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 29 FLRA NO. 118

COORDINATING COMMITTEE OF UNIONS

                    Union

      and

DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING

                    Agency

Case No. 0-NG-1435

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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). This case presents issues concerning the negotiability of four proposals. 1 Based on the following reasons, we find that Proposals 1, 3 and 4 are not within the duty to bargain and that Proposal 2 is within the duty to bargain.

II. Proposal 1

Section 1. The basic workweek for full time employees will consist of 40 hours of work, scheduled 8 hours a day, Monday through Friday except where conditions exist that would seriously handicap the Bureau from carrying out its normal function.

Section 2. Hours of duty that are currently applied and approved by the Bureau will continue for the life of this agreement.

(Only the underlined portions are at issue.)

A. Positions of the Parties

The Agency, in its allegation of nonnegotiability, asserts that the proposal conflicts with law and Government-wide regulations--specifically, 5 U.S.C. 6101 and 5 C.F.R. 610.111 and 610.121. It also asserts that the proposal conflicts with its rights under section 7106(a)(2)(B) to assign work and determine the personnel by which agency operations shall be conducted.

The Union describes this proposal as intended to retain current schedules and tours of duty. It asserts that the Office of Personnel Management (OPM) regulations do not support a contention that negotiation is barred based on conflict with an agency regulation for which a compelling need exists. 2 Even if the OPM regulations could bar negotiations, this particular proposal does not conflict with the OPM regulations, but, rather, incorporates the standards set forth in them and 5 U.S.C. 6101 as to the establishment of a basic workweek and changes in tour of duty. It contends that the proposal does not conflict with management rights because it would not prevent the Agency from requiring that work be performed at times other than those specified by the proposal. It argues that the proposal determines only what the normal, non-overtime work hours of employees will be.

B. Analysis and Conclusion

Under 5 U.S.C. 6101, agency heads are required to provide that the basic workweek is scheduled on 5 days, Monday through Friday when possible, and that the 2 days outside the basic workweek are consecutive. An exception to this requirement applies where the agency head determines that the organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased. The provisions of 5 U.S.C. 6101 are implemented by regulations issued by OPM. Those regulations mirror the above-described statutory requirement. Additionally, those regulations require that the head of an agency schedule the work of employees to accomplish the agency's mission and that the employees' regularly scheduled administrative workweek be scheduled so that it corresponds with the employees' work requirements. 5 C.F.R. 610.121(b)(1). The regulations require that when the agency head knows in advance of an administrative workweek that the specific days and/or hours of a day actually required will differ from those in the current workweek, he/she shall reschedule the regularly scheduled workweek to correspond with the actual requirements. 5 C.F.R. 610.121(b)(2).

Chapter 61 of Title 5, U.S. Code, governs "Hours of Work" for virtually all employees in Executive agencies and military departments. 5 U.S.C. 6101(c) assigns to OPM responsibility for promulgating regulations, subject to the approval of the President, necessary for administration of the 40-hour workweek and work schedules as they affect employees "in or under an Executive agency." Pursuant to this legislative mandate, OPM issued regulations which are codified at Part 610, title 5, Code of Federal Regulations and which govern hours of duty including weekly and daily scheduling of work. These regulations pertain to employees in or under an Executive agency with certain exceptions not relevant here. 3 See 5 C.F.R. 610.101. In light of these circumstances, we conclude that the cited regulations are "Government-wide," within the meaning of section 7117(a)(1), in that they are applicable generally to the employees in the competitive and excepted service and are binding on heads of Executive agencies. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 348, 751-55, (1980).

This proposal would require the Agency to establish and maintain a basic workweek for employees consisting of 8 hours per day, Monday through Friday, unless conditions existed in which this requirement would seriously handicap the Agency in carrying out its normal functions. As noted earlier, in prescribing and adjusting work schedules, heads of agencies are required under law and regulation to take into consideration whether a particular work schedule would result in substantially increased costs as well as whether it would seriously handicap the Agency in carrying out its functions. This proposal would preclude consideration of the cost factor. Accordingly, we find that the proposal is inconsistent with 5 U.S.C. 6101(a)(3) and 5 C.F.R. 6101.121. Inasmuch as it is inconsistent with law and Government-wide regulation, it is, under section 7117 of the Statute, outside the duty to bargain. Compare National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753 (1986) (Proposal 1) in which the Authority found nonnegotiable a proposal which would require, except in emergencies, at least 14 days advance notice to employees in the event of a change in duty hours, days or weeks.

