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The decision of the Authority follows:
26 FLRA No. 107 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1799, AFL-CIO Union and U.S. ARMY, ABERDEEN PROVING GROUND ABERDEEN PROVING GROUND, MARYLAND Agency Case No. 0-NG-1281 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 three provisions of a negotiated agreement disapproved by the head of the Agency under section 7114(c) of the Statute. /1/ II. Provision 1 Article 12 -- Hours of Work and Basic Work Week Section 2. When a change in established tours of duty is required, the employer will normally notify the employee or employees at least one administrative work week in advance. The revised tour of duty will continue over a period of not less than one basic work week. /2/ (Footnote added.) A. Positions of the Parties The Agency contends that provision 1 conflicts with a Government-wide regulation, 5 C.F.R. Section 610.121(b)(2), concerning the establishment of work schedules as interpreted and applied by the Authority in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985). It argues that an employee's tour of duty could not be changed if the Agency became aware of the need to make the change less than one week before the tour of duty. It also argues that use of the word "normally" does not bring the provision into conformance with the applicable Government-wide regulation. The Union contends that the Agency and the decision in Fort Detrick misinterpret the applicable Government-wide regulation. It argues that the regulation requires an agency head to change a tour of duty only if the agency head determines: (1) that the agency would be seriously handicapped in carrying out its functions or (2) that costs would be substantially increased. Thus, it concludes that in the absence of such circumstances, that is, under normal conditions, the Agency must notify employees one administrative workweek (seven consecutive calendar days) before changing their tour of duty. It states that the provision "consists of mere general language requiring the agency to notify the affected employee in advance of a change in his established tour of duty, only under normal circumstances(.)" Reply brief at 3 (Emphasis in original). B. Analysis and Conclusion Provision 1 is within the duty to bargain. It does not impermissibly restrict the Agency's right, under statutory and regulatory authority, to revise an employee's tour of duty. 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 reconsidered the rationale for our decision in Fort Detrick and concluded that it should no longer be followed. We found that under applicable law and regulation, 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a), employees must have a minimum 7-day notice of a change in work schedule except where: (1) the agency would be seriously handicapped in carrying out its functions, or (2) costs would be substantially increased. 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. The present provision, unlike Scott Air Force Base, does not restrict the Agency's ability to revise a tour of duty within the minimum 7-day notice period to specific circumstances, for example, in emergencies. In our view, the phrase "normal conditions" in provision 1 simply means a work situation where the two exceptional circumstances stated in 5 C.F.R. Section 610.121(a) do not exist. Thus, under such "normal conditions" the 7-day notice period required by applicable law would apply. Accordingly, the Agency has not established that provision 1 is inconsistent with law and regulation. Rather, the provision simply reflects the minimum notice period required in the absence of the statutory and regulatory exceptions to the notice period. The absence of restrictions on the Agency's ability to revise tours of duty distinguishes provision 1 from provisions 2 and 3 in American Federation of Government Employees, Local 2182, AFL-CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 No. 74, slip o. at 4-5 (1987). In that case, provisions 2 and 3 -- which required two weeks notice before changing tours of duty unless the change was for voluntary or emergency reasons -- were found to be outside the duty to bargain because those restrictions were narrower than the exceptions permitted under the statutory framework. In contrast, provision 1 contains no such restrictions. III. Provision 2 Article 16 -- Travel When practicable, this travel normally will be arranged within the employee's scheduled hours of work. A. Position of the Parties The Agency contends that provision 2 conflicts with the right to assign work under the Statute. It argues that the provision requires the Agency to assign travel during an employees scheduled hours of work and therefore restricts management from assigning other duties to employees during that time. In support of its position, it cites National Association of Government Employees, Local R-12-33 and National Federation of Federal Employees, Local 1374 and Pacific Missile Test Center, Point Mugu, California, 14 FLRA 275 (1984). It also argues that use of the terms "when practicable" and "normally" does not change the provision's requirement to arrange travel during an employee's scheduled hours of work. The Union states without opposition that the provision applies to employees who are required to travel periodically to either teach or otherwise participate in training seminars. It contends that the Agency's reliance on Pacific Missile Test Center is not applicable because the proposal in that case, unlike provision 2, involved so called "portal-to-portal" pay. It also argues that the provision is consistent with 5 C.F.R. Section 610.123. Finally, the Union argues that if the provision is found to interfere with the right to assign work it is still within the duty to bargain as an appropriate arrangement under section 7106(b)(3). B. Analysis and Conclusion Provision 2 is within the duty to bargain. It does not interfere with the Agency's exercise of discretion when assigning work and is not inconsistent with applicable law and regulation concerning travel during duty hours. The Agency's reliance on Pacific Missile Test Center is misplaced. In that case, the proposal held to be nonnegotiable had the effect of shortening the workday by requiring that commuting time to and from the official duty stations be considered hours worked. It thereby precluded management from assigning other duties at those times of the workday. In contrast, provision 2 does not concern regular travel to and from official duty stations. Rather it only concerns travel away from an employee's official duty station periodically to teach or participate in training seminars. Proposals which require travel during a scheduled workweek are outside the duty to bargain. In American Federation Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752, 757-58 (1985), the Authority found proposal 5 (requiring travel be scheduled only during regular duty hours) was a "flat prohibition of travel outside regular hours and days of work" and therefore interfered with the right to assign work. In reaching that conclusion, the Authority cited American