correspond with actual work requirements. Moreover, the Agency contends that, contrary to 5 C.F.R. § 610.121, the proposal restricts its ability to change work schedules to avoid the payment of overtime.

      The Agency argues that the proposal interferes with its rights under § 7106(a) of the Statute to assign work and to determine its mission and internal security practices. In addition, the Agency contends that, even if the proposal is negotiable, it does not have an obligation to bargain over it because negotiations concerning BAMS evolutions have "concluded," and because the Union did not request an allegation of non-negotiability until six months after the implementation of other proposals related to BAMS evolutions. Statement of Position at 3.

B.     Union

      The Union argues that the Agency's statement of position was untimely filed, and should not be considered by the Authority, because the envelope in which it was filed bore an untimely metered postmark. In addition, the Union alleges that the postmark dates on the certified mail receipts produced by the Agency to prove timely filing of its statement of position were altered.

      The Union argues that the proposal limits the Agency's authority to determine the start time of its pumpwell employees, but does not prevent the Agency from "assessing work," deciding when work is done, or determining which or how many workers are needed. Union Response at 3. The Union also argues that the proposal does not attempt to guarantee overtime, but prevents the Agency from adjusting its pumpwell employees start time to avoid paying overtime. Petition for Review at 5.

      In addition, the Union contends that the proposal "prevents management from undermining a previous Memorandum of Agreement" between the parties that requires the Agency to grant administrative leave to employees who work more than sixteen hours in a twenty four-hour period. Petition for Review at 5. [n3] See also Union Response at 1-2.

V.     Preliminary Matters

A.     The Modification to the Proposal at the Post-Petition Conference Was Not Contrary to the Authority's Regulations

      The post-petition conference in a negotiability proceeding is designed to allow the parties to "discuss, clarify and resolve . . . [t]he meaning of the proposal." 5 C.F.R. § 2424.23(b). The Authority has interpreted the regulations to mean that, "[w]here appropriate, modification of the wording of a proposal or provision to conform to the intended or agreed-upon meaning of the proposal or provision will be encouraged." Negotiability Proceedings, 63 Fed. Reg. 66,405, 66,408 (Dec. 2, 1998).

      The proposal was not substantively altered at the post-petition conference, as contended by the Agency, but clarified. In this regard, the proposal submitted by the Union in its petition for review required the Agency to schedule employees to begin work at their regular start time on the fourth day of a BAMS evolution except when the shift would "exce[ed] . . . 16 hours . . . using 14 hours as a base to give a two-hour cushion." Petition for Review at 4. The proposal was modified to clarify that the Agency's authority to delay its employees start time under the proposal begins when the shift would otherwise exceed fourteen, and not sixteen, hours after the regular start time of 6:30 a.m., and that fourteen hours after 6:30 a.m. is 8:30 p.m. In addition, contrary to the Agency's assertion, the modification does not affect the parties' ability to bargain because the Agency may bargain with the Union over the modified proposal at any time. We note that, notwithstanding the modification, the Agency continued to claim that the proposal is outside the duty to bargain, and has not demonstrated that it was in any way prejudiced by the modification.

      In sum, the modification to the proposal was consistent with 5 C.F.R. § 2424.23(b) and does not require us to disregard the Union's petition for review. [ v57 p452 ]

B.     The Agency's Statement of Position Was Timely Filed

      If filed by mail, the date of service of an agency's statement of position is the date the statement of position is deposited in the United States mail. 5 C.F.R. § 2429.27(d). It is undisputed that the deadline for the Agency to file its statement of position was November 22, 2000. The Agency's statement of position was received by the Authority in an envelope bearing a metered postmark of November 24, 2000. Pursuant to an order to show cause why the Authority should consider the apparently untimely statement of position, the Agency produced two certified mail receipts addressed to the Authority and the Union bearing earlier, timely postmarks, along with an affidavit of an Agency employee attesting to mailing the statement of position to the Authority on the earlier date.

      An affidavit, standing alone, does not suffice to establish a date of service. NTEU, 42 FLRA 160, 161 (1991) (citation omitted) (NTEU). However, an affidavit coupled with additional evidence may establish the date of service. NAGE, Local R14-52, 55 FLRA 648, 648-49 (1999) (citation omitted). Based on the postmarked certified mail receipts, together with the Agency's affidavit attesting to mailing the statement of position on the date on the certified mail receipts, we will consider the Agency's statement of position.

      The Union alleges that "a fraud is being perpetrated" in order to establish the timeliness of the Agency's statement of position. Union Supplemental Submission (Feb. 13, 2001). In this regard, the Union claims that the postmarks on the two certified mail receipts were altered, which it claims is evidenced by the slightly different alignments of "the integer 2 in the one's column" of the postmarks. Id. However, the Union has not provided any evidence that the postal service used the same stamp to apply each postmark, or that the integers on a date stamp align identically each time the stamp is used. Thus, the Union has not demonstrated that the date on either certified mail receipt was altered.

VI.     Meaning of the Proposal

      The proposal would require the Agency to schedule its employees to begin work no later than 6:30 a.m. on the fourth day of the five-day process of a BAMS evolution unless the projected workday would then exceed fourteen hours (i.e., end after 8:30 p.m.). If the projected workday would exceed fourteen hours, then the proposal would require the Agency to schedule the employees' start time at least fourteen hours before the projected finish time.

VII.     Analysis and Conclusions

      A bargaining proposal that restricts an agency's authority to change its employees' work schedules is nonnegotiable if it does not contain an exception for situations when the agency determines, pursuant to 5 C.F.R. § 610.121(a), that it would be "seriously handicapped in carrying out its functions or that costs would be substantially increased." See AFGE, Local 1815, 53 FLRA 606, 619-20 (1997) (provision nonnegotiable that permitted agency to change work schedules with less than seven days notice only when "there is an emergency that would hamper accomplishment of the mission" because it precluded changes when costs would be substantially increased); NAGE, Local R14-52, 44 FLRA 738, 744-45 (1992) (proposal nonnegotiable that, without exception, prohibited agency from scheduling employees to work holidays in order to avoid payment of overtime) (Local R14-52). Cf. AFGE, Local 3157, 44 FLRA 1570, 1577 (1992) (proposal requiring Monday through Friday work schedules under "normal circumstances" negotiable because it allowed agency to change schedules when agency determined that it would be seriously handicapped in carrying out its functions or when costs would be substantially increased).

      In this case, the proposal requires the Agency to schedule, without exception, its pumpwell employees on the fourth day of BAMS evolutions to either begin work at their normal start times or work fourteen hours. Thus, the proposal does not allow the Agency to change its employees' work schedules when it determines that it would be seriously handicapped in carrying out agency functions or that its costs would be substantially increased. As a result, the proposal is nonnegotiable as contrary to 5 C.F.R. § 610.121. [n4] See Local R14-52, 44 FLRA at 744-45.

VIII.     Order

      The petition for review is dismissed.



Footnote # 1 for 57 FLRA No. 82

   5 C.F.R. § 610.121(a) implements and, as relevant here, restates 5 U.S.C. § 6101(a)(3)(A). 5 C.F.R. § 610.121(a) states, 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.

Footnote # 2 for 57 FLRA No. 82

   5 C.F.R. § 610.121(b) states, in pertinent part:

(b)(1) . . . 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 administr