19:0617(78)NG - NFFE Local 687 and Air Force HQ 63rd ABG (MAC), Norton AFB, CA -- 1985 FLRAdec NG
[ v19 p617 ]
The decision of the Authority follows:
19 FLRA No. 78 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 687 Union and DEPARTMENT OF THE AIR FORCE, EADQUARTERS 63rd AIR BASE GROUP (MAC), NORTON AIR FORCE BASE, CALIFORNIA Agency Case No. O-NG-939 DECISION AND ORDER ON NEGOTIABILITY ISSUES This petition for review comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises the question of the negotiability of five Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/ Union Proposal 1 Except where flexitime or compressed work schedules are negotiated, the basic workweek is the days and hours of the administrative workweek which make up the employee's regularly scheduled 40-hour workweek. The basic workweek at Norton AFB normally consists of five consecutive eight-hour days with two consecutive non-duty days. The regular tour of duty for most employees is five 8-hour days, Monday through Friday. Uncommon tours of duty; i.e., 40 hour basic workweeks scheduled to include Saturday and/or Sunday, may be established when necessary to meet mission requirements. The impact of any change in the hours of work, shifts or tours of duty will be negotiated with the Union prior to implementation except in cases of emergencies. (Only the underlined portion of the proposal is in dispute.) Union Proposal 2 Normally, an employee will be scheduled to work the same hours each day on the same days of the administrative workweek. If it becomes necessary to reassign employees to different tours of duty or shifts, the procedures specified in Section 7 below will be followed. When employees are reassigned to different tours, the employee will be given at least seven days notice in writing except in cases of emergencies. (Only the underlined portion of the proposal is in dispute.) Based upon the language of the proposals and record in the instant case, both proposals purport to deal in non-emergency circumstances /2/ where the Agency changes the administrative workweek and thereby employees' previously established hours of duty. The Authority has held that the Statute requires that, prior to effectuating a change in established conditions of employment, an agency must give the exclusive representative notice and an opportunity to negotiate. E.g., Small Business Administration, Washington, D.C., and Small Business Administration, Salt Lake City District Office, Salt Lake City, Utah, and American Federation of Government Employees, Local 1099, AFL-CIO (and cases cited therein), 15 FLRA No. 109 (1984). Union Proposal 1 herein, however, would require the Agency to complete negotiations over the impact and implementation of any changes in hours of work, shifts or tours of duty prior to such changes being made. In addition, Union Proposal 2 would require the Agency to provide seven days written advance notice to employees reassigned to different tours of duty. In this respect, Union Proposals 1 and 2 in the instant case are to the same effect as Provision 1 in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106 (1985) which required two weeks advance notice of changes in tours of duty and which the Authority found to be inconsistent with an applicable Government-wide regulation. In the cited case the Authority determined that 5 CFR 610.121(b)(2) (1984) obligates an agency head to revise an employee's administrative workweek to comport with the hours during which the employee will actually be required to work "(w)hen the head of an agency knows in advance of an administrative workweek" that such revision is necessary. Thus, the Authority concluded that as the provision in that case would prevent the Agency head from revising an employee's work schedule unless he or she became aware of the need to change work schedules not less than two weeks prior to the rescheduling, it was inconsistent with a Government-wide regulation and outside the duty to bargain. /3/ Therefore, based on U.S. Army Garrison, Fort Detrick, since Union Proposals 1 and 2 would also, in certain circumstances, prevent the Agency from complying with a Government-wide regulation, they are likewise outside the duty to bargain pursuant to section 7117(a)(1) of the Statute. Union Proposal 3 Employees will not be required or coerced to perform duties in other than civilian status except during periods of national emergency, time of war and annual training. The Union contends the purpose of this proposal is to prohibit management from coercing or requiring employees to take annual leave, leave without pay or compensatory time off to perform duties which could otherwise be done while such employees are in a civilian pay status. However, contrary to the Union's intent, this proposal expressly concerns the assignment of work to employees when they are "in other than civilian status." In this respect, when Air Reserve technicians are performing duties "in other than civilian status" they are functioning in their military capacity as members of the Air Force Reserve. That is, Air Reserve technicians generally are required to become members of and maintain membership in the Air Force Reserve in a military capacity as a condition of continued civilian technician employment. /4/ While