23:0753(97)NG - NAGE Local R7-23 and Air Force, Scott AFB, IL -- 1986 FLRAdec NG



[ v23 p753 ]
23:0753(97)NG
The decision of the Authority follows:


 23 FLRA No. 97
 
 NATIONAL ASSOCIATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL R7-23
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE 
 SCOTT AIR FORCE BASE, ILLINOIS
 Agency
 
                                            Case No. 0-NG-1252
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         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 presents issues as
 to the negotiability of three Union proposals.  We find that all three
 proposals are nonnegotiable.
 
                           II.  Union Proposal 1
 
          Article 7, Section 2:  When a change in duty hours, days, or
       weeks currently in effect is proposed by the employer, such change
       will be announced in writing to the union and employees at least
       14 days in advance, except in emergencies, in order that the union
       may request to enter into negotiations and so that employees will
       be forewarned of a pending change.
 
                       A.  Positions of the Parties
 
    The Agency contends that Union Proposal 1 is nonnegotiable under
 section 7117(a)(1) of the Statute because it is inconsistent with a
 Government-wide regulation, 5 C.F.R. Section 610.121(b)(2).  In support
 of its contention, the Agency cites the Authority's decision in American
 Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army
 Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985), petition for
 review filed sub nom. American Federation of Government Employees, Local
 2484 v. Federal Labor Relations Authority, No. 85-1405 (D.C. Cir. July
 3, 1985), and cases relying thereon.  /1/
 
    The Union acknowledges this Authority precedent but requests that the
 Authority not decide the issue until the U.S. Court of Appeals for the
 District of Columbia Circuit rules on the Authority's decision in the
 Fort Detrick case.
 
                        B.  Analysis and Conclusion
 
    The proposal requires the Agency to give employees and the Union 14
 days notice before making any changes in established work schedules,
 except in emergency situations.  Office of Personnel Management (OPM)
 regulations provide, as relevant here,s that an agency must change an
 employee's work schedule when it knows in advance that the employee's
 schedule will be different from that which the employee is currently
 working;  and must notify the employee of the change.  5 C.F.R. Section
 610.121(b)(2) (1986).  As the Agency points out, in the Fort Detrick
 decision, the Authority held that a proposal requiring two weeks notice,
 like the one in this case, was inconsistent with the OPM regulation
 because it would preclude the agency from complying with that regulation
 unless it became aware of the need to change work schedules not less
 than two weeks prior to the rescheduling.  OPM supported the Authority's
 interpretation of 5 C.F.R. Section 610.121(b)(2) in amicus briefs filed
 with the Authority in subsequent cases involving this issue.  See, for
 example, National Federation of Federal Employees, Local 7 and U.S. Army
 Corps of Engineers, Portland District, 19 FLRA No. 18 (1985);  American
 Federation of Government Employees, Local 1546 and Department of the
 Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
 (Provision 1), petition for review filed sub nom. American Federation of
 Government Employees, Local 1546 v. Federal Labor Relations Authority,
 No. 85-1689 (D.C. Cir. October 21, 1985).  The American Federation of
 Government Employees, AFL-CIO, however, challenged the validity of 5
 C.F.R. Section 610.121(b) in a suit filed in the U.S. District Court for
 the District of Columbia.  In its Memorandum and Order in that case,
 American Federation of Government Employees v. Office of Personnel
 Management, C.A. No. 85-4031 (D.D.C. August 7, 1986), slip opinion at 5,
 the court upheld the regulation stating that:
 
          (N)otwithstanding it may not say so in so many words,
       subsection (b) which permits workweeks to be rescheduled was
       intended, and is interpreted, by OPM to be qualified by subsection
       (a) directing agency heads to establish conventional workweek
       schedules except upon a determination that the agency would be
       seriously handicapped in carrying out its functions or that costs
       would be substantially increased.  /2/
 
    In light of the court's decision, we have reconsidered the basis of
 the Fort Detrick decision.  For the reasons set forth below, we will no
 longer follow our rationale in Fort Detrick and the cases which applied
 it.
 
