American Federation of Government Employees, AFL-CIO, Local 2361 (Union) and United States Department of the Air Force, 509TH Mission Support Squadron (DPC), Whiteman Air Force Base, Missouri (Agency)

[ v57 p766 ]

57 FLRA No. 168

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2361
(Union)

and

UNITED STATES DEPARTMENT OF
THE AIR FORCE, 509TH MISSION SUPPORT
SQUADRON (DPC), WHITEMAN AIR
FORCE BASE, MISSOURI
(Agency)

0-NG-2606

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

May 3, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and part 2424 of the Authority's Regulations. The appeal concerns the negotiability of two proposals. The Agency filed a statement of position. The Union fileda response to the Agency's statement of position and the Agency filed a reply to the response. [n2] 

      For the reasons that follow, we find that the proposals are within the duty to bargain.

II.     Proposals 1 and 2

Proposal 1  [n3] 
Change the 303rd FS Materials Expediter position from its current work schedule Monday-Friday (7:00 a.m. to 15:30 p.m.) to a Compressed work schedule of Monday-Thursday (10:00 a.m. - 8:00 p.m.)
Proposal 2
This change will remain in effect for a 3-month trial period. Prior to the end of the trial period, negotiations, if requested by the Union, for a permanent shift shall take place.

III.     Background

      The 442nd Fighter Wing (FW), located at Whiteman Air Force Base, Missouri, consists of the 303rd Fighter Squadron (FS) and the 442nd Logistic Support Squadron (LSS). There is one Materials Expediter (ME) position in the 303rd FS and two ME positions in the 442nd LSS. Before the petition for review was filed, all three MEs worked a day shift of Monday through Friday, 7:00 a.m. to 3:30 p.m. The Agency placed one ME from the 442nd LSS on an existing compressed work schedule of Monday through Thursday, 2:30 p.m. to 12:30 a.m. The proposals concern the ME located in 303rd FS. The record reflects that the parties' collective bargaining agreement contains a provision authorizing the use of various alternative work schedules (AWS).

IV.     Positions of the Parties

A.     Agency

      In response to the Union's contention that the proposals are negotiable under the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. §§ 6120-6133 (Work Schedules Act), the Agency argues that the change involving the 442nd LSS, which "merely moved an employee from an established shift to another established shift[,]" concerned a change in a tour of duty for which "[o]nly an [i]mpact and [i]mplementation bargaining obligation arose." Reply at 4. In support, the Agency cites the decision of the administrative law judge in Dep't of the Treasury, IRS, Kansas City Service Center, Kansas City, Mo., 57 FLRA 126, 140 (2001) (IRS, Kansas City Service Center).

      The Agency also contends that the proposals affect management's rights under § 7106(a)(2)(A) and (B) of the Statute, do not constitute appropriate arrangements under § 7106(b)(3) of the Statute, and are negotiable at [ v57 p767 ] the Agency's election under § 7106(b)(1) of the Statute. The Agency states that it has not elected to bargain over them.

      In addition, the Agency argues that the proposals are inconsistent with 5 C.F.R. § 610.121(b)(l), which requires the Agency "to schedule work of the employees to accomplish the mission and correspond with the employees['] actual work requirements." Statement of Position at 4. The Agency asserts that the proposals require the Agency to do without the services of the 303rd FS ME at the beginning of the day shift when that employee is required and prohibit the Agency from scheduling a 442nd LSS ME on the night shift when that employee's services are required.

      Finally, the Agency makes two arguments with respect to the parties' agreement. First, the Agency contends that the proposals "violate[]" the collective bargaining agreement because they concern hours of work of employees in a squadron other than the one that was the subject of the Agency's proposed change. Reply at 2. Second, the Agency states that, under the parties' agreement, assignments to an AWS are based on mission-related reasons.

