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21:0497(65)NG - Tidewater Virginia FEMTC and Navy, Navy Public Works Center, Norfolk, Virginia -- 1986 FLRAdec NG

[ v21 p497 ]
The decision of the Authority follows:

 21 FLRA No. 65
                                            Case No. 0-NG-1176
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and concerns the
 negotiability of the following Union proposal:  /1/
    Article 13, Section 6 (Shift Work)
          Unit employees working on a shift at the time of conversion to
       daylight savings time will have the option of using one hour of
       annual leave or working an additional hour as a method of
       maintaining their regular 8 hour shift.
                       II.  Positions of the Parties
    The Agency alleges the proposal is nonnegotiable because (1) it
 interferes with management's right to assign work under section
 7106(a)(2)(B) and (2) it interferes with management's elective right to
 determine the numbers, types and grades of employees assigned to a work
 project or tour of duty under section 7106(b)(1).
    The Union argues that the proposal is not contrary to law, rule or
 agency regulation.  The Union contends, without controversion, that the
 proposal would affect a maximum of five employees working on their
 regular shift when standard time changes to daylight savings time each
 year.  The Union's intent is to insure that those few employees would
 not lose an hour of pay due to this artificially created circumstance.
                              III.  Analysis
                         A.  Right to Assign Work
    In the present case, contrary to the Agency's contention, the
 proposal would not interfere with management's right to assign work by
 giving employees the option of working an additional hour.  That right
 set forth in section 7106(a)(2)(B) includes the right to determine (1)
 what particular duties will be assigned, (2) when work assignments will
 occur, and (3) to whom or to what position duties will be assigned.
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National
 Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d
 553 (D.C. Cir. 1982).  Prior to the change from standard to daylight
 savings time the Agency had already assigned work to these employees to
 be done during their normal shift.  There is no showing in the record to
 indicate that the proposal would interfere with that previous work
 assignment.  It would not interfere with management's right to assign
 particular duties, management's determination of when work assignments
 will occur or who will be assigned certain work.  Further, the Authority
 concludes that the proposal does not require the Agency to grant an
 employee annual leave where mission needs dictate otherwise.  See
 National Treasury Employees Union and Federal Deposit Insurance
 Corporation, 14 FLRA 179 (1984).  Therefore, contrary to the Agency's
 argument, the Authority finds that the proposal does not interfere with
 the Agency's right to assign work by granting employees the option of
 taking annual leave.
        B.  Elective Right to Determine Numbers, Types, and Grades
    The Agency argues that the proposal has the effect of allowing
 employees to decide that twice the number of employees management has
 determined necessary would be assigned to a tour of duty.  It alleges
 that this concerns the "numbers, types, and grades of employees or
 positions assigned to any organizational subdivision, work project, or
 tour of duty," which is a matter negotiable only at the election of the
    The Authority has consistently held that a proposal would be
 negotiable only at the election of an agency under this provision of
 section 7106(b)(1) if (1) the language of the proposal explicitly
 relates to the numbers, types, and grades of employees or positions
 assigned to a tour of duty so as to come within the literal language of
 that section, or (2) the agency demonstrates that the proposal is
 directly or integrally related to the numbers, types, and grades of
 employees or positions assigned to a tour of duty so as to be
 determinative of numbers, types, or grades.  See, for example, American
 Federation of Government Employees, AFL-CIO, Local 2875 and Department
 of Commerce, National Oceanic and Atmospheric Administration, National
 Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory,
 Florida, 5 FLRA 441, 444-45 (1981).  The proposal here does not on its
 face explicitly relate to the numbers, types, and grades of employees or
 positions assigned to a tour of duty nor has the Agency demonstrated
 that a yearly one hour shift adjustment for 5 employees has a direct or
 integral relationship to the assignment of employees to tours of duty.
 Specifically, there is no indication in the record that the yearly
 adjustment would establish a new shift or tour of duty or effect changes
 in the numbers, types, and grades of employees or positions assigned to
    In the Authority's view, implementation of the proposal would amount
 to a minor, once-a-year adjustment in the quitting time of the affected
 employees assigned to this tour of duty.  The Authority has held in a
 number of cases that minor changes in starting and quitting times of
 previously established shifts is a matter subject to the duty to
 bargain.  See, for example, Department of Transportation, Federal
 Aviation Administration, Washington, D.C., and its Chicago Airways
 Facilities Sector and Professional Airways Systems Specialists, AFL-CIO,
 16 FLRA 479, 481 (1984) and cases cited therein.  We therefore determine
 that the Agency has failed to demonstrate that the proposal interferes
 with its elective right to determine the numbers, types, and grades of
 employees assigned to a work project or tour of duty under the Statute.
                              IV.  Conclusion
    The Authority finds, based on the foregoing analysis, that the
 Union's proposal is within the duty to bargain under the Statute.  /2/
                                 V.  Order
    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 on this proposal.  /3/
    Issued, Washington, D.C., April 24, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
    (1) The petition as originally filed requested review as to 2 Union
 proposals.  Subsequently, the Union withdrew its request as to one
 proposal.  That proposal will not be considered further here.
    (2) We note that the Comptroller General has determined that an
 agency may by union agreement or agency policy permit employees to work
 an additional hour on the day that daylight savings time begins as a
 method of maintaining the regular 8-hour shift and normal pay.  57 Comp.
 Gen. 429 (1978).  Our conclusion here is consistent with that decision.
 However, we agree with the Agency's view that the Comptroller General
 decision is not dispositive of the issue decided in this case concerning
 the negotiability of the proposal under the Statute.
    (3) In deciding that the proposal is within the duty to bargain, the
 Authority makes no judgment as to its merits.