[ v26 p654 ]
26:0654(81)NG
The decision of the Authority follows:
26 FLRA No. 81
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1655
Union
and
ILLINOIS NATIONAL GUARD
Agency
Case No. 0-NG-1245
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)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of six Union proposals. /1/
II. Proposal 2
TOURS OF DUTY: If the Employer proposes to change the workweek
from the regular Monday through Friday schedule (standard
workweek), the Employer and the Union will meet and negotiate on
the new tours. The Employer shall give the employee at least ten
(10) days' notice prior to the first administrative workweek in
which the change in tours occurs except in emergencies.
Nonstandard tours shall include the four (4) day week where agreed
to by the parties. (Only the under-lined portions of the proposal
are in dispute.)
A. Positions of the Parties
The Agency contends that the second sentence of Proposal 2 concerning
notice to employees of changes in work schedules is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation, and nonnegotiable
under section 7117(a)(1).
The Agency also contends that the last sentence of Proposal 2, to the
extent that it proposes an alternate work schedule under the Work
Schedules Act, is nonnegotiable because National Guard technicians are
not subject to the Work Schedules Act. /2/ Specifically, the Agency
claims that National Guard technicians are excluded from the Act by 32
U.S.C. Section 709(g), which provides that the Secretaries of the Army
and the Air Force shall prescribe technicians' hours of work
"(n)otwithstanding sections 5544(a) or 6101(a) of title 5 or any other
provision of law(.)" /3/
In addition, the Agency argues that the last sentence of the proposal
is outside the duty to bargain under section 7117(a)(1) of the Statue
because it is inconsistent with 5 U.S.C. Section 6132 and under section
7117(a)(2) because it conflicts with Technician Personnel Regulation
(TPR) 600 (601.1), Section 1-1(a) and 1-4(b) an agency regulation for
which a compelling need exists under the Authority's regulations.
Finally, the Agency contends that the last sentence of the proposal
directly interferes with management's rights to assign work under
section 7106(a)(2)(B) and to determine the numbers, types and grades of
employees and positions assigned to a work project or tour of duty under
section 7106(b)(1).
The Union contends that the second sentence of Proposal 2 is
negotiable because 5 C.F.R. Section 610.121 does not apply to National
Guard technicians.
As to the last sentence of Proposal 2, the Union contends that
although certain provisions of the Work Schedules Act do not apply to
National Guard technicians, most of the Act does apply. In support of
this claim, the Union cites 5 U.S.C. Sections 6121(2) and 2105. In
particular, the Union argues that 32 U.S.C. Section 709(g) and the Work
Schedules Act are basically consistent and, with a few accommodations,
can be applied together. The Union concludes, therefore, that the last
sentence of Proposal 2 raises issues that must be resolved by the
Federal Service Impasses Panel FSIP).
B. Analysis and Conclusions
1. Whether the Second Sentence of Proposal 2 is Inconsistent with a
Government-wide Regulation
The second sentence of Proposal 2 is to the same effect as Provision
1 in National Association of Government Employees, Local R14-7 and
Kansas Army National Guard, 21 FLRA No 4 (1986). Provision 1 in that
case required the agency to provide the union and unit employees with 7
day's advance notice of any change in work schedules. Based on the
record in that case, and on its decision in American Federation of
Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort
Detrick, Maryland, 17 FLRA 769 (1985), the Authority held that the
provision was outside the duty to bargain under section 7117(a)(1) of
the Statute because it was inconsistent with 5 C.F.R. Section 610.121, a
Government-wide regulation.
In this case, the Union contends that 5 C.F.R. Section 610.121 does
not apply to National Guard technicians. The Union argues that because
32 U.S.C. Section 709(g)(1) and (2) exempts technicians from the
requirements of 5 U.S.C. Section 6101(a), they are also exempt from
regulations issued by the Office of Personnel Management (OPM) to
implement that provision. However, the Union points to no provision of
chapter 61 of title 5 of the Code of Federal Regulations which contains
an exclusion of National Guard technicians. our review of the relevant
regulations in Kansas Army National Guard disclosed no exclusion.
Rather, the terms of those regulations support the conclusion that
National Guard technicians are covered by chapter 61.
