[ v14 p432 ]
The decision of the Authority follows:
14 FLRA No. 68 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 570, AFL-CIO-CLC Union and DEPARTMENT OF THE ARMY, YUMA PROVING GROUND, ARIZONA Agency Case No. O-NG-444 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 issues relating to the negotiability of six Union Proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Article XVI, Section 12. All work shall be performed by personnel familiar with the code requirements and are qualified for the class of work to be performed. Union Proposal 2 Article I, New Section 4. All work and work tasks normally performed by "nonsupervisory employees whose jobs are classified within the Department of Army wage board job family as inside, outside electricians, electrical lineman, and electrical motor repairer" will come under the jurisdiction of the International Brotherhood of Electrical Workers, Local 570, and under no circumstances be assigned outside the unit. Union Proposal 3 Article V, Section 2. Bargaining unit employees will not be displaced by those outside the bargaining unit except in the event of an emergency. In National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981), the Authority determined that a proposal which would limit management's right to assign bargaining unit work violated section 7106(a)(2)(B) of the Statute /2/ and hence was nonnegotiable. In this context, Union Proposal 1 herein bears no material difference from Union Proposal 5 held to be outside the duty to bargain in Federal Aviation Administration which would have required the continued assignment of bargaining unit work to "qualified" bargaining unit employees. The plain language of Union Proposal 1, herein, similarly would require the Agency to assign work to "personnel familiar with code requirements and qualified for the class of work to be performed." Hence, it also is outside the duty to bargain. Union Proposal 2 would, among other things, require that all work normally performed by employees within certain job classifications would under no circumstances be assigned outside the unit. Union Proposal 3, similarly, would prevent the Agency from assigning bargaining unit work to employees outside the bargaining unit in non-emergency situations. Thus, these proposals restrict management's right to assign work and, for the reasons stated in Federal Aviation Administration, are inconsistent with the Agency's right to assign work pursuant to section 7106(a)(2)(B) of the Statute and are outside the duty to bargain. Union Proposal 4 Article V, Section 1. Overtime work for bargaining unit employees shall be paid for at not less than time and one-half for the first two (2) hours overtime. All overtime in excess of two (2) hours shall be at double the straight time rate. Saturday overtime for the first eight (8) hours will be paid for at time and one-half and all work in excess will be paid at double the straight time rate. All Sunday work will be double time. Holiday work will be time and one-half plus Holiday Pay. (Only the underlined portions are alleged to be nonnegotiable.) Union Proposal 5 Article V, Section 4. Employees required to work more than two (2) hours overtime after his normal quitting time will be provided with one of the following: (1) A hot meal to be eaten on employer's time. (2) A meal ticket to be used at employee's convenience. (3) One (1) hour straight time pay in lieu of either (1) or (2). Under section 7103(a)(14)(C) of the Statute, matters specifically provided for by Federal statute are expressly excluded from the definition of conditions of employment and, hence, are not within the duty to bargain. Union Proposal 4 concerns rates of premium pay to be paid under certain conditions. However, as the Authority stated in International Brotherhood of Electrical Workers, Local 2080, AFL-CIO-CLC and Department of the Army, U.S. Corps of Engineers, Nashville, Tennessee, 10 FLRA 222 (1982), the conditions under which premium pay may be paid for prevailing rate employees, such as those involved in the instant case, are specifically provided for by Federal statute, 5 U.S.C. 5544. /3/ Accordingly, Union Proposals 4 and 5 concern matters excluded from the definition of "conditions of employment" and, therefore, are not within the duty to bargain. 