---

28 FLRA NO. 79

AFSCME, LOCAL 2027

              Union

      and

ACTION

              Agency

Case No. 0-NG-1385

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 concerning the negotiability of two proposals. 1

II. Proposals 2 and 3

Proposal 2

Item 2 - Paragraph 3. (Responsibilities), Section f. (1) (Employees) and Paragraph 6 (Criteria for Maintaining or Implementing AWS)

Establish schedules in accordance with criteria for implementation (see paragraph 6). In this regard, schedules and changes will be acceptable to and compatible with other employee's schedules in the work unit.

Based upon the criteria established for coverage, each work unit will pre-schedule coverage by having employees voluntarily work the periods within the Public Service Band and outside the core time requirement. If a work unit cannot arrive at a voluntary schedule, the supervisor will request from employees their preferences for working these uncovered periods. The supervisor will establish a schedule, based upon these preferences, that will equitably alternate coverage amongst the employees.

Proposal 3

Item 3 - Paragraph 8.A.8.(a) Credit Hours

When work has been assigned to an employee, the employee has a right to elect to work credit hours for the purpose of varying the length of a subsequent workday, work week, or pay period subject to their supervisor's approval of disapproval which must be based on workload needs and cannot be arbitrary or capricious. (Only the underlined portions are in dispute.)

A. Position of the Parties

The Agency claims that Proposal 2 violates Government-wide regulations, specifically, Federal Personnel Manual (FPM) Book 620, S5-3(a)(2) and (3) and General Accounting Office (GAO) Manual Title 6, Section 17-2, both requiring adequate surveillance to assure proper and accurate time accounting. The Agency also claims that the proposal removes from management the right to assign work and direct employees under section 7106(a) of the Statute. In addition, the Agency argues that under section 7114(a)(1) the Union cannot bargain over conditions of employment of employees who are not part of the bargaining unit. The Agency also claims that the use of the words "acceptable", "compatible" and "equitable alternate coverage" would subject management's right to assign work and direct employees to arbitral review.

As to Proposal 3 the Agency claims that the phrase "cannot be arbitrary or capricious" would subject to arbitral review management's rights under section 7106(a)(2)(A) and (B) to assign work and direct employees, that is, to determine when assigned work will be performed.

The Union argues that the established procedure of signing in and out provides an acceptable reporting method which complies with Government-wide regulations. The Union also contends that the parties had agreed that flextime provisions would apply to all employees, not just to bargaining unit employees. Further, the Union argues that the use of the terms "acceptable" "compatible" and "equitable" in Proposal 2 merely outline the process by which the coverage shall be achieved. Thus, the Union argues that Proposal 2 constitutes a procedure under section 7106(b)(2) which does not infringe on management's rights.

With respect to Proposal 3 the Union argues, in essence, that the proposal requires a meaningful explanation for disapproving a request to earn credit hours.

B. Analysis and Conclusion

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 Congress intended that the use of alternative work schedules was to be fully negotiable, subject only to the provisions of the Flexible and Compressed Work Schedules Act of 1982 itself or with the laws superseding the 1982 Act. We also held that (1) under 5 U.S.C. 6131(a)-(c), an agency may object to a proposed alternate work schedule when it can establish that the proposal will have an adverse agency impact; and (2) if the parties needed assistance in resolving disputes concerning adverse impact the dispute must be presented to the Federal Service Impasses Panel in accordance with 5 U.S.C. 6131(c)(2) and part 2472 of the Panel's Rules and Regulations. See also U.S. Department of Energy, Washington, D.C. and National Treasury Employees Union, 26 FLRA No. 66 (1987).

Further, in National Association of Government Employees, Local R12-167 and Office of the Adjutant General, State of California, 27 FLRA No. 47 (1987) we concluded, after reviewing the legislative history of the Act, that the collective bargaining process under the Act was intended to include "the institution, implementation, administration and termination of alternative work schedules(.)" Alternate work schedules are fully negotiable, within the limits set by the Act, therefore there are no issues pertaining to the negotiability of those schedules under section 7117 of the Statute which relate to asserted conflicts with provisions of the Statute. Consequently, the Agency's contentions in this case as to section 7106 of the Statute and Government-wide Regulations are not properly before us.

As noted in Lowry AFB, however, a limited range of issues bearing on the negotiation of alternate work schedule proposals remain which the Authority may process under the procedures of section 7117. One such issue is whether a proposed work schedule conflicts with the Work Schedules Act itself or with other laws superseding the 1982 Act.

In this respect, in Office of the Adjutant General. State of California, we held that to the extent that a proposed flexible and compressed work schedule was intended to apply to nonbargaining unit employees it was inconsistent with the Work Schedules Act and therefore nonnegotiable. In reaching this conclusion, we found that the terms "collective bargaining," "collective bargaining agreement," and "exclusive representative" had the same meaning under the Work Schedules Act as under the Statute and were intended to define an agency's duty to bargain as extending only to the conditions of employment of bargaining unit employees. We also noted this conclusion was supported by the fact that the Work Schedules Act provides separately in 5 U.S.C. 6127(b)(1) for nonunit employees to choose to participate in an alternate work schedule.

Since the Union in this case specified that Proposal 2 was intended to include bargaining and nonbargaining unit employees, it is, based on reasons more fully explained in Office of the Adjutant General, State of California, inconsistent with the Work Schedules Act itself and therefore, nonnegotiable. However, if the Union were to revise the proposal to specifically pertain only to bargaining unit employees, it would be negotiable because it relates to the institution and implementation of alternative work schedules. Similarly, Proposal 3 concerns administration of the program, and is not properly before us under section 7117 of the Statute.

III. Order

The Petition for Review is dismissed.

Issued, Washington, D.C., August 21, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 The Agency withdrew its allegation of nonnegotiability as to a third proposal, Proposal 1. Thus, Proposal 1 is no longer in dispute and will not be considered further.

---