23:0106(11)NG - National Border Patrol Council, AFGE and INS -- 1986 FLRAdec NG
[ v23 p106 ]
23:0106(11)NG
The decision of the Authority follows:
23 FLRA No. 11
NATIONAL BORDER PATROL COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union
and
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
Agency
Case No. 0-NG-664
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of the following Union proposal:
All negotiations time, including travel to and from meetings,
will be excludable for AUO purposes.
II. Background
This proposal arose in the context of ground rules for negotiations
which were being conducted pursuant to an agreement between the parties
in settlement of an unfair labor practice charge. AUO refers to
"administratively uncontrollable overtime." Under the AUO concept, heads
of agencies may, pursuant to regulations prescribed by the Office of
Personnel Management (OPM) at 5 C.F.R. Section 550.151-550-164 and
consistent with law, /1/ authorize premium pay on an annual basis for an
employee in a position for which the hours of duty cannot be controlled
administratively and which requires substantial amounts of irregular,
unscheduled overtime. In accordance with applicable regulations, AUO
may be paid only if the amount involved would be less than the employee
would be entitled to under regular overtime. Premium pay for AUO in the
Agency is governed by a Department of Justice regulation, DOJ 1551.4A,
which sets forth policies and procedures for the implementation of such
payments within the Department. As relevant here, that regulation has
established a system for the computation and payment of premium pay
which consists of an ongoing, two-part process. Under the Agency's
procedure, determinations of an employee's continuing eligibility for
such pay and the rate appropriate are made during a 12 pay period
interval referred to as the "computation period." The "computation
period" ends 3 pay periods before the "eligibility period" for which the
particular determination was made. The "eligibility period" is a 4 pay
period interval during which an employee is compensated for AUO at the
particular rate determined to be appropriate based on experience during
the "computation period."
The Proposal would exclude the days spent in the negotiations flowing
from the settlement agreement from computations used to determine the
"average" number of hours of AUO worked by employees representing the
Union during the "computation period(s)" in which the negotiations
occur. The proposal does not concern any payments or benefits for, or
in connection with, such negotiations. Rather, it is solely concerned
with minimizing or eliminating the future adverse economic impact on
certain employees of spending regulatory restriction discussed above,
the effect of the proposal would be to minimize the difference between
the AUO and the amount an employee would receive if paid regular
overtime.
III. Positions of the Parties
As a procedural matter the Agency contends, in essence that the scope
of the negotiations involved is strictly limited to the impact and
implementation of assigning Border Patrol personnel to assist in the
Cuban Refugee Program and that the proposal is beyond that limited
scope. The Agency argues that this is particularly true in view of the
existence of a question concerning representation (QCR) stemming from
pending petitions for exclusive recognition (RO) and unit consolidation
(UC). Substantively, the Agency contends that the proposal is
nonnegotiable because:
1. The proposal conflicts with a Government-wide rule or
regulation, specifically the regulations issued by OPM which are
found at 5 C.F.R. Section 550.151-550.164;
2. The proposal is contrary to an Agency regulation, DOJ Order
1551.4A, for which there is a compelling need;
3. The proposal violates section 7131(a) of the Statute.
The Union disputes both the Agency's procedural contention that it
has no obligation to bargain over the proposal and its substantive
contentions.
IV. Analysis
A. Procedural Issue
The Authority has found that the negotiation of ground rules is an
integral part of the collective bargaining process. Department of
Health and Human Services, Region VII, Kansas City, Missouri, 14 FLRA
258 (1984); American Federation of Government Employees, AFL-CIO and
U.S. Environmental Protection Agency, 15 FLRA 461 (1984) (Proposal 1).
In the Authority's view, contrary to the Agency, the question of how an
employee's participation in a particular set of negotiations will affect
that employee's future eligibility for premium pay is appropriately
within the scope of ground rules for those negotiations pursuant to the
terms of the settlement agreement. /2/ The Authority also rejects the
Agency's contention that a UC petition raises a QCR. By definition a UC
petition does not bring into question whether the existing exclusive
representative will continue as such. It is limited to a determination
of whether existing units will be consolidated, as specified in section
7112(d) of the Statute. Therefore, in view of the fact that the
proposal relates to a subject which is appropriately encompassed within
the scope of ground rules relating to the parties' negotiations, there
is no merit in the Agency's position that the proposal is outside the
scope of bargaining.
