35:0048(8)CA - - NG Bureau and Adjutant General, State of Pennsylvania and Pennsylvania State Council, ACT - - 1990 FLRAdec CA - - v35 p48



[ v35 p48 ]
35:0048(8)CA
The decision of the Authority follows:


35 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL GUARD BUREAU AND ADJUTANT GENERAL

STATE OF PENNSYLVANIA

(Respondents)

and

PENNSYLVANIA STATE COUNCIL

ASSOCIATION OF CIVILIAN TECHNICIANS

(Charging Party/Union)

2-CA-80297

DECISION AND ORDER

March 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority based on the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. The case is based on a stipulation entered into by (1) the National Guard Bureau and Adjutant General, State of Pennsylvania (the Respondents); (2) the Pennsylvania State Council, Association of Civilian Technicians (the Union); and (3) the General Counsel. The General Counsel and the Respondents filed briefs with the Authority, and the Union filed a statement adopting the position of the General Counsel. The General Counsel also filed a motion to strike portions of the Respondents' brief, and the Respondents filed a request for permission to file an opposition to the General Counsel's motion.

The complaint arose because of a refusal to bargain over the establishment of compressed work schedules for National Guard technicians. The complaint alleges that the Respondent National Guard Bureau violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by directing the Respondent Adjutant General, State of Pennsylvania (Pennsylvania Guard) not to negotiate with the Union on the subject of compressed work schedules, thereby (1) interfering with the bargaining relationship between the Union and the Respondent Pennsylvania Guard; and (2) interfering with, restraining and coercing employees in the exercise of rights under the Statute.

The complaint further alleges that the Respondent Pennsylvania Guard violated section 7116(a)(1) and (5) of the Statute by (1) failing to negotiate to the extent of its discretion with the Union concerning proposals on compressed work schedules which are substantially identical to proposals previously determined to be negotiable by the Authority; and (2) interfering with, restraining and coercing employees in the exercise of rights under the Statute.

II. Background

The Union is the exclusive representative of a unit of all eligible Pennsylvania Army and Air National Guard wage grade and general schedule technicians employed in the State of Pennsylvania. The Respondents together comprise the Federal and state components responsible for management of the employees involved. See Illinois National Guard v. FLRA, 854 F.2d 1396, 1397-8 (D.C. Cir. 1988) (Illinois National Guard).

The Union and the Respondent Pennsylvania Guard met and negotiated from on or about February 2, 1988, through April 6, 1988, over a collective bargaining agreement to succeed the agreement which would expire at the end of May of that year. Among the subjects discussed were the Union's proposals and management's counterproposals for establishing alternative work schedules, including compressed work schedules.

On or about March 21, 1988, the Respondent Pennsylvania Guard proposed that (1) no compressed work schedule be negotiated at the time, and (2) the parties agree to reopen the contract to negotiate this subject if and when the U.S. Court of Appeals for the District of Columbia Circuit enforced Authority decisions finding the issue of alternative work schedules for National Guard technicians to be negotiable. Two days later, the Union declined the proposal and insisted that negotiations proceed.

On or about April 6, 1988, the Respondent Pennsylvania Guard delivered a memorandum dated March 30, 1988 to the Union. The memorandum stated that the Respondent Pennsylvania Guard had no authority to bargain over proposals concerning the establishment of alternative work schedules. It stated further that the authority to approve or disapprove alternate work schedules was reserved by the Respondent National Guard Bureau pursuant to section 709(g) of the National Guard Technician Act of 1968, Pub. L. No. 90-486, 82 Stat. 755 (codified as amended at 32 U.S.C. §§ 709, 715 (1982)).

Since January 1986, the Respondent National Guard Bureau has instructed the Respondent Pennsylvania Guard that the Respondent Pennsylvania Guard has no discretion to enter into a collective bargaining agreement containing a compressed work schedule, absent prior approval by the National Guard Bureau. The Respondent National Guard Bureau also has informed the Respondent Pennsylvania Guard that Pennsylvania Guard has discretion to submit a recommendation for approval of a compressed work schedule to the Respondent National Guard Bureau.

The parties stipulated that the Authority ruled in three cases that National Guard technicians are covered by the Federal Employees Flexible and Compressed Work Schedules Act and, therefore, the establishment of alternative work schedules for the technicians is fully negotiable. National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA 654 (1987); National Association of Government Employees, Local R14-76 and Wyoming Air National Guard, Cheyenne, Wyoming, 27 FLRA 147 (1987); and National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA 349 (1987). At the time of the stipulation by the parties, petitions for review of these cases were pending before the United States Court of Appeals for the District of Columbia Circuit.

Subsequent to the stipulation, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision denying enforcement of the Authority's orders in these cases. The court held that proposals to negotiate over compressed work schedules for National Guard technicians are not within the duty to bargain under the Statute because the Technician Act of 1968 commits decisions regarding technicians' work schedules to the "unfettered discretion" of the Secretary of the Army. Illinois National Guard, 854 F.2d at 1402.

III. Positions of the Parties

A. The General Counsel

The General Counsel argues that the Respondents violated section 7116(a)(1) and (5) because they refused to bargain over a proposal that is substantively identical to a proposal the Authority has previously determined to be negotiable. The General Counsel notes that the Authority has found the establishment of compressed work schedules for National Guard technicians to be negotiable.

The General Counsel alleges that the Respondent National Guard Bureau violated section 7116(a)(1) and (5) of the Statute by preventing the Respondent Pennsylvania Guard from negotiating with the Union over compressed work schedules. The General Counsel maintains that when the National Guard Bureau prevented the Respondent Pennsylvania Guard from negotiating on compressed work schedules, the Respondent National Guard Bureau interfered in the collective bargaining relationship between the Pennsylvania Guard and the Union.

