36:0853(82)NG - - NLRBU Local 21 and NLRB, Washington, DC - - 1990 FLRAdec NG - - v36 p853
[ v36 p853 ]
The decision of the Authority follows:
36 FLRA No. 82
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL LABOR RELATIONS BOARD UNION
NATIONAL LABOR RELATIONS BOARD
DECISION AND ORDER ON NEGOTIABILITY ISSUE
August 28, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of one proposal presented by the Union and declared nonnegotiable by the Agency during negotiations for a local supplement to the parties' National Agreement. The proposal requires the Agency to change the hours that an Agency regional office (the Region or Region 21) is open to the public.
For the reasons set forth below, we find that the proposal is nonnegotiable under section 7106(a)(1) of the Statute because it directly interferes with the Agency's right to determine its mission.
The Region's normal office hours will be from 8:00 a.m. to 4:30 p.m.
III. Positions of the Parties
A. The Agency
The Agency states that: (1) "[i]t is undisputed that the Region's normal office hours are from 8:30 a.m. to 5:00 p.m."; and (2) the Union, by its proposal, is "seeking to negotiate a change in the normal hours Region 21 is open to the public it serves." Agency's Statement of Position (Agency's Statement) at 8. The Agency claims that the determination of "the particular hours that the Regional Office will be open to the public" is an exercise of its right to determine its mission under section 7106(a)(1) of the Statute. Id. at 7. The Agency concludes that the Union's proposal, by seeking to negotiate the particular hours that the Regional Office will be open to the public, is nonnegotiable because it interferes with "management[`s] prerogative [to determine] how it will accomplish its mission" under section 7106(a)(1) of the Statute. Id. at 12. The Agency relies on American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868 (1986) (Proposal 1) (Social Security Administration) and Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984) (Lowry I) to support its position.
The Agency concedes that flexible work schedules for employees are negotiable under the parties' National Agreement and the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Flexible and Compressed Work Schedules Act), Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§ 3401, 6101 and note, 6106, 6120-6133), which was made permanent in 1985, Pub. L. No. 99-196, 99 Stat. 1350. The Agency contends, however, that the Union's claim that the obligation to negotiate flexible schedules entails bargaining on office hours is "disingenuous and without legal basis." Agency's Statement at 6. The Agency states that it has negotiated flexible schedules for Region 21 employees and argues that the Union's "legal argument intentionally fails to address the only viable issue herein, that is, whether Local 21 can require the Agency to negotiate over the particular hours the Regional Office is to be open to the public." Id. at 7. According to the Agency, "[t]he mere fact that the National parties chose to define core hours and flexible bands in terms of the normal office hours of the Region does not affect the negotiability of those office hours." Id.
The Agency contends that the Union's argument that it has waived its right not to bargain over the proposal is "without merit." Id. at 9. The Agency claims that there is no evidence of the waiver of a statutory right in either the National or Local Agreement. Moreover, the Agency notes, the General Counsel's memorandum approving the local supplemental agreement for Region 21 "specifically retained management's right to establish office hours." Id. at 10. See also Attachment 2 to Agency's Statement. According to the Agency, to the extent that the Union claims waiver based on the Agency's decision to bargain concerning employees' work schedules, the Union confuses permissive subjects of bargaining under section 7106(b)(1) with prohibited subjects under section 7106(a)(1) and, therefore, the Union's reliance on Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988) (Scott Air Force Base), affirmed as to other matters sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990) is "misplaced." Agency's Statement at 9. The Agency notes that Scott Air Force Base concerned a change in a tour of duty that involved the exercise of management's right to determine the numbers, types and grades of employees, a permissive subject of bargaining under section 7106(b)(1), while the proposal in this case concerns the hours that the office in Region 21 is open for public business, which is a prohibited subject of bargaining under section 7106(a)(1). Id.
As to the Union's contention that the Agency has not explained why existing office hours are more conducive to the accomplishment of its mission, the Agency claims that the Union's contention is "completely irrelevant" to the issues in this case. Id. at 11. The Agency states that it is "privileged to determine how best to accomplish its statutory mission and thus is not obligated to justify its actions." Id. The Agency also claims that the Union is seeking to have the Authority require justification of office hours under the "adverse agency impact" test contained in the Flexible and Compressed Work Schedules Act. The Agency contends that the Union has "no legal basis" to require such a showing because the Agency has bargained in good faith on flexible schedules. Id.
