International Association of Fire Fighters, Local F-61 (Union-Petitioner) and Philadelphia Naval Shipyard (Activity) (Authority decision, June 24, 1980)

Read the official release (flra.gov)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A Philadelphia Naval Shipyard firefighters union proposed terms governing training, promotions, and overtime. The Authority held that proposals limiting management’s work assignments were outside the bargaining duty. It found a provision on promotion procedures negotiable only for bargaining unit positions, and it held a proposed overtime work period negotiable. The agency’s objections were sustained in part and set aside in part.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a), 5 U.S.C. § 7117.
• Outcome: Some work assignment terms rejected; unit promotion and overtime terms partly or fully negotiable.
• Key point: The duty to bargain depended on each provision’s effect on management rights and unit employees.

Full text (FLRA public release)

[ v03 p438 ]

03:0438(66)NG

The decision of the Authority follows:

3 FLRA No. 66

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS
LOCAL F-61
(Union-Petitioner)

AND

PHILADELPHIA NAVAL SHIPYARD
(Activity)

Case No. 0-NG-6

DECISION ON NEGOTIABILITY ISSUES

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET SEQ.).

UNION PROPOSAL I

ARTICLE XX

TRAINING

SECTION 1-- THE EMPLOYER AND THE UNION AGREE THAT ANY GIVEN TRAINING SESSION OR DRILL WILL NOT EXCEED ONE (1) HOUR DURATION. IT IS FURTHER AGREED THAT ONLY ONE 1) TRAINING SESSION OR DRILL, OF ONE (1) HOUR DURATION OR LESS, WILL BE ASSIGNED TO ANY GIVEN WORKDAY. TRAINING SESSIONS OR DRILLS MUST BE CONCLUDED BY 1500 HOURS ON WEEKDAYS. NO TRAINING SESSIONS WILL BE HELD ON SATURDAYS, SUNDAYS OR HOLIDAYS.

SECTION 2-- THE EMPLOYER AND THE UNION AGREE THAT NO OUTDOOR TRAINING SESSIONS OR DRILLS WILL BE HELD ON DAYS WHEN THE OUTSIDE TEMPERATURE EXCEEDS 80 DEGREES FAHRENHEIT, OR DROPS BELOW 45 DEGREES FAHRENHEIT. IT IS FURTHER AGREED THAT HIGH HUMIDITY, HIGH WINDS AND PRECIPITATION SHALL BE CONSIDERED REASON FOR CANCELLATION OF OUTDOOR TRAINING SESSIONS OR DRILLS. THE EMPLOYER AND THE UNION FURTHER CONCUR THAT ALL ON-DUTY PERSONNEL WILL PARTICIPATE IN TRAINING SESSIONS OR DRILLS WITH THE EXCEPTION OF MEN ON OVERTIME STATUS, COMPLETING SHIP INSPECTION OR EXTINGUISHER DETAIL, WHENEVER POSSIBLE.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION 7106(A)(2)(B) OF THE STATUTE /1/ AS ALLEGED BY THE AGENCY.

CONCLUSION: THE PROVISION VIOLATES MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.

REASONS: THE WORKWEEK OF THE FIRE FIGHTERS INVOLVED IN THIS CASE CAN INCLUDE, IN ANY GIVEN WEEK, A SATURDAY, A SUNDAY OR A HOLIDAY. FURTHER, AS IS APPARENT FROM THE POSITIONS OF THE PARTIES BEFORE THE AUTHORITY, FIRE FIGHTERS ARE ASSIGNED A CERTAIN AMOUNT OF TRAINING AS A REGULAR PART OF THEIR FIRE FIGHTING DUTIES. AN AGENCY RETAINS THE RIGHT UNDER SECTION 7106(A)(2)(B) TO ASSIGN WORK. SUCH RIGHT CLEARLY ENCOMPASSES THE TRAINING INVOLVED IN THIS CASE, I.E., TRAINING ASSIGNED DURING THE DUTY HOURS OF FIRE FIGHTERS. SECTION 1 OF THE UNION'S PROPOSAL, HOWEVER, WOULD PLACE ABSOLUTE LIMITS ON THE ABILITY OF THE AGENCY TO ASSIGN SUCH TRAINING AT ALL AFTER SPECIFIED HOURS OR ON CERTAIN DAYS OF A FIRE FIGHTER'S WORKWEEK. TO THAT EXTENT THE PROPOSAL VIOLATES MANAGEMENT'S RIGHT TO ASSIGN WORK.

IN ADDITION, WHILE IT MUST BE EMPHASIZED THAT HEALTH AND SAFETY CONSIDERATIONS SUCH AS INCLEMENT WEATHER OR HIGH WINDS ARE LEGITIMATE FACTORS TO CONSIDER IN CONDUCTING OUTDOOR TRAINING, SECTION 2 OF THIS PROPOSAL CLEARLY GOES BEYOND CONSIDERATION OF SUCH FACTORS IN IMPLEMENTING A DECISION TO ASSIGN TRAINING. INSTEAD, THIS PROPOSAL WOULD ESTABLISH ARBITRARY ABSOLUTE LIMITS ON THE ASSIGNMENT OF OUTDOOR TRAINING, WHICH LIMITS ARE NOT BASED ON HEALTH AND SAFETY CONSIDERATIONS. THUS, THE UNION'S PROPOSAL, BY PLACING ABSOLUTE LIMITS ON THE AGENCY'S ABILITY TO ASSIGN TRAINING TO UNIT PERSONNEL DURING DUTY HOURS VIOLATES THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE.

