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 3 FLRA No. 37
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2151
 (Union)
 
 and
 
 GENERAL SERVICES ADMINISTRATION,
 NATIONAL CAPITAL REGION,
 WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-193
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
    IN THE COURSE OF NEGOTIATING A MEMORANDUM OF AGREEMENT TO IMPLEMENT
 THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF
 1978, PUB. L. NO.  95-390, 92 STAT. 755(1978) (HEREINAFTER REFERRED TO
 AS THE WORK SCHEDULES ACT), THE UNION SUBMITTED THE FOLLOWING PROPOSAL
 TO THE ACTIVITY:
 
                              UNION PROPOSAL
 
    SECTION 4.  THE PROGRAM MAY BE TERMINATED BY THE EMPLOYER FOR ANY
 EMPLOYEE OR GROUP OF
 
    EMPLOYEES WHEN THE FOLLOWING CONDITION IS MET:
 
    A.  A FINDING OF FACT BY AN ARBITRATOR APPOINTED BY THE FEDERAL
 MEDIATION AND CONCILIATION
 
    SERVICE THAT ONE OF THE FOLLOWING CONDITIONS HAVE BEEN MET:
 
    (1) THE CONTINUATION OF THE PROGRAM WOULD SUBSTANTIALLY DISRUPT THE
 AGENCY IN CARRYING OUT
 
    ITS FUNCTIONS;  OR
 
    (2) THE AGENCY IS INCURRING ADDITIONAL COSTS BECAUSE OF ITS
 PARTICIPATION IN THE PROGRAM.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING FLEXIBLE WORK
 SCHEDULES IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR IS
 INCONSISTENT WITH FEDERAL LAW, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER
 THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S ALLEGATION
 THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  /1/
 
    REASONS:  INSOFAR AS RELEVANT TO THE INSTANT DISPUTE, THE WORK
 SCHEDULES ACT REQUIRES EACH AGENCY OF THE EXECUTIVE BRANCH, UNLESS
 EXEMPTED BY THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL
 MANAGEMENT), TO ESTABLISH A FLEXIBLE OR COMPRESSED WORK SCHEDULE
 EXPERIMENT FOR ITS EMPLOYEES;  AND FURTHER PROVIDES THAT, WHERE
 EMPLOYEES ARE IN A UNIT FOR WHICH A LABOR ORGANIZATION HOLDS EXCLUSIVE
 RECOGNITION, THE INTRODUCTION OF ANY FLEXIBLE OR COMPRESSED WORK
 SCHEDULE EXPERIMENT SHALL BE SUBJECT TO COLLECTIVE BARGAINING.  /2/ IN
 THE LATTER REGARD, SECTION 302(A) OF THE WORK SCHEDULES ACT PROVIDES
 THAT EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION CANNOT BE INCLUDED IN
 FLEXIBLE OR COMPRESSED WORK SCHEDULE EXPERIMENTS EXCEPT TO THE EXTENT
 EXPRESSLY PROVIDED UNDER A WRITTEN AGREEMENT BETWEEN THE AGENCY AND THE
 EXCLUSIVE REPRESENTATIVE.  /3/ THE LEGISLATIVE HISTORY OF SECTION 302(A)
 STATES AS FOLLOWS:  /4/
 
    THE COMMITTEE INTENDS THIS SECTION TO PRESERVE THE PROVISIONS OF
 NEGOTIATED AGREEMENTS
 
    WHICH ARE OTHERWISE PROPER UNDER LABOR-MANAGEMENT EXECUTIVE ORDERS,
 WHICH DEAL WITH THE
 
    ESTABLISHMENT OF HOURS OF WORK, AND TO PERMIT ANY PARTY TO SUCH A
 CONTRACT TO ENTER INTO
 
    NEGOTIATIONS IN ORDER TO TAKE ADVANTAGE OF ANY OF THE NEW ALTERNATIVE
 WORK SCHEDULES UNDER AN
 
    EXPERIMENTAL PROGRAM.
 
    WHERE A LABOR ORGANIZATION HAS EXCLUSIVE RECOGNITION, IT IS THE
 INTENT OF THE COMMITTEE
 
    THAT THE PARTIES TO THE CONTRACT NEGOTIATE THE INTRODUCTION OF ANY
 EXPERIMENTAL PROGRAM
 
    PROVIDED FOR UNDER THE BILL, IN ACCORDANCE WITH LABOR-MANAGEMENT
 RELATIONS, EXECUTIVE ORDERS,
 
    OR ANY OTHER APPLICABLE COLLECTIVE BARGAINING AGREEMENT.  WHERE A
 LABOR ORGANIZATION HAS
 
    EXCLUSIVE RECOGNITION, WHETHER OR NOT THE EXISTING AGREEMENT CONTAINS
 A CLAUSE DEALING WITH
 
    HOURS OF WORK, THE COMMITTEE BELIEVES THAT THE ESTABLISHMENT OF
 FLEXIBLE OR COMPRESSED
 
    SCHEDULES IS AN APPROPRIATE AREA FOR NEGOTIATION BETWEEN THE AGENCY
 AND THE LABOR
 
    ORGANIZATION.
 
    ACCORDINGLY, IT IS CLEAR FROM THE LANGUAGE AND LEGISLATIVE HISTORY OF
 THE WORK SCHEDULES ACT THAT CONGRESS INTENDED THE MATTER OF FLEXIBLE OR
 COMPRESSED WORK SCHEDULES TO BE NEGOTIATED BETWEEN THE PARTIES TO
 EXISTING COLLECTIVE BARGAINING RELATIONSHIPS.
 
