27:0147(27)NG - NAGE Local R14-76, and Wyoming Air NG, Cheyenne, WY -- 1987 FLRAdec NG
[ v27 p147 ]
The decision of the Authority follows:
27 FLRA No. 27 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-76 Union and WYOMING AIR NATIONAL GUARD, CHEYENNE, WYOMING Agency Case No. 0-NG-1284 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal. Based on the following, we find that the proposal is negotiable. II. The Proposal The Administrative workweek for all Air National Guard Employees is Sunday through Saturday. The basic workweek will consist of four (4) days of ten (10) hours each (exclusive of lunch periods) normally Monday through Friday except for those employees whose services are determined by the employer to warrant other basic workweeks. To the maximum extent possible, non-workdays will be consecutive when other than Monday through Friday work weeks are established. Every effort will be made to insure that the non-workdays will be the same each week. (Only the underlined portion of the proposal is in dispute.) A. Positions of the Parties The Agency contends that the proposal, to the extent that it proposes alternative work schedules under the Work Schedules Act, is nonnegotiable because National Guard technicians are not subject to the Work Schedules Act. /1/ 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(.)" /2/ In addition, the Agency argues that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute 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 (610.1), Section 1-1a and 1-4b, an Agency regulation for which a compelling need exists under the Authority's regulations. Finally, the Agency contends that 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 Work Schedules Act applies to National Guard technicians and that there is no conflict between that Act and 32 U.S.C. Section 709. In support of this claim the Union cites 5 U.S.C. Sections 6121(2) and 2105. The Union also contends, contrary to the Agency, that there is no compelling need for Technician Personnel Regulation (TPR) 600 (610.1), and that the proposal does not infringe on management's rights under section 7106(a)(2)(A) and (B) nor section 7106(b)(1). B. Analysis and Conclusion The proposal before us allows bargaining unit employees who are National Guard technicians to follow a compressed work schedule, that is, a 4-day, 10 hour-a-day workweek. It is, in all material respects, to the same effect as the last sentence in Proposal 1 and Proposal 5 in National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA No. 81 (1987). In that case we held that the Work Schedules Act applies to National Guard technicians. We therefore found that the proposed alternate work schedule in that case was negotiable. We also 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 are considered by the Authority under section 7117 of the Statute, insofar as those issues concern an alleged conflict with the Statute. There remains a limited range of issues bearing on the negotiations of alternative work schedule proposals which the Authority may process under the procedures of section 7117 -- namely whether a proposed alternate work schedule conflicts with the Work Schedules Act itself or with other laws superseding the 1982 Act. See American Federation of Government Employees, Local 1943 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986). Therefore we found that issues as to the negotiability of an alternative work schedule under sections 7106 and 7117(a)(2) of the Statute were not properly before us. The Agency objects to the compressed workweek contemplated by this proposal on the grounds that (1) it has no duty to bargain on the subject of compressed workweeks, (2) the proposal conflicts with its management rights, and (3) the proposal conflicts with an Agency regulation for which there is a compelling need. For the reasons set forth in Illinois National Guard and Department of the Air Force, the Agency position cannot be sustained. The proposal providing for a 4-day, 10 hour-a-day compressed work schedule is, therefore, within the duty to bargain. /3/ III. Order The Agency must upon request or as otherwise agreed to by the parties bargain concerning the proposal. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 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. (2) 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 in irregular or overtime work, and shall not be entitled to compensation for such work. (3) In finding this proposal within the duty to bargain, we make no judgment as to its merits.