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8 FLRA NO. 116

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 987

                        Union

            and

HEADQUARTERS, WARNER ROBINS
AIR FORCE LOGISTICS COMMAND,
ROBINS AIR FORCE BASE, GEORGIA

                        Agency

Case No. 0-NG-223

 

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) (5 U.S.C. 7101 et seq.). The issue presented is the negotiability of the following four Union proposals.

Union Proposal I

Employee Utilization

Section E: It is recognized that part-time employees are essential in carrying out the mission of the Employer; however, full-time employee will be utilized to the fullest extent possible. Part-time employees will be utilized only when it is not practical nor prudent to use full-time employees.

Question Before the Authority

The question is whether Union Proposal I is inconsistent with either section 7106(a)(2)(A) or section 7106(a)(2)(B) of the Statute, or is negotiable only at the election of the Agency under section [ v8 p667 ] 7106(b)(1) of the Statute, as alleged by the Agency. 1

Opinion

Conclusions and Order: Union Proposal I is not inconsistent with either section 7106(a)(2)(A) or section 7106(a)(2)(B) and is not negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal I. 2

Reasons: The Agency contends Union Proposal I would interfere with the Agency's right to: (1) assign employees under section 7106(a)(2)(A); (2) determine the personnel by which agency operations shall be conducted under section 7106(a)(2)(B); and (3) determine, at the election of the agency, the numbers, types, and grades of employees or [ v8 p668 ] positions assigned to any organizational subdivision, work project, or tour of duty under section 7106(b)(1). However, while Union Proposal I might appear to implicate certain of these management rights, most specifically the Agency's elective right to determine the numbers of employees assigned to an organizational subdivision, section 7106(b)(2) and (b)(3) of the Statute 3 provides that management has a duty to bargain on procedures which management officials will observe in exercising their management rights and on appropriate arrangements for employees adversely affected by the exercise of these rights. See American Federation of Government Employees, AFL - CIO, Local 1999 and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, U.S. , 102 S. Ct. 1443 (1982).

Union Proposal I, on its face, does not explicitly relate to the Agency's decision as to the numbers of employees assigned to an organizational subdivision or to any of the other management rights alluded to by the agency. Moreover, the Agency has not demonstrated, and the record does not otherwise disclose, in what manner the proposal is integrally related to and thereby determinative of either the numbers of employees assigned to an organizational unit or any of the other management rights alluded to by the Agency. Rather, the proposal's requirement that part-time employees be utilized only when it is not practical nor prudent to use full-time employees would establish a general, nonquantitative contractual requirement by which management's use of part-time employees could be evaluated in a grievance by a full-time employee who believes he or she has been adversely affected by the Agency action. See, e.g., American Federation of Government Employees, AFL - CIO, Local 1622 and Department of the Army, Fort Meade, Maryland, 4 FLRA No. 66 (1980), wherein the Authority found within the duty to bargain under section 7106(b)(3) a proposal which stated, "Hours to Work for employees in the unit will not be reduced without just cause." The agency had alleged the proposal interfered with the agency's right to determine the numbers, [ v8 p669 ] types, and grades of employees assigned to any work project or tour of duty under section 7106(b)(1). However, the Authority disagreed, emphasizing that the proposal's general, nonquantitative standard was emphasizing that the proposal's general, nonquantitative standard was an example of an appropriate agreement, under section 7106(b)(3), for employees adversely affected by the exercise of a management right.

Since Union Proposal I similarly would not interfere with the exercise of management rights but would establish an appropriate arrangement for employees adversely affected thereby, it is within the duty to bargain.

Union Proposal II

Pay Provisions

Section K: The tip offset for tipped employees who earn more than $30.00 per month in tips shall be not more than ten percent of the minimum wage and shall be withheld by the employer. Tipped employees are expected to maintain records of daily tips to insure that tips average more than the offset adjustment. If an employee does not earn an amount in tips equal the tip offset amount, he or she should report the actual amount earned in tips to the branch pay clerk. The employer will compensate the employee for any differences between the tip offset and the actual earned in tips.

Question Before the Authority

The question is whether Union Proposal II is inconsistent with the Fair Labor Standards Act (FLSA) (29 U.S.C. 201 et seq.) and its implementing regulations so as to be outside the duty to bargain under section 7117(a)(1) of the Statute. 4 [ v8 p670 ]

Opinion

Conclusion and Order: Union Proposal II is not inconsistent with the Fair Labor Standards Act and its implementing regulations and hence is within the duty to bargain under section 7117(a)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal II. 5

Reasons: The provisions of the Fair Labor Standards Act apply, by virtue of section 203(e)(2)(A)(iv) thereof. to the nonappropriated fund employees affected by Union Proposal II. Under the FLSA, when an employee regularly receives more than $30 a month in tips, the employer is allowed to deduct from the pay owed the employee up to 40% of the applicable minimum wage. The specific percentage to be used for this "tip offset" percentage is left, by section 203(m) of the FLSAM to the employer to determine. The Department of Labor regulation implementing this portion of the FLSA, 29 CFR 531.59, states, "(t)he actual amount (of the tip offset percentage) is left by the statute to determination by the employer on the basis of his information concerning the tipping practices and receipts in his establishment." With respect to the Federal government as the employer, the Office of Personnel Management has issued no instructions indicating how agencies making use of the tip offset provision should arrive at a specific tip offset percentage.

