U.S. Federal Labor Relations Authority

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21:0580(74)NG - POPA and Patent and Trademark Office, Dept. of Commerce -- 1986 FLRAdec NG

[ v21 p580 ]
The decision of the Authority follows:

 21 FLRA No. 74
                                            Case No. 0-NG-806
                         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 four Union proposals.  /1/ The proposals arose in
 negotiations between the parties over ground rules to be followed in
 bargaining over a new basic agreement.
                          II.  Procedural Issues
    Preliminarily, the Agency asserts that the petition for review is not
 properly before the Authority.  It contends that it has requested that
 the Federal Service Impasses Panel (the Panel) resolve an impasse
 between itself and the Union regarding Proposals 1 and 2 without regard
 to their negotiability.  As for the remaining proposals addressed the
 petition, it contends that, because the Union has refused to affirm that
 those proposals would be before the Panel if no negotiability dispute
 existed, the Union has failed to establish that the proposals are "real"
 as opposed to "hypothetical." Thus, the Agency contends that the
 petition for review as to these proposals does not meet the requirements
 for Part 2424 of the Authority's Rules and Regulations.  The Authority
 rejects this condition.
    In the Authority's view, nothing in the Statute or the Authority's
 Rules and Regulations precludes a union from filing a petition for
 review of a negotiability issue even though an agency has requested the
 Panel to resolve an impasse without regard to the negotiability of the
 proposal involved.  In fact, the Authority has held that negotiability
 issues which arise during the collective bargaining process (of which
 the Panel operates as one aspect) must be resolved through appeal to the
 Authority.  Thus, while the Panel may bargain problems, negotiability
 issues may be resolved only by the Authority.  Interpretation and
 Guidance, II FLRA 626 (1983).  Additionally, the Authority finds that
 nothing in the Statute or its Rules and Regulations provides that a
 union must either submit a proposal to the Panel or declare its intent
 to do so as a prerequisite to instituting a negotiability appeal with
 respect to that proposal.
    The Agency additionally contends with respect to various of the
 proposals that it has not declared them nonnegotiable.  The Authority
 notes that the Union specifically requested, in writing, a declaration
 by the Agency of its position on the negotiability of those proposals
 and that the Agency effectively failed to respond to the request.  Such
 failure constitutes a constructive declaration of nonnegotiability which
 gives rise to a right of appeal to the Authority.  American Federation
 Of Government Employees, AFL-CIO, Local 3028 and Department of Health
 and Human Services, Public Health Service, Alaska Area Native Health
 Service, 13 FLRA 697 (1984).  Therefore, the Authority finds that the
 petition is appropriately before it.
                       III.  Union Proposals 1 and 2
                             Union Proposal 1
          Section 3.  Time
          In accordance with past practice in the PTO, all POPA
       bargaining team members, if otherwise in a duty status, shall be
       authorized a reasonable amount of official time to perform all
       necessary and relevant activities related to these negotiations.
       For those members of POPA'S bargaining team who are engaged in
       activities related to these negotiations outside of their regular
       work hours, they shall be on compensated overtime or compensatory
       time status, at the election of the employee.
                             Union Proposal 2
          Section 4.  Schedule
          c.  If negotiations extend beyond 300 hours the schedule will
       be modified to add paid overtime or compensatory time sessions on
       Saturdays.  Both POPA and the PTO recognize that such paid
       overtime and compensatory time may be authorized by reason of the
       fact that all time spent by the POPA negotiating team in actual
       negotiations constitutes official duty time.  Any compensatory
       time earned can be used only after a new basic agreement is
       signed.  POPA team members may accrue and use such compensatory
       time without limitation.
                       A.  Positions of the Parties
    These two proposals seek to authorize payment of overtime or
 compensatory time for participation in preparation for, and actual,
 negotiations when participation occurs outside an employee's normal
 working hours.  The Agency asserts that it must have specific statutory
 authority to grant pay and that nothing in section 7131 of the Statute
 authorizes overtime compensation for Union representatives'
 participation in representational activity when they would not otherwise
 be in duty status.  The Union contends that the entitlement to official
 time under section 7131(a) of the Statute extends to overtime hours as
 long as the Agency approves the overtime in advance.  Additionally, the
 Union argues that under the legal provisions governing overtime, 5
 U.S.C. Section 5542, the Agency has discretion to pay the overtime
 sought by these proposals.