B.     Union

      The Union contends that the proposals are fully negotiable under the Work Schedules Act. The Union also contends that the proposals have minimal effects on management's rights and that they constitute appropriate arrangements under § 7106(b)(3) of the Statute. In addition, the Union contends that the proposals do not concern the numbers, types and grades of employees and positions assigned to a tour of duty under § 7106(b)(1) of the Statute. The Union states that the Agency established "the need for a ME on the night shift and the Union proposal meets that need with the same number, type and grade of employees from the same squadron." Response at 3.

V.     Analysis and Conclusions

A.     Meaning of the Proposals

      The parties agree that Proposal 1 requires the Agency to change the ME position in the 303rd FS from its current work schedule of Monday through Friday, 7:00 a.m. to 15:30 p.m., to a compressed work schedule of Monday through Thursday, 10:00 a.m. to 8:00 p.m.

      As to Proposal 2, the parties agree that the change referenced therein is the change in Proposal 1. The parties further agree that Proposal 2 sets a 3-month trial period with negotiations for a different permanent work schedule taking place prior to the end of the trial period, at the Union's request.

B.     The Proposals are Negotiable

      It is well-established that, under the Work Schedules Act, alternative work schedules for bargaining unit employees are "fully negotiable" subject only to the Work Schedules Act itself or other laws superseding it. See AFGE, Local 1934, 23 FLRA 872, 873-74 (1986) (Lowry), modified as to other matters, NTEU, Chapter 24, 50 FLRA 330, 333 n.2 (1995). As the Authority has explained, the Work Schedules Act is intended to include within the collective bargaining process "`the institution, implementation, administration and termination of alternative work schedules[.]'" NTEU, 52 FLRA 1265, 1293 (1997) (quoting S. Rep. No. 365, 97th Cong., 2d Sess. 14-15 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News at 565, 576-77). The Authority has consistently held since Lowry that proposals seeking to negotiate alternative work schedules are within the duty to bargain and enforceable under the Statute. See, e.g., NAGE, Local R1-109, 56 FLRA 1043, 1045 (2001) (NAGE); United States Environmental Protection Agency, Research Triangle Park, N.C., 43 FLRA 87, 92-93 (1991) (EPA); NTEU, 39 FLRA 27, 34 (1991) (NTEU).

      In this case, the Union sought to bargain over the establishment of a new compressed work schedule, in addition to those already in existence, for a trial period. The Agency does not assert that the Work Schedules Act precludes bargaining over the implementation of this additional alternative work schedule. Consistent with the precedent described above, we find that the proposals are fully negotiable.

      In reaching this result, we reject the Agency's contention that the proposals are nonnegotiable because they are inconsistent with the exercise of management's rights under § 7106(a) or are otherwise encompassed within § 7106(b)(1) of the Statute. The Authority has held that because alternative work schedules for bargaining unit employees are fully negotiable within the limits set by the Work Schedules Act, there are no issues pertaining to the negotiability of those schedules that the Authority will consider under § 7117 of the Statute, insofar as those issues concern an alleged conflict with the Statute. See NTEU, 39 FLRA at 34. Therefore, the Agency's claim that the proposals violate various provisions of § 7106 of the Statute provides no basis for finding that the proposals, which concern the establishment of alternative work schedules, are contrary to law. See, e.g., NAGE, 56 FLRA at 1045; Space Systems Division, Los Angeles Air Force Base, Los Angeles, California, 45 FLRA 899, 903 (1992); NFFE, Local 642, 27 FLRA 862, 867 (1987), enforced sub nom. Bureau of Land [ v57 p768 ] Management v. FLRA, 864 F.2d 89, 91-92 (9th Cir. 1988). [n4] 

      Further, we reject the Agency's contention that the proposals are inconsistent with 5 C.F.R. § 610.121. [n5] The Authority previously has addressed the requirements of 5 C.F.R. § 610.121 and has found that they govern work schedules established under 5 U.S.C. § 6101, rather than alternative work schedules established under the Work Schedules Act. See EPA, 43 FLRA at 94. Consequently, 5 C.F.R. § 610.121 does not apply to the proposals and does not operate to bar negotiations under the Work Schedules Act.