UNION PROPOSAL II

ARTICLE XXIV

HOLIDAYS

THE FOLLOWING DAYS ARE RECOGNIZED AS HOLIDAYS UNDER THIS AGREEMENT:

NEW YEARS DAY
LINCOLN'S BIRTHDAY
WASHINGTON'S BIRTHDAY
MEMORIAL DAY
FOURTH OF JULY
LABOR DAY
COLUMBUS DAY
VETERANS DAY
THANKSGIVING DAY
CHRISTMAS EVE DAY
CHRISTMAS DAY

1) WORKING CONDITIONS ON THE ABOVE DAYS WILL BE MINIMAL BASED ON THE REDUCED WORKLOAD IN THE SHIPYARD ON THE ABOVE DAYS.

2) IN-STATION DUTIES SHALL ONLY CONSIST OF THOSE DETAILS WHOSE COMPLETION IS NECESSARY FOR NORMAL STATION MAINTENANCE AND SAFE LIVING CONDITIONS.

3) ANY DAY DECLARED A FEDERAL HOLIDAY BY ANY FEDERAL AGENCY, THE ABOVE PROVISIONS WILL BE OBSERVED.

4) SATURDAY AFTERNOON AND SUNDAYS SHALL APPLY TO THE ABOVE PROVISIONS.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION 7106(A)(2)(B) OF THE STATUTE /2/ SINCE IT CONCERNS THE ASSIGNMENT OF WORK AND, IN ADDITION, WHETHER THAT PORTION OF THE PROPOSAL LISTING HOLIDAYS VIOLATES 5 U.S.C. 6103. /3/

OPINION

CONCLUSION: THE PROPOSAL VIOLATES MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN WORK AND, IN ADDITION, THAT PORTION OF THE PROPOSAL LISTING HOLIDAYS VIOLATES 5 U.S.C. 6103. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.

REASONS: BY ITS EXPRESS PROVISIONS, THE PROPOSAL SEEKS TO LIMIT THE PARTICULAR DUTIES WHICH MAY BE ASSIGNED TO UNIT EMPLOYEES ON SATURDAY AFTERNOONS, SUNDAYS AND HOLIDAYS. NOTWITHSTANDING THE FACT THAT THE BASIC WORKWEEK OF FIRE FIGHTERS INCLUDES SATURDAYS, SUNDAYS AND HOLIDAYS, THERE IS NOTHING IN THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE OR ITS LEGISLATIVE HISTORY WHICH INDICATES THAT THE RIGHT TO ASSIGN WORK IS LIMITED TO NORMAL DUTY DAYS. THUS, THE UNION'S PROPOSAL BY PROSCRIBING THE DUTIES FIRE FIGHTERS MAY BE ASSIGNED ON CERTAIN DAYS VIOLATES MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) TO ASSIGN WORK. IN ADDITION, BY INCLUDING IN A LIST OF HOLIDAYS DAYS WHICH ARE NOT RECOGNIZED AS HOLIDAYS IN FEDERAL LAW, THE PROPOSAL, TO THAT EXTENT, ALSO VIOLATES 5 U.S.C. 6103.

PROPOSAL NO. III

ARTICLE XV

SECTION 5-- MERIT PROMOTION EVALUATION PROCEDURES WILL BE SO CONDUCTED AS TO DETERMINE THE MOST HIGHLY QUALIFIED CANDIDATES FROM A LIST OF ELIGIBLES. ALL EVALUATION METHODS WILL BE ADMINISTERED SO AS TO DETERMINE SKILL LEVELS ON A CUMULATIVE BASIS UP TO THE VACANCY ANNOUNCEMENT DATE. EVALUATION DATA MUST BE DETERMINED BY SUPERVISORS EVALUATION, PERFORMANCE EVALUATION, ORAL INTERVIEW, AND ACADEMIC ACHIEVEMENT. EACH OF THE METHODS OUTLINED IN SUB-PARAGRAPHS 5A, 5B, 5C, WILL COUNT 30; TOWARD THE FINAL SCORE. ACADEMIC ACHIEVEMENT OUTLINED IN SUB-PARAGRAPH 1D, WILL COUNT THE ADDITIONAL 10% NEEDED TO TOTAL 100%.

A. SUPERVISOR'S EVALUATION

1. SUPERVISORY EVALUATION WILL BE LIMITED TO TWO SUPERVISORS.

A. NO EVALUATION WILL COVER ANY PERIOD OF PERFORMANCE IN EXCESS OF 2 1/2 YEARS PAST.

2. THE EVALUATOR MUST HAVE BEEN EMPLOYEE'S SUPERVISOR FOR A PERIOD
   OF THREE MONTHS EXCEPT IN CASES WHERE EMPLOYEE'S PRIOR SUPERVISOR IS UNABLE TO TENDER AN EVALUATION DUE TO SICKNESS OR DEATH.

3. NO EVALUATION IS TO BE SUBMITTED BY ANY SUPERVISOR BELOW RANK OF
   GS-6 (EXCEPT IN CASES OF TEMPORARY PROMOTIONS TO GS-6, AND THEN ONLY DURING THE TIME THE PROMOTION IS IN EFFECT, AND THE SUPERVISOR IS HIMSELF NOT COMPETING FOR THE SAME POSITION.)

4. EVALUATIONS WILL BE DISCUSSED WITH APPLICANT BY RATER PRIOR TO
   SUBMISSION OF EVALUATION FORM TO THE CIVILIAN PERSONNEL OFFICER IF REQUESTED BY THE APPLICANT. (ANY EVALUATION BASED ON POTENTIAL WILL NOT BE DISCUSSED WITH APPLICANT.)