matters related to the civilian aspects of such technician employment may be within the duty to bargain pursuant to the Statute, matters related to the military aspects of such technician employment are specifically prohibited from negotiation by law. /5/ Therefore, as Union Proposal 3 expressly concerns matters related to the military aspects of Air Force Reserve technician employment it is not within the duty to bargain pursuant to section 7117(a)(1) of the Statute. Union Proposal 4 Air Reserve Technicians while on TDY will be given parity to their civilian grade which includes all the entitlements of AFR 90-9. The individual may request billeting at his/her military grade at the employee's option. Union Proposal 5 Temporary duty and flight authorization orders for Air Reserve Technicians traveling in civilian status will only reflect their civilian grade: i.e., GS-9 or WG-10. Union Proposals 4 and 5 provide that Air Force Reserve technicians on temporary duty may, at their option, be assigned quarters based on their civilian grade rather than on their military grade. In this regard, in National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard, 13 FLRA 176 (1983), aff'd sub nom. National Federation of Federal Employees, Local 1699 v. FLRA, 745 F.2d 705 (1984), the Authority determined that a compelling need existed pursuant to section 2424.11(c) of the Authority's Rules and Regulations for a National Guard Bureau regulation which required that National Guard technicians be assigned government quarters based on their military grade as contrasted with their civilian grade when such technicians were in a travel status. See also American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Army and Air Force, National Guard Bureau, 15 FLRA No. 58 (1984). The regulation in question had been issued to implement a directive from the House Committee on Appropriations to the Department of Defense to the effect that military technicians in travel status would occupy government quarters based on their military grade. /6/ This nondiscretionary directive was contained in the report accompanying the "Department of Defense Appropriations Bill of 1982" and was agreed to by the Conference Committee. /7/ While Arkansas Air National Guard and Department of Army and Air Force, National Guard Bureau concerned only a National Guard Bureau regulation, the directive from Congress to the Department of Defense that military technicians in a travel status will occupy temporary quarters based on their military grade expressly applies to Army and Air Force Reserve technicians as well. Therefore, AFR 90-9 and AFR 10-7, /8/ at issue in this case, which require respectively that the Air Force Reserve technicians be quartered according to their military grade and that travel orders include both military and civilian grades, reflect this nondiscretionary mandate and meet the criterion for determining a compelling need pursuant to section 2424.11(c) of the Authority's Rules and Regulations. Consequently, since Union Proposals 4 and 5 are inconsistent with AFR 90-9 and AFR 10-7 they are not 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, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union did not file a Reply Brief in this case. /2/ The term emergency has been defined by the parties in their collective bargaining agreement as "situations posing sudden, immediate and unforeseen work requirements for the Employer as a result of natural phenomena or other circumstances beyond the Employer's reasonable control or ability to anticipate. A situation in which the Employer has been informed of an impending exercise or inspection which will result in an increase in workload will not be considered an emergency." /3/ The Authority also found a second provision requiring one pay period advance notice of non-workday rotation schedule changes to be inconsistent with the same Government-wide regulation and outside the duty to bargain. /4/ FPM Supplement (Internal) 930-71 (December 1983). See also American Federation of Government Employees v. Resor, 387 F.Supp. 63 (D.D.C. 1974). /5/ 10 U.S.C. 976 (1982). /6/ The House Committee on Appropriations Report provided, in relevant part: GUARD AND RESERVE TECHNICIAN CONVERSION PROGRAM The Committee conducted an extensive hearing on the Guard and Reserve technician conversion program and includes the following direction to the Department. . . . . Military technicians will occupy government quarters based on military grade when in a travel status. H.R. REP. No. 97-333, 97th Cong., 1st Sess. 42 (1981). /7/ The Conference Report provided in relevant part: The following language items represent the agreement of the conferees. Specific dollar amounts by military service are reflected under each summary table. Language contained in the report of only one body and not addressed below should be considered the agreement of the conferees. H.R. REP. No. 97-410, 97th Cong., 1st Sess. 9 (1981). /8/ AFR 90-9 states as follows: "AFRES and ANG technicians in travel status will be billeted according to the military grade shown in their travel orders." AFR 10-7 states as follows: (travel orders) "for Air Reserve technicians traveling in their civilian capacity include both military and civilian grades, E.G., (GS-9 SMSGT USAFR)."