23:0224(29)NG - AFGE, Council of Prisons Locals, Local 171 and Justice, Federal Prison System, Federal Correctional Institution, El Reno, OK -- 1986 FLRAdec NG

[ v23 p224 ]
The decision of the Authority follows:

 23 FLRA No. 29
                                            Case No. 0-NG-1172
                         I.  Statement of the Case
    This case is before the Authority on a petition for review of
 negotiability issues filed by the Union under section 7105(a)(2)(E) of
 the Federal Service Labor-Management Relations Statute (the Statute).
 The petition seeks review of the disapproval of a number of provisions
 in the parties' local supplemental agreement during review of that
 agreement by the Agency head pursuant to section 7114(c) of the Statute.
                          II.  Procedural Issues
    The Agency argues that the Union's petition for review was untimely
 filed and that it is otherwise procedurally defective because the Union
 did not serve a copy of the petition on the Agency head and did not
 attach a copy of management's declaration of negotiability to the
 petition filed with the Authority.  The Agency moves that the petition
 be dismissed on those procedural grounds.  The Authority has determined,
 however, that the Union's petition was timely filed under the
 Authority's Rules and Regulations and that any other procedural
 deficiencies were corrected by the Union upon notification and within
 the time provided by the Authority for such corrective action.
 Accordingly, the Agency's motion to dismiss the appeal is denied.
    In addition, the Authority will not consider the Union's petition
 regarding Article 18, Section E of the parties' agreement since the
 Agency states that it did not disapprove that provision.  Likewise, the
 Authority will not consider the Union's petition regarding Article 27,
 Section A since the Union withdrew its petition for review as to that
                             III.  Provision 1
                Article 18 -- Assignment and Hours of Work
          Section C:  Any institutional department finding it necessary
       to pay overtime will give first consideration for overtime work to
       employees within the department, then to other qualified employees
       of the institution.
                       A.  Positions of the Parties
    In its disapproval of the provision, the Agency declared that the
 language was negotiable only if management retained the authority to
 make final determinations as to the qualifications required to perform
 overtime work and if the provision did not preclude management from
 assigning work to employees in other departments on a non-overtime
 basis.  In its petition for review, the Union states that the provision
 allows management to unilaterally determine the qualifications needed to
 perform work and to assign work to any employee, regardless of
 department, consistent with the "first consideration" for overtime work
 requirement of the provision.  The Union further argues that the
 provision does not pertain to non-overtime work and, therefore, that it
 does not preclude management from acting in any way with respect to
 non-overtime work assignments.  In its statement of position concerning
 the Union's petition, the Agency acknowledges that, in view of the
 Union's interpretation of the disputed provision, its objection to the
 provision based on the Agency's concern for ensuring management's right
 to determine qualifications for performing work is now moot.  However,
 the Agency continues to maintain that it is not clear whether the
 provision is intended to preclude management from assigning work to
 employees in other departments during regular duty hours.  The Agency
 argues that, if the provision is so intended, then it is nonnegotiable
 because it would interfere with management's right to assign work under
 section 7106(a)(2)(B) of the Statute.
                       B.  Analysis and Conclusions
    The agreement provision disapproved by the Agency head expressly
 deals with overtime work.  Moreover, as clearly and unequivocally
 interpreted by the Union, which interpretation is consistent with the
 plain language of the provision, the provision in no manner prevents
 management from assigning work to employees in other departments during
 regular duty hours.  The Authority therefore concludes that the
 provision does not interfere with management's rights under section
 7106(a)(2)(B) of the Statute and that it is within the duty to bargain.
                             IV.  Provision 2
                Article 18 -- Assignment and Hours of Work
          Section H:  The principal day shift hours of work will be 7:30
       AM to 4:00 PM with a half hour uninterrupted lunch period.
                       A.  Positions of the Parties
    The Agency's position essentially is that the provision concerns a
 permissive subject of bargaining under section 7106(b)(1) of the Statute
 and that the parties' National Controlling Agreement prohibits local
 supplemental bargaining on such permissive subjects.  In support of its
 position, the Agency relies on the Authority's decision in Department of
 the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984), and
 argues that since the provision concerns the hours of the day shift, the
 shift when most of the institution's offices are open and business and
 activities are conducted, the provision would have the effect of
 determining the numbers, types and grades of employees assigned to a
 tour of duty, a matter covered by section 7106(b)(1), which is
 negotiable only at management's election.  The Agency also states that
 if the provision simply requires the Union to be informed of any
 proposed change in existing day shift hours and given an opportunity to
 bargain on the impact and implementation of such a change, the provision
 is negotiable.
    The Union argues that the provision simply describes the principal
 day-shift hours at the institution;  that it does not establish a shift
 or tour of duty within the meaning of section 7106(b)(1) of the Statute;
  that it does not limit management from conducting any business on any
 shift;  and that it does not preclude the employer from adjusting the
 shift or establishing a new one so long as the rights of the exclusive
 representative are respected.  The Union therefore maintains that there
 is no section 7106(b)(1) issue presented by the provision and that the
 Authority's decision in Lowry is not applicable in this case.  Moreover,
 the Union argues that even if the provision concerns a permissive
 subject of bargaining under section 7106(b)(1), since the local parties
 bargained and agreed upon the provision, management was thereafter
 precluded from asserting any section 7106(b)(1) arguments as a basis for
 disapproving the provision during review of the agreement under section
 7114(c) of the Statute.