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 520 (1980), enforced sub nom. American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals v. Federal Labor Relations Authority, 653 F.2d 669 (D.C. Cir. 1981). Union Proposal 6 Article V, Section 5. An employee shall receive at least a minimum of four (4) hours pay at the appropriate overtime rate if he is called back to work on an overtime basis within his basic work week, or on one of his scheduled non-workdays, even if he is not utilized for the full four (4) hours. Overtime continuous with the starting or ending of a shift is not covered by this section. Overtime to commence when call back is acknowledged, and freedom of movement is restricted by the mandate to return to his duty station. Employees will be compensated for standing by when on call back status and will be reimbursed at the rate of twenty-five cents (25[) for each mile round trip from their home at Yuma Proving Ground if called out. (Only the underlined portions are in dispute.) The first sentence of this proposal would establish four hours as the minimum amount of callback overtime to be paid, even if the employee does not work the full four hours. Thus, that portion of the proposal is substantially identical to Union Proposal 3 in IBEW, Local 2085 and Department of the Army, U.S. Corps of Engineers, 10 FLRA 222 (1982). In that case, the Authority held the proposal inconsistent with the provisions of 5 CFR 532.503(c) governing callback overtime for prevailing rate employees covered under the instant proposal. /4/ The Authority further found that 5 CFR 532.503(c) is a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute. Therefore, for the reasons stated in that case, the first sentence of Union Proposal 6 is inconsistent with regulation and outside the duty to bargain. The second disputed sentence of Union Proposal 6 seeks to have the callback overtime pay computation commence when the employee is requested to return to the place of employment. The last sentence of Union Proposal 6 would compensate an employee for standby when on callback status and reimburse an employee for the mileage for travel between residence and agency incident to callback overtime. However, without statutory authority, overtime pay can only be made for actual performance of work. /5/ Specifically, employees must place themselves at their regular places of work and return to their own homes at their own expense, absent statutory or regulatory authority to the contrary. /6/ Since the Union has not presented such statutory authority the Authority finds that these portions of the proposal are not within the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to Union Proposals 1-6 be, and it hereby is, dismissed. Issued, Washington, D.C., May 8, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's request to dismiss the Union's petition for review as untimely filed is denied. The petition was not untimely filed under the Authority's Rules and Regulations based on the date of the Agency's allegation made in response to the Union's written request. American Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981). /2/ Section 7106(a)(2)(B) provides as follows: Sec. 7106 Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- . . . . (B) to assign work(.) /3/ 5 U.S.C. 5544 provides, in pertinent part: Sec. 5544. Wage-board overtime and Sunday rates; computation. (a) An employee whose pay is fixed and adjusted from time to time in accordance with prevailing rates under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, is entitled to overtime pay for overtime work in excess of 8 hours a day or 40 hours a week. However, an employee subject to this subsection who regularly is required to remain at or within the confines of his post of duty in excess of 8 hours a day in a standby or on-call status is entitled to overtime pay only for hours of duty, exclusive of eating and sleeping time, in excess of 40 a week. The overtime hourly rate of pay is computed as follows: (1) If the basic rate of pay of the employee is fixed on a basis other than an annual or monthly basis, multiply the basic hourly rate of pay by not less than one and one-half. (2) If the basic rate of pay of the employee is fixed on an annual basis, divide the basic annual rate of pay by 2,080 and multiply the quotient by one and one-half. (3) If the basic rate of pay of the employee is fixed on a monthly basis, multiply the basic monthly rate of pay by 12 to derive a basic annual rate of pay, divide the basic annual rate of pay by 2,080, and multiply the quotient by one and one-half. An employee subject to this subsection whose regular work schedule includes an 8-hour period of service a part of which is on Sunday is entitled to additional pay at the rate of 25 percent of his hourly rate of basic pay for each hour of work performed during that 8-hour period of service. /4/ 5 CFR 532.503(c) provides: Sec. 532.503 Overtime pay. . . . . (c) Callback overtime work. Irregular or occasional overtime work performed by an employee on a day when work was not regularly scheduled for the employee or for which the employee has been required to return to the place of employment shall be considered to be at least two hours in duration for the purpose of overtime pay, regardless of whether the employee performs work for two hours. /5/ Comptroller General decision B-175452 (May 1, 1972). /6/ 25 Com.Gen. 151, 155 (1945); Comptroller General decision B-185974 (March 21, 1977).