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25 FLRA NO. 58

LOCAL 3, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, AFL-CIO

                          Union

               and

NAVAL SEA SYSTEMS COMMAND
DETACHMENT, PERA (CRUDES)
PHILADELPHIA

                          Agency

Case No. 0-NG-1213

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I . Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of six provisions of a negotiated agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. 1 We find all six provisions to be negotiable.

II . Provision 1

Article 9, Section 10. The Employer agrees to make every effort not to assign overtime to the extent that it will cause the FLSA exempt employee's overtime pay combined with their salary to exceed the maximum allowed by law for a period. [ v25  p714 ]

A. Positions of the Parties

The Agency contends that as Provision 1 prevents it from assigning overtime in certain circumstances it interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work.

The Union asserts that the provision merely requires the Agency to comply with statutory limitations on the amount of overtime which may be assigned to employees. The Union claims that employees who exceeded the maximum number of compensable overtime hours in a pay period would in effect be required to work without compensation if they were assigned additional overtime in that same pay period. The Union argues that this violates 31 U.S.C. 1342, which prohibits use of voluntary services by the Federal government. 2

B. Analysis

Provision 1 concerns employees who are exempt from coverage of the overtime provisions of the Fair Labor Standards Act (FLSA). These employees are covered instead by the overtime provisions of title 5. Specifically, 5 U.S.C. 5547 limits an employee's overtime payment to no more than the maximum rate for a GS-15. 3 In addition, [ v25  p715 ] the Comptroller General has held that employees who are prohibited from receiving additional overtime compensation by the statutory limit on aggregate compensation are also prevented from receiving compensatory time as compensation. 37 Comp. Gen. 362 (1957). Thus, if the employees in this case have already reached the statutory limit on overtime payments, they can not receive additional compensation for additional overtime hours worked. However, contrary to the Union's assertion, requiring employees to work overtime in these circumstances is not illegal. See Sullivan v. United States, 665 F.2d 1012 (Ct.Cl. 1981). Consequently, the Agency has the right under section 7106(a)(2)(B) to assign overtime work in such circumstances.

Nevertheless, we find Provision 1 would not limit management in exercising its right to assign overtime work. That is, in our view, even requiring management to "make every effort to not assign overtime" in these circumstances does not actually prevent management from assigning overtime. Rather, the provision only requires the Agency to make efforts to take into account which employees have already reached the statutory limit on overtime payments in distributing new overtime assignments. Thus, the Agency would not be prevented from assigning overtime to an employee who had already reached the statutory limit on overtime payments if no other qualified employee was available. Only if more than one employee is qualified to perform overtime would the Agency be required to assign overtime to an employee who had not already reached the statutory limit on overtime payments.

C. Conclusion

Provision 1 does not interfere with the Agency's right to assign work pursuant to section 7106(a)(2)(B) of the Statute. Rather, it requires the Agency to take into account legal restrictions concerning limitations on the amount of overtime which can be compensated in distributing overtime assignments to bargaining unit employees. Thus, Provision 1 is within the duty to bargain.

III . Provision 2

Article 21, Section 1. The Employer agrees to establish a Facilities Improvement Committee with at least three unit members on it, one of which would be designated union representative. This Committee to be established within 45 days after signing of this agreement. The objective of this committee will be to recommend improvements to the physical environment. [ v25  p716 ]

A. Positions of the Parties

The Agency argues that Provision 2 would interfere with its right to determine its organization under section 7106(a)(1) of the Statute by requiring the Agency to adopt a particular structure to carry out a management function. The Agency also contends that the provision interferes with its right to assign work under section 7106(a)(2)(B) of the Statute.

The Union claims that the provision does not compel alteration of the Agency's organizational structure. The union also contends that the provision does not interfere with management's right to assign work because it does not concern the official prescribed duties of employees and does not require the assignment of any particular duties to employees.

