[ v46 p1494 ]
46:1494(143)NG
The decision of the Authority follows:
46 FLRA No. 143
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 900
(Union)
and
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY RESERVE PERSONNEL CENTER
ST. LOUIS, MISSOURI
(Agency)
0-NG-2069
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 24, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of eight provisions that were agreed to locally but were disapproved by the Agency head under section 7114(c) of the Statute.
For the reasons that follow we conclude that the dispute as to Provisions 1, 4, and 6 is moot. Provision 2, which would define the qualifications required for assignment to overtime work, is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Provisions 3 and 8, which concern providing compensation to Union representatives who perform representational activities outside of their duty hours, are nonnegotiable because they are inconsistent with Federal laws and Government-wide regulations that govern overtime compensation. Provision 5, which provides for the destruction of documentation relating to counseling and admonishment, is nonnegotiable because it excessively interferes with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. Provision 7 is no longer in dispute.
II. Procedural Matters
A. The Amended Petition
When the Union's petition in this case was initially filed, the Authority noted certain deficiencies and issued an Order to the Union to cure those deficiencies. The Order directed the Union to: file a statement showing service of its petition, with all attachments, on the Agency head, or his designee; submit a statement addressing whether a concurrent unfair labor practice charge had been filed and make a selection of either the negotiability or unfair labor practice procedure, if necessary; and submit to the Authority four copies of its petition with all attachments. In response, the Union filed a "1st Amended Copy" of the petition. Subsequently, the Authority issued an Order to Show Cause stating that while the Union's "1st Amended Copy" of the petition contained a statement that there was no outstanding unfair labor practice charge, it failed to cure the other deficiencies identified by the Authority in its earlier Order. Specifically, the Authority noted that in providing four copies of its petition, the Union had not provided exact copies of its original petition but instead had provided a revised petition and that it had served the revised petition rather than a copy of the original petition on the Agency-head designee.
The Authority further stated that the revised petition included five documents that had not been filed with the original petition and failed to include three documents that were part of the original petition. The Authority informed the Union that, pursuant to section 2424.8 of the Authority's Regulations, it does not consider any submission filed by any party, whether supplemental or responsive in nature, other than those authorized under sections 2424.2 through 2424.7, unless the Authority requests such submission or grants the request of a party to file such a submission. The Authority ordered the Union to show cause why the five documents submitted in conjunction with the "1st Amended Copy" of the petition that had not been included with the original petition should be considered by the Authority. The Authority also granted the Union a final opportunity to comply with the Authority's Regulations by filing with the Authority a statement of service showing service on the Agency head, or his designee, of the three documents that were included in its original petition but excluded from the "1st Amended Copy" of that petition.
In response to the Order to Show Cause, the Union provided copies of its original petition, and a signed and dated statement of service showing service on, among others, the Agency-head designee. The Union also argued that the five documents provided in the "1st Amended Copy" of the petition that had not been included with the original petition were submitted in an attempt to comply with sections 2424.3 and 2424.4(b) of the Authority's Regulations, which, the Union contends, require it to file all pertinent material and other relevant documentary material. In its response, the Union asserted that the documents are relevant and requested that the Authority grant permission to file them.
The Agency opposes the Union's request for permission to file the five documents that were submitted in conjunction with the "1st Amended Copy" of the petition and that were not submitted with the original petition. The Agency also asserts that the Union's petition should be dismissed for failure to comply with the Authority's Regulations by failing to serve the Agency head, or his designee, and the Agency's representative within prescribed time limits on two separate occasions.
In its response, the Union opposes the Agency's request to dismiss the petition, asserting that, in fact, the Union had served copies of its original petition and its "1st Amended Copy" of the original petition on the Agency's representatives, including the Acting Chief of the Labor and Employee Relations Division of the Department of the Army, at the time they were filed with the Authority.(1) The Union states that through inadvertence it failed to provide a statement of service to the Authority reflecting this fact.
As to the treatment of the five documents included in the "1st Amended Copy" but not with the original petition, the Union contends that these documents were submitted either in response to the Authority's Order or as part of a submission provided for by the Authority's regulation. In this regard, the Union contends that section 2424.8 of the Authority's Regulations applies to types of submissions that are not encompassed within sections 2424.4, 2424.6, and 2424.7 of the Authority's Regulations and is not intended to preclude the filing of a revised petition, which, it asserts, is the type of submission authorized by section 2424.4.
