[ v24 p126 ]
The decision of the Authority follows:
24 FLRA No. 17 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-8 Union and VETERANS ADMINISTRATION MEDICAL CENTER, TOPEKA, KANSAS Agency Case No. 0-NG-1218 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of five Union proposals. /1/ II. Union Proposal 1 ARTICLE 10 Section 4. A steward or employee may request permission from his/her supervisor to report on duty one hour early or late, and be relieved from duty one hour early or late, whichever may be required to permit the steward to assist an employee, who is working a different shift, in the processing of a grievance during both the steward's and employee's on-duty time. Determination to grant the request will be based on staffing workload requirements as well as whether the change would result in the tour of duty extending over two days. A. Positions of the Parties The Agency contends that the proposal would interfere with its right under secion 7106(a)(2)(B) to assign work by prohibiting it from assigning duties to a Union officer or steward during the first or last hour of a shift so that the employee could process grievances. The Agency also argues that Proposal 1 would have the effect of granting compensatory time to an employee in circumstances not authorized under 5 U.S.C. Section 5543. The Agency further contends that the proposal is inconsistent with 5 C.F.R. Section 610.121, a Government-wide regulation. It claims that the proposed adjustment would require the Agency to schedule employees on the basis of union representational activities rather than the Agency's mission as required by the regulation. The Union contends that its proposal would only require the Agency to consider the request of a Union officer or steward for official time. It claims that the proposal would enhance an employee's ability to have the Union representative of his or her choice. The Union also argues that the proposal would not require the Agency to adjust schedules but instead would allow the Union representative and the employee to use the official time to which they are otherwise entitled at a time which would be convenient. Finally, the Union contends that Proposal 1 would not require the grant of compensatory time since it would not affect the number of hours worked by an employee during the week. B. Analysis and Conclusions As the Authority has previously indicated, parties may negotiate procedures and practices which do not negate an agency's rights but which would enable a union to implement its statutory rights and duties with respect to the representation of employees. See American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1014-15 (1982) (Union Proposal 7). In National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 926 (1979), the Authority found that a proposal that would adjust the starting and quitting times of employees did not violate the agency's rights under section 7106(b)(1) and was within the duty to bargain. Union Proposal 1 is similarly concerned with adjusting the starting and quitting times of Union officials when those officials are processing grievances involving an employee on a shift other than their own. Contrary to the Agency's contentions, the proposal does not prohibit it from assigning duties to the Union officials covered by the proposal. Rather, Proposal 1 merely concerns the time when those officials will perform either duties which the Agency has already assigned to them or representational functions on official time as negotiated pursuant to section 7131(d) of the Statute. See 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, 665 (1982) (Union Proposal 1). Moreover, by its terms, the Union's proposal does not require the request to be granted and specifically provides for consideration of the Agency's staffing workload requirements. Consequently, we find that Union Proposal 1 constitutes a procedure within the meaning of section 7106(b)(2) which does not violate management's right to assign work. We find no basis upon which to conclude that the Union's proposal constitutes a grant of compensatory time. Additionally, the Agency has not demonstrated that Union Proposal 1 would require it to schedule employees in a manner other than that required by 5 C.F.R. Section 610.121. Compare National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986), in which the Authority found that Union Proposal 1 requiring 14 days advance notice of a scheduling change was outside the duty to bargain in that the proposal made no allowance for exceptions to the 14-day requirement as provided under 5 C.F.R. Section 610.121 and 5 U.S.C. Section 6101. Accordingly, Union Proposal 1 is within the duty to bargain. III. Union Proposal 2 ARTICLE 11 Section 2. When an employee changes work shifts, he/she will not be required to report for duty for eleven (11) hours. Section 9. Employees will not be required to work more than two tours of duty in one workweek except to allow for a minimum of eleven (11) hours between the end of one tour and the beginning of the next. A. Positions