In particular, 5 C.F.R. Section 610.101 provides that chapter 61 of
title 5 of the Code of Federal Regulations applies to employees covered
by chapter 55 of title 5 of the Code of Federal Regulations. Chapter 55
applies to employees in or under an Executive agency as defined in 5
U.S.C. Section 105. That definition includes employees of the military
departments; National Guard technicians are employees of the military
departments. 32 U.S.C. Section 709(d). While chapter 55 also lists
numerous exclusions from its coverage, some derived from statutory
provisions similar to 32 U.S.C. Section 709(g), it does not list
National Guard technicians. Moreover, 5 C.F.R. Section 610.102 defines
"employee" to mean an employee of an agency to which chapter 61 applies
and "agency" to include the military departments. By these definitions
as well, National Guard technicians are subject to chapter 61 of title 5
of the Code of Federal Regulations.
Because technicians are included within the definitions of employees
to whom chapter 61 applies and in the absence of any express exclusion
by OPM of technicians from the coverage of 5 C.F.R. Section 610.121, we
must conclude that they were intended by OPM to be covered. Under
section 7117 of the Statute, moreover, we do not rule on the validity of
a Government-wide regulation. See American Federation of Government
Employees v. FLRA, 794 F.2d 1013 (5th Cir. 1986), enforcing American
Federation of Government Employees, AFL-CIO, National Council of Grain
Inspection Locals and Department of Agriculture, Federal Grain
Inspection Service, 18 FLRA 530 (1985).
Finally, as noted above, the Authority's decision that Provision 1 in
Kansas Army National Guard was inconsistent with 5 C.F.R. Section
610-121 was based on its decision in Fort Detrick, 17 FLRA 769 (1985).
Subsebquently, in 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), we reinterpreted 5 C.F.R. Section
610.121 and revised our holding in Fort Detrick. See also our decision
on remand in Fort Detrick, 25 FLRA No. 75 (1987), in which, based on
Scott Air Force Base, we revised the rationale for our holding in 17
FLRA 769. Nothing in Scott Air Force Base, however, would change the
result here. In that case we held that proposals requiring 7 days' or
more advance notice of changes in work schedules would be found
inconsistent with 5 C.F.R. Section 610.121 if they did not provide,
consistent with law and regulation, an exception to the notice
requirement. In particular, we held that 5 U.S.C. Section 6101(a)(3)(A)
and 5 C.F.R. Section 610.121 permitted changes to employee work
schedules within the notice period when management determined that
changes to schedules were necessary to prevent the agency from being
"handicapped" in the execution of its functions or to forestall a
substantial increase in operational costs. 5 U.S.C. Section 6101(a)(3).
We also held that the proposal in that case, which permitted management
to change work schedules in an emergency without the required notice,
was a narrower exception than allowed by law and regulation and thus was
inconsistent with 5 C.F.R. Section 610.121. The second sentence of
Proposal 2 in this case likewise provides an exception to the proposal's
requirement of 10 days' advance notice only in an emergency. Thus, for
the reasons set forth in Scott Air Force Base, the second sentence of
Proposal 2 in inconsistent with 5 C.F.R. Section 610.121 and outside the
duty to bargain under section 7117(a)(1) of the Statute.
2. Whether the Last Sentence of Proposal 2 is Negotiable under the
Federal Employees Flexible and Compressed Work Schedules Act
By its terms, the Work Schedules Act applies to National Guard
technicians. Specifically, 5 U.S.C. Section 6121(a) defines "employees"
in terms of the definition set forth in 5 U.S.C. Section 2105, which
includes National Guard technicians. While the Agency concedes this
point, it argues that the Work Schedules Act is inconsistent with 32
U.S.C. Section 709(g)(2). We find that the Work Schedules Act and 32
U.S.C. Section 709(g)(2) are not inconsistent and are capable of being
applied together. Since we find that National Guard technicians are
subject to the Work Schedules Act, we also find that the last sentence
of Proposal 2 is negotiable. See American Federation of Government
Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry
AFB, Colorado, 23 FLRA No. 107 (1986).