Pursuant to section 2424.8 of the Authority's Regulations, the Authority will not consider any submission filed by any party, whether supplemental or responsive in nature, other than those authorized under sections 2424.2 through 2424.7 of the Regulations, unless the Authority has either requested, or granted permission to file, such a submission. Insofar as the Union's "1st Amended Copy" of the petition provides information, arguments, and documents that extend beyond the scope of curing the deficiencies that the Authority had previously identified and directed the Union to cure, it constitutes an additional submission not requested by the Authority and is subject to the requirements of section 2424.8. We reject the Union's contention that parties may substantively revise or augment submissions that are authorized by sections 2424.4 (petition), 2424.6 (agency's statement of position), and 2424.7 (union's response) without regard to section 2424.8.
The Agency objects to the Union's submission of the five documents. Because the Union could have provided the same information, arguments, and documents in either its original petition or its response, we will consider the Union's additional submissions only to the extent that they address the deficiencies in the original petition that were identified in the Authority's Order. See American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 603 (1991).
B. The Agency's Request That the Petition Be Dismissed
Turning to the Agency's request that the petition for review be dismissed, we find it unnecessary to determine whether the original petition was deficient as to service or only as to the statement of service. In either event, whatever deficiency existed was cured within the time provided to the Union by the Authority to cure the deficiencies. In this regard, the Authority's Order to Show Cause established September 4, 1992, as the deadline for curing the deficiencies that had been identified. As the Agency acknowledges, the Union's submission complying with the Order to Show Cause was filed within that deadline. Consequently, we deny the Agency's request that the petition be dismissed. See National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266, 266 (1986). We note that the Agency was not required to file its statement of position until after the deficiencies had been cured and presents no claim that it suffered any disadvantage or prejudice as a result of the delay in perfecting the petition.
C. Viability of the Dispute as to Provisions 1, 4, and 6
In its statement of position, the Agency takes the position that Provisions 1, 4, and 6 are no longer in dispute. The Agency states that subsequent to the Agency head's disapproval that gave rise to the petition in this case, the parties renegotiated Provisions 1 and 4 and that the renegotiated language complies with applicable law, rule, and regulation. The Agency also states that the parties have agreed to delete Provision 6. The Union acknowledges that "[r]enegotiated language has been executed [in] Provisions 1, 4, and 6 and no notice of disapproval has been received." Response at 6. The Union states that if the Agency's statement of position constitutes approval of the renegotiated provisions, it has no objection to the dismissal of that portion of the petition. However, the Union requests that if the Agency's position does not constitute an approval of the renegotiated language, the Authority provide a decision on the negotiability of the language that was originally negotiated.
In a submission filed on November 3, 1992, subsequent to the Union's response, the Agency states that the renegotiated provisions were not disapproved by the Agency and were not declared nonnegotiable and that, consequently, Provisions 1, 4, and 6 are no longer in dispute. Although the Union filed submissions addressing the Agency's November 3 submission, the Union's submissions contained no statements concerning the status of the dispute as to Provision 1, 4 and 6. Rather, the subject of the Union's submissions was limited to the status of the dispute concerning Provision 7, a subject also addressed in the Agency's November 3 submission.
We will consider both the Agency's November 3 submission and the Union's responsive submissions because they concern the continued viability of the parties' dispute over various provisions contained in the petition. The time limits set forth in Part 2424 of the Authority's Regulations do not apply to withdrawals. International Brotherhood of Electrical Workers, Local 1245 and U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California, 43 FLRA 1155, 1155 n.1. (1992). Also, entertaining claims that a dispute no longer exists permits us to avoid unnecessary expenditures of resources rendering decisions on proposals and provisions that are no longer the subject of collective bargaining, thereby, promoting the efficiency of our operations. See American Federation of Government Employees, Local 1864 and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 45 FLRA 691, 694 (1992). We emphasize that there is a significant difference between additional submissions that raise or address questions concerning the continued viability of a dispute and those that augment or revise arguments and information concerning the merits of the dispute. Particularly in view of the clear intent of Congress that negotiability proceedings be expedited, we generally will allow the former type of submission; however, we are more discriminating with respect to allowing the latter. See 5 U.S.C. § 7117.
