19:0617(78)NG - NFFE Local 687 and Air Force HQ 63rd ABG (MAC), Norton AFB, CA -- 1985 FLRAdec NG

 19 FLRA No. 78
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 687
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 EADQUARTERS 63rd AIR BASE
 GROUP (MAC), NORTON AIR FORCE
 BASE, CALIFORNIA
 Agency
 
                                            Case No. O-NG-939
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    This petition for review comes before the Federal Labor Relations
 Authority (the Authority) pursuant to section 7105(a)(2)(D) and (E) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 raises the question of the negotiability of five Union proposals.  Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.  /1/
 
                             Union Proposal 1
 
          Except where flexitime or compressed work schedules are
       negotiated, the basic workweek is the days and hours of the
       administrative workweek which make up the employee's regularly
       scheduled 40-hour workweek.  The basic workweek at Norton AFB
       normally consists of five consecutive eight-hour days with two
       consecutive non-duty days.  The regular tour of duty for most
       employees is five 8-hour days, Monday through Friday.  Uncommon
       tours of duty;  i.e., 40 hour basic workweeks scheduled to include
       Saturday and/or Sunday, may be established when necessary to meet
       mission requirements.  The impact of any change in the hours of
       work, shifts or tours of duty will be negotiated with the Union
       prior to implementation except in cases of emergencies.  (Only the
       underlined portion of the proposal is in dispute.)
 
                             Union Proposal 2
 
          Normally, an employee will be scheduled to work the same hours
       each day on the same days of the administrative workweek.  If it
       becomes necessary to reassign employees to different tours of duty
       or shifts, the procedures specified in Section 7 below will be
       followed.  When employees are reassigned to different tours, the
       employee will be given at least seven days notice in writing
       except in cases of emergencies.  (Only the underlined portion of
       the proposal is in dispute.)
 
    Based upon the language of the proposals and record in the instant
 case, both proposals purport to deal in non-emergency circumstances /2/
 where the Agency changes the administrative workweek and thereby
 employees' previously established hours of duty.  The Authority has held
 that the Statute requires that, prior to effectuating a change in
 established conditions of employment, an agency must give the exclusive
 representative notice and an opportunity to negotiate.  E.g., Small
 Business Administration, Washington, D.C., and Small Business
 Administration, Salt Lake City District Office, Salt Lake City, Utah,
 and American Federation of Government Employees, Local 1099, AFL-CIO
 (and cases cited therein), 15 FLRA No. 109 (1984).  Union Proposal 1
 herein, however, would require the Agency to complete negotiations over
 the impact and implementation of any changes in hours of work, shifts or
 tours of duty prior to such changes being made.  In addition, Union
 Proposal 2 would require the Agency to provide seven days written
 advance notice to employees reassigned to different tours of duty.
 
    In this respect, Union Proposals 1 and 2 in the instant case are to
 the same effect as Provision 1 in American Federation of Government
 Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick,
 Maryland, 17 FLRA No. 106 (1985) which required two weeks advance notice
 of changes in tours of duty and which the Authority found to be
 inconsistent with an applicable Government-wide regulation.  In the
 cited case the Authority determined that 5 CFR 610.121(b)(2) (1984)
 obligates an agency head to revise an employee's administrative workweek
 to comport with the hours during which the employee will actually be
 required to work "(w)hen the head of an agency knows in advance of an
 administrative workweek" that such revision is necessary.  Thus, the
 Authority concluded that as the provision in that case would prevent the
 Agency head from revising an employee's work schedule unless he or she
 became aware of the need to change work schedules not less than two
 weeks prior to the rescheduling, it was inconsistent with a
 Government-wide regulation and outside the duty to bargain.  /3/
 Therefore, based on U.S. Army Garrison, Fort Detrick, since Union
 Proposals 1 and 2 would also, in certain circumstances, prevent the
 Agency from complying with a Government-wide regulation, they are
 likewise outside the duty to bargain pursuant to section 7117(a)(1) of
 the Statute.
 
                             Union Proposal 3
 
          Employees will not be required or coerced to perform duties in
       other than civilian status except during periods of national
       emergency, time of war and annual training.
 
    The Union contends the purpose of this proposal is to prohibit
 management from coercing or requiring employees to take annual leave,
 leave without pay or compensatory time off to perform duties which could
 otherwise be done while such employees are in a civilian pay status.
 However, contrary to the Union's intent, this proposal expressly
 concerns the assignment of work to employees when they are "in other
 than civilian status." In this respect, when Air Reserve technicians are
 performing duties "in other than civilian status" they are functioning
 in their military capacity as members of the Air Force Reserve.  That
 is, Air Reserve technicians generally are required to become members of
 and maintain membership in the Air Force Reserve in a military capacity
 as a condition of continued civilian technician employment.  /4/ While
 matters related to the civilian aspects of such technician employment
 may be within the duty to bargain pursuant to the Statute, matters
 related to the military aspects of such technician employment are
 specifically prohibited from negotiation by law.  /5/ Therefore, as
 Union Proposal 3 expressly concerns matters related to the military
 aspects of Air Force Reserve technician employment it is not within the
 duty to bargain pursuant to section 7117(a)(1) of the Statute.
 
