26:0654(81)NG - NFFE, Local 1655, and Illinois NG -- 1987 FLRAdec NG



[ v26 p654 ]
26:0654(81)NG
The decision of the Authority follows:


 26 FLRA No. 81
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1655
 Union
 
 and
 
 ILLINOIS NATIONAL GUARD
 Agency
 
                                            Case No. 0-NG-1245
 
                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)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of six Union proposals.  /1/
 
    II.  Proposal 2
 
       TOURS OF DUTY:  If the Employer proposes to change the workweek
       from the regular Monday through Friday schedule (standard
       workweek), the Employer and the Union will meet and negotiate on
       the new tours.  The Employer shall give the employee at least ten
       (10) days' notice prior to the first administrative workweek in
       which the change in tours occurs except in emergencies.
       Nonstandard tours shall include the four (4) day week where agreed
       to by the parties.  (Only the under-lined portions of the proposal
       are in dispute.)
 
    A.  Positions of the Parties
 
    The Agency contends that the second sentence of Proposal 2 concerning
 notice to employees of changes in work schedules is inconsistent with 5
 C.F.R. Section 610.121, a Government-wide regulation, and nonnegotiable
 under section 7117(a)(1).
 
    The Agency also contends that the last sentence of Proposal 2, to the
 extent that it proposes an alternate work schedule under the Work
 Schedules Act, is nonnegotiable because National Guard technicians are
 not subject to the Work Schedules Act.  /2/ Specifically, the Agency
 claims that National Guard technicians are excluded from the Act by 32
 U.S.C. Section 709(g), which provides that the Secretaries of the Army
 and the Air Force shall prescribe technicians' hours of work
 "(n)otwithstanding sections 5544(a) or 6101(a) of title 5 or any other
 provision of law(.)" /3/
 
    In addition, the Agency argues that the last sentence of the proposal
 is outside the duty to bargain under section 7117(a)(1) of the Statue
 because it is inconsistent with 5 U.S.C. Section 6132 and under section
 7117(a)(2) because it conflicts with Technician Personnel Regulation
 (TPR) 600 (601.1), Section 1-1(a) and 1-4(b) an agency regulation for
 which a compelling need exists under the Authority's regulations.
 Finally, the Agency contends that the last sentence of the proposal
 directly interferes with management's rights to assign work under
 section 7106(a)(2)(B) and to determine the numbers, types and grades of
 employees and positions assigned to a work project or tour of duty under
 section 7106(b)(1).
 
    The Union contends that the second sentence of Proposal 2 is
 negotiable because 5 C.F.R. Section 610.121 does not apply to National
 Guard technicians.
 
    As to the last sentence of Proposal 2, the Union contends that
 although certain provisions of the Work Schedules Act do not apply to
 National Guard technicians, most of the Act does apply.  In support of
 this claim, the Union cites 5 U.S.C. Sections 6121(2) and 2105.  In
 particular, the Union argues that 32 U.S.C. Section 709(g) and the Work
 Schedules Act are basically consistent and, with a few accommodations,
 can be applied together.  The Union concludes, therefore, that the last
 sentence of Proposal 2 raises issues that must be resolved by the
 Federal Service Impasses Panel FSIP).
 
    B.  Analysis and Conclusions
 
    1.  Whether the Second Sentence of Proposal 2 is Inconsistent with a
 Government-wide Regulation
 
    The second sentence of Proposal 2 is to the same effect as Provision
 1 in National Association of Government Employees, Local R14-7 and
 Kansas Army National Guard, 21 FLRA No 4 (1986).  Provision 1 in that
 case required the agency to provide the union and unit employees with 7
 day's advance notice of any change in work schedules.  Based on the
 record in that case, and on its decision in American Federation of
 Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort
 Detrick, Maryland, 17 FLRA 769 (1985), the Authority held that the
 provision was outside the duty to bargain under section 7117(a)(1) of
 the Statute because it was inconsistent with 5 C.F.R. Section 610.121, a
 Government-wide regulation.
 