Here, there is no dispute that in renegotiations the parties reached agreement on alternatives to Provisions 1, 4, and 6. The Agency has expressly stated that the renegotiated language relating to Provisions 1 and 4 complies with law, rule, and regulation and that it has not disapproved that language. Inasmuch as the parties have agreed to delete Provision 6, compliance with law, rule, and regulation is not an issue. The record supports a conclusion that Provisions 1, 4, and 6 have been supplanted by the agreements reached by the parties in renegotiation. We have no reason to doubt the Agency's assertion that the agreed-upon alternative language has not been disapproved. Thus, we find that the dispute as to Provisions 1, 4, and 6, as they appear in the Union's petition, is moot and we will not consider those provisions further.
D. Viability of the Dispute as to Provision 7
On reviewing Provision 7 under section 7114(c) of the Statute, the Agency had approved the provision, which concerns abuse of official time by Union representatives, conditioned on an interpretation that would permit the Agency to take disciplinary action when necessary. In its statement of position, the Agency contended that insofar as Provision 7 would prevent it from instituting disciplinary action against a Union representative for activities that are not specifically on behalf of the exclusive representative or that exceed the boundaries of protected activity, the provision excessively interferes with management's right to take disciplinary action. Subsequently, in its November 3 submission, the Agency stated that in view of the Union's declaration in its response that Provision 7 would not prevent the Agency from proposing discipline, it was not declaring the provision nonnegotiable. In its response to the November 3 submission, the Union acknowledged that Provision 7 would not prevent the Agency from proposing disciplinary action against a Union representative based on activity that is not protected.
In view of the Union's acknowledgment that Provision 7 does not prevent the Agency from instituting discipline against a Union representative based on activity that is not protected, we conclude that the provision meets the Agency's condition that it retain the ability to take disciplinary action for abuses of official time that do not constitute protected activity. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 560-61 (1990) (union representative's behavior was of such an outrageous and insubordinate nature that it was unprotected by section 7102 of the Statute); Griffiss Air Force Base and American Federation of Government Employees, AFL-CIO, Local Union 2612, 33 FLRA 177, 182 (1988) (arbitrator's award upheld in which the arbitrator found that a union president who left his work area to perform representational duties without his immediate supervisor's permission, as was required by the contract, was not disciplined for carrying out his representational duties, but for leaving his work area without permission). Therefore, we find that Provision 7 is no longer in dispute and will not address it further.(2)
III. Provision 2
Article XVII, Section 2a
Employees assigned to work overtime must be qualified as determined by the immediate Supervisor to perform the overtime work in an efficient and expeditious manner. For the purpose of this Article "qualified" is defined as Employees who performed for the preceding 60-calendar days satisfactorily within established performance standards in accordance with their particular skill and grade requirements. [Only the underlined portion is in dispute.](3)
A. Positions of the Parties
The Agency contends that the disputed portion of this provision is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency maintains that, under applicable precedent, that particular right encompasses the right to determine the skills and qualifications necessary to perform the work involved and extends to overtime work. The Agency contends that this provision is like Provision 1 in American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1007-8 (1988) (Army Publications Distribution Center), and is similarly nonnegotiable.
The Agency states that pursuant to 5 C.F.R. § 432.111,(4) an employee who is rated minimally acceptable or unacceptable, that is, less than fully successful, must be given a period of time in which to demonstrate acceptable performance and that during that period the employee must be allowed to perform the full range of assigned duties. The Agency argues that prohibiting the assignment of overtime work to such an employee may prevent the accurate assessment of the employee's work during the "opportunity . . . period." Statement of position at 5. The Agency also asserts that the provision would preclude the assignment of overtime duties that an employee can perform exceptionally well if the employee has failed to perform another duty or duties that are encompassed within his or her performance plan at a satisfactory level.
According to the Union, Provision 2, unlike Provision 1 in Army Publications Distribution Center, does not prescribe a particular level of performance, but only restates the definition of "qualified" that has been determined by the Agency. The Union contends that Provision 2 leaves unaffected management's right to determine the qualifications needed to perform overtime work. In response to the Agency's claim that employees rated as less than fully satisfactory must be given an opportunity to perform the full range of duties during an improvement period, the Union asserts that nothing in Government-wide regulations requires that such employees be assigned overtime.
