National Federation of Federal Employees, Local 1998, International Association of Machinists and Aerospace Workers, Federal District 1 (Union) and United States, Department of State, Passport Services, Seattle, Washington

[ v60 p141 ]

60 FLRA No. 34

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES,
LOCAL 1998
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, FEDERAL DISTRICT 1
(Union)

and

UNITED STATES
DEPARTMENT OF STATE
PASSPORT SERVICES
SEATTLE, WASHINGTON
(Agency)

0-NG-2735

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

August 17, 2004

_____

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 concerns the negotiability of three proposals. The proposals were submitted in response to the Agency's decision to terminate three of eight compressed work schedules. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position and the Agency filed a reply to the response.

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

II.      Proposals  [n2] 

Proposal 1
Maintain the status quo.
Proposal 2
Make 6:45 AM the earliest start time available to bargaining unit employees. The only bargaining unit employees affected by the change in start times are those currently starting at 6:30 AM.
Proposal 3
1.     Accept the 7:00 AM start time contingent upon agreement of the following proposals:
....
3.     Implementation of a Flexible Work Schedule, Maxiflex option, with credit hours. Though we would prefer to move core hours from 8:00 to 3:15, we can agree to maintain the current core hours. See OPM Handbook on Alternate Work Schedules at http:/www.opm.gov/oca/aws/index.htm
4.     Additional part-time slots.

III.     Background

      Pursuant to the parties' collective bargaining agreements at the national and local levels, eight compressed work schedules were available for use at the Agency. The Agency terminated the three schedules that had the earliest possible start times. See Response at 27-28. The proposals at issue in this case were submitted in response to the Agency's termination of those three compressed work schedules. See Record at 2; Statement of Position (SOP) at 1; Response at 27-28.

      After filing the petition for review in this case, the Union filed a grievance challenging the Agency's termination of the compressed work schedules on the grounds that the Agency "unilaterally change[d] the work schedules of bargaining unit employees in violation of the [a]greement and the law[.]" Record, Attachment at 1. [n3] Referring to any possible connection between the issues raised in the grievance and those raised in the [ v60 p142 ] petition for review, the Union stated that "[i]f in any way there is a conflict or question on which issue should be settled in which forum . . . we hereby rescind any such portion of this grievance in favor of that [negotiability] appeal." Id. 7.

IV.      Meaning of the Proposals

      The parties agree that Proposal 1 requires the Agency to keep in place the start time of the workday for employees on the CWS agreed to by the Seattle Union/Management Council on September 5, 2001, which includes the following start times: 6:30 a.m. for two employees; 6:45 a.m. for eight employees; 6:50 a.m. for one employee, and 6:55 a.m. for one employee. See Record at 2; Petition for Review, Attachment D at 2; Response at 13.

      As to Proposal 2, the parties agree that it would require the start time to be 6:45 a.m. and not 7:00 a.m. See Record at 3.

      As to Proposal 3, the parties agree that the 7:00 a.m. start time provided in Part 1 is contingent on the parties reaching agreement on Parts 3 and 4 of Proposal 3. The Union explains that Parts 3 and 4 are intended to allow employees additional options to address the impact the change in start time would have on the employees' commuting and child care arrangements. See id.

      The Union states that Part 3 of Proposal 3 seeks a flexible work schedule, maxiflex option with credit hours, which is currently unavailable. See id. at 4. The Union further states that Part 4 of Proposal 3 seeks additional part-time slots and would provide an option for those employees who need to leave work earlier than the ending time would permit under a 7:00 a.m. start time. See id. Both parties view part-time slots to be within the scope of the Agency's alternative work schedules program. See Response at 18; SOP at 18. We also note that § 6128(b) of the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. §§ 6120-6133 (Work Schedules Act or Act) contemplates that compressed work schedules may apply to part-time employees. [n4] For purposes of this decision, we find that the portion of Proposal 3 seeking part-time slots involves the Agency's alternative work schedules.

