[ v27 p349 ]
The decision of the Authority follows:
27 FLRA No. 47 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-167 Union and OFFICE OF THE ADJUTANT GENERAL STATE OF CALIFORNIA Agency Case No. 0-NG-1313 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a proposal relating to the implementation of a compressed workweek. II. Background During the first few months of 1986, the parties were engaged in collective bargaining for a new agreement. Among the proposals the Union submitted to the Agency was one (Hours of Work, Section 6) which provided generally for the Union to submit detailed proposals for "implementing and administering" a compressed workweek. The Agency declared the proposal nonnegotiable and the Union requested assistance from the Federal Service Impasses Panel concerning the matter. Prior to meeting with the Panel's representative, the parties executed an agreement which left open the subject of a compressed workweek pending a negotiability determination by the Federal Labor Relations Authority. As a result of the parties' meeting with the Panel's representative, the Union agreed to withdraw its request for assistance and submit specific proposals to the Agency. The Union then submitted a detailed proposal concerning the implementation of a compressed workweek. The Agency declared that proposal nonnegotiable and the Union timely appealed to the Authority. III. Proposal The text of the proposal is set forth in Appendix I to this decision. Only the underlined portions of the proposal are in dispute. /1/ IV. Positions of the Parties The Agency contends generally that the proposal is nonnegotiable because National Guard technicians are not subject to the Federal Employees Flexible and Compressed Work Schedules Act. /2/ Specifically, the Agency claims that National Guard technicians are excluded from the Work Schedules 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 of title 5 or any other provision of law(.)" /3/ In addition, the Agency argues that compressed work schedules are outside the duty to bargain under section 7117(a)(2) of the Statute because they conflict with Technician Personnel Regulation (TPR) 600 (610.1), Section 1-1(a) and 1-4(b), an Agency regulation for which a compelling need exists under the Authority's regulations. Finally, the Agency contends that compressed work schedules directly interfere 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). With regard to the parts of the proposal which are in dispute, the Agency contends that they are nonnegotiable because they concern employees not in the bargaining unit and interfere with management's right under section 7106(a)(2)(B) of the Statute to assign work. 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 TPP 600 (610.1) and that compressed work schedules do not infringe on management's right to assign work. The Union argues that the particular portions of the proposal in dispute refer only to bargaining unit employees and must be read in conjunction with the parties' negotiated agreement which covers only "Federal technicians." It also argues that its proposal is not intended to assign responsibilities to management personnel. V. Analysis and Conclusion 1. Whether Those Portions of the Proposal which Prescribe a Compressed Workweek are Negotiable under the Work Schedules Act and the Statute The proposal before us in this case does not itself clearly prescribe a compressed workweek, although Section 4.A.(2) appears to provide a 4-10 work schedule, that is, a 4-day, 10-hour-a-day workweek. By its terms, the proposal as a whole concerns primarily the implementation of such a compressed workweek. We will address the proposed compressed work schedule separately from the proposals intended to implement that schedule. In National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA No. 81 (1987), we held that the Work Schedules Act applies to National Guard technicians. We therefore found, relying on American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986), that the proposed alternate work schedule in the Illinois National Guard case was negotiable. More particularly, we held in Lowry AFB that because alternate work schedules for bargaining unit employees are "fully negotiable" within the limits set by the Work Schedules Act, there are no issues pertaining to the negotiability of those schedules which the Authority will consider 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 negotiation of alternate work schedule proposals which the Authority may process under the procedures of section 7117 -- namely, whether a proposed work schedule conflicts with the Work Schedules Act itself or with other laws superseding the 1982 Act. Therefore, we found in Lowry AFB that issues as to the negotiability of the proposed alternate work schedule in that case under sections 7106 and 7117(a)(2) of the Statute were not properly before us. Similarly, to the extent that the Agency objects to the establishment of the compressed workweek contemplated by this proposal on the grounds that it has no duty to bargain on the subject of compressed workweeks for National Guard technicians, or on the grounds that the compressed workweek conflicts with management rights or an Agency regulation for which a compelling need exists, the Agency's position cannot be sustained. Finally, as noted above, the Authority is limited in its review of proposals for alternate work schedules to questions concerning whether such a schedule conflicts with the Work Schedules Act itself or with superseding legislation. Under the Act, an exclusive representative is authorized to negotiate for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. Section 6130(a)(1). Moreover, we note that the terms "collective bargaining," "collective bargaining agreement," and "exclusive representative" have the same meaning under the Work Schedules Act as under the Statute. 5 U.S.C. Section 6121(8). Those terms, as employed in the Statute and as relevant here, define an agency's duty to bargain as extending to the conditions of employment of bargaining unit employees. