[ v23 p146 ]
23:0146(17)NG
The decision of the Authority follows:
23 FLRA No. 17
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
Union
and
DEPARTMENT OF JUSTICE, IMMIGRATION
AND NATURALIZATION SERVICE
Agency
Case No. 0-NG-682
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. State of the Case
This case comes 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 two Union proposals.
II. Background
These proposals were offered by the Union during negotiations held as
the result of a settlement agreement between the parties resolving an
unfair labor practice (ULP) charge filed against the Agency. The
settlement agreement obligated the Agency to bargain over the impact and
implementation of detailing bargaining unit employees to work at sites
used for detention of illegal Cuban and Haitian aliens. The proposals
specifically address the fact that unit employees lose their eligibility
under Agency regulations for administratively uncontrollable overtime
(AUO) while on detail to the detention centers.
The purpose and method of computing AUO is fully explained in
National Border Patrol Council, American Federation of Government
Employees, AFL-CIO and United States Immigration and Naturalization
Service, 23 FLRA No. 11 (1986). In accordance with applicable
regulations, AUO may be paid only if the amount involved would be less
than employees would be entitled to under regular overtime. These
proposals seek to mitigate the effect upon employee entitlements to AUO
payments which results from the details. In essence, the proposal would
minimize the difference between AUO and the amount the employee would
receive if paid regular overtime.
Union Proposal 1
The initial ten (10) working days of a detail to the Cuban/Haitian
Refugee Program will be considered excludable for AUO purposes and
immediately upon return to his official duty station, the employee
will be certified for the same percentage of AUO for which he was
certified prior to detail to the Cuban/Haitian Refugee Program.
A. Positions of the Parties
As a procedural matter, the Agency asserts that the Union's
negotiability appeal should be dismissed for failure to comply with
section 2424.5 of the Authority's Rules and Regulations. That is, the
Agency asserts that the Union filed a ULP charge against the Agency
concerning the same matter as Union Proposal 1, yet did not select, as
required by section 2424.5 of the Rules, which procedure (the ULP charge
or the negotiability appeal) the Authority should process first.
The Agency further argues that it has no duty to bargain on Union
Proposal 1 in the circumstances of this case because, in essence, the
proposal falls outside the scope of the parties' settlement agreement.
Substantively, the Agency argues that Union Proposal 1 is
nonnegotiable because:
1. The proposal violates law and/or Office of Personnel
Management (OPM) regulations. In particular, the proposal
conflicts with 5 C.F.R. Section 550.151 to .164 which was issued
pursuant to 5 U.S.C. Section 5545(c);
2. The proposal constitutes an attempt to negotiate rates of
pay in violation of law; and
3. The proposal violates an Agency regulation, DOJ Order
1551.4A, for which there is an asserted compelling need.
The Union contends that a negotiability determination is warranted
because the issues present in the ULP proceeding cited by the Agency are
distinguishable from the issue raised in its proposal. Substantively,
the Union asserts that the matter of excluding days from AUO computation
is within the discretion of the Agency and, therefore, is within its
duty to bargain.
B. Analysis
1. Procedural Issue
The ULP charge, which the Agency claims concerns the same issue as
Union Proposal 1, was closed by the Regional Director without any
substantive determination having been made on the underlying issue
shortly after the Agency filed its Statement of Position in the
negotiability appeal. Thus, even assuming that the Union failed to make
the election required by section 2424.5 of the Rules as to which
procedure (the ULP charge or the negotiability appeal) should be
processed first, such procedural issue has been rendered moot.
2. Duty to Bargain
When a union files a negotiability appeal under section 7105(a)(2)(D)
and (E) of the Statute, section 7,17(c) entitles it to a decision on the
negotiability issues in the appeal. To the extent that there are
factual issues in dispute between the parties in the circumstances of a
case, such issues should be resolved in other appropriate proceedings.
American Federation of Government Employees, AFL-CIO, Local 2736 and
Department of the Air Force, Headquarters, 279th Combat Support Group
(SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). Hence,
the Agency arguments that under the circumstances it has no duty to
bargain on the disputed proposal are not relevant in the context of a
negotiability appeal.
