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The decision of the Authority follows:
38 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
December 14, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerns five proposals which address overtime assignments in the nursing service.
For the following reasons, we dismiss Proposals I, II, III, and IV because they do not concern negotiability issues and are not properly before us. We find that Proposal V is negotiable.
In 1987 the Agency assigned volunteers from outside the Nursing Service to perform nursing assistant duties within the Nursing Service. Because of this assignment, the Union filed an unfair labor practice charge, which was later settled by the parties in 1988. As a result of this settlement, the Agency issued an order stating that it would not "unilaterally change the working conditions of bargaining unit employees by assigning employees from outside Nursing Service to work overtime in Nursing Service without providing the [Union] with notice and an opportunity to bargain over the impact and implementation of the change to the extent required by the Statute." Notice attached to the Petition for Review at 6.
Pursuant to the settlement agreement, the Union submitted the five proposals that are now before us. The Agency notes that the Union has a grievance pending regarding whether the assignment of employees outside the nursing service to overtime in the nursing service constituted a unilateral change in working conditions.
III. Proposals I-IV
A. The Proposals
Proposal I: The Employer will make every reasonable effort to ensure that the opportunity to work overtime is shared equally among employees who are normally assigned to perform the work.
Proposal II: Overtime whether scheduled or unscheduled will be fairly and equitably assigned, first, to qualified volunteers, if available and/or time permits; or second, in the event that no volunteers are available, fairly and equitably assigned to those available with the requisite skills, except that overtime should not be required of employees when it would impair their health or efficiency, or cause extreme hardship to them.
Proposal III: In order to achieve the broad purpose outlined in proposals I, and II, the Employer will:
1. Maintain in Nursing and other sections, a listing of qualified employees normally performing overtime work. Such listings will be made available to the Union on request.
2. Develop in Nursing and other sections, a rotational listing comprised of employees identified in item 1., the document will reflect offers of overtime, employee responses, and final assignment. The rotational listing will function in sequential fashion, once an employee is offered overtime that employee['s] name will go to the end of the list, i.e., the last to be considered.
Proposal IV: An employee shall have the right to refuse an overtime assignment provided he/she has a legitimate reason and a qualified employee is available to take his/her place.
B. Positions of the Parties
1. The Union
The Union contends, without elaboration, that the proposals constitute negotiable procedures under section 7106(b)(2) of the Statute and appropriate arrangements under section 7106(b)(3). The Union also contends that the Agency is attempting to "relitigate issues resolved in a settlement agreement . . . ." Union's Reply at 2.
2. The Agency
The Agency contends that it "has no obligation to engage in mid-term bargaining on matters already covered by the collective bargaining agreement." Statement of Position at 4.
In particular, the Agency asserts that both Proposal I and the parties' collective bargaining agreement address the equal distribution of overtime assignments. Therefore, the Agency argues that "because the standard for measuring overtime distribution is addressed with specificity and particularity in the Master Agreement" it has no duty to bargain over Proposal I. Id. at 6. Similarly, the Agency argues that it has no duty to bargain over Proposal II because both Proposal II and the parties' agreement establish "a standard for overtime distribution and state circumstances where overtime will not be required." Id. at 7. The Agency asserts that Proposal III is "moot, in that it implements proposals that the VA has no duty to bargain on." Id. at 2.
Finally, the Agency argues that it has no duty to bargain over Proposal IV because Proposal IV "specifically and particularly addresses circumstances where an employee may request relief from an overtime assignment, as does the Master Agreement." Id. at 8. Therefore, the Agency argues that it "has no further obligation to bargain with respect to procedures for refusing overtime assignments." Id.
C. Analysis and Conclusion
Under section 7117 of the Statute and section 2424.1 of the Authority's Regulations, the Authority considers a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. American Federation of Government Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA 768, 769 (1987). Where the conditions for review of negotiability issues are met, a union is entitled to a decision as to whether a proposal is negotiable under the Statute. See American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983).