B. Analysis

It is by now well established that proposals creating joint labor-management committees to provide a forum for unions and employees to express their views and make recommendations on matters related to their conditions of employment are negotiable. See, for example, National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, New York, 22 FLRA No. 13 (1986) (provision 1). On the other hand, proposals seeking union membership on formal organizational structures utilized by management as an integral part of its substantive decision-making process under section 7106 of the Statute are nonnegotiable. See, for example, National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Contrary to the Agency's position however, Provision 2 in this case contemplates the establishment of a joint committee to further communication between the parties and to foster bilateral problem solving. That is, this provision expressly provides for the creation of a joint labor-management committee to make recommendations to management concerning working conditions of unit employees: improvement in the physical environment of the work site. Thus, the Agency' claim that this provision interferes with its right under section 7106(a)(1) to determine its organization lacks merit. Compare Hawaii Federal Employees Metal Trades Council, AFL - CIO and Pearl Harbor Naval Shipyard, 23 FLRA No. 24 (1986) (proposal requiring the revival of a previously [ v25  p717 ] abolished agency health and safety committee and the addition of union representatives to this committee found to interfere with management's right to determine a formal organizational structure by which it made substantive decisions). Further, because the participation of employees on this committee does not involve official, prescribed duties of those employees, membership on the committee does not concern the assignment of work within the meaning of section 7106(a)(2)(B). See National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).

C. Conclusion

Based upon the foregoing analysis, we conclude that Provision 2 is a negotiable procedure under section 7106(b)(2) of the Statute and is within the Agency's duty to bargain.

IV . Provisions 3, 4 and 5

Provision 3

Article 23, Section 3. If the findings of the investigation or inquiry indicate that disciplinary action appears to be warranted, a discussion will be held with the employee, if he is in a work status, prior to the issuance of the disciplinary or proposed disciplinary action. The employee will normally be notified at least 48 hours prior to the discussion that if he so desires, he may be accompanied to this discussion by a Union representative. At this discussion, which will be held promptly (normally within ten (10) calendar days) (the only people who may be in attendance are the affected employee, their Union representative, the supervisor requesting the disciplinary action, the official having the authority to initiate the action and the Administrative Assistant or their representative from the cognizant Department or office.) During the discussion, relevant witnesses may be called to present information.

(The bracketed portion of Provision 3 has been withdrawn by the Union.) [ v25  p718 ]

Provision 4

Article 23, Section 4. If the Employer, after the discussion, decides to take any action, the employee will receive notification promptly (normally within ten (10) calendar days) after the discussion.

Provision 5

Article 24, Section 4. If the findings of the investigation or inquiry indicate that an adverse action appears to be warranted, a discussion will be held with the employee, if he is in a work status, prior to the issuance of the proposed adverse action. The employee will normally be notified at least 48 hours prior to the discussion that if he so desires, he may be accompanied at this discussion by a Union representative. At the discussion, which will be held promptly (normally within ten (10) calendar days) (the only people who may be in attendance are the affected employee, their Union representative, the supervisor requesting the adverse action, the official having the authority to initiate the action and the Administrative Assistant or their representative from the cognizant Department or Office.) During the discussion relevant witnesses may be called to present information.

(The bracketed portion of Provision 5 has been withdrawn by the Union.)

A. Positions of the Parties

The Agency contends that these provisions establish time limits (48 hours, 10 days) which create a contractual statute of limitations on the Agency's right to discipline employees pursuant to section 7106(a)(2)(A) of the Statute. The Agency also claims that Provisions 3 and 5 interfere with its right to assign work pursuant to section 7106(a)(2)(B) of the Statute by prescribing which management officials may attend the disciplinary meeting. Since the portions of the provisions concerning attendance at the meeting have been withdrawn, this argument by the Agency will not be discussed further. [ v25  p719 ]

The Union contends that the disputed provisions do not prevent management from acting at all with regard to disciplining employees. Rather, it argues, they simply require that the Agency hold a meeting with an employee prior to imposing discipline and notify the employee promptly after the meeting of whatever disciplinary action it decides to take.

