27:0349(47)NG - NAGE Local R12-167 and Office of the Adjutant General, State of California -- 1987 FLRAdec NG



[ v27 p349 ]
27:0349(47)NG
The decision of the Authority follows:


 27 FLRA No. 47
 
 NATIONAL ASSOCIATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL R12-167
 Union
 
 and
 
 OFFICE OF THE ADJUTANT GENERAL
 STATE OF CALIFORNIA
 Agency
 
                                            Case No. 0-NG-1313
 
                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 a proposal relating to the implementation of a
 compressed workweek.
 
                              II.  Background
 
    During the first few months of 1986, the parties were engaged in
 collective bargaining for a new agreement.  Among the proposals the
 Union submitted to the Agency was one (Hours of Work, Section 6) which
 provided generally for the Union to submit detailed proposals for
 "implementing and administering" a compressed workweek.  The Agency
 declared the proposal nonnegotiable and the Union requested assistance
 from the Federal Service Impasses Panel concerning the matter.
 
    Prior to meeting with the Panel's representative, the parties
 executed an agreement which left open the subject of a compressed
 workweek pending a negotiability determination by the Federal Labor
 Relations Authority.  As a result of the parties' meeting with the
 Panel's representative, the Union agreed to withdraw its request for
 assistance and submit specific proposals to the Agency.  The Union then
 submitted a detailed proposal concerning the implementation of a
 compressed workweek.  The Agency declared that proposal nonnegotiable
 and the Union timely appealed to the Authority.
 
                              III.  Proposal
 
    The text of the proposal is set forth in Appendix I to this decision.
  Only the underlined portions of the proposal are in dispute.  /1/
 
                       IV.  Positions of the Parties
 
    The Agency contends generally that the proposal is nonnegotiable
 because National Guard technicians are not subject to the Federal
 Employees Flexible and Compressed Work Schedules Act.  /2/ Specifically,
 the Agency claims that National Guard technicians are excluded from the
 Work Schedules 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 of title 5 or
 any other provision of law(.)" /3/
 
    In addition, the Agency argues that compressed work schedules are
 outside the duty to bargain under section 7117(a)(2) of the Statute
 because they conflict with Technician Personnel Regulation (TPR) 600
 (610.1), 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 compressed work schedules directly interfere 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).
 
    With regard to the parts of the proposal which are in dispute, the
 Agency contends that they are nonnegotiable because they concern
 employees not in the bargaining unit and interfere with management's
 right under section 7106(a)(2)(B) of the Statute to assign work.
 
    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 TPP 600 (610.1) and that
 compressed work schedules do not infringe on management's right to
 assign work.  The Union argues that the particular portions of the
 proposal in dispute refer only to bargaining unit employees and must be
 read in conjunction with the parties' negotiated agreement which covers
 only "Federal technicians." It also argues that its proposal is not
 intended to assign responsibilities to management personnel.
 
                        V.  Analysis and Conclusion
 
        1.  Whether Those Portions of the Proposal which Prescribe
 
                a Compressed Workweek are Negotiable under the Work
 
                Schedules Act and the Statute
 
    The proposal before us in this case does not itself clearly prescribe
 a compressed workweek, although Section 4.A.(2) appears to provide a
 4-10 work schedule, that is, a 4-day, 10-hour-a-day workweek.  By its
 terms, the proposal as a whole concerns primarily the implementation of
 such a compressed workweek.  We will address the proposed compressed
 work schedule separately from the proposals intended to implement that
 schedule.
 
    In National Federation of Federal Employees, Local 1655 and Illinois
 National Guard, 26 FLRA No. 81 (1987), we held that the Work Schedules
 Act applies to National Guard technicians.  We therefore found, relying
 on American Federation of Government Employees, Local 1934 and
 Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA No.
 107 (1986), that the proposed alternate work schedule in the Illinois
 National Guard case was negotiable.
 
    More particularly, we held in Lowry AFB that because alternate work
 schedules for bargaining unit employees 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, insofar as those issues
 concern an alleged conflict with the Statute.  There remains a limited
 range of issues bearing on the negotiation of alternate work schedule
 proposals which the Authority may process under the procedures of
 section 7117 -- namely, whether a proposed work schedule conflicts with
 the Work Schedules Act itself or with other laws superseding the 1982
 Act.
 
