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The decision of the Authority follows:
51 FLRA No. 36
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON NEGOTIABILITY ISSUES
October 31, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
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), and concerns the negotiability of six proposals relating to the Agency's decision to assign, on a rotating basis, dental assistant duties in its Dental Service to dental lab technicians.
For the reasons that follow, we conclude that three of the proposals are negotiable at the election of the Agency under section 7106(b)(1) of the Statute: Proposal 2, which would require the Agency to move a Full-Time Employee Equivalent position to a particular organizational subdivision of the Agency to provide coverage of the dental assistant duties; Proposal 3, which would require the Agency to extend the hours of a part-time dental assistant to provide coverage of the dental assistant duties; and Proposal 6, which provides that any combination of the previous proposals may be used by the Agency to provide coverage of the duties. Pursuant to section 7117(c)(6) of the Statute and section 2424.10 of the Authority's Regulations, we have severed Proposals 1, 4, and 5 from the proposals addressed herein and will consider them in a separate decision if this appeal is maintained with respect to those proposals in response to an Authority order issued today. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 n.1 (1980).(1)
Before analyzing Proposals 2, 3, and 6, we address certain threshold issues involving the relationship between section 7106(a) and section 7106(b)(1) of the Statute and the framework we will follow for analyzing a proposal asserted to be negotiable at the election of an agency under section 7106(b)(1). We note that some of these issues were raised in Referral of a Major Policy Issue, Case No. O-PS-33 (O-PS-33), filed by the General Counsel of the Authority pursuant to section 2429.4 of our Regulations and decided today. Order Denying Request for a General Ruling, 51 FLRA No. 37 (1995). According to the General Counsel, the relationship between section 7106(a) and section 7106(b)(1) of the Statute is "an issue that has a 'critical impact in the relationships between agencies and unions' and will have 'ramifications throughout the Federal sector.'" Id. (2)
II. Positions of the Parties (3)
The Agency argues that, by precluding it from assigning dental assistant duties to lab technicians and otherwise limiting its discretion to determine which employees should perform, and/or should be hired to perform, such duties, all the proposals interfere with its rights, under section 7106(a)(2)(A) and (B) of the Statute, to hire, direct employees, assign work, and determine the personnel by which its operations are conducted.(4) The Agency contends that Proposal 3 also interferes with its right under section 7106(a)(1) to determine its mission because it "would determine the Dental Service hours of operation for this aspect of patient care." Statement of Position at 9.
The Union states that the proposals would relieve GS-8 lab technicians from performing lower-graded dental assistant duties. The Union argues that each of the proposals involves a matter that is encompassed by section 7106(b)(1). In the Union's view, the Agency is required to bargain over the proposals under Executive Order 12871.(5) The Union contends that it does not intend that dental assistant duties could never be assigned to lab technicians and that the Agency has misrepresented the intent of the proposals in this regard.
III. Sections 7106(a) and (b) of the Statute
It is clear from the submissions in this case that, in addition to disagreeing about whether the proposals are negotiable under the Statute, the parties disagree about which provision of the Statute governs this negotiability determination. In particular, the arguments advanced by the Agency and the Union focus on different provisions of the Statute relevant to the scope of Federal sector collective bargaining. According to the Agency, each of the proposals fits squarely within the terms of, and is thereby precluded from negotiation by, various provisions in section 7106(a) of the Statute. The Union, on the other hand, contends that the proposals fit squarely within the terms of section 7106(b)(1) and, therefore, are negotiable at the election of the Agency.
In view of the confusion apparent in the parties' submissions concerning which provision of the Statute governs the negotiability of these proposals, we take this opportunity to clarify how the statutory provisions invoked by each party relate to one another. In particular, the parties' disagreement over whether these proposals are governed by section 7106(a) or section 7106(b)(1) raises a threshold question as to the circumstances, if any, under which proposals need to be analyzed under both provisions. This would be required, for example, if proposals that are negotiable at the election of an agency under section 7106(b)(1), as the Union contends is the case with each of the proposals at issue here, are nevertheless precluded from negotiation if they also affect the exercise of authority by Agency management to take actions enumerated in section 7106(a).
B. Relationship Between Sections 7106(a) and 7106(b)
1. Statutory Language
Our analysis begins, as it must, with the language of the Statute itself.(6) Section 7106 of the Statute provides, in pertinent part:
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--
(1) to determine the mission . . . ; and
(2) in accordance with applicable laws--
(A) to hire . . . ;
(B) to assign work . . . ;
(C) with respect to filling positions, to make selections for appointments . . . .
