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20:0035(4)NG - NTEU, Chapter 65 and Treasury, IRS -- 1985 FLRAdec NG

[ v20 p35 ]
The decision of the Authority follows:

20 FLRA No. 4



                                      Case No. 0-NG-998


   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

   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

   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
                                      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

   /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.