National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers (Union) and United States Department of the Navy, Naval Undersea Warfare Center Division Newport, Newport, Rhode Island (Agency)

 
65 FLRA No. 115     
 
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-144
FEDERAL UNION OF SCIENTISTS
AND ENGINEERS
(Union)
 
and
 
UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL UNDERSEA WARFARE
CENTER DIVISION NEWPORT
NEWPORT, RHODE ISLAND
(Agency)
 
0-NG-3015
 
_____
 
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
 
February 23, 2011
 
_____
 
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
 
I.     Statement of the Case
 
        This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute). The appeal involves the negotiability of one proposal. The proposal addresses the eligibility of Union officials to perform representational duties while teleworking on official time from their homes. Record of Post-Petition Conference at 2. The Agency filed a statement of position (SOP). The Union filed a response (Response) and a supplemental submission. The Agency did not file a reply.
 
        For the reasons set forth below, we find that the proposal is negotiable. 
 
II.    Preliminary Issue
 
        The Agency asks that the Authority dismiss the petition for review (petition) because the Union (1) mailed it to the wrong address and therefore failed to properly serve the petition on the Agency head and (2) failed to serve the Agency head’s designee. SOP at 1-2. The Agency claims that the Union’s service of the petition is thus in violation of 5 C.F.R. § 2424.2(g).[1] Id. at 2. The Agency claims that, as a result of the Union’s defective service of the petition, it was not timely notified that the Union had filed a petition, consequently reducing the time that the Agency had to respond. Id. In the Agency’s view, it was, therefore, “severely disadvantaged[.]” Id.   
 
        The Agency does not sufficiently support its request that the Authority dismiss the petition. First, even if the Union failed to properly serve the Agency head by mailing the petition to the wrong address, failure to serve an agency head where no prejudice is shown does not warrant the petition’s dismissal. See AFGE, Local 3342, 36 FLRA 367, 374 (1990) (petition not dismissed based on union’s failure to serve petition on agency head where agency timely filed SOP and did not show prejudice). Here, the Agency was able to timely file its SOP and has not otherwise shown that it was prejudiced by the defective service. Second, with regard to the Agency’s argument that the Union “chose to flaunt the Authority’s service regulation by ignoring its obligation to properly serve the Agency [h]ead’s designee[,]” see SOP at 2, this regulation does not require that service be made on the Agency head’s designee. See 5 C.F.R. § 2424.2(g). We therefore reject the Agency’s request to dismiss the petition.[2]
 
III. Background
 
        According to the Union, the proposal is intended to clarify the Agency’s telework policy. The telework policy establishes policies and procedures for employees wishing to work from home. Response at 11. The Union contends that in 2004 and 2005, Agency policy permitted Union officials to telework. Petition at 5. However, now, the Union claims, Union officials are not allowed to perform representational duties while teleworking. Response at 11. Accordingly, the Union presented the Agency with the proposal set forth below, addressing Union officials’ eligibility to perform representational duties while teleworking. 
 
IV. Proposal
 
Up to 5 full-time and/or part-time union officials are eligible for telework to perform union-related duties on official time at their home worksite, not to exceed 20 hours per week per person. This will not add to the overall amount of official time used by the union to perform representational duties.
 
Petition at 3.
 
V.    Positions of the Parties
 
        A.    Agency
 
        The Agency challenges the negotiability of the proposal on three bases. First, the Agency interprets the proposal as requiring it to allow Union officials to telework. On this basis, the Agency argues that the proposal is non-negotiable as affecting management’s rights to assign and direct employees and determine its organization under § 7106(a) of the Statute. SOPat 8, 10, 13. The Agency also argues that the proposal violates 5 U.S.C. § 7131 because it would require management to permit Union officials to telework in contravention of the telework law. In the Agency’s view, requiring the Agency to allow Union officials to telework while performing representational duties on official time essentially grants the Union officials additional “official time” beyond that which was intended by § 7131.[3] Id. at 14-15. 
 
