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The decision of the Authority follows:
26 FLRA No. 74 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2182, AFL-CIO Union and PROPULSION LABORATORY U.S. ARMY RESEARCH AND TECHNOLOGY LABORATORIES Agency Case No. 0-NG-1159 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is 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). It concerns the negotiability of six provisions of a negotiated agreement disapproved by the Agency head (U.S. Army Materiel Command) under section 7114(c) of the Statute. /1/ II. Procedural Issue The Union contends that the negotiated agreement became binding when it did not receive the Agency's letter of disapproval within the 30-day period provided in section 7114(c)(3). It states that the letter was received ten days after the time limit, and therefore the time requirement was not met. This contention misses the point. It is "service" and not "receipt" which is the significant event in measuring the timeliness of an agency's disapproval. It is well established that an agency head's notice of disapproval must be served on the union involved within 30 days from the date the agreement is executed by the parties. It can be either mailed by certified mail or delivered in person to the union's designated representative within the 30-day time period. New York State Nurses Association and Veterans Administration, Bronx Medical Center, 6 FLRA 151, 152 (1981). If the disapproval is mailed, the date it is placed in the mail constitutes the date of "service." In this case, the Agency's notice of disapproval was timely served on the Union. The record indicates that the parties signed the negotiated agreement on May 29, 1985, and the Agency mailed its notice of disapproval by certified mail on June 28, 1985. III. Provision 1 Article 8 - Equal Employment Opportunity Section 8.06 The Union shall have the right to have an observer present at discrimination complaint hearings unless the employee who requests the hearing objects on the grounds of privacy and the complaints examiner determines that the objection is valid. The right of the Union to have an observer at the hearing does not in any way impair the right of the employee to choose his or her own representative. A. Position of the Parties The Agency contends that Provision 1 conflicts with Equal Employment Opportunity Commission (EEOC) regulation 29 C.F.R. section 1613.218(c). It argues that the provision "obviates the hearing examiner's authority to determine attendance at the hearing." The Union contends that it is entitled to attend the hearing because the hearing is a formal discussion under section 7114(a)(2)(A) of the Statute. B. Conclusion and Analysis For the following reasons, we find that Provision 1 involves a matter within an agency's discretion which is within the duty to bargain. Under EEOC regulations, agencies have the responsibility for establishing regulations governing their processing of complaints of discrimination. Agencies must ensure that their regulations comply with certain principles and requirements established by the EEOC. See 29 C.F.R. section 1613.211 through 1613.222. One of these principles is that agencies control the powers vested in the complaints examiner who conducts the hearing on a complaint of discrimination. We have previously addressed the authority of EEOC's procedural regulations related to agencies' equal employment opportunity responsibilities. In U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri and National Federation of Federal Employees, Local 29, 22 FLRA No. 74 slip op. at 2 n.3 (1986), we held that EEOC procedural regulations serve only as guidelines to agencies. That is, they involve matters which are within an agency's discretion. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Provision 1 concerns who can attend a discrimination complaint hearing. In our view, like the issue in Corps of Engineers, Kansas City District, this is a matter which is covered by an EEOC procedural regulation and therefore is within the Agency's discretion. The Agency does not claim in this case that the provision: (1) does not involve conditions of employment, or (2) is otherwise inconsistent with applicable law or regulation. We find that no bases for such assertions are apparent. Consequently, the provision is within the duty to bargain. IV. Provision 2 and 3 Provision 2 Article 9 -- Union Officers Section 9.04 The Employer agrees to make every reasonable effort to avoid assigning elected Union officials to a tour of duty other than day shift during the terms of their office. Should such assignment be necessary and for other than voluntary or emergency reasons, the Employer will provide the Union with two weeks advanced written notice providing a full explanation of the necessity for the tour change. Provision 3 Article 11 -- Stewards Section 11.05 The employer agrees that no Steward will be transferred to a different tour of duty without two weeks notification to the Union except in emergency situations. A. Positions of the Parties The Agency contends that the provisions conflict with a Government-wide regulation, 5 C.F.R. section 610.121(b)(2), concerning the establishment of work schedules, citing American Federation of Government Employees, AFL-CIO, Local 2484 and U.S., Army Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985). It also contends that these provisions do not