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27 FLRA NO. 94

27 FLRA No. 94

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 642

              Union

      and

BUREAU OF LAND MANAGEMENT
LAKEVIEW DISTRICT OFFICE
LAKEVIEW, OREGON

              Agency

Case No. 0-NG-1344

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 presents issues as to the negotiability of two Union proposals. 1

II. Procedural Issue

The Union's petition for review did not address Proposal 2, because at that time the Agency had not alleged the proposal to be nonnegotiable. The record indicates that the Agency first declared the proposal nonnegotiable in its statement of position filed in response to the Union's petition for review. In its statement of position, the Agency fully articulated its position on the negotiability of that proposal. The Union fully addressed Proposal 2 in its response to the Agency's statement of position and has requested that we render a determination on Proposal 2. The Agency does not oppose that request and has notified the Authority that it does not wish to file another submission in response to the request. In these unique circumstances, we will consider in this proceeding the issue of the negotiability of Proposal 2.

III. Proposal 2

Section 1.

Tours of Duty: Each employee will have a prescheduled tour of duty. This does not apply to units operating under flexible schedules. If no other workweek has been established, the standard workweek for full-time employees will consist of five (5) consecutive eight (8) hour days (40 hours per week). Days off will normally be two (2) consecutive days. As soon as possible, Management will give employees advance written notice before changing tours or shifts, except for emergency or unforeseen situations.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that Proposal 2 conflicts with 5 C.F.R. 610.121(b)(2), which establishes a mandatory requirement for management to change employees' administrative workweeks to correspond with the needs of the Agency. The Agency argues that the regulation requires only advance notice and recordation of the change and that the proposal to provide "advance written notice" is more restrictive, and thereby conflicts with the regulation. The Agency also argues that the proposal conflicts with 5 U.S.C. 6101(a)(3)(A) because the requirement of advance written notice "except for emergency or unforeseen situations" is more restrictive than the statute. The Agency states that the statute allows a change in schedule without advance notice when management determines that the organization would be seriously handicapped in carrying out the mission or that costs would be substantially increased by the requirement.

The Union contends that Proposal 2 does not conflict with 5 C.F.R. 610.121(b)(2) because it only provides that the advance notice required by the regulation be in writing. The Union asserts that the proposal does not negate management's ability to give advance verbal notice of a change in an employee's schedule, but merely requires that verbal notice be followed with a written confirmation of the new schedule prior to the beginning of the schedule. 

B. Analysis and Conclusion

The Agency essentially argues that Proposal 2 is nonnegotiable because the requirement for written notice and the requirement that written notice be given except in "emergency or unforeseen situations" are inconsistent with applicable law and regulation. We disagree.

We have interpreted 5 U.S.C. 6101(a)(3)(A) and 5 C.F.R. 610.121 to provide that employees must have a minimum of 7 days' advance notice of a change in work schedules except where it is determined that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. See American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 25 FLRA No. 7 (1987); National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986) (Proposal 1). In those cases, we found that proposals which set exceptions to notice periods which are narrower than the statutory and regulatory exceptions were nonnegotiable because they would impermissibly restrict the Agency's right, under law and regulation, to revise employee work schedules.

Neither 5 U.S.C. 6101 nor 5 C.F.R. 610.121 prescribes the form in which management must inform an employee of a change in work schedules. Therefore, the requirement that notice of schedule changes must be written rather than oral is not inconsistent with law or regulation.

In claiming that Proposal 2 is inconsistent with 5 U.S.C. 6101(a)(3)(A) and 5 C.F.R. 610.121, the Agency has misinterpreted the proposal. Proposal 2 does not restrict the Agency's ability to change employee work schedules without 7 days' advance notice where it determines that it would be seriously handicapped in carrying out its functions or that costs would be substantially increased. The proposal, unlike the statutory and regulatory provisions, does not establish a minimum time period for advance notice. It simply requires management to notify employees "(a)s soon as possible(.)" Under the proposal, therefore, management may change employee work schedules at any time or for any reason. The proposal requires only that whenever the Agency changes schedules, and for whatever reason, employees be notified in writing, unless the change is necessitated by an emergency or by unforeseen circumstances. In those situations, verbal notice followed by written confirmation would be sufficient. Union Response at 1-2. 

In sum, rather than prescribing when management can change schedules without the 7 days' advance notice required by law and regulation, the exceptions set forth in the proposal concern only whether management must notify employees in writing. As the Union states, the proposal is designed to clear up the uncertainty in the regulation "as to whether the notice shall be verbal, written or otherwise. The (U)nion proposal seeks merely to specify what shall be proper notification(.)" Union Response at 1-2. For these reasons we conclude that Proposal 2 is not inconsistent with 5 U.S.C. 6101(a)(3)(A) or 5 C.F.R. 610.121 and is within the Agency's duty to bargain.

IV. Proposal 3

3. Alternative Work Schedules (AWS). As authorized in PL 99-196, December 23, 1985, the following schedules may be used:

Flexitour: (Scheduled tour of duty) Five, 8-hour days/week. Employee preselects arrival time. Must account for core hours.

