Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center Norfolk (Authority decision, April 24, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed that employees working when clocks advance for daylight saving time could use an hour of annual leave or work an additional hour to keep an eight-hour shift. The Navy argued that the choice would interfere with its rights to assign work and determine staffing. The Authority found that the proposal would affect at most five employees for one hour each year and would not change assigned duties or the number and types of positions on a tour of duty. It also read the proposal as allowing the agency to deny leave when its mission required it. The Authority held the proposal within the duty to bargain and ordered bargaining upon request.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(B) and (b)(1).
• Outcome: Proposal within the duty to bargain; bargaining ordered upon request.
• Key point: A small annual shift adjustment does not by itself determine staffing or interfere with assigning work.

Full text (FLRA public release)

[ v21 p497 ]

21:0497(65)NG

The decision of the Authority follows:

21 FLRA No. 65

TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL,
AFL-CIO
Union

and

DEPARTMENT OF THE NAVY,
NAVY PUBLIC WORKS CENTER,
NORFOLK, VIRGINIA
Agency

Case No. 0-NG-1176

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of the following Union proposal: /1/

Article 13, Section 6 (Shift Work)

Unit employees working on a shift at the time of conversion to daylight savings time will have the option of using one hour of annual leave or working an additional hour as a method of maintaining their regular 8 hour shift.

II. Positions of the Parties

The Agency alleges the proposal is nonnegotiable because (1) it interferes with management's right to assign work under section 7106(a)(2)(B) and (2) it interferes with management's elective right to determine the numbers, types and grades of employees assigned to a work project or tour of duty under section 7106(b)(1).

The Union argues that the proposal is not contrary to law, rule or agency regulation. The Union contends, without controversion, that the proposal would affect a maximum of five employees working on their regular shift when standard time changes to daylight savings time each year. The Union's intent is to insure that those few employees would not lose an hour of pay due to this artificially created circumstance.

III. Analysis

A. Right to Assign Work

In the present case, contrary to the Agency's contention, the proposal would not interfere with management's right to assign work by giving employees the option of working an additional hour. That right set forth in section 7106(a)(2)(B) includes the right to determine (1) what particular duties will be assigned, (2) when work assignments will occur, and (3) to whom or to what position duties will be assigned. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). Prior to the change from standard to daylight savings time the Agency had already assigned work to these employees to be done during their normal shift. There is no showing in the record to indicate that the proposal would interfere with that previous work assignment. It would not interfere with management's right to assign particular duties, management's determination of when work assignments will occur or who will be assigned certain work. Further, the Authority concludes that the proposal does not require the Agency to grant an employee annual leave where mission needs dictate otherwise. See National Treasury Employees Union and Federal Deposit Insurance Corporation, 14 FLRA 179 (1984). Therefore, contrary to the Agency's argument, the Authority finds that the proposal does not interfere with the Agency's right to assign work by granting employees the option of taking annual leave.

B. Elective Right to Determine Numbers, Types, and Grades

The Agency argues that the proposal has the effect of allowing employees to decide that twice the number of employees management has determined necessary would be assigned to a tour of duty. It alleges that this concerns the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty," which is a matter negotiable only at the election of the Agency.

The Authority has consistently held that a proposal would be negotiable only at the election of an agency under this provision of section 7106(b)(1) if (1) the language of the proposal explicitly relates to the numbers, types, and grades of employees or positions assigned to a tour of duty so as to come within the literal language of that section, or (2) the agency demonstrates that the proposal is directly or integrally related to the numbers, types, and grades of employees or positions assigned to a tour of duty so as to be determinative of numbers, types, or grades. See, for example, American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441, 444-45 (1981). The proposal here does not on its face explicitly relate to the numbers, types, and grades of employees or positions assigned to a tour of duty nor has the Agency demonstrated that a yearly one hour shift adjustment for 5 employees has a direct or integral relationship to the assignment of employees to tours of duty. Specifically, there is no indication in the record that the yearly adjustment would establish a new shift or tour of duty or effect changes in the numbers, types, and grades of employees or positions assigned to shifts.

In the Authority's view, implementation of the proposal would amount to a minor, once-a-year adjustment in the quitting time of the affected employees assigned to this tour of duty. The Authority has held in a number of cases that minor changes in starting and quitting times of previously established shifts is a matter subject to the duty to bargain. See, for example, Department of Transportation, Federal Aviation Administration, Washington, D.C., and its Chicago Airways Facilities Sector and Professional Airways Systems Specialists, AFL-CIO, 16 FLRA 479, 481 (1984) and cases cited therein. We therefore determine that the Agency has failed to demonstrate that the proposal interferes with its elective right to determine the numbers, types, and grades of employees assigned to a work project or tour of duty under the Statute.

IV. Conclusion

The Authority finds, based on the foregoing analysis, that the Union's proposal is within the duty to bargain under the Statute. /2/

V. Order

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on this proposal. /3/

Issued, Washington, D.C., April 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

(1) The petition as originally filed requested review as to 2 Union proposals. Subsequently, the Union withdrew its request as to one proposal. That proposal will not be considered further here.

(2) We note that the Comptroller General has determined that an agency may by union agreement or agency policy permit employees to work an additional hour on the day that daylight savings time begins as a method of maintaining the regular 8-hour shift and normal pay. 57 Comp. Gen. 429 (1978). Our conclusion here is consistent with that decision. However, we agree with the Agency's view that the Comptroller General decision is not dispositive of the issue decided in this case concerning the negotiability of the proposal under the Statute.

(3) In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.