In view of this conclusion, we do not reach the Agency's other argument as to the nonnegotiability of the proposal.

III. Proposal 2

Parking

Section 1. The existing parking policy of the Bureau is incorporated into this agreement with the following exception:

(a) Five parking spaces having ready access shall be provided for committee use to assure that the work of the Committee can be maintained in an efficient manner. The Chairman of the Committee shall designate the representative entitled to use these spaces.

A. Positions of the Parties

The Agency contends that this proposal is non-negotiable under section 7117(a) of the Statute because it conflicts with "Bureau, Treasury and Government-wide regulation." The Government-wide regulation to which it refers is that of the General Services Administration (GSA).

The Union argues that Government-wide regulations do not provide a basis under section 7117 to bar negotiation of a proposal. Moreover, it asserts that the GSA regulation, on which the Agency relies, does not apply because the property occupied by the Agency is "owned" by the Department of the Treasury. As to the Agency's assertion that the proposal is nonnegotiable because it conflicts with "Bureau" and "Treasury" regulations, the Union asserts that the Agency has failed to demonstrate that there is a conflict or that a compelling need exists for those regulations.

B. Analysis and Conclusion

The Government-wide regulations on which the Agency relies are codified at 41 C.F.R. 101-20.104--101-20.104-4. They are part of Subchapter D of Chapter 41 of the Federal Property Management Regulations (FPMR) issued by GSA. They have replaced FPMR Temporary Regulation D-69 (Temp. Reg. D-69) which previously appeared as an Appendix to Subchapter D of 41 C.F.R. Chapter 101. 52 Fed. Reg. 11263 (1987). The Authority found that Temp. Reg. D-69 was a Government-wide regulation within the meaning of section 7117 of the Statute. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658 (1986) . No reason is apparent why we should reach a different conclusion now. Further, the Union does not dispute that the regulations in their current form are Government-wide regulations.

Those regulations apply to Government-owned and leased buildings and grounds under the assignment responsibility of GSA. 41 C.F.R. 101-20.000. The Union asserts, among other things, that the GSA parking regulations do not apply to the Agency because it is "owned" by the Department of the Treasury. We note that the applicability of the regulations is based on whether the Government-owned and leased buildings and grounds are under the assignment responsibility of GSA. We have no basis in the record of this case for making a judgment as to whether the Agency is excepted from GSA's assignment responsibility as the Union suggests. However, resolution of this question is not necessary for a ruling on the negotiability of this proposal.

As to allocation and assignment of employee parking spaces, the regulations (41 C.F.R. 101.20.104-2(d)) prescribe the following priority:

(1) Severely handicapped employees. Justifications based on medical opinion may be required.

(2) Executive personnel and persons who work unusual hours.

(3) Vanpool/carpool vehicles.

(4) Privately owned vehicles of occupant agency employees which are regularly used for Government business at least 12 days per month and which qualify for reimbursement of mileage and travel expenses under Government travel regulations.

(5) Other privately owned vehicles of employees, on a space-available basis.

The Agency has not shown that the proposal actually conflicts with this regulatory provision. More specifically, it has not shown that it does not have or cannot request from GSA adequate parking spaces to provide the spaces required by the proposal and still adhere to the prescribed priority. See American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658 (1986). Thus, the Agency has not supported its claim that the proposal conflicts with a Government-wide regulation.

As to the Agency's contention that the proposal conflicts with "Bureau" and "Treasury" regulations, it has not supported a claim that the proposal conflicts with any agency regulation for which a compelling need exists.