Further, the General Counsel asserts that the Respondent Pennsylvania Guard violated section 7116(a)(1) and (5) by failing to bargain over compressed work schedules to the extent of its discretion. The General Counsel notes that the Respondent National Guard Bureau instructed the Respondent Pennsylvania Guard that it had the discretion to submit a recommendation for approval of a compressed work schedule to the Respondent National Guard Bureau.

The General Counsel asserts that the Authority should not reverse its position on the negotiability of compressed work schedules on the basis of the court's decision in Illinois National Guard. The General Counsel "submits that the Authority's rulings are correct, and that the Authority should continue to maintain that National Guard organizations at the level of exclusive recognition are required to bargain over proposals to establish compressed work schedules." General Counsel's Brief at 5.

B. The Respondents

The Respondents rely on the decision in Illinois National Guard to support their position that the Respondents had no duty to bargain with the Union over compressed work schedules. The Respondents assert that the refusal to bargain over that issue did not violate the Statute.

The Respondents also assert that establishment of a compressed workweek for National Guard technicians would violate agency regulations, and that bargaining over proposals in conflict with the regulations cannot be required unless and until it is determined whether a compelling need exists for the regulations.

C. General Counsel's Motion to Strike Portions of Respondents' Brief

The General Counsel opposes the Respondents' references in their brief to a National Guard Technician Personnel Regulation. The General Counsel asserts that the regulation is not part of the stipulation. Moreover, the General Counsel asserts that the Respondents' arguments based on the regulation are "irrelevant to a determination of the issues in this case." General Counsel's Motion to Strike at 2.

D. Respondents' Request to File Opposition to General Counsel's Motion

The Respondents assert that the regulation at issue is incorporated by reference in the stipulation, and that it is central to consideration of the case.

IV. Analysis and Conclusion

The questions raised by the complaint in this case are whether: (1) the Respondents have a duty to bargain with the Charging Party over compressed work schedules for National Guard technicians; and (2) the Respondent Pennsylvania Guard has a duty to bargain to the extent of its discretion to submit a recommendation for approval of a compressed work schedule to the Respondent National Guard Bureau. If there is no duty to bargain with respect to either matter, the complaint must be dismissed.

During the pendency of this case, the U.S. Court of Appeals for the District of Columbia Circuit denied enforcement of Authority orders to bargain over compressed work schedule proposals for National Guard technicians. The court noted that section 709(g) of the Technician Act of 1968 "authorizes the Secretary of the Army to 'prescribe' [technicians'] hours of duty 'notwithstanding . . . any other provision of law,'" and found that section 709(g) "commits decisions regarding technicians' work schedules to the Secretary's unfettered discretion." Illinois National Guard, 854 F.2d at 1402. The court found no indication that the Federal Employees Flexible and Compressed Work Schedules Act of 1982 limited the Secretary's discretion regarding work schedules. The court concluded that the Technician Act constituted "a narrow exception to the broadly applicable bargaining requirement of the Schedules Act." Id. at 1405. Therefore, the court denied enforcement of the Authority's orders to bargain over work schedules for National Guard technicians under the Compressed Work Schedules Act. Id.

We agree with the court's decision in Illinois National Guard v. FLRA, and find that there is no obligation to bargain over compressed work schedules for National Guard technicians. Therefore, we shall no longer follow prior decisions of the Authority which held that compressed work schedules for National Guard technicians are negotiable.

We decide an unfair labor practice case based on the law at the time the case is before us. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 30 FLRA 697, 701 (1987). Therefore, we find that Pennsylvania Guard was not obligated to bargain over the Charging Party's proposal to establish compressed work schedules, despite our previous negotiability determinations to the contrary. Accordingly, the refusal to do so did not violate the Statute.

Furthermore, the fact that the Respondent National Guard Bureau instructed the Respondent Pennsylvania Guard that the latter had discretion to recommend a compressed work schedule for approval by the Respondent National Guard Bureau did not give rise to a duty to bargain over such a recommendation. Under the Statute, an agency has a duty to bargain over bargaining unit employees' conditions of employment that are within the agency's administrative discretion, except to the extent provided otherwise by law or regulation. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759 (1980). Therefore, where a union holds exclusive recognition in a component of an agency, the fact that control over a particular condition of employment rests with a different organizational component of the same overall agency does not bar negotiation. Rather, the component with the collective bargaining relationship is obligated to bargain over that condition of employment, except as limits may be provided for by applicable law, rule, or regulation. Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 361 (1986), aff'd as to other matters sub nom. Overseas Education Association, Inc., v. FLRA, 827 F.2d 814 (D.C. Cir. 1987).

Contrary to the argument of the General Counsel, however, the discretion of the Respondents in this case is limited by law: As previously indicated, section 709(g) of the Technician Act of 1968 commits decisions concerning work schedules to the "unfettered discretion" of the Secretary of the Army. Accordingly, management decisions concerning technician work schedules, including a recommendation for approval of a compressed work schedule made by management at the level of recognition to management at a higher level in the same overall agency, are outside the obligation to bargain.

American Federation of State, County and Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enf'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), relied upon by the General Counsel, is inapposite for two reasons. First, in Library of Congress the Authority found that the proposals at issue concerned bargaining unit working conditions and were not subject to management rights or otherwise inconsistent with any law or regulation. Id. at 587-88. Second, the Authority also found that authority to implement the matters covered by the proposals rested outside the agency (Library of Congress) with the Architect of the Capitol. Consequently, the Authority found that the agency was obligated to bargain over the proposals to the extent of its conceded discretion to make recommendations to the Architect of the Capitol.

Unlike the situation in Library of Congress, the proposal in the present case is inconsistent with law: section 709(g) of the Technician Act of 1968. In addition, the authority to implement the proposal rests within the s