The Union argues that if Provision 2 directly interferes with management's right to assign work, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union contends that:
although Provision 2 merely states what the employer has determined, qualifications for overtime work constitute an adverse effect on employees by denying them the opportunity to work overtime without a consistently-administered standard. Provision 2 provide[s] such a standard which reflects what the activity has determined to be the content of the standard. Accordingly, Provision 2 is an arrangement for employees who must meet the employer's performance-based criterion before they can or must work overtime. Conversely, Provision 2 provides a benefit to employees by protecting their interest in equitable access to additional pay based on consistently-applied criteria and the mission-related needs of the activity.
Response at 13-14.
B. Analysis and Conclusions
The right to assign work includes the right to determine the particular qualifications and skills needed to perform work and to make judgments as to whether particular employees meet those qualifications. See, for example, Army Publications Distribution Center, 32 FLRA at 1008. The right to assign work encompasses work that is performed on overtime. Id.
The Union does not explain precisely the meaning of the phrase "performed satisfactorily within established performance standards," which appears in Provision 2. However, in its statement of position the Agency interprets this phrase as meaning performance at the fully successful level of the employee's performance plan, and the Union does not dispute this interpretation in its response. Therefore, for purposes of this decision, we will interpret this provision as requiring that an employee's performance must be at the fully successful level for the preceding 60 calendar days in order for that employee to qualify for assignment to overtime work.
Provision 2 prescribes a particular level of performance as a qualification needed to perform overtime work. Consequently, it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See id.
Here, the Union claims that this provision merely restates the Agency's determination regarding qualifications for overtime. Provisions that are nonnegotiable because of interference with a management right do not become negotiable because they simply restate an existing agency policy or practice. See, for example, Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 161-62 (1990). Because the inclusion of such a policy or practice in the agreement would prevent an agency from changing it during the life of the agreement, proposals restating that policy interfere with the applicable management rights. See, for example, id. We note that the Agency's statement of position indicates that it does not require that an employee be performing at the fully successful level in order to be assigned overtime work, and, thus, disputes the Union's claim that the provision accurately reflects the Agency's existing policy or practice. Even assuming that the provision does reflect an existing Agency policy, it nonetheless directly interferes with management's right to assign work.
The circumstances here are distinguishable from those presented with respect to Provision 2 in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1110-11 (1991), petition for review dismissed, 953 F.2d 687 (D.C. Cir. 1992). In that case, the Authority held that Provision 2, which simply memorialized for informational purposes an agency's unilateral decision with respect to the exercise of a management right, was negotiable in circumstances where it was clear that the agency remained free at any time during the life of the contract to change that decision after it fulfilled its obligation to bargain over the impact and implementation of the change. In this case, even assuming that this provision does accurately restate an established Agency policy or practice, there is nothing in either the provision itself or the Union's statements concerning the intent of the provision that offers any assurance that the Agency remains free to change the policy or practice during the life of the agreement.
We now turn to the Union's claim that Provision 2 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority established an analytical framework for determining whether proposals that directly interfere with management's rights are nevertheless negotiable because they constitute appropriate arrangements under section 7106(b)(3) in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under the framework established, we initially determine whether the proposal constitutes an arrangement. To do this, we ascertain whether the provision in question seeks to address or compensate for the adverse effects on employees produced by the exercise of management rights. See KANG, 21 FLRA at 31. If the proposal satisfies the first step of this analysis, we then determine whether the proposed arrangement is appropriate. Under this second step, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees. See id. at 31-33.
For purposes of this decision, we will assume, without deciding, that Provision 2 constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. We conclude, however, that this proposed arrangement is not appropriate because it excessively interferes with management's right to assign work.
According to the Union, this provision benefits employees by affording them a consistently administered standard for overtime assignments and access to the additional pay that results from overtime. The Union asserts that the standard set forth in this provision, satisfactory performance for the preceding 60 calendar days, "reflects what the activity has determined to be the content of the standard." Response at 13. The Agency asserts that it needs to retain the ability to assign overtime to employees whose performance is at less than a fully successful level.
This provision would benefit employees by providing a uniform standard establishing the qualifications that employees must meet for assignment to overtime work. However, the disputed portion of the provision, when read in the context of the undisputed portion of the provision, allows for no exceptions to the standard established. That is, in order for an employee to be assigned to overtime work, he or she must be "qualified" as defined by the disputed portion of this provision. Thus, the provision would deprive the Agency of the discretion to assign overtime to any employee who did not meet the prescribed standard even though the Agency has a legitimate reason for making such an assignment and even though the employee is capable of performing the particular task or tasks involved in the overtime assignment in an efficient and effective manner.