    Therefore, we found in Lowry AFB that issues as to the negotiability
 of the proposed alternate work schedule in that case under sections 7106
 and 7117(a)(2) of the Statute were not properly before us.  Similarly,
 to the extent that the Agency objects to the establishment of the
 compressed workweek contemplated by this proposal on the grounds that it
 has no duty to bargain on the subject of compressed workweeks for
 National Guard technicians, or on the grounds that the compressed
 workweek conflicts with management rights or an Agency regulation for
 which a compelling need exists, the Agency's position cannot be
 sustained.
 
    Finally, as noted above, the Authority is limited in its review of
 proposals for alternate work schedules to questions concerning whether
 such a schedule conflicts with the Work Schedules Act itself or with
 superseding legislation.  Under the Act, an exclusive representative is
 authorized to negotiate for the establishment of flexible and compressed
 work schedules for bargaining unit employees.  5 U.S.C. Section
 6130(a)(1).  Moreover, we note that the terms "collective bargaining,"
 "collective bargaining agreement," and "exclusive representative" have
 the same meaning under the Work Schedules Act as under the Statute.  5
 U.S.C. Section 6121(8).  Those terms, as employed in the Statute and as
 relevant here, define an agency's duty to bargain as extending to the
 conditions of employment of bargaining unit employees.  See, for
 example, National Treasury Employees Union and Department of the
 Treasury, Bureau of the Public Debt, 3 FLRA 769, 770-771 (1980),
 affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d
 553 (D.C. Cir. 1982).
 
    Moreover, 5 U.S.C. Section 6127(b)(1) provides protections for
 nonunit employees by giving them an independent vote as to whether to
 participate in a compressed schedule program negotiated by an exclusive
 representative.  See also S. Rep. No. 365, 97th Cong., 2d Sess. 12-13
 (1982).  The facct that the Work Schedules Act provides separately for
 nonunit employees to choose to participate in an alternate work schedule
 also supports the conclusion that an exclusive representative is
 authorized to negotiate such schedules only for unit employees.
 Therefore, if the compressed workweek set forth in this proposal
 includes nonunit personnel, it would be inconsistent with the Work
 Schedules Act.
 
    The first sentence of Section 3 of the proposal provides that "all"
 full-time support employees will participate in the compressed workweek
 schedule.  The Agency claims that this sentence would include nonunit
 employees, in particular, supervisors, in the compressed workweek.
 Similarly, Section 4.A(2) provides for "all" other employees --
 distinguishing them from the state employees referred to in Section
 4.A(1) -- to work a compressed workweek and thus that section also could
 include nonunit employees.
 
    The Union claims that its proposal is intended to apply only to unit
 employees.  However, the first sentence of Section 3 and Section 4.A.(2)
 do not distinguish between supervisory and nonsupervisory employees.
 Rather, they include "all" full-time support personnel and "all" other
 employees within the compressed workweek.  Moreover, the Union's claim
 that these sections apply only to unit employees is difficult to
 reconcile with the fact that other sections of the proposal clearly
 pertain to nonunit personnel.  For example, the second sentence of
 Section 4.A.(1) would potentially include state employees in a
 compressed workweek schedule.  Thus, by including nonunit employees
 within the proposed compressed workweek, these sections are inconsistent
 with the Work Schedules Act and are therefore nonnegotiable.  We note in
 this connection that we have found the proposed compressed workweek set
 forth in the proposal otherwise negotiable under the Work Schedules Act;
  if the first sentence of Section 3 and Section 4.A(2) were revised to
 specifically pertain only to bargaining unit employees, they would be
 negotiable.  The second sentence of Section 4.A.(1) would not be revised
 to be negotiable since the Work Schedules Act applies to Federal, but
 not state, employees.
 
         2.  Whether the Portions of the Proposal which Remain in
 
                Dispute are Negotiable under the Work Schedules Act or
 
                the Statute
 
    We next address the negotiability of the portions of the proposal
 which remain in dispute, namely, the third and last sentences of Section
 3, the last sentence of Section 4.A.(1), Section 4.C.(3), and Section
 4.F.(3).  The threshold question is whether these portions of the
 proposal concern matters which are negotiable under the Work Schedules
 Act or matters which are reviewable by the Authority under section 7117
 of the Statute.
 
    In order to answer this question it is necessary to discuss briefly
 the Work Schedules Act.  The Work Schedules Act provides that an
 exclusive representative can negotiate with an agency for the
 establishment of flexible and compressed work schedules for bargaining
 unit employees.  5 U.S.C. Section 6130(a)(1).  As reflected in its
 legislative history, the Act is intended to include within the
 collective bargaining process "the institution, implementation,
 administration and termination of alternative work schedules(.)" S. Rep.
 No. 365, supra, at 14-15.  The legislative history also indicates that
 full negotiation is expected on these aspects of alternative work
 schedules.  See id. at 3, 5.
 