Based on the above referenced provisions, the Agency acknowledges that the determination of the tip offset percentage is within its discretion. In this regard, it is well settled that if a matter which affects the conditions of employment of employees in an appropriate unit is within the discretion of the agency, it is within the duty to bargain unless the matter is inconsistent with law or appropriate regulation. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).

In the present case, the Agency has not demonstrated any such inconsistency. More particularly, the Agency does not allege, and it does not otherwise appear, that bargaining over the specific tip offset percentage would violate management rights in section 7106 of the Statute. Further, while the Agency avers that negotiating over the tip offset percentage would be inconsistent with the system for establishing the wage rates for prevailing rate employees in Public Law 92-392, nothing in that law or its implementing regulations would preclude the Agency from either unilaterally, or through negotiations, [ v8 p671 ] adopting the 10% tip offset percentage proposed by the Union. Accordingly, Union Proposal II is within the Agency's Duty to bargain.

Union Proposal III

Reduction in Force

Section A: The Employer agrees that in the event of a RIF existing vacancies within the Bargaining Unit will be utilized to place employees into positions for which they qualify or for which they can be trained in a minimum period of time without disrupting the mission of the NAF. 6

Question Before the Authority

The question is whether Union Proposal III is inconsistent with the Agency's right, with respect to filling positions, to make selections for appointments from any appropriate source, as provided by section 7106(a)(2)(C) of the Statute. 7

Opinion

Conclusion and Order: Union Proposal III is inconsistent with section 7106(a)(2)(C) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the portion of the Union's petition for review relating to Union Proposal III be, and it hereby is, dismissed. [ v8 p672 ]

Reasons: In American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA No. 13 (1981), appeal docketed sub nom. AFGE, Local 2782 v. FLRA, No. 81-2386 (D.C. Cir. Dec. 29, 1981), the Authority found that a proposal which provided, in pertinent part, that, "a repromotion eligible . . . will be selected for the first available vacancy for which he or she fully meets the qualification standards and which the agency determines to fill," was inconsistent with section 7106(a)(2)(C) because it would prevent management from considering other appropriate sources of candidates in filling a vacancy. The Agency contends, and the Union does not controvert, that the instant proposal similarly compels the Agency, in the event of a reduction-in-force, to select "Qualifiable" bargaining unit candidates when filling an existing vacancy. The words of the proposal support, and accordingly the Authority accepts, this interpretation of the proposal. Hence, rather than extending to such bargaining unit employees a negotiable form of initial and priority consideration, 8 the proposal prevents management from considering other appropriate sources of candidates in filling a vacancy. Accordingly, the Authority finds Union Proposal III to be inconsistent with section 7106(a)(2)(C) of the Statute and not within the duty to bargain.

Union Proposal IV

Reduction In Force

Section C: All reduction in force action will be carried out in strict compliance with applicable regulations, and this agreement, and employees will be apprised of all their rights under such regulations. The competitive area for reduction in force procedures will include the entire Bargaining Unit in NAF in which employees compete for positions during a RIF. Where an employee reached for separation meets the minimum requirements, the Employer agrees to fully explore the possibility of continued employment of the employee through a change either in category of employment or in another local NAF. First consideration on any reassignment or bumping right or separation where more than one employee is involved shall be based on skill requirements, and total length of service as a USAF NAF employee. 9 [ v8 p673 ]

Question Before the Authority

The question is whether Union Proposal IV concerning the criteria the Agency will use when reassigning employees who have been adversely affected by a reduction-in-force is inconsistent with Federal law set forth in either: (1) 5 U.S.C. 4302(a)(3), 10 (2) 5 U.S.C. 2301(b)(6), 11 or is inconsistent with an Agency regulation (Department of Defense (DOD) Manual 1401.1-M) for which a compelling need exists so as to be outside the duty to bargain under section [ v8 p674 ] 7117(a) of the Statute 12 as alleged by the Agency.