constitute appropriate arrangements or procedures, citing American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985). The Union contends that the provisions do not infringe on the Agency's right to assign work but only require them to plan ahead. B. Conclusion and Analysis We find that Provisions 2 and 3 are outside the duty to bargain. They limit the Agency's ability to revise work schedules of the employees involved in a manner inconsistent with the applicable statutory framework. The fact that these provisions would apply to employees who are union representatives has no bearing on our decision. Under the Statute, an agency has the right to assign work to all employees whether or not they are union officials. American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1014 (1982). In National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986), we held that Proposal 1, which required the agency to give 14 days' notice before changing work schedules, except in emergencies, was outside the duty to bargain. Specifically, we found that applicable law, 5 U.S.C. section 6101(a)(3)(A) and 5 C.F.R. section 610.121(a), provides a minimum 7-day notice period except where: (1) the agency would be seriously handicapped in carrying out its functions, or (2) costs would be substantially increased. We determined that because Proposal 1 in that case restricted the Agency's ability to revise work schedules within the 7-day notice period to emergencies, it was narrower than the exceptions permitted under the statutory framework and, therefore, inconsistent with law and regulation. Provisions 2 and 3 are to the same effect as the proposal in Scott Air Force Base. The provisions require that the Agency provide Union officials and stewards two weeks' notice before changing their tours of duty, except in emergency situations or when the change is voluntary. The provisions do not incorporate the statutory and regulatory exceptions to the notice period stated above. Thus, for the reasons expressed in Scott Air Force Base, we conclude that the provisions are inconsistent with applicable law and regulation and therefore outside the duty to bargain. V. Provision 4 Article 21 -- Safety Section 21.02 The Employer agrees that an employee will not be required to operate equipment, or perform duties where he/she is not qualified to, under conditions which may endanger himself/herself or other employees, or cause damage to property. A. Positions of the Parties The Agency contends that the provision interferes with its right to assign work under section 7106(a)(2)(B) by precluding it from determining which position or employee will be assigned certain work, citing National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775 (1980). The Agency further contends that the provision restricts its right to assign work by imposing an obligation to assign work only to qualified personnel, citing National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981). The Union contends that the provision concerns matters contained in 29 C.F.R. section 1960.46, which implements Executive Order 12196, Occupational Safety and Health Programs for Federal Employees. B. Conclusion and Analysis Provision 4 is outside the duty to bargain. It is inconsistent with the Agency's right to assign work under section 7106(a)(2)(B). Proposals which limit an agency's right to assign work by restricting the assignment of work to "qualified" employees are outside the duty to bargain. International Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA 432, 433-34 (1984) and National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 594-95 (1981). Proposals which establish a condition upon management's ability to exercise its right to assign work eliminate the discretion inherent in the right to assign work and are also outside the duty to bargain. Laborers International Union, Local 1276, AFL-CIO and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 15 FLRA 49, 50 (1984) and National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775, 777 (1980). Provision 4 is to the same effect as the proposals in Yuma Proving Ground and Defense Depot Tracy. The provision precludes management from assigning work, including the operation of equipment: (1) to employees who are not "qualified" to perform the work, and (2) under conditions which may endanger employees or cause damage to property. Thus, it precludes management from assigning work to certain employees and establishes a condition upon management when assigning work, thereby eliminating the discretion inherent in the right to assign work. It is therefore distinguishable from a proposal which does not preclude the assignment of work but requires management to consider health and safety factors in assigning work. Proposals which merely require consideration of health and safety factors have been found to be within the duty to bargain. See National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578, 581 (1984); American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 91 (1983); National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 586 (1981). VI. Provision 5 Article 35 -- Hour of Duty Section 35.02 To meet operational requirements at the Laboratory, it may be necessary to assign certain personnel to shift work or a tour of duty other than the normal basic workweek. Employees will be given as much advance notice as possible of any changes