The Agency claims that because the Work Schedules Act provides for
the payment of overtime compensation, 5 U.S.C. Sections 6123, 6124 and
6128, it conflicts with 32 U.S.C. Section 709(g)(2) which limits
National Guard technicians to compensatory time. In our view, however,
even assuming that a limited conflict does exist, it would not affect
the applicability of other portions of the Work Schedules Act to
National Guard technicians. While technicians could only receive
compensatory time in those instances where they would otherwise be
entitled to overtime compensation, that is not sufficient reason to
conclude that technicians are completely precluded from bargaining on
the establishment of flexible and compressed work schedules. Where two
laws are capable of existing together they should be enforced to the
extent that they are not in conflict. See Radzanower v. Touche, Ross
and Co., 426 U.S. 148, 154 (1976). In order for us to conclude that 32
U.S.C. Section 709(g)(2) takes precedence over the Work Schedules Act,
it must be demonstrated that the two laws conflict.
The Agency's basic claim is that the requirements of the Work
Schedules Act conflict with the purposes Congress intended to achieve in
enacting 32 U.S.C. Section 709(g)(2). That is, as the legislative
history indicates, Congress excepted National Guard technicians from the
requirements of 5 U.S.C. Section 6101(a) to permit the Guard to require
technicians to work irregular work schedules where that was necessary to
accomplish the Agency's mission. S. Rep. No. 1446, 90th Cong. 2nd Sess.
16 (1968); H.R. Rep. No. 1823, 90th Cong. 2nd Sess. 13 (1968).
Congress found that the nature of the work performed by technicians was
such that it could not always be accomplished within the regularly
scheduled 5 day, 40 hour workweek contemplated by 5 U.S.C. Section
6101(a). Thus, 32 U.S.C. Section 709(g)(2) was intended to free the
Secretaries of the Army and the Air Force, and their delegates within
the National Guard Bureau, from the requirements of a regularly
scheduled workweek and for paying overtime when technicians were
required to work irregular hours.
The Agency has failed to show, however, that the establishment of
flexible and compressed work schedules is in conflict with its authority
to require irregular work schedules. The Agency acknowledges that under
32 U.S.C. Section 709(g)(2) it has the authority even without the Work
Schedules Act to establish flexible and compressed work schedules for
National Guard technicians. Agency Statement of Position at 3-4.
Moreover, the record indicates that the National Guard had experimented
with alternate work schedules even before experiments were authorized
for other Government agencies by the Federal Employees Flexible and
Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755.
Agency Statement of Position at 4. Existing National Guard regulations
provide procedures for approving the establishment of alternate work
schedules at Guard installations, Agency Statement of Position at 4,
and, according to the Union, the Guard has in fact approved compressed
work schedules at specific installations. Union Response to Agency
Statement of Position at 8-9. The practice of the National Guard,
therefore, belies the claim that the establishment of flexible and
compressed work schedules is inconsistent with its authority under 32
U.S.C. Section (g)(2). If that were the case, in approving alternate
work schedules the Guard would have been acting beyond the scope of that
authority.
Even if flexible and compressed work schedules are considered
"regular" schedules which could limit the Agency's ability to operate,
the Agency is not without recourse under the Work Schedules Act. If the
Agency determines that the establishment of an alternate work schedule,
or the operation of such a schedule once established, is having an
"adverse impact" on agency operations it may refuse to establish the
schedule or decide to terminate it. 5 U.S.C. Section 6131. Where the
Agency demonstrates to the satisfaction of the Federal Service Impasses
Panel that an alternate work schedule will have, or is having, an
adverse impact, it will not be required to implement that schedule.
Thus, the Work Schedules Act provides protection for the Agency's need
to use irregular work schedules where that is necessary. The Work
Schedules Act is therefore consistent with 32 U.S.C. Section 709(g)(2).
We find that the Agency has misinterpreted the Scope of the
prohibition in 5 U.S.C. Section 6132 against coercion of an employee
concerning participation in flexible or compressed work schedule
programs. Forcing or attempting to force an employee, for example, to
work a compressed schedule is different from determining that an
employee must work overtime. Thus, contrary to the position of the
Agency, 5 U.S.C. Section 6132 does not limit its authority to determine
that employees must work irregular work schedules. In this respect as
well the Work Schedules Act is not inconsistent with 32 U.S.C. Section
709(g)(2).