B. The Union
In its Petition for Review, the Union claims that the only basis stated by the Agency for its argument that the proposal is nonnegotiable "is the assertion that the change would interfere with management's right to determine the mission of the Agency under [s]ection 7106(a)(1) of the Statute." Union's Petition for Review at 9. The Union asserts, however, that, in American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872, 873 (1986) (Lowry II), the Authority held that Congress intended the use of alternate work schedules to be "fully negotiable[.]" Id. According to the Union, therefore, the Authority must reject the Agency's contention that the Union's proposal concerning alternate work schedules is nonnegotiable because the proposal violates management's right to determine its mission under section 7106(a)(1) of the Statute. Id.
The Union contends that the flextime provisions of the parties' National Agreement leave certain details, such as the starting and ending time of employees' work schedules, to be determined by the parties at the local level. The Union argues that, while core hours, flexible bands, and starting times may vary from region to region as a function of the hours that a particular Regional Office is open to the public, a region's office hours is one variable that the parties are able to negotiate about at the local level in determining a specific schedule. Id. at 8. The Union contends that the Agency has not shown, and cannot show, that the existing hours are "more conducive to the fulfillment of the mission of the Agency" than the proposed office hours. Id. at 9.
The Union also contends that the proposal is negotiable under Scott Air Force Base because, in that case, the Authority determined that "changes in an agency's hours of operation and the resulting change in the hours of work of employees" are negotiable at the election of the agency. The Union argues that because the National Agreement requires the Agency to negotiate flexible work schedules, the Agency cannot refuse to negotiate on office hours, one of the "key variables" of those schedules. Id. at 10-11.
In its response to the Agency's statement of position, the Union states that the Agency submits two arguments: (1) that the Petition for Review should be dismissed because the Agency and the Union reserved to management the right to determine how to accomplish its mission; and (2) that "precedent had determined that[,] in all instances, the hours that an agency's offices are open" is part of the mission of the agency and nonnegotiable. Union's Response at 1. As to the first argument, the Union concedes the existence of the documents on which the Agency relies, namely, Article 3, Section 2 of the National Agreement and the memorandum of General Counsel. The Union claims, however, that "the collective-bargaining agreement between the Agency and the National Union is silent with regards to a determination that the hours when a Regional Office is open to the public is in any way linked to the 'mission of the agency.'" Id. at 2. The Union argues that because Regional Offices have different office hours, "it cannot be said that the hours are part of the 'mission of the agency.'" Id. The Union also argues that the General Counsel is not allowed to unilaterally determine negotiability.
As to the second argument, the Union claims that the Agency's reliance on Lowry I is misplaced because in that case "there was apparently some determination made that the hours that the agency in question remained open to the public is related to the 'mission of the agency'" and there is no similar determination by the Agency in this case. Id. at 3. The Union also contends that Lowry I is distinguishable because there was no agreement obligating the agency to bargain concerning flexible work schedules and no determination made as to the negotiability of the proposal in that case in light of the Flexible and Compressed Work Schedules Act. Id. at 3-4. The Union claims that the Flexible and Compressed Work Schedules Act requires bargaining on employees' work schedules and, because employee schedules "are so intertwined with the hours that the regional offices are opened to the public," the proposal is negotiable. Id. at 4.
IV. Analysis and Conclusions
We conclude that the proposal directly interferes with management's right to determine its mission under section 7106(a)(1) of the Statute and, in the absence of a claim that the proposal constitutes an appropriate arrangement, it is nonnegotiable.
Based on the record in this case, we find that the proposal would establish the hours that Region 21 would be open to the public. The effect of the proposal would be to require the Agency to establish office hours in Region 21 that are different from the hours that the Agency has already established for that region.
A proposal prescribing the office hours of an agency that provides services to the public directly interferes with management's right, under section 7106(a)(1) of the Statute, to determine the mission of that agency because it restricts management's decision as to when the agency will be available to the public to provide those services. See Social Security Administration, 22 FLRA at 869-70; Lowry I, 16 FLRA at 1105-06. See also Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 32 FLRA 277, 279 (1988). The mission of the Agency in this case is to resolve labor disputes brought to it by members of the public, whether individual employees, unions, or employers. The decision by the management of the regional office as to when that office will be open to the public for the purpose of conducting business is directly linked to the Agency's mission.