    Applicable law, 5 U.S.C. Section 6101(a)(3)(A), provides that an
 agency shall schedule employees' tours of duty not less than seven days
 in advance, except where it is determined that the agency would be
 seriously handicapped in carrying out its functions or that costs would
 be substantially increased.  /3/ As noted above, in the Fort Detrick
 decision, the Authority interpreted OPM regulations implementing that
 provision -- in particular, 5 C.F.R. Section 610.121(b)(2) -- as
 requiring an agency to change employee work schedules as soon as it
 became aware that such a change would be necessary.  /4/ Upon further
 review, we conclude that this interpretation does not comport with the
 statutory requirement that work schedules may be revised less than seven
 days in advance only where it is necessary to prevent the agency from
 being handicapped in the execution of its functions or to forestall a
 substantial increase in operational costs.  In other words, interpreting
 5 C.F.R. Section 610.121(b) consistent with 5 U.S.C. Section
 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a), employees must have a
 minimum of seven days advance notice of a change in work schedules
 unless the change is being made for the reasons set forth in the statute
 (and repeated in 5 C.F.R. Section 610.121(a)).
 
    The proposal at issue here, which would permit the Agency to change
 employee work schedules within the fourteen day notice period only in an
 emergency, is inconsistent with the statutory and regulatory provisions.
  We note at the outset that the proposal allows the Agency to change
 employee work schedules without notice in an "emergency," without
 defining that term, and thus is consistent with management's right to
 take action in an emergency under section 7106(a)(2)(D).  Compare
 National Federation of Federal Employees, Local 2059 and U.S. Department
 of Justice, U.S. Attorney's Office, Southern District of New York, 22
 FLRA No. 13 (1986) (proposal defining the term "emergency" directly
 interferes with management's right under section 7106(a)(2)(D) by
 limiting the exercise of that right to situations falling within the
 proposed definition).  However, the exception to the notice period set
 forth in the proposal is too narrow.  The terms defining the statutory
 (5 U.S.C. Section 6101(a)(3)(A)) and the regulatory (5 C.F.R. Section
 610.121(a)) exceptions are broader than the term "emergency" used in the
 proposal.  Situations falling within the scope of the statute and
 regulations -- circumstances which would seriously handicap an agency in
 accomplishing its functions or would substantially increase costs --
 would not necessarily constitute "emergencies" as defined by the Agency
 pursuant to its right under section 7106(a)(2)(D).  The exception set
 forth in the proposal therefore would impermissibly restrict the
 Agency's right, under law and regulation, to revise employee work
 schedules.  For that reason we find that the proposal is inconsistent
 with 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) and
 (b) and, under section 7117 of the Statute, outside the duty to bargain.
 
    Although we are no longer following the rationale of the Fort Detrick
 decision, the result in that case, or in cases which relied on Fort
 Detrick and involved similarly worded proposals or provisions, would not
 be different from the result here.  Because the provision in Fort
 Detrick, like the proposal here, limited the agency's right to change
 employee work schedules to situations constituting an "emergency," it
 would also be inconsistent with law and regulation for the reasons
 stated above and outside the duty to bargaiin.
 
                          III.  Union Proposal 2
 
          Article 14, Section 7:  All areas serviced by the CCPO shall be
       in the same competitive area for reduction-in-force purposes.
 
                       A.  Positions of the Parties
 
    The Agency contends that this proposal is essentially the same as the
 proposed competitive area which the Authority found nonnegotiable in
 National Association of Government Employees, Local R7-23 and Department
 of the Air Force, Headquarters1 375th Air Base Group (MAC), Scott Air
 Force Base, Illinois, 19 FLRA No. 63 (1985), remanded sub nom. National
 Association of Government Employees, Local R7-23 v. Federal Labor
 Relations Authority, No. 85-1522 (D.C. Cir. Dec. 3, 1985).  The Agency
 also contends that the proposal is outside the duty to bargain under
 section 7117(a)(2) because it conflicts with an Agency regulation for
 which a compelling need exists and under section 7106(a)(2) because it
 violates management's rights.
 
    The Union contends that the decision in the previous Scott Air Force
 Base case does not apply to this proposal because that case was remanded
 by the court for reconsideration in light of the court's decision in
 Local 32, American Federation of Government Employees v. Federal Labor
 Relations Authority, 774 F.2d 498 (D.C. Cir. 1985).  The Union also
 contends that there is no compelling need for the regulation relied on
 by the Agency and that the proposal does not conflict with management's
 rights.
 
                        B.  Analysis and Conclusion
 
    We find that the proposal is outside the duty to bargain because it
 directly determines the conditions of employment of nonunit employees.
 
