[ v23 p146 ]
The decision of the Authority follows:
23 FLRA No. 17 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER PATROL COUNCIL Union and DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE Agency Case No. 0-NG-682 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. State of the Case This case comes before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two Union proposals. II. Background These proposals were offered by the Union during negotiations held as the result of a settlement agreement between the parties resolving an unfair labor practice (ULP) charge filed against the Agency. The settlement agreement obligated the Agency to bargain over the impact and implementation of detailing bargaining unit employees to work at sites used for detention of illegal Cuban and Haitian aliens. The proposals specifically address the fact that unit employees lose their eligibility under Agency regulations for administratively uncontrollable overtime (AUO) while on detail to the detention centers. The purpose and method of computing AUO is fully explained in National Border Patrol Council, American Federation of Government Employees, AFL-CIO and United States Immigration and Naturalization Service, 23 FLRA No. 11 (1986). In accordance with applicable regulations, AUO may be paid only if the amount involved would be less than employees would be entitled to under regular overtime. These proposals seek to mitigate the effect upon employee entitlements to AUO payments which results from the details. In essence, the proposal would minimize the difference between AUO and the amount the employee would receive if paid regular overtime. Union Proposal 1 The initial ten (10) working days of a detail to the Cuban/Haitian Refugee Program will be considered excludable for AUO purposes and immediately upon return to his official duty station, the employee will be certified for the same percentage of AUO for which he was certified prior to detail to the Cuban/Haitian Refugee Program. A. Positions of the Parties As a procedural matter, the Agency asserts that the Union's negotiability appeal should be dismissed for failure to comply with section 2424.5 of the Authority's Rules and Regulations. That is, the Agency asserts that the Union filed a ULP charge against the Agency concerning the same matter as Union Proposal 1, yet did not select, as required by section 2424.5 of the Rules, which procedure (the ULP charge or the negotiability appeal) the Authority should process first. The Agency further argues that it has no duty to bargain on Union Proposal 1 in the circumstances of this case because, in essence, the proposal falls outside the scope of the parties' settlement agreement. Substantively, the Agency argues that Union Proposal 1 is nonnegotiable because: 1. The proposal violates law and/or Office of Personnel Management (OPM) regulations. In particular, the proposal conflicts with 5 C.F.R. Section 550.151 to .164 which was issued pursuant to 5 U.S.C. Section 5545(c); 2. The proposal constitutes an attempt to negotiate rates of pay in violation of law; and 3. The proposal violates an Agency regulation, DOJ Order 1551.4A, for which there is an asserted compelling need. The Union contends that a negotiability determination is warranted because the issues present in the ULP proceeding cited by the Agency are distinguishable from the issue raised in its proposal. Substantively, the Union asserts that the matter of excluding days from AUO computation is within the discretion of the Agency and, therefore, is within its duty to bargain. B. Analysis 1. Procedural Issue The ULP charge, which the Agency claims concerns the same issue as Union Proposal 1, was closed by the Regional Director without any substantive determination having been made on the underlying issue shortly after the Agency filed its Statement of Position in the negotiability appeal. Thus, even assuming that the Union failed to make the election required by section 2424.5 of the Rules as to which procedure (the ULP charge or the negotiability appeal) should be processed first, such procedural issue has been rendered moot. 2. Duty to Bargain When a union files a negotiability appeal under section 7105(a)(2)(D) and (E) of the Statute, section 7,17(c) entitles it to a decision on the negotiability issues in the appeal. To the extent that there are factual issues in dispute between the parties in the circumstances of a case, such issues should be resolved in other appropriate proceedings. American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 279th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). Hence, the Agency arguments that under the circumstances it has no duty to bargain on the disputed proposal are not relevant in the context of a negotiability appeal. 3. Substantive Issues a. Conflict with Law and Government-wide Regulation While the Agency concedes that the development of a formula for establishing AUO entitlements is left to agencies' discretion, it contends that the law and regulations implicitly require all similarly situated employees within an agency to be treated in like manner. In support, the Agency relies on two decisions of the Court of Claims, namely, Byrnes, et al. v. United States, 330 F.2d (Ct. Cl. 1964) and Fix, et al. v. United States, 368 F.2d 609 (Ct. Cl. 1966). The Agency's reliance on the two Court of Claims decisions is misplaced. Those cases dealt with agency attempts to exclude certain employees from eligibility for overtime pay in violation of statutory eligibility criteria. The cases did not specifically examine the agencies' methods of computing AUO overtime pay. In fact, the court in the Fix case noted that an agency does have discretion in the calculation of overtime pay under an AUO statute. 368 F.2d at 614. Further, the court in the Fix case stated that a "necessary consequence" of the AUO scheme is that "some will get the same pay for much more work." 368 F.2d at 615. The Agency contends that its own regulations are applicable throughout the entire Department of Justice and ensure the required uniform treatment of all Justice employees. The Agency argues that Union Proposal 1 would set up a different computational scheme for unit employees detailed to the detention centers, which would result in higher subsequent AUO payments to covered employees than those received by non-bargaining unit employees assigned to other details of similar length for which AUO pay is also not authorized. The Authority finds that neither the governing statute nor the related OPM regulations, either literally or as judicially interpreted, requires absolute equity between Executive agencies or even between similarly situated employees within an agency. Rather, the law and regulations leave agencies with discretion to decide how to arrive at individual AUO entitlements. To the extent that an agency has discretion respecting a matter sought to be bargained affecting conditions of employment within a bargaining unit and where the grant of discretion is not sole and exclusive, the matter is within the duty to bargain. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 758 (1980). In this case, the Agency has proffered no persuasive arguments that either the statutory or regulatory grants of discretion are limited so as to bar bargaining over the methods of computing AUO entitlements. b. Negotiation over Pay Rates The Agency's view that Union Proposal 1 constitutes an unlawful attempt to bargain over rates of pay is based on the fact that exclusion of the first ten days of a detail to the detention centers, as required by the proposal, would result in the concerned employees receiving a higher rate of AUO upon return to their regular assignments than otherwise would be granted under the Agency regulation. This proposal, however, merely concerns the computation of AUO within the specific constraints set by law and implementing Government-wide regulations. That is, 5 U.S.C. Section 5545(c)(2) establishes that an employee eligible for AUO payments may receive "not less than 20 percent nor more than 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10, by taking into consideration the frequency and duration of irregular unscheduled overtime duty required in the position." The Agency has not alleged, nor is it otherwise apparent, that this proposal seeks to circumvent these statutory limitations. The OPM regulations issued pursuant to 5 U.S.C. Section 5545(c) state, at 5 CFR Section 550.161(d) (1986), that determinations as to AUO payments ". . . shall be based on consideration of available records of the hours of irregular or occasional overtime work required in the past, and any other information bearing on the number of hours of duty which may reasonably be expected to be required in the future." The Agency does not suggest that the proposal is inconsistent with the quoted regulatory guidelines nor does it assert that the proposal is an inherently inaccurate indicator of future uncontrollabel overtime work. In fact, the Agency states, at 20 of its Statement of Position, that it does not "claim that there is a specific . . . need to include or exclude the first 10 days of an assignment to 'other duties' within the meaning of 5 CFR Section 550.162(c)(1)." c. Compelling Need for the Agency's Regulation The Agency argues that its regulations governing AUO computations meet the criterion for compelling need set forth at section 2424.11(b) and (c) of the Authority's Rules and Regulations. Both of these compelling need arguments were raised in United States Immigration and Naturalization Service, 23 FLRA No. 11 and were rejected by the Authority. For the reasons fully stated in that case, they are likewise rejected here. d. Recertification After Return from Detail In the Agency's assertion of nonnegotiability it contended that the portion of the proposal requiring recertification of employees at the same percentage of AUO for which they were certified prior to their detail is moot. The Agency has not argued that this portion of the proposal is nonnegotiable, nor is it otherwise apparent that it is inconsistent with any law, rule or regulation. In fact, this portion of the proposal appears to be consistent with the Agency's regulation, as modified by the first part of the proposal, concerning the calculation and payment of AUO for employees returning from a detail. Thus, the Authority finds this portion of the proposal to be within the duty to bargain. C. Conclusion The proposal is properly before the Authority and does not conflict with 5 U.S.C. Section 5545(c) of 5 C.F.R. Section 550.151 to .164. Further, the Agency has not demonstrated that negotiation of the proposal is barred by an Agency regulation, DOJ Order 1551.4A, for which a compelling need exists. Consequently, Union Proposal 1 is within the duty to bargain. IV. Union Proposal 2 The Service agrees where possible to attempt to avoid assigning employees who are within three years of retirement to details which have the effect of reducing the employees' compensation for their "high three" years (for retirement purposes). A. Positions of the Parties The Agency contends that the proposal is inconsistent with management's rights to assign employees and work, under section 7106(a)(2)(A) and (B) of the Statute. The Union characterizes the proposal as being "hortatory rather than mandatory" and, thus, within the duty to bargain. B. Analysis In effect, Union Proposal 2 prevents the Agency from assigning certain employees to details which would render them ineligible for AUO payments. A provision similar in effect was before the Authority in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984). Provision 2 in that case sought to prevent the agency from rotating details among employees to avoid compensating them at a higher level. Finding that the provision imposed substantive restrictions on management's right to assign employees by limiting its discretion to determine which particular employees would be assigned, the Authority held the provision to be inconsistent with section 7106(a)(2)(A) of the Statute. In like manner, Union Proposal 2 would prevent the Agency from assigning the specified employees to certain types of details. The detailing of employees in this case involves a change in the work which is assigned to those employees. In this case management would be prevented from assigning to certain employees work for which AUO pay is not authorized. In National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1984), Union Provision 2 required management, "insofar as possible," to refrain from assigning to employees work which was inappropriate to their positions or qualifications. The Authority determined that the provision was inconsistent with management's right, under section 7106(a)(2)(B) of the Statute, to assign work because it specifically prevented the agency from requiring employees to perform certain duties. Further, this analysis is not altered by the inclusion of the qualifying term "to attempt" in the proposal. An argument that qualifying words made a proposal nonmandatory, similar to that urged by the Union here, was addressed in National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarters Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA No. 113 (1985) (Union Proposal 2). In that case, the union suggested that the proposal only required management to "attempt" to undertake certain actions which were otherwise within the realm of management rights. The Authority determined that the import of the proposal was that, where management determined that the prescribed actions were possible, it was obligated to take them. Consequently, the qualification did not cure the proposal's inconsistency with management's rights. Based on the reasoning and cases cited in Keesler Air Force Base, the Union's position in this case cannot be sustained. C. Conclusion Union Proposal 2 substantively violates the rights to assign employees and work reserved to management by section 7106(a)(2)(A) and (B) of the Statute. It is, therefore, outside the duty to bargain. 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 Proposal 1. /*/ IT IS FURTHER ORDERED that the petition for review, as it relates to Union Proposal 2, be, and it hereby is, dismissed. Issued, Washington, D.C., August 14, 1986. /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding Union Proposal 1 to be within the duty to bargain, the Authority makes no judgment as to its merits.