5. SUPERVISORS EVALUATIONS WILL CARRY THE FOLLOWING RELATIVE WEIGHT:

A. CURRENT SUPERVISOR = 100%

B. ANY OTHER SUPERVISOR = 80%

C. SUPERVISORS EVALUATIONS WILL BE COMPUTED AS FOLLOWS:

1. SUBTRACT LOW SCORE FROM HIGH SCORE.

2. TAKE 80% OF THE DIFFERENCE.

3. DIVIDE THE DIFFERENCE BY 2.

4. ADD THE RESULT TO THE CURRENT SUPERVISOR'S SCORE IF IT IS LOWER
   THAN THE "OTHER" SUPERVISOR'S SCORE, OR SUBTRACT THE RESULT FROM THE CURRENT SUPERVISOR'S SCORE IF IT IS HIGHER THAN THE "OTHER" SUPERVISOR'S SCORE. AN EXAMPLE FOLLOWS:

CURRENT SUPERVISOR'S RATE = 92.0
OTHER SUPERVISOR = 76.0
DIFFERENCE IN SCORES = 16.0
80% OF 16 = 12.8
1/2 OF 12.8 = 6.4
92.0-- 6.4 FINAL EVALUATION SCORE OF 85.6

6. NO EMPLOYEE WILL BE RATED BY A FORMER SUPERVISOR WHO HAS LEFT THE
   EMPLOY OF THE FIRE DEPARTMENT OF PHILADELPHIA NAVAL SHIPYARD.

7. EVERY EFFORT WILL BE MADE TO SECURE TWO EVALUATIONS. IN CASES
   WHERE THIS IS NOT POSSIBLE, DUE TO AN EMPLOYEE ONLY HAVING ONE SUPERVISOR, DEATH TO A SUPERVISOR, OR UNDER THE CONDITIONS OUTLINED IN NO. 6 ABOVE, A SECOND EVALUATION WILL BE OBTAINED FROM THE EMPLOYEE'S PLATOON ASSISTANT CHIEF. THE ASSISTANT CHIEF MAY NOT THEN BE DESIGNATED AS THE SELECTING OFFICIAL IF THE EMPLOYEE RATED BY HIM IS IN THE AREA OF CONSIDERATION.

B. PERFORMANCE EVALUATION

1. THE TYPE OF EVALUATION WILL BE DETERMINED BY FIRE DEPARTMENT
   CHIEF OFFICERS. THE UNION PRESIDENT WILL BE CONSULTED REGARDING THE TYPE OF EVALUATION. (IF UNION PRESIDENT IS TO BE EVALUATED, THE CONSULTATION WILL BE WITH THE NEXT IN LINE UNION OFFICER NOT TO BE EVALUATED.)

2. THE EVALUATION WILL BE OBSERVED BY A NON-PARTICIPATING UNION
   REPRESENTATIVE UNLESS AN INDIVIDUAL OBJECTS, OBJECTIONS TO BE SUBMITTED IN WRITING.

3. GRADES WILL BE DETERMINED BY PANEL OF AT LEAST TWO FIRE
   DEPARTMENT DESIGNATED GS-5'S AND/OR GS-6'S WHO WILL USE A NUMERICAL SCORING SYSTEM AND AWARD EACH APPLICANT AN AVERAGE OF HIS TOTAL POINTS. IN THE EVENT THE APPLICANT'S DRIVING ABILITY IS TO BE EVALUATED, THE SERVICES OF A THIRD PARTY SUCH AS THE MOTOR VEHICLE OPERATOR LICENSING EXAMINER OR A MOTOR VEHICLE OPERATOR FOREMAN, WILL BE ACQUIRED FOR THAT PURPOSE. (EXAMPLE: #1 EVALUATOR SCORES 90, #2 - 85 SCORE,

3-84 SCORE = 86.3)

C. ORAL INTERVIEW

1. INTERVIEW WILL BE CONDUCTED BY AT LEAST THREE BUT NOT MORE THAN
   FIVE FIRE DEPARTMENT CHIEF OFFICERS.

2. ALL INTERVIEWERS WILL ASK SAME AMOUNT OF JOB RELATED QUESTIONS.
   THE APPLICANT'S SCORE WILL THEN BE TOTALED AND AVERAGED TO DETERMINE EACH APPLICANT'S ORAL NTERVIEW RATING.

3. APPROPRIATE MEASURES WILL BE TAKEN TO INSURE THAT THERE WILL BE
   NO RELATED VERBAL EXCHANGES BETWEEN THOSE APPLICANTS ALREADY INTERVIEWED AND THOSE NOT YET INTERVIEWED.

4. INTERVIEW WILL BE OBSERVED BY A NON-PARTICIPATING UNION
   REPRESENTATIVE UNLESS AN INDIVIDUAL OBJECTS; SUCH OBJECTION TO BE SUBMITTED IN WRITING.

D. CREDIT FOR ACADEMIC ACHIEVEMENT WILL BE GIVEN AS FOLLOWS:

1. 60 UNITS OF COLLEGE CREDIT WILL COUNT 100% OF THE 10; DESIGNATED
   FOR ACADEMIC ACHIEVEMENT.

2. FIRE SCIENCE AND JOB RELATED COURSES COUNT FULL VALUE.

3. OTHER COURSES INCLUDED IN THE FIRE SCIENCE A.A. DEGREE CURRICULUM
   (WITH THE EXCEPTION OF PHYSICAL EDUCATION, AND CREDITS GIVEN WITHOUT CLASSROOM ATTENDANCE) WILL RECEIVE ONE-HALF VALUE.

4. CREDITS EARNED BY COURSE CHALLENGES WILL GET THEIR PROPER VALUE
   AS LONG AS THEY MEET THE REQUIREMENTS OF 2 AND 3 ABOVE.

SECTION 6-- IT SHALL BE THE RESPONSIBILITY OF MANAGEMENT, WITH COOPERATION OF THE UNION, TO MAKE EVERY EFFORT TO INSURE THAT ALL FIRE DEPARTMENT PERSONNEL BE GIVEN A COMPLETE BRIEFING ON ALL RESPECTS OF THIS EVALUATION PROCEDURE.

SECTION 7-- PROMOTION REGISTERS TO GS-5 AND GS-6 WILL STAND FOR NO LONGER THAN NINE (9) MONTHS.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE, /4/ BECAUSE IT CONCERNS MATTERS THAT ARE NOT CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.

