[ v58 p135 ]
Opinion of Chairman Cabaniss, concurring in part and dissenting in part:
I write in concurrence to address a different consideration for why Provision 1 is outside of the Agency's duty to bargain because of the provision's conflict with the Agency's right to assign work under § 7106(a)(2)(B). I also write in dissent as to why I believe Provision 2 is outside of the Agency's duty to bargain because of the provision's conflict with the Agency's right to determine its internal security practices under § 7106(a)(1).
The most troubling aspect of Provision 1 is its impact on the Agency's ability to determine the timing of the work to be done by the military reservist employees and their co-workers, the timing of whose own work schedules will be affected by this provision as well, since the absence (or presence) of military reservists employees in the work site has an effect on the Agency's timing of when it has other employees show up for work, lest the Agency be confronted with too many employees on one shift for the work to be done at that time, and too few employees on the other work shift for the work to be done during that period.
The Authority has consistently found to be outside the duty to bargain those proposals/provisions that guarantee an employee the right to not be assigned work on a certain day. See, e.g., Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 644-45 (1988) (provision that guaranteed employees would not be worked over 13 days in a row found to directly interfere with right to assign work). More specifically, see AFGE, Local 85 and VAMC, Leavenworth, Kan., 32 FLRA 210, 215-16 (1988) (proposal that guaranteed reassigned employees the right to keep week ends as their days off violated the right to assign work). Accordingly, consistent with this and other relevant precedent, I would find Provision 1 to be outside of the duty to bargain because of its interference with the Agency's right to assign work.
Regarding Provision 2, I would find it to be outside of the duty to bargain as the provision is not "sufficiently tailored" to constitute an appropriate arrangement. While the Union and the majority identify relief breaks and obtaining a drink of water as falling within the scope of the provision (and the reason why the provision is sufficiently tailored), I find nothing in either the terms of the provision, the Union's submissions, or the majority's decision that limits the application of the provision to just those two circumstances, hence there is nothing to prevent an arbitrator from later interpreting the provision in a different manner. As for that meaning, under the terms of the provision an employee need have no reason at all for obtaining a break. Additionally, I note that the provision obligates the Agency to grant additional requests (that's plural, not just an additional "request") if it is "within reason" to do so. Thus, the provision envisions the likelihood that additional requests have to be granted, and I again note that the purpose for which these requests can be granted is in no way constrained. Therefore, I would find that the provision is not sufficiently tailored for it to be considered as within the duty to bargain.
Finally, given the reasons for which such breaks can be obtained and that multiple breaks are envisioned as a distinct possibility, the benefit to employees, while substantial, is too broadly provided such that it would excessively interfere with the Agency's internal security determination as to whether or not to stop the investigative interview. Therefore, for both reasons, I would find Provision 2 to be outside the duty to bargain.
File 1: Authority's Decision in 58 FLRA No. 24
File 2: Opinion of Chairman Cabaniss and Opinion of Member Pope
Footnote * for 58 FLRA No. 24 - Opinion of Member Pope
The Agency also asserts that Provision 1 was properly disapproved because it is "covered by" the parties' master agreement. Statement of Position at 3. However, the "covered by" doctrine relates to the obligation to bargain under the Statute -- not whether contract provisions are contrary to law. See 5 C.F.R. § 2424.2(a) ("bargaining obligation disputes," including disputes whether a proposal concerns a matter that is covered by an agreement, defined as involving whether "the parties are obligated to bargain over a proposal"), 5 C.F.R. § 2424.2(c) ("negotiability dispute[s]" defined as including disputes over an "agency head's disapproval of a provision as contrary to law"). In this case, the Agency bargained over and agreed to Provision 1 and, even if the provision concerned matters covered by the parties' agreement, that would not preclude the Agency from entering into the agreement. Accordingly, the Agency's claim is not cognizable in this proceeding.