OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Street, S. E.
Washington, D. C. 20540-1999
__________________________
AFSCME Council 26, AFL-CIO,
Petitioner, Labor Organization
Case No. 03-LMR-02
v. Date: December 2, 2003
OFFICE OF THE ARCHITECT OF
THE CAPITOL,
Respondent, Employing Office
__________________________
Before the Board of Directors: Susan
S. Robfogel, Chair; Barbara L. Camens, Alan V. Friedman; Roberta
L. Holzwarth; Barbara Childs Wallace, Members.
DECISION AND
ORDER OF THE BOARD OF DIRECTORS ON NEGOTIABILITY ISSUE
I. Introduction
The petition for review comes before the Board
of Directors of the Office of Compliance (“the Board”)
pursuant to § 7105(a)(2)(E) of the Federal Service Labor Management
Relations Statute (“FSLMRS”), as applied by § 220©)(1)
of the Congressional Accountability Act (“CAA”), 2 U.S.C.
§ 1351(c)(1). Upon careful consideration of the entire record,
including the parties’ filings, the Board has determined,
for the reasons set forth below, that the Union’s proposal
is negotiable.
This case concerns the negotiability of the Petitioner
labor organization’s (AFSCME Council 26) proposal essentially
that the employing office (the Architect) immediately cease requiring
bargaining unit employees to sign out and in when taking meal breaks.
AFSCME Council 26 is the certified bargaining representative of
a Architect unit composed of laborers and< custodians.
II. Proposal in Dispute
1. The parties agree to implement Article 36
of the proposed collective bargaining agreement.
2. Article 36 does not require employees to sign
in or out for meal breaks.
3. The [Architect] will provide supporting documents
showing workload was inefficient and productivity was not effective.
4. The requirement for Night Senate Labor staff
to sign in upon return from meal breaks shall cease immediately.
III. Positions of the Parties
The Architect initially responded to the proposal
that the meal sign out/in requirement “is merely a reinstatement
of a long standing past practice and there is, consequently, no
adverse impact on affected employees.” In this proceeding,
the Architect has taken the following position before the Board:
1. The disputed sign-in procedure had been in
effect for thirty years, when in September 2001 the Architect decided
to “suspend” the requirement “to address employee
concerns in the spirit of labor management cooperation.” However,
in December 2002 the Architect decided to reinstate the sign in
process “for operational requirements and workload reasons.”
2. The proposal would force the Architect to
implement a portion of the tentative master agreement that had not
been ratified by AFSCME membership, pursuant to the negotiation
ground rules, or approved by the Architect, pursuant to 5 U.S.C.
§7114©)(1)&(2).
3. The proposals are totally unrelated to Article
36 (Time Clocks) because employees do not use time clocks to sign
in after meals. Further, the sign in requirement did not create
any reasonable foreseeable impact on unit employees.
4. The proposal that employees not be required
to sign in after breaks, and that the Architect forthwith cease
that requirement, violates management’s right to assign work
and direct the workforce in violation of 5 U.S.C. §7106(a)(2)(B).
During this proceeding the Architect withdrew
its position that #3 was non-negotiable, while contending that the
non-negotiability of the remaining items rendered #3 moot.
AFSCME Council 26 contends that its proposal
seeks to clarify the language of Article 36 “based upon negotiations”.
AFSCME submits that the Architect has failed to provide a legal
basis supporting its claims of non-negotiability regarding each
of the dispute proposals.
IV. Analysis and Conclusions
A fair reading of AFSCME’s proposal discloses
that it seeks negotiation on whether or not the meal break sign-out/in
procedure should be discontinued. AFSCME’s tack of channeling
that goal through reference to a Time Clock provision of a tentative
unratified and unapproved master agreement between the parties does
not detract from the proposal’s essence. Whether the< parties
negotiate the question through the inchoate Time Clock provision,
or do so from scratch, the underlying substance of the negotiation
will be the same: whether the sign-out/in requirement will stay
or go. The Board does not approach petitions for review of negotiability
issues in a formalistic manner but instead distills proposals to
identify their actual import. With that said, we must now consider
whether a proposal to discontinue a meal break sign-out/in requirement
is subject to the obligation to bargain.
Section 7103(a)(14) of Title 5, U.S.C., as applied
by Sections 220 & 225(f)(1) of the Congressional Accountability
Act [ 2 U.S.C. §§1351, 1361(f)(1)] defines “conditions
of employment” as personnel policies, practices, and matters
whether established by rule or regulation, or otherwise, affecting
working conditions. Policies or practices requiring
bargaining unit employees to record their work time, and from which
their bargaining representative wishes to exempt them, constitutes
a personnel policy and practice established by an employing office
and is a matter which affects the working condition of bargaining
unit employees and the employment relationship. See, Planners, Estimators
and Progressmen Association, Local No. 8 Union and Department of
the Navy, Charleston Naval Shipyard, 13 FLRA 455 (1983) [Charleston
Naval Shipyard]. Moreover, a proposal to cease a particular employing
office timekeeping procedure does not conflict with management’s
right to determine the “methods and means” of performing
its work under 5 U.S.C. §7106(b)(1) because the Architect has
not shown, and it is not apparent, that the objective of determining
the whereabouts of unit employees may only be achieved through the
extant sign-out/in procedure. Charleston Naval Shipyard, supra.
Management policies regarding the recording
of employee time and attendance constitutes a condition of employment
the substance of which is a negotiable matter. United States Department
of Health and Human Services, Region II, New York, New York and
National Treasury Employees Union and National Treasury Employees
Union, Chapter 218, 26 FLRA. 814 (1987); AFGE, AFL-CIO, Local 1603
and Department of the Navy, Navy Commissary Store, Patuxent River,
MD, 16 FLRA 96 (1984).
In summary, we conclude that AFSCME’s
proposal involves a negotiable condition of employment.
V. ORDER
The Architect shall, upon request, or as otherwise
agreed to by the parties, bargain on the proposal concerning the
discontinuation of the meal break sign-out/in requirement.2
Issued, at Washington, D.C., December 2, 2003
In finding the proposal to be negotiable, we
make no judgment as to its merits.
CERTIFICATE
OF SERVICE
I hereby certify that on this 3rd day of December
2003, I delivered a copy of this Decision of the Board of Directors
to the following parties by the below identified means:
First-Class Mail Postage-Prepaid
& Facsimile Mail
AFSCME Council 26
Mr. J.L. Power, Council Representative
Capital Area Council of Federal Employees
729 15th Street, N.W. 7th Floor
Washington, D.C. 200057
Office of Architect of the Capitol
Margaret P. Cox, Esquire
Ford House Building, Room H2-265A
2nd and D Streets, S.W.
Washington, D.C. 20514
Washington, D.C. 20515
___________________
Kisha L. Harley
Office of Compliance
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