48:0053(6)NG - - AFGE, Local 2145 and VA, Hunter Holmes McGuire Medical Center, Richmond, Virginia - - 1993 FLRAdec NG - - v48 p53

[ v48 p53 ]
The decision of the Authority follows:

48 FLRA No. 6





LOCAL 2145










August 6, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns a single proposal seeking to retain an established tour of duty. For the following reasons, we conclude that the proposal is outside the duty to bargain under section 7106(b)(1) of the Statute.(1)

II. Background and Preliminary Matters

On November 28, 1991, the Agency advised five bargaining unit employees that, effective January 1, 1992, they would be reassigned to an existing 8:00 a.m. to 4:30 p.m. tour of duty because of changing work demands and the need for constant supervision of the staff. At the time, two of the employees worked from 7:00 a.m. to 3:30 p.m., and three employees worked from 7:30 a.m. to 4:00 p.m. In addition, two employees were already assigned to the 8:00 a.m. to 4:30 p.m. tour of duty. On December 2, 1991, the Union requested to bargain over the change and proposed that the employees' tours of duty not be changed. The parties were unable to reach agreement and the Agency implemented the change on January 26, 1993.

Prior to the effective date of the change, the Union requested the assistance of the Federal Service Impasses Panel (FSIP). The FSIP declined to assert jurisdiction, stating that questions concerning the Agency's duty to bargain over the change in tours of duty would have to be resolved before it could be determined whether the parties had reached a negotiation impasse. The Union also filed an unfair labor practice charge alleging that the Agency failed to negotiate in good faith and impermissibly changed the tours of duty while the matter was pending with the FSIP. Subsequently, the Union withdrew the allegation regarding the failure to negotiate. The Authority's regional director issued an unfair labor practice complaint regarding the Agency's failure to maintain the status quo while the matter was pending before the FSIP. Thereafter, the Regional Director approved a settlement agreement executed by the Agency and withdrew the complaint.

On October 21, 1992, the Union requested an allegation of nonnegotiability concerning a proposal it had initially submitted to the Agency. The Agency responded stating that the proposal was nonnegotiable because it related to the staffing of an established administrative tour of duty and was determinative of the numbers, types and grades of employees or positions assigned to the tour of duty. The Union thereupon filed its petition for review.

The Agency now argues that the Authority should dismiss the petition for review because the Union failed to timely serve the Agency head with a copy of its negotiability appeal. In this regard, the Agency states the Union did not serve a copy of its petition for review on the head of the Agency within 15 days of the Agency's allegation of nonnegotiability, as required by section 7117(c)(2)(B) of the Statute.

The Union disputes the Agency's contention. The Union agrees that the Agency head was not served a copy of the petition for review within the stated time limit. However, the Union contends that this failure was not "quite the fatal defect that the Agency asserts." Response at 2-3. The Union states that copies of the petition were timely sent to other Agency personnel and that a copy of the petition was served on the Agency head after the Authority notified the Union that its petition was incomplete.

We reject the Agency's assertion that the petition should be dismissed. The record indicates that on November 12, 1992, the Authority issued an Order notifying the Union that its petition for review did not comply with the Authority's Regulations requiring service on the Agency head. The Order required the Union to comply with the regulations and to notify the Authority that it had done so. The Union subsequently advised the Authority that the petition had been served on the Agency head. Where, as here, the Union timely cured the deficiency in its petition for review, the petition is properly before us. See National Treasury Employees Union, Chapter 12 and U.S. Department of the Treasury, Internal Revenue Service, Birmingham, Alabama, 36 FLRA 70, 72 (1990).

The Agency also contends that it has no duty to bargain over the proposal because the subject of tours of duty is governed by the parties' local agreement. The Agency adds that the negotiability appeal process is not the proper forum for the Union to challenge this assertion. In addition, the Agency claims that the Union's characterization of the proposal as involving "flexitours" is incorrect. Statement of Position at 10. According to the Agency, the three tours of duty that were in existence were "all for set times, with no flexitime, flexitour or compressed work schedules[,]" and, consequently, this case does not present an issue regarding the negotiability of alternative work schedules under 5 U.S.C. § 6130. Id. at 9. The Agency further asserts that, to the extent the Union is proposing flexitours, the proposal would constitute a change to the tours of duty provision of the local agreement that could only be made in accordance with the reopener procedures in the parties' master agreement. Finally, the Agency contends that bargaining "outside the contractual process . . . would constitute improper union-initiated mid-term bargaining." Id. at 10.

