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The decision of the Authority follows:
35 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS ADMINISTRATION MEDICAL CENTER
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 12, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on 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 two proposals submitted by the Union.(1)
The proposals were submitted in conjunction with a settlement agreement reached on an unfair labor practice charge that the Union had filed against the Agency. The unfair labor practice charge and the proposals concern a change that the Agency instituted in the assignment of flag placement duties. Prior to the change, the Agency had rotated the duty of putting up and taking down approximately 50 flags on holidays and special ceremonial occasions between the Building Management Service and the Engineering Service. Subsequent to the change, the duties were assigned solely to the Engineering Service.
One proposal provides that where flag placement duties have been assigned on holidays, the entire period beginning with the commencement of the duties associated with putting the flags up and ending with the completion of the duties associated with removal and storage of the flags be treated as hours of work for purposes of compensation. The other proposal is that the Agency will negotiate with the Union a voluntary system for assigning flag placement duties on holidays. The Agency asserts that both proposals are nonnegotiable: the first, because it is inconsistent with provisions of law and Government-wide regulation; and, the second, because it is inconsistent with management's right to assign work.
We find that: (1) the parties have not created a record that is sufficient to determine whether the first proposal is negotiable, and (2) the second proposal is negotiable.
II. Procedural Matter
Because the Union's response to the Agency's statement of position appeared to be untimely filed, the Authority issued an Order to Show Cause requiring the Union to provide documentation concerning the date that it had received the Agency's statement of position. In response, the Union stated that it had no documentary record to show the date on which it had received the Agency's statement of position. The Union contended that several circumstances had delayed its receipt of the Agency's statement of position and that its response was timely filed, but failed to provide the Authority with the date on which it claims to have received the Agency's statement of position.
The Authority then ordered the Union to submit a statement setting forth the date on which it had received the Agency's statement of position. The Authority informed the Union that it needed such a statement in order to determine whether the Union's response to the Agency's statement of position was timely filed. The Union failed to respond.
In view of the Union's failure to provide the information requested, we reject, as unsupported, its claim that its response to the Agency's statement of position was timely filed. Therefore, we will not consider the Union's response.
III. Proposal 1
Where employees have been scheduled to perform flag placing duties on holidays in the past, such employees shall be compensated for the period of time occurring from the commencement of the principal activities performed for that day (placing flags), to the cessation of the principal activities performed for that day (removing flags), for the purpose of compensation all such time will be considered hours of work.
A. Positions of the Parties
The Union contends that by scheduling employees "to perform a split shift workday," the Agency has placed "undue restrictions" on employee travel and imposed a "period of waiting" on employees that is "solely for the benefit of the Employer" without "proper recompense." Union Petition at 1. The Union states that the proposal is intended to secure backpay to which, it believes, the employees are entitled.
The Agency asserts that by requiring it to pay employees for a period of time when they are not working, Proposal 1 conflicts with law--5 U.S.C. § 5544--and Government-wide regulation--5 C.F.R. § 532.507. The Agency argues that, under those authorities, payment of premium compensation is generally limited to those periods when work is actually performed. The Agency contends that the only exception to this limitation is the requirement under 5 C.F.R. § 532.503(c) (overtime) and 5 C.F.R. § 532.507(c) (holiday premium pay) that a minimum of 2 hours of premium pay be paid whether or not work is actually performed. Because Proposal 1 goes beyond the exception allowed to the general rule that employees may not be given premium pay for periods when no work is performed, the Agency asserts that the proposal is inconsistent with law and Government-wide regulation and is, therefore, nonnegotiable.
B. Analysis and Conclusions
Proposal 1 applies to prevailing rate employees who have been assigned flag duties on holidays. Prevailing rate employees are entitled to premium pay at a rate equal to their rate of basic pay for work performed on a holiday that is not overtime work. 5 C.F.R. § 532.507(a). Holiday premium pay applies to work performed on a holiday during hours that fall within an employee's "basic workweek."(2) Compare Federal Personnel Manual (FPM) Supplement 990-2, Book 550, Appendix H, H-b(2). "Basic workweek" for full-time employees means the days and hours within an administrative workweek that make up the employee's regularly scheduled 40-hour workweek. 5 C.F.R. § 532.501. "Overtime work" is work performed by an employee in excess of 8 hours in a day or 40 hours in a workweek. 5 C.F.R. § 532.501. An employee who performs overtime work on a holiday--that is, work that occurs during hours outside those of the basic workweek--is entitled to overtime pay at the same rate as that paid on other workdays. 5 C.F.R. § 532.507(b).(3)
The Union contends that the manner in which the Agency has scheduled flag duties on holidays has imposed a "waiting period" on employees for which they should be compensated. Based on the language of the proposal and the Union's statement of intent, we view the issue before us as a question of whether compensation for the "waiting period" involved is consistent with law and regulation.
It is well established that the determination of whether time spent by employees waiting to perform actual duties constitutes "work" for purposes of the statutes and regulations governing overtime pay is dependent on whether, under the facts and circumstances involved, it can be said that the waiting period is predominantly for the employer's benefit. For example, in ruling on a case involving an overtime claim under the Fair Labor Standards Act (FLSA) in the private sector, the Supreme Court noted that "[w]hether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case." Armour and Co. v. Wantock, 323 U.S. 126, 133 (1944). Thus, the nature of the waiting period and the surrounding circumstances must be considered. See, for example, Skidmore v. Swift & Co., 323 U.S. 134 (1944) (the Court held that a lower court had erred in ruling, as a conclusion of law, that waiting time did not constitute work and had not examined the circumstances surrounding the waiting period). In support of its holding that the compensability of waiting time is dependent on the facts and circumstances involved, the Supreme Court has noted that "we cannot lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time." Id. at 136.