The compelling need provisions of the Statute are meant to insure that otherwise negotiable bargaining proposals are removed from the duty to bargain only if the agency involved demonstrates and justifies an overriding need for the policies reflected in the rules or regulations to be uniformly applied throughout the agency. Therefore, an agency must (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with the reference to the Authority's standards set forth in section 2424.11 of its Regulations. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986). Here, the Agency has provided no facts or argument bearing on these questions. Therefore, it has not demonstrated that negotiation over the proposal is barred by an Agency regulation for which a compelling need exists. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454 (1980).

Based on the above, we find that the Agency has not sustained its claims that this proposal is nonnegotiable under section 7117(a) of the Statute. Hence, Proposal 2 is within the duty to bargain.

VI. Proposal 3

Section 6. It is agreed and understood that the following employees will not be furloughed:

a. Employees under notice of reduction in force or under notice of suspension or other adverse action.

b. Employees serving under a temporary promotion. Such employees will have their names removed from this list and will not be furloughed with employees in the specific rating from which they were temporarily promoted. They will be furloughed with employees in the specific rating which they were temporarily promoted.

A. Positions of the Parties

The Agency contends that this proposal is inconsistent with its rights under section 7106(a)(2)(A) of the Statute to retain and layoff employees.

The Union contends that this proposal is intended as an appropriate arrangement for employees adversely affected by the Agency's exercise of its rights. It describes section 6.a. as delaying, as opposed to barring, action. It asserts that section 6.a. would allow the agency to furlough employees , "in conformance with applicable regulations," once the suspension or other adverse action was completed assuming, of course, that those employees remained on the rolls. As to section 6.b., the Union describes it as merely establishing a procedure to be followed by management in exercising its rights to furlough employees. The union asserts that section 6.b. reflects Federal Personnel Manual (FPM) requirements that employees serving on a temporary promotion compete with other employees in their permanent position for purposes of determining who will be furloughed.

B. Analysis and Conclusion

By its terms, the proposal applies to furloughs in general, including those which are subject to OPM reduction-in-force (RIF) regulations. 5 C.F.R. 351.201(a)(2). The OPM RIF regulations are Government-wide regulations within the meaning of section 7117. See, for example, National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA 553 (1986).

Those regulations prescribe a system in which employees are ranked for purposes of determining the order in which they will be released from their appropriate competitive levels and subject to, among other actions, being furloughed. The regulations require that employees must be released from their competitive levels in inverse order of their standing on the retention register for that level. An agency nay not release a competing employee from a competitive level while retaining an employee with lower retention standing unless one of the mandatory or permissive continuing or temporary exceptions set forth in those regulations applies. 5 C.F.R. 351.601-351.608. Also, those regulations require that employees who are temporarily promoted compete for retention in the competitive level of the position from which they were promoted. 5 C.F.R. 351.404(a).

Section 6.a. of the proposal would exempt employees from being released for furlough while they are, among other things, under notice of adverse action. This exemption is not one of the permissive or mandatory exceptions permitted under the regulations. This part of the proposal conflicts with the OPM regulations in that it would require retention of an employee under notice of adverse action without regard to that person's standing on the retention register compared to that of other employees being released.

The Union asserts that section 6.b. is intended to conform with the requirement in the OPM regulations that employees on a temporary promotion compete for retention with employees in the competitive level applying to the position from which they were temporarily promoted. However, this is not what the proposal, as submitted to us, states. In fact, it states the opposite and requires that employees will not be furloughed with employees in the rating from which they were temporarily promoted. We do not base negotiability determinations on a union's statement of intent that is inconsistent with the express language of the proposal. See, for example, American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 17 FLRA 899 (1985) (Proposal 2). As written, section 6.b. is inconsistent with a Government-wide regulation. Proposal 3 is not within the duty to bargain.

In view of this finding we do not address the Agency's contention that the proposal conflicts with its right under section 7106(a)(2)(A) to retain and layoff employees. As to the Union's claim that the proposal constitutes a "procedure" or an "appropriate arrangement," we note that sections 7106(b)(2) and (3) expressly apply only when management is exercising one of the management rights set out elsewhere in section 7106. We have found that Proposal 3 is outside the duty to bargain because it is inconsistent with an applicable Government-wide regulation. Consequently, section 7106(b)(2) and (3) are not applicable.

