23:0753(97)NG - NAGE Local R7-23 and Air Force, Scott AFB, IL -- 1986 FLRAdec NG
[ v23 p753 ]
23:0753(97)NG
The decision of the Authority follows:
23 FLRA No. 97
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R7-23
Union
and
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
Agency
Case No. 0-NG-1252
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues as
to the negotiability of three Union proposals. We find that all three
proposals are nonnegotiable.
II. Union Proposal 1
Article 7, Section 2: When a change in duty hours, days, or
weeks currently in effect is proposed by the employer, such change
will be announced in writing to the union and employees at least
14 days in advance, except in emergencies, in order that the union
may request to enter into negotiations and so that employees will
be forewarned of a pending change.
A. Positions of the Parties
The Agency contends that Union Proposal 1 is nonnegotiable under
section 7117(a)(1) of the Statute because it is inconsistent with a
Government-wide regulation, 5 C.F.R. Section 610.121(b)(2). In support
of its contention, the Agency cites the Authority's decision in American
Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army
Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985), petition for
review filed sub nom. American Federation of Government Employees, Local
2484 v. Federal Labor Relations Authority, No. 85-1405 (D.C. Cir. July
3, 1985), and cases relying thereon. /1/
The Union acknowledges this Authority precedent but requests that the
Authority not decide the issue until the U.S. Court of Appeals for the
District of Columbia Circuit rules on the Authority's decision in the
Fort Detrick case.
B. Analysis and Conclusion
The proposal requires the Agency to give employees and the Union 14
days notice before making any changes in established work schedules,
except in emergency situations. Office of Personnel Management (OPM)
regulations provide, as relevant here,s that an agency must change an
employee's work schedule when it knows in advance that the employee's
schedule will be different from that which the employee is currently
working; and must notify the employee of the change. 5 C.F.R. Section
610.121(b)(2) (1986). As the Agency points out, in the Fort Detrick
decision, the Authority held that a proposal requiring two weeks notice,
like the one in this case, was inconsistent with the OPM regulation
because it would preclude the agency from complying with that regulation
unless it became aware of the need to change work schedules not less
than two weeks prior to the rescheduling. OPM supported the Authority's
interpretation of 5 C.F.R. Section 610.121(b)(2) in amicus briefs filed
with the Authority in subsequent cases involving this issue. See, for
example, National Federation of Federal Employees, Local 7 and U.S. Army
Corps of Engineers, Portland District, 19 FLRA No. 18 (1985); American
Federation of Government Employees, Local 1546 and Department of the
Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
(Provision 1), petition for review filed sub nom. American Federation of
Government Employees, Local 1546 v. Federal Labor Relations Authority,
No. 85-1689 (D.C. Cir. October 21, 1985). The American Federation of
Government Employees, AFL-CIO, however, challenged the validity of 5
C.F.R. Section 610.121(b) in a suit filed in the U.S. District Court for
the District of Columbia. In its Memorandum and Order in that case,
American Federation of Government Employees v. Office of Personnel
Management, C.A. No. 85-4031 (D.D.C. August 7, 1986), slip opinion at 5,
the court upheld the regulation stating that:
(N)otwithstanding it may not say so in so many words,
subsection (b) which permits workweeks to be rescheduled was
intended, and is interpreted, by OPM to be qualified by subsection
(a) directing agency heads to establish conventional workweek
schedules except upon a determination that the agency would be
seriously handicapped in carrying out its functions or that costs
would be substantially increased. /2/
In light of the court's decision, we have reconsidered the basis of
the Fort Detrick decision. For the reasons set forth below, we will no
longer follow our rationale in Fort Detrick and the cases which applied
it.