B. Analysis

The portions of Provisions 3 and 5 which require that employees "will normally" be given 48 hours notice of a meeting to discuss impending disciplinary action are to the same effect as Proposal 6 found negotiable in American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982), reversed on other grounds sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). Proposal 6 in that case allowed an employee to postpone an interview concerning disciplinary action for up to two days in order to arrange for a union representative to be present. The Authority found that the delay necessitated the proposal would not prevent the agency from disciplining employees. It concluded that the proposal constituted a negotiable procedure under section 7106(b)(2) of the Statute, citing American Federation of Government Employees, AFL - CIO, Local 1999 and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979); enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA 455 U.S. 945, (1982). Similarly, portions of Provisions 3 and 5 which require that employees be given notice of a disciplinary meeting are within the duty to bargain.

We next turn to the portion of Provisions 3 and 5 which require that the Agency hold a meeting with an employee prior to imposing discipline. While Provisions 3 and 5 do not expressly indicate what event begins the 10-day period within which a discussion will be held, the record indicates that the event is the decision that disciplinary action is warranted. Union Petition for Review at 3rd page of Attachment A, Union Reply Brief at 5-6. We find that [ v25  p720 ] this also constitutes a negotiable procedure under section 7106(b)(2) of the Statute. A similar proposal requiring the employer to hold a fact-finding hearing prior to imposing discipline was found to be negotiable in Joint Council of Unions, GPO and U.S. Government Printing Office, 10 FLRA 448 (1982). In that case, the Authority reasoned that the proposed procedure did not prevent management from exercising its right to take disciplinary action but only provided procedures for taking such action.

The additional requirement in the disputed provisions that the discussion will normally be held within 10 days does not make the proposal nonnegotiable. The cases cited by the Agency, namely, American Federation of Government Employees, AFL - CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Union Proposal 3) and National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985) (Provision 2) affirmed sub nom. National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986) are inapposite. Those cases contained proposals requiring that investigations of allegations regarding employee conduct which could lead to disciplinary actions be initiated within a specific time period. The Authority found that in certain circumstances the proposals in question would prevent management from disciplining employees in situations where the employer had not initiated the investigation within the prescribed time period. In those situations the agency would, in effect, be unable to proceed with the process of disciplining the employee. In contrast, Provisions 3 and 5 merely require that the Agency hold an initial discussion with the employee "normally" within 10 days from the time when the Agency decides to act. Further, the use of the term "normally" indicates that the Agency retains discretion to determine not to hold a discussion at all or to wait until all matters have been investigated before proceeding with proposed discipline in circumstances where an ongoing investigation into a number of other matters is progressing. In addition, the Agency is free to conduct further investigations or to impose discipline after the discussion with the employee or even to impose discipline without a prior discussion. Thus, Provisions 3 and 5 do not prevent the Agency from exercising its right to discipline and constitute negotiable procedures under section 7106(b)(2) of the Statute. [ v25  p721 ]

Finally, we turn to Provision 4. Provision 4 provides that the Agency will notify the employees promptly, "normally within ten days" if it decides to impose discipline after having the discussion with the employee. The Union contends that the intent of the provision is not to bar management from taking disciplinary action. The Union states that the Agency may initially inform the employee that it will not take any action and then change that decision at a later date. Union Reply Brief at 6. The Agency does not contradict this interpretation of the provision which is consistent with its language and the Authority accepts it for the purposes of this decision. Thus Provision 4 merely requires the Agency to make an initial determination about whether it will proceed with disciplinary action and inform the employee promptly of this decision. The provision does not attempt to limit management's ability to discipline in any way. As with Provisions 3 and 5, the Agency's reliance on Department of the Army, Fort Bragg and Sequoia and Kings Canyon National Parks is misplaced. Those cases involved proposals which prevented management from disciplining employees if it did not act within a specific time period. Provision 4 is distinguishable because it requires only that the Agency make an initial decision within certain time limits and notify the affected employee and does not prevent the Agency from acting in an appropriate manner after the expiration of the time frame. See Joint Council of Unions, GPO and U.S. Government Printing Office, 10 FLRA 448 (1982).