        Second, the Agency interprets the proposal as requiring it to allow Union officials to work exclusively on representational duties while teleworking. On this basis, the Agency alleges, the proposal is non-negotiable as affecting management’s rights to assign work, see id. at 6, and determine its budget under § 7106(a) the Statute. Id. at 13-14. For this same reason, the Agency also argues that the proposal is non-negotiable because it concerns representational duties and, therefore, does not concern “conditions of employment” as that term is defined in § 7103(a)(14) of the Statute. Id. at 11-12. In addition, the Agency claims that the proposal violates the Antideficiency Act by requiring it to allow Union officials to perform representational duties while teleworking. According to the Agency, this will require the Agency to expend appropriated funds for the Union’s activities that have not been expressly provided for this purpose by legislative appropriations. Id. at 16. 
 
        Third, the Agency argues that by requiring it to allow Union officials to perform representational duties while teleworking, the proposal violates § 359 of Public Law 106-346 (the telework law). According to the Agency, in American Federation of Government Employees, National Council of HUD Locals 222, AFL-CIO, 60 FLRA 311 (2004) (HUD), the Authority held that, under the telework law, teleworking is only available to employees performing “official duties” and that representational duties do not qualify as “officially assigned duties” within the meaning of the law. Id. at 18(citing HUD, 60 FLRA at 313). The Agency claims that subsequent Authority case law holding that the telework law does not prohibit parties from negotiating an agreement permitting union officials to perform representational duties on telework “has no precedential value” in this case. Id. at 19-20. 
 
        B.    Union
 
        The Union argues that a number of the Agency’s contentions are based on its misinterpretation of the proposal. First, the Union argues that the Agency’s contentions are based on the false premise that the proposal requires the Agency to allow Union officials to telework. Response at 13-14. According to the Union, this interpretation of the proposal is incorrect. Rather, the Union claims, under the proposal, all teleworkers, including Union officials, would need to be approved for telework by their supervisors. Therefore, the Union asks that the Authority reject the Agency’s claims of non-negotiability based on this premise. Thus, the Union claims that the Authority should reject the Agency’s arguments that the proposal affects management’s rights to assign and direct employees and that it violates § 7131 of the Statute. Id. at 14, 17. 
 
        Second, the Union contends that a number of the Agency’s arguments are based on the false premise that the proposal would require the Agency to allow Union officials to work exclusively on representational duties while teleworking. According to the Union, this interpretation of the proposal is incorrect. Rather, the Union claims, Union officials’ duties while on telework would not be limited to representational duties, but would also include duties assigned by the Agency. Id. at 15. Therefore, the Union asks that the Authority reject the Agency’s claims of non-negotiability based on this premise - namely that the proposal affects management’s rights to assign work, see id. at14, determine its organization, and determine its budget under the Statute, id. at 17-20. Similarly, the Union argues that the Authority should reject the Agency’s argument that the proposal is non-negotiable because it concerns only Union officials’ representational duties, which do not constitute a condition of employment under the Statute. Id. at 18. In this same vein, the Union asks that the Authority reject the Agency’s argument that the proposal violates the Antideficiency Act. Id. at 20. 
 
        Third, the Union contends that the proposal does not violate the telework law. The Union relies on Authority precedent holding that the telework law does not prohibit union officials from performing representational duties while teleworking on official time. Id. at 22.
 
VI. Meaning of the Proposal
 
        The parties dispute what the proposal requires with regard to teleworking Union officials. First, the parties dispute whether the proposal requires management to allow Union officials to telework. Second, the parties dispute whether the proposal requires management to allow Union officials to work exclusively on representational duties while teleworking. 
 
        When parties dispute the meaning of a proposal, the Authority will examine the wording of the proposal as well as the union’s statement of intent. If the union’s explanation is consistent with the proposal’s plain wording, then the Authority adopts that explanation for the purpose of construing what the proposal means. Prof’l Airways Sys. Specialists, 64 FLRA 474, 477 (2010) (citing AFGE, Local 1900, 51 FLRA 133, 138-39 (1995)).  If the union’s statement is not consistent with the wording of the proposal, however, the Authority will not adopt it for the purpose of determining whether the proposal is within the duty to bargain. Id. (citing IFPTE, Local 3, 51 FLRA 451, 459 (1995)). 
 
        First, the proposal’s plain wording provides that Union officials are “eligible” for telework. Petition at 3. For an employee to be “eligible” for telework means that an employee is qualified to be chosen for telework.[4] It does not mean that there is a requirement that an employee be assigned to telework. Response at 13. Accordingly, under the proposal’s plain wording, anywhere from 0 to 5 Union officials are eligible to be chosen for telework. Further, the Union expressly asserts that all teleworkers, including Union officials, would need to be approved for telework by their supervisors. Id. As the Union’s statement of intent is consistent with the plain wording of the proposal, we adopt the Union’s interpretation of this portion of the proposal. See AFGE, Local 12, 60 FLRA 533, 537 (2004).
 