Applicable law, 5 U.S.C. Section 6101(a)(3)(A), provides that an
agency shall schedule employees' tours of duty not less than seven days
in advance, except where it is determined that the agency would be
seriously handicapped in carrying out its functions or that costs would
be substantially increased. /3/ As noted above, in the Fort Detrick
decision, the Authority interpreted OPM regulations implementing that
provision -- in particular, 5 C.F.R. Section 610.121(b)(2) -- as
requiring an agency to change employee work schedules as soon as it
became aware that such a change would be necessary. /4/ Upon further
review, we conclude that this interpretation does not comport with the
statutory requirement that work schedules may be revised less than seven
days in advance only where it is necessary to prevent the agency from
being handicapped in the execution of its functions or to forestall a
substantial increase in operational costs. In other words, interpreting
5 C.F.R. Section 610.121(b) consistent with 5 U.S.C. Section
6101(a)(3)(A) and 5 C.F.R. Section 610.121(a), employees must have a
minimum of seven days advance notice of a change in work schedules
unless the change is being made for the reasons set forth in the statute
(and repeated in 5 C.F.R. Section 610.121(a)).
The proposal at issue here, which would permit the Agency to change
employee work schedules within the fourteen day notice period only in an
emergency, is inconsistent with the statutory and regulatory provisions.
We note at the outset that the proposal allows the Agency to change
employee work schedules without notice in an "emergency," without
defining that term, and thus is consistent with management's right to
take action in an emergency under section 7106(a)(2)(D). Compare
National Federation of Federal Employees, Local 2059 and U.S. Department
of Justice, U.S. Attorney's Office, Southern District of New York, 22
FLRA No. 13 (1986) (proposal defining the term "emergency" directly
interferes with management's right under section 7106(a)(2)(D) by
limiting the exercise of that right to situations falling within the
proposed definition). However, the exception to the notice period set
forth in the proposal is too narrow. The terms defining the statutory
(5 U.S.C. Section 6101(a)(3)(A)) and the regulatory (5 C.F.R. Section
610.121(a)) exceptions are broader than the term "emergency" used in the
proposal. Situations falling within the scope of the statute and
regulations -- circumstances which would seriously handicap an agency in
accomplishing its functions or would substantially increase costs --
would not necessarily constitute "emergencies" as defined by the Agency
pursuant to its right under section 7106(a)(2)(D). The exception set
forth in the proposal therefore would impermissibly restrict the
Agency's right, under law and regulation, to revise employee work
schedules. For that reason we find that the proposal is inconsistent
with 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) and
(b) and, under section 7117 of the Statute, outside the duty to bargain.
Although we are no longer following the rationale of the Fort Detrick
decision, the result in that case, or in cases which relied on Fort
Detrick and involved similarly worded proposals or provisions, would not
be different from the result here. Because the provision in Fort
Detrick, like the proposal here, limited the agency's right to change
employee work schedules to situations constituting an "emergency," it
would also be inconsistent with law and regulation for the reasons
stated above and outside the duty to bargaiin.
III. Union Proposal 2
Article 14, Section 7: All areas serviced by the CCPO shall be
in the same competitive area for reduction-in-force purposes.
A. Positions of the Parties
The Agency contends that this proposal is essentially the same as the
proposed competitive area which the Authority found nonnegotiable in
National Association of Government Employees, Local R7-23 and Department
of the Air Force, Headquarters1 375th Air Base Group (MAC), Scott Air
Force Base, Illinois, 19 FLRA No. 63 (1985), remanded sub nom. National
Association of Government Employees, Local R7-23 v. Federal Labor
Relations Authority, No. 85-1522 (D.C. Cir. Dec. 3, 1985). The Agency
also contends that the proposal is outside the duty to bargain under
section 7117(a)(2) because it conflicts with an Agency regulation for
which a compelling need exists and under section 7106(a)(2) because it
violates management's rights.
The Union contends that the decision in the previous Scott Air Force
Base case does not apply to this proposal because that case was remanded
by the court for reconsideration in light of the court's decision in
Local 32, American Federation of Government Employees v. Federal Labor
Relations Authority, 774 F.2d 498 (D.C. Cir. 1985). The Union also
contends that there is no compelling need for the regulation relied on
by the Agency and that the proposal does not conflict with management's
rights.
B. Analysis and Conclusion
We find that the proposal is outside the duty to bargain because it
directly determines the conditions of employment of nonunit employees.