    In this case, the Union contends that 5 C.F.R. Section 610.121 does
 not apply to National Guard technicians.  The Union argues that because
 32 U.S.C. Section 709(g)(1) and (2) exempts technicians from the
 requirements of 5 U.S.C. Section 6101(a), they are also exempt from
 regulations issued by the Office of Personnel Management (OPM) to
 implement that provision.  However, the Union points to no provision of
 chapter 61 of title 5 of the Code of Federal Regulations which contains
 an exclusion of National Guard technicians.  our review of the relevant
 regulations in Kansas Army National Guard disclosed no exclusion.
 Rather, the terms of those regulations support the conclusion that
 National Guard technicians are covered by chapter 61.
 
    In particular, 5 C.F.R. Section 610.101 provides that chapter 61 of
 title 5 of the Code of Federal Regulations applies to employees covered
 by chapter 55 of title 5 of the Code of Federal Regulations.  Chapter 55
 applies to employees in or under an Executive agency as defined in 5
 U.S.C. Section 105.  That definition includes employees of the military
 departments;  National Guard technicians are employees of the military
 departments.  32 U.S.C. Section 709(d).  While chapter 55 also lists
 numerous exclusions from its coverage, some derived from statutory
 provisions similar to 32 U.S.C. Section 709(g), it does not list
 National Guard technicians.  Moreover, 5 C.F.R. Section 610.102 defines
 "employee" to mean an employee of an agency to which chapter 61 applies
 and "agency" to include the military departments.  By these definitions
 as well, National Guard technicians are subject to chapter 61 of title 5
 of the Code of Federal Regulations.
 
    Because technicians are included within the definitions of employees
 to whom chapter 61 applies and in the absence of any express exclusion
 by OPM of technicians from the coverage of 5 C.F.R. Section 610.121, we
 must conclude that they were intended by OPM to be covered.  Under
 section 7117 of the Statute, moreover, we do not rule on the validity of
 a Government-wide regulation.  See American Federation of Government
 Employees v. FLRA, 794 F.2d 1013 (5th Cir. 1986), enforcing American
 Federation of Government Employees, AFL-CIO, National Council of Grain
 Inspection Locals and Department of Agriculture, Federal Grain
 Inspection Service, 18 FLRA 530 (1985).
 
    Finally, as noted above, the Authority's decision that Provision 1 in
 Kansas Army National Guard was inconsistent with 5 C.F.R. Section
 610-121 was based on its decision in Fort Detrick, 17 FLRA 769 (1985).
 Subsebquently, in National Association of Government Employees, Local
 R7-23 and Department of the Air Force, Scott Air Force Base, Illinois,
 23 FLRA No. 97 (1986) (Proposal 1), we reinterpreted 5 C.F.R. Section
 610.121 and revised our holding in Fort Detrick.  See also our decision
 on remand in Fort Detrick, 25 FLRA No. 75 (1987), in which, based on
 Scott Air Force Base, we revised the rationale for our holding in 17
 FLRA 769.  Nothing in Scott Air Force Base, however, would change the
 result here.  In that case we held that proposals requiring 7 days' or
 more advance notice of changes in work schedules would be found
 inconsistent with 5 C.F.R. Section 610.121 if they did not provide,
 consistent with law and regulation, an exception to the notice
 requirement.  In particular, we held that 5 U.S.C. Section 6101(a)(3)(A)
 and 5 C.F.R. Section 610.121 permitted changes to employee work
 schedules within the notice period when management determined that
 changes to schedules were necessary to prevent the agency from being
 "handicapped" in the execution of its functions or to forestall a
 substantial increase in operational costs.  5 U.S.C. Section 6101(a)(3).
  We also held that the proposal in that case, which permitted management
 to change work schedules in an emergency without the required notice,
 was a narrower exception than allowed by law and regulation and thus was
 inconsistent with 5 C.F.R. Section 610.121.  The second sentence of
 Proposal 2 in this case likewise provides an exception to the proposal's
 requirement of 10 days' advance notice only in an emergency.  Thus, for
 the reasons set forth in Scott Air Force Base, the second sentence of
 Proposal 2 in inconsistent with 5 C.F.R. Section 610.121 and outside the
 duty to bargain under section 7117(a)(1) of the Statute.
 