of the Parties The Agency contends that Union Proposal 2 is inconsistent with 5 C.F.R. Section 610.121, a Government-wide regulation which requires it to schedule employees consistent with actual work requirements. The Agency argues that the proposal would require it to provide employees with eleven hours between each shift worked by an employee regardless of actual work requirements. The Union contends that the proposal does not conflict with the regulation cited by the Agency. It claims that Proposal 2 does not prevent the Agency from acting at all to schedule employees in accordance with mission requirements. B. Analysis and Conclusion The Authority finds that Union Proposal 2 is outside the duty to bargain for a reason other than that raised by the Agency. Union Proposal 2 would prohibit the Agency from scheduling an employee to work on a shift if that employee had worked during the previous eleven hours, or to schedule an employee for two different tours of duty in the same week except to provide the employee with an eleven hour interval between shifts, regardless of the Agency's work requirements and whether that employee's particular skills were needed on a particular shift. Such requirements would place a condition upon the Agency's exercise of its right to assign work and could prevent the Agency from determining what duties were to be performed on what shift in violation of section 7106(a)(2)(B). See National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 774 (1980). By contrast, Union Proposal 1 would not affect the Agency's discretion to determine what work was to be performed on what shift, and enables the Agency to consider its staffing workload requirements when acting on requests for adjustments in starting and quitting times. Accordingly, we conclude that Union Proposal 2 is outside the duty to bargain. In view of this determination, we need not determine whether the proposal is also inconsistent with 5 C.F.R. Section 610.121. IV. Union Proposal 3 ARTICLE 11 Section 6. Ordinarily, employees' days off will be consecutive. Employees' days off will not be arbitrarily split. An employee's written request for alternative scheduling including split days off will be considered. A. Positions of the Parties The Agency contends that Union Proposal 3 is inconsistent with 5 C.F.R. Section 610.121, a Government-wide regulation which requires it to schedule employees consistent with actual work requirements. It argues that Union Proposal 3 would require it to schedule employees for consecutive days off regardless of the Agency's actual work requirements. The Union disputes the Agency's contentions. B. Analysis and Conclusion The Authority finds that Union Proposal 3 is to the same effect as the proposal which we found to be within the duty to bargain in American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress, 14 FLRA 59 (1984). In that case we held that a proposal to rotate days off for certain agency employees was not contrary to any of the management rights raised by the agency. Similarly, the Agency does not contend, and it is not otherwise apparent, that Union Proposal 3 here is inconsistent with any management rights. Additionally, we reject the Agency's contention that the proposal would prevent it from scheduling employees consistent with actual work requirements. The proposal provides that employees will "ordinarily" be given consecutive days off. The Union states that the Agency need not provide employees with consecutive days off where patient care would be adversely affected. Union Petition for Review at 2. We accept the Union's interpretation and find that, while it would require the Agency to attempt to provide consecutive days off in most cases, the proposal would not require consecutive days off where the Agency determines that patient care would be adversely affected. Accordingly, we conclude that Union Proposal 3 is not inconsistent with 5 C.F.R. Section 610.121 and is within the duty to bargain. V. Union Proposal 4 ARTICLE 11 Section 7. Since the eating of meals by GS employees between 6:00 p.m. and 6:00 a.m. will reduce the amount of night differential pay for the shift, these employees will not ordinarily be required to eat their meals within this time period. A. Positions of the Parties The Agency contends that Union Proposal 4 violates its right under section 7106(a)(2)(B) to assign work. The Union contends that the proposal is merely concerned with when employees will take the 30-minute meal period to which they are entitled. B. Analysis and Conclusion The Authority finds that Union Proposal 4, like Union Proposal 1 discussed above, does not prevent the Agency from assigning duties to the employees covered by the proposal. Proposal 4 does not concern whether employees are entitled to a meal period or how long that period should be. Rather, the proposal is concerned with when employees will take the 30-minute meal period to which they are entitled. The Authority has held that the time at which means or breaks will be observed is within the duty to bargain. See