3. Substantive Issues
a. Conflict with Law and Government-wide Regulation
While the Agency concedes that the development of a formula for
establishing AUO entitlements is left to agencies' discretion, it
contends that the law and regulations implicitly require all similarly
situated employees within an agency to be treated in like manner. In
support, the Agency relies on two decisions of the Court of Claims,
namely, Byrnes, et al. v. United States, 330 F.2d (Ct. Cl. 1964) and
Fix, et al. v. United States, 368 F.2d 609 (Ct. Cl. 1966).
The Agency's reliance on the two Court of Claims decisions is
misplaced. Those cases dealt with agency attempts to exclude certain
employees from eligibility for overtime pay in violation of statutory
eligibility criteria. The cases did not specifically examine the
agencies' methods of computing AUO overtime pay. In fact, the court in
the Fix case noted that an agency does have discretion in the
calculation of overtime pay under an AUO statute. 368 F.2d at 614.
Further, the court in the Fix case stated that a "necessary consequence"
of the AUO scheme is that "some will get the same pay for much more
work." 368 F.2d at 615.
The Agency contends that its own regulations are applicable
throughout the entire Department of Justice and ensure the required
uniform treatment of all Justice employees. The Agency argues that
Union Proposal 1 would set up a different computational scheme for unit
employees detailed to the detention centers, which would result in
higher subsequent AUO payments to covered employees than those received
by non-bargaining unit employees assigned to other details of similar
length for which AUO pay is also not authorized.
The Authority finds that neither the governing statute nor the
related OPM regulations, either literally or as judicially interpreted,
requires absolute equity between Executive agencies or even between
similarly situated employees within an agency. Rather, the law and
regulations leave agencies with discretion to decide how to arrive at
individual AUO entitlements. To the extent that an agency has
discretion respecting a matter sought to be bargained affecting
conditions of employment within a bargaining unit and where the grant of
discretion is not sole and exclusive, the matter is within the duty to
bargain. National Treasury Employees Union, Chapter 6 and Internal
Revenue Service, New Orleans District, 3 FLRA 758 (1980). In this case,
the Agency has proffered no persuasive arguments that either the
statutory or regulatory grants of discretion are limited so as to bar
bargaining over the methods of computing AUO entitlements.
b. Negotiation over Pay Rates
The Agency's view that Union Proposal 1 constitutes an unlawful
attempt to bargain over rates of pay is based on the fact that exclusion
of the first ten days of a detail to the detention centers, as required
by the proposal, would result in the concerned employees receiving a
higher rate of AUO upon return to their regular assignments than
otherwise would be granted under the Agency regulation. This proposal,
however, merely concerns the computation of AUO within the specific
constraints set by law and implementing Government-wide regulations.
That is, 5 U.S.C. Section 5545(c)(2) establishes that an employee
eligible for AUO payments may receive "not less than 20 percent nor more
than 25 percent, of such part of the rate of basic pay for the position
as does not exceed the minimum rate of basic pay for GS-10, by taking
into consideration the frequency and duration of irregular unscheduled
overtime duty required in the position." The Agency has not alleged, nor
is it otherwise apparent, that this proposal seeks to circumvent these
statutory limitations.
The OPM regulations issued pursuant to 5 U.S.C. Section 5545(c)
state, at 5 CFR Section 550.161(d) (1986), that determinations as to AUO
payments ". . . shall be based on consideration of available records of
the hours of irregular or occasional overtime work required in the past,
and any other information bearing on the number of hours of duty which
may reasonably be expected to be required in the future." The Agency
does not suggest that the proposal is inconsistent with the quoted
regulatory guidelines nor does it assert that the proposal is an
inherently inaccurate indicator of future uncontrollabel overtime work.
