26:0926(107)NG - AFGE Local 1799 and Army, Aberdeen Proving Ground, Aberdeen Proving Ground, MD -- 1987 FLRAdec NG

 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.