[ v22 p496 ]
The decision of the Authority follows:
22 FLRA No. 52 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, MEAT GRADING COUNCIL OF LOCALS Union and DEPARTMENT OF AGRICULTURE, MEAT GRADING AND CERTIFICATION BRANCH Agency Case No. 0-NG-867 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes 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). /1/ It raises issues concerning the negotiability of four Union Proposals. /2/ II. Union Proposal 1 Established schedules for tours of duty will remain in effect. A. Positions of the Parties The Agency's position is that the proposal seeking to maintain current tours of duty violates 5 CFR 610.120(b)(1) and (2), which requires the head of the Agency to "schedule an employee's regularly schedules administrative workweek so that it corresponds with the employee's actual work requirements" and to "reschedule the employee's regularly scheduled administrative workweek" when it is known in advance that the actual work requirements for the ensuing week differ from the specific days and/or hours of the current workweek. The Union asserts that the regulation quoted by the Agency does not establish a unilateral mandate for the Agency to establish the workweek. It further argues that any interpretation of the regulation giving the Agency the right to establish the workweek without negotiations is contrary to statute, i.e., 5 U.S.C. Section 6101, which is the statutory basis for the regulation. Moreover, the Union argues that 5 U.S.C. Section 6101 provides the Agency discretion to establish workweeks, and a discretionary matter is within the duty to bargain under the Statute. B. Analysis and Conclusion The proposal locks in the established schedules for tours of duties and as a result precludes the Agency from making any changes in the tours of duty for whatever reason. The disputed proposal is to the same effect as Provision 1 in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 2484 v. FLRA, No. 85-1405 (D.C. Cir. July 3, 1985), which would have prevented a change in tours of duty unless advance notice of such change has been provided, and which the Authority found to be inconsistent with an applicable Government-wide regulation, 5 CFR 610.121. Based on the reasoning in U.S. Army Garrison, Fort Detrick, the Authority concludes that this proposal is likewise outside the duty to bargain. III. Union Proposal 2 The grader regularly assigned to service an applicant requiring overtime will have the primary responsibility of performing the necessary service during the week and on weekends. A. Positions of the Parties The Agency asserts that the proposal conflicts with its right to assign employees and work under section 7106(a)(2)(A) and (B), and with 5 CFR 610.121. The Union maintains that the proposal is negotiable because it is essentially the same as Proposal 1 in American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1980). B. Analysis and Conclusion The Authority agrees with the Union's position. The proposal concerns only which employee among those in the bargaining unit to whom management has already assigned certain work will be selected to perform such work in an overtime status when management determines that overtime is required. As such, the proposal is essentially the same as the portion of Proposal 1 found negotiable in Food Safety and Quality Service, 9 FLRA 663 (1980). In that case, the Authority held a proposal that concerned which particular employee, among those in the bargaining unit to whom management in its discretion has already assigned certain work, will be selected to perform such work in an overtime status when management determines that overtime is required was negotiable. It reasoned that the proposal was concerned only with when such employees would perform the previously assigned duties of their positions. Moreover, contrary to the Agency's argument, 5 CFR 610.121 is inapplicable to the proposal in this case because the proposal concerns the assignment of overtime and not the establishment of an employee's administrative workweek. Therefore, for the reasons more fully set forth in Food Safety and Quality Service, 9 FLRA 663 (1980), the Authority concludes that Union Proposal 2 is within the duty to bargain under the Statute. IV. Union Proposal 3 Employees may be relieved for four (4) Saturdays per calendar year for any reason by requesting such relief in writing to the Main Station Supervisor at least ten (10) working days prior to the requested Saturday off. Union Proposal 4 Temporary duty assignments will be on a rotational basis. A list of the graders' names expected to be assigned to temporary duty assignments will be placed on the rotation schedule. When temporary duty assignments are needed, the assignments may also be exchanged with qualified volunteers. When there are no available volunteers to exchange TDY, the assigned grader will perform the assignment. Each GS-9, GS-7, and GS-5, when qualified must take his turn in relief assignments. A grader may not be relieved of his responsibility to take his turn at a relief assignment, except for compelling reasons of annual leave, medical reasons which preclude travel, or personal hardship and an exchange of assignment. (Only the underlined portion of the proposal is in dispute.) A. Positions of the Parties As to Union Proposal 3, the Agency contends that it requires the Agency to relieve employees from Saturday work on four occasions upon the employee's request and therefore conflicts with the right to assign work and employees under the Statute and with 5 CFR Part 610. In response, the Union asserts that the Agency is misreading Union Proposal 3, which does not require that employee requests be granted. As to Union Proposal 4, the Agency maintains that its intent is to prevent the Agency from assigning any other meat grader to a location if a volunteer exists. The Agency therefore concludes that the proposal conflicts with management's right to assign employees under the Statute. The Agency also asserts that the proposal could result in an individual continually volunteering for the same plant assignment thus frustrating the Agency's rotation policy and resulting in possible conflicts of interests and conflicts in relationships with plant management. Therefore, the Agency asserts that the proposal conflicts with its right to determine its internal security practices pursuant to section 7106(a)(1) of the Statute. The Union, in response, states that the Agency has failed to comprehend the intent of the proposal. The Union asserts that the use of discretionary language, "assignments may be exchanged," does not interfere with and does not mandate the assignment of employees or work in violation of the Agency's rights under the Statute. The Union maintains that the proposal only provides for a procedure for the use of a pool of volunteers if the Agency chooses to use it. B. Analysis and Conclusions The language of Proposals 3 and 4 and the Union's stated intent establish that the proposals are discretionary and do not mandate certain courses of action by the Agency. Under this interpretation, the Agency could disapprove 1) all employee requests for Saturday time off and 2) all utilization of volunteers for temporary duty assignments. The proposals only provide a procedure under section 7106(b)(2) for the Agency to consider employee requests for Saturday time off and for volunteering for temporary duty assignments related to the Agency's exercise of its management rights under section 7106(a) of the Statute. Also, because of the discretionary nature of the proposals, the Agency's argument that Union Proposal 3 conflicts with 5 CFR Part 610 by establishing an employee's administrative workweek is not supported. Therefore, the Authority concludes that Union Proposals 3and 4 are within the duty to bargain under the Statute. 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 concerning Union Proposals 2-4. /3/ It is FURTHER ORDERED that the Union's petition for review as to Union Proposal 1 be, and it hereby is, dismissed. /4/ Issued, Washington, D.C., July 10, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member --------------- FOOTNOTES$ --------------- (1) The Agency in its Response raises a question as to the timeliness of the Union's petition for review because it had already provided allegations of nonnegotiability to the Federal Service Impasses Panel prior to the Union's written request. In this case, however, in accordance with established precedent, the Authority finds that the Union's petition for review was timely from the date the Agency responded to the Union's written request for an allegation of nonnegotiability. International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982). (2) With respect to additional Union Proposals 5, 6, and 7, the Union in its opposition withdrew those proposals from its appeal. They will not be considered further here. (3) In finding Union Proposals 2-4 to be within the duty to bargain, the Authority makes no judgment as to their merits. (4) The Union makes a general contention that the proposals are within the duty to bargain pursuant to section 7106(b)(2) and (3). Since Proposal 1 is violative of 5 CFR 610.121, a Government-wide regulation, and since proposals 2-4 do not concern a violation of management rights, the Authority finds it unnecessary to address the Union's contention regarding section 7106(b)(2) and (3).