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U.S. Federal Labor Relations Authority

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23:0872(107)NG - AFGE Local 1934 and Air Force, 3415 ABG, Lowry AFB, CO -- 1986 FLRAdec NG

[ v23 p872 ]
The decision of the Authority follows:

 23 FLRA No. 107
                                            Case No. 0-NG-1239
                         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 concerns the
 negotiability of a single Union proposal.  /1/
                            II. Union Proposal
                         Alternative Work Program
          e.  4/10 Work Program -- An employee may work any consecutive
       ten hour days during the bandwidth (0600 to 1800) excluding the
       lunch period.  The days off shall be negotiated with the
       supervisor prior to the end of the pay period that the employee
       starts the 4/10 work day program.  The employee will negotiate a
       start time and that start time shall be effective for at least one
       pay period unless mutually agreed to change for uncontrollable
       personal or emergency reasons.
    As explained by the parties, the proposal is concerned with enabling
 employees to work workweeks composed of four, ten-hour days.
                      III.  Positions of the Parties
    The Agency argues that the proposal is inconsistent with sec. 4 of
 the Federal Employees Flexible and Compressed Work Schedules Act of 1982
 (the 1982 Act), Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C.
 Sections 3401, 6101 and note, 6106, 6120-6123), under which it
 terminated an identical 4/10 work schedule program in 1982.  It also
 argues that insofar as the proposal concerns appropriate arrangements
 within the meaning of section 7106(b)(3) for employees who were
 adversely affected by its 1982 decision, the appeal should be dismissed
 to enable the parties to resume negotiations consistent with the
 Authority's decision in National Association of Government Employees,
 Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), or
 that the record should be reopened for further submissions by the
 parties as to whether the Union's proposal is negotiable as an
 appropriate arrangement.  The Union argues that the 1982 Act authorizes
 negotiations on its proposal.
                       IV.  Analysis and Conclusion
    The Agency's contentions in support of its motion to dismiss, or in
 the alternative to reopen the record, do not raise any issues bearing on
 the proposal's negotiability.  The motion is therefore denied.  In its
 deliberations on the 1982 Act, made permanent under the Federal
 Employees Flexible and Compressed Work Schedules Act of 1982, Permanent
 Authority (the 1986 Act), Pub. L. No. 99-196, 99 Stat. 1350, Congress
 found that "(t)he benefits of these schedules to employees were
 overwhelming." Senate Committee on Governmental Affairs, Federal
 Employees Flexible and Compressed Work Schedules Act of 1982, S. Rep.
 No. 365, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S. Code
 Cong. & Ad. News at 566.  The legislative history also indicates that
 the use of alternative work schedules was intended to be fully
 negotiable, subject only to the provisions of the 1982 Act itself.  See,
 for example, S. Rep. No. 365 at 3, 5.  See also Federal Labor Relations
 Authority v. Social Security Administration, 753 F.2d 156, 159-60 (D.C.
 Cir. 1985);  Office of Personnel Management, "Report on Alternative Work
 Schedules in the Federal Government," in Subcommittee on Human Resources
 of the House Committee on Post Office and Civil Service, Federal
 Employees Flexible and Compressed Work Schedules Act:  Hearings on H.R.
 1534, Ser. No. 99-1, 99th Cong., 1st Sess. 53-55, 57-58 (1985).
    As provided under 5 U.S.C. Section 6131(a)-(c), an agency may object
 to the negotiation of an alternative work schedule (AWS) proposed by a
 labor organization only where the agency can establish that the proposed
 schedule will have an "adverse agency impact." If the parties need
 third-party assistanced to resolve a dispute concerning the alleged
 adverse agency impact, they must present their dispute to the Federal
 Service Impasses Panel as provided under 5 U.S.C. Section 6131(c)(2) and
 part 2472 of the Panel's Rules and Regulations (5 CFR part 2472).  In
 view of this statutory scheme, the Agency's contentions relating to
 whether the proposal is negotiable as an appropriate arrangement under
 section 7106(b)(3) do not raise any issues which the Authority can
 resolve under section 7117 of the Statute.
    There remains, however, a limited range of issues bearing on the
 negotiation of AWS proposals which the Authority may process under the
 procedures of section 7117.  Nothing in the statutory scheme for
 resolving disputes over adverse agency impact or the legislative history
 of the 1982 and 1986 Acts bars application of the procedures of section
 7117 to AWS proposals under the 1982 Act where a proposal is alleged to
 be inconsistent with the 1982 Act itself or with other laws superseding
 the 1982 Act.  /2/
    In this case, the Agency claims that the Union's proposed compressed
 work schedule is identical to the Agency's previous schedule, which was
 terminated by the Agency pursuant to sec. 4 of the 1982 Act.  The Agency
 argues that under sec. 4 of the Act, the Union had 90 days in which to
 challenge the termination of the previous compressed work schedule and
 that by failing to challenge the termination within the 90-day period
 the Union is precluded from now proposing a schedule identical to the
 one terminated.
    We reject the Agency's argument.  Section 4 of the 1982 Act was
 intended only to apply to work schedules which were initiated as
 experiments under the 1978 Act.  It was not intended to bar the
 subsequent negotiation of work schedules under the substantive and
 procedural requirements of the 1982 Act.  See S. Rep. No. 365, 97th
 Cong., 2d Sess. 6 (1982).  We therefore conclude that sec. 4 of the 1982
 Act is not applicable to the proposal at issue here.
    If the parties need third-party assistance to resolve a dispute
 concerning whether the proposal will result in an adverse agency impact,
 they must present their dispute to the Federal Service Impasses Panel.
                                 V.  Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning the Union
 proposal consistent with this decision.  /3/
    Issued, Washington, D.C., October 31, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) The appeal initially concerned two Union proposals.  However, in
 responding to the Agency's statement of position the Union has stated
 that the dispute concerning one of the proposals (proposal "g") is moot
 and may be dismissed on that basis.  We interpret this as a motion to
 withdraw the proposal and grant the motion.
    (2) In prior decisions the Authority entertained and considered
 arguments by the parties, under section 7117 of the Statute, concerning
 whether union AWS proposals were nonnegotiable because they conflicted
 with management rights under section 7106 of the Statute or agency
 regulations for which a compelling need exists.  American Federation of
 Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
 Corporation, Madison Region, 21 FLRA No. 104 (1986) (Union Proposal 9);
 National Treasury Employees Union, Chapter 65 and Department of the
 Treasury, Internal Revenue Service, 20 FLRA No. 4 (1985).  In those
 cases, as here, the parties did not raise the issue of the extent to
 which section 7117 procedures apply to disputes over AWS proposals.  As
 we discussed above, those procedures generally do not apply to these
 disputes.  Accordingly, to the extent that these decisions are to the
 contrary, they will no longer be followed.  Those matters should
 generally be resolved, as intended by the 1982 and the 1986 Acts, with
 the assistance of the Federal Service Impasses Panel if necessary.
    (3) In finding the Union's proposal to be within the duty to bargain,
 the Authority makes no judgment as to its merits.