    2.  Whether the Last Sentence of Proposal 2 is Negotiable under the
 Federal Employees Flexible and Compressed Work Schedules Act
 
    By its terms, the Work Schedules Act applies to National Guard
 technicians.  Specifically, 5 U.S.C. Section 6121(a) defines "employees"
 in terms of the definition set forth in 5 U.S.C. Section 2105, which
 includes National Guard technicians.  While the Agency concedes this
 point, it argues that the Work Schedules Act is inconsistent with 32
 U.S.C. Section 709(g)(2).  We find that the Work Schedules Act and 32
 U.S.C. Section 709(g)(2) are not inconsistent and are capable of being
 applied together.  Since we find that National Guard technicians are
 subject to the Work Schedules Act, we also find that the last sentence
 of Proposal 2 is negotiable.  See American Federation of Government
 Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry
 AFB, Colorado, 23 FLRA No. 107 (1986).
 
    The Agency claims that because the Work Schedules Act provides for
 the payment of overtime compensation, 5 U.S.C. Sections 6123, 6124 and
 6128, it conflicts with 32 U.S.C. Section 709(g)(2) which limits
 National Guard technicians to compensatory time.  In our view, however,
 even assuming that a limited conflict does exist, it would not affect
 the applicability of other portions of the Work Schedules Act to
 National Guard technicians.  While technicians could only receive
 compensatory time in those instances where they would otherwise be
 entitled to overtime compensation, that is not sufficient reason to
 conclude that technicians are completely precluded from bargaining on
 the establishment of flexible and compressed work schedules.  Where two
 laws are capable of existing together they should be enforced to the
 extent that they are not in conflict.  See Radzanower v. Touche, Ross
 and Co., 426 U.S. 148, 154 (1976).  In order for us to conclude that 32
 U.S.C. Section 709(g)(2) takes precedence over the Work Schedules Act,
 it must be demonstrated that the two laws conflict.
 
    The Agency's basic claim is that the requirements of the Work
 Schedules Act conflict with the purposes Congress intended to achieve in
 enacting 32 U.S.C. Section 709(g)(2).  That is, as the legislative
 history indicates, Congress excepted National Guard technicians from the
 requirements of 5 U.S.C. Section 6101(a) to permit the Guard to require
 technicians to work irregular work schedules where that was necessary to
 accomplish the Agency's mission.  S. Rep. No. 1446, 90th Cong. 2nd Sess.
 16 (1968);  H.R. Rep. No. 1823, 90th Cong. 2nd Sess. 13 (1968).
 Congress found that the nature of the work performed by technicians was
 such that it could not always be accomplished within the regularly
 scheduled 5 day, 40 hour workweek contemplated by 5 U.S.C. Section
 6101(a).  Thus, 32 U.S.C. Section 709(g)(2) was intended to free the
 Secretaries of the Army and the Air Force, and their delegates within
 the National Guard Bureau, from the requirements of a regularly
 scheduled workweek and for paying overtime when technicians were
 required to work irregular hours.
 
