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57 FLRA No. 70
Fraternal Order of Police, Lodge #1f and U.S. Dept. of Veterans Affairs Medical Center, Providence, Rhode Island, 0-NG-2465g (Decided July 2, 2001)
This case concerned the negotiability of 14 proposals. The Authority found negotiable proposals 7, 13(a) and (13)b. Proposals 1(c) and 4(1) were found negotiable at the election of the Agency. Proposals 1(a), 1(b), 2, 3, 4(2), 8, 10(a), 10(b) and 13(c) were found to be outside the duty to bargain.
The Authority found that Proposal 1(a) affected management's right to assign employees under § 7106(a)(2)(A) of the Statute. Additionally, the Authority held that Proposal 1(a) was not electively negotiable under § 7106(b)(1). The Authority noted that the phrase "numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" in § 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. This proposal would actually eliminate the Agency's right to assign employees as opposed to relating to the allocation of staff under § 7106(b)(1). Proposal 1(c) was found negotiable at the election of the Agency.
The Authority found that Proposal 2 affected management's right to assign employees under § 7106(a)(2)(a) of the statute. Proposal 3 was found to be contrary to 5 C.F.R § 610.121(a), a Government-Wide Regulation. Proposal 4(1), affected a management rights under § 7106(a).Proposal 4(1) was found to be electively negotiable under § 7106(b)(1). Proposal 4(2) was found to be outside the duty to bargain. As to Proposal 7, the Authority concluded that it was not an appropriate arrangement.
Proposal 8 was found to be excluded from the definition of conditions of employment under § 7103(a)(14)(B) of the Statute. The Authority noted that section 7103(a)(14)(B) excludes policies, practices, and matters relating to the classification of any position from the definition of conditions of employment and, by extension, the duty to bargain. The Authority further noted that a proposal that assigns a specific grade level to some specific existing position concerns a classification matter under § 7103(a)(14)(B). Here, the proposal had the effect of reclassifying the grade level of bargaining unit members' positions from GS-6 to GS-7. As such, the proposal involved a classification matter under § 7103(a)(14)(B).
Proposal 10(a) was found contrary to 5 C.F.R.§§ 550.111 and 551.501. Proposal 10(a), as worded, would require the Agency to compensate employees at an overtime rate for any in-service training they attend. Under 5 C.F.R. §§ 550.111 and 551.501, with certain exceptions, overtime payment is warranted only when an employee works in excess of 8 hours a day or 40 hours a week. Proposal 10(a) provides that an employee only needed to attend in-service training in order to be paid overtime, regardless of whether the employee, by attending that training, works in excess of 8 hours in a day or 40 hours in a week.
The Authority found that Proposal 10(b) affected management right under § 7106(a). The Authority further found that Proposal 10(b) was not an appropriate arrangement, nor electively negotiable under § 7106(b)(1).
As to Proposal 13(a), the Authority found that it was not contrary to § 7114. The Authority explained that proposals which supplement employees' rights to union representation under § 7114(a)(2)(B) of the Statute are negotiable, if they are otherwise consistent with law and regulation. The Agency's contention that the proposal was inconsistent with § 7114(a)(2)(B) because it required the presence of the exclusive representative during employee questioning was not supported. The Authority also found that this proposal did not affect management's right to discipline under § 7106(a)(2)(A). The same finding applied to Proposal 13(c). Additionally, with regard to proposal 13(c), the Authority held that it was neither a procedure under § 7106(b)(2), or an appropriate arrangement under 7106(b)(3). Lastly, the Authority found that Proposal 1(b) was outside the duty to bargain.