        Second, the proposal’s plain wording provides that teleworking Union officials would perform representational duties “not to exceed 20 hours per week per person.” Petition at 3. The “not to exceed” language provides a maximum number of hours that the Union officials must be allowed to perform representational duties while teleworking. The proposal does not provide a minimum amount of time that Union officials can spend performing representational duties while teleworking. Further, the Union expressly asserts that the proposal does not preclude the Agency from assigning the Agency’s work to the teleworking Union officials, as needed. See Response at 15. As the Union’s statement of intent with regard to this portion of the proposal is consistent with the proposal’s plain wording, we adopt the Union’s interpretation of this portion of the proposal.
 
VII. Analysis and Conclusions
 
        For the reasons set forth below, we find that the proposal is negotiable. 
 
        A.    The proposal does not affect management rights.
 
        First, the Agency claims that the proposal would affect certain management rights because it would require management to allow Union officials to telework. SOP at 6-11. As discussed above, we find that the proposal does not require the Agency to allow Union officials to telework. Therefore, as the Agency premises its arguments that the proposal is non-negotiable as affecting its rights to assign and direct employees and its right to determine its organization on a misinterpretation of the proposal, we reject these management rights arguments.
 
        Second, the Agency claims that the proposal would affect certain management rights because it would require management to allow Union officials to work exclusively on representational duties while teleworking. Id. at 6-11. As discussed above, we find that the proposal does not require the Agency to allow Union officials to work exclusively on representational duties while teleworking. Therefore, as the Agency premises its arguments that the proposal is non-negotiable as affecting its rights to assign work and determine its budget on a misinterpretation of the proposal, we reject these management rights arguments.
 
        B.    The proposal does not violate 5 U.S.C. § 7131.
 
        The Agency claims that the proposal violates 5 U.S.C. § 7131 because it would require management to place Union officials on telework in contravention of the telework law. See 5 U.S.C. § 7131.[5] In this regard, the Agency argues that by mandating that the Agency allow Union officials to telework while performing representational duties on official time, the proposal essentially grants the Union officials additional “official time” beyond that which was intended by § 7131. SOPat 15. Consequently, the Agency claims the proposal is non-negotiable. As discussed above, we find that the proposal does not require the Agency to allow Union officials to telework. Therefore, as the Agency premises its argument regarding § 7131 on a misinterpretation of the proposal, we reject the Agency’s claim. 
 
        C.    The proposal concerns a condition of employment.
 
        The Agency claims that the proposal is non-negotiable because it concerns representational duties and, therefore, does not concern “conditions of employment” as that term is defined in § 7103(a)(14) of the Statute. Id. at 11-12. Section 7103(a)(14) defines “conditions of employment” as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions . . . .” The proposal pertains to official time, which “shall be considered hours of work.” AFGE, Local 1770, 64 FLRA 953, 958 (2010) (citing ACT, Old Hickory Chapter, 55 FLRA 811, 813 (1999) (quoting 5 C.F.R. § 551.424(b)) (rejecting claim that because a provision pertained to representational duties, the provision did not concern conditions of employment)). Therefore, we reject this argument.
 
        D.    The proposal does not violate the Antideficiency Act.
 
        Citing 31 U.S.C. § 1341, the Agency claims that the proposal violates the Antideficiency Act because mandating that the Agency allow Union officials to perform representational duties while on telework will require it to spend appropriated funds on duties that are not the Agency’s work. The Antideficiency Act precludes an agency from expending funds: (1) in excess of those appropriated for the fiscal year in which the expenditure is made; and (2) prior to their appropriation. See 31 U.S.C. § 1341(a)(1)(A) and (B); see also AFGE, Local 1770, 64 FLRA at 957; Ass’n of Civilian Technicians, Evergreen & Rainier Chapters, 57 FLRA 475, 483 (2001). The Agency, which did not claim that the proposal would require it to expend funds in excess of its appropriation for a given fiscal year or to expend funds prior to their appropriation, has failed to establish that the proposal is contrary to the Antideficiency Act. Therefore, we reject this argument.
 
        E.    The proposal does not violate the telework law.