    The Agency has failed to show, however, that the establishment of
 flexible and compressed work schedules is in conflict with its authority
 to require irregular work schedules.  The Agency acknowledges that under
 32 U.S.C. Section 709(g)(2) it has the authority even without the Work
 Schedules Act to establish flexible and compressed work schedules for
 National Guard technicians.  Agency Statement of Position at 3-4.
 Moreover, the record indicates that the National Guard had experimented
 with alternate work schedules even before experiments were authorized
 for other Government agencies by the Federal Employees Flexible and
 Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755.
  Agency Statement of Position at 4.  Existing National Guard regulations
 provide procedures for approving the establishment of alternate work
 schedules at Guard installations, Agency Statement of Position at 4,
 and, according to the Union, the Guard has in fact approved compressed
 work schedules at specific installations.  Union Response to Agency
 Statement of Position at 8-9.  The practice of the National Guard,
 therefore, belies the claim that the establishment of flexible and
 compressed work schedules is inconsistent with its authority under 32
 U.S.C. Section (g)(2).  If that were the case, in approving alternate
 work schedules the Guard would have been acting beyond the scope of that
 authority.
 
    Even if flexible and compressed work schedules are considered
 "regular" schedules which could limit the Agency's ability to operate,
 the Agency is not without recourse under the Work Schedules Act.  If the
 Agency determines that the establishment of an alternate work schedule,
 or the operation of such a schedule once established, is having an
 "adverse impact" on agency operations it may refuse to establish the
 schedule or decide to terminate it.  5 U.S.C. Section 6131.  Where the
 Agency demonstrates to the satisfaction of the Federal Service Impasses
 Panel that an alternate work schedule will have, or is having, an
 adverse impact, it will not be required to implement that schedule.
 Thus, the Work Schedules Act provides protection for the Agency's need
 to use irregular work schedules where that is necessary.  The Work
 Schedules Act is therefore consistent with 32 U.S.C. Section 709(g)(2).
 
    We find that the Agency has misinterpreted the Scope of the
 prohibition in 5 U.S.C. Section 6132 against coercion of an employee
 concerning participation in flexible or compressed work schedule
 programs.  Forcing or attempting to force an employee, for example, to
 work a compressed schedule is different from determining that an
 employee must work overtime.  Thus, contrary to the position of the
 Agency, 5 U.S.C. Section 6132 does not limit its authority to determine
 that employees must work irregular work schedules.  In this respect as
 well the Work Schedules Act is not inconsistent with 32 U.S.C. Section
 709(g)(2).
 
    Finally, the Agency contends that Congress intends it to have final
 control over the establishment of technicians' work schedules and that
 for it to be subject to the Work Schedules Act would deprive it of that
 control.  That is, the Work Schedules Act cannot be reconciled with the
 exclusive authority granted under 32 U.S.C. Section 709(g)(2).  There is
 no evidence, however, that the Agency's authority was intended to be
 exclusive.  As indicated above, the Work Schedules Act is not
 inconsistent with the purposes for which the Agency was granted
 authority under 32 U.S.C. Section 709(g)(2).  Thus the Agency is not
 deprived of that authority by being required to exercise it through the
 procedures and under the limitations of the Work Schedules Act.  We
 conclude, therefore, that the Work Schedules Act and 32 U.S.C. Section
 709(g)(2) do not conflict in this respect either.
 
    This case is distinguishable from New Jersey Air National Guard v.
 FLRA, 677 F.2d 276 (3d Cir. 1982), cert. denied, AFGE v. FLRA, 459 U.S.
 988 (1982), and similar cases.  It was determined in those cases that
 the provisions of the Statute requiring negotiated grievance procedures
 which terminate in binding arbitration were in conflict with the
 provisions of the National Guard Technicians Act which provided for
 final decision by the Adjutant General.  As we have shown above,
 however, 32 U.S.C. Section(g)(2) and the Work Schedules Act do not
 conflict.
 
    3.  Whether the Last Sentence of Proposal 2 Interferes with
 ManagementS Rights or Conflicts with an Agency Regulation for Which a
 Compelling Need Exists
 
    In American Federation of Government Employees, Local 1934 and
 Department of the Air Force, 3415 ABG, Lowry, Colorado, 23 FLRA No. 107
 (1986), we held that because alternate work schedules are "fully
 negotiable" within the limits set by the Work Schedules Act, there are
 no issues pertaining to the negotiability of those schedules which the
 Authority will consider under section 7117 of the Statute, except
 whether a proposed schedule is consistent with the Act.  For this
 reason, the Agency's contentions as to sections 7106 and 7117(a)(2) of
 the Statute are not properly before us.
 