      The parties dispute whether the proposals pertain to the work schedules of supervisors. The Agency argues that the proposals are not limited to unit employees and would require management to direct supervisors to adjust their work schedules. See SOP at 10. The Union argues that the proposals concern only unit employees and not supervisors. See Record at 2; Response at 46. Because the Union's explanation is consistent with the wording of the proposals, and in the absence of any wording in the proposals that pertain to supervisors, we adopt the Union's explanation. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996). Accordingly, we find that the proposals pertain only to unit employees and not to supervisors. [n5] 

V.      Positions of the Parties

A.     Agency

      The Agency contends that the three proposals are nonnegotiable because they are inconsistent with § 6122(a) of the Work Schedules Act. See SOP at 1. The Agency argues that, under 5 U.S.C. § 6122(a), it has the right to make adjustments in the start times of employees and does not have a duty to bargain over its decision. In this regard, the Agency explains that it changed the start time to ensure supervisory coverage while employees are performing their duties under compressed work schedules, and to restrict access to the exterior alarm system to supervisors only. See id. at 1 and 10-11. In support, the Agency relies on Air Force Accounting and Finance Center, Denver, Colo., 42 FLRA 1196, 1200 (1991) (Air Force Accounting and Finance Center).

      Further, the Agency contends that the proposals affect various management rights because they would preclude proper supervisory coverage of employees in the performance of adjudication of passport applications, and require the Agency to hire more supervisors to ensure such supervisory coverage. In this regard, the Agency contends that the proposals would affect management's rights to determine its budget, organization, number of employees and its internal security practices under § 7106(a)(1) of the Statute. The Agency also contends that the proposals relate to the numbers, types and grades of employees and that the proposals are therefore negotiable only at the election of the Agency under § 7106(b)(1).

      Next, the Agency asserts that it is not obligated to bargain over the proposals because they are contrary to the Agency's Guidelines for Compressed Work Schedule (CWS Guidelines), which ensure the availability of supervisory coverage while employees are performing their duties under the compressed work schedules. See SOP at 9-10.

      In addition, the Agency contends that it does not have the authority under the parties' national agreement to bargain at the local level over the proposals. See id. [ v60 p143 ] Specifically, as to Proposal 3, the Agency claims that the parties have already bargained over and/or agreed to provisions similar to Parts 3 and 4 of that proposal. See id. at 15-16. The Agency argues that the matter of a maxiflex option with credit hours, referenced in Part 3 was raised, and rejected, in bargaining at the national level of exclusive recognition. See id. The Agency further argues that the matter of part-time slots in connection with alternative work schedules is addressed in the national agreement, and that the Agency does not have the authority to modify or bargain on that matter at the local level. See id. at 18.

      The Agency opposes the Union's request to sever Proposal 3 and views Parts 1, 3, and 4 as a whole. See Record at 4.

B.     Union

      The Union states that the proposals address the elimination of three of eight compressed work schedules. See Response at 27-28. The Union contends that the three proposals are fully negotiable under the Work Schedules Act. The Union also argues that the Agency's reliance on Air Force Accounting and Finance Center as grounds for finding the proposals inconsistent with 5 U.S.C. § 6122(a) is misplaced. See Response at 26. The Union asserts that that case concerned flexible work schedules and not compressed work schedules at issue here. See id. The Union adds that in that case management wanted to change employees' schedules to ensure office coverage and, by contrast, here all employees are present during the core hours of 8:00 a.m. to 3:30 p.m. to ensure office coverage. See id.

      Further, the Union argues that because the proposals are fully negotiable under the Work Schedules Act, the Agency's management's rights arguments are not subject to review by the Authority under the Statute. In any event, the Union argues that the Agency's claim that maintaining the terminated compressed work schedules would prevent the employees from fulfilling their duties constitutes a claim that the Union's proposals will have an adverse impact, matters that are not properly resolved by the Authority in this proceeding but, rather, by the Federal Service Impasses Panel (FSIP). See id. at 5, 24 -25. In addition, the Union asserts that the national agreement permits bargaining at the local level over proposals such as these pertaining to alternative work schedules. See id. at 49.

      The Union requests that the Authority sever Proposal 3, and that Parts 1 and 3 of that proposal be read together, and Parts 1 and 4 together. See Record at 4.

VI.     Preliminary Matter

      The Union requests a hearing to resolve certain issues in the case. Under § 2424.31 of the Authority's Regulations, 5 C.F.R. § 2424.31, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact . . . ." Here, the Union has not set forth any disputed issues of material fact for the Authority to consider at a hearing. Therefore, we deny the Union's request for a hearing. See, e.g., Prof'l Airways Systems Specialists, 59 FLRA 25, 25 n.2 (2003).

