31:1117(93)NG - NAGE and State of Washington Military Department -- 1988 FLRAdec NG
[ v31 p1117 ]
The decision of the Authority follows:
31 FLRA No. 93 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union and STATE OF WASHINGTON MILITARY DEPARTMENT Agency Case No. 0-NG-1466 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. The proposal seeks to implement a flexible and compressed work schedule program. For the reasons that follow, we find the proposal to be negotiable. II. Background and Procedural Issue On September 15, 1987, the parties began negotiations for a new collective bargaining agreement. The Union submitted a proposal implementing a flexible and compressed work schedule. During negotiations, the Agency proposed holding the compressed work schedule proposal in abeyance pending resolution by the courts of Authority cases finding proposals pertaining to alternate work schedules for National Guard technicians to be negotiable. On September 18, 1987, the Union requested a written statement of the Agency's position regarding the negotiability of the proposal. The Agency responded by memorandum and indicated that it elected not to bargain on the issue of alternate work schedules since the negotiability of this matter is before the D.C. Circuit Court of Appeals. The Agency indicated willingness to negotiate "pending the outcome of the litigation." The issue of the negotiability of alternate work schedules is pending before the D.C. Circuit Court of Appeals in the following cases: (1) National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA 349 (1987), petition for review filed sub nom. California National Guard and Department of Defense v. FLRA, No. 87-1346 (D.C. Cir. July 27, 1987); (2) National Association of Government Employees, Local R14-76 and Wyoming Air National Guard, Cheyenne, Wyoming, 27 FLRA 147 (1987), petition for review filed sub nom. Wyoming Air National Guard and Department of Defense v. FLRA, No. 87-1345 (D.C. Cir. July 28, 1987); and (3) National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA 654 (1987), petition for review filed sub nom. Illinois National Guard v. FLRA, No. 87-1290 (D.C. Cir. June 26, 1987). The Agency contends that the petition for review is not properly before us because its memorandum is not an allegation of nonnegotiability. The Agency argues that it has never claimed that the proposal is outside the duty to bargain, and that it is prepared to negotiate after the litigation is resolved. Consequently, the Agency argues that the petition for review is procedurally flawed, and that it should be dismissed. We interpret the Agency's memorandum to be a declaration of nonnegotiability. The Agency's response to the Union's request for an allegation of nonnegotiability states that it elects not to bargain over the proposal because "the negotiability question of this issue" is pending in court. In addition, the Agency's statement of position states that except for the portion dealing with flextime, the proposal is not within the scope of bargaining and incorporates the statement of position filed by the agency in Adjutant General, State of California. Thus, we interpret the Agency's position to be that the proposal is not negotiable for the reasons advanced by the agency in Adjutant General of California. Consequently, we find that the petition for review is appropriately before us. III. Proposal Within 60 days after the effective date of this Agreement the Employer will implement an alternate work schedule program. All employees shall be afforded a choice between: a. flexible work schedule (flextime); b. 4 day, 10 hour per day workweek; c. 5-4/9 compressed workweek with alternate Fridays off; or d. nonparticipation in the alternate workschedule program. The provisions of Sections 1. through 4. of this Article will be set aside to the extent that they conflict with schedules established under the alternate work schedule program. A. Positions of the Parties As noted above, the Agency argues that the proposal is outside the duty to bargain, except for the portion dealing with flexible work schedules which it concedes to be negotiable. The Agency incorporates its arguments in Adjutant General, State of California. In that case, the agency made the following arguments: 1. The proposal is nonnegotiable because National Guard technicians are not subject to the Federal Employees Flexible and Compressed Work Schedules Act (the Act). National Guard technicians are excluded from the Act by 32 U.S.C. 709(g); 2. The proposal conflicts with Technician Personnel Regulations (TPR) 600 (610.1), a regulation for which a compelling need exists under the Authority's regulations; 3. The proposal violates management's right to assign work under section 7106(a)(2)(A), 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); 4. The proposal affects employees who are not in the bargaining unit. The Union did not submit a reply brief to the Authority. However, in its petition for review, the Union contends that the proposal is negotiable based on the Authority's decision in Adjutant General, State of California. B. Analysis and Conclusions We have found that the Flexible and Compressed Work Schedules Act applies to National Guard technicians. Adjutant General, State of California, 27 FLRA 349, National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA 654 (1987) petition for review filed sub nom. Illinois National Guard v. FLRA, No. 87-1290 (D.C. Cir. June 26, 1987). Consistent with this precedent, we reject the Agency's first argument. Alternate work schedules for bargaining unit employees are negotiable within the limits set by the Work Schedules Act. Adjutant General, State of California. Thus, we will not consider issues pertaining to the negotiability of those schedules if the only allegations of nonnegotiability pertain to alleged conflict with the Statute. We will consider issues concerning the negotiability of alternate work schedule proposals under section 7117 only when the allegations are that the proposals conflict with the Work Schedules Act itself or with other laws superseding the 1982 Act. The Agency's second and third arguments are based on alleged conflicts between the proposal and management's rights or an agency regulation for which a compelling need exists. These allegations pertain to grounds for nonnegotiability under the Statute; the Agency does not allege a conflict with the Act or any laws superseding the Act. Hence, the Agency's second and third arguments are without merit. The proposal before us provides that "all employees shall be afforded a choice between . . . . " The Agency's fourth argument claims that this sentence gives nonunit employees a choice to participate in the negotiated compressed workweek and, therefore, the proposal is not negotiable. The Union argues that the proposal is intended to apply only to unit employees, as required by the Work Schedules Act. The Union further argues that the parties have always understood that their negotiated agreement was intended to apply only to employees in the bargaining unit. Neither the Agency nor the Union has ever made a distinction between unit and nonunit employees in their contract language, according to the Union. We find that the Union's statement of position does not conflict with the language of the proposal. Thus, we adopt the interpretation given to the proposal by the Union, so as to make it applicable only to unit employees. The proposal in this case is distinguishable from that in Adjutant General, State of California, which we found to be applicable to nonunit employees. In Adjutant General, State of California, we found that several sections of the proposal were specifically directed to nonunit employees. Other disputed sections of the proposal in Adjutant General, State of California, contained language that would have extended its provisions to "all full time support employees." The Agency interpreted that language to include nonunit employees, in particular, supervisors. Although, the Union claimed that the proposal was intended to apply only to unit employees, we found that we could not reconcile the Union's claim with the fact that some sections of the proposal clearly pertained to nonunit employees. Therefore, we rejected the Union's interpretation of the proposal and found that the record supported the Agency's position. We concluded that by expressly including nonunit employees within the compressed workweek, those sections of the proposal were inconsistent with the Work Schedules Act and, therefore, nonnegotiable. In the case before us, there is no specific language which indicates that the proposal is directed to nonunit employees. Thus, we adopt the Union's interpretation that the proposal is only intended to apply to unit employees Accordingly, we reject the Agency's fourth argument.