    III.  Proposal 5
 
          ALTERNATIVE WORK SCHEDULES:  Employees, at their election, may
       work longer than eight (8) hours per day or forty (40) hours in a
       given week, so long as the total number of hours worked for a two
       (2) week period (exclusive of nonpaid lunch period) is eighty (80)
       hours.  This will allow employees to work four (4), ten (10) hour
       days per week.
 
    A.  Position of the Parties
 
    The contentions of the Agency and the Union with respect to the
 negotiability of this proposal are the same as their contentions as to
 the negotiability of the last sentence of Proposal 2.  See section II.
 A. of this decision.
 
    B.  Analysis and Conclusion
 
    For the reasons set forth in our analysis of the last sentence of
 Proposal 2, see section II. B 2-3. of this decision, we find that
 Proposal 5 is negotiable under the Work Schedules Act.
 
    IV.  Proposal 3
 
          SHIFT AND TOUR WORK:  Shift and/or tour employees who work in
       continuous operations shall rotate through various shift hours.
       This rotation will be on a monthly basis.  Unnecessary rotation of
       employees from shift to shift or tour to tour shall not be
       practiced.
 
          These tours of work shall consist of a total of eighty (80)
       hours over a two (2) week period.  The days off will be
       consecutive and fall on Saturday and Sunday.  Shift and/or tour
       schedules will be posted at least ten (10) days in advance of the
       assignment.  Tours will be negotiated between the Employer and the
       Union.  When changes are to be made in an individual's shift, tour
       of duty or hours of work, a minimum of ten (10) days' notice will
       be given the employee.  An employee will have at least sixty-four
       (64) hours, normal two (2) day "weekends" off between shift and/or
       tour changes.  (Only the underlined portions of the proposal are
       in dispute.)
 
    A.  Positions of the Parties
 
    The Agency contends that the second sentence of the second paragraph
 of Proposal 3 and the last sentence of that paragraph are nonnegotiable
 under section 7106(a)(2)(B) of the Statute.  The Agency argues that
 these parts of the proposal would preclude management from assigning
 work to employees who have not had two consecutive days off or from
 assigning work on Saturday and Sunday.  The Agency also contends that
 the third and fifth sentences of the second paragraph are inconsistent
 with 5 C.F.R. Section 610.121, a Government-wide regulation.
 
    The Union argues that the proposal does not interfere with
 management's right to assign work and, as with Proposal 2, that National
 Guard technicians are not subject to 5 C.F.R. Section 610.121.
 
    B.  Analysis and Conclusions
 
    1.  Whether the Third and Fifth Sentences of the Second Paragraph of
 Proposal 3 are Inconsistent with a Government-wide Regulation
 
    For the reasons discussed above in connection with Proposal 2, see
 section II. B. 1., we find, contrary to the Union, that National Guard
 technicians are subject to 5 C.F.R. Section 610.121.
 
    Furthermore, because the third and fifth sentences of the second
 paragraph of Proposal 3 prescribe a 10-day notice period for changes in
 work schedules, but make no provision for schedules to be changes with
 less than the required notice, that portion of the proposal is
 inconsistent with 5 C.F.R. Section 610.121.  In International
 Association of Machinists and Aerospace Workers, Local Lodge 2424 and
 Department of the Army, Aberdeen Proving Ground, Aberdeen Proving
 Ground, Maryland, 24 FLRA No. 55 (1986), we held that a proposal which
 absolutely restricted management from making any schedule changes until
 the prescribed notice period expired was inconsistent with 5 U.S.C.
 Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a)(2).  We found that
 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. 610.121 permit management to
 change employee work schedules with less than seven days notice when it
 determines that otherwise the agency would be "handicapped" in carrying
 out its mission or costs would substantially increased.
 