B. Substantive Issues
1. Proposal's Consistency with 5 C.F.R. Section
550.151-550.164
The Agency contends that 5 C.F.R. Section 550.151-550.164 reserves to
it the responsibility for authorizing and determining the appropriate
rate of premium pay for AUO. The Authority finds that pursuant to the
OPM regulations involved, the Agency is given the discretion to
determine the specific procedures by which computations as to
appropriate rates of premium pay for AUO will be made. It is well
established that to the extent that an agency has discretion with
respect to a matter affecting conditions of employment of bargaining
unit employees and where the discretion is not intended to be sole and
exclusive, the matter is within the duty to bargain. See, for example,
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748 (1980). There is nothing in
the OPM regulations cited which would preclude the Agency from
exercising its discretion regarding AUO computation by negotiations.
Additionally, the Agency contends that the regulations set forth
specific exclusions for AUO computation purposes and that because the
exclusions proposed by Union are not among those specified by the OPM,
proposal therefore conflicts with the regulation. The specific
exclusions set forth in the OPM regulations are contained in 5 C.F.R.
Section 550.162. However, those provisions directly concern the actual
payment of premium pay when employees are on temporary assignments and
leave with pay. They do not concern the determination of future
eligibility for, and appropriate rates of, such pay. As the regulatory
provisions relied upon by the Agency concern not computation but actual
payment of premium pay under AUO, the Agency's assertion that a conflict
exists cannot be sustained.
Finally, the Agency contends that the proposal violates 5 C.F.R.
Section 550.152. That provision specifies that an agency may pay
premium pay for AUO only if such pay would, over a period of time, be
less than the premium pay to which the particular employee would
otherwise be eligible if paid overtime pursuant to 5 U.S.C. section
5542. According to the Agency, premium pay for AUO would exceed that to
which the employees covered by the proposal would be entitled if
overtime payments had been made pursuant to 5 U.S.C. Section 5542, and,
thus, the proposal would result in payments which exceed those
permissable under the regulations. The Agency has not shown nor is it
otherwise apparent that the proposal would necessarily result in excess
payments in violation of 5 C.F.R. Section 550.152. Moreover, the Union
has specifically stated that in any instances where the operation of the
exclusions proprosed would result in excess payment the Agency could
cease applying the exclusion. Noting particularly the Union's stated
intent, which is not incompatible with the plain terms of the proposal,
the Authority finds that the proposal is not inconsistent with the
provisions of 5 C.F.R. Section 550.152. /3/
2. Compelling Need for DOJ Order 1551.4A Under Section
7117(a)(2)
The Agency contends that there is a compelling need under section
2424.11(a)(b) and (c) of the Authority's Rules and Regulations for its
agency-wide regulation DOJ Order 1551.4A. However, the Agency has not
demonstrated that DOJ Order 1551.4A meets the criteria for concluding
that a compelling need exists for agency rules and regulations. Under
section 2424.11(a), the Agency must demonstrate that its regulation is
essential to the accomplishment of its mission in a manner consistent
with the requirements of an effective and efficient government. While
the Agency argues that the Union's proposal would make payroll
administration inefficient and ineffective, the Authority notes that the
record does not support this contention. DOJ Order 1551.4A, paragraph
11(c), provides for exclusion of days in certain circumstances, such as
paid and unpaid leave, from the computation of weekly averages of AUO.
The Agency has not demonstrated how the addition of another circumstance
to an already existing list would render payroll administration
inefficient or ineffective. Thus, the Agency has not established that
the regulation cited is essential to the execution of its function.
American Federation of Government Employees, AFL-CIO, Local 2875 and
Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, Southeast Fisheries Center, Miami
Laboratory, Florida, 5 FLRA 441 (1981) (Union Proposal 4).