VII.      Analysis and Conclusions

A.     The Proposals Are Not Contrary to Law

      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) (Code). 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., United States, Dep't of Labor, Washington, D.C., 59 FLRA 131, 135 (2003) (Chairman Cabaniss concurring); AFGE, AFL-CIO, Local 2361, 57 FLRA 766, 767-68 (2002) (Local 2361) (Chairman Cabaniss concurring as to other matters); 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 parties bargained and entered into a collective bargaining agreement providing for the use of a compressed work schedule and establishing several different compressed work schedules. The Agency terminated three of the eight schedules, which prompted the Union to submit its proposals seeking either to retain all of the existing schedules or negotiate several alternatives.

      Our review of the Work Schedules Act demonstrates that where, as here, the agency seeks to terminate a compressed work schedule, the procedures of § 6131(c)(3) of the Act must be followed. As described more fully in the Act's legislative history:

Paragraph (3) of subsection (c) allows an agency at any time to reopen a collective bargaining agreement to seek termination of a schedule if the agency determines that the schedule is having an adverse impact. The agency must attempt [ v60 p144 ] to negotiate with the exclusive representative over the question of termination. It is expected that the agency will consider a less drastic alternative to termination if that is possible. Any modification to the schedule is subject to the normal collective bargaining process, the authority of which resides in other provisions of the Code. If, however, the parties reach an impasse over termination, the impasse shall be presented to and resolved by the Panel. The burden again is on the agency to show that the schedule has caused an adverse agency impact. If a sufficient showing is made, the Panel must uphold the agency decision to terminate. The Panel must rule on the impasse within 60 days of its presentation. Finally, an agency may not terminate a schedule until the agreement covering such schedule is renegotiated, expires or terminated pursuant to the agreement or where an impasse arose in the reopening of the agreement, the date of the Panel's final decision.

See Code at 578.

      As is evident from the Act and its legislative history, where an agency seeks to terminate a negotiated compressed work schedule, the agency must negotiate with the union and, if an impasse in such negotiations is reached, the impasse is presented to the Panel for final resolution. That negotiations are required, as an initial matter, is further evidenced by regulations prescribed by the Panel to implement § 6131 of the Work Schedules Act. See 5 C.F.R. Part 2472. Under § 2472.4, either or both parties may request "consideration of an impasse arising from an agency determination . . . to terminate a . . . compressed work schedule . . . ." The term "impasse" is defined as "that point in the negotiation of . . . compressed work schedules at which the parties are unable to reach agreement on whether a schedule has had or would have an adverse agency impact." 5 C.F.R. § 2472.2(k). Further, to support a request for Panel assistance, the requester must provide the "[n]umber, length, and dates of negotiation sessions held[.]" 5 C.F.R. § 2472.4(a)(3).

      Once the Panel has accepted a request for assistance, it is obligated to uphold the agency's decision to terminate a schedule "if the finding on which the termination is based is supported by evidence that the schedule has caused an adverse agency impact." 5 U.S.C. § 6131(c)(3)(C). See, e.g., United States Dep't of Justice, INS, Los Angeles, Cal., 59 FLRA 387, 388 (2003) ("§ 6131 confirms that parties are required to bargain over the substance of proposed terminations of alternative work schedules and sets forth the standard (`adverse agency impact') for when the Panel will approve proposed terminations."). See also Lowry, 23 FLRA at 874 (Authority described essentially the same statutory and regulatory scheme by which agencies could object to the establishment, rather than termination, of alternative work schedules).

      In this case, as stated above, the Union sought to bargain over the termination of three compressed work schedules by submitting several proposals. The record contains no evidence that the parties bargained over the proposals, reached an impasse in their negotiations, or requested assistance by the Panel. Consistent with the statutory scheme and precedent described above, we find that the Agency was required to bargain with the Union. For the reasons explained below, we further find that the proposals are within the duty to bargain, as they are not inconsistent with law.