Opinion

Conclusion and Order: Contrary to the Agency's allegations, Union Proposal IV is within the duty to bargain under section 7117(a) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal IV. 13

Reasons: The Agency alleges Union Proposal IV is not within the duty to bargain because it establishes a reduction-in-force retention system which fails to take into account such factors as the employee's fitness and performance. The Agency cities two statutory and one regulatory provision for the proposition that employee fitness and performance must be factored into a reduction-in-force retention system. [ v8 p675 ]

The Agency first argues that 5 U.S.C. 4302(a)(3) requires agencies to use the results of performance appraisals as a basis for "retaining and removing employees." The performance appraisal systems referred to in this section of title 5 of the United States Code, however, are administered by the Office of Personnel Management. 5 U.S.C. 2105(c) 14 specifically exempts employees of armed forces nonappropriated fund instrumentalities, such as the employees involved herein, from the application of laws (other than subchapter IV of chapter 53 and sections 5550 and 7204 of title 5) administered by the Office of Personnel Management. Therefore, 2 U.S.C. 4302(a)(3) does not apply to the employees herein.

The Agency next argues that the absence of employees fitness and performance as factors in a reduction-in-force retention system is inconsistent with 5 U.S.C. 2301(b)(6), the merit system principle which states, "(e)mployees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards." Even if this provision in title 5 of the United States Code were found to apply [ v8 p676 ] to the nonappropriated fund instrumentality employees herein, the decision in Association of Civilian Technician, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA No. 10 (1981), at 4-5, states:

In respect to (merit system principle) section 2301, it is noted that the Joint Explanatory Statement of the Committee on Conference contained in the Conference Report that accompanied the version of the bill which was enacted and signed into law stated as follows (at 128 of the Report):

Unless a law, rule or regulation implementing or directly concerning the principles is violated (as under section 2302(b)(11)), the principles themselves may not be made the basis of a legal action by an employee or an agency.

S. Rep. No. 95-1272, 95th Cong., 2d. Sess. 158 (1978).

Accordingly, the merit system principle cited by the Agency, alone, would not form a basis for finding Union Proposal IV outside the duty to bargain.

The Agency's third cited reference for finding Union Proposal IV nonnegotiable is DOD Manual 1401.1-M. In this connection, in American Federation of Government Employees, AFL - CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450, 454 (1980) the Authority stated that, "the agency bears the burden of coming forward with affirmative support for its assertion that the (agency) regulation in question bars negotiations because, implicitly, a compelling need exists for the regulation." 15 In the instant case, the Agency merely alleged that its regulation and Union Proposal IV were inconsistent and that a "compelling reason" exists for the regulation. The Agency did not enclose a copy of the regulation, [ v8 p677 ] nor did it quote from the regulation. Further, the Agency provided no affirmative support for its assertion that a compelling reason exists for the regulation in question. Hence, the Agency in this case has not met its burden of showing a compelling need for this Agency regulation. Therefore, DOD Manual 1401.1-M cannot act as a bar to negotiations on this proposal. Accordingly, Union Proposal IV is within the Agency's duty to bargain.

Issued, Washington, D.C., May 19, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v8 p678 ]

FOOTNOTES

Footnote 1 Section 7106(a)(2)(A), (a)(2)(B) and (b)(1) provides: 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-- (2)in accordance with applicable laws-- (A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.) (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(.)

Footnote 2 In deciding that Union Proposal I is within the duty to bargain, the Authority, of course, makes no judgement as to its merits.

Footnote 3 Section 7106(b)(2) and (3) of the Statute provides: 7106. Management rights (v) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (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.

Footnote 4 Section 7117(a)(1) of the Statute provides: 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal Law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.

Footnote 5 In deciding that Union Proposal II is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.

Footnote 6 The Agency alleges only the underlined portion of the proposal is outside the duty to bargain.

Footnote 7 Section 7106(a)(2)(C) provides: 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this (Statute ) shall affect the authority of any management official of any agency-- (2) in accordance with applicable laws-- (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source(.)

Footnote 8 See, e.g., American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA No. 56 (1981); National Treasury Employees Union and Internal Revenue Service, 7 FLRA no. 42 (1981), at 3-11 of the decision.

Footnote 9 The Agency alleges only the underlined portion of the proposal is outside the duty to bargain.

Footnote 10 5 U.S.C. 4302(a)(3) provides: 4302. Establishment of performance appraisal systems (a) Each agency shall develop one or more performance appraisal systems which-- (3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees +/-.)

Footnote 11 5 U.S.C. 2301(b)(6) provides: 2301. Merit system principles (b) Federal personnel management should be implemented consistent with the following merit system principles: (6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

Footnote 12 Section 7117(a) of the Statute provides: 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. (2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. (3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable.

Footnote 13 In deciding that Union Proposal IV is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.

Footnote 14 5 U.S.C. 2105(c) provides: 2105. Employee (c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service, Navy Ship's Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of-- (1) laws (other than subchapter IV of chapter 53 and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or (2) subchapter I of chapter 81 and section 7902 of this title. This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

Footnote 15 See section 7117(a)(2) and (3) of the Statute, at note 12 supra, and section 2424.11 of the Authority's Rules and Regulations (5 CFR 2424.11 (1981)).

 

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