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The decision of the Authority follows:
16 FLRA NO. 143
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1445 Union and ALABAMA AIR NATIONAL GUARD Agency Case No. 0-NG-792
The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues relating to the negotiability of two provisions of the local parties' agreement, disapproved pursuant to section 7114(c) of the Statute. 1 Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.
Article 5, Section 6. Beginning and Completion of Travel. Volume II, JTR will be followed in prescribing the hours of temporary duty travel. Time spent in actual work or in travel to and from the TDY location, outside of normal work hours, will be compensated by an equal amount of compensatory time off.
Provision 1 provides that time spent in travel to and from a temporary duty assignment, outside normal work hours, will be compensated by an equal amount of compensatory time in lieu of overtime. The Agency contends, in essence, that by requiring compensatory time for all such travel the provision is inconsistent with applicable law and [ v16 p1094 ] regulation, 2 specifically, the Fair Labor Standards Act (FLSA), 29 U.S.C. 207, and 5 U.S.C. 5542(b)(2) and 5543, and implementing regulations, see especially 29 CFR 785.33-41, 5 CFR 550.112, and 551.422 (1984). The Union, on the other hand, argues that pursuant to the National Guard Technicians Act, 32 U.S.C. 709(g)(2), unit employees are not subject to those provisions of law and, therefore, that the disputed provision is negotiable. 3 Thus, the issues presented herein concern whether National Guard technicians are covered by the provisions of title 5 of the United States Code and of the FLSA which pertain to compensation for overtime and, if technicians are covered, whether Provision 1 is inconsistent therewith so as to be nonnegotiable under section 7117(a)(1) of the Statute.
Generally speaking, Federal employees are compensated for overtime work either under 5 U.S.C. 5542 and 5543 or under the FLSA, 29 U.S.C. 207, whichever provides the greatest benefit. 4 In particular, as relevant herein, under either 5 U.S.C. 5542 or the FLSA, employees are [ v16 p 1095] entitled to overtime compensation for time spent in a travel status outside their regular duty hours, but such entitlement is subject to certain restrictions. 5 Moreover, under 5 U.S.C. 5543, employees may [ v16 p1096 ] be granted an equal amount of compensatory time in lieu of payment for overtime. 6
As to whether National Guard technicians are covered by these statutory provisions, the National Guard Technicians Act, 32 U.S.C. 709(d), provides that technicians are "employee(s) of the Department of the Army or the Department of the Air Force, as the case may be, and ... employee(s) of the United States." 7 Under 5 U.S.C. 5541, [ v16 p1097 ] employees of the military departments, which include the Department of the Air Force, 5 U.S.C. 102, are subject to the provisions of 5 U.S.C. 5542 and 5543. 8 With regard to the FLSA, 29 U.S.C. 203(e)(2)(A)(i) provides that individuals "employed by the Government of the United States" as civilian employees of "the military departments" are covered by the Act. 9 Thus, unless otherwise excluded, National [ v16 p1098 ] Guard technicians, as civilian employees of the military departments, are covered by the premium pay provisions of title 5, including 5542 and 5543, and the overtime provisions of the FLSA.
The statutory provision relied on by the Union, 32 U.S.C. 709(g)(2), provides that notwithstanding 5 U.S.C. 5542 and 5543, or any other provision of law, technicians shall receive compensatory time for hours worked in excess of regularly scheduled tours of duty, but shall not be entitled to overtime compensation. The effect of 709(g)(2) is thus limited to removing the entitlement to overtime compensation which technicians would have under 5 U.S.C. 5542 or the FLSA for overtime work. See Wright v. Alabama Army National Guard, 437 F. Supp. 54 (M.D. Ala. 1977), aff'd, 605 f.2d 943 (5th Cir. 1979). Thus, contrary to the Union's contention, 709(g)(2) does not exempt technician employees from the overtime provisions of title 5 or the FLSA as a whole. Instead, for purposes of determining whether technicians are entitled to compensatory time, and if so, the amount to which they are entitled, technicians remain subject to the requirements of those provisions. In particular, as relevant herein, in order to establish an entitlement to compensatory time for travel during hours outside regularly scheduled hours of work, such travel by a technician must, under title 5, meet the conditions set forth in 5 U.S.C. 5542(b)(2)(B), and, under the FLSA, constitute "hours of work" within the meaning of that law, see note 5, supra. See Comptroller General Decision B-191691 (March 21, 1979). See also FPM Letter No. 551-10 (April 30, 1976).