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
Pursuant to this provision, an agency's authority to exercise the rights enumerated in section 7106(a) is expressly made "subject to" section 7106(b). Thus, the section setting forth the authority of agency management begins with the statement that such authority is limited by subsection (b). Consistent with the statement of this limitation in section 7106(a), section 7106(b) begins with the statement that "[n]othing in [section 7106] shall preclude an agency" from negotiating over the matters set forth in the three subsections that follow. This language compels the conclusion that, where a proposal concerns a matter encompassed within section 7106(b), it is negotiable, consistent with the terms of subsections (b)(1), (2), or (3), even though it may also affect the exercise of authority by a management official to take actions enumerated in section 7106(a). This would mean that, where a proposal addresses matters that come within the terms of both sections 7106(a) and 7106(b)(1), it is subject to negotiation at the election of the agency.
2. Legislative History
The legislative history surrounding the enactment of the Statute supports this interpretation. The language enacted as subsection (b)(1) was first introduced in the so-called "Udall substitute," which became the final House version of H.R. 11280. The sectional analysis of the Udall substitute makes clear the intent "that nothing in the 'Management rights' section shall preclude any agency and any [union] from negotiating [the matters enumerated in subsection (b)(1)]." 124 Cong. Rec. 29,183, reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) (Legislative History) at 925. Similarly, Congressman Ford explained that, as part of the balance Congress struck between "management rights" and collective bargaining, agencies were given the ability to elect to negotiate on the subjects contained in subsection (b)(1). 124 Cong. Rec. 29,195, reprinted in Legislative History at 949. Thus, rights reserved to management under section 7106(a) were made "[s]ubject to" such election. See Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 965 (D.C. Cir. 1989) (OEA).
3. Judicial Interpretations
This construction of section 7106 is consistent not only with the express terms of the Statute and our reading of the legislative history, but also with the decision of the United States Court of Appeals for the District of Columbia Circuit in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) (Montana ACT). In that case, the court relied on the statutory language in subsections (a) and (b)(1) set forth above--language which the court found "could not have been expressed more clearly . . . ." Id. (7)
Moreover, as the court in Montana ACT noted, this interpretation of section 7106(b)(1) is also consistent with court decisions addressing the relationship between section 7106(a) and section 7106(b)(2) and (b)(3). Id. at 1155. Indeed, the D.C. Circuit had established, prior to Montana ACT, that it viewed section 7106(a) management rights as subordinate to the provisions of section 7106(b). In analyzing section 7106(b)(2) and (b)(3), the court found it "clear that a proposal advancing either a procedure or an appropriate arrangement for adversely affected employees falls within the scope of an agency's duty to bargain, notwithstanding that implementation of the proposal would affect the enumerated managerial rights [in section 7106(a)]." Id. (citing American Federation of Government Employees, Local 1923 v. FLRA, 819 F.2d 306, 308 (D.C. Cir. 1987) (emphasis added)). Similarly, in OEA, the court, holding that employees were "adversely affected" by management's exercise of a reserved management right under section 7106(b)(3) of the Statute, stated that "section 7106(b) authorizes bargaining over proposals in either of three categories notwithstanding some intrusion on [s]ection 7106(a) prerogatives." 876 F.2d at 962 (emphasis added).(8) See also Overseas Education Association v. FLRA, 961 F.2d 36, 39 (2d Cir. 1992). The court in Montana ACT concluded that it knew "of nothing supporting the conclusion that while matters negotiable under subsections (b)(2) and (b)(3) may pertain to subsection (a), subjects negotiable under subsection (b)(1) may not." Montana ACT, 22 F.3d at 1155.
Based on the foregoing, we conclude, in agreement with the D.C. Circuit, that "§ 7106(b) is indisputably an exception to § 7106(a)." Id. (emphasis in original).(9)
C. Analytical Framework for Determining the Negotiability of Proposals Raising Issues Under Section 7106(a) and Section 7106(b)(1)
In view of the foregoing conclusion that matters encompassed by the terms of section 7106(b)(1) constitute exceptions to the rights set forth in section 7106(a), a determination that a proposal is negotiable at the election of the agency under section 7106(b)(1) obviates the need to also analyze the proposal under section 7106(a). Therefore, where, as in this case, parties disagree about which of these sections govern the negotiability of a particular proposal, the Authority will determine initially whether the proposal concerns matters within the subjects set forth in section 7106(b)(1). If it does, we will not address contentions that those matters also affect the exercise of management's authorities under section 7106(a).(10) Conversely, if we conclude that a proposal does not concern matters within the subjects set forth in section 7106(b)(1), we will then proceed to analyze it under the appropriate subsection of section 7106(a).
