[ v21 p580 ]
The decision of the Authority follows:
21 FLRA No. 74 PATENT OFFICE PROFESSIONAL ASSOCIATION Union and PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE Agency Case No. 0-NG-806 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 concluded. 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 FOOTNOTES (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 title. (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.