27:0090(15)NG - AFGE Local 1974 and Air Force HQ, 3415th ABG (ATC), Lowry AFB, CO -- 1987 FLRAdec NG



[ v27 p90 ]
27:0090(15)NG
The decision of the Authority follows:


 27 FLRA No. 15
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 1974, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE, 
 HEADQUARTERS 3415th AIR BASE 
 GROUP (ATC), LOWRY AIR FORCE 
 BASE, COLORADO
 Agency
 
                                            Case No. O-NG-1322
 
                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 two proposals.  The proposals were presented in
 negotiations over the impact and implementation of an Agency decision to
 expand commissary hours to allow Sunday openings.  We find that the
 proposals are nonnegotiable.
 
                              II.  Proposal 1
 
          5.  When management should have scheduled an employee to work,
       as part of the employee's regularly scheduled administrative work
       week and did not, the employee will receive premium pay for those
       hours that were not part of the employee's administrative work
       week at the start of his/her set tour of duty.  The tour of duty
       will not be changed without notifying the employee at least seven
       days in advance.
 
          (Only the underscored portion is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency argues that this proposal conflicts with a Government-wide
 regulation, 5 C.F.R Section 610.121, and is, therefore, nonnegotiable.
 /1/ The Union asserts that the proposal would only incorporate in the
 contract legal and regulatory requirements relating to changes in tour
 of duty.  It further argues that the proposal does not excessively
 interfere with the Agency's management rights.
 
                       B.  Analysis and Conclusions
 
    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) we held that proposal 1 which required the agency to give 14
 days' notice before changing work schedules, except in emergencies, was
 outside the duty to bargain.  In that decision we noted that applicable
 law /2/ and regulation /3/ require that employees must have a minimum of
 7 days advance notice of a change in work schedule unless the change is
 necessary to prevent an agency from being handicapped in the execution
 of its functions or to forestall a substantial increase in operational
 costs.  Because the proposal in that case restricted the agency's
 ability to revise work schedules, within the 7-day notice period to
 emergencies, it was narrower than the exceptions permitted under the
 statutory framework and, therefore, inconsistent with law and
 regulation.  The present proposal would not allow a change in tour of
 duty where less than 7 days notice had been given to employees even when
 the two circumstances specified by the governing legal and regulatory
 authorities exist.  The proposal would, therefore, impermissibly
 restrict the Agency's right, under law and regulation, to revise
 employee work schedules.  For that reason we find that the disputed
 portion of 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, is outside the duty to bargain.
 
    Because we find that this proposal is nonnegotiable based on its
 inconsistency with 5 U.S.C. Section 6101 and 5 C.F.R. Section 610.121 we
 do not address the Union's argument that the proposal does not
 excessively interfere with the Agency's exercise of its rights under
 section 7106.  See, for example, National Treasury Employees Union, NTEU
 Chapter 202 and Department of the Treasury, Bureau of Government
 Financial Operations, 22 FLRA No. 58 (1986) (Proposal 1).
 
                             III.  Proposal 2
 
          7.  The union and management agree that the commissary operates
       on a man-hour basis using full-time equivalency positions to
       accomplish their mission.  When a position for full-time permanent
       becomes available through the use of the allotted man-hours
       management will notify the union and the part time career
       employees already working in the same or similar work will be
       placed in the position noncompetitively.  This would not apply to
       filling vacancies that occur for existing FTP positions.
 
          (Only the underscored portion is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency argues that this proposal is nonnegotiable becauses it
 conflicts with Government-wide regulations -- 5 C.F.R. Section
 300.103(a) and Federal Personnel Manual (FPM) Chapter 335, subchapter
 1-4, requirement 4, and with the Agency's right under section
 7106(a)(2)(C) to make selections from any appropriate source.  It also
 asserts that this proposal is unrelated to the change in commissary
 hours which is the focus of the bargaining.
 
    The Union asserts that the proposal does not relate to filling
 positions but, rather, concerns converting part-time employees to
 full-time status.  Consequently, it contends that the authorities relied
 upon by the Agency do not apply.
 
                       B.  Analysis and Conclusions
 
                           1.  Procedural Issue
 
    In addition to claims that this proposal conflicts with law and
 Government-wide regulation, the Agency has raised a threshold question
 of its duty to bargain under the circumstances of this case.  This
 question should be resolved in other appropriate proceedings.  But the
 claimed existence of a threshold duty to bargain question does not
 preclude us from determining the negotiability of proposals that are
 otherwise properly before us.  Anerican Federation of Government
 Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA No. 89
 (1987).
 
                  2.  The Interpretation of the Proposal
 
    The Union's intended meaning of the proposal is not consistent with
 the language of the proposal.  The proposal, as written, requires that,
 where a full-time position is created, part-time employees performing
 the same or similar work will be placed in the position
 noncompetitively.  The Union's explanation of the proposal, on the other
 hand, suggests that what is involved is not filling positions but
 converting part-time positions to full-time positions.  For purposes of
 this decision, we interpret the proposal consistent with its language as
 requiring noncompetitive placement of current part-time employees in new
 full-time positions created as a result of expanded commissary hours.
 Consequently, the legal and regulatory authorities which are applicable
 are those which relate to filling positions.
 
           3.  The Proposal Interferes with the Right to Select
 
    This proposal is to the same effect as Proposal 3 in 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), in that it would
 require selection of part-time employees for specified full-time
 positions.  In that decision the Authority found that Proposal 3
 directly interfered with the agency's right under section 7106(a)(2)(C)
 in that it would prevent the agency from making selections from any
 appropriate source.  Based on the reasons and the decision relied upon
 in that case, we conclude that Proposal 2 interferes with the Agency's
 management right with respect to making selections in filling positions.
 
        4.  There Is No Basis for Concluding That This Proposal Is
 
                an Appropriate Arrangement
 
    Based on the circumstances present in Office of Social Security Field
 Operations, Philadelphia Region, the Authority found that Proposal 3
 constituted an appropriate arrangement within the meaning of section
 7106(b)(3).  In that case, the part-time employees involved were former
 full-time employees whose hours had been reduced because of agency
 funding problems.  The circumstances here are markedly different:  The
 man-hours available to the Agency have been increased as a result of
 expanded operating hours at the commissary.
 
    In National Association of Government Employees, Local R-14-87 and
 Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority set
 forth a test to be applied in determining whether a proposal which
 interfered with management's rights was negotiable as an appropriate
 arrangement under 7106(b)(3).  Among other things the Authority stated:
 
          In making that determination, the Authority will first examine
       the record in each case to ascertain as a threshold question
       whether a proposal is in fact intended to be an arrangement for
       employees adversely affected by management's exercise of its
       rights.  In order to address this threshold question, the union
       should identify the management right or rights claimed to produce
       the alleged adverse effects, the effects or foreseeable effects on
       employees which flow from the exercise of those rights, and how
       those effects are adverse.  In other words, a union must
       articulate how employees will be detrimentally affected by
       management's action and how the matter propo