In determining whether a proposal concerns a matter within the subjects set forth in section 7106(b)(1), we will analyze whether the proposal falls within one of the two categories stated in that section. The first category relates to: I) the numbers, types, and grades;(11) ii) of employees or positions; iii) assigned to any organizational subdivision, work project, or tour of duty. The second category relates to the technology, methods, and means of performing work. The case now before the Authority involves proposals asserted to be within the subjects in the first category.
Finally, section 2424.10(b) of the Authority's Regulations pertinently provides:
If the Authority finds that the duty to bargain extends to the matter proposed to be bargained only at the election of the agency, the Authority shall so state and issue an order dismissing the petition for review of the negotiability issue.
Consistent with this regulation, we will dismiss the petition for review as to any proposal that is found negotiable at the election of the Agency under section 7106(b)(1).(12)
IV. Proposal 2
Move Full Time Employee Equivalent (FTEE) (temporarily) to provide coverage of the Dental Assistant[']s duties.
A. Additional Positions of the Parties
The Agency states that it interprets Proposal 2 as requiring that it reassign an unencumbered full-time position (FTEE) from another component of the Agency to the Dental Service. The Agency acknowledges that the proposal would not require it to fill the FTEE in any particular manner or from any particular source, but contends that it is unlikely that there would be any qualified internal candidates and that it would have to "recruit externally." Agency's Supplemental Statement at 2.
The Union maintains that, pursuant to the proposal, an unencumbered position would be transferred to the Dental Service and that the Agency would fill this position through normal hiring procedures, "which could include internally and/or externally filling the position." Union's Supplemental Statement at 2.
B. Analysis and Conclusions
Proposal 2 requires the Agency to move an FTEE to the Dental Service, which the record establishes is an organizational subdivision. See Petition for Review (Agency Memorandum, dated June 30, 1994, position description denominating the Dental Service as a "Second Subdivision"). As such, the proposal would add one position to that organizational subdivision. It is clear from their supplemental statements that both parties understand the proposal to mean that the new position will be filled, thus also adding one employee. This construction is consistent with the language of the proposal, which expressly states that the position will be relocated to "provide coverage" of the dental assistant duties. Under this interpretation, the proposal concerns the numbers of employees and positions assigned to an organizational subdivision. As such, it concerns a matter within the first category of subjects set forth in section 7106(b)(1). See National Federation of Federal Employees, Bureau of Indian Affairs Council and Department of the Interior, Bureau of Indian Affairs, 31 FLRA 3, 6 (1988). Consequently, we find that Proposal 2 is negotiable at the election of the Agency and we do not reach the Agency's contentions as to section 7106(a).
V. Proposal 3
Extend part-time Dental Assistant[']s hours to provide coverage of the Dental Assistant[']s duties.
A. Additional Positions of the Parties
In addition to the arguments set forth above, the Agency argues that Proposal 3 is nonnegotiable under section 7117 of the Statute because it is inconsistent with law and Government-wide regulation. Specifically, the Agency cites 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121,(13) which it describes as requiring management to establish work schedules that "meet actual work requirements and . . . avoid substantially increased costs." Statement of Position at 8. The Agency contends that this proposal would increase its costs by requiring management to extend the part-time dental assistant's hours.
The Agency also contends that it has no duty to bargain over this proposal because it concerns a matter that is covered by Article 13 of the parties' collective bargaining agreement.(14) The Agency argues that this particular issue should be resolved in a proceeding other than a negotiability appeal.
The Union states that the hours of the part-time dental assistant could be extended temporarily to full-time to handle the dental assistant duties referenced in the proposal.(15) The Union denies that this proposal is inconsistent with 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121. In response to the Agency's claim that the proposal addresses a matter covered by Article 13 of the parties' collective bargaining agreement, the Union maintains that nothing in that provision addresses the extension of the hours of a part-time dental assistant.
