09:0729(89)NG - International Association of Firefighters Local F-37 and Naval Training Center, Great Lakes, IL -- 1982 FLRAdec NG

 9 FLRA No. 89
 
 INTERNATIONAL ASSOCIATION OF FIRE
 FIGHTERS, AFL-CIO, LOCAL F-37
 Union
 
 and
 
 NAVAL TRAINING CENTER, GREAT
 LAKES, ILLINOIS
 Agency
 
                                            Case No. O-NG-460
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND PRESENTS THE ISSUE
 OF THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL.
 
                            UNION PROPOSAL /1/
 
    ADMINISTRATIVE LEAVE
 
    WHEN A NON-WORKDAY IS PROCLAIMED BY EXECUTIVE ORDER AND PERSONNEL
 DESIGNATED ESSENTIAL ARE
 
    REQUIRED TO REPORT FOR DUTY, AN ADMINISTRATIVE LEAVE DAY WILL BE
 GRANTED TO THE EMPLOYEE
 
    WITHIN . . . FOLLOWING THE NON-WORKDAY.  THE ASSIGNED LEAVE DAY WILL
 BE AT THE SUPERVISOR'S
 
    DISCRETION.  UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
 INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATION.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE BECAUSE IT CONCERNS A MATTER THAT IS EXCLUDED FROM THE
 DEFINITION OF "CONDITIONS OF EMPLOYMENT" UNDER SECTION 7103(A)(14) OF
 THE STATUTE.  /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL CONCERNS A MATTER WHICH IS
 "SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE" UNDER SECTION
 7103(A)(14)(C) AND, THEREFORE, IS EXCLUDED FROM "CONDITIONS OF
 EMPLOYMENT" WHICH ARE SUBJECT TO THE DUTY TO BARGAIN UNDER THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THE PROPOSAL AT ISSUE IN THE INSTANT CASE BE, AND IT HEREBY
 IS, DISMISSED.
 
    REASONS:  THE UNION'S PROPOSAL WOULD REQUIRE THAT IF THE PRESIDENT
 DECLARES A REGULARLY SCHEDULED WORKDAY TO BE A "NON-WORKDAY" (HOLIDAY),
 AN EMPLOYEE WHO MUST REPORT FOR DUTY ON SUCH A HOLIDAY WOULD BE GRANTED
 A DAY OF "ADMINISTRATIVE LEAVE," I.E., A DAY OFF WITH PAY NOT CHARGED TO
 LEAVE, IN ADDITION TO COMPENSATION TO WHICH THE EMPLOYEE WOULD OTHERWISE
 BE ENTITLED.
 
    BASED UPON THE RECORD, THE EMPLOYEE INVOLVED IN THIS CASE RECEIVED
 PREMIUM PAY COMPENSATION ON AN ANNUAL BASIS UNDER 5 U.S.C. 5545(C)(1).
 /3/ THAT SECTION APPLIES TO CERTAIN EMPLOYEES, SUCH AS THOSE INVOLVED
 HEREIN, WHO ARE REQUIRED TO REPORT FOR WORK ON HOLIDAYS WHICH FALL
 WITHIN THEIR REGULAR WORK SCHEDULES.  IN RECOGNITION THEREOF, SUCH
 EMPLOYEES RECEIVE PREMIUM PAY ON AN ANNUAL BASIS RATHER THAN BEING
 COMPENSATED FOR EACH HOLIDAY WORKED UNDER OTHER PROVISIONS OF TITLE 5.
 THAT IS, THE FACT OF THEIR BEING REQUIRED TO REPORT FOR WORK ON HOLIDAYS
 IS A FACTOR IN DETERMINING THEIR ENTITLEMENT TO ANNUAL PREMIUM PAY.  /4/
 THERE IS NO PROVISION OR AUTHORIZATION FOR ADDITIONAL COMPENSATION IN
 CONNECTION WITH THE REGULARLY SCHEDULED WEEKLY TOUR OF DUTY-- E.G., TIME
 OFF FOR WORK PERFORMED ON A HOLIDAY-- FOR EMPLOYEES WHO ALREADY ARE
 RECEIVING ANNUAL PREMIUM PAY PURSUANT TO SECTION 5545(C)(1).
 
