18:0326(43)NG - Maritime/Metal Trades Council and Panama Canal Commission -- 1985 FLRAdec NG
[ v18 p326 ]
18:0326(43)NG
The decision of the Authority follows:
18 FLRA No. 43
MARITIME/METAL
TRADES COUNCIL
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. 0-NG-979
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of five Union proposals. /1/ Upon careful
consideration of the entire record, including the contentions of the
parties, the Authority makes the following determinations.
Union Proposal 1
The early retirement provisions of Pub. L. 96-70 are
incorporated herein by reference and made a part of this
agreement.
Based on the record herein, it appears that Union Proposal 1 would
incorporate in the parties' negotiated agreement the provisions of 5
U.S.C. 8336(i) and 8339(d)(2) relating to early retirement. /2/ The
Union states that the inclusion of these provisions by reference within
the agreement is intended "to open up title 7 avenues of redress." /3/
The Agency contends, without controversion, that the Union intends
thereby to provide for unit employees to grieve the denial of claims for
early retirement through the negotiated grievance procedure. /4/ As
such, the Agency argues, the proposal is outside the duty to bargain
under section 7117(a)(1) of the Statute /5/ because it is inconsistent
with law, i.e., section 7121(c)(2) of the Statute, which excludes
matters pertaining to retirement from the scope of the negotiated
grievance procedure. /6/ The Authority agrees.
Section 7121(c)(2) excludes from the grievance procedures required by
section 7121(a) and (b) of the Statute any grievance concerning
retirement. Thus, to the extent that Union Proposal 1 is intended to
provide a basis for employee grievances as to denial of claims for early
retirement benefits pursuant to 5 U.S.C. 8336(i) and 8339(d)(2), it is
clearly inconsistent with section 7121(c)(2) and is outside the duty to
bargain under section 7117(a)(1). The exclusion of such grievances as
are contemplated by the proposal is clear on the face of section
7121(c)(2). The reason for the exclusion is evident from consideration
of the provisions of law relating to retirement benefits for Federal
employees. In particular, under 5 U.S.C. 8347(b) the Office of
Personnel Management (OPM) is granted jurisdiction over the adjudication
of all claims as to benefits under subchapter III of chapter 83 of title
5 of the United States Code. See also 5 CFR 831.101. Under 5 U.S.C.
8347(d)(1) an administrative action or order affecting the rights of
individuals under subchapter III of chapter 83 of title 5 may be
appealed to the Merit Systems Protection Board (MSPB). /7/ See also 5
CFR 1201.3(a)(6). Thus, it is evident that matters pertaining to
retirement are excluded from the negotiated grievance procedure because
they are subject to other procedures under law. /8/
Union Proposal 2
The Commission will eliminate all discriminatory provisions in
its travel regulations.
By its plain language, as well as the Union's stated intent, Union
Proposal 2 would require the Agency to eliminate all provisions of its
travel regulations which provide benefits to some employees that are
denied to others. However, while the Union claims that the proposal is
intended to eliminate provisions of the Agency's travel regulations
which provide different benefits to employees based upon such
distinctions as whether they were hired in Panama prior to the Panama
Canal Treaty of 1977, it does not cite the provisions of the regulations
having the alleged discriminatory effect to which it refers. Nor does
the Union cite discriminatory effect, stating that "it is difficult for
(it) to point out all various areas" in which discriminatory provisions
based on date and place of employment, "or others, are extant or apply
to employees in the bargaining unit." /9/ The Agency, citing the
Authority's decision in Association of Civilian Technicians, Alabama ACT
and State of Alabama National Guard, 2 FLRA 314 (1979), argues that the
proposal is not sufficiently specific and delimited in form and content
so as to enable it to determine whether or not the proposal is
negotiable. In particular, the Agency claims that it is not possible to
determine whether the proposal violates applicable law and
Government-wide regulation by requiring the elimination of distinctions
between employees required by such law and regulation. The Authority
agrees.
In this regard, since the Union has not specified which provisions of
the Agency's travel regulations establish benefits based upon date and
place of employment, it is not possible to determine whether the
elimination of such provisions would conflict with law and regulation.