We find that the burden that this provision places on the Agency's right to assign work outweighs the benefits to employees and that the provision excessively interferes with that management right. See, for example, Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Mecical Center, Syracuse, New York, 44 FLRA 821, 835 (1992) (proposal that would completely prohibit the assignment of certain duties to specified employees found to excessively interfere with management's right to assign work); American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 901 (1991) (proposal prohibiting bargaining unit employees from being involved in any phase of drug testing procedures and which provided for no exceptions found to excessively interfere with management's right to assign work). Consequently, we conclude that Provision 2 is nonnegotiable.
IV. Provisions 3 and 8
[Provision 3]
Article XVII, Section 12
If the Employer requires a Union Representative or Employee to be present at a time prior to or subsequent to his/her scheduled eight (8) hour day, the time shall be considered compensable at the existing overtime or compensatory time rate in accordance with applicable laws and regulations.
[Provision 8]
Article XXIX, Section 11
The Employer may pay overtime or grant compensatory time, when appropriate, to the grievant(s) and all bargaining unit members whose presence is required at the hearing after normal duty hours.
A. Positions of the Parties
The Agency states that both of these provisions were disapproved only to the extent that they would require providing overtime compensation to Union representatives. Citing the Authority's decision in Warner Robins Air Logistics Center, Warner Robins, Georgia and American Federation of Government Employees, Local 987, 23 FLRA 270 (1986) (Warner Robins), the Agency asserts that Union representatives are not entitled to overtime when representational functions are performed outside their regularly established tour of duty and when they otherwise would not be in a duty status. Relying on the Authority's decision in Warner Robins and on NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 20, 1983) (Mem.), a court decision cited therein, the Agency contends that to the extent that these two provisions require the payment of overtime or granting of compensatory time to Union representatives who otherwise would not be in a duty status, they are nonnegotiable because they are inconsistent with 5 C.F.R. § 551.424(b). Additionally, the Agency contends that the circumstances involved in these provisions are similar to those involved in the Authority's decision in U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352 (1990) (National Weather Service). In that decision the Authority found that employees are not entitled to overtime pay or compensatory time off, under either the Federal Employees Pay Act of 1945 or the Fair Labor Standards Act (FLSA), for time spent attending an arbitration hearing as union witnesses.
In its petition, the Union describes these provisions as applying where a Union representative is called to a meeting with management that occurs outside of duty hours or where such a meeting that a Union representative is attending extends beyond the time he or she is supposed to "sign-out" or continues when he or she is "off the clock." Petition at 2-3. In its response, the Union states that these two provisions are intended to provide Union representatives "with allowable compensation so as to reduce the personal hardship they would be placed under by not receiving any compensation (overtime pay, compensatory time, or straight time pay [)] when representation activities spilled over into their personal time." Response at 14.
The Union asserts that the presence of the phrase "in accordance with applicable laws and regulations" in Provision 3 means that overtime is not the only type of compensation that these two provisions encompass. The Union asserts that "if overtime pay is not available to [a] [U]nion representative in the circumstances described by each [p]rovision, then other appropriate 'compensatory rates' would be provided to the union representative." Id. at 15. Thus, according to the Union, compensatory time or straight time pay would be acceptable under the provisions.
Citing the Authority's decision in Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local No. 1138, 23 FLRA 390 (1986), the Union contends that overtime or other appropriate compensation, such as at straight-time rates, for the performance of union representational duties outside the established workday or workweek of the Union representative is negotiable. Additionally, the Union asserts that under the FLSA, overtime compensation can be provided for time spent performing representational activities outside regular working hours in circumstances when the Union representative was already in overtime status at the time the event arose requiring the performance of the representational activity. The Union argues that, "[b]ecause Provisions 3 and 8 expressly and implicitly adhere to the requirement that the overtime or other compensation rate be consistent with applicable law[s] and regulations," they are negotiable. Response at 16.