Finally, the Agency contends that Congress intends it to have final
control over the establishment of technicians' work schedules and that
for it to be subject to the Work Schedules Act would deprive it of that
control. That is, the Work Schedules Act cannot be reconciled with the
exclusive authority granted under 32 U.S.C. Section 709(g)(2). There is
no evidence, however, that the Agency's authority was intended to be
exclusive. As indicated above, the Work Schedules Act is not
inconsistent with the purposes for which the Agency was granted
authority under 32 U.S.C. Section 709(g)(2). Thus the Agency is not
deprived of that authority by being required to exercise it through the
procedures and under the limitations of the Work Schedules Act. We
conclude, therefore, that the Work Schedules Act and 32 U.S.C. Section
709(g)(2) do not conflict in this respect either.
This case is distinguishable from New Jersey Air National Guard v.
FLRA, 677 F.2d 276 (3d Cir. 1982), cert. denied, AFGE v. FLRA, 459 U.S.
988 (1982), and similar cases. It was determined in those cases that
the provisions of the Statute requiring negotiated grievance procedures
which terminate in binding arbitration were in conflict with the
provisions of the National Guard Technicians Act which provided for
final decision by the Adjutant General. As we have shown above,
however, 32 U.S.C. Section(g)(2) and the Work Schedules Act do not
conflict.
3. Whether the Last Sentence of Proposal 2 Interferes with
ManagementS Rights or Conflicts with an Agency Regulation for Which a
Compelling Need Exists
In American Federation of Government Employees, Local 1934 and
Department of the Air Force, 3415 ABG, Lowry, Colorado, 23 FLRA No. 107
(1986), we held that because alternate work schedules 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, except
whether a proposed schedule is consistent with the Act. For this
reason, the Agency's contentions as to sections 7106 and 7117(a)(2) of
the Statute are not properly before us.
III. Proposal 5
ALTERNATIVE WORK SCHEDULES: Employees, at their election, may
work longer than eight (8) hours per day or forty (40) hours in a
given week, so long as the total number of hours worked for a two
(2) week period (exclusive of nonpaid lunch period) is eighty (80)
hours. This will allow employees to work four (4), ten (10) hour
days per week.
A. Position of the Parties
The contentions of the Agency and the Union with respect to the
negotiability of this proposal are the same as their contentions as to
the negotiability of the last sentence of Proposal 2. See section II.
A. of this decision.
B. Analysis and Conclusion
For the reasons set forth in our analysis of the last sentence of
Proposal 2, see section II. B 2-3. of this decision, we find that
Proposal 5 is negotiable under the Work Schedules Act.
IV. Proposal 3
SHIFT AND TOUR WORK: Shift and/or tour employees who work in
continuous operations shall rotate through various shift hours.
This rotation will be on a monthly basis. Unnecessary rotation of
employees from shift to shift or tour to tour shall not be
practiced.
These tours of work shall consist of a total of eighty (80)
hours over a two (2) week period. The days off will be
consecutive and fall on Saturday and Sunday. Shift and/or tour
schedules will be posted at least ten (10) days in advance of the
assignment. Tours will be negotiated between the Employer and the
Union. When changes are to be made in an individual's shift, tour
of duty or hours of work, a minimum of ten (10) days' notice will
be given the employee. An employee will have at least sixty-four
(64) hours, normal two (2) day "weekends" off between shift and/or
tour changes. (Only the underlined portions of the proposal are
in dispute.)
A. Positions of the Parties
The Agency contends that the second sentence of the second paragraph
of Proposal 3 and the last sentence of that paragraph are nonnegotiable
under section 7106(a)(2)(B) of the Statute. The Agency argues that
these parts of the proposal would preclude management from assigning
work to employees who have not had two consecutive days off or from
assigning work on Saturday and Sunday. The Agency also contends that
the third and fifth sentences of the second paragraph are inconsistent
with 5 C.F.R. Section 610.121, a Government-wide regulation.
The Union argues that the proposal does not interfere with
management's right to assign work and, as with Proposal 2, that National
Guard technicians are not subject to 5 C.F.R. Section 610.121.
B. Analysis and Conclusions
1. Whether the Third and Fifth Sentences of the Second Paragraph of
Proposal 3 are Inconsistent with a Government-wide Regulation
For the reasons discussed above in connection with Proposal 2, see
section II. B. 1., we find, contrary to the Union, that National Guard
technicians are subject to 5 C.F.R. Section 610.121.