See, for example, 22 U.S.C. 3647, which provides round-trip
transportation for undergraduate college education for dependents of
certain specified employees based upon the date of their employment.
Moreover, while the Union implies that there are provisions of the
Agency's travel regulations which may have other discriminatory effects,
it admits that it is unable to identify any such provisions or specify
any other distinctions among employees which would be affected by the
proposal. In essence, the Union itself concedes that it cannot indicate
what actions the Agency would need to take to comply with the proposal.
The Authority has consistently held that, in order for a
determination as to the negotiability of a proposal to be made, that
proposal must be set forth with sufficient specificity the particular
matter to be negotiated. Without such specificity it is impossible to
measure the proposal against applicable law and regulation so as to
determine whether it is inconsistent therewith. While the proposal here
in dispute would require the elimination of discriminatory provisions,
it does not specify, or provide a basis for determining, which
provisions are discriminatory so as to permit a determination as to
whether elimination thereof would be consistent with law and regulation.
Thus, Union Proposal 2 is not sufficiently specific and delimited to
permit a negotiability determination. Therefore, Union Proposal 2 does
not meet the conditions for review set forth in section 7117(a)(1) of
the Statute and section 2424.1 of the Authority's Rules and Regulations.
See National Federation of Federal Employees, Local 1167 and Department
of the Air Force, Headquarters, 31st Combat Support Group (TAC),
Homestead Air Force Base, Florida, 6 FLRA 574, 584 (1981), affirmed as
to other matters sub nom. National Federation of Federal Employees,
Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (1982);
American Federation of Government Employees, AFL-CIO, Local 3525 and
United States Department of Justice, Board of Immigration Appeals, 10
FLRA 61, 66-68 (1982); Fort Bragg Unit of North Carolina Association of
Educators, National Education Association and Fort Bragg Dependents
Schools, Fort Bragg, North Carolina, 12 FLRA 519, 527 (1983).
Union Proposal 3
The Commission yacht 'Blue Runner' will be made available to
professional employees on an equitable, negotiated basis once a
month on a weekend.
Based upon the language of the proposal and the record in the case,
it appears that Union Proposal 3 is intended to provide unit employees
with the use of the Agency's launch for recreational purposes on
weekends. The Agency contends that the proposal is outside the duty to
bargain under section 7103(a)(14) of the Statute because it does not
concern the "conditions of employment" of unit employees. /10/ The
Authority agrees.
The Authority has consistently held, as a general rule, that matters
concerning non-work activities of employees while in a non-duty status
do not constitute "conditions of employment" within the meaning of
section 7103(a)(14) of the Statute. See International Association of
Fire Fighters, AFL-CIO, Local F-116 and Department of the Air Force,
Vandenberg Air Force Base, California, 7 FLRA 123 (1981) (proposal
providing off-duty employees and dependents use of agency property for
recreational purposes, e.g., hunting and fishing, does not concern
"conditions of employment"); American Federation of Government
Employees, Local 225 and U.S. Army Armament Research and Development
Command, Dover, New Jersey, 11 FLRA 630 (1983) (proposal concerning us
of "picnic area" and "recreational facilities" does not concern
"conditions of employment"); National Federation of Federal Employees,
Local 1363 and United States Army Garrison, Yongsan, Korea, 12 FLRA 635
(1983) (proposal concerning dispensation of alcoholic beverages in
membership association nonappropriated fund instrumentalities does not
concern "conditions of employment"); International Organization of
Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508,
517-18 (1983) (proposal concerning acquisition of licenses for personal
activities of employees, e.g., boats and airplanes, does not concern
"conditions of employment"); Maritime Metal Trades Council and Panama
Canal Commission, 17 FLRA No. 116 (1985) (proposal concerning personal
check cashing privileges does not concern "conditions of employment").
Thus, for the reasons set forth in the cited decisions, Union Proposal 3
herein, which concerns recreational use of Agency property during
weekends, i.e., non-duty time, is outside the duty to bargain under
section 7103(a)(14) of the Statute.