    In our Decision and Order on Remand in the Scott Air Force Base case,
 22 FLRA No. 79 (1986), we reaffirmed our previous holding that the
 proposed competitive area in that case was outside the duty to bargain
 because it would include nonunit employees.  The proposal at issue in
 that case defined the competitive area in terms of all bargaining unit
 positions serviced by the Civilian Personnel Office (CCPO).  As we
 pointed out in our Decision and Order on Remand, the CCPO services areas
 that are composed of bargaining unit and nonbargaining unit employees.
 There is no material difference between the proposal in that case and
 the proposal in this case.  The result in this case, therefore, is the
 same:  the proposed competitive area is outside the duty to bargain.
 
                           IV.  Union Proposal 3
 
          Article 23, Section 30:  The employer agrees that it will only
       collect for damages to government property in an amount equal to
       no more than 1 month's salary/wages and then only for cases where
       the bargaining unit employees have been ultimately found guilty of
       gross negligence.
 
                       A.  Positions of the Parties
 
    The Agency contends that Union Proposal 3 is outside the duty to
 bargain because it interferes with management's right to determine its
 internal security practices under section 7106(a)(1) of the Statute.
 
    The Union acknowledges that the Authority has held similar proposals
 to be nonnegotiable under section 7106(a)(1), but argues that Union
 Proposal 3 constitutes an appropriate arrangement under section
 7106(b)(3) for employees adveresely affected by the exercise of
 management's right to determine its internal security practices.
 
                        B. Analysis and Conclusion
 
    For the following reasons we find that Union Proposal 3 is
 nonnegotiable.  As the Agency points out, in National Federation of
 Federal Employees, Local 29 and Department of the Army, Kansas City
 District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA
 No. 32 (1986), petition for review filed sub nom. National Federation of
 Federal Employees, Local 29 v. Federal Labor Relations Authority, No.
 86-1308 (D.C. Cir. May 28, 1986) and American Federation of Government
 Employees, AFL-CIO, Council 214 and Department of the Air Force,
 Headquarters Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio, 21 FLRA No. 34 (1986), petition for review filed sub nom.
 American Federation of Government Employees, Council 214 v. Federal
 Labor Relations Authority, No. 86-1340 (D.C. Cir. June 9, 1986), the
 Authority held, respectively, that a proposal establishing a maximum
 amount for employee pecuniary liability and a proposal establishing the
 standard by which employees would be adjudged to be pecuniariily liable
 directly interfered with management's right to determine its internal
 security practices under section 7107(a)(1).  Union Proposal 3,
 therefore, which also provides for a cap on employee liability and a
 criterion by which to determine whether an employee is liable, likewise
 directly interferes with management's rights under section 7106(a)(1)
 and is outside the Agency's duty to bargain.
 
    Moreover, even assuming that Union Proposal 3 constitutes an
 "arrangement" for employees adversely affected by management's right to
 determine its internal security practices, we conclude that it
 excessively interferes with that right so asto be an "inappropriate"
 arrangement under section 7106(b)(3) of the Statute.  The proposal,
 among other things, would replace the standard of simple "negligence,"
 promulgated by management under section 7106(a)(1), with the standard of
 "gross negligence", which had previously been the standard established
 by management.  Management's change in this standard is more than a
 matter of words or a question of degree of emphasis.  Management's
 change reflects a determination that a new, distinctly different
 substantive requirement should govern employee conduct on the job.  In
 essence, therefore, the proposal would completely reverse the
 substantive effect of management's action in changing the standard.  As
 the U.S. Court of Appeals for the District of Columbia Circuit stated in
 setting forth the "excessive interference" test for appropriate
 arrangements under section 7106(b)(3):
 
          Undoubtedly, some arrangements may be inappropriate because
       they impinge upon management prerogatives to an excessive degree.
       (Emphasis in original.) A provision, for example, that would
       require a demoted employee simply to be repromoted to his or her
       former job would be inappropriate (to the point of absurdity) for
       that reason.  (Emphasis added.) Beyond that, we decline to
       speculate as to what the word "appropriate" may lawfully be
       interpreted to exclude . . .
 
    American Federation of Government Employees, Local 2782 v. Federal
 Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983). Insofar
 as the standard for liability is concerned, Union Proposal 3, like the
 court's example, completely negates management's exercise of its rights
 and is therefore excessive.  Proposals which totally abrogate the
 exercise of a management right excessively interfere with that right and
 do not constitute "appropriate arrangements." See American Federation of
 Government Employees, AFL-CIO, Local 3186 and Department of Health and
 Human Services, Office of Social Security Field Operations, Philadelphia
 Region, 23 FLRA No. 30 (1986) (Union Proposal 1);  Federal Union of
 Scientists and Engineers and Department of the Navy, Naval Underwater
 Systems Center, 22 FLRA No. 83 (1986).
 