Gliding: (Flexible tour of duty) Five, 8-hour days/week. Employee may vary arrival time. Must account for core hours.

Variable Day (40 hours per week): Flexible tour of duty. Must work 40 hours/week. Employee may vary the number of hours/day. Must account for core hours.

Variable Day (80 hours per pay period): Flexible tour of duty. Must work 80 hours/pay period. Employee may vary the number of hours/day and the number of days/week. Must account for core hours.

5-4/9 Compressed tour of duty. Employee must work 8, 9-hour days and 1, 8 hour day.

4-10 Compressed tour of duty. Employee must work 4, 10-hour days/week.

a. Core hours will be 9:30 am to 11:30 am and 12:30 pm to 2:30 pm, Monday through Friday.

b. LDM (Lakeview District Manager) will utilize AWS to improve work force efficiency, to increase productivity and service to the public, and to reduce costs. 

c. All employees have the right to apply for any approved unit AWS consistent with the work unit objectives. Management has the authority to approve work schedules for individual employees and/or groups of employees, based on work objectives of the unit.

d. Work schedules shall normally not begin prior to 6 a.m. nor extend beyond 6 a.m. Exceptions based on requirements of the nature of the work (i.e. field work or laboratory work) may be approved by the appropriate manager, in consultation with the local union.

e. Full-time employees must work at least 4 days per week, regardless of AWS schedule in effect. Leave days and holidays are considered workdays.

f. Credit hours may not be carried over from one pay period to another.

g. Unit managers may impose additional constraints, consistent with the job mission of the unit, where necessary to accomplish the work objective of the unit.

h. Employees approved to use 5-4/9 or 4-10 may request specific days for their "short day and/or their off" day. Based on work demands and the request of the employee, the supervisor may approve a change in the scheduled "off" day during a pay period.

i. If an employee is denied AWS the LDM (Lakeview District Manager) will provide written notice detailing the reasons for denial within 7 days.

A. Positions of the Parties

The Agency contends that Proposal 3 is nonnegotiable because it provides employees with the right to choose an alternate work schedule without management approval and therefore interferes with management's rights to (1) assign and direct employees under section 7106(a)(2)(A); (2) determine the personnel by which agency operations will be conducted under section 7106(a)(2)(B); and (3) determine its staffing patterns under section 7106(b)(1). The Agency also asserts that Proposal 3 violates the requirement of section 6122 of the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6122, that management have the final authority to determine which employee schedules are compatible with the mission of the Agency. The Agency argues  that the proposal would allow employees to control the hours they will work without regard to the Agency's mission requirements.

The Union contends that Proposal 3 seeks to gain the benefits of alternative work schedules for its bargaining unit members. The Union states that the Act provides for the negotiation and establishment of alternative work schedules. The Union also argues that there is no conflict between the Union's proposal and 5 U.S.C. 6122(a)(2) since the proposal states that the employee's choice of a work schedule is subject to managerial control to achieve work objectives.

B. Analysis and Conclusions

In American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA No. 107 (1986), we held 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 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 of the Statute were not properly before us. See id., slip op. at 2-3. Similarly, to the extent that the Agency objects to the establishment of the alternate work schedules contemplated by this proposal on the grounds that the schedules conflict with management rights, the Agency's position cannot be sustained.

The Agency also argues that Proposal 3 conflicts with the Work Schedules Act because the proposal would allow employees to control the hours they will work without regard to the Agency's mission requirements. The Agency notes the requirement of 5 U.S.C. 6122(a) that "(a)n election by an employee . . . shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled."

We find that the proposal does not conflict with 5 U.S.C. 6122(a). Section 6122(a) provides that employees' election of arrival and departure times under a flexible  schedule is subject to the Agency's authority to ensure that the duties of their positions are fulfilled. None of the sections of the proposal which provide for flexible schedules establishes or guarantees to employees any particular arrival or departure times. To the contrary, all of the alternate work schedules provided in Proposal 3, flexible and compressed work schedules alike, are subject to management approval. The proposal specifically states that "(m)anagement has the authority to approve work schedules for individual employees and/or groups of employees, based on work objectives of the unit." The Union explains that "management retains its full authority to determine the work objectives of any given unit and to disapprove any schedule that does not allow those objectives to be met." Union Response at 3-4.

We find therefore that Proposal 3 does not conflict with section 6122(a) of the Federal Employees Flexible and Compressed Work Schedules Act. An employee's choice of arrival and departure times under the flexible hours program provided by the proposal must be approved by the Agency and is subject to the "work objectives of the unit." Proposal 3 therefore is within the duty to bargain.

V. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 2 and 3. 2

Issued, Washington, D.C., June 26, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In its reply to the Agency's Statement of Position, the Union withdrew its negotiability appeal on Proposal 1, "Controlled Substance, Alcohol and Lie Detector Testing." Therefore, the proposal will not be considered here.

Footnote 2 In finding Proposals 2 and 3 to be within the duty bargain, we make no judgment as to the merits of the proposals.

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