C. Conclusion

Provisions 3, 4, and 5 do not prevent the Agency from disciplining employees and are within the duty to bargain under section 7106(b)(2) of the Statute.

V . Provision 6.

Article 32, Section 4 (portion remaining in dispute) It is understood that to be assigned as an EEO Counselor, that person regardless of whether he occupies a position in the Union (officer, chief steward, or steward), voluntarily relinquishes his right to represent any complainant in any discrimination complaint. [ v25  p722 ]

A. Positions of the Parties

The Agency objects to the provision because in its view the provision allows Union officers and stewards to serve as Equal Employment Opportunity (EEO) Counselors. The Agency feels that the roles of union official and EEO counselor are incompatible and that allowing an individual to serve in both capacities would result in a conflict or apparent conflict of interest in violation of section 7120(e) of the Statute. 4

The Union's position is that the decision about whether a conflict of interest exists when an individual holds both positions should be decided on a case-by-case basis. The Union believes that the language in the provision which prevents any person who serves as an EEO Counselor from representing a complainant in a discrimination complaint avoids any conflict of interest.

B. Analysis

In our opinion the Agency has misinterpreted the meaning and effect of Provision 6. That is, contrary to the Agency's position, there is nothing in the express language of this provision which authorizes or otherwise permits a Union official to serve as an EEO Counselor. Rather, the provision merely recognizes that an employee who is a Union officer or steward cannot function both as an EEO Counselor and as an employee representative in a discrimination complaint proceeding because doing so would create an [ v25  p723 ] actual or apparent conflict of interest. This recognition is entirely consistent with applicable Authority precedent. See Harry S. Truman Memorial Hospital, Columbia, Missouri and American Federation of Government Employees, AFL - CIO, Local 3399, 8 FLRA 42 (1982); Department of Health, Education and Welfare, Region VIII, Denver, Colorado, and Social Security Administration, Denver District, Denver Colorado, 6 FLRA 628 (1981). Thus, this provision does not violate section 7120(e) of the Statute. Moreover, this Authority precedent indicates that an employee is not automatically barred from serving as an EEO Counselor because that employee is currently a Union officer or steward. Rather, the determination whether to bar a Union officer or steward from also serving as an EEO Counselor is to be made on the basis of the duties of the particular union office in question.

C. Conclusion

Provision 6 does not violate section 7120(e) of the Statute. Therefore it is within the duty to bargain under section 7117 of the Statute.

VI . Order

The Agency must rescind its disapproval of Provisions 1 through 6 which were bargained on and agreed to by the parties at the local level. 5

Issued, Washington, D.C., February 13, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v25  p724 ]

FOOTNOTES

Footnote 1 The Union initially appealed 14 provisions. However, in its Reply Brief, the Union withdrew its petition as to eight of these provisions. Accordingly, these eight provisions will not be considered further.

Footnote 2 31 U.S.C. 1342 provides: 1342. Limitation on voluntary services An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property(.)

Footnote 3 5 U.S.C. 5547 provides in relevant part: 5547. Limitation on premium pay An employee may be paid premium pay under section 5542, 5545(a)-(c), and 5546(a), (b) of this title only to the extent that the payment does not cause his aggregate rate of pay for any pay period to exceed the maximum rate for GS-15.

Footnote 4 7120(e) provides: (e) This chapter does not authorize participation in the management of a labor organization or acting as a representative of a labor organization by a management official, a supervisor, or a confidential employee, except as specifically provided in this chapter, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee.

Footnote 5 In finding these provisions within the duty to bargain, we make no judgment as to their merits.

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