[ v23 p872 ]
The decision of the Authority follows:
23 FLRA No. 107 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1934 Union and DEPARTMENT OF THE AIR FORCE, 3415 ABG, LOWRY AFB, COLORADO Agency Case No. 0-NG-1239 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 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.