In the Federal sector, courts similarly consider the facts and circumstances in cases involving overtime claims under 5 U.S.C. § 5544 concerning prevailing rate employees. For example, in Bowman v. United States, 7 Cl. Ct. 302 (1985), the court, upon examination of the facts and circumstances involved, found that employees: were not required or induced to remain on board the employer's vessels during the period in dispute; were at liberty to engage in other activities of their own choosing; and did not perform substantial amounts of work during the disputed period. Based on these factual determinations, the court concluded that the waiting period in dispute was not compensable under 5 U.S.C. § 5544(a). Similar considerations apply to questions of compensability raised under the FLSA in the Federal sector. See, for example, FPM Letter 551-14 ("standby" or "on call" duty is working time for purposes of overtime compensation under FLSA if, under the facts and circumstances involved, an employee is "engaged to wait" rather than "waiting to be engaged"); see also 5 C.F.R. § 551.431.
Accordingly, based on well-established precedent, we conclude that the particular facts and circumstances involved are pivotal to determining whether compensation for waiting periods is consistent with governing law and regulation.(4) The record in this case provides insufficient information about the facts and circumstances surrounding the waiting period that is the subject of Proposal 1 in this case for us to determine whether that waiting period constitutes "work" or "duty" within the meaning of the relevant authorities governing premium pay. For example, the record provides no information whatsoever concerning the extent to which the Agency restricts employee activities during the waiting period.
Moreover, there is insufficient factual information to allow us to determine whether the provisions governing overtime pay or holiday premium pay would apply. That is, the record does not indicate what days and hours constitute the basic workweek of the employees involved and when, in that context, the waiting occurs.
The parties bear the burden of creating a record upon which we can base a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Because the record here does not contain information sufficient for a determination on whether Proposal 1 is consistent with the laws and Government-wide regulations that govern premium pay, we are unable to make a negotiability determination. Consequently, we dismiss the petition for review as to Proposal 1.
IV. Proposal 2
The employer will negotiate with the union, a voluntary system for flag placing duties on holidays.
A. Positions of the Parties
The Union describes Proposal 2 as seeking "to negotiate an arrangement, consonant with law and Agency regulations and guidelines, for the assignment of bargaining unit employees to perform nonessential duties on legal holidays[.]" Union Petition at 2.
The Agency states that it decided to reassign the flag duties to the Engineering Service employees because of dissatisfaction with the manner in which the task had been performed. The Agency asserts that Proposal 2 would limit the assignment of flag duties to volunteers and would deprive the Agency of the ability to choose employees whom it deemed capable of performing the duties satisfactorily. The Agency contends that Proposal 2 conflicts with its right to assign work because the proposal would not allow it to make qualification determinations in making work assignments.
B. Analysis and Conclusions
The establishment of a "voluntary system" for the assignment of duties involves, but does not necessarily interfere with, the exercise of management's right, under section 7106(a)(2)(B) of the Statute, to assign work. Whether a proposal establishing a voluntary system is negotiable depends on the specific proposal and the circumstances involved.
For example, it is well established that management's right to assign work includes the right to determine the particular qualifications and skills necessary to perform the work and the right to make judgments in determining whether particular employees meet those qualifications. See, for example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400 (1987) (Proposal 5). Therefore, proposals that provide for selecting the particular employee who will perform work, from a group of employees who are determined by management to be qualified, are negotiable. Such proposals do not interfere with management's rights and are negotiable procedures. See, for example, id. Moreover, a proposal that directly interferes with a management right may still be within the duty to bargain if the record in the case supports a conclusion that it provides an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) in which the Authority discussed the test that it applies to determine whether a proposal is negotiable under section 7106(b)(3).
Proposal 2 states only that the Agency will negotiate a voluntary system for flag duties on holidays. It does not specify or purport to establish any of the characteristics of such a system, except that it will involve volunteers. As written, this proposal only seeks a commitment from the Agency to negotiate further over a voluntary system for flag duties on holidays. Similar to Proposal 11 in American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986), implementation of this proposal would not require the Agency to waive its right to object to future Union proposals, concerning the specifics of the voluntary system, on the grounds that future proposals are inconsistent with applicable laws or regulations. Nor does this proposal commit the Agency to negotiate over a future proposal that is outside the duty to bargain.
If it were to agree to this proposal, the Agency would have the right to object to the Union's bargaining proposals concerning the specifics of the voluntary system when they are submitted. At this time, however, the Agency's objection concerning management's right to assign work is premature and speculative and does not provide a basis for finding that this proposal is nonnegotiable. See American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 680 n.16 (1983).
The Union's petition for review with respect to Proposal 1 is dismissed. The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning Proposal 2.(5)
(If blank, the decision does not have footnotes.)
1. Because the Agency does not contest the negotiability of a third proposal that was included in the Union's petition, it will not be considered further in this decision.
2. Some variation of these principles may apply to employees who are on an alternative work schedule. See FPM Supplement 990-2, Book 620.
3. In its statement of position the Agency mischaracterizes holiday premium pay as a form of overtime pay. Agency Statement of Position at 9. Under the OPM regulations that govern premium pay for prevailing rate employees, overtime pay and holiday premium pay are technically two separate and distinct types of premium pay. See 5 C.F.R. §§ 532.501-532.513; FPM Supplement 532-1, subchapter S8.
4. The precedent cited above relates to overtime, and there is very little precedent concerning the specific issue of compensability of waiting periods for purposes of holiday premium pay. However, it seems reasonable to conclude that consideration of the facts and circumstances involved are relevant to a determination of whether a waiting period qualifies as "work" for purposes of holiday premium pay.
5. In finding that Proposal 2 is within the duty to bargain, we make no judgment as to its merits.