31:1117(93)NG - NAGE and State of Washington Military Department -- 1988 FLRAdec NG



[ v31 p1117 ]
31:1117(93)NG
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.

     For the reasons stated above, we find this proposal within
the duty to bargain. 

     IV. Order

     The Agency must, upon request, or as otherwise agreed to by
the parties, bargain concerning this prop