37:0490(36)NG - - NAGE Local R14-73 and DOD, NG Bureau, Missouri Army NG - - 1990 FLRAdec NG - - v37 p490
[ v37 p490 ]
The decision of the Authority follows:
37 FLRA No. 36
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MISSOURI ARMY NATIONAL GUARD
DECISION AND ORDER ON NEGOTIABILITY ISSUE
September 25, 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). The dispute concerns the negotiability of a single proposal that would require the Agency to bargain over alternative work schedules for technicians employed in the Missouri National Guard. For the reasons discussed below, we find that the proposal is outside the Agency's duty to bargain because it conflicts with section 709(g) of the National Guard Technician Act, 32 U.S.C. § 709(g) (1988) (Technician Act).
The Union may propose flextime or alternative work schedules for any or all worksites at anytime during the term of this agreement. Any agreement reached is subject to approval by NGB pursuant to applicable regulations.
A. Positions of the Parties
The Agency maintains that the proposal would require it to bargain over the establishment of flexible and alternative work schedules, including compressed work schedules. The Agency contends that the negotiability of the proposal depends on whether the Federal Employees Flexible and Compressed Work Schedules Act (*) (Work Schedules Act) conflicts with provisions of the Technicians Act.
Based on the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) (Illinois National Guard), the Agency maintains that the discretion of the Secretary of the Army or Air Force to establish the hours of work of National Guard Technicians "was intended by the Technicians's Act to be unfettered by any other provisions of law, especially by the bargaining requirement of the 'Schedules Act.'" Statement of Position at 3. The Agency argues that the court's decision makes it clear that section 709(g) of the Technicians Act, which provides that the Secretary has discretion to establish the work hours of National Guard Technicians, takes precedence over the general bargaining provisions of the Work Schedules Act. Consequently, the Agency contends that the proposal, which requires the Agency to bargain over alternative work schedules, is outside the duty to bargain.
The Agency also maintains that the proposal conflicts with Technician Personnel Regulation 600(610.1), and that there is a compelling need, within the meaning of section 7117 of the Statute, for the regulation. The Agency contends that absent unusual circumstances, the Adjutant General cannot, consistent with the regulation, approve a workweek of fewer than 5 days. Consequently, the Agency contends that the proposal, which could allow a compressed work schedule, would conflict with the regulation. The Agency maintains that there is a compelling need for the regulation, within the meaning of 5 C.F.R. § 2424.11(c) of the Authority's Regulations, because it implements in an essentially nondiscretionary manner the mandate in section 709(g) of the Technicians Act concerning hours of work.
The Union did not file a response to the Agency's statement of position. In its petition for review, the Union maintains that "the proposal was designed to permit the Union to propose alternative work schedules for unit employees who wished to work something other than the standard hours of work." Petition for Review at 1. The Union notes that under the proposal the Agency would be obligated to bargain over these work schedules to the extent that they were consistent with National Guard Bureau regulations. Consequently, the Union maintains that the proposal is within the Agency's duty to bargain.
B. Analysis and Conclusions
The matter of alternative work schedules for technicians employed by the National Guard was addressed by the D.C. Circuit in Illinois National Guard, 854 F.2d 1396. In that case, the court found that the hours of work of National Guard Technicians were covered under section 709(g) of the Technicians Act, which states in relevant part that "[n]otwithstanding . . . any other provision of law, the Secretary concerned may . . . prescribe the hours of duty for technicians." 32 U.S.C. § 709(g)(2). Based on this provision, the court held that the Secretaries of the Army and the Air Force have "unfettered discretion" to establish hours of work for National Guard technicians. 854 F.2d at 1401-02. The court further held that the Secretaries' discretion constituted an exception to any bargaining obligation the Agency might otherwise have had under the Work Schedules Act. Id. at 1403-05.
In National Guard Bureau and Adjutant General, State of Pennsylvania and Pennsylvania State Council, Association of Civilian Technicians, 35 FLRA 48 (l990) (Adjuta