      Finally, we find no merit to the Agency's claim that the proposals "violate[]" the collective bargaining agreement because they concern hours of work of employees in a different squadron. Reply at 2. There is no assertion that the employee occupying the position encompassed by the proposals is not a bargaining unit employee represented by the Union. The Agency's additional claim, that assignments to an AWS are based on mission-related reasons, goes to the merits of the proposals, rather than their negotiability under the Work Schedules Act, and are not appropriately addressed in this proceeding. See, e.g., NAGE, Local R1-203, 55 FLRA 1081, 1095 (1999); NTEU, 47 FLRA 980, 994 (1993).

VI.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on Proposals 1 and 2. [n6] 


Concurring Opinion of Chairman Cabaniss:

      I write separately to provide a clearer explanation of the circumstances of this case. This may be the first instance before the Authority where an exclusive representative, in the context of impact and implementation (I&I) bargaining, sought to negotiate an alternate work schedule under the Flexible and Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6133 (the Work Schedules Act).

      As noted in the majority opinion, challenges to the establishment of flexible or compressed work schedules must be founded in the "adverse agency impact" standard set out in § 6131 of the Work Schedules Act, rather than on the agency rights arguments present in so many challenges to I&I bargaining proposals. However, and consistent with our I&I review process, I would still entertain challenges to otherwise negotiable Work Schedules Act proposals that are not "sufficiently tailored" to compensate employees for the adverse effects attributable to the exercise of the management right giving rise to the bargaining obligation.

      The sufficiently tailored requirement is an inherent aspect of the negotiability of an I&I proposal. See, e.g., Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 381 (2001). Under that requirement, an otherwise negotiable proposal would not be within the duty to bargain as an I&I proposal if it did not meet the sufficiently tailored requirement. I would apply the same requirement to otherwise negotiable Work Schedules Act proposals just as I would to any other otherwise negotiable proposal submitted as part of I&I bargaining, i.e., it would still have to be sufficiently tailored in order to constitute a proper I&I proposal.



Footnote # 1 for 57 FLRA No. 168

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 168

   The Agency requested permission to file, and filed, a notarized copy of an affidavit that had been included with the Agency's statement of position in a non-notarized form. In the absence of any objections by the Union, the notarized affidavit is accepted into the record.


Footnote # 3 for 57 FLRA No. 168

   In the post-petition conference, held pursuant to § 2424.23 of the Authority's Regulations, the Union clarified Proposal 1 by changing the time stated therein from "7:30-15:30 p.m." to "7:00-15:30 p.m." Post-Petition Conference Record at 2 n.3. In the absence of any objection by the Agency, the proposal will be considered as clarified. See ACT, Inc., Heartland Chap., 56 FLRA 236, 236 n.1 (2000).


Footnote # 4 for 57 FLRA No. 168

   The Agency's reliance on IRS, Kansas City Service Center is unavailing. In that case, and as relevant here, the agency changed core hours and work days of a night shift without bargaining. See 57 FLRA at 135. The administrative law judge found that the agency did not change a negotiated AWS program, which would be fully negotiable. Rather, the judge stated that the agency "changed some employees' tours of duty[,]" Id. at 140, thereby giving rise to impact and implementation bargaining only. The judge's decision contains no findings indicating that the union was seeking to bargain with respect to matters that would fall under the Work Schedules Act. In this case, it is clear that the Union is seeking to bargain over the institution of a new AWS. Moreover, no exceptions were filed to that portion of the judge's decision. Consequently, that portion of the decision is without precedential significance under § 2423.41 of the Authority's Regulations and may not be relied on to support the Agency's position in this case. See United States Penitentiary, Florence, Colorado, 54 FLRA 30, 30-31 n.* (1998).


Footnote # 5 for 57 FLRA No. 168

   The hours of an employee's workday or workweek are defined by 5 C.F.R. § 610.102 as the employee's "tour of duty." "Tour of duty" means the hours of a day and days of an administrative workweek that constitute an employee's regularly scheduled administrative workweek. 5 C.F.R. § 610.102.


Footnote # 6 for 57 FLRA No. 168

   In finding these proposals negotiable, we make no jud