      First, 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 termination of alternative work schedules, are contrary to law. See, e.g., Local 2361, 57 FLRA at 767; NAGE, 56 FLRA at 1045; Space Sys. Div., Los Angeles Air Force Base, Los Angeles, Cal., 45 FLRA 899, 903 (1992); NFFE, Local 642, 27 FLRA 862, 867 (1987), enforced sub nom. Bureau of Land Mgmt. v. FLRA, 864 F.2d 89, 91-92 (9th Cir. 1988).

      Furthermore, as noted above, the Authority is limited in its review of proposals for alternative work schedules to questions concerning whether such a schedule conflicts with the Work Schedules Act itself or other laws superseding it. The Agency argues only that the proposals are inconsistent with 5 U.S.C. § 6122(a) and relies on Air Force Accounting and Finance Center for support. We reject the argument.

      Compressed work schedules are governed by 5 U.S.C. § 6127. Under that section, agencies can establish 4-day workweeks or other compressed schedules. The Agency makes no arguments that the proposals are inconsistent with § 6127. Rather, the Agency argues that the proposals are inconsistent with § 6122(a), which pertains to the establishment and use of flexible schedules. [n6] The Authority previously has stated that § 6122 does not pertain to compressed work schedules. See, e.g., AFGE, Nat'l Council of SSA Field [ v60 p145 ] Operations Locals, Council 220, 54 FLRA 891, 901 (1998). Consequently, the Agency's arguments that rely solely on § 6122 do not provide a basis for finding that the proposals are outside the duty to bargain as inconsistent with the Work Schedules Act.

      The arguments that the Agency makes, including those pertaining to the effect of the proposals on supervisory personnel, appear to be based on a claimed adverse agency impact. In this regard, the Agency contends that the proposals would preclude proper supervisory coverage of employees in the performance of adjudication of passport applications, and would require the Agency to hire more supervisors to ensure such supervisory coverage. As these arguments appear to relate to the potential adverse impact of the compressed work schedules on the Agency's operations, we construe them as claims under 5 U.S.C. § 6131(c)(3) that the schedules would cause an adverse agency impact. The Authority does not resolve claims concerning adverse agency impact. Rather, as described above, the claims are more appropriately addressed by the Panel if, after bargaining, the parties reach an impasse in their negotiations. [n7] See 5 U.S.C. § 6131(c)(3).

      For the reasons set forth above, we find that the proposals are not contrary to law. [n8] 

B.      The Proposals Are Not Inconsistent with the Agency's CWS Guidelines

      The Agency argues that the proposals are contrary to the Agency's CWS Guidelines. As noted, the Authority is limited in its review of proposals for alternative work schedules to questions concerning whether such a schedule conflicts with the Work Schedules Act itself or other laws superseding it. There is no assertion by the Agency, or basis on which to conclude, that the CWS Guidelines constitute a law that supersedes the Work Schedules Act. Therefore, the Agency's claim that the proposals violate the Agency's CWS Guidelines provides no basis for finding that the proposals, which concern the termination of compressed work schedules, are contrary to law.

C.      There Is No Basis for Addressing the Agency's Bargaining Obligation Claims

      The Agency contends that the Agency does not have the authority under the parties' national agreement to bargain at the local level over the proposals. See SOP at 15; Response at 49. The Authority has previously held that the bargaining obligation disputes that are appropriately resolved in a negotiability proceeding are limited to those concerning an obligation to bargain under the Statute. See Nat'l Ass'n of Agric. Employees, Branch 11, 57 FLRA 424, 427 (2001). Here, the parties' dispute involves only whether the Agency is required to bargain at the local level under the parties' national agreement; it does not involve the Agency's obligation to bargain under the Statute. Consequently, we find that there is no basis for addressing the Agency's claim. See AFGE, Local 3529, 57 FLRA at 176.

      We also reject the Agency's claim, as to proposal 3, that the parties have already bargained over and/or agreed to provisions similar to Parts 3 and 4 of that proposal. See SOP at 15-16. As we stated above, in Part VII.A., once the Agency decided to terminate some of its compressed work schedules, it was obligated to negotiate in a manner consistent with § 6131(c)(3) of the Act. The fact that it had previously negotiated over the establishment of the compressed work schedules does not relieve it of the obligation, under the Work Schedules Act, to bargain over the termination of some of those schedules.