In this case, the Agency does not dispute the negotiability of Proposals I-IV; the Agency contends only that the subject matters of Proposals I, II, and IV are covered by the parties' agreement and that Proposal III is moot. See Statement of Position at 2. Therefore, the petition for review as to these proposals does not meet the conditions governing review of negotiability issues and must be dismissed. Accordingly, we will dismiss the Union's petition for review as to these proposals, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 401-02 (1987). To the extent that the parties' dispute over whether the subject matter of those proposals is covered by the parties' agreement remains, the dispute should be resolved in other appropriate proceedings, such as the parties' negotiated grievance procedure or the unfair labor practice procedure under section 7118 of the Statute. See id. at 402 (1987).
IV. Proposal V
A. The Proposal
Proposal V: The Employer will make whole any bargaining unit employee who otherwise would have been entitled to receive overtime premium pay, but did not as a result of the Employer's decision to unilaterally change its overtime practices.
B. Positions of the Parties
1. The Union
The Union argues that Proposal V constitutes both a procedure under section 7106(b)(2) of the Statute and an appropriate arrangement under section 7106(b)(3). The Union also argues that the Agency's position "attempts to relitigate issues resolved in a settlement agreement reached in lieu of litigation." Union's Reply at 2.
2. The Agency
The Agency contends that Proposal V is nonnegotiable because it "pre-empts the Back Pay Act." Statement of Position at 8. The Agency argues that Proposal V "would require management to award back pay to employees whom the Union unilaterally claims would have an entitlement, without a determination of an unjustified or unwarranted personnel action." Id. at 9. The Agency points out that "[t]hough the matter is an issue in a pending grievance, there has been no determination in this case that any unjustified or unwarranted personnel action occurred that violated any applicable authority." Id. Therefore, the Agency argues that it has no duty to bargain with respect to this proposal.
C. Analysis and Conclusion
Under the Back Pay Act, an employee is entitled to backpay if, "on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance)[, the employee] is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee[.]" 5 U.S.C. § 5596(b)(1). See also, for example, National Association of Government Employees, Local R1-109 and Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 206, 210 (1990). An "appropriate authority," within the meaning of the Back Pay Act, includes, among others, a court, the Authority, an arbitrator, and the head of an agency or another agency official to whom such authority has been delegated. 5 C.F.R. § 550.803.
The Agency asserts that Proposal V is inconsistent with the Back Pay Act because it would require the Agency to award backpay to employees in the absence of a determination that an unjustified or unwarranted personnel action occurred. We disagree with the Agency's interpretation of the proposal.
Proposal V, as plainly worded, would require the Agency to make whole any employee who would have been entitled to overtime premium pay but for the Agency's "decision to unilaterally change its overtime practices." Petition for Review at 3. As noted by the Agency, a grievance is currently pending over, as relevant here, whether the Agency's action in assigning outside volunteers to work in the nursing service "was a unilateral change in working conditions." Statement of Position at 3. Read in the context of the parties' overall dispute, therefore, and in the absence of a Union interpretation of the proposal, we agree with the Agency that Proposal V is "predicated on the result of that grievance." Id.
As stated previously, the Agency head, or other Agency official acting pursuant to delegated authority, constitutes an "appropriate authority," within the meaning of the Back Pay Act, to determine that an employee is entitled to backpay. 5 C.F.R. § 550.803. Similarly, an "arbitrator in a binding arbitration case" constitutes an "appropriate authority." Id. Accordingly, whether the grievance is resolved by an Agency official or by an arbitrator, backpay could be awarded consistent with the Back Pay Act.
As there is no dispute that Proposal V is predicated, or conditioned, on the outcome of the pending grievance, we conclude that the proposal merely ensures that if proper determinations are made under the Back Pay Act, employees found to be entitled to overtime premium pay are properly to be awarded backpay. That is, Proposal V would require the Agency to provide backpay to employees who are found by an appropriate authority in the grievance and arbitration proceeding to have been improperly deprived of overtime pay as a result of the Agency's actions. The Agency has not demonstrated, and it is not otherwise apparent, that this requirement conflicts with the Back Pay Act. Accordingly, we conclude that Proposal V is negotiable.
The Agency must, upon request or as otherwise agreed to by the parties, bargain on Proposal V. (*) The petition for review concerning Proposals I, II, III, and IV is dismissed.
(If blank, the decision does not have footnotes.)
*/ In finding this proposal to be negotiable, we make no judgment as to its merits.