V. Proposal 4

Assignment and Detail

Section 5. No employee shall be assigned to a higher level position for more than eight consecutive working hours unless written record of such assignment is maintained as temporary promotion or detail and such written record is available to the employee upon request prior to and subsequent to submission of such information to the payroll office. No performance appraisal shall be based on performance of duties above the level to which the employee is permanently assigned unless the employee was paid at the higher level. (Only the underlined portion is at issue.)

A. Positions of the Parties

The Agency contends that the underscored portion of the proposal is nonnegotiable because it conflicts with its management rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

The Union argues that the disputed portion of the proposal must be read in context with the undisputed portion of the proposal. It describes the proposal in its entirety as providing that where an employee is assigned to higher graded duties for more than 8 hours: (1) the assignment must be officially recorded as a temporary promotion or detail and the record made available to the employee upon request; and (2) evaluation of the employee's performance of those duties may only be made where the employee has been temporarily promoted. It describes the proposal as intended to insure that employees are not rated on work to which they were not officially assigned and for which they were not compensated. It asserts that the disputed portion of the proposal addresses the conditions which must be met before an employee can be evaluated on the performance of duties and that it is negotiable as a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusion

As written and explained by the Union, the disputed portion of the proposal would restrict the Agency from evaluating an employee's performance of higher level duties under circumstances where an employee has been detailed, as contrasted with temporarily promoted, to the higher level position for more than 8 hours. The Agency's rights under section 7106(a)(2)(A) and (B) encompass the right to determine the aspects of employees' work to be evaluated in preparation of employee performance appraisals. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714 (1987) (Proposal 3). This proposal would place a substantive contractual limitation on the Agency's discretion to determine whether it will evaluate an employee's performance of duties while detailed to a higher level position. It is not merely procedural in nature. Rather, we conclude that the proposal directly interferes with the Agency's rights to direct employees and to assign work and is not a procedure negotiable under section 7106(b)(2).

The Union asserts, without elaboration, that the proposal does not excessively interfere with the Agency's rights and that it is negotiable as an appropriate arrangement under section 7106(b)(3). In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), the Authority discussed in detail the responsibilities of the parties to raise and address specific matters concerning section 7106(b)(3) in negotiability appeals. Among other things the Authority stated:

In making that determination, the Authority will first examine the record in each case to ascertain as a threshold question whether a proposal is in fact intended to be an arrangement for employees adversely affected by management's exercise of its rights. In order to address this threshold question, the union should identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse. In other words, a union must articulate how employees will be detrimentally affected by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of the exercise of the management right or rights.

In this case, the Union does not state, nor is it readily apparent to us, how this proposal would operate as an appropriate arrangement for employees adversely affected by the exercise of management rights. We have no basis, on the record, for concluding that it is negotiable as such. The parties are responsible for creating the record upon which we will resolve negotiability disputes. National Federation of Federation Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this burden acts at its peril.

Based on the foregoing, we find that Proposal 4 is not within the duty to bargain.

VI. Order

The Union's petition for review as to Proposals 1, 3 and 4 is dismissed. The Agency shall upon request (or as otherwise agreed to by the parties) negotiate concerning Proposal 2. 4

Issued, Washington, D.C., November 6, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: The Agency did not file a statement of position. Therefore, we rely on the Agency's contentions made in its allegation of nonnegotiability, which it provided to the Union and the Union included with its petition for review.

Footnote 2: We note that the Agency raises as a bar to negotiation of the proposal its alleged conflict with a Government-wide regulation as opposed to an agency regulation for which a compelling need exists.

Footnote 3: Insofar as the Bureau of Engraving and Printing is concerned, Part 610 of title 5, C.F.R. specifically applies to "each employee whose pay is fixed and adjusted from time to time under section 5343 or 5349 of title 5, United States Code. . . ." Section 5349 applies to, among others, certain employees of the Bureau of Engraving and Printing.

Footnote 4: In finding that this proposal is within the duty to bargain, we make no judgment as to its merits.

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