Moreover, contrary to the Union's contention, the fact that the
Agency has in the past permitted recreational use of its launch by
employees on weekends does not thereby transform the matter into a
"condition of employment" which is subject to the duty to bargain. See
Maritime Metal Trades Council, at 3 of slip opinion, citing National
Association of Air Traffic Specialists and Department of Transportation,
Federal Aviation Administration, 6 FLRA 588, 593 (1981).
Union Proposal 4
1. All Panamanian professional employees who were hired before
October 1, 1979 on a temporary basis, and who achieved permanent
status after October 1, 1979 without a break in service shall be
given the option of remaining covered under the Panamanian social
security system or obtaining coverage under the Federal Civil
Service Retirement program.
2. The Commission will do everything it can to see that the
goal set forth in paragraph 1 of this article is achieved.
3. The Commission will report to the union monthly on its
progress in achieving the goal set forth in paragraph 1 of this
article.
Union Proposal 4 would afford all Panamanian, i.e., non-United States
citizen, professional employees of the Panama Canal Commission who
received permanent appointment after October 1, 1979, but who had been
employed on temporary appointments prior to that date, an option of
choosing coverage under the Federal Civil Service Retirement System.
The Agency contends that this proposal is outside the duty to bargain
under section 7117(a)(1) of the Statute because it is inconsistent with
law, i.e., 22 U.S.C. 3649 (Pub. L. 96-70, Sec. 1209) /11/ and Paragraph
(1) of Article VIII of the Agreement in Implementation of Article III of
the Panama Canal Treaty of 1977 (hereinafter referred to as the
"Agreement"). /12/ The Authority agrees.
In this regard, 22 U.S.C. 3649 provides, as relevant herein, that the
laws governing retirement benefits for Federal employees do not apply to
non-United States citizens who were initially appointed to positions in
the Panama Canal Commission after October 1, 1979, and who are covered
by the Social Security System of Panama pursuant to the Panama Canal
Treaty and related agreements. The legislative history of this
provision, read in conjunction with Paragraph (1)(b) of the Agreement,
indicates that it was the intent of Congress, as well as the United
States and Panamanian governments, that only those employees who were
covered by the Civil Service Retirement System prior to October 1, 1979,
would be covered by the System after that date. The House Committee
report which accompanied the legislation eventually enacted as the
Panama Canal Act of 1979 stated, with respect to this provision, as
follows: /13/
Section 128. Inapplicability of Certain Benefits to Certain Non
Citizens.-- This section would effect technical amendments to
conform certain provisions of personnel law to the new Treaty
provisions concerning non-United States citizen employees of the
Panama Canal Commission hired after the Treaty effective date who
would be covered by the social security system of the Republic of
Panama (see Article VIII of the Agreement in Implementation of
Article III of the Panama Canal Treaty of 1977). The amendments
would make inapplicable to such persons the provisions of title 5
of the United States Code dealing with compensation for work
injuries, retirement, life insurance, and health insurance.
Coverage under such provisions would continue for non-United
States citizen federal employees who had such coverage immediately
prior to Treaty effective date.
The Senate Committee report accompanying this same legislation contained
similar language: /14/
Section 309-- Inapplicability of certain benefits to certain
noncitizens
Subsection (a) of section 309 provides that the provisions of
title 5, United States Code, relating to compensation for work
injuries (chapter 81), civil service retirement (chapter 83), life
insurance (chapter 87), and health insurance (chapter 89) shall be
inapplicable to non-United States citizen employees of the Panama
Canal Commission who are initially hired by the Commission after
October 1, 1979 (the effective date of the Treaty) and who are
covered by the Social Security System of the Republic of Panama.
Non-United States citizen employees who were covered by such
provisions of title 5 immediately before the effective date of the
treaty of the treaty (i.e., coverage as of September 30, 1979)
will continue to be covered by those provisions.
Paragraph (1)(b) of Article VIII of the Agreement is to the same effect:
/15/
(Non-United States citizens) who were employed prior to the
entry into force of this Agreement by the Panama Canal Company and
Canal Zone Government and who were covered under the Civil Service
Retirement System of the United States shall continue to be
covered by the system until their retirement or until the
termination of their employment with the Commission for any other
reason.
