12:0354(76)NG - NAGE and VA Medical Center, Butler, PA -- 1983 FLRAdec NG

 12 FLRA No. 76
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES
 Union
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER
 BUTLER, PENNSYLVANIA
 Agency
 
                                            Case No. O-NG-466
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
 the Federal Service Labor-Management Relations Statute (the Statute),
 and raises the question of the negotiability of two Union proposals
 which arose within the context of negotiations at the local level over a
 supplemental agreement.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 
                              Proposal No. 1
 
          It should not be necessary for technicians on standby to have
       to remain at his/her home.  He/she should be able to leave a
       telephone number with the Medical Administrative Assistant on duty
       and still meet the 30 minute time limit.
 
    The proposal is concerned with "standby duty" which is governed by 5
 U.S.C. 5545.  This section provides that, under certain circumstances,
 an employee who is required "to remain at, or within the confines of,
 his station during longer than ordinary periods of duty" shall receive
 premium pay on an annual basis.  The words "at, or within the confines
 of, his station" have been defined in 5 CFR 550.143 as meaning one of
 the following:
 
          (1) At an employee's regular duty station.
 
          (2) In quarters provided by an agency, which are not the
       employee's ordinary living quarters, and which are specifically
       provided for use of personnel required to stand by in readiness to
       perform actual work when the need arises or when called.
 
          (3) In an employee's living quarters, when designated by the
       agency as his duty station and when his whereabouts is narrowly
       limited and his activities are substantially restricted.  This
       condition exists only during periods when an employee is required
       to remain at his quarters and is required to hold himself in a
       state of readiness to answer calls for his services.  This
       limitation on an employee's whereabouts and activities is
       distinguished from the limitation placed on an employee who is
       subject to call outside his tour of duty but may leave his
       quarters provided he arranges for someone else to respond to calls
       or leaves a telephone number by which he can be reached should his
       services be required.
 
 Inasmuch as the proposal expressly seeks to obviate the requirement that
 an employee on standby duty remain at his/her quarters, it conflicts
 with the above referenced statutory provision and is, therefore, not
 within the duty to bargain under section 7117 of the Statute.  /1/
 
                              Proposal No. 2
 
          The workweek shall consist of five (5) consecutive days, with
       two (2) consecutive days may be worked, in order to receive long
       weekends off, with every third weekend off.  Where seven (7)
       consecutive days are worked, these units will be listed in this
       agreement.  Those units working an administrative workweek will
       not adhere to this Article.
 
    The Union contends that bargaining at the local level on Proposal No.
 2 has been authorized by virtue of language contained in the parties'
 Master Agreement negotiated at the national level.  /2/ However, the
 Agency contends that Proposal No. 2 is integrally related to and
 determinative of the numbers, types and grades of employees assigned to
 a tour of duty and, therefore, pursuant to section 7106(b)(1) of the
 Statute, is negotiable only at its election and that it has not elected
 to negotiate such a proposal "by way of the Master Agreement or in any
 other way." The Agency claims that the language in the Master Agreement
 relied upon by the Union "does not mean that it (the Agency) has made an
 affirmative election to negotiate" on the matters referred to in the
 proposal.
 
    Based on the positions of the parties, the Authority concludes that a
 legitimate threshold question exists as to whether the Master Agreement,
 negotiated at the national level, authorizes bargaining at the local
 level on Proposal No. 2.  This threshold question does not give rise to
 a negotiability issue which may be resolved pursuant to Section 7117 of
 the Statute.  Rather, this question should have been processed through
 whatever mechanisms the parties have adopted in their national agreement
 for resolving such issues.  See, e.g., American Federation of Government
 Employees, AFL-CIO, Local 1661 and Department of Justice, Bureau of
 Prisons, Federal Correctional Institution, Danbury, Connecticut, 2 FLRA
 412 (1980).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., July 29, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In view of this determination, the Authority finds it unnecessary
 to address the Agency's contentions that the proposal is inconsistent
 with management's section 7106(b)(1) right to determine "the numbers,
 type and grades of employees assigned" or with any Government-wide rule
 or regulation.
 
 
    /2/ The Union cites Article XXVI, section 1, which provides:
 
          This Master Agreement will not negate existing local
       arrangements for scheduling consecutive days off, consecutive work
       days, shift changes, weekends off, or requests for indefinite tour
       assignments.