25:0373(27)NG - NTEU, Chapter 65 and Treasury, IRS -- 1987 FLRAdec NG



[ v25 p373 ]
25:0373(27)NG
The decision of the Authority follows:


 25 FLRA No. 27
 
 NATIONAL TREASURY
 EMPLOYEES UNION
 CHAPTER 65
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. 0-NG-1251
 
                 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).  The case concerns the
 negotiability of the following Union proposal:
 
          Pursuant to Article 9, Section 2 of NORD II, employees who are
       NTEU officials may request to earn credit hours, consistent with
       the Alternative Work Schedule Agreement, to perform such duties as
       contained in Article 9, Section 2.
 
    We find the proposal to be negotiable.
 
    II.  Positions of the Parties
 
    The Union's proposal provides that employees who serve as Union
 officials may request permission of management to earn credit hours
 under the parties' flexible work schedules agreement for participation
 as Union representatives in certain labor-management meetings scheduled
 by agency.  /1/ As an example, the Union states the following:  If an
 employee who served as a Union steward worked a flexi-tour with credit
 hours and normally worked from 9:00 a.m. to 5:30 p.m. on the flexi-tour,
 he would be eligible to come in at 8:00 a.m. and earn one credit hours.
 Under the proposal, if the steward came in for a grievance meeting
 scheduled by the agency at 8:00 a.m., he would be eligible to request
 one credit hour.  Union's Petition for Review at 2.
 
    The Agency contends that the Union's proposal interferes with
 management's right to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute and is contrary to section 7131 of
 the Statute.  The Agency also contends that the proposal is inconsistent
 with the Federal Employees Flexible and Compressed Work Schedules Act of
 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Sections
 3401, 6101 and note, 6106, 6120-6133), which was made permanent in 1986,
 Pub. L. No. 99-196, 99 Stat. 1350.
 
    The Union disputes the Agency's contentions.
 
    III.  Analysis and Conclusions
 
        A.  Whether the Proposal Conflicts with Management's Rights
 
                Under Section 7106 and/or with Section 7131 of the
 
                Statute
 
    The negotiability dispute resolution procedures under section 7117 of
 the Statute do not apply to this dispute insofar as it raises issues
 concerning whether matters pertaining to alternative work schedules
 interfere with management's rights or are inconsistent with the official
 time provisions of the Statute.  In American Federation of Government
 Employees, Local 1934, and Department of the Air Force, 3415 ABG, Lowry
 AFB, Colorado, 23 FLRA No. 107 (1986), we held that under the Federal
 Employee Flexible and Compressed Work Schedules Act (the Act) the "use
 of alternative work schedules was intended to be fully negotiable,"
 subject only to the provisions of the Act itself or with other laws
 superseding the 1982 Act.
 
    Where an agency objects to a proposed alternate work schedule because
 it believes that the schedule will have an "adverse agency impact"
 within the meaning of 5 U.S.C. Section 6131(b), it may present the issue
 to the Federal Service Impasses Panel for resolution as provided in 5
 U.S.C. Section 6131(c)(2).  Because alternate work schedules are "fully
 negotiable" within the limits set by the Act, there are no issues
 pertaining to the negotiability of those schedules under section 7117
 which relate to asserted conflicts with provisions of the Statute.  For
 this reason, the Agency's contentions as to section 7106 and section
 7131 of the Statute are not properly before us.
 
            B.  Whether the Proposal Is Consistent With the Act
 
    As noted above, issues as to whether a proposed alternative work
 schedule conflicts with the Act itself are appealable to the Authority
 under section 7117.  The Agency contends in essence that under section
 6121(4) and section 6122 of the Act, employees working a flexible
 schedule may not earn credit hours for Union representational activities
 on official time performed outside the employees' basic eight-hour work
 requirements.  /2/ We reject the Agency's contention, and accordingly
 conclude that the Union's proposal does not conflict with the Act.
 