Thus, under 22 U.S.C. 3649 and Paragraph (1)(b) of Article VIII of the
Agreement, employees who were not covered by chapter 83 of title 5 prior
to October 1, 1979 are precluded from coverage after that date.
In this regard, Union Proposal 4 pertains to Panamanian citizens who
were temporary employees of either the Panama Canal Company or the Canal
Zone Government prior to October 1, 1979. Under 5 U.S.C. 8347(g), the
Office of Personnel Management (OPM) may exclude from subchapter III of
chapter 83 of title 5 an employee or group of employees in an Executive
agency whose employment is temporary. /16/ By regulation, OPM has
excluded temporary employees from coverage of subchapter III of chapter
83. Such exclusion applied prior to 1979. /17/ Thus, temporary
employees of the Panama Canal Company or the Canal Zone Government who
did not become permanent employees of the successor agency, the Panama
Canal Commission, until after October 1, 1979, were never covered by
subchapter III of chapter 83 of title 5. They were not entitled to
participate in the Federal Civil Service Retirement System prior to
October 1, 1979, and, therefore, under 22 U.S.C. 3649, are precluded
from participating therein after that date. Hence, by purporting to
create an option for Panamanian citizen employees of the Panama Canal
Commission, who did not become permanent employees until after October
1, 1979, to participate in the Federal Civil Service Retirement System
under chapter 83 of title 5, Union Proposal 4 is inconsistent with 22
U.S.C. 3649 and Paragraph (1)(b) of Article VIII of the Agreement and
outside the Agency's duty to bargain under section 7117(a)(1) of the
Statute. Cf. International Organization of Masters, Mates and Pilots
and Panama Canal Commission, 13 FLRA 508, 523 (1983) (proposal to grant
newly hired pilots, without regard to citizenship, option of choosing
union pension plan nonnegotiable because inconsistent with Paragraph
(1)(a) of Article VIII of the Agreement).
Union Proposal 5
1. The Commission will do everything it can to establish 6/4
and/or 50-50 workplans for all employees in the bargaining unit.
2. The Commission will report to the union monthly on its
progress in achieving the goal set forth in paragraph 1 of this
article.
As explained by the Union, Union Proposal 5 would require the Agency
to make every effort to establish work schedules whereby employees may
work six (6) weeks and then have four (4) weeks off, or some similar
schedule, such as a "50-50" plan, whereby an employee would have "an
equal time off for that time on." /18/ The Agency contends that this
proposal is outside the duty to bargain under section 7117(a)(1) of the
Statute because it is inconsistent with law, i.e., the Federal Employees
Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6120 et
seq. The Authority agrees.
Under chapter 61 of title 5 of the United States Code, for agencies
and employees within its coverage, Federal agencies are required to
establish a basic workweek of five (5) 8-hour days, Monday through
Friday. 5 U.S.C. 6101(a)(2) and (3). 5 CFR 610.121. /19/ However,
under the Federal Employees Flexible and Compressed Work Schedules Act
of 1982, agencies are authorized to establish, as alternatives to the
40-hour workweek, flexible and compressed work schedules, see 5 U.S.C.
6122 and 6127, which, in essence, permit employees to work longer
workdays in exchange for time off in the same or in the following
workweek.
In this regard, as to flexible schedules, 5 U.S.C. 6122 permits
employees not only to vary their starting and quitting times, as long as
they are present during certain "core hours," but also to work longer
than their 8-hour daily work requirement so as to accumulate "credit
hours" to be used to reduce the length of the workweek or of another
workday. /20/ Under 5 U.S.C. 6126(a), however, an employee working a
flexible schedule established pursuant to 5 U.S.C. 6122, may not
accumulate more than 24 credit hours during a biweekly pay period for
use during the following biweekly pay period. /21/ Union Proposal 5,
considered as a proposed flexible schedule pursuant to 5 U.S.C. 6122,
contemplates an arrangement where an employee would work for 6 weeks and
then be entitled to 4 weeks off. In order for an employee to be
entitled to 4 weeks off within the framework of a flexible schedule
under 5 U.S.C. 6122, that employee would have to be able to accumulate
160 credit hours during three biweekly pay periods for use in the
following two biweekly periods. Under Union Proposal 5, therefore, the
number of credit hours required to implement the proposed work schedule
exceeds the 24 credit hour limit provided in 5 U.S.C. 6126(a). Moreover,
since it would also be necessary under the proposal to carry those
credit hours beyond the biweekly pay period following the pay period in
which they were accumulated, in this respect as well as the proposal
conflicts with Sec. 6126(a). Thus, considered as a proposed flexible
work schedule pursuant to 5 U.S.C. 6122, Union Proposal 5 is
inconsistent with the limitations governing the use of credit hours in
connection with such schedules under 5 U.S.C. 6126(a).
