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The decision of the Authority follows:

16 FLRA NO. 131






Case No. 0-NG-820



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 raises issues concerning the negotiability of two Union proposals. 1 Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal

Two unit employees whose schedules management has sought to change should be subject to the following schedule: (1) start at 1:00 p.m. daily (2) work a standard day, from 1:00 p.m. to 9:30 p.m. rather than the current practice of nonstandard starting times (3) elimination of 10% night differential.

The record in this case reveals that the two employees who are the subject of this proposal had, for a number of years, begun their workday at 1:00 p.m. This schedule was originally established to compensate for the limited capacity of the computer then used by the organizational element to which the two employees are assigned. It is noted that during this period the normal starting time for other employees of the [ v16 p995 ] organization was 8 a.m. 2 In view of the significant time difference between the normal starting time and the starting time of the two concerned employees, and the operational necessity requiring the afternoon starting time, it is concluded that the 1:00 p.m. starting time constituted a separate tour of duty comprised of the two employees. With the acquisition of a new, higher capacity computer, and the purchase of a small personal computer for one of the two affected employees, management determined that it was no longer necessary for the two employees to begin their workday in the afternoon. The Agency consequently abolished the afternoon tour of duty and directed the employees to conform to the existing flexitime program requiring that they report for work between 6:00 and 9:00 a.m.

The Agency herein contends that the first and second parts of the proposal "directly relate to the numbers, types and grades of employees assigned to a tour of duty and are negotiable only at the election of the agency." 3 That is, the Agency asserts that parts (1) and (2) of the proposal fall within the scope of section 7106(b)(1) of the Statute. In National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927, 928-9 (1979) the Authority noted with respect to section 7106(b)(1): "A proposal otherwise consistent with the Statute, which, by its direct or integral relationship to the numbers, types, or grades of employees or positions assigned to a tour of duty, would be determinative of such numbers, types, or grades, likewise would be negotiable at the election of the agency." The Union asserts that parts (1) and (2) are to the same effect as the proposal found to be negotiable in Kansas City Service Center, requiring management to retain existing starting times, which the Authority determined was "a relatively minor adjustment" (30 minutes) to the starting times of employees already assigned to the existing tour of duty and not explicitly related to the matters enumerated in section 7106(b)(1).

Parts (1) and (2), herein, are distinguishable from the proposal in the cited case. The Authority cannot agree that the first two parts of the instant proposal are negotiable because they, too, concern an adjustment of starting times for employees within a single tour of duty. In this case, the two employees were assigned to a different tour of duty which the Agency decided to abolish and which the Union seeks to maintain, in contrast to the circumstances present in Kansas City Service Center. Additionally, in the cited case, the proposal did not specify which, or how many, employees would be assigned each starting time. The instant proposal specifically identifies the employees who would retain their [ v16 p996 ] previously established tour of duty. 4 Thus, parts (1) and (2) of the proposal directly relate to the numbers, types, and grades assigned to a tour of duty by fixing a starting time significantly later than the starting time of other employees in the organization and by identifying the two employees who would start work at that later hour. Hence, in agreement with the Agency, the Authority concludes that parts (1) and (2) concern matters within the scope of section 7106(b)(1) and consequently are negotiable only at the Agency's election. Since the Agency has declined to bargain on parts (1) and (2) of the proposal, these parts are not within the duty to bargain. 5

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., December 21, 1984


Henry B. Frazier III, Acting Chairman

Ronald W. Haughton Member



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Footnote 1 Although the petition for review presented a single proposal, the parties, in their subsequent submissions treated the proposal as having two distinct parts, and the analysis herein will follow the same pattern.

Footnote 2 Union Reply Brief at 6.

Footnote 3 Agency Statement of Position at 8.

Footnote 4 The submissions of the parties identified the two affected employees by name, occupation and grade.

Footnote 5 Because of its determination respecting parts (1) and (2) of the proposal, the Authority finds it unnecessary to reach a conclusion on part (3) of the proposal. Since parts (1) and (2) are found not to be within the bargaining obligation, part (3) would have no force and effect.