    A compressed schedule is defined, for full-time employees, as an
 80-hour biweekly work requirement that is scheduled for less than 10
 workdays and, in the case of part-time employees, as a biweekly basic
 work requirement of less than 80 hours schedules for less than 10 days.
 5 U.S.C. Section 6121(5).  Flexible schedules, as provided in the Work
 Schedules Act, concern variable starting and quitting times and the
 earning of credit hours for varying the length of the workday or
 workweek.  5 U.S.C. Section 6122.  Thus, in short, what is negotiable
 under the Work Schedules Act is the institution, implementation,
 administration and termination of these alternate work schedules for
 bargaining unit employees.
 
    With this background, we turn to the issue of the negotiability of
 the portions of the proposal which remain in dispute.  We find that the
 third and last sentences of Section 3 are negotiable.  Section
 6127(b)(2) of the Work Schedules Act provides certain protections for
 employees when participation in a compressed schedule program would
 impose a personal hardship, and specifies steps that an agency must take
 to alleviate that hardship.  See S. Rep. No. 365, supra, at 12-13.  The
 third and last sentences of Section 3 provide procedures whereby
 employees who experience personal hardship may be excluded from
 participation in the alternate work schedule set forth in the proposal;
 that is, those sentences provide for the implementation of a compressed
 work schedule program in accordance with section 6127(b)(2).  Thus,
 because the third and last sentences of Section 3 concern the
 implementation and administration of an alternate work schedule, they
 are matters which are negotiable under the Work Schedules Act.
 Therefore, they are not reviewable by the Authority under section 7117
 of the Statute.
 
    Section 4.A.(1), Section 4.C.(3), and Section 4.F.(3) concern the
 assignment of particular tasks and responsibilities to nonunit
 personnel.  They do not concern the institution, implementation,
 administration or termination of employee work schedules.  Therefore, as
 discussed above, they do not concern matters which are negotiable under
 the Work Schedules Act, but rather matters which are reviewable under
 section 7117 of the Statute.  That is, they are subject to review by the
 Authority as to whether they are inconsistent with law -- including
 management rights under section 7106 -- rule or regulation.
 Specifically, these sections concern nonunit personnel, namely,
 supervisors (Sections 4.C.(3) and 4.F.(3)), state employees (Section
 4.A.(1)), and military personnel (the Active Guard Reserve, Section
 4.F.(3)).  Because these sections purport to prescribe certain
 conditions of employment for those nonunit personnel, they are outside
 the duty to bargain.  See National Federation of Federal Employees,
 Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas
 City, Missouri, 20 FLRA 531 (1985) (Proposal 1).
 
    Moreover, the disputed sections assign certain duties to the
 specified nonunit personnel.  For example, Section 4.A.(1) provides for
 the Base Engineer to determine the work schedules of particular groups
 of employees;  Section 4.C.(3) concerns the responsibilities of
 supervisors when they approve an extended lunch period;  and Section
 4.F.(3) concerns the responsibilities of supervisory Air Technicians or
 Active Guard Reserve employees when functioning as Duty Officer.  They
 therefore have the same effect as the proposal in Hawaii Federal
 Employees Metal Trades Council, AFL-CIO and Pearl Harbor Naval Shipyard,
 22 FLRA No. 73 (1986), which directly interfered with management's right
 to assign work because it required nonunit personnel to perform specific
 duties.  For the reasons set forth in Pearl Harbor Naval Shipyard,
 therefore, we find that the disputed sections of the proposal in this
 case similarly interfere with management's right to assign work by
 prescribing certain duties to nonunit personnel.  Those sections are,
 therefore, outside the duty to bargain.
 
    We note that if Section 4.C.(3) were revised so as to preserve
 management's discretion to determine the management official who would
 be responsible for the tasks involved, it would be negotiable.  See
 American Federation of Government Employees, AFL-CIO, Local 1858 and
 U.S. Missile Command, The U.S. Army Test, Measurement, and Diagnostic
 Equipment Support Group, The U.S. Army Information Systems Command --
 Redstone Arsenal Commissary, 27 FLRA No. 14 (1987).
 
                                VI.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain concerning the third and last sentences of Section 3.
 The petition for review as to the remaining disputed proposals is
 dismissed.
 
    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) The Union withdraws Sections 4.E.(1), 4.F.(1), 4.F.(2) and 4.H.
 of its proposal and they 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 Appendix II to this
 decision.
 