Furthermore, because the third and fifth sentences of the second
paragraph of Proposal 3 prescribe a 10-day notice period for changes in
work schedules, but make no provision for schedules to be changes with
less than the required notice, that portion of the proposal is
inconsistent with 5 C.F.R. Section 610.121. In International
Association of Machinists and Aerospace Workers, Local Lodge 2424 and
Department of the Army, Aberdeen Proving Ground, Aberdeen Proving
Ground, Maryland, 24 FLRA No. 55 (1986), we held that a proposal which
absolutely restricted management from making any schedule changes until
the prescribed notice period expired was inconsistent with 5 U.S.C.
Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a)(2). We found that
5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. 610.121 permit management to
change employee work schedules with less than seven days notice when it
determines that otherwise the agency would be "handicapped" in carrying
out its mission or costs would substantially increased.
The proposal in Aberdeen Proving Ground was nonnegotiable becuase it
would have prevented management from changing work schedules as provided
under law and regulation. The portion of Proposal 3 at issue here
similarly would prevent management from changing employee work schedules
even where it has determined that, without the changed schedules, it
would be "handicapped" in carrying out its mission or would be subject
to a substantial increase in costs. 5 U.S.C. Section 6101(a)(3). For
the reasons set forth in Aberdeen Proving Ground, therefore, the third
and fifth sentences of the second paragraph of Proposal 3 are
inconsistent with law and Government-wide regulation and are outside the
duty to bargain under section 7117(a)(1) of the Statute
2. Whether the Second and Last Sentences of the Second Paragraph of
Proposal 3 Interfere with Management Rights
By providing that employees' days off shall be consecutive and shall
be on Saturday and Sunday, the second sentence of the second paragraph
of Proposal 3 simply prescribes a basic workweek of Monday through
Friday. That is, the proposal provides for employees to work their 40
hour basic weekly work requirement between Monday and Friday. Any work
they would perform on Saturday and/or Sunday, therefore, would of
necessity be in an overtime status. Thus, this portion of Proposal 3
would not prevent management from requiring employees to work on
Saturday and/or Sunday. Rather, if management did require employees to
work on those days it would have to grant them compensatory time under
32 U.S.C. Section 709(g). See Proposal 8 below. Contrary to the
Agency, therefore, we find that the second sentence of the second
paragraph of Proposal 3 does not interfere with managementS right to
assign work under section 7106(a)(2)(B) of the Statute and is within the
Agency's duty to bargain. See American Federation of State, County and
Municipal Employees, Local 2477 and Library of Congress, 14 FLRA (1984).
We find that the portion of Proposal 3 requiring employees to have at
least 64 hours off between shift or tour changes is outside the duty to
bargain. This portion of Proposal 3 is essentially the same as Proposal
2 in National Association of Government Employees, Local R14-8 and
Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17
(1986), which we found to violate management's right to assign work.
The proposal in that case would have prohibited the agency from
scheduling an employee to work on a shift if the employee had worked
during the previous eleven hours, regardless of the agency's actual work
requirements and whether that employee's particular skills were needed
on a particular shift. We found that the proposal would place a
condition upon the agency's exercise of its right to assign work and
could prevent the Agency from determining what duties were to be
performed on a particular shift in violation of section 7106(a)(2)(B).
Similarly, Proposal 3 here would prevent the Agency from scheduling
employees to work on a shift if that employee had worked during the
previous 64 hours, regardless of the Agency's work requirements. For
the reasons set forth more fully in VA Medical Center, Topeka, we
conclude that Proposal 3 here violates management's right to assign work
and is outside the duty to bargain.
While the Union states that its proposal is intended to reduce the
"adverse effects" upon employees who have their tour of duty changed,
the Union does not specifically claim that the proposal constitutes an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. However, as to the third and fifth sentences of the second
paragraph of Proposal 3, since section 7106(b)(3) applies only when
management exercises one of the reserved rights set out elsewhere in
section 7106, it is unnecessary to address the Union's claim that this
portion of the proposal constitutes an appropriate arrangement. See
National Federation of Federal Employees, Local 29 and Department of the
Army, Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986).
Further, even if the last sentence of the second paragraph of Proposal 3
were an "arrangement" for employees adversely affected by the exercise
of a management right, that portion of the proposal would not be an
"appropriate arrangement" under section 7106(b)(3) because it would
totally abrogate the exercise of management's right to assign work. See
American Federation of Government Employees, AFL-CIO, Local 3186 and
Department of Health and Human Services, Office of Social Security Field
Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 1).