In our Decision and Order on Remand in the Scott Air Force Base case,
22 FLRA No. 79 (1986), we reaffirmed our previous holding that the
proposed competitive area in that case was outside the duty to bargain
because it would include nonunit employees. The proposal at issue in
that case defined the competitive area in terms of all bargaining unit
positions serviced by the Civilian Personnel Office (CCPO). As we
pointed out in our Decision and Order on Remand, the CCPO services areas
that are composed of bargaining unit and nonbargaining unit employees.
There is no material difference between the proposal in that case and
the proposal in this case. The result in this case, therefore, is the
same: the proposed competitive area is outside the duty to bargain.
IV. Union Proposal 3
Article 23, Section 30: The employer agrees that it will only
collect for damages to government property in an amount equal to
no more than 1 month's salary/wages and then only for cases where
the bargaining unit employees have been ultimately found guilty of
gross negligence.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is outside the duty to
bargain because it interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the Statute.
The Union acknowledges that the Authority has held similar proposals
to be nonnegotiable under section 7106(a)(1), but argues that Union
Proposal 3 constitutes an appropriate arrangement under section
7106(b)(3) for employees adveresely affected by the exercise of
management's right to determine its internal security practices.
B. Analysis and Conclusion
For the following reasons we find that Union Proposal 3 is
nonnegotiable. As the Agency points out, in National Federation of
Federal Employees, Local 29 and Department of the Army, Kansas City
District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA
No. 32 (1986), petition for review filed sub nom. National Federation of
Federal Employees, Local 29 v. Federal Labor Relations Authority, No.
86-1308 (D.C. Cir. May 28, 1986) and American Federation of Government
Employees, AFL-CIO, Council 214 and Department of the Air Force,
Headquarters Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 21 FLRA No. 34 (1986), petition for review filed sub nom.
American Federation of Government Employees, Council 214 v. Federal
Labor Relations Authority, No. 86-1340 (D.C. Cir. June 9, 1986), the
Authority held, respectively, that a proposal establishing a maximum
amount for employee pecuniary liability and a proposal establishing the
standard by which employees would be adjudged to be pecuniariily liable
directly interfered with management's right to determine its internal
security practices under section 7107(a)(1). Union Proposal 3,
therefore, which also provides for a cap on employee liability and a
criterion by which to determine whether an employee is liable, likewise
directly interferes with management's rights under section 7106(a)(1)
and is outside the Agency's duty to bargain.
Moreover, even assuming that Union Proposal 3 constitutes an
"arrangement" for employees adversely affected by management's right to
determine its internal security practices, we conclude that it
excessively interferes with that right so asto be an "inappropriate"
arrangement under section 7106(b)(3) of the Statute. The proposal,
among other things, would replace the standard of simple "negligence,"
promulgated by management under section 7106(a)(1), with the standard of
"gross negligence", which had previously been the standard established
by management. Management's change in this standard is more than a
matter of words or a question of degree of emphasis. Management's
change reflects a determination that a new, distinctly different
substantive requirement should govern employee conduct on the job. In
essence, therefore, the proposal would completely reverse the
substantive effect of management's action in changing the standard. As
the U.S. Court of Appeals for the District of Columbia Circuit stated in
setting forth the "excessive interference" test for appropriate
arrangements under section 7106(b)(3):
Undoubtedly, some arrangements may be inappropriate because
they impinge upon management prerogatives to an excessive degree.
(Emphasis in original.) A provision, for example, that would
require a demoted employee simply to be repromoted to his or her
former job would be inappropriate (to the point of absurdity) for
that reason. (Emphasis added.) Beyond that, we decline to
speculate as to what the word "appropriate" may lawfully be
interpreted to exclude . . .