    The Act provides that employee working a flexible schedule may earn
 credit hours, up to specified limits, for use in meeting their daily
 eight-hour work requirement at some other time.  5 U.S.C. Sections
 6121(4), 6122(a)(2).  To earn these credit hours employees may, at their
 option, work more than their daily basic eight-hour work requirement.
 For example, they may earn two credit hours by electing to work ten
 hours on a given day instead of eight.  5 U.S.C. Section 6121(4).  The
 two credit hours earned may be applied against an employee's basic
 eight-hour work requirement on some other day so as to reduce by two the
 number of hours the employee must actually work on that day.  5 U.S.C.
 Section 6122(a)(2).  In this respect, as the legislative history
 indicates, credit hours are "analogous" to compensatory time.  S. Rep.
 No. 365, 97th Cong. 2d Sess. at 9 (1982), reprinted in 1982 U.S. Code
 Cong. and Ad. News 565, 571.
 
    In the absence of any demonstration in the record to the contrary, if
 management scheduled a two-hour labor-management meeting during the
 employee's basic work requirement, the employee's participation in the
 meeting as a union representative on official time would count toward
 fulfillment of that work requirement.  If the employee then worked two
 additional hours that day, the employee could earn credit hours for that
 work.  All that the proposal in this case would do is provide that if
 the Agency scheduled the meeting before of after the employee's basic
 work requirement instead of during that time the employee similarly
 could earn two credit hours.  Thus, any portion of that ten-hour period
 is work time within the meaning of the Act, or "duty time," and any
 point in that ten-hour period in which an employee conducts Union
 representational activities in meetings scheduled by the Agency would
 constitute work time or "paid time" during which an employee could
 conduct such activities on "official time." /3/
 
    Our conclusion is not inconsistent with decisions in which the
 Authority has held that employees may not receive compensatory time --
 or overtime pay -- for labor-management activities performed outside
 their regularly scheduled tour of duty.  Social Security Administration
 and American Federation of Government Employees, Local 1164, AFL-CIO, 19
 FLRA No. 4 (1985) (compensatory time);  Patent Office Professional
 Association and Patent and Trademark Office Department of Commerce, 21
 FLRA No. 74 (1986) (Union Proposals 1 and 2) (overtime).  In those
 cases, the hours spent on labor-management activities outside the
 employees' tour of duty constituted nonduty time, and the prerequisite
 to compensatory time or overtime is that the activities must be
 performed on duty time.  /4/ See 5 C.F.R. Section 551.424 (1986).  /5/
 The case now before us is distinguishable.  Under the Act, hours which
 employees work in excess of their basic work requirement are not nonduty
 time but are within their regularly scheduled flexible tour of duty.
 See FPM Supplement 990-2, Book 620, Subchap. S2-3(a)(1).  Unlike the
 cases cited above, therefore, employees performing labor-management
 activities on official time in meetings scheduled by the Agency outside
 the employees' basic work requirement under the Act would be performing
 such activities during duty time.
 
    For the reasons discussed above, therefore, we conclude that the
 Federal Employees Flexible and Compressed Work Schedules Act does not
 preclude employees from earning credit hours, as intended by the Union's
 proposal, by performing union representational activities in meetings
 scheduled by the Agency outside the employee's basic work requirement.
 
    IV.  ORDER
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on the Union's proposal.  /6/
 
    Issued, Washington, D.C., January 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) See Article 9, Section 2. C. and D. of the parties' National
 Office, Regions, and Districts (NORD) II Agreement, set forth in the
 Appendix to this decision.
 
    (2) For the text of 5 U.S.C. Sections 6121(4) and 6122, see the
 Appendix to this decision.
 
    (3) "Official time" under the Statute is "paid time." Bureau of
 Alcohol, Tobacco and Fireamrs v. FLRA, 464 U.S. 89, 99 (1983);  Local
 1164, American Federation of Government Employees, AFL-CIO and Social
 Security Administration, Boston Region, 19 FLRA No. 110 (1985).  It is
 time which counts toward the fulfillment of an employees basic work
 requirement.
 
    (4) An exception is where an employee who has been wrongfully denied
 official time performs labor-management activities on nonduty time and
 then grieves the denial of official time.  The Authority has held that,
 under section 7131(d), an arbitrator may award such an employee
 compensation as the straight-time rate for the amount of time wrongfully
 denied.  U.S. Department of Justice, Bureau of Federal Prisions, Federal
 Correctional Institution, Seagoville, Texas and American Federation of
 Government Employees, Council of Prison Locals, Local No. 1637, 22 FLRA
 No. 5 (1986).
 