    The proposal in Aberdeen Proving Ground was nonnegotiable becuase it
 would have prevented management from changing work schedules as provided
 under law and regulation.  The portion of Proposal 3 at issue here
 similarly would prevent management from changing employee work schedules
 even where it has determined that, without the changed schedules, it
 would be "handicapped" in carrying out its mission or would be subject
 to a substantial increase in costs.  5 U.S.C. Section 6101(a)(3).  For
 the reasons set forth in Aberdeen Proving Ground, therefore, the third
 and fifth sentences of the second paragraph of Proposal 3 are
 inconsistent with law and Government-wide regulation and are outside the
 duty to bargain under section 7117(a)(1) of the Statute
 
    2.  Whether the Second and Last Sentences of the Second Paragraph of
 Proposal 3 Interfere with Management Rights
 
    By providing that employees' days off shall be consecutive and shall
 be on Saturday and Sunday, the second sentence of the second paragraph
 of Proposal 3 simply prescribes a basic workweek of Monday through
 Friday.  That is, the proposal provides for employees to work their 40
 hour basic weekly work requirement between Monday and Friday.  Any work
 they would perform on Saturday and/or Sunday, therefore, would of
 necessity be in an overtime status.  Thus, this portion of Proposal 3
 would not prevent management from requiring employees to work on
 Saturday and/or Sunday.  Rather, if management did require employees to
 work on those days it would have to grant them compensatory time under
 32 U.S.C. Section 709(g).  See Proposal 8 below.  Contrary to the
 Agency, therefore, we find that the second sentence of the second
 paragraph of Proposal 3 does not interfere with managementS right to
 assign work under section 7106(a)(2)(B) of the Statute and is within the
 Agency's duty to bargain.  See American Federation of State, County and
 Municipal Employees, Local 2477 and Library of Congress, 14 FLRA (1984).
 
    We find that the portion of Proposal 3 requiring employees to have at
 least 64 hours off between shift or tour changes is outside the duty to
 bargain.  This portion of Proposal 3 is essentially the same as Proposal
 2 in National Association of Government Employees, Local R14-8 and
 Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17
 (1986), which we found to violate management's right to assign work.
 The proposal in that case would have prohibited the agency from
 scheduling an employee to work on a shift if the employee had worked
 during the previous eleven hours, regardless of the agency's actual work
 requirements and whether that employee's particular skills were needed
 on a particular shift.  We found that the proposal would place a
 condition upon the agency's exercise of its right to assign work and
 could prevent the Agency from determining what duties were to be
 performed on a particular shift in violation of section 7106(a)(2)(B).
 Similarly, Proposal 3 here would prevent the Agency from scheduling
 employees to work on a shift if that employee had worked during the
 previous 64 hours, regardless of the Agency's work requirements.  For
 the reasons set forth more fully in VA Medical Center, Topeka, we
 conclude that Proposal 3 here violates management's right to assign work
 and is outside the duty to bargain.
 
    While the Union states that its proposal is intended to reduce the
 "adverse effects" upon employees who have their tour of duty changed,
 the Union does not specifically claim that the proposal constitutes an
 appropriate arrangement within the meaning of section 7106(b)(3) of the
 Statute.  However, as to the third and fifth sentences of the second
 paragraph of Proposal 3, since section 7106(b)(3) applies only when
 management exercises one of the reserved rights set out elsewhere in
 section 7106, it is unnecessary to address the Union's claim that this
 portion of the proposal constitutes an appropriate arrangement.  See
 National Federation of Federal Employees, Local 29 and Department of the
 Army, Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986).
 Further, even if the last sentence of the second paragraph of Proposal 3
 were an "arrangement" for employees adversely affected by the exercise
 of a management right, that portion of the proposal would not be an
 "appropriate arrangement" under section 7106(b)(3) because it would
 totally abrogate the exercise of management's right to assign work.  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) (Proposal 1).
 