As indicated above, the Agency interprets Provision 1 to entitle unit employees to compensatory time for all time spent outside normal work hours in travel to and from a temporary duty assignment. The union does not dispute this interpretation and, since it is consistent with the broad language of the provision, it is adopted for purposes of this decision. Thus understood, the provision would entitle technician employees to receive compensatory time for time spent in travel outside normal hours of work, in circumstances where compensatory time would be prohibited under either 5 U.S.C. 5542 or the FLSA. For example, the provision would entitle technician employees to receive compensatory time for such travel under title 5 even though it does not involve the performance of work while traveling, or is not incident to travel that involves the performance of work while traveling, or is not carried out under arduous conditions, or does not result from an event which could not be administratively controlled. 5 U.S.C. 5542(b)(2)(B)(i)-(iv). Or, for example, under the provision, technician employees would be entitled to compensatory time for time spent riding as a passenger in a vehicle traveling to or from a temporary duty assignment outside normal duty hours even though such travel would not be "hours of work" under the FLSA. See FPM Letter 551-10 (April 30, 1976), Attachment, Table 3. Such a broad requirement for the granting of [ v16 p1099 ] compensatory time is inconsistent with the statutory limitations on compensatory time set forth in 5 U.S.C. 5542(b)(2)(B) and the FLSA. Thus, Provision 1 is outside the Agency's duty to bargain under section 7117(a)(1) of the Statute. See National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA No. 91 (1983) (Union Proposal 2) (wherein the Authority held nonnegotiable a proposal which had a reach broader than applicable law would permit).
Article 14, Section 5. Rights of Appeal. A competing technician may appeal to the Adjutant General upon receipt of a specific notice of a RIF, and the technician believes that the State incorrectly applied the provisions of NGB TPR 351. The technician may appeal any time after receiving the specific notice but not more than fifteen (15) calendar days after the effective date of the action.
Provision 2 establishes the time limit within which a technician must appeal a RIF action. Specifically, the provision would extend the time period 15 calendar days after the effective date of the action, which is 45 days beyond the time limit established by Agency regulation. Technician Personnel Regulation TPR 300 (351), Appendix C, Para. C-1 provides that a RIF appeal must be filed 30 days before the effective date of the action. 10 The Agency contends that a compelling need [ v16 p1100 ] exists under section 7117(a)(2) of the Statute, 11 and section 2424.11(a) of the Authority's Rules and Regulations 12 to bar negotiation on the provision.
Citing Authority decisions in Association of Civilian Technicians, Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 (1980) and American Federation of Government Employees, AFL - CIO, Local 2953 and National Guard Bureau, Office of the Adjutant General, Nebraska, 7 FLRA 87 (1981), the Agency argues, preliminary, that Provision 2 is "outside the scope of bargaining" because the Authority determined in those decisions that a compelling need exists for the regulation at issue herein, i.e., TPR 300 (351). In agreement with the Union, however, the Authority finds that the instant case is distinguishable. Specifically, the issue in the cases cited by the Agency concerned the negotiability of proposals establishing criteria for determining the RIF retention standing of National Guard technicians. The Authority determined in those cases that a compelling need existed under section 2424.11(c) of [ v16 p1101 ] the Authority's Rules and Regulations for that portion of TPM 351 which prescribed those criteria because it implemented a nondiscretionary mandate under law. In the instant case, however, the issue concerns the negotiability of the time limits for filing an appeal of a RIF action. The question before the Authority, moreover, is whether, under section 2424.11(a) of the Authority's Rules and Regulations, a compelling need exists for the National Guard regulation which prescribes those time limits because it is essential to the accomplishment of the Agency's mission. The issue herein is not whether those regulatory time limits implement a nondiscretionary mandate under law. Thus, the compelling need determination made in those cases is not dispositive of the instant case.
Turning then to the Agency's contention that a compelling need exists under section 2424.11(a) for its regulatory requirement that an appeal of a RIF action be filed 30 days before the effective date of the action, the Agency claims that it is essential to the accomplishment of its mission that it have the 30 day period prior to the date a RIF takes effect to resolve all appeals so as to have personnel in place and ready to function. The agency essentially argues that Provision 2, by prolonging the time for appeal until after the effective date of the RIF, would require any corrective action necessitated by the appeal to be taken after the RIF is effectuated 13 and thus potentially would require the agency to undo the RIF. As a result, the Agency states, the units affected by the RIF would be severely disrupted. In this regard, it argues that, without the time limits set forth in its regulation, there would be delays in achieving "operational readiness" in units affected by the RIF, since the extended period for appeal would result in delays in determining the personnel of those units and in training that personnel in new duties.
Contrary to the Agency, while the possible delays in completing a RIF which may result from implementation of Provision 2 support the conclusion that the time limits set forth in the Agency's regulation would be helpful to the accomplishment of the Agency's mission or the execution of its functions, they do not establish that the regulation is essential to those objectives. Cf. National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 15 FLRA No. 97 (1984) (Proposal requiring stay of RIF action pending appeal to Merit Systems Protection Board held negotiable procedure under section 7106(b)(2) of the Statute). In this regard, the Agency regulation itself [ v16 p1102 ] provides that the time limit for filing an appeal may be extended. 14 Moreover, the regulation also contemplates the necessity to take corrective action after the RIF is effectuated, e.g., restoring technicians who have been improperly separated to their former or equivalent positions, which is the sort of disruption the Agency claims the regulatory time limits are "essential" to prevent. 15 Thus, although its regulation may be helpful or desirable, it is not "essential" within the meaning of section 2424.11(a) of the Authority's Rules and Regulations. Accordingly, since the Agency has not demonstrated a compelling need for its regulation establishing the time limit for filing a RIF appeal, Provision 2 is within the Agency's duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review with respect to Provision 1 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall rescind its disapproval of Provision 2 which was bargained on and agreed to by the parties at the local level. 16
Issued, Washington, D.C., December 27, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 The Union withdrew its petition for review as to three additional provisions concerning area of consideration, official written reprimands, and adverse actions.