in their regular scheduled hours of duty. As a minimum, employees will be given at least 3 calendar days advance notice unless there are emergency conditions or unforeseen circumstances which preclude this. Tours of duty will not be established or modified for the purpose of avoiding the payment of holiday or overtime pay or for the convenience of the employee. (Only the underlined portion of the provision is in dispute.) A. Positions of the Parties Regarding the first disputed sentence, the Agency's position is the same as stated for Provision 2. Regarding the second disputed sentence, the Agency contends that it interferes with management's right to assign work by prohibiting the assignment of work during holidays except under certain conditions. The Union contends that management should schedule work in advance and that the provision would not prevent management from "acting at all." Union Response at 3. B. Conclusion and Analysis Provison 5 is outside the duty to bargain. The disputed sentences would, under statutory and regulatory authority, impermissibly restrict the Agency's right to revise employee work schedules. In Scott Air Force Base, 23 FLRA No. 97, we determined that because Proposal 1 in that case restricted the Agency's ability to revise work schedules within the 7-day notice period to emergencies, provided by applicable law, it was narrower than the exceptions permitted under the statutory framework and, therefore, inconsistent with law and regulation. In International Association of Machinists and Aerospace Workers, Local Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 24 FLRA No. 55 (1986), we held that a proposal was outside the duty to bargain which precluded changing tours of duty to avoid payment of overtime, night differential, Sunday or holiday pay, unless two weeks notice was given. Like Provision 4, the two disputed sentences are to the same effect, respectively, as the proposals in Scott Air Force Base and Aberdeen Proving Ground. The disputed sentences would, under statutory and regulatory authority, impermissibly restrict the Agency's right to revise employee work schedules. VII. Provision 6 Article 36 -- Overtime Section 36.02 The Employer recognizes the desirability of maintaining an equitable balance of overtime among the maximum of qualified employees of the same trade within each work area. For purpose of this Article, "qualified" means: having the trade skills, background knowledge and facility experience necessary to accomplish the overtime tasks assigned in a safe and efficient manner as judged in the light of the specific facts of the work situation. A. Positions of the Parties The Agency contends that the second sentence of the provision interferes with management's right to assign employees and to assign work. It argues that the provision interferes with its right: (1) to make qualification determinations when assigning employees by limiting management's ability to establish other qualifications than those enumerated in the provision, and (2) to assign work to employees having qualifications other than those enumerated in the provision. In support of its position, the Agency cites American Federation of Government Employees and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980). The Union contends that the provision is an agreement with management on the definition of "qualified" and that management would still retain the right to determine who is qualified. B. Conclusion and Analysis Provisions 6 is outside the duty to bargain. The provision would limit the Agency's discretion, inherent in its right to assign employees, to determine the qualifications and skills necessary to do assigned work. In American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), the Authority stated that the right to assign employees, pursuant to section 7106(a)(2)(A), includes not only the right to decide to assign an employee to a position but also the discretion to determine the personnel requirements of the work of the position. That is, the right includes the discretion to determine the qualifications and skills needed to do the work as well as such job-related individual characteristics as judgment and reliability. Provision 6 expressly limits the Agency's discretion to determine the qualifications and skills necessary to accomplish assigned overtime tasks. Thus, it directly interferes with the Agency's exercise of its right to assign employees. VIII. Order The Agency must bargain, upon request or as otherwise agreed to by the parties, over Provision 1. /2/ Provision 2 through 6 are dismissed. Issued, Washington, D.C., April 20, 1987. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member /s/ Jean McKee Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) We will not consider in this decision nine additional provisions contained in the petition for review. The Agency withdrew its allegations of nonnegotiability on four provisions rendering the disputes irrelevant: Sections 22.04 (Employee Training and Development), 23.03 (Job Classification), 35.06 (Hours of Duty), and 38.02 (25 Percent Premium Pay). The Union withdrew its appeal of five other provisions: Sections 5.06 (Rights and Obligations of Employees), 14.02 (Temporary Assignments), 28.03 (Career Promotions), 36.05 (Overtime), and 37.01 (Tools). (2) In finding Provision 1 to be within the duty to bargain, the Authority makes no judgment as to its merits.