OPINION

CONCLUSION: TO THE EXTENT THAT THE PROPOSAL CONCERNS PROMOTION PROCEDURES FOR BARGAINING UNIT POSITIONS IT IS WITHIN THE OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE. HOWEVER, TO THE EXTENT THAT THE PROPOSAL WOULD APPLY PROMOTION PROCEDURES TO NONBARGAINING UNIT SUPERVISORY POSITIONS IT IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, SINCE THE AGENCY HAS ELECTED NOT TO NEGOTIATE PROMOTION PROCEDURES FOR NONBARGAINING UNIT SUPERVISORY POSITIONS, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT EXTENDS TO SUCH NONBARGAINING UNIT SUPERVISORY POSITIONS IS TO THAT EXTENT SUSTAINED.

REASONS: THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. /5/ IN THIS REGARD, SUPERVISORS ARE SPECIFICALLY EXCLUDED FROM INCLUSION IN COLLECTIVE BARGAINING UNITS. /6/ AS RELEVANT IN THE CIRCUMSTANCES OF THIS CASE, THE AGENCY CLAIMS AND THE UNION TACITLY ADMITS, THAT THE GS-6 POSITIONS IDENTIFIED IN THE PROPOSED PROMOTION PROCEDURES ARE CLASSIFIED AS SUPERVISORY AND, THUS, ARE OUTSIDE OF THE BARGAINING UNIT. /7/

WHILE AN AGENCY IS NOT PROHIBITED FROM BARGAINING ON AND, THEREFORE, MAY, AT ITS ELECTION, BARGAIN ON THE PROMOTION PROCEDURES FOR SUCH NONBARGAINING UNIT SUPERVISORY POSITIONS, IT IS NOT OBLIGATED TO DO SO. CONSEQUENTLY, SINCE THE AGENCY IN THIS CASE HAS ELECTED NOT TO BARGAIN ON THE PROMOTION PROCEDURES FOR SUPERVISORY PERSONNEL, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN, IS TO THAT EXTENT, SUSTAINED.

UNION PROPOSAL IV

ARTICLE X

OVERTIME

SECTION 4-- THE EMPLOYER AGREES THAT FOR THE PURPOSE OF APPLYING SECTION 7(K) OF THE FAIR LABOR STANDARDS ACT, /8/ THE WORK PERIOD SHALL CONSIST OF A 7 DAY PERIOD.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN EITHER BECAUSE IT CONCERNS A MATTER SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE AND IS, THUS, EXCLUDED FROM THE DEFINITION OF CONDITIONS OF EMPLOYMENT UNDER SECTION 7103(A)(14) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, /9/ OR BECAUSE IT VIOLATES MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE /10/ TO DETERMINE THE AGENCY'S BUDGET, ORGANIZATION AND NUMBER OF EMPLOYEES.

CONCLUSION: THE UNION'S PROPOSAL DOES NOT CONCERN A MATTER WHICH IS SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE AND, FURTHER, DOES NOT VIOLATE SECTION 7106(A)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE. /11/

OPINION

REASONS: AS PREVIOUSLY INDICATED, (NOTE 8, SUPRA) SECTION 7(K) OF THE FSLA PROVIDES, AS RELEVANT IN THIS CASE, THAT FIRE FIGHTERS WILL RECEIVE OVERTIME UNDER THE FLSA FOR ALL HOURS WORKED IN EXCESS OF 216 HOURS IN A 28 DAY PERIOD OR PROPORTIONALLY FEWER HOURS FOR A PROPORTIONALLY SHORTER WORK PERIOD, E.G., 108 HOURS FOR A 14 DAY WORK PERIOD (AS IS CURRENTLY UTILIZED BY THE AGENCY) OR 54 HOURS FOR A SEVEN DAY WORK PERIOD (AS PROPOSED BY THE UNION). /12/

THIS UTILIZATION OF A SEVEN DAY WORK PERIOD RESULTS IN SOME CIRCUMSTANCES IN A DIFFERENT OVERTIME ENTITLEMENT THAN IF A FOURTEEN DAY WORK PERIOD IS SELECTED. FOR EXAMPLE, THE FIRE FIGHTERS IN THIS CASE ARE SCHEDULED TO WORK THREE 24 HOUR DAYS EACH WEEK FOR A TOTAL OF 144 HOURS FOR THE TWO WEEK PERIOD. THUS, UNDER THE AGENCY'S PRACTICE THESE FIRE FIGHTERS WILL BE ENTITLED TO 36 HOURS (144 MINUS 108) OF OVERTIME.

UNDER THE UNION'S PROPOSAL ON THE OTHER HAND, WHICH CONTEMPLATES A SEVEN DAY PERIOD FOR THE CALCULATION OF OVERTIME, FIRE FIGHTERS WOULD BE ENTITLED TO OVERTIME COMPENSATION FOR ALL HOURS WORKED IN EXCESS OF 54 A WEEK. ASSUMING, THE FIRE FIGHTERS WORK THE SAME 72 HOURS (THREE 24 HOUR DAYS) EACH WEEK THEY WOULD BE ENTITLED TO 18 HOURS OF OVERTIME EACH WEEK (72 MINUS 54) OR 36 HOURS FOR TWO WEEKS. IN THIS SITUATION THEN, THE UNION'S PROPOSAL WILL RESULT IN THE SAME OVERTIME ENTITLEMENT AS UNDER THE CURRENT AGENCY PROCEDURE.