                       B.  Analysis and Conclusions
    As is relevant here, /2/ payment of overtime compensation and
 granting of compensatory time off are governed by the provisions of 5
 U.S.C. sub-Section 5542 and 5543.  /3/ Entitlement to overtime pay is
 governed by Section 5542, and Section 5543 addresses eligibility for
 compensatory time off in lieu of the monetary compensation to which the
 employee would be entitled under Section 5542.  Representational
 activities performed by a union official outside his or her workday do
 not constitute the performance of "hours of work" within the meaning of
 5 U.S.C. Section 5542.  See Social Security Administration and American
 Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4
 (1985) and NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983) /4/ Nor do
 the provisions of section 7131 of the Statute authorize overtime
 compensation for time spent in representational activities when the
 employee involved was not otherwise in a duty statue.  /5/ See NTEU v.
 Gress. Thus, because Union proposals 1 and 2 go beyond the conditions
 under which overtime compensation is specifically authorized under
 Statute, they conflict with Federal statute and are not within the duty
 to bargain.  See National Treasury, Employees Union and Department of
 the Treasury, Internal Revenue Service, 6 FLRA 508 (1981)) (Union
 Proposal 1).
                           IV.  Union Proposal 3
         Section 2.  Attendance, Priorities and other Negotiations
          f.  Except for changes in working conditions mandated by
       statute or government wide regulation, negotiations regarding
       impact and implementation of future management changes in working
       conditions will be combined with these negotiations on a new basic
       agreement.  Management recognizes its obligation to defer
       implementation of such proposed changes until a new basic
       agreement is signed, except where immediate implementation is
       required by an overriding exigency.  For example, management
       recognizes that no overriding exigency exists with respect to
       automation and that automation of the PTO constitutes a
       significant impact on working conditions that would preclude
       implementation until negotiations on a new basic agreement are
                       A.  Positions of the Parties
    This proposal would require that, with certain stated exceptions,
 negotiations over the impact and implementation of management proposed
 changes in working conditions would be combined with negotiations over
 the basic agreement.  It would further require that, absent an
 overriding exigency, any proposed change be deferred until the new basic
 agreement had been signed.
    The Agency's arguments as to this proposal are limited to the
 procedural ones discussed above in section II.  It has presented no
 arguments on the merits of this proposal.  The Union contends that the
 proposal constitutes a negotiable procedure for orderly conduct of
 negotiations over changes in conditions of employment.
                       B.  Analysis and Conclusions
    During the pendency of this case the Authority issued several
 decisions which addressed an agency's duty to bargain when, in
 exercising a management right under section 7016 of the Statute, it
 changes conditions of employment of unit employees.  The Authority had
 held that no duty to bargain arises from the exercise of a management
 right that results in an impact or a reasonably foreseeable impact on
 bargaining unit employees which is no more than de minimis.  Department
 of Health and Human Services, Social Security Administration, Chicago
 Region , 15 FLRA 922, (1984);  Department of Health and Human Services,
 Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No.
 101 (1985).  Insofar as negotiation over the impact and implementation
 of management changes in working conditions is concerned, Union Proposal
 3 does not distinguish between those management intitiated changes which
 have no more than a de minimis impact on bargaining unit employees and
 those which have more than a de minimis impact.  Thus the proposal would
 effectively impose upon the Agency a duty to bargain which is broader
 than that prescribed by the Statute.  Given this, it extends beyond the
 duty to bargain imposed upon the Agency by the Statute.  An Agency could
 elect to bargain over the impact and implementation of changes of a de
 minimis nature as long as proposals do not conflict with law or
 Government-wide rule or regulation.  See Federal Deposit Insurance
 Corporation, Headquarters. 18 FLRA No.  92 (1985).  However, since the
 record in this case does not show that the Agency has elected to bargain
 over Union Proposal 3, the Authority finds that it is not within the
 Agency's duty to bargain.
