[ v25 p373 ]
The decision of the Authority follows:
25 FLRA No. 27 NATIONAL TREASURY EMPLOYEES UNION CHAPTER 65 Union and DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE Agency Case No. 0-NG-1251 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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). The case concerns the negotiability of the following Union proposal: Pursuant to Article 9, Section 2 of NORD II, employees who are NTEU officials may request to earn credit hours, consistent with the Alternative Work Schedule Agreement, to perform such duties as contained in Article 9, Section 2. We find the proposal to be negotiable. II. Positions of the Parties The Union's proposal provides that employees who serve as Union officials may request permission of management to earn credit hours under the parties' flexible work schedules agreement for participation as Union representatives in certain labor-management meetings scheduled by agency. /1/ As an example, the Union states the following: If an employee who served as a Union steward worked a flexi-tour with credit hours and normally worked from 9:00 a.m. to 5:30 p.m. on the flexi-tour, he would be eligible to come in at 8:00 a.m. and earn one credit hours. Under the proposal, if the steward came in for a grievance meeting scheduled by the agency at 8:00 a.m., he would be eligible to request one credit hour. Union's Petition for Review at 2. The Agency contends that the Union's proposal interferes with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is contrary to section 7131 of the Statute. The Agency also contends that the proposal is inconsistent with the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Sections 3401, 6101 and note, 6106, 6120-6133), which was made permanent in 1986, Pub. L. No. 99-196, 99 Stat. 1350. The Union disputes the Agency's contentions. III. Analysis and Conclusions A. Whether the Proposal Conflicts with Management's Rights Under Section 7106 and/or with Section 7131 of the Statute The negotiability dispute resolution procedures under section 7117 of the Statute do not apply to this dispute insofar as it raises issues concerning whether matters pertaining to alternative work schedules interfere with management's rights or are inconsistent with the official time provisions of the Statute. In American Federation of Government Employees, Local 1934, and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986), we held that under the Federal Employee Flexible and Compressed Work Schedules Act (the Act) the "use of alternative work schedules was intended to be fully negotiable," subject only to the provisions of the Act itself or with other laws superseding the 1982 Act. Where an agency objects to a proposed alternate work schedule because it believes that the schedule will have an "adverse agency impact" within the meaning of 5 U.S.C. Section 6131(b), it may present the issue to the Federal Service Impasses Panel for resolution as provided in 5 U.S.C. Section 6131(c)(2). Because alternate work schedules are "fully negotiable" within the limits set by the Act, there are no issues pertaining to the negotiability of those schedules under section 7117 which relate to asserted conflicts with provisions of the Statute. For this reason, the Agency's contentions as to section 7106 and section 7131 of the Statute are not properly before us. B. Whether the Proposal Is Consistent With the Act As noted above, issues as to whether a proposed alternative work schedule conflicts with the Act itself are appealable to the Authority under section 7117. The Agency contends in essence that under section 6121(4) and section 6122 of the Act, employees working a flexible schedule may not earn credit hours for Union representational activities on official time performed outside the employees' basic eight-hour work requirements. /2/ We reject the Agency's contention, and accordingly conclude that the Union's proposal does not conflict with the Act. The Act provides that employee working a flexible schedule may earn credit hours, up to specified limits, for use in meeting their daily eight-hour work requirement at some other time. 5 U.S.C. Sections 6121(4), 6122(a)(2). To earn these credit hours employees may, at their option, work more than their daily basic eight-hour work requirement. For example, they may earn two credit hours by electing to work ten hours on a given day instead of eight. 5 U.S.C. Section 6121(4). The two credit hours earned may be applied against an employee's basic eight-hour work requirement on some other day so as to reduce by two the number of hours the employee must actually work on that day. 5 U.S.C. Section 6122(a)(2). In this respect, as the legislative history indicates, credit hours are "analogous" to compensatory time. S. Rep. No. 365, 97th Cong. 2d Sess. at 9 (1982), reprinted in 1982 U.S. Code Cong. and Ad. News 565, 571. In the absence of any demonstration in the record to the contrary, if management scheduled a two-hour labor-management meeting during the employee's basic work requirement, the employee's participation in the meeting as a union representative on official time would count toward fulfillment of that work requirement. If the employee then worked two additional hours that day, the employee could earn credit hours for that work. All that the proposal in this case would do is provide that if the Agency scheduled the meeting before of after the employee's basic work requirement instead of during that time the employee similarly could earn two credit hours. Thus, any portion of that ten-hour period is work time within the meaning of the Act, or "duty time," and any point in that ten-hour period in which an employee conducts Union representational activities in meetings scheduled by the Agency would constitute work time or "paid time" during which an employee could conduct such activities on "official time." /3/ Our conclusion is not inconsistent with decisions in which the Authority has held that employees may not receive compensatory time -- or overtime pay -- for labor-management activities performed outside their regularly scheduled tour of duty. Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4 (1985) (compensatory time); Patent Office Professional Association and Patent and Trademark Office Department of Commerce, 21 FLRA No. 74 (1986) (Union Proposals 1 and 2) (overtime). In those cases, the hours spent on labor-management activities outside the employees' tour of duty constituted nonduty time, and the prerequisite to compensatory time or overtime is that the activities must be performed on duty time. /4/ See 5 C.F.R. Section 551.424 (1986). /5/ The case now before us is distinguishable. Under the Act, hours which employees work in excess of their basic work requirement are not nonduty time but are within their regularly scheduled flexible tour of duty. See FPM Supplement 990-2, Book 620, Subchap. S2-3(a)(1). Unlike the cases cited above, therefore, employees performing labor-management activities on official time in meetings scheduled by the Agency outside the employees' basic work requirement under the Act would be performing such activities during duty time. For the reasons discussed above, therefore, we conclude that the Federal Employees Flexible and Compressed Work Schedules Act does not preclude employees from earning credit hours, as intended by the Union's proposal, by performing union representational activities in meetings scheduled by the Agency outside the employee's basic work requirement. IV. ORDER The Agency must upon request, or as otherwise agreed to by the parties, bargain on the Union's proposal. /6/ Issued, Washington, D.C., January 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) See Article 9, Section 2. C. and D. of the parties' National Office, Regions, and Districts (NORD) II Agreement, set forth in the Appendix to this decision. (2) For the text of 5 U.S.C. Sections 6121(4) and 6122, see the Appendix to this decision. (3) "Official time" under the Statute is "paid time." Bureau of Alcohol, Tobacco and Fireamrs v. FLRA, 464 U.S. 89, 99 (1983); Local 1164, American Federation of Government Employees, AFL-CIO and Social Security Administration, Boston Region, 19 FLRA No. 110 (1985). It is time which counts toward the fulfillment of an employees basic work requirement. (4) An exception is where an employee who has been wrongfully denied official time performs labor-management activities on nonduty time and then grieves the denial of official time. The Authority has held that, under section 7131(d), an arbitrator may award such an employee compensation as the straight-time rate for the amount of time wrongfully denied. U.S. Department of Justice, Bureau of Federal Prisions, Federal Correctional Institution, Seagoville, Texas and American Federation of Government Employees, Council of Prison Locals, Local No. 1637, 22 FLRA No. 5 (1986). (5) For the text of 5 C.F.R. Section 551.424, see the Appendix to this decision. (6) In finding the proposal to be within the duty to bargain, we make no judgment as to its merits. APPENDIX 1. Article 9, Section 2 of the parties' NORD II Agreement provides in pertinent part: Section 2 Official Time . . . . . C. Stewards shall be granted official time for participation for, or on behalf of, the Union in the meetings with the Employer (including time to travel to and from such meetings) described in subsection D. below. For each of the meetings described in subsection D. one (1) steward only is entitled to time. Notwithstanding the above, in cases where more than fifty (50) employees are in attendance, or where there are employees from more than one area of representation, two (2) stewards will be entitled to time. D. The meetings referred to in subsection C. above are: 1. meetings with the Employer concerning personnel policies, practices or other general conditions of employment or any other matter covered by 5 U.S.C. 7114(a)(2)(A); 2. meetings to discuss or present unfair labor practice charges or unit clarification petitions; 3. meetings for the purpose of presenting replies to proposed termination of probationers; 4. oral replies to notices of proposed disciplinary, adverse or unacceptable performance actions; 5. meetings to present appeals in connection with statutory or regulatory appeal procedures in which the Union is designated as the representative; 6. meetings for the purpose of presenting reconsideration replies in connection with the denial of within-grade increases; 7. examinations of employees in the unit by a representative of the Employer in connection with an investigation if: (a) the employee reasonably believes that the examination may result in disciplinary action against the employee and (b) the employee requests representation; 8. tax audits or unit employees that are conditions of employment when the employees request representation; 9. grievance meetings and arbitration hearings; and, 10. meetings of committees on which Union representatives are authorized membership pursuant to this Agreement. 2. 5 U.S.C. Section 6121 defines "basic work requirement" and "credit hours" as follows: Section 6121. Definitions For purposes of this subchapter -- . . . . . (3) "basic work requirement" means the number of hours, excluding overtime hours, which an employee is required to work or is required to account for by leave or otherwise; (4) "credit hours" means any hours, within a flexible schedule established under section 6122 of this title, which are in excess of an employee's basic work requirement and which the employee elected to work so as to vary the length of a workweek or a workday (.) 5 U.S.C. Section 6122 provides: Section 6122. Flexible schedules; agencies authorized to use (a) Notwithstanding section 6101 of this title, each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules which include -- (1) designated hours and days during which an employee on such a schedule must be present for work; and (2) designated hours during which an employee on such a schedule may elect the time of such employee's arrival at and departure from work, solely for such prupose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday. An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled. (b) Notwithstanding any other provision of this subchapter, but subject to the terms of any written agreement referred to in section 6130(a) of this title, if the head of an agency determines that any organization within the agency which is participating in a program under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may -- (1) restrict the employee's choice of arrival and departure time, (2) restrict the use of credit hours, or (3) exclude from such program any employee or group of employees. 5. 5 C.F.R. Section 551.424 (1986) provides: Section 551.424 Time spent adjusting grievances or performing representational functions. (a) Time spent by an employee adjusting his or her grievance (or any appealable action) with an agency during the time the employee is required to be on the agency's premises shall be considered hours of work. (b) "Official time" granted an employee by an agency to perform representational fuctions during those hours when the employee is otherwise in a duty status shall be considered hours of work. This includes time spent by an employee performing such functions during regular working hours (including regularly scheduled overtime hours), or during a period of irregular, unscheduled overtime work, provided an event arises incident to representational functions that must be dealt with during the irregular, unscheduled overtime period.