 
                                APPENDIX I
 
                                 PROPOSAL
 
              MARCH AFB, 163RD TFG COMPRESSED WORKWEEK (CWW)
 
                         ADMINISTRATIVE PROCEDURES
 
    1.  GENERAL:  These procedures implement a proposed compressed
 workweek for the 163rd TFG located at March Air Force Base, California.
 
    2.  PURPOSE:  The purpose of the CWW program is to increase
 productivity of the Unit and at the same time increase the quality of
 work life for the full time support force.  As a minimum, attainment of
 these goals will be evaluated semi-annually.
 
    3.  SCOPE:  All full time support employees will participate in the
 CWW program.  Recruiters will not participate.  Exceptions for extreme
 hardship can be granted by the Air Commander or his four senior
 supervisors for periods not exceeding 90 days.  Exceptions can be
 renewed for a period not to exceed 90 days if necessary.  Employees
 desiring a hardship exception should apply in writing explaining in
 detail their justification for the request, through supervisory
 channels, at least one pay period in advance.  Senior supervisors will
 process hardship exception requests within five (5) working days and
 submit the approval/denial to the employee with a copy for record to the
 immediate supervisor.
 
    4.  GENERAL PROVISIONS:
 
          A.  WORKDAYS:
 
          (1) State maintenance and mechanics will normally work Monday
       thru Friday, from 0730 to 1615, with a 45 minute lunch period from
       1130 to 1215.  The Base Civil Engineer will assign his state
       employees to either a CWW schedule or a standard work schedule as
       the mission dictates.
 
          (2) All other employees will work Tuesday thru Friday with
       Saturday coverage being a split UTA system.
 
          (3) Core time of 0630 to 1130 and 1215 to 1715 Tuesday thru
       Friday must be manned in every major functional area.
 
          (4) Saturday flying operations must be sufficiently manned.
 
          (5) Workdays may be rotated when necessary to give all
       employees the opportunity to work the days of their choice within
       mission requirements.
 
          (6) Workdays will not be adjusted solely for the purpose of
       conserving military leave.
 
          B.  WORK HOURS:
 
          (1) Normal work hours for CWW employees will be 0630 to 1715.
 
          C.  LUNCH PERIOD:
 
          (1) The normal CWW lunch period is 1130 to 1215.
 
          (2) The time of the lunch period will be flexible to meet
       mission requirements.
 
          (3) Under exceptional circumstances normally beyond the
       employee's control, the lunch period can be extended up to 2 1/2
       hours without charge to leave by starting early, working late, or
       a combination of both.  The extended lunch period and hours of the
       makeup time (must be same day) must be approved in advance by the
       supervisor.  The supervisor need not be present for the early
       start or late quit, but is responsible for the productivity of
       employees for whom he approves an extended lunch period.  Under no
       circumstances will safety considerations be compromised.
 
          D.  BREAK PERIODS:  There will be two 15 minute break periods
       per day, one before and one after the lunch break.  Where break
       periods as a work unit are not necessary, or desirable, the break
       time is flexible with supervisor approval.  Where it is
       advantageous to take a break as a work unit, the break time will
       be 0930 to 0945 and 1500 to 1515.
 
          E.  NIGHT FLYING:
 
          (2) Hours will be 0930 to 2015 for those supporting night
       flying.
 
          F.  MONDAY COVERAGE:
 
          (3) All Air Technician or AGR employees in Supervisory
       positions, such as WG or GS-10 or above will be eligible to be
       Duty Officer on Monday.  The Duty Officer will be on call and
       reasonably available on Monday to provide a continuous
       communication link to higher headquarters and to handle urgent
       situations.  The Duty Officer for the following Monday is
       responsible for notifying the Air Commander of what his phone
       number and location will be on Monday, before he departs for the
       weekend.
 
          G.  TDY:  People will work a schedule that will result in a 40
       hours workweek as far as practical, however, when necessary, they
       will conform to the work schedule at the TDY locations.
 
          I.  DISCLAIMER:  The provisions of FPM Supplement 990-2, Book
       620 relative to compressed work schedules will apply.  If there is
       any conflict between procedures in this document and the FPM's the
       FPM will take precedence.
 
          J.  PROGRAM IMPROVEMENTS:  Suggestions for program improvement
       should be addressed to the Air Commander, or his four senior
       supervisors.
 
    FOR THE UNION:
 
    DATE:
 
    FOR THE ADJUTANT GENERAL:
 
    DATE:
 
                                APPENDIX II
 
    (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
       compens