IN TWO OTHER SITUATIONS HOWEVER, THE UNION'S PROPOSAL WOULD RESULT IN MORE OVERTIME BEING PAYABLE THAN UNDER THE AGENCY'S CURRENT PRACTICE. THE FIRST OF THOSE TWO SITUATIONS WOULD OCCUR WHEN A FIRE FIGHTER IS ON LEAVE FOR ONE DAY DURING THE TWO WEEK PERIOD. UNDER THE FLSA, TIME NOT WORKED IS SUBTRACTED FROM THE SCHEDULED TIME TO DETERMINE THE FIRE FIGHTERS POTENTIAL OVERTIME ENTITLEMENT AS FOLLOWS:

1. UNDER THE AGENCY'S CURRENT PROCEDURE (OVERTIME FOR HOURS WORKED
   IN EXCESS OF 108 IN A 14 DAY PERIOD) (TABLE OMITTED)

2. UNDER THE UNION'S PROPOSAL (OVERTIME FOR HOURS WORKED IN EXCESS
   OF 54 IN A SEVEN DAY PERIOD) (TABLE OMITTED)

THUS, UNDER THE UNION'S PROPOSAL THE FIRE FIGHTER WOULD BE ENTITLED TO SIX MORE HOURS OVERTIME THAN UNDER THE AGENCY'S CURRENT PRACTICE (18 HOURS INSTEAD OF 12 HOURS).

IN THE SECOND SITUATION, WHERE A FIRE FIGHTER IS OFF ONE DAY THE FIRST WEEK AND THEN WORKS AN ADDITIONAL SHIFT THE SECOND WEEK, THE FIRE FIGHTER WOULD BE ENTITLED TO MORE OVERTIME UNDER THE UNION'S PROPOSAL THAN UNDER THE AGENCY'S CURRENT PRACTICE AS FOLLOWS:

1. UNDER THE AGENCY'S CURRENT PRACTICE (TABLE OMITTED)

2. UNDER THE UNION'S PROPOSAL (TABLE OMITTED)

Thus, under the union's proposl the fire fighter would be entitled to six more hours overtime under the agency's current practice (18 hours instead of 12 hours).

In the second situration, where a fire fighter is off one day the first week and then works an additional shift the second week, the fire figher would be entitled to more overtime under the union's current proposal then under the agency's current practice as follows:

1. Under the agency's current practice ( TABLE OMMITTED )

2. Under the union's proposal ( TABLE OMMITTED )

THUS, IN THIS SITUATION THE FIRE FIGHTER WOULD BE ENTITLED TO 42 HOURS OF OVERTIME INSTEAD OF 36 HOURS UNDER THE AGENCY'S CURRENT PRACTICE.

THE AGENCY FIRST CLAIMS THAT UNDER SECTION 7(K) OF THE FLSA THE AGENCY HEAD HAS SOLE DISCRETION TO DETERMINE THE LENGTH OF THE WORK PERIOD REFERRED TO IN SECTION 7(K). THUS, THE AGENCY ARGUES, SINCE THE DETERMINATION OF WORK PERIODS IS SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE, SUCH DETERMINATION IS EXCLUDED FROM THE OBLIGATION TO BARGAIN BY SECTION 7103(A)(14) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. IN SUPPORT THE AGENCY PRINCIPALLY RELIES ON THE LEGISLATIVE HISTORY OF SECTION 7(K) OF THE FLSA, TWO UNSUCCESSFUL LEGISLATIVE ATTEMPTS TO ACHIEVE A REDUCTION IN THE WORK WEEK AND A FEDERAL COURT DECISION SUSTAINING THE USE OF THE 14 DAY WORK PERIOD IN CALCULATING FLSA OVERTIME.

THE AGENCY'S CLAIM CANNOT BE SUSTAINED. IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF SECTION 7103(A)(14) OF THE STATUTE THAT ONLY THOSE MATTERS SPECIFICALLY PROVIDED FOR BY OTHER FEDERAL STATUTES ARE EXCEPTED FROM THE OBLIGATION TO NEGOTIATE. /13/ IN THIS REGARD, THE AGENCY HAS FAILED TO DEMONSTRATE THAT THE DETERMINATION OF THE LENGTH OF THE WORK PERIOD USED TO CALCULATE FLSA OVERTIME CANNOT UNDER SECTION 7(K) OF THE FLSA BE ARRIVED AT THROUGH NEGOTIATIONS AS LONG AS THE CONSTRAINTS SPECIFIED IN SECTION 7(K) ARE MET, I.E., THAT THE LENGTH OF THE WORK PERIOD BE AT LEAST SEVEN AND NOR MORE THAN 28 DAYS. IN ADDITION, THERE IS NO INDICATION IN THE IMPLEMENTING REGULATIONS CONTAINED IN THE FEDERAL PERSONNEL MANUAL /14/ THAT THE DISCRETION DELEGATED TO AGENCY HEADS TO DETERMINE THE LENGTH OF THE WORK PERIOD ALSO COULD NOT BE EXERCISED THROUGH NEGOTIATIONS.

AS TO THE AGENCY'S RELIANCE ON TWO UNSUCCESSFUL LEGISLATIVE ATTEMPTS TO CHANGE THE WORK WEEK OF FIRE FIGHTERS AS SUPPORT FOR THE CLAIM THAT THE SECTION 7(K) DETERMINATION IS WITHIN THE AGENCY'S SOLE DISCRETION, SUCH RELIANCE IS MISPLACED. BOTH H.R. 4634 INTRODUCED IN THE 94TH CONGRESS AND H.R. 3161 INTRODUCED IN THE 95TH CONGRESS WOULD HAVE CAUSED A REDUCTION IN THE ACTUAL HOURS FIRE FIGHTERS WORK FROM 72 TO AN AVERAGE OF 54 (H.R. 4634) OR AN AVERAGE OF 54 (H.R. 3161 WITH NO REDUCTION IN TITLE 5 OVERTIME (NOTE 12, SUPRA). THE UNION'S PROPOSAL HERE INVOLVED HOWEVER, CONCERNS ONLY THE CALCULATION OF FLSA OVERTIME AND WOULD NOT REQUIRE ANY REDUCTION IN THE 72 HOUR WORKWEEK OF FIRE FIGHTERS.

