OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
_________________________
AFSCME Council 26, AFL-CIO,
Petitioner,
Labor Organization
v. Case No. 04-LMR-02 Date: July 23, 2004 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 ISSUES
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©)(1). Upon careful consideration of the parties’
filings, the Board has determined, for the reasons set forth below,
that two of the contested proposals are non-negotiable and one proposal
is negotiable. Accordingly, we sustain in part and dismiss in part
the Union’s petition for review of negotiability determinations.
AFSMCE Council 26 is the exclusive bargaining
representative for a unit of employees, including gardeners and
grounds crews, at the employing office’s Botanical Gardens.
AFSCME’s disputed proposals relate to emergency situations,
such as ice and snow, when the employing office calls employees
back to work outside of their normal working hours.
II. Disputed Assignment of Work Proposals
3. The work performed in all position descriptions,
except Grounds Team, shall be amended to remove “During inclement
weather, removes snow and ice from sidewalks and steps. Applies
salt, sand and melting agents to clear area and
provide safe conditions.” Replacement language shall be, “This
employee shall not be expected to remove snow and ice from sidewalks.”
4. The position description of all except Grounds
Team shall include “Shall not be required to work outdoors
during or as a result of adverse weather emergency.”
III. Positions of the Parties
A. Employing Office
The employing office explained to the union
its intent not to utilize gardeners to perform ice and snow removal
duties. However, there may be emergencies requiring that non-Grounds
Crew personnel, such as the gardeners, be assigned to that duty.
The union’s proposal impermissibly would preclude the employing
office from making such assignments in violation of the employing
office’s statutory right to assign work under the Federal
Labor Management Relations Act.
B. Union
The union opposed the employing office’s
original proposal that broader categories of unit personnel be subject
to emergency ice and snow removal duties. Subsequently, the employing
office conducted a briefing for the union acknowledging that certain
groups of employees no longer would be required to remove ice and
snow from outside the buildings. However, when the Union submitted
a bargaining proposal formalizing that position the employing office
declared it to be non-negotiable.
IV. Analysis and Conclusions
It is plain that the letter and intent of the
union proposals are to preclude the employing office from assigning
snow and ice removal duties to any category of bargaining unit employee
other than Grounds Crew personnel.
Section 220 of the Congressional Accountability
Act applies the Management Rights provision of the Federal Labor-Management
Relations Statute, 5 U.S.C. §7106, which provides
in pertinent part:
§7106. Management Rights
(a) Subject to subsection (b) of this section,
nothing in this chapter shall affect the authority of any management
official of any agency-
* * * *
(A) to hire, assign, direct, layoff, and retain
employees in the agency, or to suspend, remove, reduce in grade
or pay, or take other disciplinary action against such employees
; [emphasis supplied].
(B) to assign work, to make
determinations with respect to contracting out, and to determine
the personnel by which agency operations shall be conducted; [emphasis
supplied].
* * * *
(b) Nothing in this section shall preclude any
agency and any labor organization from negotiating -
* * * *
(2) procedures which management officials of the agency will observe
in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely
affected by the exercise of any authority under this section by
such management officials.
A proposal to subject to collective bargaining
an employing office’s decision to add duties to employees’
position descriptions infringes upon management’s right to
assign work pursuant to 5 U.S.C. §7106(a)&(b). U.S.
Department of Veterans Affairs, Medical Center, Providence, Rhode
Island and Laborers’ International Union of North America,
Local 1056, 37 FLRA 566 (1990). See also, NAGE, SEIU, AFL-CIO
and State of Connecticut Adjutant General Office, 27 FLRA 801
(1987). This is in contrast to the negotiability of proposals for
an agency to bargain over the impact and implementation of its decision
to assign such additional duties to employees. See, American
Federation of Government Employees, AFL-CIO, Local 1999 and
Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix,
New Jersey, 2 FLRA 152 (1979)(Proposal II), enforced as to other
matters sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
The disputed union proposals would only serve
to restrict the employing office’s ability to assign work
while they do not express any purpose or intent to address the impact
and implementation of the employing office’s fait accompli
decision to make such assignments. The proposals, therefore, do
not fall under any of the aforementioned qualifications to management’s
reserved right to assign work to its employees. Accordingly, the
employing office’s non-negotiability determination is sustained.1
V. Disputed Compensation Proposals
8. Employees not working at the time of notification
shall receive fifteen (15) minutes overtime upon receipt of the
notification. Designated essential personnel shall be paid overtime
each time they are required to call in for instructions during non-working
hours in excess of forty (40) hours in one week.