    IN ITS STATEMENT OF POSITION HEREIN, THE AGENCY "DOES NOT QUESTION
 THAT THE PROCEDURES FOR IMPLEMENTING AN ALTERNATIVE WORK SCHEDULE
 EXPERIMENT . . . ARE NEGOTIABLE," BUT ASSERTS THAT THE UNION'S PROPOSAL
 "DEPRIVES MANAGEMENT OF THE ABILITY TO CANCEL THE ALTERNATIVE WORK
 SCHEDULE FOR BARGAINING UNIT EMPLOYEES" AND THEREFORE IS IN DIRECT
 CONFLICT WITH SECTIONS 102(B)(2) /5/ AND 202(C) /6/ OF THE WORK
 SCHEDULES ACT.  THE AGENCY ALSO ASSERTS, WITHOUT FURTHER ELABORATION,
 THAT IF IT WERE TO AGREE TO THE UNION'S PROPOSAL, IT WOULD BE SHIRKING
 THE MANAGERIAL RESPONSIBILITIES ENTRUSTED TO EACH AGENCY AS SET FORTH IN
 SECTION 7106(A) OF THE STATUTE.
 
    THE AGENCY'S ASSERTION THAT THE INSTANT PROPOSAL IS INCONSISTENT WITH
 SECTIONS 102(B)(2) AND 202(C) OF THE WORK SCHEDULES ACT IS UNSUPPORTED
 BY THE LANGUAGE AND LEGISLATIVE HISTORY OF THOSE PROVISIONS.  WHILE BOTH
 SECTIONS REFER TO THE CIRCUMSTANCES UNDER WHICH AN AGENCY MAY LIMIT OR
 TERMINATE A FLEXIBLE OR COMPRESSED WORK SCHEDULE EXPERIMENT, AN AGENCY'S
 AUTHORITY TO TAKE ANY SUCH ACTION IS EXPRESSLY MADE "SUBJECT TO THE
 TERMS OF ANY WRITTEN AGREEMENT UNDER SECTION 302(A)." THAT IS, CONGRESS
 CLEARLY INTENDED THAT BOTH THE ESTABLISHMENT AND THE LIMITATION OR
 TERMINATION OF FLEXIBLE AND COMPRESSED WORK SCHEDULE EXPERIMENTS BE
 SUBJECT TO NEGOTIATION.  /7/ ACCORDINGLY, THE AGENCY'S CONTENTION THAT
 THE UNION'S PROPOSAL IS CONTRARY TO THE WORK SCHEDULES ACT MUST BE
 REJECTED.  MOREOVER, THE RECORD FAILS TO ESTABLISH AND IT DOES NOT
 OTHERWISE APPEAR THAT THE SUBJECT PROPOSAL CONFLICTS WITH MANAGEMENT'S
 RESERVED RIGHTS UNDER SECTION 7106(A) OF THE STATUTE, AS ALLEGED.
 
    BASED ON THE FOREGOING, THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT SUCH
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., MAY 23, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /2/ H.R. REP. NO. 95-912, 95TH CONG., 2D SESS. 3, REPRINTED IN (1978)
 U.S.CODE CONG. & AD. NEWS 1894, 1896.
 
    /3/ SECTION 302(A) OF THE WORK SCHEDULES ACT PROVIDES AS FOLLOWS:
 
    EMPLOYEES WITHIN A UNIT WITH RESPECT TO WHICH AN ORGANIZATION OF
 GOVERNMENT EMPLOYEES HAS
 
    BEEN ACCORDED EXCLUSIVE RECOGNITION SHALL NOT BE INCLUDED WITHIN ANY
 EXPERIMENT UNDER TITLE I
 
    OR II OF THIS ACT EXCEPT TO THE EXTENT EXPRESSLY PROVIDED UNDER A
 WRITTEN AGREEMENT BETWEEN
 
    THE AGENCY AND SUCH ORGANIZATION.
 
    /4/ H.R. REP. NO. 95-912, 95TH CONG., 2ND SESS. 22, REPRINTED IN
 (1978) U.S. CODE CONG. & AD. NEWS 1894, 1914.
 
    /5/ SECTION 102(B)(2) OF THE WORK SCHEDULES ACT PROVIDES AS FOLLOWS:
 
    (B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, BUT SUBJECT TO
 THE TERMS OF ANY
 
    WRITTEN AGREEMENT UNDER SECTION 302(A)--
 
   .          .          .          .
 
 
    (2) IF THE HEAD OF AN AGENCY DETERMINES THAT ANY ORGANIZATION WITHIN
 THE AGENCY WHICH IS
 
    PARTICIPATING IN AN EXPERIMENT 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--
 
    (A) RESTRICT THE EMPLOYEES' CHOICE OF ARRIVAL AND DEPARTURE TIME,
 
    (B) RESTRICT THE USE OF CREDIT HOURS, OR
 
    (C) EXCLUDE FROM SUCH EXPERIMENT ANY EMPLOYEE OR GROUP OF EMPLOYEES.
 
    /6/ SECTION 202(C) OF THE WORK SCHEDULES ACT STATES:
 
    (C) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, BUT SUBJECT TO
 THE TERMS OF ANY
 
    WRITTEN AGREEMENT UNDER SECTION 302(A), ANY EXPERIMENT UNDER
 SUBSECTION (A) MAY BE TERMINATED
 
    BY THE COMMISSION, OR THE AGENCY, IF IT DETERMINES THAT THE
 EXPERIMENT IS NOT IN THE BEST
 
    INTEREST OF THE PUBLIC, THE GOVERNMENT, OR THE EMPLOYEES.
 
    /7/ SUPRA P. 3.  SEE ALSO H.R. REP. NO. 95-912, 95TH CONG., 2D SESS.
 14-15, 20, REPRINTED IN (1978) U.S. CODE CONG. & AD. NEWS 1894, 1907,
 1912.
 
 
 

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