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U.S. Federal Labor Relations Authority

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27:0147(27)NG - NAGE Local R14-76, and Wyoming Air NG, Cheyenne, WY -- 1987 FLRAdec NG

[ v27 p147 ]
The decision of the Authority follows:

 27 FLRA No. 27
                                            Case No. 0-NG-1284
    I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of one proposal.  Based on the following, we find that the
 proposal is negotiable.
    II.  The Proposal
          The Administrative workweek for all Air National Guard
       Employees is Sunday through Saturday.  The basic workweek will
       consist of four (4) days of ten (10) hours each (exclusive of
       lunch periods) normally Monday through Friday except for those
       employees whose services are determined by the employer to warrant
       other basic workweeks.  To the maximum extent possible,
       non-workdays will be consecutive when other than Monday through
       Friday work weeks are established.  Every effort will be made to
       insure that the non-workdays will be the same each week.  (Only
       the underlined portion of the proposal is in dispute.)
                       A.  Positions of the Parties
    The Agency contends that the proposal, to the extent that it proposes
 alternative work schedules under the Work Schedules Act, is
 nonnegotiable because National Guard technicians are not subject to the
 Work Schedules Act.  /1/ Specifically, the Agency claims that National
 Guard technicians are excluded from the Act by 32 U.S.C. Section 709(g),
 which provides that the Secretaries of the Army and the Air Force shall
 prescribe technicians' hours of work "(n)otwithstanding sections 5544(a)
 or 6101(a) of title 5 or any other provision of law(.)" /2/
    In addition, the Agency argues that the proposal is outside the duty
 to bargain under section 7117(a)(1) of the Statute because it is
 inconsistent with 5 U.S.C. Section 6132, and under section 7117(a)(2)
 because it conflicts with Technician Personnel Regulation (TPR) 600
 (610.1), Section 1-1a and 1-4b, an Agency regulation for which a
 compelling need exists under the Authority's regulations.  Finally, the
 Agency contends that the proposal directly interferes with management's
 rights to assign work under section 7106(a)(2)(B) and to determine the
 numbers, types and grades of employees and positions assigned to a work
 project or tour of duty under section 7106(b)(1).
    The Union contends that the Work Schedules Act applies to National
 Guard technicians and that there is no conflict between that Act and 32
 U.S.C. Section 709.  In support of this claim the Union cites 5 U.S.C.
 Sections 6121(2) and 2105.  The Union also contends, contrary to the
 Agency, that there is no compelling need for Technician Personnel
 Regulation (TPR) 600 (610.1), and that the proposal does not infringe on
 management's rights under section 7106(a)(2)(A) and (B) nor section
                        B.  Analysis and Conclusion
    The proposal before us allows bargaining unit employees who are
 National Guard technicians to follow a compressed work schedule, that
 is, a 4-day, 10 hour-a-day workweek.  It is, in all material respects,
 to the same effect as the last sentence in Proposal 1 and Proposal 5 in
 National Federation of Federal Employees, Local 1655 and Illinois
 National Guard, 26 FLRA No. 81 (1987).  In that case we held that the
 Work Schedules Act applies to National Guard technicians.  We therefore
 found that the proposed alternate work schedule in that case was
 negotiable.  We also held that because alternate work schedules are
 "fully negotiable" within the limits set by the Work Schedules Act,
 there are no issues pertaining to the negotiability of those schedules
 which are considered by the Authority under section 7117 of the Statute,
 insofar as those issues concern an alleged conflict with the Statute.
 There remains a limited range of issues bearing on the negotiations of
 alternative work schedule proposals which the Authority may process
 under the procedures of section 7117 -- namely whether a proposed
 alternate work schedule conflicts with the Work Schedules Act itself or
 with other laws superseding the 1982 Act.  See American Federation of
 Government Employees, Local 1943 and Department of the Air Force, 3415
 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986).  Therefore we found
 that issues as to the negotiability of an alternative work schedule
 under sections 7106 and 7117(a)(2) of the Statute were not properly
 before us.
    The Agency objects to the compressed workweek contemplated by this
 proposal on the grounds that (1) it has no duty to bargain on the
 subject of compressed workweeks, (2) the proposal conflicts with its
 management rights, and (3) the proposal conflicts with an Agency
 regulation for which there is a compelling need.  For the reasons set
 forth in Illinois National Guard and Department of the Air Force, the
 Agency position cannot be sustained.  The proposal providing for a
 4-day, 10 hour-a-day compressed work schedule is, therefore, within the
 duty to bargain.  /3/
    III.  Order
    The Agency must upon request or as otherwise agreed to by the parties
 bargain concerning the proposal.
    Issued, Washington, D.C., May 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) 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.
    (2) 32 U.S.C. Section 709(g) provides as follows:
          Section 709 Technicians:  Employment, use, status
                       . . . . . . .
          (g)(1) Notwithstanding section 5544(a) and 6101(a) of title 5
       or any other provision of law, the Secretary concerned may, in the
       case of technicians assigned to perform operational duties at air
       defense sites --
          (A) prescribe the hours of duties;
          (B) fix the rates of basic compensation;  and
          (C) fix the rates of additional compensation;
          to reflect unusual tours of duty, irregular additional duty,
       and work on days that are ordinarily nonworkdays.  Additional
       compensation under this subsection may be fixed on an annual basis
       and is determined as an appropriate percentage, not in excess of
       12 percent, of such part of the rate of basic pay for the position
       as does not exceed the minimum rate of basic pay for GS-10 of the
       General Schedule under section 5332 of title 5.
          (2) Notwithstanding section 5544(a) and 6101(a) of title 5 or
       any other provision of law, the Secretary concerned may, for
       technicians other than those described in clause (1) of this
       subsection, prescribe the hours of duty for technicians.
       Notwithstanding sections 5542 and 5543 of title 5 or any other
       provision of law, such technicians shall be granted an amount of
       compensatory time off from their scheduled tour of duty equal to
       the amount of any time spent by them in irregular or overtime
       work, and shall not be entitled to compensation for such work.
    (3) In finding this proposal within the duty to bargain, we make no
 judgment as to its merits.