FINALLY, THE AGENCY'S RELIANCE ON A FEDERAL COURT DECISION SUSTAINING THE USE OF A 14 DAY WORK PERIOD IS ALSO MISPLACED. IN THAT CASE, /15/ THE COURT REJECTED A UNION CONTENTION THAT AN AGENCY WAS MANDATED BY TITLE 5 TO UTILIZE A SEVEN DAY WORK PERIOD. THE COURT INDICATED THAT THE FLSA-SANCTIONED WORK PERIODS WHICH RANGED FROM SEVEN TO 28 DAYS AND THAT "CONGRESS INTENDED TO VEST DISCRETION WITH THE . . . CIVIL SERVICE COMMISSION IN ESTABLISHING THE APPLICABLE WORK PERIODS. . . . " AS NOTED ABOVE, SUCH DISCRETION WAS IN TURN DELEGATED TO AGENCY HEADS.

THEREFORE, SINCE NOTHING IN SECTION 7(K) OF THE FLSA SPECIFICALLY PROVIDES FOR THE LENGTH OF THE WORK PERIOD USED TO CALCULATE FLSA OVERTIME OR PRECLUDES THE NEGOTIATION OF SUCH PERIOD, THE MATTER IS NOT EXCLUDED FROM THE DUTY TO BARGAIN BY SECTION 7103(A)(14) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.

TURNING NOW TO THE AGENCY'S ALLEGATIONS THAT THE UNION'S PROPOSAL WOULD VIOLATE MANAGEMENT'S 7106(A)(1) RIGHTS TO DETERMINE THE BUDGET, ORGANIZATION AND NUMBERS OF EMPLOYEES, SUCH ALLEGATIONS WILL BE DEALT WITH IN TURN.

THERE IS NO QUESTION BUT THAT CONGRESS INTENDED THAT ANY PROPOSAL WHICH WOULD DIRECTLY INFRINGE ON THE EXERCISE OF MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE WOULD BE BARRED FROM NEGOTIATIONS. /16/ THE RIGHT TO DETERMINE THE "BUDGET" WAS INTERPRETED AND APPLIED IN THE AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO CASE.
/17/ THAT DECISION STATED IN PERTINENT PART:

. . . THE AGENCY'S AUTHORITY TO DETERMINE ITS BUDGET EXTENDS TO THE DETERMINATION OF THE PROGRAMS AND OPERATIONS WHICH WILL BE INCLUDED IN THE ESTIMATE OF PROPOSED EXPENDITURES AND THE DETERMINATION OF THE AMOUNTS REQUIRED TO FUND THEM. UNDER THE STATUTE, THEREFORE, AN AGENCY CANNOT BE REQUIRED TO NEGOTIATE THOSE PARTICULAR BUDGETARY DETERMINATIONS. THAT IS, A UNION PROPOSAL ATTEMPTING TO PRESCRIBE THE PARTICULAR PROGRAMS OR OPERATIONS THE AGENCY WOULD INCLUDE IN ITS BUDGET OR TO PRESCRIBE THE AMOUNT TO BE ALLOCATED IN THE BUDGET FOR THEM WOULD INFRINGE UPON THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1) OF THE STATUTE.

[HOWEVER], WHERE A PROPOSAL DOES NOT BY ITS TERMS PRESCRIBE THE PARTICULAR PROGRAMS OR AMOUNTS TO BE INCLUDED IN AN AGENCY'S BUDGET, NEVERTHELESS IS ALLEGED TO VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET BECAUSE OF INCREASED COST, CONSIDERATION MUST BE GIVEN TO ALL THE FACTORS INVOLVED. THAT IS, RATHER THAN BASING A DETERMINATION AS TO THE NEGOTIABILITY OF THE PROPOSAL ON INCREASED COST ALONE, THAT ONE FACTOR MUST BE WEIGHED AGAINST SUCH FACTORS AS THE POTENTIAL FOR IMPROVED EMPLOYEE PERFORMANCE, INCREASED PRODUCTIVITY, REDUCED TURNOVER, FEWER GRIEVANCES, AND THE LIKE. ONLY WHERE AN AGENCY MAKES A SUBSTANTIAL DEMONSTRATION THAT AN INCREASE IN COSTS IS SIGNIFICANT AND UNAVOIDABLE AND IS NOT OFFSET BY COMPENSATING BENEFITS CAN AN OTHERWISE NEGOTIABLE PROPOSAL BE FOUND TO VIOLATE THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER SECTION 7106(A) OF THE STATUTE.

THE PROPOSAL HERE IN DISPUTE DOES NOT BY ITS EXPRESS TERMS PRESCRIBE THE PARTICULAR AMOUNT TO BE INCLUDED IN THE AGENCY'S BUDGET. THE AGENCY ARGUES THAT ADOPTION OF THE PROPOSAL WOULD RESULT IN AN INCREASED COST IN EXCESS OF $3.1 MILLION PER YEAR "WITH NO COUNTERVAILING BENEFITS TO THE GOVERNMENT." THIS CLAIMED INCREASE IN COST IS NOT BASED SOLELY ON ADOPTION OF THE PROPOSAL IN THE BARGAINING UNIT HERE INVOLVED WHICH CONTAINS LESS THAN 50 FIRE FIGHTERS. /18/ RATHER, IT IS THE PRODUCT OF COMPUTATIONS INVOLVING ALL THE MORE THAN 10,000 FIRE FIGHTERS IN THE DEPARTMENT OF DEFENSE AND ASSUMES THAT THE ALL ARRANGE FOR WORK AND LEAVE SCHEDULES WHICH WOULD ENTITLE THEM TO THE MAXIMUM AMOUNT OF OVERTIME TO WHICH ONE COULD BE ENTITLED UNDER THE DISPUTED PROPOSAL. MOREOVER, THE AGENCY HAS MADE NO SUBSTANTIAL DEMONSTRATION THAT THE INCREASED COSTS, WHICH IT HYPOTHESIZES, ARE UNAVOIDABLE AND WILL NOT BE OFFSET BY INCREASED EMPLOYEE PERFORMANCE, REDUCED TURNOVER, FEWER GRIEVANCES AND THE LIKE. CONSEQUENTLY, PROPOSAL IV DOES NOT VIOLATE THE RIGHT OF THE AGENCY TO DETERMINE ITS BUDGET UNDER SECTION 7106(A)(1) OF THE STATUTE.