                           V.  Union Proposal 4
                    Section 8.  Attendance at Mediation
          The commissioner and the President of POPA will personally
       attend all mediation sessions held under the auspices of the FMCS
                       A.  Positions of the Parties
    The Agency contends that the Union has no right to insist on a
 provision which prescribes who will represent management in
 negotiations.  The Union asserts that this proposal would not actually
 restrict the Agency's ability to choose its own representatives.  In
 support it contends that, as the principal with whom they are trying to
 reach agreement, the Commissioner is "inherently" the "ultimate
 representative".  The proposal would allow it to communicate directly
 with that principal and eliminate potential inaccuracies resulting from
 use of intermediaries.  It maintains that this proposal provides a
 procedure for facilitating its statutory right to present its views to
 the head of the Agency.
                       B.  Analysis and Conclusions
 This proposal requires that the Commissioner attend mediation sessions
 in his capacity as "ultimate" management representative as opposed to
 relying solely on his/her designated representatives.  The Authority has
 held that it is within the discretion of both agency management and
 labor organizations holding exclusive recognition to designate their
 respective representatives when fulfilling their responsibilities under
 the Statute.  American Federation of Government Employees, AFL-CIO, 4
 FLRA 272 (1980).  Moreover, insofar as Union Proposal 4 requires that
 the Commissioner of the Agency personally attend mediation sessions, it
 concerns matters which go beyond those directly affecting unit
 employees.  The designation of those individuals who will attend
 mediation sessions on behalf of the Agency is not a matter directly
 related to the conditions of employment of unit employees, contrary to
 the Union's argument.  See National Federation of Federal Employees,
 Local 1451 and Naval Training Center, Orlando, Florida, 3 FLRA 88
 (1980).  While the Agency may elect to bargain concerning such matters,
 the record does not establish that it has chosen to do so.  See Federal
 Deposit Insurance Corporation, Headquarters, 18 FLRA No.  92 (1985).
 Therefore, this proposal is not within the Agency's 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 be, and
 it hereby is, dismissed.
    Issued, Washington, D.C., April 30, 1986.
                                       /s/ Jerry L.  Calhoun, Chairman
                                       /s/ Henry B.  Frazier, III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
    (1) the Union's appeal originally involved a fifth proposal.  The
 Union has subsequently withdrawn that proposal from its appeal.  And it
 will not be considered in this case.
    (2) The record indicates that the grade levels of the members of the
 Union's representatives are such that they are exempt from coverage
 under the Fair Labor Standards Act.  See Federal Personnel Manual Letter
 551-1.  Thus, overtime entitlements under that statute are not germane
 to this dispute.
    (3) 5 U.S.C. Section 5542 provides, in relevant part:
    Section 5542.  Overtime rates;  computation
          (a) For full-time, part-time and intermittent tours of duty,
       hours of work officially ordered or approved in excess of 40 hours
       in an administrative workweek, or . . . in excess of 8 hours a
       day, performed by an employee are overtime work and shall be paid
       for. 5 U.S.C. Section 5543 provides, in relevant part:  Section
       5543.  Compensatory time off
          (a) The head of an agency may --
          (1) on request of an employee, grant the employee compensatory
       time off from his scheduled tour of duty instead of payment for an
       equal amount of time spent in irregular or occasional overtime
       work;  and
          (2) provide that an employee whose rate of basic pay is in
       excess of the maximum rate of basic pay for GS-10 shall be granted
       compensatory time off from his scheduled tour of duty equal to the
       amount of time spent in irregular or occasional overtime work
       instead of being paid for that work under Section 5542 of this
    (4) In NTEU v. Gregg, the court found, among other things, that two
 employees of an agency who spent time beyond their normal workweek
 serving on a union negotiating team were not entitled to overtime
 compensation under section 7131 of the Statute, 5 U.S.C. Section 5542,
 or the Fair Labor Standards Act.  Insofar as the latter two provisions
 were concerned, the court noted that such representational activities
 did not fall within the definition of "work" within the meaning of those
 statutes.  In Social Security Administration the Authority noted that
 the legal basis for granting compensatory time off arises under 5 U.S.C.
 Section 5543 as a result of overtime work performed by an employee.
 Citing NTEU v.  Gregg in support, the Authority found that a union
 official's performance outside his workday of representational functions
 did not constitute hours of work within the meaning of 5 U.S.C. Section
 5542 for which either overtime pay or compensatory time off could be
 legally granted.
    (5) It is unnecessary to reach, and the Authority does not pass upon,
 the question of entitlement to overtime compensation where
 representational activities occur when the employee involved would
 otherwise be on duty in an overtime status.