VIII.      Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on Proposals 1, 2, and 3. [n9] 1 [ v60 p46 ]


APPENDIX

1.      The Agency's Guidelines for Compressed Work Schedule provide, in pertinent part, as follows:

C. Supervision

      The CWS is made up of eight 9 3/4 hour days and one 8 3/4 hour day. With a large number of employees participating, an agency could conceivably have several employees on duty at 7:15 a.m. and working until 6:00 p.m. Regional Directors need to ensure that there is adequate supervision during these periods, particularly during the opening and close of business.

      Guideline: That at least one senior manager be present in the agency while employees are performing their duties under the CWS. Senior managers include the Regional Director, the Assistant Regional Director, the Customer Service Manager, the Adjudication Manager and the Fraud Manager.

2.       The Seattle Regional Union Management Council Agreement Regarding Flexitour and Compressed Work Schedules, dated September 5, 2001 provides, in pertinent part, as follows:

3. Compressed Schedules

At the Seattle Passport Agency only the 5/4-9 compressed schedule plan, in which an employee works eight 9-hour days and one 8-hour day, in a two-week pay period, is available. The 10/4 compressed schedule is not available at this Agency.

The 8-hour day for all employees will be the first Thursday of the pay period.

The earliest start time for any employee on the compressed schedule is 6:45 AM. No employee may work later than 5:00 PM. An employee may take either a 30-minute or a 45-minute lunch break. The start and stop time for the schedule must be the same each day. These schedules are arranged in quarter-hour increments (i.e. start times of: 6:45, 7:00, 7:15, and 7:30 AM). A list of the 7 schedules is attached.

Two limited exceptions to these restrictions will be allowed for Denise Sleister and Sandi Gaston to work either a 6:30 AM-4:00 PM (30 minute lunch) or 6:30 AM-4:15 PM (45 minute lunch) schedule, subject to the other conditions in the Agreement. These exceptions are limited to these two employees. If either one drops from or is removed from the compressed schedule, the slot will no longer be available.

3. The Work Schedules Act, 5 U.S.C. §§ 6120 et seq., provides in relevant part:

§ 6121: Definitions

For purposes of this subchapter--

. . . .

(5) "compressed schedule" means--

(A) in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays[.]

§ 6122: Flexible schedules; agencies authorized to use

(a) Notwithstanding section 6101 of this title, each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules which include--

(1) designated hours and days during which an employee on such a schedule must be present for work; and
(2) designated hours during which an employee on such a schedule may elect the time of such employee's arrival at and departure from work, solely for such purpose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday.

An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled.

§ 6127: Compressed schedules; agencies authorized to use

(a) Notwithstanding section 6101 of this title, each agency may establish programs which use a 4-day workweek or other compressed schedule.

(b)(1) An employee in a unit with respect to which an organization of Government employees has not been accorded exclusive recognition . . . (a) unless a majority of the employees in such unit who, but for this paragraph, would be included in such program have voted to be so included.

(2) Upon written request to any agency by an employee, the agency, if it determines that participation in a program under subsection (a) would impose a personal hardship on such employee, shall--

(A) except such employee from such program; or 147
(B) reassign such employee to the first position within the agency--
(i) which becomes vacant after such determination,
(ii) which is not included within such program,
(iii) for which such employee is qualified, and
(iv) which is acceptable to the employee.

A determination by an agency under this paragraph shall be made not later than 10 days after the day on which a written request for such determination is received by the agency.

§ 6128: Compressed schedules; computation of premium pay

. . . .

(b) In the case of any full-time employee, hours worked in excess of the compressed schedule shall be overtime hours and shall be paid for as provided by the applicable provisions referred to in subsection (a) of this section. In the case of any part-time employee on a compressed schedule, overtime pay shall begin to be paid after the same number of hours of work after which a full-time employee on a similar schedule would begin to receive overtime pay.

. . . .

§ 6131: Criteria and review

(a) Notwithstanding the preceding provisions of this subchapter or any collective bargaining agreement and subject to subchapter (c) of this section, if the head of an agency finds that a particular flexible or compressed schedule under this subchapter has had or would have an adverse agency impact, the agency shall promptly determine not to--

      (1) establish such schedule; or

      (2) continue such schedule, if the schedule has already been established.

(b) For purposes of this section, "adverse agency impact" means--

      (1) a reduction of the productivity of the agency;

      (2) a diminished level of services furnished to the public by the agency; or

      (3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).