The Union maintains that the Agency did not raise the issue of contract interpretation in its allegation of nonnegotiability and cannot do so for the first time in its statement of position. Even if it could be raised, however, the Union argues that such an argument would have to be rejected because there was no Union-initiated mid-term bargaining in this case. Rather, the Union claims that its request to bargain was in response to the Agency's initiative "to end flexitime in the coding unit[.]" Response at 2. In this regard, the Union disputes the Agency's assertion that flexitours, as defined in Federal Personnel Manual (FPM) chapter 610, subchapter 4-14(l), did not exist within the coding unit. The Union further explains, as follows:

The previous flexitour arrangement was not initiated as the answer to any deep and complex management problem. The employees simply requested different starting and quitting times and their requests were granted. The mere fact that there was no negotiations [sic] with the Union at the inception of the flexitour in question does not provide an excuse for a refusal to negotiate or a failure to negotiate at its termination.

Petition for Review at 5.

Initially, we note that the parties disagree as to whether the varying tours of duty on which employees worked constituted flexitours as that term is defined in law and regulation. The Authority previously has recognized that under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act), an exclusive representative may negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees.(2) See Space Systems Division. Los Angeles Air Force Base, Los Angeles, California, 45 FLRA 899 (1992), and cases cited therein at 903. Alternative work schedules for bargaining unit employees are fully negotiable within the limits of the Work Schedules Act and include the establishment, implementation, administration, and termination of those schedules. See id. In this case, we need not consider the applicability of the Work Schedules Act for two reasons. First, there is no evidence that an alternative work schedule was in place such that its termination gave rise to a bargaining obligation. Second, it is evident from the language of the proposal that the Union was not seeking to bargain over the establishment of an alternative work schedule.

As to the first point, the Work Schedules Act provides that "[e]mployees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative." 5 U.S.C. § 6130(a)(2). The Union has not established that a collective bargaining agreement between the parties expressly authorized flexitours. In fact, the Union concedes that the parties did not negotiate over flexitours. Absent the existence of a collectively bargained agreement, there is no basis on which to find that bargaining unit employees participated in an alternative work schedule under the auspices of the Work Schedules Act and its implementing regulations. See also FPM chapter 610, subchapter 4-7a ("Bargaining unit employees may participate in an [alternative work schedule] program only under the terms provided in a negotiated agreement . . . ." (emphasis in original)). It is well established that in negotiability matters, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). Because the Union has not established that flexitours were negotiated within the meaning of the Work Schedules Act, the Agency was not obligated to bargain over their termination.

Second, although parties may bargain over the establishment and implementation of alternative work schedules, the language of the proposal demonstrates that the Union was not seeking to bargain in that regard. Specifically, the proposal seeks to continue undisturbed the work schedule "presently in effect." Petition for Review, Enclosure 2. It is clear that the Union was attempting to retain what it erroneously believed to be an agreement negotiated under the Work Schedules Act. To view the proposal as an attempt to negotiate an alternative work schedule under the Work Schedules Act would be inconsistent with the language of the proposal. We are unwilling to interpret the proposal in a manner that is clearly inconsistent with its explicit language.

Finally, to the extent the Agency argues that there is no duty to bargain over the proposal because of provisions contained in the parties' master and local agreements, such issues are not appropriate for resolution in this proceeding. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). Under section 7117 of the Statute and Part 2424 of our Rules and Regulations, we will consider a petition for review of a negotiability issue where the parties disagree over whether a proposal is inconsistent with law, rule or regulation. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246 (1993); National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192, 194 (1988) (Housing and Urban Development). Where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from the Authority on whether a disputed proposal is negotiable under the Statute. See American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); Housing and Urban Development, 33 FLRA at 194-95. Here, the Agency claims, in part, that the proposal is inconsistent with law and regulation. Consequently, the petition is properly before us.

III. The Proposal

The flexitour schedule presently in effect in Clinical Support Service shall continue in effect undisturbed.

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it violates management's right to determine the numbers, types, and grades of employees assigned to a tour of duty. In this regard, the Agency claims that the proposal would require it to retain two employees on the 7:00 a.m. tour of duty, three employees on the 7:30 a.m. tour of duty, and two employees on the 8:00 a.m. tour of duty. The Agency argues that the proposal would thereby preclude management from assigning all of the employees to the existing 8:00 a.m. to 4:30 p.m. tour of duty. In support, the Agency cites Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988), aff'd sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990) (Scott Air Force Base).

In addition, the Agency contends that the proposal contravenes 5 C.F.R. § 610.121(b)(1) because it would prevent management from modifying tours of duty to reflect actual work requirements. In this regard, the Agency states that management has determined that the 8:00 a.m. to 4:30 p.m. tour of duty reflects the hours of the day in which the employees' actual work is to be performed.

Finally, the Agency disputes the Union's contention that the proposal is an appropriate arrangement for adversely affected employees under section 7106(b)(3) of the Statute. The Agency claims that the Union failed to point to any adverse effects in su