AS TO THE AGENCY'S ARGUMENTS THAT THE UNION'S PROPOSAL WOULD REQUIRE THE AGENCY TO ALTER ITS ORGANIZATION AND NUMBER OF EMPLOYEES ASSIGNED, SUCH ARGUMENTS CANNOT BE SUSTAINED. THERE IS NOTHING IN THE PROPOSAL WHICH WOULD REQUIRE OR RESULT IN A CHANGE OF EITHER THE NUMBER OF FIRE FIGHTERS ASSIGNED OR A CHANGE IN THE 72 HOUR PER WEEK WORK SCHEDULE. THE UNION'S PROPOSAL ONLY WOULD ESTABLISH A DIFFERENT WORK PERIOD FOR THE CALCULATION OF FLSA OVERTIME, AND IN THIS REGARD, THE AGENCY HAS NO LAW OR REGULATION INDICATING THAT THIS WORK PERIOD MUST COINCIDE WITH AN ALREADY ESTABLISHED PAY PERIOD OR AN ALREADY ESTABLISHED WORK SCHEDULE. THEREFORE, SINCE THE UNION'S PROPOSAL IS NOT DIRECTLY RELATED TO THE "ORGANIZATION" OF THE AGENCY OR TO "THE NUMBER OF EMPLOYEES ASSIGNED," IT IS NOT EXCLUDED FROM THE DUTY TO BARGAIN BY SECTION 7106(A)(1) OF THE STATUTE.

IN SUMMARY, THE AGENCY HAS DISCRETION UNDER SECTION 7(K) OF THE FLSA AND IMPLEMENTING REGULATIONS TO ESTABLISH THE WORK PERIOD TO BE USED TO CALCULATE OVERTIME AS AT LEAST SEVEN AND NOT MORE THAN 28 DAYS. THERE IS NO INDICATION THAT SUCH DISCRETION WAS INTENDED TO BE SOLE AND EXCLUSIVE AND COULD NOT BE EXERCISED THROUGH NEGOTIATION WITH THE UNION. FURTHERMORE, NEGOTIATION OF THE WORK PERIOD WITHIN THE STATUTORY LIMITS DOES NOT VIOLATE THE RIGHTS RESERVED TO MANAGEMENT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.

ACCORDINGLY, SINCE UNION PROPOSAL IV CONCERNS A MATTER WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, THE AGENCY'S ALLEGATION TO THE CONTRARY IS SET ASIDE.

ISSUED, WASHINGTON, D.C., JUNE 24, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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/1/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 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--

. . . .

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

. . . .

(B) TO ASSIGN WORK . . .

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/2/ SECTION 7106(A)(2)(B) WHICH IS SET OUT IN FULL IN NOTE 2 SUPRA, PROVIDES AS HERE RELEVANT THAT "NOTHING . . . SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL . . . TO ASSIGN WORK."

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/3/ 5 U.S.C. 6103 PROVIDES, AS HERE RELEVANT, AS FOLLOWS:

SEC. 6103. HOLIDAYS

(A) THE FOLLOWING ARE LEGAL PUBLIC HOLIDAYS:

NEW YEAR'S DAY, JANUARY 1.

WASHINGTON'S BIRTHDAY, THE THIRD MONDAY IN FEBRUARY

MEMORIAL DAY, THE LAST MONDAY IN MAY.

INDEPENDENCE DAY, JULY 4.

LABOR DAY, THE FIRST MONDAY IN SEPTEMBER.

COLUMBUS DAY, THE SECOND MONDAY IN OCTOBER.

VETERANS DAY, NOVEMBER 11.

THANKSGIVING DAY, THE FOURTH THURSDAY IN NOVEMBER.

CHRISTMAS DAY, DECEMBER 25 . . .

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/4/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:

SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO CONSULT

(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO BARGAIN IN GOOD FAITH

SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR

REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE RULE

OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATIONS.

THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE STATUTE:

SEC. 7103. DEFINITIONS; APPLICATION

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(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE

REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE

UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH

EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH

EMPLOYEES . . .

. . . .

(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES, AND MATTERS, WHETHER

ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING CONDITIONS . . .

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/5/ ID.

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/6/ SECTION 7112(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION REPRESENTATION

. . . .

(B) . . . NOR SHALL A UNIT BE DETERMINED TO BE APPROPRIATE IF IT INCLUDES--

(1) . . . ANY . . . SUPERVISOR . . .

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/7/ NO DETERMINATION IS MADE IN THIS CASE AS TO WHETHER GS-6 "FIRE CAPTAIN" POSITIONS WOULD BE CONSIDERED SUPERVISORY UNDER SECTION 7103(A)(10) OF THE STATUTE. SUCH A DETERMINATION WOULD PROPERLY BE THE SUBJECT OF A PETITION FOR CLARIFICATION OF AN EXISTING UNITS FILED UNDER PART 2422 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3498.

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/8/ SECTION 7K OF THE FAIR LABOR STANDARDS ACT (FLSA) (29 U.S.C. 207(K) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(K) NO PUBLIC AGENCY SHALL BE DEEMED TO HAVE VIOLATED (THE REQUIREMENT TO PAY OVERTIME FOR

HOURS WORKED IN EXCESS OF 40 HOURS) WITH RESPECT TO THE EMPLOYMENT OF ANY EMPLOYEE IN FIRE

PROTECTION ACTIVITIES . . . IF--

. . . .