Because the proposal in this case prescribes the office hours of the Agency's regional office, a matter which is reserved to management under section 7106(a)(1) of the Statute, we find that the proposal directly interferes with management's right under section 7106(a)(1) to determine the mission of the agency. See also Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 516-17 (1987) (determining the length of the "instructional day" for teachers found nonnegotiable because it interfered with the agency's right to determine its mission under section 7106(a)(1) of the Statute), reversed as to other matters sub nom. Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989); West Point Elementary School Teachers Association, NEA and The United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1536-38 (proposal regarding negotiations over school calendar held to directly interfere with management's right to determine its mission because the proposal restricted management's decision as to when instructional services were to be provided to students), affirmed on other grounds sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936, 942 (2d Cir. 1988). Moreover, because the determination of the Agency's office hours is within its discretion under section 7106(a)(1), the Agency is under no obligation to justify the particular office hours that it chooses to implement. See, for example, International Federation of Professional and Technical Engineers, Local 25 and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 33 FLRA 304, 307 (1988).
As noted earlier, the Union argues that the proposal is negotiable because management's decision as to Region 21's office hours is not a matter that is separable from employees' alternate work schedules, a matter that, under the Authority's decision in Lowry II, is mandatorily negotiable. We disagree with the Union's argument.
In Lowry II, the Authority held that alternate work schedules for bargaining unit employees are negotiable within the limits set by the Flexible and Compressed Work Schedules Act. "Alternate work schedules" concern the starting and quitting times of employees' workdays and the length of employees' workweeks. Under the Flexible and Compressed 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 Flexible and Compressed 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.
"Office hours," on the other hand, are the hours of the day during which the public has an opportunity to conduct business with the Agency. While alternate work schedules--the starting and quitting times of employees who are at work--are related to the office hours established by an agency, the two matters are separate and distinct.
We recognize that there must be employees present during the entire time that the office is open to the public, even if it means that the hours of work of those employees overlap. We note, for example, that the Agency states that the parties' National Agreement establishes "core hours" and "flexible bands" for employees' work schedules by reference to established office hours in order to ensure employee coverage during the period that the office is open to the public. Agency's Statement at 4. See also Article 21, Section 2.(b).(1) of the parties' National Agreement, Attachment 1 to Agency's Statement. However, as discussed above, the fact that alternate work schedules are described in reference to a region's office hours does not make office hours part of alternate work schedules or make office hours not a mission-related determination. We conclude, therefore, that "office hours" and "alternate work schedules" are separate and distinct matters for negotiability purposes.
We also conclude that the Union is in error when it claims that the Agency waived its right to refuse to negotiate concerning office hours because the Agency agreed to bargain over employees' alternate work schedules in the National Agreement. The Union's position is based on the Authority's decision in Scott Air Force Base, in which the Authority, in circumstances that did not involve the Flexible and Compressed Work Schedules Act, held that employees' tours of duty are negotiable at the election of the agency under section 7106(b)(1) of the Statute. The Union claims that because the matter of employees' work schedules is covered by the parties' National Agreement, the Agency has made an election to negotiate on that subject.
However, as noted above, the establishment of employees' alternate work schedules under the Flexible and Compressed Work Schedules Act is distinguishable from a determination by the Agency of the hours during which it will conduct business with the public. The establishment of employees' tours of duty under section 7106(b)(1) is likewise distinguishable from the determination of an agency's office hours. Because the proposal in this case concerns the determination of Region 21's office hours rather than the employees' tours of duty, the proposal concerns the exercise of management's right under section 7106(a)(1) of the Statute, rather than under section 7106(b)(1). Therefore, the issues of "election" and "waiver" that would be involved if the proposal concerned a permissive matter under section 7106(b)(1) do not arise. A reserved management right under section 7106(a)(1) cannot be waived by collective bargaining. See, for example, Michigan Air National Guard, Selfridge ANG Base Michigan and The Association of Civilian Technicians, Michigan State Council, 34 FLRA 296, 298 (1990). See also Overseas Education Association v. FLRA, 827 F.2d 814, 819 (D.C. Cir. 1987) (An agency's agreement "that an employee need not take direction from military officers would be a clear waiver of its statutory right to direct its employees. That is not permissible under § 7106, and therefore is not bargainable.").
Finally, to the extent that there are other issues regarding the duty to bargain in this case, such as whether the proposal is inconsistent with the parties' National Agreement, those issues should be resolved in other appropriate proceedings. See, for example, American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of P