American Federation of Government Employees, Local 2782 v. Federal
Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983). Insofar
as the standard for liability is concerned, Union Proposal 3, like the
court's example, completely negates management's exercise of its rights
and is therefore excessive. Proposals which totally abrogate the
exercise of a management right excessively interfere with that right and
do not constitute "appropriate arrangements." See American Federation of
Government Employees, AFL-CIO, Local 3186 and Department of Health and
Human Services, Office of Social Security Field Operations, Philadelphia
Region, 23 FLRA No. 30 (1986) (Union Proposal 1); Federal Union of
Scientists and Engineers and Department of the Navy, Naval Underwater
Systems Center, 22 FLRA No. 83 (1986).
V. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the petition for review of Union Proposals 11-3 be,
and it hereby is, dismissed.
Issued, Washington, D.C. October 31, 19896.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) For the cases which relied on the Fort Detrick decision see the
Appendix to this decision.
(2) For a more detailed statement of the Court's opinion, see the
Appendix to this decision.
(3) For the text of 5 U.S.C. Section 6101(a), see the Appendix to
this decision.
(4) For the text of 5 C.F.R. Section 610.121(a) and (b), see the
Appendix to this decision.
Appendix
1/ American Federation of Government Employees, AFL-CIO, Local 900
and Department of the Army, Office of the Adjutant General, U.S. Army
Reserve Components Personnel and Administrative Center, St. Louis,
Missouri, 18 FLRA No. 6 (1985), petition for review filed sub nom.
American Federation of Government Employees, Local 900 v. Federal Labor
Relations Authority, No. 85-1406 (D.C. Cir. July 3, 1985; American
Federation of Government Employees, National Council of Grain Inspection
Locals and U.S. Department of Agriculture, Federal Grain Inspection
Service, 18 FLRA No. 70 (1985), enforced sub nom. American Federation of
Government Employees, National Council of Grain Inspection Locals v.
Federal Labor Relations Authority, 794 F.2d 1013 (5th Cir. 1986);
National Association of Government Employees, Local R7-36 and U.S.
Department of the Army, Savanna Army Depot, 18 FLRA No. 86 (1985);
National Federation of Federal Employees, Local 7 and U.S. Army Corps of
Engineers, Portland District, 19 FLRA No. 18 (1985); National
Federation of Federal Employees, Local 687 and Department of the Air
Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base,
California, 19 FLRA No. 78 (1985) (Union Proposals 1 and 2); American
Federation of Government Employees, Local 1546 and Department of the
Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
(Union Provision 1), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO, Local 1546 v. Federal Labor
Relations Authority, No. 85-1689 (D.C. Cir. October 21, 1985); National
Association of Government Employees, Local R1-100H and Department of the
Navy, Naval Hospital, Groton, 20 FLRA No. 17 (1985); American
Federation of Government Employees, AFL-CIO, Local 1955 and The Adjutant
General, Iowa, Departments of the Army and the Air Force, National Guard
Bureau, 20 FLRA No. 46 (1985); American Federation of Government
Employees, AFL-CIO, Local 1738 and Veterans Administration Medical
Center, Salisbury, North Carolina, 20 FLRA No. 47 (1985) American
Federation of Government Employees, AFL-CIO, Local 1909 and Department
of Defense, Department of the Army, U.S. Army Training Center and Fort
Jackson, South Carolina, 20 FLRA No. 56 (1985); American Federation of
Government Employees, AFL-CIO, Local 2484 and Department of the Army,
Fort Detrick, Maryland, 20 FLRA No. 79 (1985); Department of Defense,
Department of the Army, Headquarters XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina and American Federation of Government
Employees, Local 1770, AFL-CIO, 20 FLRA No. 101 (1985); National
Association of Government Employees, Local R14-87 and Kansas City
National Guard, 21 FLRA No. 4 (1986) (Provision 1); American Federation
of Government Employees, AFL-CIO, Meat Grading Council of Locals and
Department of Agriculture, Meat Grading and Certification Branch, 22
FLRA No. 52 (1986).