(2) IN THE CASE OF SUCH AN EMPLOYEE TO WHOM A WORK PERIOD OF AT LEAST 7 BUT LESS THAN 28

DAYS APPLIES, IN HIS WORK PERIOD THE EMPLOYEE RECEIVES FOR TOURS OF DUTY WHICH IN THE

AGGREGATE EXCEED A NUMBER OF HOURS WHICH BEARS THE SAME RATIO TO THE NUMBER OF CONSECUTIVE

DAYS IN HIS WORK PERIOD . . . AS 216 HOURS BEARS TO 28 DAYS . . . COMPENSATION AT A RATE NOT

LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED.

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/9/ SECTION 7103(A)(14) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(14) "CONDITIONS OF EMPLOYMENT" . . . DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--

. . . .

(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE.

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/10/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART AS FOLLOWS:

SEC. 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--

(1) TO DETERMINE THE . . . BUDGET, ORGANIZATION, NUMBER OF EMPLOYEES
. . . OF THE AGENCY

. . .

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/11/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, NO JUDGMENT IS MADE AS TO THE MERITS OF THE PROPOSAL.

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/12/ IN ADDITION TO FLSA OVERTIME, FIRE FIGHTERS RECEIVE UNDER 5 U.S.C. 5545(C) A FIXED PERCENTAGE OF THEIR BASIC PAY (UP TO 25%) AS COMPENSATION FOR STANDBY TIME, SUNDAY WORK AND HOLIDAY WORK.

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/13/ SEE STATEMENT OF CONGRESSMAN CLAY CONCERNING THAT PORTION OF THE BILL PASSED BY THE HOUSE (THE "UDALL SUBSTITUTE") WHICH EXCLUDED MATTERS SPECIFICALLY PROVIDED FOR BY OTHER FEDERAL STATUTES FROM THE OBLIGATION TO BARGAIN WHICH PORTION WAS ENACTED AS 7103(A)(14)(C):

MR. CLAY.

. . . .

SECTION 7103(A)(14)(D), REMOVING FROM SUBJECTS OF BARGAINING THOSE MATTERS SPECIFICALLY

PROVIDED FOR BY FEDERAL STATUTE, WAS ADOPTED BY THE COMMITTEE AND RETAINED IN THE UDALL

SUBSTITUTE WITH THE CLEAR UNDERSTANDING THAT ONLY MATTERS "SPECIFICALLY" PROVIDED FOR BY

STATUTE WOULD BE EXCLUDED UNDER THIS SUBSECTION. THUS, WHERE A STATUTE MERELY VESTS AUTHORITY

OVER A PARTICULAR SUBJECT WITH AN AGENCY OFFICIAL WITH THE OFFICIAL GIVEN DISCRETION IN

EXERCISING THAT AUTHORITY, THE PARTICULAR SUBJECT IS NOT EXCLUDED BY THIS SUBSECTION FROM THE

DUTY TO TO BARGAIN OVER CONDITIONS OF EMPLOYMENT.

124 CONG.REC.H 9638 (DAILY ED. SEPT. 13, 1978).

SEE ALSO THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN 124 CONG.REC.H 9638 (DAILY ED. SEPT. 13, 1978).

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/14/ SEE FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 5551-5, JAN. 15, 1975.

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/15/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS V. UNITED STATES, 23 WH CASES 471 (D.D.C. JULY 15, 1977).

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/16/ SEE, FOR EXAMPLE, THE STATEMENT OF CONGRESSMAN CLAY, ONE OF THE PROPONENTS OF THE "UDALL SUBSTITUTE," CONCERNING THE RIGHTS CLAUSE OF THE "UDALL SUBSTITUTE:"

MR. CLAY.

. . . .

THE UDALL SUBSTITUTE CONTAINS A MANAGEMENT RIGHTS CLAUSE SUBSTANTIALLY ENLARGED BEYOND THAT

IN THE COMMITTEE PRINT. AN IMPORTANT ELEMENT IN OUR AGREEING TO ENTRUST SUCH AN EXPANDED

MANAGEMENT RIGHTS CLAUSE TO THE HANDS OF THE NEW AUTHORITY IS THE EXAMPLE OF THE PROTECTION

AFFORDED THE COLLECTIVE BARGAINING PROCESS BY CONSCIENTIOUS SCRUTINY OF MANAGEMENT CLAIMS OF

INFRINGEMENTS ON MANAGEMENT RIGHTS, ESPECIALLY AS FOUND IN THE TWO 1978 DECISIONS ABOVE. IF

THE NEW AUTHORITY IS FAITHFUL TO THESE INTERPRETATIVE GUIDELINES, THE ULTIMATE EXERCISE OF THE

SPECIFIED MANAGERIAL RESPONSIBILITY, THE ONLY SUBJECT EXEMPTED FROM THE BARGAINING OBLIGATION,

WILL BE PROTECTED AND THE GENERAL OBLIGATION TO BARGAIN OVER CONDITIONS OF EMPLOYMENT WILL BE

UNIMPAIRED. HOWEVER, IT IS ESSENTIAL THAT ONLY THOSE PROPOSALS THAT DIRECTLY AND INTEGRALLY

GO TO THE SPECIFIED MANAGEMENT RIGHTS BE BARRED FROM THE NEGOTIATIONS.

124 CONG.REC. H9638 (DAILY ED. SEPT. 13, 1978).

SEE ALSO THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN, 124 CONG.REC.H 9649 (DAILY ED. SEPT. 13, 1978).

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/17/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE NO. O-NG-40, 2 FLRA 77 (JAN. 31, 1980), REPORT NO. 31 AT 5 OF DECISION.

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/18/ SEE OFFICE OF LABOR MANAGEMENT RELATIONS, U.S. CIVIL SERVICE COMMISSION, UNION RECOGNITION IN THE FEDERAL GOVERNMENT, 252 (1978).