                                 V.  Order
 
    Pursuant to section 2424.10 of the Authority's Rules and Regulations,
 IT IS ORDERED that the petition for review of Union Proposals 11-3 be,
 and it hereby is, dismissed.
 
    Issued, Washington, D.C. October 31, 19896.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) For the cases which relied on the Fort Detrick decision see the
 Appendix to this decision.
 
    (2) For a more detailed statement of the Court's opinion, see the
 Appendix to this decision.
 
    (3) For the text of 5 U.S.C. Section 6101(a), see the Appendix to
 this decision.
 
    (4) For the text of 5 C.F.R. Section 610.121(a) and (b), see the
 Appendix to this decision.
 
 
                                 Appendix
 
    1/ American Federation of Government Employees, AFL-CIO, Local 900
 and Department of the Army, Office of the Adjutant General, U.S. Army
 Reserve Components Personnel and Administrative Center, St. Louis,
 Missouri, 18 FLRA No. 6 (1985), petition for review filed sub nom.
 American Federation of Government Employees, Local 900 v. Federal Labor
 Relations Authority, No. 85-1406 (D.C. Cir. July 3, 1985;  American
 Federation of Government Employees, National Council of Grain Inspection
 Locals and U.S. Department of Agriculture, Federal Grain Inspection
 Service, 18 FLRA No. 70 (1985), enforced sub nom. American Federation of
 Government Employees, National Council of Grain Inspection Locals v.
 Federal Labor Relations Authority, 794 F.2d 1013 (5th Cir. 1986);
 National Association of Government Employees, Local R7-36 and U.S.
 Department of the Army, Savanna Army Depot, 18 FLRA No. 86 (1985);
 National Federation of Federal Employees, Local 7 and U.S. Army Corps of
 Engineers, Portland District, 19 FLRA No. 18 (1985);  National
 Federation of Federal Employees, Local 687 and Department of the Air
 Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base,
 California, 19 FLRA No. 78 (1985) (Union Proposals 1 and 2);  American
 Federation of Government Employees, Local 1546 and Department of the
 Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
 (Union Provision 1), petition for review filed sub nom. American
 Federation of Government Employees, AFL-CIO, Local 1546 v. Federal Labor
 Relations Authority, No. 85-1689 (D.C. Cir. October 21, 1985);  National
 Association of Government Employees, Local R1-100H and Department of the
 Navy, Naval Hospital, Groton, 20 FLRA No. 17 (1985);  American
 Federation of Government Employees, AFL-CIO, Local 1955 and The Adjutant
 General, Iowa, Departments of the Army and the Air Force, National Guard
 Bureau, 20 FLRA No. 46 (1985);  American Federation of Government
 Employees, AFL-CIO, Local 1738 and Veterans Administration Medical
 Center, Salisbury, North Carolina, 20 FLRA No. 47 (1985) American
 Federation of Government Employees, AFL-CIO, Local 1909 and Department
 of Defense, Department of the Army, U.S. Army Training Center and Fort
 Jackson, South Carolina, 20 FLRA No. 56 (1985);  American Federation of
 Government Employees, AFL-CIO, Local 2484 and Department of the Army,
 Fort Detrick, Maryland, 20 FLRA No. 79 (1985);  Department of Defense,
 Department of the Army, Headquarters XVIII Airborne Corps and Fort
 Bragg, Fort Bragg, North Carolina and American Federation of Government
 Employees, Local 1770, AFL-CIO, 20 FLRA No. 101 (1985);  National
 Association of Government Employees, Local R14-87 and Kansas City
 National Guard, 21 FLRA No. 4 (1986) (Provision 1);  American Federation
 of Government Employees, AFL-CIO, Meat Grading Council of Locals and
 Department of Agriculture, Meat Grading and Certification Branch, 22
 FLRA No. 52 (1986).
 