(c)(1) This subsection shall apply in the case of any schedule covering employees in a unit represented by an exclusive representative.

      (2)(A) If an agency and an exclusive representative reach an impasse in collective bargaining with respect to an agency determination under subsection (a)(1) not to establish a flexible or compressed schedule, the impasse shall be presented to the Federal Service Impasses Panel (hereinafter in this section referred to as the "Panel").

      (B) The Panel shall promptly consider any case presented under subparagraph (A), and shall take final action in favor of the agency's determination if the finding on which it is based is supported by evidence that the schedule is likely to cause an adverse agency impact.

      (3)(A) If an agency and an exclusive representative have entered into a collective bargaining agreement providing for use of a flexible or compressed schedule under this subchapter and the head of the agency determines under subsection (a)(2) to terminate a flexible or compressed schedule, the agency may reopen the agreement to seek termination of the schedule involved.

      (B) If the agency and exclusive representative reach an impasse in collective bargaining with respect to terminating such schedule, the impasse shall be presented to the Panel.

      (C) The Panel shall promptly consider any case presented under subparagraph (B), and shall rule on such impasse not later than 60 days after the date the Panel is presented the impasse. The Panel shall take final action in favor of the agency's determination to terminate a schedule if the finding on which the determination is based is supported by evidence that the schedule has caused an adverse agency impact.

      (D) Any such schedule may not be terminated until--

      (i) the agreement covering such schedule is renegotiated or expires or terminates pursuant to the terms of that agreement; or

      (ii) the date of the Panel's final decision, if an impasse arose in the reopening of the agreement under subparagraph (A) of this paragraph.

      (d) This section shall not apply with respect to flexible schedules that may be established without regard to the authority provided under this subchapter.


File 1: Authority's Decision in 60 FLRA No. 34
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 60 FLRA No. 34 - Authority's Decision

   Chairman Cabaniss's separate opinion appears at the end of this decision.


Footnote # 2 for 60 FLRA No. 34 - Authority's Decision

   Only those portions of the proposals that are still in dispute, as reflected in the post-petition conference, are set forth. See Record of Post-Petition Conference (Record) at 3.


Footnote # 3 for 60 FLRA No. 34 - Authority's Decision

   The record reflects that the Union invoked arbitration of the grievance. See SOP, Attachment 7 at 1. There is no further evidence as to the status of the grievance.


Footnote # 4 for 60 FLRA No. 34 - Authority's Decision

   The relevant portions of the Work Schedules Act are set forth in the Appendix.


Footnote # 5 for 60 FLRA No. 34 - Authority's Decision

   For the reasons explained below, the Agency's claims concerning the effect of the proposals on nonbargaining unit employees are more appropriately addressed in a proceeding before the Federal Service Impasses Panel.


Footnote # 6 for 60 FLRA No. 34 - Authority's Decision

   The legal distinction between flexible and compressed work schedules is set forth in 5 U.S.C. §§ 6121 and 6122. The basic compressed schedules are: (1) the "4-10," in which employees complete their bi-weekly 80-hour work requirement by working four ten-hour days per week, with one day off each week; and (2) the "5-4/9," wherein the employee works eight nine-hour days and one eight hour day over the course of a bi-weekly pay period, with one day off every other week. Flexible work schedules are 8 hours per day, 5 days per week work schedules that allow employees to earn credit hours by working more than 8 hours on a work day and to vary their starting and quitting times on a daily basis. See AFGE, Local 2128, 58 FLRA 519, 520 n.3 (2003).


Footnote # 7 for 60 FLRA No. 34 - Authority's Decision

   Member Pope notes that the Chairman and Members all agree on this point. Member Pope also notes that the fact that the Agency's claims are more appropriately addressed by the Panel does not mean that the Authority lacks jurisdiction over the Union's petition for review. In this regard, the Union's petition was filed following the Agency's allegation that the Union's proposals are nonnegotiable and, as noted above, the record contains no evidence that the parties bargained over the proposals, reached impasse, or requested Panel assistance. In these circumstances -- noting particularly that there is no contention to the contrary -- Member Pope finds that the Authority has jurisdiction to resolve, and no basis to dismiss, the petition, especi