National Federation of Federal Employees, Local 1789 (Union) and Department of Housing and Urban Development, St. Louis Area Office, St. Louis, Missouri (Agency) 




[ v04 p708 ]
04:0708(94)NG
The decision of the Authority follows:


 4 FLRA No. 94
 
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1789
 Union
 
 and
 
 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
 ST. LOUIS AREA OFFICE, ST. LOUIS, MISSOURI
 Agency
 
                                            Case No. 0-NG-95
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    FLEXITIME:  REGULAR DAY SHIFT EMPLOYEES SHALL WORK DURING A STANDARD
 "CORE " PERIOD OF FIVE
 
    (5) HOURS BETWEEN 10:00 AM AND 3:00 PM.  EMPLOYEES MAY BEGIN WORK AT
 ANY TIME PRIOR TO THIS
 
    CORE PERIOD, AND MAY LEAVE WORK AT ANY TIME AFTER THIS CORE PERIOD,
 SO LONG AS THE TOTAL
 
    NUMBER OF HOURS WORKED EACH DAY (EXCLUSIVE OF NON-PAID LUNCH PERIOD
 OR APPROVED LEAVE) IS
 
    EIGHT (8) HOURS.  FOR EMPLOYEES WORKING OTHER THAN REGULAR DAY SHIFT
 HOURS, SIMILAR FLEXIBLE
 
    SCHEDULES SHALL BE ESTABLISHED THROUGH CONSULTATION AND/OR
 NEGOTIATION BETWEEN THE
 
    PARTIES.  EXCEPTIONS TO THIS POLICY SHALL BE MADE ONLY FOLLOWING
 MUTUAL AGREEMENT OF THE
 
    PARTIES THROUGH CONSULTATION AND/OR NEGOTIATION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE
 OBLIGATION TO BARGAIN UNDER SECTION 7117(A)(2) OF THE STATUTE /1/
 BECAUSE, AS ALLEGED BY THE AGENCY, IT IS INCONSISTENT WITH AN AGENCY
 REGULATION FOR WHICH A COMPELLING NEED EXISTS.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE AGENCY HAS FAILED TO SUPPORT ITS
 ALLEGATION THAT A COMPELLING NEED EXISTS FOR THE REGULATION RELIED UPON
 TO BAR NEGOTIATION OF THE UNION'S PROPOSAL AND, THEREFORE, THE UNION'S
 PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT
 IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO
 BY THE PARTIES) BARGAIN CONCERNING THE UNION'S PROPOSAL.  /2/
 
    REASONS:  THE PROPOSAL AT ISSUE WOULD REQUIRE THE AGENCY TO ESTABLISH
 FLEXIBLE WORK HOURS AT THE ST. LOUIS AREA OFFICE.  THE AGENCY ALLEGES
 THAT NEGOTIATION OF THIS PROPOSAL IS BARRED, UNDER SECTION 7117(A)(2) OF
 THE STATUTE, BY AN AGENCY REGULATION (HUD HANDBOOK 600.1 REV CHG 1,
 MARCH 12, 1979) WHICH PROVIDES, IN PERTINENT PART:
 
    6.1 FLEXITIME
 
    A.  DEFINITION.  FLEXITIME IS A CONCEPT OF REPLACING STANDARD FIXED
 TIMES OF ARRIVAL AT AND
 
    DEPARTURE FROM WORK WITH VARIABLE WORKING HOURS.
 
    B.  POLICY.  THE ESTABLISHMENT OF DEPARTMENTAL POLICY IS PENDING
 COMPLETION OF A FLEXITIME
 
    STUDY BY THE OFFICE OF ORGANIZATION AND MANAGEMENT INFORMATION.  THIS
 STUDY WILL DETERMINE
 
    FLEXITIME'S ADVANTAGES OR DISADVANTAGES, COSTS AND BENEFITS AND
 APPROPRIATENESS TO THE
 
    DEPARTMENT'S WORK ENVIRONMENT.
 
    C.  IMPLEMENTATION.  IMPLEMENTATION OF FLEXITIME IS PROHIBITED EXCEPT
 AS FOLLOWS:
 
    (1) OFFICES CURRENTLY PARTICIPATING IN A FLEXITIME EXPERIMENT WILL
 CONTINUE UNTIL THAT
 
    EXPERIMENT IS CANCELLED OR MADE PERMANENT.
 
    (2) OFFICES APPROVED BY THE OFFICE OF ORGANIZATION AND MANAGEMENT
 INFORMATION FOR
 
    PARTICIPATION IN THE STUDY MAY IMPLEMENT FLEXITIME IN ACCORDANCE WITH
 THE STUDY.
 