    V.  Proposal 8
 
          OVERTIME AND COMPENSATORY TIME:  Any employee who works, with
       the approval of his/her Employer, more than forty (40) hours over
       a one (1) week period, shall be compensated for such work by
       either receiving overtime pay or compensatory time off those hours
       in excess of forty (40) hours.  Such compensation shall be awarded
       under controlling regulations and/or law.
 
    A.  Positions of the Parties
 
    The Agency contends that this proposal is inconsistent with 32 U.S.C.
 Section 709(g) because it provides for the payment of overtime and 32
 U.S.C. Section 709(g) prohibits the payment of overtime compensation to
 National Guard technicians, mandating compensatory time instead.
 
    The Union contends that the proposal would cover both National Guard
 technicians and employees in the competitive service and merely provides
 for the appropriate entitlement as provided by law.
 
    B.  Analysis and Conclusion
 
    The Union provides no evidence to support its claim that the unit of
 exclusive representation involved in this case includes employees in the
 competitive service as well as technicians.  In the absence of that
 evidence we presume that the unit includes only technicians.  As applied
 to National Guard technicians, the proposal provides for the payment of
 overtime or compensatory time, consistent with law, for hours of work in
 excess of 40 hours per week.  The defect in this proposal is that
 National Guard technicians cannot, consistent with law, receive overtime
 compensation.  32 U.S.C. Section 709(g).  The proposal prescribes a
 legal impossibility.  See National Federation of Federal Employees,
 Local 1445 and Alabama Air National Guard, 16 FLRA 1094 (1984).
 Proposal 8, therefore, is outside the duty to bargain under section
 7117(a)(1) of the Statute.
 
    VI.  Proposal 10
 
          MAKE READY AND CLEAN-UP TIME:  Incidental duties that are
       directly connected with performance of a job, such as obtaining
       and replacing working tools or materials, undergoing inspections,
       and similar tasks are considered part of the job requirements
       within the established tour of duty.  In this respect, technicians
       will be allowed ten (10) minutes at the start and fifteen (15)
       minutes at the end of the work day.  In those areas where the
       nature of the work causes clothing to become soiled, employees
       will be allowed to change clothes during these periods.
 
    A.  Positions of the Parties
 
    The Agency contends that this proposal interferes with its right to
 assign work under section 7106(a)(2)(B) of the Statute.
 
    The Union disputes the Agency's contention.
 
    B.  Analysis and Conclusion
 
    Proposal 10 has the same effect as proposal 2 in National Association
 Of Government Employees, SEIU, AFL-CIO and National Guard Bureau,
 Adjutant General, 26 FLRA No. 62 (1987).  The proposal in that case
 would have prevented management from assigning other duties to employees
 during time periods which were set aside for personal cleanup.  We held
 that the proposal directly interfered with management's right to assign
 work under section 7106(a)(2)(B).  For the reasons set forth in National
 Guard Bureau, Proposal 10, which similarly provides for periods of
 cleanup, directly interferes with management's right to assign work and
 is outside the duty to bargain.
 
    VII.  Proposal 12
 
          EARLY DISMISSAL FOR HAZARDOUS WEATHER CONDITIONS:  Early
       dismissal or closure of an organization is warranted due to
       hazardous weather conditions, employees will be excused without
       charge to annual leave for the specified period of time prior to
       the activity's normal closing time or for the entire workday.  If
       the closing of the activity occurs prior to the workday, employees
       on previously approved leave will not be charged leave.  (Only the
       underlined portion of the proposal is in dispute.)
 
    A.  Position of the Parties
 
    The Agency contends that the last sentence of the proposal is
 inconsistent with Federal Personnel Manual (FPM) Supplement 990-2, Book
 610-A-4a., a Government-wide regulation, and outside the duty to bargain
 under section 7117(a)(1) of the Statute.
 
    The Union contends that the regulatory provision cited by the Agency
 does not apply to National Guard technicians.
 