                             Union Proposal 4
 
          Air Reserve Technicians while on TDY will be given parity to
       their civilian grade which includes all the entitlements of AFR
       90-9.  The individual may request billeting at his/her military
       grade at the employee's option.
 
                             Union Proposal 5
 
          Temporary duty and flight authorization orders for Air Reserve
       Technicians traveling in civilian status will only reflect their
       civilian grade:  i.e., GS-9 or WG-10.
 
    Union Proposals 4 and 5 provide that Air Force Reserve technicians on
 temporary duty may, at their option, be assigned quarters based on their
 civilian grade rather than on their military grade.  In this regard, in
 National Federation of Federal Employees, Local 1669 and Arkansas Air
 National Guard, 13 FLRA 176 (1983), aff'd sub nom. National Federation
 of Federal Employees, Local 1699 v. FLRA, 745 F.2d 705 (1984), the
 Authority determined that a compelling need existed pursuant to section
 2424.11(c) of the Authority's Rules and Regulations for a National Guard
 Bureau regulation which required that National Guard technicians be
 assigned government quarters based on their military grade as contrasted
 with their civilian grade when such technicians were in a travel status.
  See also American Federation of Government Employees, AFL-CIO, Local
 3004 and Department of the Army and Air Force, National Guard Bureau, 15
 FLRA No. 58 (1984).  The regulation in question had been issued to
 implement a directive from the House Committee on Appropriations to the
 Department of Defense to the effect that military technicians in travel
 status would occupy government quarters based on their military grade.
 /6/ This nondiscretionary directive was contained in the report
 accompanying the "Department of Defense Appropriations Bill of 1982" and
 was agreed to by the Conference Committee.  /7/ While Arkansas Air
 National Guard and Department of Army and Air Force, National Guard
 Bureau concerned only a National Guard Bureau regulation, the directive
 from Congress to the Department of Defense that military technicians in
 a travel status will occupy temporary quarters based on their military
 grade expressly applies to Army and Air Force Reserve technicians as
 well.  Therefore, AFR 90-9 and AFR 10-7, /8/ at issue in this case,
 which require respectively that the Air Force Reserve technicians be
 quartered according to their military grade and that travel orders
 include both military and civilian grades, reflect this nondiscretionary
 mandate and meet the criterion for determining a compelling need
 pursuant to section 2424.11(c) of the Authority's Rules and Regulations.
 
    Consequently, since Union Proposals 4 and 5 are inconsistent with AFR
 90-9 and AFR 10-7 they are not within the duty to bargain under section
 7117(a)(2) of the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., August 12, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union did not file a Reply Brief in this case.
 
 
    /2/ The term emergency has been defined by the parties in their
 collective bargaining agreement as "situations posing sudden, immediate
 and unforeseen work requirements for the Employer as a result of natural
 phenomena or other circumstances beyond the Employer's reasonable
 control or ability to anticipate.  A situation in which the Employer has
 been informed of an impending exercise or inspection which will result
 in an increase in workload will not be considered an emergency."
 
 
    /3/ The Authority also found a second provision requiring one pay
 period advance notice of non-workday rotation schedule changes to be
 inconsistent with the same Government-wide regulation and outside the
 duty to bargain.
 
 
    /4/ FPM Supplement (Internal) 930-71 (December 1983).  See also
 American Federation of Government Employees v. Resor, 387 F.Supp. 63
 (D.D.C. 1974).
 
 
    /5/ 10 U.S.C. 976 (1982).
 
 
    /6/ The House Committee on Appropriations Report provided, in
 relevant part:
 
              GUARD AND RESERVE TECHNICIAN CONVERSION PROGRAM
 
          The Committee conducted an extensive hearing on the Guard and
       Reserve technician conversion program and includes the following
       direction to the Department.
 
                                .  .  .  .
 
          Military technicians will occupy government quarters based on
       military grade when in a travel status.
 
          H.R. REP. No. 97-333, 97th Cong., 1st Sess. 42 (1981).
 
 
    /7/ The Conference Report provided in relevant part:
 
          The following language items represent the agreement of the
       conferees.  Specific dollar amounts by military service are
       reflected under each summary table.  Language contained in the
       report of only one body and not addressed below should be
       considered the agreement of the conferees.
 
          H.R. REP. No. 97-410, 97th Cong., 1st Sess. 9 (1981).
 
 
    /8/ AFR 90-9 states as follows:  "AFRES and ANG technicians in travel
 status will be billeted according to the military grade shown in their
 travel orders."
 
    AFR 10-7 states as follows:  (travel orders) "for Air Reserve
 technicians traveling in their civilian capacity include both military
 and civilian grades, E.G., (GS-9 SMSGT USAFR)."