Moreover, Union Proposal 5 does not fall within the definition of a
"compressed schedule" under 5 U.S.C. 6121(5). /22/ By the terms of that
definition, such a schedule involves an 80-hour basic biweekly work
requirement which is scheduled for less than 10 workdays. That is, a
"compressed schedule" authorized under 5 U.S.C. 6127 is a fixed work
schedule which, by means of longer daily work requirements, i.e., longer
than 8 hours, results in a reduced length for the basic workweek, e.g.,
to 4 days out of 5, or 9 days out of 10 on a biweekly basis. /23/ Union
Proposal 5 is not a proposal which is intended to reduce the length of
the workweek on either a weekly or biweekly basis as contemplated by 5
U.S.C. 6121(5) and 6127. Rather, as discussed above, it appears
intended to authorize a work schedule, e.g., in which employees work
longer than 8-hour workdays and/or 5-day workweeks for 6 weeks and the
extra time thus accumulated is used to provide 4 weeks off from work.
Thus, the proposal does not constitute a "compressed schedule" which
agencies are authorized to establish under 5 U.S.C. 6121(5) and 6127.
Finally, though the Union states that the proposal is intended only
to require the Agency to "explore the possibility that such a plan could
be implemented on behalf of bargaining unit members," /24/ that fact
does not render the proposal negotiable. The Authority has consistently
held that proposals requiring an agency to make an effort to accomplish
an objective which is outside the duty to bargain are themselves
nonnegotiable. See American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
8 FLRA 409 (1982); Maritime Metal Trades Council and Panama Canal
Commission, 17 FLRA No. 116 (1985) (Union Proposal 4). /25/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as to Union
Proposals 1, 2, 3, 4 and 5 be, and it hereby is, dismissed. Issued,
Washington, D.C., May 31, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Pursuant to section 2424.3 of the Authority's Rules and
Regulations, the Union requested written allegations of nonnegotiability
from the Agency as to six disputed proposals. However, as a result of a
subsequent agreement with the Agency to discuss further the sixth
proposal, the Union did not appeal that matter herein. Union Petition
for Review at seventh unnumbered page.
/2/ The referenced provisions represent the codification of sections
1241 and 1242 of the Panama Canal Act of 1979, Pub. L. 96-70, 93 Stat.
465. See Agency Brief at 1.
/3/ Union Petition for Review at second unnumbered page.
/4/ Agency Brief at 1-2.
/5/ Section 7117(a)(1) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/6/ Section 7121(c)(2) provides, in relevant part, as follows:
Sec. 7121. Grievance procedures
* * * *
(c) The preceding subsections of this section shall not apply
with respect to any grievance concerning--
* * * *
(2) retirement, life insurance, or health insurance(.)
/7/ MSPB has jurisdiction over appeals as to retirement claims under
5 U.S.C. 7701 as well. Hein v. OPM, 1 MSPB 396 (1980); Chavez v. OPM,
6 MSPB 343 (1981).
/8/ In this regard, cf. section 7121(e)(1) of the Statute, wherein
Congress especially provided employees an option to raise, under the
negotiated grievance procedure, matters pertaining to unacceptable
performance under 5 U.S.C. 4303 and to adverse actions under 5 U.S.C.
7512, which matters would otherwise be appealable to MSPB under 5 U.S.C.
7701.
/9/ Union Petition for Review at third unnumbered page.
/10/ Section 7103(a)(14) provides, in relevant part, as follows:
Sec. 7103. Definition; application
(a) For the purpose of this chapter--
* * * *
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions . . . (.)
