32:0879(127)NG - - NTEU, Atlanta, GA and Treasury, IRS - - 1988 FLRAdec NG - - v32 p879

[ v32 p879 ]
The decision of the Authority follows:

32 FLRA No. 127













Case No. 0-NG-1519


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). The disputed portion of the proposal precludes the use of rotating shifts. For the reasons which follow, we find that the proposal is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

II. Background and Proposal

The Union's proposal was submitted in the course of mid-term negotiations over an Alternative Work Schedule (AWS) plan sought by the Union. Except for Data Processing Staff employees, employees in the bargaining unit work during a 6 a.m. to 7 p.m. band of hours. Data Processing Staff employees rotate through three shifts. The Union's proposal provides that:

Article 5, Section 3

The normal workweek in the Atlanta District is Monday through Friday. Non-work days will normally be Mondays or Fridays. Management will determine non-work and eight hour days for the 5-4-9 schedule. NTEU 26 shall be given reasonable advance notice of any scheduled Saturday or Sunday work for bargaining unit employees (includes temporaries, WAE's, & part-timers) so that we may arrange for steward representation if desired. Applicable overtime and night differential will be paid. Comp time will not be used. It is recognized that Data Processing Staff personnel working on a 7 day or 24 hour schedule shall be an exception to the above. Fixed schedules covering these personnel shall be finalized and included in this agreement. Rotating shifts are not acceptable. [Only the underlined portion is in dispute.]

III. Positions of the Parties

The Agency contends that the disputed sentence, insofar as it seeks to bar rotating shifts, is outside the scope of the parties' negotiations, which are limited to AWS and flexitime. The Agency notes that it is not seeking to change the established practice that employees other than the Data Processing Staff do not work rotating shifts. The Agency also contends that the disputed sentence, particularly as it would apply to its Data Processing employees, is nonnegotiable under sections 7106(a) and (b) of the Statute because it is inconsistent with management's rights: (1) to determine the mission (collection of taxes), organization and budget of the Agency; (2) to assign employees and work and to assign personnel by which its operations shall be conducted; and (3) to determine the grades of employees assigned.

In addition, the Agency argues that to the extent that the disputed sentence is intended to preclude the Agency from establishing a night shift, the sentence conflicts with management's rights: (1) to determine the budget, organization and number of employees under section 7106(a)(1); (2) to assign employees, to direct employees, to assign work and to determine the personnel by which operations are to be conducted under sections 7106(a)(2)(A) and (B); and (3) to determine the number and types of employees to a particular work project or tour of duty and to determine the methods and means of performing work under section 7106(b)(1).

The Union contends that the disputed sentence involves AWS. The Union argues that the Agency's claim that the disputed sentence will have an adverse impact on the Agency may only be made before the Federal Service Impasses Panel (FSIP) pursuant to 5 U.S.C. § 6131, which provides for the resolution of disputes concerning AWS proposals. In support, the Union relies on American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872 (1986) (Lowry AFB).

In its Reply Brief, the Union indicated that the sentence is not intended to bar the establishment of a night shift. Rather, according to the Union, the purpose of the disputed sentence is to preclude the assignment of employees to rotating shifts.

IV. Analysis and Conclusion

A. The Disputed Sentence Does Not Involve AWS

Alternate work schedules are negotiated under the Federal Employees Flexible and Compressed 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. § 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, 97th Cong., 2d Sess. 14-15 (1982). The legislative history also indicates that full negotiation is expected on these aspects of alternative work schedules. See Id. at 3, 5.

Under the Work Schedules Act, a compressed schedule is defined, for full-time employees, as an 80-hour biweekly work requirement which 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 scheduled for less than 10 days. 5 U.S.C. § 6121(5)(A) and (B). 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. § 6122.

Alternate work schedules for bargaining unit employees are "fully negotiable" within the limits set by the Work Schedules Act. See Lowry AFB. Therefore, an alleged conflict between an alternate work schedule and the Statute does not create a negotiability dispute which the Authority will consider under section 7117 of the Statute. However, questions concerning whether a proposed alternate work schedule conflicts with the Work Schedules Act itself or with other laws superseding the 1982 Act are subject to the negotiability appeal procedures of section 7117 of the Statute. See, National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA 349, 354 (1987), petition for review filed sub nom. California National Guard and Department of Defense v. FLRA, No. 87-1356 (D.C. Cir. July 27, 1987) (State of California), where we found that certain sections of an alternate work schedule proposal which included nonunit employees within a proposed compressed workweek were nonnegotiable because they were inconsistent with the Work Schedules Act.

Moreover, issues which do not concern the institution, implementation, administration or termination of an alternate work schedule may also be reviewed under the negotiability appeal procedures of section 7117 of the Statute. See State of California at 354-55 where we found that portions of an alternate work schedule proposal which assigned particular tasks and responsibilities to nonunit personnel were reviewable under section 7117 of the Statute because they did not concern the institution, implementation, administration or termination of employee work schedules. We found that because those sections prescribed conditions of employment for nonunit employees, they were outside the duty to bargain under the Statute.

We conclude that except for the sentence in dispute, the balance of the proposal in this case concerns the institution, implementation, administration or termination of alternative work schedules for the Agency's employees. The disputed sentence, however, precludes the assignment of the employees to rotating shifts. In our view, the disputed sentence is not integrally related to the implementation of an alternative work schedule. Rather, the disputed sentence concerns restrictions on the method of assigning employees to various shifts in a multi-shift operation. Thus, the disputed sentence does not concern the institution, implementation, administration or termination of employee work schedules which are negotiable under the Work Schedules Act. Therefore, we conclude that the disputed sentence is subject to review by the Authority as to whether it is inconsistent with law--including management rights under section 7106--rule or regulation.

B. The Disputed Sentence Interferes with Management's Right to Assign Work Under Section 7106(a)(2)(B)

Although the Agency argued that the disputed sentence was nonnegotiable because the Union stated that the intent of the sentence was to preclude the establishment of a night shift, the Union clarified the intent of the disputed sentence in its Reply Brief as not barring the establishment of a night shift. Since the Union's clarification of the intent of the disputed sentence is consistent with the wording of the sentence, we adopt the Union's clarification for the purposes of this decision. Thus, we conclude that the disputed sentence does not bar the establishment