26:0600(74)NG - AFGE Local 2182 and Propulsion Laboratory, Army Research and Technology Laboratories -- 1987 FLRAdec NG

 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.