/11/ 22 U.S.C. 3649 provides:
Sec. 3649. Inapplicability of certain benefits to certain
noncitizens
Chapter 81 of Title 5, relating to compensation for work
injuries, chapter 83 of such Title 5, relating to civil service
retirement, chapter 87 of such Title 5, relating to life
insurance, and chapter 89 of such Title 5, relating to health
insurance, are inapplicable to any individual--
(1) who is not a citizen of the United States;
(2) whose initial appointment by the Commission occurs after
October 1, 1979; and
(3) who is covered by the Social Security System of the
Republic of Panama pursuant to any provision of the Panama Canal
Treaty of 1977 and related agreements.
/12/ Paragraph (1) of Article VIII of the Agreement in Implementation
of Article III of the Panama Canal Treaty of 1977 provides as follows:
(1) Concerning Social Security and retirement benefits
applicable to employees of the Commission who are not United
States citizens, the following provisions shall apply:
(a) Such persons who are employed by the Commission subsequent
to the entry into force of this Agreement shall, as of their date
of employment, be covered by the Social Security System of the
Republic of Panama.
(b) Such persons who were employed prior to the entry into
force of this Agreement by the Panama Canal Company and Canal Zone
Government and who were covered under the Civil Service Retirement
System of the United States shall continue to be covered by the
system until their retirement or until the termination of their
employment with the Commission for any other reason.
/13/ H.R. REP. NO. 96-98, 96th Cong., 1st Sess. 52 (1979).
/14/ S. REP. NO. 96-225, 96th Cong., 1st Sess. 23 (1979).
/15/ See note 12, supra.
/16/ 5 U.S.C. 8347(g) provides, in relevant part, as follows:
Sec. 8347. Administrative; regulations
* * * *
(g) The Office may exclude from the operation of this
subchapter an employee or group of employees in or under an
Executive agency whose employment is temporary or intermittent.
The Panama Canal Commission is an Executive agency within the meaning
of 5 U.S.C. 8347(g). See 22 U.S.C. 3611, 5 U.S.C. 8331(1)(A), and 5
U.S.C. 2105.
/17/ 5 CFR 831.201(a)(1) (1978) provides as follows:
Sec. 831.201 Exclusions from retirement coverage.
(a) The following groups of employees in the executive branch
of the Government are excluded from subchapter III of chapter 83
of title 5, United States Code:
(1) Employees serving under appointments limited to 1 year or
less.
See also 5 CFR Part 316, Subpart C.
/18/ Union Petition for Review at sixth unnumbered page.
/19/ Professional employees of the Panama Canal Commission are
covered by chapter 61 of title 5 of the United States Code. 5 U.S.C.
105, 2105, 6101, 6121 and 22 U.S.C. 3611.
/20/ 5 U.S.C. 6122(a) provides:
Sec. 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 the 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.
/21/ 5 U.S.C. 6126(a) provides:
Sec. 6126. Flexible schedules; credit hours, accumulation and
compensation
(a) Subject to any limitation prescribed by the Office of
Personnel Management or the agency, a full-time employee on a
flexible schedule can accumulate not more than 24 credit hours,
and a part-time employee can accumulate not more than one-fourth
of the hours in such employee's biweekly basic work requirement,
for carryover from a biweekly pay period to a succeeding biweekly
pay period for credit to the basic work requirement for such
period.
See also 5 U.S.C. 6121(4)
/22/ 5 U.S.C. 6121(5) provides:
Sec. 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, and
(B) in the case of a part-time employee, a biweekly basic work
requirement of less than 80 hours which is scheduled for less than
10 workdays(.)
/23/ 5 U.S.C. 6127 provides:
Sec. 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 (1) 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 (1) would impose a personal hardship on such employee,
shall--
(A) except such employee from such program; or
(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.
/24/ See note 18, supra.
/25/ In support of its contention that Union Proposal 5 is
negotiable, the Union claims that the Agency has established a "6/4"
plan for employees of another bargaining unit. However, regardless of
the Agency's practices with respect to a different unit, it cannot be
concluded from that fact that unit employees herein are not subject to
the requirements as to basic workweek under chapter 61 of title 5 of the
United States Code.