Federation of Government Employees, AFL-CIO, Local 3424 and Federal Home Loan Bank Board, San Francisco, California, 14 FLRA 79 (1984). In Federal Home Loan Bank Board, 14 FLRA at 80 n.1, the Authority found proposal 1 required travel during the scheduled workweek even where not practicable. However, in so finding, it noted: (1) 5 U.S.C. Section 6101(b)(2) requires an agency to arrange travel during the scheduled workweek "to the maximum extent practicable" and (2) management must exercise its rights under section 7106(a)(2) in accordance with applicable laws. In the present case, unlike XVIII Airborne Corps and Federal Home Loan Bank Board, provision 2 is not a "flat prohibition of travel outside regular hours and days of work." It only requires that travel normally will be arranged within the employee's scheduled hours of work, when practicable. Thus, the provision is consistent with 5 U.S.C. Section 6101(b)(2) and 5 C.F.R. Section 610.123 and does not remove management's exercise of discretion when assigning work. In view of this conclusion, we find it unnecessary to reach the Union's argument concerning section 7106(b)(3). IV. Provision 3 Article 27 -- Career Appraisals and Performance Rating Section 10. An employee who believes that he has been adversely affected by application of performance standard may raise the issue of whether the performance standard, as applied to the employee, is fair and reasonable in any grievance proceeding or arbitration concerning the matter. A. Positions of Parties The Agency contends that provision 3 allows the contents of performance standards to be grieved and allows an arbitrator to substitute his or her judgment for that of management. In support of its position, the Agency cites: American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA 32, (1985) (Proposal 3); American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981) (Proposals 1 and 2); Bureau of Engraving and Printing, U.S. Department of the Treasury and Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA 380 (1985). The Union contends that the Agency has misinterpreted the provision. It states that the provision "simply provides that should a unit employee believe he was adversely affected by the application of a performance standard, the aggrieved employee may allege that the Performance Standard was not applied to him in a fair and reasonable manner." Reply Brief at 6. The Union argues that provision 3 is like proposal 5 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) and proposal 1 in American Federation of State, County, and Municipal Employees, AFL-CIO, Locals 2477 and 2910 and Library of Congress, 17 FLRA 786 (1985). The Union also argues that the provision is an appropriate arrangement under section 7106(b)(3). B. Conclusion and Analysis Provision 3 is within the duty to bargain. As contended by the Union, the provision only provides that the application of performance standards is subject to grievance and arbitral review. The Union contends that it does not allow an arbitrator to determine whether the performance standards themselves are fair and reasonable, and we so interpret it for purposes of this decision. In view of this conclusion, we find it unnecessary to reach the Union's argument concerning section 7106(b)(3). It is well established that proposals which substantively restrict management's identification of critical elements of a position and establishment of performance standards interfere with management's right to direct employees and to assign work under section 7106(a). National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775-76 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). It is also well established that general nonquantitative requirements by which the application of performance standards may subsequently be evaluated in a grievance, by an employee who is adversely affected, do not directly interefere with management's right under section 7106(a) to establish performance standards. Such a reivew by an arbitrator would not result in the substitution of the arbitrator's judgment for that of the agency as to the content of the standards themselves or as to the appropriate performance evaluation for the grievant. It would simply determine if the performance standard as applied to the grievant complied with the fair and equitable requirements of the parties' agreement. Office of Personnel Management, 3 FLRA at 792. In the present case, the language of the provision prescribes criteria -- fair and reasonable -- for reviewing only the application of a performance standard to an employee. The provision does not authorize a grievance over the content of a performance standard. As such, it would not permit arbitrators to substitute their judgments for those of the Agency as to the content of a performance standard. Provision 3 is therefore distinguishable from American Federation of Government Employees, AFL-CIO, Local 1603 and U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA No. 60 (1986). That is, the provision in U.S. Naval Hospital, Patuxent River was not limited to a requirement that the application of performance standards be fair and equitable. Rather, the second sentence of the provision required an arbitrator to determine whether the standards themselves were fair and reasonable. Thus, the Authority concluded that the entire provision was nonnegotiable. It would permit arbitrators to substitute their judgment as to the proper content of performance standards for that of the agency. Provision 3 is also distinguishable from the three cases cited by the Agency. Those cases -- unlike the present case -- did not solely concern the application of performance standards. They concerned: (1) the identification of critical elements (Saint Lawrence Seaway Development Corporation); (2) the establishment of performance standards (Office of Personnel Management); and (3) the methodology used and the allowance of "down time" in performance standards (Bureau of Engraving and Printing). As such, they all would have permitted arbitrators to overturn an agency's determination of critical elements or performance standards and to render awards requiring an agency to use different elements and standards. V. Order The agency must rescind its disapproval of provisions 1, 2, and 3. /3/ Issued, Washington, D.C., April 30, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Memeber FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) We will not consider in this decision two additional provisions contained in the petition for review. The Union withdrew its appeal of Sections 5 and 8 of Article 27 (Career Appraisal and Performance Rating) during the time the case was pending. (2) An "administrative workweek" is a period of seven consecutive calendar days. A "basic workweek" for full-time employees means a 40-hour workweek. A "tour of duty" means the hours of a day and the days of an administrative workweek that constitute an employee's regularly scheduled administrative workweek. 5 C.F.R. Section 610.102(a), (c), and (h). (3) In finding these provisions to be within the duty to bargain, the Authority makes no judgment as to their merits.