B. Analysis and Conclusions
Initially, we find that the Union's statement that these two provisions are intended to encompass compensation at straight time rates is not consistent with the language of the provision. In this regard, Provision 3 states that under the specified circumstances time spent in representational activities "shall be considered compensable at the existing overtime or compensatory time rate." Provision 8 states that the Agency may "pay overtime or grant compensatory time" in specified circumstances. In the Federal sector personnel program "overtime" and "compensatory time" refer to specific types of compensation. Insofar as Federal employees are concerned, overtime refers to premium pay at rates that differ from an employee's straight time rate. The overtime rates are specified in 5 U.S.C. § 5542, which applies to most general schedule employees; 5 U.S.C. § 5545, which applies to most prevailing rate employees; and 5 C.F.R. Part 551, Subpart E, as amended 57 Fed. Reg. 59275, 59279-80 (1992), which applies to employees who are nonexempt from the FLSA.(5) "Compensatory time" generally refers to time off from an employee's tour of duty in lieu of payment for an equal amount of overtime work. See 5 U.S.C. § 5543, which applies to general schedule employees; 5 C.F.R. § 551.531, which applies to employees who are nonexempt under the FLSA.
We find that the terms "overtime" and "compensatory time," which appear in Provisions 3 and 8, do not encompass a monetary payment at the employee's straight time rate of pay. Consequently, the Union's interpretation that these provisions encompass payments at the employee's straight time rate is inconsistent with the provisions as written. See, for example, National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991) (we do not base a negotiability determination on a statement of intent that is inconsistent with a proposal's plain wording).
Next, we turn to the Union's argument made in its response that these provisions are negotiable because, pursuant to 5 C.F.R. § 551.424, official time granted to perform representational activities when the employee is otherwise in a duty status is considered hours of work for purposes of compensation for overtime work. In its petition, the Union makes clear that the provisions apply in circumstances where the Union representative is "off the clock" or beyond the point at which he or she is to "sign-out" for the day. Petition at 2-3. In its response, the Union states that these two provisions are intended "to reduce the personal hardship [Union officials] would be placed under by not receiving any compensation . . . when representation activities spilled over into their personal time." Response at 14. Elsewhere in its response, the Union relies on 5 C.F.R. § 551.424 and argues that because these two provisions "expressly and implicitly adhere to the requirement that the overtime or other compensation rate be consistent with applicable law and regulations, they are within the obligation to bargain." Id. at 16. We agree that if these provisions were limited to requiring compensation for overtime for Union representatives only in circumstances where they are otherwise in a duty status, they would not be inconsistent with law and regulation. However, based on the Union's statements regarding the intent of the proposal in both its petition and its response, we conclude that these provisions are not so limited but, rather, seek compensation for overtime even in those circumstances where a Union representative is not otherwise in a duty status but, rather, is on "personal time."
Thus, as we interpret the disputed portions of the provisions, they seek overtime pay or compensatory time in circumstances where: (1) the Agency requires a Union representative to be present in a representational capacity when he or she otherwise would be in a nonduty status; and (2) a Union representative's presence at an arbitration hearing is required when he or she otherwise would be in a nonduty status.
Previously, the Authority has found that the performance of representational activities on nonduty time is not "hours of work" for purposes of overtime compensation under the laws and regulations governing such compensation. See, for example, National Weather Service, 36 FLRA at 358; American Federation of Government Employees, AFL-CIO, National EPA Council and Environmental Protection Agency, 21 FLRA 635, 637-38 (1986) (EPA); Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA 43, 43-44 (1985) (SSA).
As mentioned earlier, for most Federal employees, entitlement to overtime compensation is governed by 5 U.S.C. §§ 5342, 5543 (general schedule employees); 5 U.S.C. § 5544 (prevailing rate employees); and/or the FLSA, as amended, 29 U.S.C. §§ 201 et seq. (employees who are nonexempt under the FLSA). In administering these legal provisions, courts and administrative bodies have generally relied on a similar standard to determine what activities constitute "hours of work" for purposes of overtime compensation. That is, to constitute "hours of work" an activity must be pursued primarily for the benefit of the employer. See, for example, Armour & Co. v. Wantock, 323 U.S. 126, 66 S. Ct. 165 (1945) (for purposes of determining an employee's entitlement to overtime compensation under the FLSA, the pivotal question was whether the time was spent predominantly for the employer's benefit); Rapp v. U.S., 167 Ct. Cl. 852, 864-65 (1964) (because employees' time was spent predominantly for their employer's benefit, it constituted hours of work within the meaning of provisions of the Federal Employees Pay Act of 1945 that are now codified at 5 U.S.C. § 5542); NTEU v. Gregg, slip op. at 4-5 (for purposes of 5 U.S.C. § 5542 and the FLSA "work" means time spent performing an activity primarily for the benefit of the agency); 60 Comp. Gen. 431, 433 (1981) (the standards to determine whether activities are compensable as overtime work under 5 U.S.C. § 5544 are the same as those applied under 5 U.S.C. § 5542; thus, the major factor is whether the activity is predominantly for the employer's benefit). In addressing the issue of whether the performance of representational activities on nonduty time constitutes "hours of work" for purposes of overtime compensation, the Authority has adopted the approach used by the courts and the other administrative bodies. See, for example, EPA, 21 FLRA at 637-38; SSA, 19 FLRA at 43-44.