2/ The Court stated, at 5 of the slip opinion, as follows:
OPM responds that the regulation, like the statute, permits a
variable workweek only under exceptional circumstances;
notwithstanding it may not say so in so many words, subsection (b)
which permits workweeks to be rescheduled was intended, and is
interpreted, by OPM to be qualified by subsection (a) directing
agency heads to establish conventional workweek schedules except
upon a determination that the agency would be seriously
handicapped in carrying out its functions or that costs would be
substantially increased. Moreover, the pertinent language of
subsection (a) reiterates that of the statute pursuant to which
the regulation was promulgated, and the statute qualifies the
regulation by operation of law whether the regulation expressly
says so or not. Therefore, when regulation and statute are read
together, as they must be, it is clear that agency heads must
reschedule their employees' workweeks as necessary to accomplish
the agency's mission, but only after having first determined that
the agency would be seriously handicapped or its costs
substantially increased if original work schedules were retained.
The Statute and regulation are consistent.
3/ 5 U.S.C. Section 6101(a) provides, in relevant part, as follows:
Section 6101. Basic 40-hour workweek; work schedules;
regulations
(a)(1) For the purpose of this subsection, "employee" includes
an employee of the government of the District of Columbia and an
employee whose pay is fixed and adjusted from time to time under
section 5343 or 5349 of this title, or by a wage board or similar
administrative authority serving the same purpose, but does not
include an employee or individual excluded from the definition of
employee in section 5541(2) of this title, except as specifically
providced under this paragraph.
(2) The head of each Executive agency, military department, and
of the government of the District of Columbia shall --
(A) establish a basic administrative workweek of 40 hours for
each full-time employee in his organization; and
(B) require that the hours of work within that workweek be
performed within a period of not more than 6 of any 7 consecutive
days.
(3) Except when the head of an Executive agency, a military
department or of the government of the District of Columbia
determines that his organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased, he shall provide, with respect to each employee in his
organization, that --
(A) assignments to tours of duty are scheduled in advance over
periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive;
(C) the working hours in each day in the basic workweek are the
same;
(D) the basic non-overtime workday may not exceed 8 hours;
(E) the occurrence of holidays may not affect the designation
of the basic workweek; and
(F) breaks in working hours of more than 1 hour may not be
scheduled in a basic workday.
4/ 5 C.F.R. Section 610.121(a) and (b) (1986) provides:
Section 610.121 Establishment of work schedules.
(a) Except when the head of an agency determines that the
agency would be seriously handicapped in carrying out its
functions or that costs would be substantially increased, he or
she shall provide that --
(1) Assignments to tours of duty are scheduled in advance of
the administrative workweek over periods of not less 1 week;
(2) The basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive;
(3) The working hours in each day in the basic workweek are the
same;
(4) The basic non-overtime workday may not exceed 8 hours;
(5) The occurrence of holidays may not affect the designation
of the basic workweek; and
(6) Breaks in working hours of more than 1 hour may not be
scheduled in a basic workday.
(b)(1) The head of an agency shall schedule the work of his or
her employees to accomplish the mission of the agency. The head
of an agency shall schedule an employee's regularly scheduled
administrative workweek so that it corresponds with the employee's
actual work requirements.
(2) When the head of an agency knows in advance of an
administrative workweek that the specific days and/or hours of a
day actually required of an employee in that administrative
workweek will differ from those required in the current
administrative workweek, he or she shall reschedule the employee's
regularly scheduled administrative workweek to correspond with
those specific days and hours. The head of the agency shall
inform the employee of the change, or he or she shall record the
change on the employee's time card or other agency document for
recording work.
(3) If it is determined that the head of an agency should have
scheduled a period of work as part of the employee's regularly
scheduled administrative workweek and failed to do so in
accordance with paragraphs (b)(1) and (2) of this section, the
employee shall be entitled to the payment of premium pay for that
period of work as regularly scheduled work under Subpart A of Part
550 of this chapter. In this regard, it must be determined that
the head of the agency: (i) Had knowledge of the specific days
and hours of the work requirement in advance of the administrative
workweek, and (ii) had the opportunity to determine which employee
had to be scheduled, or rescheduled, to meet the specific days and
hours of that work requirement.