File 1: Authority's Decision in 58 FLRA No.
24
File 2: Opinion of Chairman Cabaniss and Opinion of Member Pope
[ v58 p135 ]
I write in concurrence to address a different consideration for why Provision 1 is outside of the Agency's duty to bargain because of the provision's conflict with the Agency's right to assign work under § 7106(a)(2)(B). I also write in dissent as to why I believe Provision 2 is outside of the Agency's duty to bargain because of the provision's conflict with the Agency's right to determine its internal security practices under § 7106(a)(1).
The most troubling aspect of Provision 1 is its impact on the Agency's ability to determine the timing of the work to be done by the military reservist employees and their co-workers, the timing of whose own work schedules will be affected by this provision as well, since the absence (or presence) of military reservists employees in the work site has an effect on the Agency's timing of when it has other employees show up for work, lest the Agency be confronted with too many employees on one shift for the work to be done at that time, and too few employees on the other work shift for the work to be done during that period.
The Authority has consistently found to be outside the duty to bargain those proposals/provisions that guarantee an employee the right to not be assigned work on a certain day. See, e.g., Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 644-45 (1988) (provision that guaranteed employees would not be worked over 13 days in a row found to directly interfere with right to assign work). More specifically, see AFGE, Local 85 and VAMC, Leavenworth, Kan., 32 FLRA 210, 215-16 (1988) (proposal that guaranteed reassigned employees the right to keep week ends as their days off violated the right to assign work). Accordingly, consistent with this and other relevant precedent, I would find Provision 1 to be outside of the duty to bargain because of its interference with the Agency's right to assign work.
Regarding Provision 2, I would find it to be outside of the duty to bargain as the provision is not "sufficiently tailored" to constitute an appropriate arrangement. While the Union and the majority identify relief breaks and obtaining a drink of water as falling within the scope of the provision (and the reason why the provision is sufficiently tailored), I find nothing in either the terms of the provision, the Union's submissions, or the majority's decision that limits the application of the provision to just those two circumstances, hence there is nothing to prevent an arbitrator from later interpreting the provision in a different manner. As for that meaning, under the terms of the provision an employee need have no reason at all for obtaining a break. Additionally, I note that the provision obligates the Agency to grant additional requests (that's plural, not just an additional "request") if it is "within reason" to do so. Thus, the provision envisions the likelihood that additional requests have to be granted, and I again note that the purpose for which these requests can be granted is in no way constrained. Therefore, I would find that the provision is not sufficiently tailored for it to be considered as within the duty to bargain.
Finally, given the reasons for which such breaks can be obtained and that multiple breaks are envisioned as a distinct possibility, the benefit to employees, while substantial, is too broadly provided such that it would excessively interfere with the Agency's internal security determination as to whether or not to stop the investigative interview. Therefore, for both reasons, I would find Provision 2 to be outside the duty to bargain.
[ v58 p136 ]
I do not agree that Provision 1 is contrary to law. In my view, the provision falls well within the Authority's long-established rule that contract provisions obligating agencies to grant employee requests for shift assignments do not affect management's right to assign work, provided the employees are equally qualified. See NAGE, Local R1-109, 43 FLRA 1140, 1146 (1992) (NAGE); Laborers' Int'l Union of North America, AFL-CIO-CLC, Local 1267, 14 FLRA 686, 687 (1984). NAGE involved a proposal similar to the provision in this case, and the conclusion that the proposal in NAGE was negotiable requires a conclusion that the provision here is not contrary to law.
In reaching its contrary conclusion, the majority relies on a serious mischaracterization of the provision. In particular, the majority states that the provision "would require the Agency to assign qualified employees who are not scheduled for weekend duty . . . to enable other employees to attend weekend military drills without having to use leave . . . . without regard to whether qualified employees are available to perform weekend work." Majority Opinion at 5. This is wrong for several reasons.
First, while the provision would require the Agency to attempt to change the schedules of employees assigned to military drills, nothing in the provision would require the Agency to attempt to make changes in the schedules of other employees. The majority does not explain its contrary conclusion, which has no basis in the wording of the provision itself.
Second, insofar as the Agency would be either precluded from assigning work to employees on days they are required to attend military drills or required to assign other employees to perform that work instead, those requirements emanate from law -- 38 U.S.C. § 2024(d) -- not the provision. In this regard, as the majority recognizes, § 2024(d) requires the Agency to grant leaves of absence to employees to attend military drills. Majority Opinion at 3 n.2. As such, the Agency is unable to assign work to those employees on drill days and, in turn, necessarily is faced with the prospect of finding other qualified employees to perform that work. It is both wrong and unfair to attribute these effects to the provision because they would exist whether or not the provision is in place.
Third, the provision plainly does not apply without regard to whether there are qualified employees available. Indeed, as the majority itself states, provision 1 "does not impose a requirement that employee requests be granted in all instances" and does not restrict the Agency "in any manner in determining the qualifications and skills necessary to perform work or from determining whether particular employees meet those qualifications." Majority Opinion at 4-5. That is, the provision permits the Agency to refuse to make requested schedule changes where no qualified employees are available. Thus, the majority reaches a conclusion that is at odds with its own findings. It also is at odds with the Authority's decision in NAGE, which, given the majority's findings regarding the Agency's ability under provision 1 to make qualifications determinations, is directly on point.
Based on the foregoing, I would find that the Agency has not established that provision 1 is contrary to law. [n*]
File 1: Authority's Decision in 58 FLRA No.
24
File 2: Opinion of Chairman Cabaniss and Opinion of Member Pope
The Agency also asserts that Provision 1 was properly disapproved because it is "covered by" the parties' master agreement. Statement of Position at 3. However, the "covered by" doctrine relates to the obligation to bargain under the Statute -- not whether contract provisions are contrary to law. See 5 C.F.R. § 2424.2(a) ("bargaining obligation disputes," including disputes whether a proposal concerns a matter that is covered by an agreement, defined as involving whether "the parties are obligated to bargain over a proposal"), 5 C.F.R. § 2424.2(c) ("negotiability dispute[s]" defined as including disputes over an "agency head's disapproval of a provision as contrary to law"). In this case, the Agency bargained over and agreed to Provision 1 and, even if the provision concerned matters covered by the parties' agreement, that would not preclude the Agency from entering into the agreement. Accordingly, the Agency's claim is not cognizable in this proceeding.