Based on the foregoing, we conclude that Provisions 3 and 8, which seek overtime compensation in circumstances that are not limited to activities that are primarily for the employer's benefit, are inconsistent with the laws and regulations governing overtime compensation and, consequently, are nonnegotiable. In reaching this conclusion we note that the Union's arguments concerning the presence of the phrase "in accordance with applicable laws and regulations," in Provision 3 indicate that this phrase relates to the type of compensation available to Union representatives who are performing representational activities when they would otherwise be "off the clock." The Union's arguments do not suggest that this phrase serves to incorporate into these two provisions the legal and regulatory preclusion of overtime pay and compensatory time under such circumstances. Compare American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 617-20 (1991) (Proposal 3 does not attempt to broaden the circumstances under which overtime compensation or compensatory time can be provided under applicable law and, consequently, is negotiable).
V. Provision 5
Article XXVII, Section 6
If counseling or an admonishment is reduced to writing, the document will be kept only in the Supervisor's Employee personnel folder and a copy will be provided to the Employee. Such documents will be destroyed after one year, or upon transfer of either the Supervisor or Employee from their current position. [Only the underlined sentence is in dispute.]
A. Positions of the Parties
The Agency contends that this provision excessively interferes with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. The Agency asserts that under the disputed portion of this provision, it would be precluded from using a document recording counseling or an admonishment as a basis for progressive discipline in circumstances where the document is more than 1 year old or either the supervisor involved or the employee has transferred from their position. The Agency argues that this provision is similar in effect to a proposal that the Authority found nonnegotiable in International Association of Machinists and Aerospace Workers, District Lodge 110, Local Lodges 1859, 2296, 2297, 2316 and U.S. Department of the Navy, United States Marine Corps Air Station and Naval Aviation Depot, Cherry Point, North Carolina, 42 FLRA 192 (1991) (Cherry Point). According to the Agency, the proposal at issue in Cherry Point permitted counting a disciplinary action as a prior offense only if the effective date of the action was not more than 3 years before a subsequent proposed adverse action. The Agency asserts that, similarly, this provision would effectively preclude using instances of counseling or admonishment in the circumstances specified in the provision to support a progressive disciplinary action.
In support of its contention that this provision excessively interferes with management's right to take disciplinary action, the Agency also cites the Authority's decisions in United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145 (1992) (Proposal 1), and American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Provision 9d).
The Union contends that the Agency has mischaracterized this provision. In this regard, the Union asserts that this provision does not prevent the Agency from considering a prior instance of counseling or admonishment in taking disciplinary action but, rather, is concerned only with maintenance and destruction of certain disciplinary records. According to the Union, "Provision 5 addresses only the procedure for maintaining and destroying certain discipline records, but does not prevent the employer from considering those records for future instances of discipline[.]" Response at 18. The Union contends that Provision 5 does not directly interfere with management's rights to discipline, assign work, or direct employees.(6)
In its petition, the Union asserts that this provision constitutes an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Reading the disputed portion of this provision in conjunction with the undisputed portion, Provision 5 requires the Agency to destroy any written copy of documentation recording counseling or an admonishment that is in its possession either after 1 year or upon transfer of either the supervisor or employee from their current position.
Proposals that restrict the prior offenses that an agency can rely on to enforce a progressive disciplinary system directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, Cherry Point, 42 FLRA at 195. Management's right to discipline employees also encompasses the right to obtain and use evidence to support disciplinary actions. See, for example, National Association of Government Employees and U.S. Department of Veterans Affairs Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 533 (1991) (VA, Brockton and West Roxbury).
