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The decision of the Authority follows:
20 FLRA No. 4 NATIONAL TREASURY EMPLOYEES UNION CHAPTER 65 Union and DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE Agency Case No. 0-NG-998 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 issues concerning the negotiability of the following Union proposal. Union Proposal In any given work unit no more than 30% of the employees (but, in any event, no less than one employee) may be absent on a regularly scheduled basis on any given workday, provided, however, that work units presently exceeding 30% may continue with that percentage. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/ It appears that the parties had in effect an Alternative and Compressed Work Schedule Agreement (referred to by the parties as the "AWS agreement") which provided that the agreement could be renegotiated after six months. It was during the renegotiation that the Union introduced the disputed proposal. The proposal relates to two alternative work schedules available to bargaining unit employees, one of which would permit a four day workweek and the other of which would afford employees one day off during each biweekly pay period. The Union contends that the intent of its proposal was to assure that the two compressed workweek options would be available to employees concerned with computer services. The Agency contends that the nature of its work in providing computer services requires the presence of a large percentage of the work force, i.e., more than 70% of the employees, on certain days of the workweek, specifically, Monday and Fridays. It is because of these staffing requirements, the Agency asserts, that the proposal interferes with its rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute, to assign work and to direct employees and also conflicts with its right, pursuant to section 7106(b)(1), to determine the number of employees assigned to a work project or tour of duty. Contrary to the Agency's position, the Authority does not find that the first part of the proposal, i.e., the portion stating, "(i)n any given work unit no more than 30% of the employees (but, in any event, no less than one employee) may be absent on a regularly scheduled basis on any given workday," on its face, is inconsistent with the referenced rights reserved to management by section 7106(a)(2)(A) and (B) of the Statute. This part of the proposal does not permit employees to fail to report for work when ordered to do so, nor does it allow employees to refuse assignments. By its terms, this portion does not obligate management to grant days off to 30% of the work force pursuant to the AWS agreement. Rather, 30% is stated as a maximum. Moreover, it does not expressly require that days off under the agreement be either Mondays or Fridays. With regard to the section 7106(a)(2)(A) and (B) rights issue, the Union points out that this disputed portion of the proposal must be read in conjunction with section 10 of the AWS agreement which, according to the Union, "has tentatively been agreed to by the parties to remain intact." /2/ The cited section of the prior agreement provides, in pertinent part: In reviewing submitted work schedules, under any of the available options, managers will make a reasonable attempt to accommodate employee preferences. If any employee schedule must be disapproved, because it is determined that approval of all submitted schedules would render the work unit incapable of efficiently and effectively performing its assigned function, the reasons for the disapproval will be discussed with the affected employees, and the employees will be provided the opportunity to submit new schedules before the finalization of work schedules for that work unit. /3/ Thus, according to the Union, read with section 10, "(t)he union's proposal would assure that once a compressed work schedule option was an approved option for employees in Computer Services an automatic mechanical numerical percentage would not permit the agency to disapprove or nullify an employee's option but it also permits management to disapprove schedules for legitimate reasons." /4/ Based on the Union's reasonable elaboration on the meaning and intent of the first disputed part of the proposal, the Authority concludes that it would interfere with neither the right to assign work nor with the right to direct employees. As to the Agency's contention that the proposal would interfere with the right to determine the number of employees assigned to a work project or tour of duty, the Authority noted in National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927(1979) that a proposal, otherwise in compliance 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, . . . would be negotiable at the election of the agency." In that case, the Authority found the proposal, requiring the maintenance of "present shifts" to be within the duty to bargain because the agency failed to demonstrate that it was determinative of the numbers, types or grades of employees or positions assigned to a tour of duty. With respect to the disputed first part of the proposal herein, the Agency's examples of the proposal's impact on numbers, types, or grades are based upon the assumption that absolute limits are imposed on staffing levels. However, as previously discussed, the first part is not intended to impose staffing limits when productivity and efficiency are adversely affected. Under these circumstances, the Agency herein has failed to demonstrate that the first portion of the proposal directly concerns the right, pursuant to section 7106(b)(1) of the Statute, to determine the numbers, types, and grades of employees or positions. The last part of the proposal, i.e., the clause beginning with the words "provided, however . . . ." presents an entirely different situation. That is, the Authority construes this clause as being disjunctive from that which precedes it. Consequently, the Union contentions and Authority analysis of the first part of the disputed proposal is inapplicable to this part of the proposal. In these circumstances, the final clause of the proposal would obligate management to authorize employee absences unless the percentage of employees not at work exceeded the level previously established for that organizational element. In effect, while the percentage in the first part of the proposal is a maximum or ceiling, the percentage in the second part is a minimum or floor. In National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769(1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority examined the right to assign work pursuant to section 7106(a)(2)(B) of the Statute. Among the elements comprising that right, the Authority noted, were the discretion to determine "the particular employees to whom or positions to which (work) will be assigned" and the authority "to determine when the work which has been assigned will be performed." Id., at 775. As applicable to the last part of the disputed proposal, the cited elements of the right to assign work are in conflict with that part. That is, based on the express language, employees in the identified units have the right to their preferred days off, subject only to denial if, as a consequence, the unit strength will drop below the preestablished minimum. Therefore, management would be without the ability to refuse an employee's request for a specific day off on the grounds that his or her particular skills are needed to work on a project on that day or because he or she is assigned a task which must be worked on during the day requested. Hence, the last part of the proposal is inconsistent with the elements of the right to assign work identified above and is consequently outside the duty to bargain. /5/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the first part of the disputed proposal. /6/ IT IS FURTHER ORDERED that the petition for review, insofar as it relates to the last part of the proposal, which would authorize, without qualification, a continued granting of requested days off to a number of employees in excess of 30% of the unit strength, be, and it hereby is, dismissed. Issued, Washington, D.C., September 10, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency contends that the petition should be dismissed because it was not timely served on the Agency head. The record indicates that the Union sent copies of its petition to appropriate Agency officials via regular mail, but the petitions were not received by the addressees. Upon learning of this fact, the Union promptly hand delivered the document to Agency officials; thus curing the defect. Consequently, the Agency's request for dismissal must be denied. See, e.g., American Federation of Government Employees, Local 2578, AFL-CIO and General Services Administration, National Archives and Records Service, 12 FLRA 545(1983). /2/ Union Reply Brief at n. 10. /3/ Id. at n. 8. /4/ Id. at 6. /5/ See also National Treasury Employees Union Chapter 204 and Federal Election Commission, 19 FLRA No. 25(1985). /6/ In finding the first part of the disputed proposal to be within the duty to bargain, the Authority makes no judgment as to its merits.