    THE AGENCY ARGUES IN SUPPORT OF ITS ALLEGATION THAT THE OFFICE OF
 PERSONNEL MANAGEMENT (OPM) HAS CLEARLY INTENDED IN FPM LETTER 610-5 OF
 MARCH 22, 1978, THAT CONTROLLED EXPERIMENTATION AND STUDY WILL TAKE
 PLACE.  THEREFORE, THERE "IS A COMPELLING NEED TO TEMPORARILY PROHIBIT
 FURTHER LOCAL IMPLEMENTATION OF FLEXITIME UNTIL THE AGENCY HAS CONCLUDED
 ITS CONTROLLED EXPERIMENT AND ANALYSIS OF ANY IMPACT OF FLEXITIME ON THE
 EFFICIENT DELIVERY OF SERVICES."
 
    THE CONSIDERATIONS GOVERNING THE PROCESSING OF CASES IN WHICH AN
 AGENCY RAISES THE ISSUE OF "COMPELLING NEED" FOR ONE OF ITS REGULATIONS
 ON WHICH IT RELIES AS A BAR TO NEGOTIATIONS ON A UNION PROPOSAL, WERE
 STATED AS FOLLOWS IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1928 AND DEPARTMENT OF THE NAVY, NAVAL AIR DEVELOPMENT
 CENTER, WARMINSTER, PENNSYLVANIA, 2 FLRA NO. 62 (1980):
 
    THE DUTY TO BARGAIN IN GOOD FAITH UNDER SECTION 7117 OF THE STATUTE
 EXTENDS IN GENERAL TO
 
    MATTERS WHICH ARE THE SUBJECT OF AGENCY RULES AND REGULATIONS WHICH
 ARE NOT GOVERNMENT-WIDE
 
    RULES AND REGULATIONS, TO THE EXTENT THEY ARE NOT INCONSISTENT WITH
 FEDERAL LAW.  WHEN THERE
 
    IS A "COMPELLING NEED," HOWEVER, FOR PARTICULAR INTERNAL AGENCY RULES
 AND REGULATIONS TO
 
    PREVAIL VIS A VIS PARTICULAR CONFLICTING UNION BARGAINING PROPOSALS,
 SUCH RULES AND
 
    REGULATIONS WILL STAND AS BARS TO NEGOTIATION ON SUCH PROPOSALS.
 THEREFORE, INTERNAL AGENCY
 
    RULES AND REGULATIONS . . . MAY BAR NEGOTIATIONS ON CONFLICTING
 COLLECTIVE BARGAINING
 
    PROPOSALS WHEN, UNDER THE STATUTE, A COMPELLING NEED FOR SUCH A
 (REGULATION) IS DETERMINED TO
 
    EXIST BY THE AUTHORITY PURSUANT TO (ITS RULES AND REGULATIONS).
 
    HENCE, IN A PROCEEDING BEFORE THE AUTHORITY SUCH AS THE INSTANT CASE
 INVOLVING AN
 
    ALLEGATION BY AN AGENCY THAT A UNION PROPOSAL IS NOT WITHIN THE DUTY
 TO BARGAIN UNDER SECTION
 
    7117(A)(2) OF THE STATUTE BECAUSE OF AN INTERNAL AGENCY REGULATION .
 . . THE AGENCY BEARS THE
 
    BURDEN OF COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ASSERTION
 THAT THE REGULATION IN
 
    QUESTION BARS NEGOTIATIONS BECAUSE, IMPLICITLY, A COMPELLING NEED
 EXISTS FOR THE
 
    REGULATION.  THIS IS CONSISTENT WITH THE REQUIREMENT IN THE
 AUTHORITY'S RULES CONCERNING THE
 
    REVIEW OF NEGOTIABILITY ISSUES THAT AN AGENCY'S STATEMENT OF POSITION
 FILED WITH THE AUTHORITY
 
    SHALL SET FORTH "IN FULL ITS POSITION ON ANY MATTERS RELEVANT TO THE
 PETITION WHICH IT WISHES
 
    THE AUTHORITY TO CONSIDER IN REACHING ITS DECISION, INCLUDING A FULL
 AND DETAILED STATEMENT OF
 
    ITS REASONS SUPPORTING THE ALLEGATION." FURTHERMORE, WITH REGARD TO
 ITS OWN REGULATIONS, THE
 
    AGENCY OBVIOUSLY SHOULD HAVE THE GREATEST FAMILIARITY WITH THE
 CIRCUMSTANCES UNDER WHICH THE
 
    PARTICULAR REGULATION INVOLVED WAS DEVELOPED AND ISSUED AND THE
 PURPOSE IT WAS INTENDED TO
 
    SERVE.  CONSEQUENTLY, SINCE THE AGENCY IS RELYING ON THE REGULATION
 TO BAR NEGOTIATIONS ON AN
 
    OTHERWISE NEGOTIABLE PROPOSAL, THE AGENCY PROPERLY IS REQUIRED TO
 ADDUCE SUCH RELEVANT
 
    CIRCUMSTANCES IN THE STATEMENT OF ITS POSITION BEFORE THE AUTHORITY.
 