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 770-771 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Moreover, 5 U.S.C. Section 6127(b)(1) provides protections for nonunit employees by giving them an independent vote as to whether to participate in a compressed schedule program negotiated by an exclusive representative. See also S. Rep. No. 365, 97th Cong., 2d Sess. 12-13 (1982). The facct that the Work Schedules Act provides separately for nonunit employees to choose to participate in an alternate work schedule also supports the conclusion that an exclusive representative is authorized to negotiate such schedules only for unit employees. Therefore, if the compressed workweek set forth in this proposal includes nonunit personnel, it would be inconsistent with the Work Schedules Act. The first sentence of Section 3 of the proposal provides that "all" full-time support employees will participate in the compressed workweek schedule. The Agency claims that this sentence would include nonunit employees, in particular, supervisors, in the compressed workweek. Similarly, Section 4.A(2) provides for "all" other employees -- distinguishing them from the state employees referred to in Section 4.A(1) -- to work a compressed workweek and thus that section also could include nonunit employees. The Union claims that its proposal is intended to apply only to unit employees. However, the first sentence of Section 3 and Section 4.A.(2) do not distinguish between supervisory and nonsupervisory employees. Rather, they include "all" full-time support personnel and "all" other employees within the compressed workweek. Moreover, the Union's claim that these sections apply only to unit employees is difficult to reconcile with the fact that other sections of the proposal clearly pertain to nonunit personnel. For example, the second sentence of Section 4.A.(1) would potentially include state employees in a compressed workweek schedule. Thus, by including nonunit employees within the proposed compressed workweek, these sections are inconsistent with the Work Schedules Act and are therefore nonnegotiable. We note in this connection that we have found the proposed compressed workweek set forth in the proposal otherwise negotiable under the Work Schedules Act; if the first sentence of Section 3 and Section 4.A(2) were revised to specifically pertain only to bargaining unit employees, they would be negotiable. The second sentence of Section 4.A.(1) would not be revised to be negotiable since the Work Schedules Act applies to Federal, but not state, employees. 2. Whether the Portions of the Proposal which Remain in Dispute are Negotiable under the Work Schedules Act or the Statute We next address the negotiability of the portions of the proposal which remain in dispute, namely, the third and last sentences of Section 3, the last sentence of Section 4.A.(1), Section 4.C.(3), and Section 4.F.(3). The threshold question is whether these portions of the proposal concern matters which are negotiable under the Work Schedules Act or matters which are reviewable by the Authority under section 7117 of the Statute. In order to answer this question it is necessary to discuss briefly the Work Schedules Act. The Work Schedules Act provides that an exclusive representative can negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. Section 6130(a)(1). As reflected in its legislative history, the Act is intended to include within the collective bargaining process "the institution, implementation, administration and termination of alternative work schedules(.)" S. Rep. No. 365, supra, at 14-15. The legislative history also indicates that full negotiation is expected on these aspects of alternative work schedules. See id. at 3, 5. A compressed schedule is defined, for full-time employees, as an 80-hour biweekly work requirement that is scheduled for less than 10 workdays and, in the case of part-time employees, as a biweekly basic work requirement of less than 80 hours schedules for less than 10 days. 5 U.S.C. Section 6121(5). Flexible schedules, as provided in the Work Schedules Act, concern variable starting and quitting times and the earning of credit hours for varying the length of the workday or workweek. 5 U.S.C. Section 6122. Thus, in short, what is negotiable under the Work Schedules Act is the institution, implementation, administration and termination of these alternate work schedules for bargaining unit employees. With this background, we turn to the issue of the negotiability of the portions of the proposal which remain in dispute. We find that the third and last sentences of Section 3 are negotiable. Section 6127(b)(2) of the Work Schedules Act provides certain protections for employees when participation in a compressed schedule program would impose a personal hardship, and specifies steps that an agency must take to alleviate that hardship. See S. Rep. No. 365, supra, at 12-13. The third and last sentences of Section 3 provide procedures whereby employees who experience personal hardship may be excluded from participation in the alternate work schedule set forth in the proposal; that is, those sentences provide for the implementation of a compressed work schedule program in accordance with section 6127(b)(2). Thus, because the third and last sentences of Section 3 concern the implementation and administration of an alternate work schedule, they are matters which are negotiable under the Work Schedules Act. Therefore, they are not reviewable by the Authority under section 7117 of the Statute. Section 4.A.(1), Section 4.C.(3), and Section 4.F.(3) concern the assignment of particular tasks and responsibilities to nonunit personnel. They do not concern the institution, implementation, administration or termination of employee work schedules. Therefore, as discussed above, they do not concern matters which are negotiable under the Work Schedules Act, but rather matters which are reviewable under section 7117 of the Statute. That is, they are subject to review by the Authority as to whether they are inconsistent with law -- including management rights under section 7106 -- rule or regulation. Specifically, these sections concern nonunit personnel, namely, supervisors (Sections 4.C.(3) and 4.F.(3)), state employees (Section 4.A.(1)), and military personnel (the Active Guard Reserve, Section 4.F.