    SECTION 7103(A)(14)(C) OF THE STATUTE, DEFINING "CONDITIONS OF
 EMPLOYMENT" WHICH ARE SUBJECT TO NEGOTIATION, EXPRESSLY EXCLUDES MATTERS
 "TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY FEDERAL
 STATUTE." INASMUCH AS COMPENSATION FOR WORK REQUIRED ON NON-WORKDAYS IS
 SPECIFICALLY PROVIDED FOR BY 5 U.S.C. 5545(C)(1) IN DETERMINING ANNUAL
 PREMIUM PAY FOR EMPLOYEES INVOLVED IN THIS CASE, THE UNION'S PROPOSAL
 CONCERNS MATTERS WHICH, UNDER SECTION 7103(A)(14)(C), ARE EXCLUDED FROM
 CONDITIONS OF EMPLOYMENT SUBJECT TO NEGOTIATION UNDER THE STATUTE.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL
 GRAIN INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE,
 FEDERAL GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 530 (1980),
 AFFIRMED SUB NOM. AFGE V. FLRA, 653 F.2D 669 (D.C. CIR. 1981).  SEE ALSO
 ASSOCIATION OF CIVILIAN TECHNICIANS, PENNSYLVANIA STATE COUNCIL AND THE
 ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS, COMMONWEALTH OF
 PENNSYLVANIA, 3 FLRA 50 (1980).  ISSUED, WASHINGTON, D.C., AUGUST 3,
 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ACCORDING TO THE UNION, THE BLANK SPACE IN ITS PROPOSAL WOULD
 DESIGNATE THE PERIOD OF TIME IN WHICH THE LEAVE DAY MUST BE TAKEN, AND
 WOULD BE PART OF THE NEGOTIATIONS OVER THIS PROPOSAL.
 
    /2/ SECTION 7103(A)(14)(C) PROVIDES AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSES OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS, EXCEPT THAT SUCH
 
    TERM DOES NOT INCLUDE POLICIES, PRACTICES AND MATTERS--
 
   .          .          .          .
 
 
    (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE(.)
 
    /3/ 5 U.S.C. 5545(C)(1) PROVIDES AS FOLLOWS:
 
    SEC. 5545.  NIGHT, STANDBY, IRREGULAR, AND HAZARDOUS DUTY
 DIFFERENTIAL
 
   .          .          .          .
 
 
    (C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE OFFICE OF
 PERSONNEL MANAGEMENT, MAY PROVIDE THAT--
 
    (1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT,
 OR WITHIN THE CONFINES
 
    OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A
 SUBSTANTIAL PART OF WHICH
 
    CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING
 WORK, SHALL RECEIVE PREMIUM
 
    PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED
 BY OTHER PROVISIONS OF
 
    THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN
 EXCESS OF HIS REGULARLY
 
    SCHEDULED WEEKLY TOUR.  PREMIUM PAY UNDER THIS PARAGRAPH IS
 DETERMINED AS AN APPROPRIATE
 
    PERCENTAGE, NOT IN EXCESS OF 25 PERCENT, OF SUCH PART OF THE RATE OF
 BASIC PAY FOR THE
 
    POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10
 (OR, FOR A POSITION
 
    DESCRIBED IN SECTION 5542(A)(3) OF THIS TITLE, OF THE BASIC PAY OF
 THE POSITION), BY TAKING
 
    INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE
 POSITION, THE NUMBER OF
 
    HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE
 STATION, THE EXTENT TO
 
    WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT,
 SUNDAY, OR HOLIDAY WORK, OR
 
    BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, OR OTHER
 RELEVANT FACTORS(.)
 
    /4/ ACCORD, COMPTROLLER GENERAL DECISION B-192815 (DEC. 7, 1978).