[ v23 p224 ]
The decision of the Authority follows:
23 FLRA No. 29 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF PRISONS LOCALS, LOCAL 171 Union and DEPARTMENT OF JUSTICE, FEDERAL PRISON SYSTEM, FEDERAL CORRECTIONAL INSTITUTION, EL RENO, OKLAHOMA Agency Case No. 0-NG-1172 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 provision. 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. B. Analysis and Conclusions The Authority finds that the Agency has made no showing that the disputed provision establishes a new shift or changes the hours of an existing shift. Thus, the Agency has failed to establish that the provision affects the numbers, types and grades of employees assigned to a tour of duty within the meaning of section 7106(b)(1) of the Statute. The provision, as interpreted by the Union, simply describes the hours of the existing principal day shift at the institution. Moreover, the provision does not prevent management from changing the hours of that shift or establishing any new shift, consistent of course with the rights of the Union in such a situation. The Authority therefore concludes that the provision is within the duty to bargain. Consequently, it is irrelevant whether or not the parties' Master Agreement prohibits local supplemental agreements on permissive subjects of bargaining. V. Provision 3 Article 18 -- Assignment and Hours of Work Section I: The employer agrees that when an employee works three (3) hours in excess of eight hours, he/she, shall be given the opportunity to purchase a meal or time off to obtain a meal. A. Positions of the Parties In its disapproval notice, the Agency stated that this provision would be appropriate if the local parties agreed that the time spent away from work obtaining and eating a meal is not compensable as overtime. In its petition for review, the Union maintains that the provision does not provide authorization to approve or deny overtime. The Union further maintains that circumstances may or may not warrant overtime in a particular situation, but that overtime compensation determinations are subject to other provisions of the parties' agreement and governing laws and decisions of the Comptroller General. In its statement of position regarding the Union's petition, the Agency states that since the Union appears to recognize that the provision cannot authorize overtime pay for meal times and that overtime is subject to law and Comptroller General decisions, the issue "appears to be moot." Agency Statement at 8. However, the Agency did not rescind its disapproval of the provision. B. Analysis and Conclusions The Union has specifically interpreted the disputed provision as not authorizing overtime for meal times and acknowledged that overtime compensation is a matter subject to law, Comptroller General decisions and other provisions of the parties' agreement. Given that interpretation, which the Agency does not refute and which is consistent with the plain language of the provision, the Authority concludes that the provision is within the duty to bargain. VI. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency rescind its disapproval of the provisions of the local parties' agreement numbered 1, 2 and 3 above. /*/ Issued, Washington, D.C., August 15, 1986 /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) The Agency acknowledged that its disapproval of Provisions 1 and 3 might be moot. As discussed in our decision, the Union's clear and unequivocal statements of intent concerning these provisions show that the Agency's claims are baseless. Any disagreement over these provisions should have been resolved bilaterally. In the future, we urge the Agency to act in a more positive manner, so as not to burden the Union and the Authority with the resolution of unnecessary disputes.