Provision 5 is not merely a procedure for maintaining and destroying certain disciplinary records, as claimed by the Union. Rather, it would control the evidence that the Agency will have available to support subsequent disciplinary action. By requiring the destruction, in specified circumstances, of the only written documentation of prior counseling and admonishments in the Agency's possession, Provision 5 limits the Agency's ability to obtain and use evidence concerning prior offenses to support subsequent discipline. Consequently, we find that Provision 5 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See VA, Brockton and West Roxbury, 41 FLRA at 533 (by limiting the length of time that supervisory notes can be retained, proposal effectively limits the extent to which they can be used as evidence to support disciplinary actions and excessively interferes with management's right to discipline employees); American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 322-23 (1990) aff'd as to other matters sub nom. U.S. Department of the Air Force v. FLRA, 949 F.2d 475 (D.C. Cir. 1991) (Proposal 2e, which would require an agency to expunge from employee's personnel records the disciplinary or adverse action that led to a last chance agreement, restricts the evidence that the agency may consider to support a subsequent disciplinary action and excessively interferes with management's right to discipline employees); American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1048-50 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408/88-7470 (9th Cir. Feb. 7, 1989) (provisions restricting the type of evidence an agency can use to support a disciplinary action excessively interfere with management's right to take disciplinary action).
The Union makes a claim that this provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute without offering any arguments in support of the claim. In addressing proposals that restrict an agency's use of evidence to support disciplinary action, the Authority has generally found that the proposals before it excessively interfere with management's right to discipline employees and do not constitute appropriate arrangements that are negotiable under section 7106(b)(3). See, for example, VA, Brockton and West Roxbury, 41 FLRA at 534, and cases cited therein. Compare American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63 (1992) (Office of Thrift Supervision) (Authority found negotiable a proposal that restricted an agency from using information available to the agency at the time of a progress review meeting but not given to the employee to adversely affect a performance rating). In concluding that the proposal was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute, we found significant the facts that the agency in question had already agreed to exchange the information within the time limits specified by the proposal and that the agency could avoid any burden on its management rights, to among other things, take disciplinary action by meeting its agreed-upon obligation to share information. Moreover, we noted that the proposal constituted a remedy for the agency's failure to abide by its contractual commitment to share information with employees.
Provision 5 is unlike the proposal addressed in Office of Thrift Supervision in that the restriction imposed on the Agency's use of evidence is not predicated on the Agency's failure to abide by a contractual agreement to share the information with employees. Rather, it is more like the proposals addressed in VA, Brockton and West Roxbury, and cases cited therein. Here, the Union offers nothing to warrant a disposition different from that reached in VA, Brockton and West Roxbury, and the cases cited therein. It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12 (1990); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990). Accordingly, even assuming that Provision 5 constitutes an arrangement under section 7106(b)(3) of the Statute, we conclude that it is not an appropriate one and that it is nonnegotiable.
VI. Order
The Union's petition for review is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Union has submitted certified mail receipts to support its claim that it had served the Acting Chief of the Labor and Employee Relations Division.
2. As a general matter the Union contends that the Agency's action in "provisionally approv[ing]" certain provisions is not permitted under section 7114(c). Response at 7. We reject the Union's contention that under section 7114(c) agencies may not, in responding to a union's proposal, use conditional language that indicates agency disapproval if a provision has a particular meaning or intent or approval if it does not. In circumstances where it is clear that a provision is being disapproved if interpreted in a particular manner, we will find that a disapproval has been properly made if the union's statement of intent establishes such an interpretation. See American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 616 (1991). We encourage the parties to use such flexibility in order to resolve disputes and avoid unnecessary litigation.
3. Originally, the first sentence was disapproved only to the extent that it required the assignment of work to the immediate supervisor. In the Agency's statement of position and the Union's response the term "immediate supervisor" has been replaced by the term "employer". Thus, it appears that the parties have resolved their earlier dispute to their mutual satisfaction and, consequently, the first sentence is no longer in dispute.
4. There is currently no such provision.
5. The record does not provide information as to which of these authorities apply to the employees covered by Provisions 3 and 8. That is, we cannot tell to what extent those employees are general schedule or prevailing rate; FLSA exempt or non-exempt. In any event, there is nothing in the record to suggest that the employees fall into any of the categories excepted from coverage under these three authorities and we will assume for purposes of this decision that the employees to whom these provisions apply are covered by at least one of these three authorities.
6. We note that the Agency has claimed only that the disputed portion of this provision interferes with management's right to take disciplinary action and has made no similar claim with respect to the rights to assign work and direct employees.