B. Analysis and Conclusions
1. Negotiability of Proposal 3 Under Section 7106(b)(1)
Proposal 3 seeks to extend the hours of work of the part-time dental assistant to permit that employee to perform the same duties he or she is now performing, but for a longer period of time. As the same employee would be performing the dental assistant work, nothing in the proposal would affect either the type or the grade of the employee to whom those duties would be assigned. Similarly, as the dental assistant is already assigned to the Dental Service, nothing in the proposal would affect either the number, types, or grades of employees or positions assigned to an organizational subdivision.
However, the proposal would expand the number of hours worked by that employee. The hours of an employee's workday or workweek are defined by 5 C.F.R. § 610.102(h) as the employee's "tour of duty." Specifically, "tour of duty" means "the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek." Id. The Authority has relied on this definition, for example, Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 541-43 (1988), aff'd as to other matters, 893 F.2d 380 (D.C. Cir. 1990), to hold that proposals mandating changes in the hours of individual employees' work shifts are within the ambit of section 7106(b)(1) because they increase the number of employees assigned to the new tour of duty and correspondingly decrease the numbers assigned to the prior tours. Id. Accord American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center, Richmond, Virginia, 48 FLRA 53, 59 (1993); National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 484-85 (1991) and cases cited therein.(16)
In this case, one part-time dental assistant is currently assigned to an established tour of duty. Under Proposal 3, that dental assistant would be removed from his or her present tour of duty, as defined above, and assigned to a different tour of duty consisting of longer hours. Thus, the number of employees assigned to the original tour of duty would be reduced by one and the number of employees assigned to the new tour of duty would be increased by one. As this proposal seeks to change the number of employees assigned to both tours of duty, consistent with Authority precedent, we conclude that it concerns a matter within the subjects set forth in section 7106(b)(1), and therefore is negotiable at the election of the Agency.
2. 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121
In establishing employees' basic workweeks and work schedules, agencies are governed by the provisions set forth in 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121.
As the Agency correctly points out, 5 C.F.R. § 610.121(b)(1) requires agencies to "schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements."(17) However, nothing in that provision or in 5 U.S.C. § 6101(a)(3) restricts an agency's discretion to establish what those work requirements will be. We have determined above that the Agency can elect to bargain over this proposal because it concerns a matter within the subjects set forth in section 7106(b)(1). If the Agency agrees to extend the hours of a part-time dental assistant to cover additional dental assistant duties, that dental assistant's administrative workweek would then presumably correspond with his or her work requirements. In these circumstances, and as the Agency makes no claim that there is insufficient work for which a part-time dental assistant is qualified, there is no basis on which to conclude that the proposal is inconsistent with the requirement that an employee's regularly scheduled administrative workweek correspond with the employee's actual work requirements. Cf. American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 384-97 (1991) (Member Armendariz concurring) (if agency agreed to assign the work of cleaning up to employees, cleanup time would constitute compensable work for purposes of legal and regulatory provisions relating to hours of work).
With respect to the Agency's argument concerning increased costs, the Agency relies on a phrase--"where costs would be substantially increased"--that appears in both 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121(a). However, the Agency has taken the phrase out of context. Under the plain wording of both the statute and the regulation, this phrase defines an exception to various requirements governing assignments to tours of duty, including notice periods, specific days during which work may be scheduled, and limits on the basic workweek and basic nonovertime workday. Proposal 3 addresses a different matter: a change in a part-time employee's tour of duty to be scheduled by the Agency at its discretion. Therefore, we reject the Agency's argument that the phrase regarding costs serves to render this proposal in conflict with 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121(a).
3. The Agency's Duty to Bargain
The Agency contends that it satisfied its duty to bargain over the subject matter contained in Proposal 3 when it agreed to Article 13 of the parties' agreement. In support of its argument that Article 13 covers the issue of expanding the hours of the part-time dental assistant, the Agency has submitted Article 13.
The Authority has routinely declined to address duty to bargain issues in negotiability decisions, stating that those issues could be raised in "other appropriate proceedings." American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984) (Wurtsmith), on remand from American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983) (AFGE v. FLRA) (ruling that a union is entitled to expedited review under section 7117© of all negotiability issues despite the existence of other issues regarding disputed proposals). However, in light of a recent decision of the United States Court of Appeals for the District of Columbia Circuit, Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) (POPA v. FLRA), we explain why we decline to decide the Agency's duty to bargain argument at this time.