    (5) For the text of 5 C.F.R. Section 551.424, see the Appendix to
 this decision.
 
    (6) In finding the proposal to be within the duty to bargain, we make
 no judgment as to its merits.
 
 
                                 APPENDIX
 
    1.  Article 9, Section 2 of the parties' NORD II Agreement provides
 in pertinent part:
 
          Section 2 Official Time
 
             . . . . .
 
 
          C.
 
          Stewards shall be granted official time for participation for,
       or on behalf of, the Union in the meetings with the Employer
       (including time to travel to and from such meetings) described in
       subsection D. below.  For each of the meetings described in
       subsection D. one (1) steward only is entitled to time.
       Notwithstanding the above, in cases where more than fifty (50)
       employees are in attendance, or where there are employees from
       more than one area of representation, two (2) stewards will be
       entitled to time.
 
          D.
 
          The meetings referred to in subsection C. above are:
 
          1.  meetings with the Employer concerning personnel policies,
       practices or other general conditions of employment or any other
       matter covered by 5 U.S.C. 7114(a)(2)(A);
 
          2.  meetings to discuss or present unfair labor practice
       charges or unit clarification petitions;
 
          3.  meetings for the purpose of presenting replies to proposed
       termination of probationers;
 
          4.  oral replies to notices of proposed disciplinary, adverse
       or unacceptable performance actions;
 
          5.  meetings to present appeals in connection with statutory or
       regulatory appeal procedures in which the Union is designated as
       the representative;
 
          6.  meetings for the purpose of presenting reconsideration
       replies in connection with the denial of within-grade increases;
 
          7.  examinations of employees in the unit by a representative
       of the Employer in connection with an investigation if:
 
          (a) the employee reasonably believes that the examination may
       result in disciplinary action against the employee and
 
          (b) the employee requests representation;
 
          8.  tax audits or unit employees that are conditions of
       employment when the employees request representation;
 
          9.  grievance meetings and arbitration hearings;  and,
 
          10.  meetings of committees on which Union representatives are
       authorized membership pursuant to this Agreement.
 
    2.  5 U.S.C. Section 6121 defines "basic work requirement" and
 "credit hours" as follows:
 
          Section 6121.  Definitions
 
          For purposes of this subchapter --
 
             . . . . .
 
 
          (3) "basic work requirement" means the number of hours,
       excluding overtime hours, which an employee is required to work or
       is required to account for by leave or otherwise;
 
          (4) "credit hours" means any hours, within a flexible schedule
       established under section 6122 of this title, which are in excess
       of an employee's basic work requirement and which the employee
       elected to work so as to vary the length of a workweek or a
       workday (.)
 
    5 U.S.C. Section 6122 provides:
 
          Section 6122.  Flexible schedules;  agencies authorized to use
 
          (a) Notwithstanding section 6101 of this title, each agency may
       establish, in accordance with this subchapter, programs which
       allow the use of flexible schedules which include --
 
          (1) designated hours and days during which an employee on such
       a schedule must be present for work;  and
 
          (2) designated hours during which an employee on such a
       schedule may elect the time of such employee's arrival at and
       departure from work, solely for such prupose or, if and to the
       extent permitted, for the purpose of accumulating credit hours to
       reduce the length of the workweek or another workday.
 
          An election by an employee referred to in paragraph (2) shall
       be subject to limitations generally prescribed to ensure that the
       duties and requirements of the employee's position are fulfilled.
 
          (b) Notwithstanding any other provision of this subchapter, but
       subject to the terms of any written agreement referred to in
       section 6130(a) of this title, if the head of an agency determines
       that any organization within the agency which is participating in
       a program under subsection (a) is being substantially disrupted in
       carrying out its functions or is incurring additional costs
       because of such participation, such agency head may --
 
          (1) restrict the employee's choice of arrival and departure
       time,
 
          (2) restrict the use of credit hours, or
 
          (3) exclude from such program any employee or group of
       employees.
 
    5.  5 C.F.R. Section 551.424 (1986) p