[ v12 p354 ]
The decision of the Authority follows:
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.