In POPA v. FLRA, following the agency head's disapproval of an interest arbitrator's award, the Authority rendered a negotiability decision in response to the union's appeal. The Authority, following its normal practice, declined to consider numerous duty to bargain challenges raised by the agency. The court criticized the Authority for refusing to decide and deferring the duty to bargain issues to "some still-unspecified time and place." 26 F.3d at 1152. The court relied on the fact that in its remedial order, the Authority "held that '[t]hose provisions [found] negotiable will be included in the parties' agreement.'" Id. at 1152-53, quoting the Authority's Decision and Order in Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 19 (1993) (emphasis supplied by the court). The court noted that, having been directed to include the still-disputed provisions in its agreement, the parties in POPA v. FLRA were confused by the Authority's determination that duty to bargain issues be resolved "in some unidentified 'other appropriate proceedings.'" Id. at 1153.
The contested remedy and alleged confusion caused by the Authority's Order in POPA v. FLRA are not present in the case we decide today. First, as noted in Section III.C., supra, to the extent that we find the proposals at issue negotiable at the election of the Agency, we dismiss them pursuant to 5 C.F.R. § 2424.10(b). Second, there should be no uncertainty concerning the process through which the duty to bargain issue would be resolved in this case.(18) If the Union seeks to bargain over this proposal in the future, and the Agency refuses to bargain based on an assertion that Article 13 foreclosed further bargaining, the Union could then file either an unfair labor practice charge or, provided the matter has not been excluded from its scope, a grievance under the parties' negotiated grievance procedure. In such a case, the issue could be resolved based on a full evidentiary record applying the approach for resolving such issues set forth in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA).(19)
In sum, we conclude that Proposal 3 is negotiable at the election of the Agency under section 7106(b)(1).
VI. Proposal 6
Use any combination of proposals 1 thru [sic] 5 to provide coverage of the Dental Assistant[']s duties.
A. Additional Positions of the Parties
The parties made no additional arguments with regard to Proposal 6.
B. Analysis and Conclusions
The express wording of this proposal provides that the Agency may use any of the proposals discussed above to provide coverage of the dental assistant duties. Thus, Proposal 6 is negotiable if any of the referenced proposals are negotiable. As we have determined that Proposals 2 and 3 are negotiable at the election of the Agency, Proposal 6 is similarly negotiable to that extent.
Proposals 2, 3, and 6 are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, under section 2424.10(b) of the Authority's Regulations, the petition is dismissed as to those proposals.
Proposals 1, 4, and 5 state:
Hire additional staff to provide coverage of the Dental Assistant[']s duties.
Use Dental Hygienist to provide coverage of the Dental Assistant[']s duties.
Use temporary employee(s) to provide coverage of the Dental Assistant[']s duties.
5 U.S.C. § 6101(a)(3) provides as follows:
§6101. Basic 40-hour workweek; work schedules; regulations
[(a)](3) Except when the head of an Executive agency, a military department, or of the government of the District of Columbia determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--
(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;
(C) the working hours in each day in the basic workweek are the same;
(D) the basic nonovertime workday may not exceed 8 hours;
(E) the occurrence of holidays may not affect the designation of the basic workweek; and
(F) breaks in working hours of more than 1 hour may not be scheduled in a basic workday.
5 C.F.R. § 610.121, entitled Establishment of work schedules, provides as follows:
(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--
(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week;
(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;
(3) The working hours in each day in the basic workweek are the same;
(4) The basic nonovertime workday may not exceed 8 hours;
(5) The occurrence of holidays may not affect the designation of the basic workweek; and
(6) Breaks in working hours of more than 1 hour may not be scheduled in a basic workday.
(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.
(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work.
(3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under subpart A of part 550 of this chapter. In this regard, it must be determined that the head of the agency: (I) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.
Article 13 of the parties' collective bargaining agreement provides:
HOURS OF WORK AND BASIC WORKWEEK
Section 1 - The administrative workweek is established as the seven day calendar week beginning at 0001 Sunday and ending at 2400 Saturday. The basic workweek will normally consist of five eight hour days. Management when possible will give employees two (2) consecutive days off. The Employer will consider requests from employees for other than consecutive days off. Schedules will be established in accordance with Government-wide regulations.
Section 2 - It is understood that scheduling employees in a 7 day, 24 hour operation is difficult; however, management will endeavor to provide fair and equitable scheduling, with equitable distribution of desirable days off. The Master Agreement will not negate existing local arrangements for scheduling consecutive days off, consecutive work days, shift changes, weekends off, or requests for indefinite tour assignments.