Footnote 2 Section 7117(a)(1) of the Statute provides: 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 o r 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.
Footnote 3 32 U.S.C. 709(g)(2) provides: 709. Technicians: employment, use, status (g)(2) Notwithstanding sections 5544(a) and 6101(a) of title 5 or any other provision of law, the Secretary concerned may, for technicians other than those described in Clause (1) of this subsection, prescribe the hours of duty for technicians. Notwithstanding sections 5542 and 5543 of title 5 or any other provision of law, such technicians shall be granted an amount of compensatory time off from their scheduled tour of duty equal to the amount of any time spent by them in irregular or overtime work, and shall not be entitled to compensation for such work.
Footnote 4 See 5 CFR 551.513 (1984).
Footnote 5 5 U.S.C. 5542(5)(2) provides: 5542. Overtime rates; computation (b) For the purpose of this subchapter-- (2) time spent in a travel status away from the official duty station of an employee is not hours of employment unless-- (a) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or (B) the travel (i) involves the performance of work while traveling, (ii) s incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controller administratively. See also 5 CFR 550.115(g)(1984). As to the FLSA, 5 CFR 551.422 provides: 551.422 Time spent traveling. a) Time spent traveling shall be considered hours of work if: (1) An employee is required to travel during regular working hours; (2) An employee is required to drive a vehicle or perform other work while traveling; (3) an employee is required to travel as a passenger on a one-day assignment away from the official duty station; or (4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours. b) An employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal "home to work" travel; such travel is not hours of work. When an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work as specified in paragraphs (a)(2) and (a)(3) of this section. (c) An employee who is offered one mode of transportation, and who is permitted to use an alternative mode of transportation, or an employee who travels at a time other than that selected by the agency, shall be credited with the lesser of: (1) The actual travel time which is hours of work under this section; or (2) The estimated travel time which would have been considered hours of work under this section had the employee used the mode of transportation offered by the agency, or traveled at the time selected by the agency. See also FPM Letter 551-10 (April 30, 1976).
Footnote 6 5 U.S.C. 5543(a) provides: 5543. Compensatory time off (a) The head of an agency may-- (1) on request of an employee, grant the employee compensatory time off from his scheduled tour of duty instead of payment for an equal amount of time spent in irregular or occasional overtime work; and (2) provide that an employee whose rate of basic pay is in excess of the maximum rate of basic pay for GS-10 shall be granted compensatory time off from his scheduled tour of duty equal to the amount of time spent in irregular or occasional overtime work instead of being paid for that work under section 5542 of this title. See also 5 CFR 550.114, 551.531 (1984).
Footnote 7 32 U.S.C. 709(d) provides: 709. technicians: employment, use, status (d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard.
Footnote 8 5 U.S.C. 5541 provides, in relevant part, as follows: 5541. Definitions For the purpose of this subchapter-- (1) "agency" means-- (A) an Executive agency; (B) a military department; ...(and) (2) "employee" means-- (A) an employee in or under an Executive Agency(.)
Footnote 9 29 U.S.C. 203(e) provides, in relevant part, as follows: (e)(1) Except as provided in paragraphs (2) and (3), the term "employee" means any individual employed by an employer. (2) In the case of an individual employed by a public agency, such terms means-- (A) any individual employed by the Government of the United States-- (i) as a civilian in the military departments (as defined in section 102 of title 5)(.) See also 5 CFR 551.102(d)(2) (1984); FPM Letter 551-4 (October 31, 1974), Attachment 2.
Footnote 10 Technician Personnel Regulation TPR 300 (351), Appendix C, Para. C-1 provides, in relevant part, as follows: APPENDIX C. APPEALS AND CORRECTIVE ACTION C-1. TECHNICIAN APPEAL A competing technician may appeal to the State Adjutant General when he has received a specific notice of a reduction in force, and he believes that the State incorrectly applied the provisions of this TPR. He may submit an appeal once he receives a specific notice, but no later than 30 calendar days before the effective date of the action.... With respect to reduction in force involving National Guard Technicians, see 32 U.S.C. 709(e)(4)-(6).
Footnote 11 Section 7117(a)(2) provides: 7117. Duty to bargain in good faith; compelling need; duty to consult. (a)(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subjection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.
Footnote 12 Section 2424.11(a) of the Authority's Rules and Regulations provides: 2424.11 Illustrative criteria. A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria: (a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government.
Footnote 13 Agency Brief at 11-12. In this connection, the Authority notes that neither the language of Provision 2, nor the record in the case, indicate that the provision is intended to prevent the Agency from implementing a RIF on the effective date thereof.
Footnote 14 Technician Personnel Regulation (TPR) 300 (351), Appendix C, Para. C-2.
Footnote 15 Technician Personnel Regulation (TPR) 300 (351), Appendix C, Para. C-4.
Footnote 16 In deciding that the subject provision was within the duty to bargain, the Authority makes no judgment as to its merits.