In fact, the Agency states, at 20 of its Statement of Position, that it
does not "claim that there is a specific . . . need to include or
exclude the first 10 days of an assignment to 'other duties' within the
meaning of 5 CFR Section 550.162(c)(1)."
c. Compelling Need for the Agency's Regulation
The Agency argues that its regulations governing AUO computations
meet the criterion for compelling need set forth at section 2424.11(b)
and (c) of the Authority's Rules and Regulations. Both of these
compelling need arguments were raised in United States Immigration and
Naturalization Service, 23 FLRA No. 11 and were rejected by the
Authority. For the reasons fully stated in that case, they are likewise
rejected here.
d. Recertification After Return from Detail
In the Agency's assertion of nonnegotiability it contended that the
portion of the proposal requiring recertification of employees at the
same percentage of AUO for which they were certified prior to their
detail is moot. The Agency has not argued that this portion of the
proposal is nonnegotiable, nor is it otherwise apparent that it is
inconsistent with any law, rule or regulation. In fact, this portion of
the proposal appears to be consistent with the Agency's regulation, as
modified by the first part of the proposal, concerning the calculation
and payment of AUO for employees returning from a detail. Thus, the
Authority finds this portion of the proposal to be within the duty to
bargain.
C. Conclusion
The proposal is properly before the Authority and does not conflict
with 5 U.S.C. Section 5545(c) of 5 C.F.R. Section 550.151 to .164.
Further, the Agency has not demonstrated that negotiation of the
proposal is barred by an Agency regulation, DOJ Order 1551.4A, for which
a compelling need exists. Consequently, Union Proposal 1 is within the
duty to bargain.
IV. Union Proposal 2
The Service agrees where possible to attempt to avoid assigning
employees who are within three years of retirement to details
which have the effect of reducing the employees' compensation for
their "high three" years (for retirement purposes).
A. Positions of the Parties
The Agency contends that the proposal is inconsistent with
management's rights to assign employees and work, under section
7106(a)(2)(A) and (B) of the Statute.
The Union characterizes the proposal as being "hortatory rather than
mandatory" and, thus, within the duty to bargain.
B. Analysis
In effect, Union Proposal 2 prevents the Agency from assigning
certain employees to details which would render them ineligible for AUO
payments. A provision similar in effect was before the Authority in
National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 14 FLRA 243 (1984). Provision 2 in that case
sought to prevent the agency from rotating details among employees to
avoid compensating them at a higher level. Finding that the provision
imposed substantive restrictions on management's right to assign
employees by limiting its discretion to determine which particular
employees would be assigned, the Authority held the provision to be
inconsistent with section 7106(a)(2)(A) of the Statute. In like manner,
Union Proposal 2 would prevent the Agency from assigning the specified
employees to certain types of details.
The detailing of employees in this case involves a change in the work
which is assigned to those employees. In this case management would be
prevented from assigning to certain employees work for which AUO pay is
not authorized. In National Federation of Federal Employees, Local 1622
and Department of the Army, Headquarters, Vint Hill Farms Station,
Warrenton, Virginia, 16 FLRA 578 (1984), Union Provision 2 required
management, "insofar as possible," to refrain from assigning to
employees work which was inappropriate to their positions or
qualifications. The Authority determined that the provision was
inconsistent with management's right, under section 7106(a)(2)(B) of the
Statute, to assign work because it specifically prevented the agency
from requiring employees to perform certain duties.
Further, this analysis is not altered by the inclusion of the
qualifying term "to attempt" in the proposal. An argument that
qualifying words made a proposal nonmandatory, similar to that urged by
the Union here, was addressed in National Federation of Federal
Employees, Local 943 and Department of the Air Force, Headquarters
Keesler Technical Training Center, Keesler Air Force Base, Mississippi,
19 FLRA No. 113 (1985) (Union Proposal 2). In that case, the union
suggested that the proposal only required management to "attempt" to
undertake certain actions which were otherwise within the realm of
management rights. The Authority determined that the import of the
proposal was that, where management determined that the prescribed
actions were possible, it was obligated to take them. Consequently, the
qualification did not cure the proposal's inconsistency with
management's rights. Based on the reasoning and cases cited in Keesler
Air Force Base, the Union's position in this case cannot be sustained.
C. Conclusion
Union Proposal 2 substantively violates the rights to assign
employees and work reserved to management by section 7106(a)(2)(A) and
(B) of the Statute. It is, therefore, outside the duty to bargain.
V. 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 Union Proposal 1.
/*/ IT IS FURTHER ORDERED that the petition for review, as it relates
to Union Proposal 2, be, and it hereby is, dismissed.
Issued, Washington, D.C., August 14, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding Union Proposal 1 to be within the duty to bargain, the
Authority makes no judgment as to its merits.