Section 3 - Management will be encouraged to post schedules one month in advance, but in all instances schedules will be posted at least two (2) weeks in advance.
Section 4 - Employees who are not allowed to wear their uniforms home will be allowed time during duty hours, including overtime, if necessary, to change into and out of their uniforms. Such overtime must be requested, approved and scheduled in advance. Employees who work in an environment that causes them to get soiled will be allowed the opportunity to change out of uniforms that become inordinately dirty or contaminated because of the employee's assignment.
Section 5 - One rest period for each four (4) hour work period will normally be allowed each work day. Rest periods may not be accumulated nor taken at the beginning or end of lunch periods or the work day.
Section 6 - Rescheduling to a special tour of duty may be allowed to accommodate independent educational pursuits of employees:
A. Where such rescheduling does not interfere with the mission of the Facility;
B. Where overtime or premium pay is not involved; and
C. When approved by the Medical Center Director.
Section 7 - In the absence of the employee's consent, once an administrative workweek begins, an employee's schedule cannot be changed solely to prevent the payment of overtime except in those instances described in 5 C.F.R. 610.121(a).
Section 8 - When an employee reports for duty in accordance with the regular work schedule, and it is determined by the Employer that the employee's services are not required that day, the employee may request annual leave. In the absence of a request, the employee will remain on duty or will be administratively excused.
Section 9 - Employees will be allowed a reasonable amount of time to properly cleanse themselves before lunch and at the end of their shifts. This provision does not authorize employees to leave work prior to the end of the scheduled tour of duty.
Section 10 - When an employee is required to work through the normal lunch period, he/she will be granted a lunch period equal in length to his/her normally designated lunch period or be properly compensated.
Section 11 - Nothing in the Master Agreement precludes negotiation of alternative work schedules in supplementary bargaining.
Section 12 - A Wage Grade Employee regularly assigned to a night shift who is temporarily assigned to a day shift or to a night shift having a lower night shift differential shall continue to receive the regular night shift differential. A temporary detail for training is also included, for the purpose of this section. Temporary means six months or less.
(If blank, the decision does not have footnotes.)
1. The text of Proposals 1, 4, and 5 is set forth in Appendix A to this decision. For the reasons set forth in the order issued today, we have concluded that the record is insufficient for us to render a decision on the negotiability of these proposals.
2. In addressing the relationship between these provisions of the Statute in the case now before us, we have considered the numerous agency, union, and individual responses to our request for comments on questions raised in O-PS-33. 60 Fed. Reg. 14,285 (March 16, 1995).
3. We set forth in this section only the parties' arguments regarding the negotiability of all the proposals under section 7106 of the Statute. The Agency made other arguments with regard to Proposal 3 and both parties filed supplemental statements in response to the Authority's request that the parties supplement the record. Those arguments are set forth in the sections below addressing the specific proposals to which they refer.
4. Based on the cases it cites in support, we construe the Agency's reference to its right to "assign," e.g., Statement of Position at 5, as a contention regarding its right to assign work pursuant to section 7106(a)(2)(B) of the Statute.
5. Executive Order 12871, "Labor-Management Partnerships", issued October 1, 1993 (58 Fed. Reg. 52201-52203, Oct. 6, 1993), at Sec. 2.(d) directs the head of each agency to "negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]"
6. As the Authority stated in 7th Infantry Division (Light), Fort Ord, California, 47 FLRA 864, 868-69 (1993):
The task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted). If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the 'sole function of the courts is to enforce it according to its terms.'" Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917). See also Overseas Education Association v. FLRA, 876 F.2d 960, 974 (D.C. Cir. 1989) ("[u]nless exceptional circumstances dictate otherwise, '[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" (quoting Burlington Northern R.R. Co. v. Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)).
7. The court reversed the Authority's contrary conclusion, reached without explanation, in National Guard Bureau, Alexandria, Virginia, 45 FLRA 506 (1992). For the reasons stated in this decision, we agree with the court. Accordingly, insofar as National Guard Bureau is inconsistent with this decision, it will no longer be followed.
8. We note the court's dictum that: "[E]ven a proposal fitting into one of these categories is nonnegotiable if the end result would be immoderate interference with a reserved management right". OEA, 876 F.2d at 962 n.9. This statement, following the court's quotation of section 7106(b) in its entirety, could be taken to mean that a proposal concerning a section 7106(b)(1) matter could nevertheless be nonnegotiable if it interfered, immoderately, with a right set forth in section 7106(a). However, a review of the cases cited by the court to support its statement leaves us uncertain about the meaning it intended. Those cases relate only to matters otherwise negotiable under subsections (b)(2) and (b)(3).
