[ v26 p926 ]
26:0926(107)NG
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.