The Agency further argues that DOJ Order 1551.4A is necessary to the
maintenance of merit system principles, which is the compelling need
criterion established by the Authority under section 2424.11(b) of the
Authority's Rules and Regulations. /4/ See, generally, American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217
(1981). Specifically, it contends that the regulation is necessary to
assure equal payment of overtime within the various bureaus of the
Department of Justice which are subject to AUO payments. However, the
Agency has failed to demonstrate that its regulation is essential, as
opposed to helpful or desirable, in the achievement of the objective of
providing equal pay for work of equal value. The Agency has not
established that the procedures set forth in that regulation for the
administration and implementation of premium pay for AUO are the only
means of achieving that particular objective and, hence, has not
established that the regulation is necessary to insure the maintenance
of basic merit principles. Moreover, the Agency's argument that DOJ
Order 1551.4A is a regulation which implements the principle of equal
pay for work of equal value is not supported in the record. That
regulation implements a system which is based on projections and
prescribes the same payment for a range of average hours of AUO and,
thus, is inherently inequitable. The Agency has not demonstrated that
such a system constitutes an application of the concept of equal pay for
work of equal value.
The Agency has not shown that the regulation implements a mandate of
law or other outside authority which is essentailly nondiscretionary,
under section 2424.11(c) of the Authority's Rules and Regulations.
According to the Agency, DOJ Order 1551.4A implements 5 U.S.C. Section
5545(c)(2) and 5 C.F.R. Section 550.161. It characterizes this mandate
as making the Agency head responsible for determining and reviewing AUO
payments on a regular basis. As noted earlier, to the extent that an
agency has discretion with respect to a matter affecting conditions of
employment of its employees and such discretion is not intended to be
sole and exclusive, the discretion is subject to negotiations with the
representative. Contrary to the Agency's assertion, there is nothing in
either the law or the implementing OPM regulations governing premium pay
for AUO which mandates that the discretion allowed agencies with respect
to administration of AUO must be sole and exclusive. Therefore, the
Agency's regulation which embodies the exercise of that discretion does
not constitute, in and of itself, the nondiscretionary implementation of
a mandate to the Agency under law or other outside authority.
3. No Inconsistency with Section 7131(a)
The Agency's contention that the proposal is inconsistent with
section 7131(a) of the Statute is similarly without merit. Section
7131(a) addresses entitlement to official time by employees who are
representing an exclusive agreement. The Union's proposal addresses how
time spent in such negotiations will be treated for purposes of
determining eligibility for, and the appropriate rate of, premium pay in
the future. The proposal does not relate to actual compensation for
time spent in contract negotiations. It concerns a subject which is
separate and distinct from that covered by section 7131(a) of the
Statute and does not conflict with that provision.
V. Conclusion
There is no merit in the Agency's procedural contention that the
proposal is beyond the scope of negotiations. Furthermore, the proposal
does not conflict with 5 C.F.R. Section 550.151-550.164 or with section
7131(a) of the Statute, nor is it contrary to an Agency regulation, DOJ
Order 1551.4A, for which there is a compelling need. Therefore, the
proposal is within the duty to bargain.
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the Union's
proposal. /5/
Issued, Washington, D.C., August 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 5 U.S.C. Section 5545.
(2) See United States Department of Justice, United States
Immigration and Naturalization Service, 9 FLRA 253 (1982) reversed in
part sub nom. United States Department of Justice, United States
Immigration and Naturalization Service v. Federal Labor Relations
Authority, 727 F.2d 481 (5th Cir. 1984) for a discussion as to changes
in conditions of employment during the pendancy of a QCR.
(3) In view of these findings it is unnecessary to rule on whether 5
C.F.R. Section 550.151-550.164 constitute Government-wide regulations
within the meaning of the Statute.
(4) 5 U.S.C. Section 2301(b)(3) provides:
Section 2301. Merit system principles
(b) Federal personnel management should be implemented
consistent with the following merit system principles:
. . . . . . .
(3) Equal pay should be provided for work of equal value, with
appropriate consideration of both national and local rates paid by
employers in the private sector, and appropriate incentives and
recognition should be provided for excellence in performance.
(5) In finding this proposal to be within the duty to bargain the
Authority makes no judgment as to its merits.