9. In reaching this conclusion, we have considered a previous distinction drawn by the D.C. Circuit in construing the lead-in phrase to section 7106(b) ("Nothing in this section shall preclude . . . ."). In American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183, 1186-87, then-Judge Scalia pointed out that this wording could serve two distinct purposes: to "clarify" or to "limit" other provisions. Id. at 1186. The court described subsection (b)(2) as "a proviso of the former sort," but concluded that it could not construe subsection (b)(3) that way, because to do so would render it meaningless. In considering whether this distinction might be useful in analyzing subsection (b)(1), we are aided by the briefs submitted in response to our request for comments on this particular point in O-PS-33. 60 Fed. Reg. 14,285 (1995). Unlike subsections (b)(2) and (b)(3), subsection (b)(1) does not incorporate any reference to the exercise of management's authority under section 7106(a). Because a negotiable matter under subsection (b)(1) is not expressly defined by any particular relationship to subsection 7106(a), there is no basis in the text of the Statute itself to consider whether it should be viewed as either a clarification or a limitation on the authorities set forth in subsection (a). Accordingly, we conclude that the distinction between "clarification" and "limitation" is not helpful in interpreting subsection (b)(1).
10. We will, of course, continue to address, as necessary, other agency arguments regarding the negotiability of a proposal, including arguments that the proposal conflicts with other sections of the Statute or a law other than the Statute.
11. Although this phrase is written in the conjunctive, the Authority has consistently interpreted it to mean that a matter is included within section 7106(b)(1) if it relates to numbers, types, or grades of employees or positions. E.g., National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927, 929-30 (1979).
12. We construe the Union's assertion that negotiation over these proposals is mandated by Executive Order 12871 as a claim that there has been an election to negotiate, within the meaning of section 7106(b)(1). The Agency, we note, does not address this issue, which is consistent with its position that negotiation over the proposals is precluded by section 7106(a). In view of section 2424.10(b) of the Authority's Regulations, we do not address this matter further.
13. Relevant portions of these authorities are set forth in Appendix B to this decision. The Authority has previously determined that 5 C.F.R. § 610.121 is a Government-wide regulation within the meaning of section 7117 of the Statute. E.g., Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1437-39 (1987).
14. Article 13 is set forth at Appendix C to this decision.
15. According to information submitted by the Union, there is currently only one part-time dental assistant assigned to the Dental Service.
16. We recognize that in National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 211, 220 (1990) the Authority concluded that a proposal requiring the agency to use full-time, rather than part-time, employees to perform work on certain tours of duty was not encompassed by section 7106(b)(1) because it did not affect the types of employees assigned to a tour of duty. However, in that case, it was not argued that the proposal affected the numbers of employees assigned to a tour of duty, and the Authority did not address that issue.
17. "Administrative workweek" means a period of 7 consecutive calendar days designated in advance by the head of an agency. 5 C.F.R. § 610.102.
18. The Agency references the existence of alternative fora, arguing that the Union should pursue the "duty to bargain issue . . . in a proceeding other than a negotiability appeal." Statement of Position at 10.
19. Were we to apply the SSA framework in order to determine whether this matter is already contained in or covered by a provision in Article 13 such that the Agency is not obligated to bargain, we would nevertheless be unable to resolve this question on the record before us. Under the SSA framework, the Authority first determines whether the subject of the proposal is expressly contained in the collective bargaining agreement. If not, the Authority then determines whether that subject is so commonly considered an aspect of a provision in the agreement that the subject is "'inseparably bound up with and . . . plainly an aspect of . . . a subject expressly covered by the contract.'" 47 FLRA at 1018 (quoting C & S Industries, Inc., 158 NLRB 454, 459 (1966)) (citation omitted). When the answer is unclear from the wording of the agreement, the Authority will give controlling weight to the parties' intent as evidenced by, among other things, bargaining history. 47 FLRA at 1019. The expansion of part-time tours is not expressly addressed in Article 13 and it is not discernible from the record before us whether part-time tours are commonly considered to be an aspect of this article. Further, we are unable to determine whether such expansion of hours is otherwise covered by the parties' agreement. In particular, the record contains no evidence concerning bargaining history or any other matter that sheds light on this issue.