(3)). Because these sections purport to prescribe certain conditions of employment for those nonunit personnel, they are outside the duty to bargain. See National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 531 (1985) (Proposal 1). Moreover, the disputed sections assign certain duties to the specified nonunit personnel. For example, Section 4.A.(1) provides for the Base Engineer to determine the work schedules of particular groups of employees; Section 4.C.(3) concerns the responsibilities of supervisors when they approve an extended lunch period; and Section 4.F.(3) concerns the responsibilities of supervisory Air Technicians or Active Guard Reserve employees when functioning as Duty Officer. They therefore have the same effect as the proposal in Hawaii Federal Employees Metal Trades Council, AFL-CIO and Pearl Harbor Naval Shipyard, 22 FLRA No. 73 (1986), which directly interfered with management's right to assign work because it required nonunit personnel to perform specific duties. For the reasons set forth in Pearl Harbor Naval Shipyard, therefore, we find that the disputed sections of the proposal in this case similarly interfere with management's right to assign work by prescribing certain duties to nonunit personnel. Those sections are, therefore, outside the duty to bargain. We note that if Section 4.C.(3) were revised so as to preserve management's discretion to determine the management official who would be responsible for the tasks involved, it would be negotiable. See American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command -- Redstone Arsenal Commissary, 27 FLRA No. 14 (1987). VI. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the third and last sentences of Section 3. The petition for review as to the remaining disputed proposals is dismissed. 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) The Union withdraws Sections 4.E.(1), 4.F.(1), 4.F.(2) and 4.H. of its proposal and they will not be considered further here. (2) 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. (3) For the text of 32 U.S.C. Section 709(g), see Appendix II to this decision. APPENDIX I PROPOSAL MARCH AFB, 163RD TFG COMPRESSED WORKWEEK (CWW) ADMINISTRATIVE PROCEDURES 1. GENERAL: These procedures implement a proposed compressed workweek for the 163rd TFG located at March Air Force Base, California. 2. PURPOSE: The purpose of the CWW program is to increase productivity of the Unit and at the same time increase the quality of work life for the full time support force. As a minimum, attainment of these goals will be evaluated semi-annually. 3. SCOPE: All full time support employees will participate in the CWW program. Recruiters will not participate. Exceptions for extreme hardship can be granted by the Air Commander or his four senior supervisors for periods not exceeding 90 days. Exceptions can be renewed for a period not to exceed 90 days if necessary. Employees desiring a hardship exception should apply in writing explaining in detail their justification for the request, through supervisory channels, at least one pay period in advance. Senior supervisors will process hardship exception requests within five (5) working days and submit the approval/denial to the employee with a copy for record to the immediate supervisor. 4. GENERAL PROVISIONS: A. WORKDAYS: (1) State maintenance and mechanics will normally work Monday thru Friday, from 0730 to 1615, with a 45 minute lunch period from 1130 to 1215. The Base Civil Engineer will assign his state employees to either a CWW schedule or a standard work schedule as the mission dictates. (2) All other employees will work Tuesday thru Friday with Saturday coverage being a split UTA system. (3) Core time of 0630 to 1130 and 1215 to 1715 Tuesday thru Friday must be manned in every major functional area. (4) Saturday flying operations must be sufficiently manned. (5) Workdays may be rotated when necessary to give all employees the opportunity to work the days of their choice within mission requirements. (6) Workdays will not be adjusted solely for the purpose of conserving military leave. B. WORK HOURS: (1) Normal work hours for CWW employees will be 0630 to 1715. C. LUNCH PERIOD: (1) The normal CWW lunch period is 1130 to 1215. (2) The time of the lunch period will be flexible to meet mission requirements. (3) Under exceptional circumstances normally beyond the employee's control, the lunch period can be extended up to 2 1/2 hours without charge to leave by starting early, working late, or a combination of both. The extended lunch period and hours of the makeup time (must be same day) must be approved in advance by the supervisor. The supervisor need not be present for the early start or late quit, but is responsible for the productivity of employees for whom he approves an extended lunch period. Under no circumstances will safety considerations be compromised. D. BREAK PERIODS: There will be two 15 minute break periods per day, one before and one after the lunch break. Where break periods as a work unit are not necessary, or desirable, the break time is flexible with supervisor approval. Where it is advantageous to take a break as a work unit, the break time will be 0930 to 0945 and 1500 to 1515. E. NIGHT FLYING: (2) Hours will be 0930 to 2015 for those supporting night flying. F. MONDAY COVERAGE: (3) All Air Technician or AGR employees in Supervisory positions, such as WG or GS-10 or above will be eligible to be Duty Officer on Monday. The Duty Officer will be on call and reasonably available on Monday to provide a continuous communication link to higher headquarters and to handle urgent situations. The Duty Officer for the following Monday is responsible for notifying the Air Commander of what his phone number and location will be on Monday, before he departs for the weekend. G. TDY: People will work a schedule that will result in a 40 hours workweek as far as practical, however, when necessary, they will conform to the work schedule at the TDY locations. I. DISCLAIMER: The provisions of FPM Supplement 990-2, Book 620 relative to compressed work schedules will apply. If there is any conflict between procedures in this document and the FPM's the FPM will take precedence. J. PROGRAM IMPROVEMENTS: Suggestions for program improvement should be addressed to the Air Commander, or his four senior supervisors. FOR THE UNION: DATE: FOR THE ADJUTANT GENERAL: DATE: APPENDIX II (3) 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.