American Federation of Government Employees, Local 3342, AFL-CIO and Department of Health and Human Services, Social Security Administration, 19 FLRA No. 124. slip op. at 2-3 (1985) (breaks); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 19 FLRA No. 123, slip op. at 4 (1985) (lunch periods). Additionally, the proposal provides that the employees "ordinarily" will not be required to eat their meals during the 6:00 p.m. to 6:00 a.m. period. The Union states that this will give the Agency flexibility to require the meal period to occur during the specified hours if necessary. Union Reply Brief at 8. The language of the proposal is not inconsistent with the Union's stated intent and we adopt the Union's interpretation. Accordingly, for the reasons set forth above, we find that Union Proposal 4 does not violate the Agency's rights and is within the duty to bargain. VI. Union Proposal 5 ARTICLE 15 Section 2. Employees will not be held responsible for conditions in their immediate work area beyond what can be reasonably expected based on job training or duties beyond the scope of their position description; however, employees have the obligation to report obvious hazards or unlawful activities of which they become aware. A. Positions of the Parties The Agency contends that Union Proposal 5 violates its right under section 7106(a)(2)(B) to assign work by preventing it from requiring an employee to perform duties for which the employee has not been given job training or which are outside the employee's position description. The Union contends that the proposal would not prevent the Agency from assigning duties to employees. Rather, the Union states that its proposal merely provides that an employee will not be held responsible or be subject to a performance-based action because of duties for which the employee has not been trained or which are outside the employee's position description. The Union suggests the proposal merely incorporates into the parties' agreement circumstances in which an arbitrator would not uphold a performance-based action against an employee. B. Analysis and Conclusions The Authority finds, contrary to the Agency's interpretation, that Proposal 5 would not prevent the Agency from assigning duties to employees. Rather, as contended by the Union, the proposal would prohibit the Agency from using assigned duties as the basis for a performance evaluation or a performance-based action where (1) an employee has not been trained to perform the assigned duties; or (2) the assigned duties are beyond the scope of the duties in the employee's position description. The Authority has found that a proposal prohibiting an agency from evaluating employees' performance of duties not within their job descriptions is within the duty to bargain. American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 11 FLRA 608, 611-12 (1983) (Union Proposal 2). The Authority held that such a proposal would not prevent the agency from evaluating employees on any particular duties since the agency could always add the functions upon which it wished to evaluate employees to the employees' position description. The Authority has also held, however, that a proposal prohibiting an agency from evaluating employees upon certain functions unless the agency first provides training violates management's rights. American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723 (1982). The Authority found that the proposal in Otis Air Force Base would condition the agency's exercise of one of its reserved rights upon the prior exercise of another of its rights. That is, the proposal conditioned the agency's determination of the duties and functions upon which employees' performance would be appraised, an exercise of its right to direct employees and assign work under section 7106(a)(2)(A) and (B), upon its prior decision as to what training should be assigned, an exercise of its right to assign work under section 7106(a)(2)(B). Similarly, the portion of Union Proposal 5 here that prevents the Agency from holding an employee responsible for those duties for which it has not provided training would prohibit the Agency from exercising its rights to direct employees and assign work by evaluating employees unless it had first exercised its right to provide training to those employees. Accordingly, to the extent that Union Proposal 5 prevents the Agency from holding employees responsible for duties for which it has not provided training, it is outside the duty to bargain. VII. 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 1, 3, and 4. /2/ IT IS FURTHER ORDERED that the Union's petition for review as to Union Proposals 2 and 5 be, and it hereby is, dismissed. Issued, Washington, D.C., November 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union withdrew its appeal as to one additional proposal concerning Agency searches of desks and lockers. Consequently, this proposal will not be considered further here. (2) In finding these proposals to be within the duty to bargain the Authority makes no judgment as to their merits.