10. Employees required to report to duty immediately
upon receipt of notification shall be paid overtime from the time
of notification.
VI. Positions of the Parties
A. Employing Office
The controlling statute, 5 U.S.C. §5542(b)
treats travel time to and from work, with narrow exceptions
not applicable hereto, as being non-compensable. The Federal Labor
Relations Authority has so held. Moreover, responding to employer
telephonic calls at home is compensable only if an employee is performing
work at home. Notification to report to work because of an adverse
weather emergency does not constitute the performance of work and
does not qualify for overtime pay.
B. Union
“In the event an employee is called
to report to work immediately, interrupting his/her time, the employee
should be compensated accordingly.”
VII. Analysis and Conclusions
Section 220 of the Congressional Accountability
Act applies 5 U.S.C. §7117(a)(1) of the FLMRS , which
qualifies the duty to bargain in good faith, inter alia, to
the extent not inconsistent with any Federal law. The Pay Administration
and Premium pay provisions of Title V of the U.S. Code apply to
the Office of the Capitol, the Botanical Gardens and their employees
pursuant to 5 U.S.C. §5541(1)(E-F), (2)©).
The Title V provision for hours of work (5
U.S.C. §5542(a)) does not authorize compensation for employees
traveling within the boundaries of their official duty station unless
they are performing functions required by, or conferring benefits
on, the employer, which distinguish the travel from commuting. U.S.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and American Federation of Government Employees,
Local 1923, 37 FLRA 1469 (1990); Louis Mossbaauer v. U.S.A.
541 F.2d 823 (9th Cir. 1976); Bobo v. United States,
37 Fed. Cl. 690 (Ct. Cl. 1997).
Accordingly, the Union proposal to compensate
employees for travel time to work conflicts with 5 U.S.C. §5542(a)
and, therefore, is not subject to the obligation to negotiate.
The record is silent on whether any of the affected
bargaining unit employees are covered by the compensation scheme
imposed by the Fair Labor Standards Act (FLSA). Assuming, arguendo,
that the FLSA governs any of the bargaining unit members, their
travel time to work in the situation posited by the Union’s
proposal would still be non-compensable under controlling regulations
promulgated by the United States Office of Personnel Management.
American Federation of Government Employees, Local 987 and U.S.
Department of the Air Force, Robins Air Force Base, Georgia,
37 FLRA 197 (1990).
The parties did not present clarification or
argument on the Union’s proposal that off-duty employees be
awarded 15 minutes overtime pay upon receipt of notification to
report to work and that designated essential personnel be paid each
time they are required to call in for instructions during non-working
hours in excess of forty (40) hours in one week. However, the Federal
Labor Relations Authority has determined to be negotiable a proposal
that employees be compensated for responding to telephone calls
at their homes concerning official business after a normal tour
of duty. Department of Health and Human Service, 37 FLRA;
1469, supra. Thus, we find, upon the record before us, the proposal
to be negotiable.
VIII. ORDER
The Architect shall, upon request, or as otherwise
agreed to by the parties, bargain on the proposal concerning compensating
employees for official telephonic contacts as per Union proposal
no. 8, supra.2 In respect to all other disputed proposals herein,
the petition for review is dismissed.
It is so ordered
Issued, Washington, D.C. : July 23, 2004
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of July,
2004, 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. 20005
First-Class Mail Postage-Prepaid,
& Facsimile Mail
Office of Architect of the Capitol
Margaret P. Cox, Esquire
Tanisha Cole, 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
July 23, 2004
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. 20005
Office of Architect of the Capitol
Margaret P. Cox, Esquire
Tanisha Cole, Esquire
Ford House Building, Room H2-265A
2nd and D Streets, S.W.
Washington, D.C. 20514
Re: AFSCME Council 26, AFL-CIO v. Office of the
Architect of the Capitol, Case No. 04-LMR-02
Dear Parties:
Enclosed is the Decision and Order of the Board
of Directors, entered July 23, 2004, in the above styled matter.
Sincerely,
William W. Thompson II
Executive Director
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