    2/ The Court stated, at 5 of the slip opinion, as follows:
 
          OPM responds that the regulation, like the statute, permits a
       variable workweek only under exceptional circumstances;
       notwithstanding it may not say so in so many words, subsection (b)
       which permits workweeks to be rescheduled was intended, and is
       interpreted, by OPM to be qualified by subsection (a) directing
       agency heads to establish conventional workweek schedules except
       upon a determination that the agency would be seriously
       handicapped in carrying out its functions or that costs would be
       substantially increased.  Moreover, the pertinent language of
       subsection (a) reiterates that of the statute pursuant to which
       the regulation was promulgated, and the statute qualifies the
       regulation by operation of law whether the regulation expressly
       says so or not.  Therefore, when regulation and statute are read
       together, as they must be, it is clear that agency heads must
       reschedule their employees' workweeks as necessary to accomplish
       the agency's mission, but only after having first determined that
       the agency would be seriously handicapped or its costs
       substantially increased if original work schedules were retained.
       The Statute and regulation are consistent.
 
    3/ 5 U.S.C. Section 6101(a) provides, in relevant part, as follows:
 
         Section 6101.  Basic 40-hour workweek;  work schedules;
 
                regulations
 
          (a)(1) For the purpose of this subsection, "employee" includes
       an employee of the government of the District of Columbia and an
       employee whose pay is fixed and adjusted from time to time under
       section 5343 or 5349 of this title, or by a wage board or similar
       administrative authority serving the same purpose, but does not
       include an employee or individual excluded from the definition of
       employee in section 5541(2) of this title, except as specifically
       providced under this paragraph.
 
          (2) The head of each Executive agency, military department, and
       of the government of the District of Columbia shall --
 
          (A) establish a basic administrative workweek of 40 hours for
       each full-time employee in his organization;  and
 
          (B) require that the hours of work within that workweek be
       performed within a period of not more than 6 of any 7 consecutive
       days.
 
          (3) Except when the head of an Executive agency, a military
       department or of the government of the District of Columbia
       determines that his organization would be seriously handicapped in
       carrying out its functions or that costs would be substantially
       increased, he shall provide, with respect to each employee in his
       organization, that --
 
          (A) assignments to tours of duty are scheduled in advance over
       periods of not less than 1 week;
 
          (B) the basic 40-hour workweek is scheduled on 5 days, Monday
       through Friday when possible, and the 2 days outside the basic
       workweek are consecutive;
 
          (C) the working hours in each day in the basic workweek are the
       same;
 
          (D) the basic non-overtime workday may not exceed 8 hours;
 
          (E) the occurrence of holidays may not affect the designation
       of the basic workweek;  and
 
          (F) breaks in working hours of more than 1 hour may not be
       scheduled in a basic workday.
 
    4/ 5 C.F.R. Section 610.121(a) and (b) (1986) provides:
 
             Section 610.121 Establishment of work schedules.
 
          (a) Except when the head of an agency determines that the
       agency would be seriously handicapped in carrying out its
       functions or that costs would be substantially increased, he or
       she shall provide that --
 
          (1) Assignments to tours of duty are scheduled in advance of
       the administrative workweek over periods of not less 1 week;
 
          (2) The basic 40-hour workweek is scheduled on 5 days, Monday
       through Friday when possible, and the 2 days outside the basic
       workweek are consecutive;
 
          (3) The working hours in each day in the basic workweek are the
       same;
 
          (4) The basic non-overtime workday may not exceed 8 hours;
 
          (5) The occurrence of holidays may not affect the designation
       of the basic workweek;  and
 
          (6) Breaks in working hours of more than 1 hour may not be
       scheduled in a basic workday.
 
          (b)(1) The head of an agency shall schedule the work of his or
       her employees to accomplish the mission of the agency.  The head
       of an agency shall schedule an employee's regularly scheduled
       administrative workweek so that it corresponds with the employee's
       actual work requirements.
 
          (2) When the head of an agency knows in advance of an
       administrative workweek that the specific days and/or hours of a
       day actually required of an employee in that administrative
       workweek will differ from those required in the current
       administrative workweek, he or she shall reschedule the employee's
       regularly scheduled administrative workweek to correspond with
       those specific days and hours.  The head of the agency shall
       inform the employee of the change, or he or she shall record the
       change on the employee's time card or other agency document for
       recording work.
 
          (3) If it is determined that the head of an agency should have
       scheduled a period of work as part of the employee's regularly
       scheduled administrative workweek and failed to do so in
       accordance with paragraphs (b)(1) and (2) of this section, the
       employee shall be entitled to the payment of premium pay for that
       period of work as regularly schedul