    IN THIS CASE THE AGENCY CLAIMS GENERALLY, WITHOUT ANY SPECIFIC
 REFERENCE TO ANY OF THE ILLUSTRATIVE CRITERIA SET OUT IN SECTION 2424.11
 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.11), THAT A
 COMPELLING NEED EXISTS FOR ITS REGULATION TO BAR NEGOTIATIONS ON THE
 UNION'S PROPOSAL.  THIS CLAIM, CONSTRUED IN A LIGHT MOST FAVORABLE TO
 THE AGENCY, APPEARS TO STATE THAT THE REGULATION MEETS THE CRITERION OF
 SECTION 2424.11(C) OF THE RULES IN THAT THE "REGULATION IMPLEMENTS A
 MANDATE TO THE AGENCY . . . UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
 IMPLEMENTATION IS ESSENTIALLY NONDISCRETIONARY IN NATURE."
 
    THE AGENCY'S ALLEGATION CANNOT BE SUSTAINED.  FPM LETTER 610-5, THE
 "OUTSIDE AUTHORITY" RELIED UPON BY THE AGENCY, DOES NOT PROHIBIT OR
 OTHERWISE LIMIT THE DISCRETION OF AN AGENCY TO ADOPT FLEXIBLE WORKING
 HOURS, BUT ONLY REQUESTS THE REPORTING OF INFORMATION CONCERNING AGENCY
 EXPERIMENTS WITH FLEXIBLE WORKING HOURS.  SUBSEQUENT OPM ISSUANCES
 RELATING TO THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES
 ACT OF 1978, PUB. L. NO. 95-390, 92 STAT. 755 (1978), CLEARLY STATE THAT
 AGENCIES REMAIN FREE TO IMPLEMENT FLEXIBLE WORKING SCHEDULES WHICH FALL
 OUTSIDE THE ACT'S PROVISIONS AND THAT ANY SUCH IMPLEMENTATION MUST BE
 NEGOTIATED WITH LABOR ORGANIZATIONS WHERE APPROPRIATE.  (SEE 5 CFR
 620.102 AND FPM LETTER 620-2 (JUNE 4, 1979) AT 3 AND 4.) ADDITIONALLY,
 THE AUTHORITY HAS HELD IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION, NATIONAL
 CAPITAL REGION, WASHINGTON, D.C., 3 FLRA NO. 37 (1980), THAT "IT IS
 CLEAR FROM THE LANGUAGE AND LEGISLATIVE HISTORY OF THE WORK SCHEDULES
 ACT THAT CONGRESS INTENDED THE MATTER OF FLEXIBLE OR COMPRESSED WORK
 SCHEDULES TO BE NEGOTIATED BETWEEN THE PARTIES TO EXISTING COLLECTIVE
 BARGAINING RELATIONSHIPS."
 
    FURTHER, THE AGENCY PROVIDES NO ADDITIONAL INFORMATION TO SUPPORT A
 CLAIM THAT ITS REGULATION MEETS THE REQUIREMENTS OF ANY OF THE REMAINING
 CRITERIA SET OUT IN SECTION 2424.11 OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED UNDER THE REQUIREMENTS
 SET FORTH IN THE AUTHORITY'S RULES AND REGULATIONS THAT A COMPELLING
 NEED EXISTS FOR ITS REGULATION PROHIBITING LOCAL IMPLEMENTATION OF
 FLEXITIME SYSTEMS.  FOR THAT REASON, THE AGENCY'S CLAIM THAT THE
 REGULATION IS A BAR TO NEGOTIATIONS ON THE DISPUTED PROPOSAL CANNOT BE
 SUSTAINED AND THE AGENCY'S ALLEGATION TO THAT EFFECT IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 3, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
                             MR. BILL E. BAKER
 
                          NATIONAL REPRESENTATIVE
 
                 NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 
                        12220 D SPANISH TRACE DRIVE
 
                     MARYLAND HEIGHTS, MISSOURI 63043
 
                           MR. WILLIAM A. MEDINA
 
                  ASSISTANT SECRETARY FOR ADMINISTRATION
 
                      DEPARTMENT OF HOUSING AND URBAN
 
                                DEVELOPMENT
 
                          WASHINGTON, D.C. 20410
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7117(A)(2) OF THE STATUTE PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,
 EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION
 REFERRED TO IN PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY
 HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING
 NEED (AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY)
 EXISTS FOR THE RULE OR REGULATION.
 
    /2/ IN