23:0872(107)NG - AFGE Local 1934 and Air Force, 3415 ABG, Lowry AFB, CO -- 1986 FLRAdec NG
[ v23 p872 ]
23:0872(107)NG
The decision of the Authority follows:
23 FLRA No. 107
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1934
Union
and
DEPARTMENT OF THE AIR FORCE,
3415 ABG, LOWRY AFB, COLORADO
Agency
Case No. 0-NG-1239
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of a single Union proposal. /1/
II. Union Proposal
Alternative Work Program
e. 4/10 Work Program -- An employee may work any consecutive
ten hour days during the bandwidth (0600 to 1800) excluding the
lunch period. The days off shall be negotiated with the
supervisor prior to the end of the pay period that the employee
starts the 4/10 work day program. The employee will negotiate a
start time and that start time shall be effective for at least one
pay period unless mutually agreed to change for uncontrollable
personal or emergency reasons.
As explained by the parties, the proposal is concerned with enabling
employees to work workweeks composed of four, ten-hour days.
III. Positions of the Parties
The Agency argues that the proposal is inconsistent with sec. 4 of
the Federal Employees Flexible and Compressed Work Schedules Act of 1982
(the 1982 Act), Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C.
Sections 3401, 6101 and note, 6106, 6120-6123), under which it
terminated an identical 4/10 work schedule program in 1982. It also
argues that insofar as the proposal concerns appropriate arrangements
within the meaning of section 7106(b)(3) for employees who were
adversely affected by its 1982 decision, the appeal should be dismissed
to enable the parties to resume negotiations consistent with the
Authority's decision in National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), or
that the record should be reopened for further submissions by the
parties as to whether the Union's proposal is negotiable as an
appropriate arrangement. The Union argues that the 1982 Act authorizes
negotiations on its proposal.
IV. Analysis and Conclusion
The Agency's contentions in support of its motion to dismiss, or in
the alternative to reopen the record, do not raise any issues bearing on
the proposal's negotiability. The motion is therefore denied. In its
deliberations on the 1982 Act, made permanent under the Federal
Employees Flexible and Compressed Work Schedules Act of 1982, Permanent
Authority (the 1986 Act), Pub. L. No. 99-196, 99 Stat. 1350, Congress
found that "(t)he benefits of these schedules to employees were
overwhelming." Senate Committee on Governmental Affairs, Federal
Employees Flexible and Compressed Work Schedules Act of 1982, S. Rep.
No. 365, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S. Code
Cong. & Ad. News at 566. The legislative history also indicates that
the use of alternative work schedules was intended to be fully
negotiable, subject only to the provisions of the 1982 Act itself. See,
for example, S. Rep. No. 365 at 3, 5. See also Federal Labor Relations
Authority v. Social Security Administration, 753 F.2d 156, 159-60 (D.C.
Cir. 1985); Office of Personnel Management, "Report on Alternative Work
Schedules in the Federal Government," in Subcommittee on Human Resources
of the House Committee on Post Office and Civil Service, Federal
Employees Flexible and Compressed Work Schedules Act: Hearings on H.R.
1534, Ser. No. 99-1, 99th Cong., 1st Sess. 53-55, 57-58 (1985).
As provided under 5 U.S.C. Section 6131(a)-(c), an agency may object
to the negotiation of an alternative work schedule (AWS) proposed by a
labor organization only where the agency can establish that the proposed
schedule will have an "adverse agency impact." If the parties need
third-party assistanced to resolve a dispute concerning the alleged
adverse agency impact, they must present their dispute to the Federal
Service Impasses Panel as provided under 5 U.S.C. Section 6131(c)(2) and
part 2472 of the Panel's Rules and Regulations (5 CFR part 2472). In
view of this statutory scheme, the Agency's contentions relating to
whether the proposal is negotiable as an appropriate arrangement under
section 7106(b)(3) do not raise any issues which the Authority can
resolve under section 7117 of the Statute.
There remains, however, a limited range of issues bearing on the
negotiation of AWS proposals which the Authority may process under the
procedures of section 7117. Nothing in the statutory scheme for
resolving disputes over adverse agency impact or the legislative history
of the 1982 and 1986 Acts bars application of the procedures of section
7117 to AWS proposals under the 1982 Act where a proposal is alleged to
be inconsistent with the 1982 Act itself or with other laws superseding
the 1982 Act. /2/
In this case, the Agency claims that the Union's proposed compressed
work schedule is identical to the Agency's previous schedule, which was
terminated by the Agency pursuant to sec. 4 of the 1982 Act. The Agency
argues that under sec. 4 of the Act, the Union had 90 days in which to
challenge the termination of the previous compressed work schedule and
that by failing to challenge the termination within the 90-day period
the Union is precluded from now proposing a schedule identical to the
one terminated.
We reject the Agency's argument. Section 4 of the 1982 Act was
intended only to apply to work schedules which were initiated as
experiments under the 1978 Act. It was not intended to bar the
subsequent negotiation of work schedules under the substantive and
procedural requirements of the 1982 Act. See S. Rep. No. 365, 97th
Cong., 2d Sess. 6 (1982). We therefore conclude that sec. 4 of the 1982
Act is not applicable to the proposal at issue here.
If the parties need third-party assistance to resolve a dispute
concerning whether the proposal will result in an adverse agency impact,
they must present their dispute to the Federal Service Impasses Panel.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the Union
proposal consistent with this decision. /3/
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The appeal initially concerned two Union proposals. However, in
responding to the Agency's statement of position the Union has stated
that the dispute concerning one of the proposals (proposal "g") is moot
and may be dismissed on that basis. We interpret this as a motion to
withdraw the proposal and grant the motion.
(2) In prior decisions the Authority entertained and considered
arguments by the parties, under section 7117 of the Statute, concerning
whether union AWS proposals were nonnegotiable because they conflicted
with management rights under section 7106 of the Statute or agency
regulations for which a compelling need exists. American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986) (Union Proposal 9);
National Treasury Employees Union, Chapter 65 and Department of the
Treasury, Internal Revenue Service, 20 FLRA No. 4 (1985). In those
cases, as here, the parties did not raise the issue of the extent to
which section 7117 procedures apply to disputes over AWS proposals. As
we discussed above, those procedures generally do not apply to these
disputes. Accordingly, to the extent that these decisions are to the
contrary, they will no longer be followed. Those matters should
generally be resolved, as intended by the 1982 and the 1986 Acts, with
the assistance of the Federal Service Impasses Panel if necessary.
(3) In finding the Union's proposal to be within the duty to bargain,
the Authority makes no judgment as to its merits.