    B.  Analysis and Conclusion
 
    There is no dispute as to whether Proposal 12 is inconsistent with
 the provision of FPM Supplement 990-2, Appendix A which is cited by the
 Agency.  The only issue therefore is whether that provision is a
 Government-wide regulation within the meaning of section 7117(a)(1)
 which can bar negotiations on conflicting union proposals.
 
    We find that the provision cited by the Agency is not a regulation
 under section 7117(a)(1).  Appendix A is entitled "guidelines for
 Dismissal and Leave Treatment of Federal Employees During Emergency
 Situations." The text of the Appendix makes clear that the matters set
 forth in the Appendix are guidance to agencies which can be adopted or
 varied at the agencies' discretion:  "adoption of these guidelines in
 whole or in part by any agency is at its discretion." FPM Supplement
 990-2, Appendix A at page F-1.  The provision relied on by the Agency,
 therefore, is not a "binding declaration of official policy" so as to
 constitute a "regulation" within the meaning of section 7117(a)(1).  See
 National Federation of Federal Employees, Local 1497 and Department of
 the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151 (1982).  Thus,
 whether an agency requires an employee on previously approved leave to
 be charged for that leave when agency operations are suspended by
 administrative decision is a matter of internal agency regulation.
 Compare Lexington-Blue Grass Army Depot, Lexington, Kentucky and
 American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA
 No. 6 (1986) (no compelling need for agency regulation requiring
 employees to take annual leave during periods of partial closure).  The
 Agency in this case does not rely on an internal regulation to bar
 negotiation of Proposal 12.  Because the provision of FPM Supplement
 990-2, Appendix A on which the Agency relies is not a "regulation"
 within the meaning of section 7117(1)(1), therefore, it does not
 preclude negotiations on Proposal 12.  In view of our determination that
 the provision of the FPM relied on by the Agency is not a "regulation,"
 we need not address the issue as to whether National Guard technicians
 are subject to that provision.
 
    VIII.  Order
 
    The Union's petition for review is dismissed as to the second
 sentence of Proposal 2, the third, fifth, and last sentences of the
 second paragraph of Proposal 3, Proposal 8, and Proposal 10.  The Agency
 must bargain on the last sentence of Proposal 2, the second sentence of
 the second paragraph of Proposal 3, and on Proposals 5 and 12.  /4/
 
    Issued, Washington, D.C., April 28, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Union appealed twelve proposals to the Authority.  The
 Agency, however, contests the negotiability of only six of those
 proposals.  The remaining six proposals will not be considered further
 here.
 
    (2) 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.
 
    (3) For the text of 32 U.S.C. Section 709(g) see the Appendix to this
 decision.
 
    (4) In finding these proposals and portions of proposals to be within
 the duty to bargain, we express no opinion as to their merits.
 
 
                                 APPENDIX
 
    /3/ 32 U.S.C. Section 709(g) provides as follows:
 
             Section 709 Technicians:  Employment, use, status
 
                       . . . .
 
 
    (g)(1) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
 other provision of law, the Secretary concerned may, in the case of
 technicians assigned to perform operational duties at air defense sites
 --
 
          (A) prescribe the hours of duties;  (B) fix the rates of basic
       compensation;  and (C) fix the rates of additional compensation;
 
    to reflect unusual tours of duty, irregular additional duty, and work
 on days that are ordinarily nonworkdays.  Additional compensation under
 this subsection may be fixed on an annual basis and is determined as an
 appropriate percentage, not in excess of 12 percent, of such part of the
 rate of basic pay for the position as does not exceed the minimum rate
 of basic pay for GS-10 of the General Schedule under section 5332 of
 title 5.
 
    (2) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
 other provision of law, the Secretary concerned may, for technicians
 other than those described in clause (1) of this subsection, prescribe
 the hours of duty for technicians.  Notwithstanding sections 5542 and
 5543 of title 5 or any other provision of law, such technicians shall be
 granted an amount of compensatory time off from their scheduled tour of
 duty equal to the amount of any time spent by them i