V. Proposal 8
OVERTIME AND COMPENSATORY TIME: Any employee who works, with
the approval of his/her Employer, more than forty (40) hours over
a one (1) week period, shall be compensated for such work by
either receiving overtime pay or compensatory time off those hours
in excess of forty (40) hours. Such compensation shall be awarded
under controlling regulations and/or law.
A. Positions of the Parties
The Agency contends that this proposal is inconsistent with 32 U.S.C.
Section 709(g) because it provides for the payment of overtime and 32
U.S.C. Section 709(g) prohibits the payment of overtime compensation to
National Guard technicians, mandating compensatory time instead.
The Union contends that the proposal would cover both National Guard
technicians and employees in the competitive service and merely provides
for the appropriate entitlement as provided by law.
B. Analysis and Conclusion
The Union provides no evidence to support its claim that the unit of
exclusive representation involved in this case includes employees in the
competitive service as well as technicians. In the absence of that
evidence we presume that the unit includes only technicians. As applied
to National Guard technicians, the proposal provides for the payment of
overtime or compensatory time, consistent with law, for hours of work in
excess of 40 hours per week. The defect in this proposal is that
National Guard technicians cannot, consistent with law, receive overtime
compensation. 32 U.S.C. Section 709(g). The proposal prescribes a
legal impossibility. See National Federation of Federal Employees,
Local 1445 and Alabama Air National Guard, 16 FLRA 1094 (1984).
Proposal 8, therefore, is outside the duty to bargain under section
7117(a)(1) of the Statute.
VI. Proposal 10
MAKE READY AND CLEAN-UP TIME: Incidental duties that are
directly connected with performance of a job, such as obtaining
and replacing working tools or materials, undergoing inspections,
and similar tasks are considered part of the job requirements
within the established tour of duty. In this respect, technicians
will be allowed ten (10) minutes at the start and fifteen (15)
minutes at the end of the work day. In those areas where the
nature of the work causes clothing to become soiled, employees
will be allowed to change clothes during these periods.
A. Positions of the Parties
The Agency contends that this proposal interferes with its right to
assign work under section 7106(a)(2)(B) of the Statute.
The Union disputes the Agency's contention.
B. Analysis and Conclusion
Proposal 10 has the same effect as proposal 2 in National Association
Of Government Employees, SEIU, AFL-CIO and National Guard Bureau,
Adjutant General, 26 FLRA No. 62 (1987). The proposal in that case
would have prevented management from assigning other duties to employees
during time periods which were set aside for personal cleanup. We held
that the proposal directly interfered with management's right to assign
work under section 7106(a)(2)(B). For the reasons set forth in National
Guard Bureau, Proposal 10, which similarly provides for periods of
cleanup, directly interferes with management's right to assign work and
is outside the duty to bargain.
VII. Proposal 12
EARLY DISMISSAL FOR HAZARDOUS WEATHER CONDITIONS: Early
dismissal or closure of an organization is warranted due to
hazardous weather conditions, employees will be excused without
charge to annual leave for the specified period of time prior to
the activity's normal closing time or for the entire workday. If
the closing of the activity occurs prior to the workday, employees
on previously approved leave will not be charged leave. (Only the
underlined portion of the proposal is in dispute.)
A. Position of the Parties
The Agency contends that the last sentence of the proposal is
inconsistent with Federal Personnel Manual (FPM) Supplement 990-2, Book
610-A-4a., a Government-wide regulation, and outside the duty to bargain
under section 7117(a)(1) of the Statute.
The Union contends that the regulatory provision cited by the Agency
does not apply to National Guard technicians.
B. Analysis and Conclusion
There is no dispute as to whether Proposal 12 is inconsistent with
the provision of FPM Supplement 990-2, Appendix A which is cited by the
Agency. The only issue therefore is whether that provision is a
Government-wide regulation within the meaning of section 7117(a)(1)
which can bar negotiations on conflicting union proposals.
We find that the provision cited by the Agency is not a regulation
under section 7117(a)(1). Appendix A is entitled "guidelines for
Dismissal and Leave Treatment of Federal Employees During Emergency
Situations." The text of the Appendix makes clear that the matters set
forth in the Appendix are guidance to agencies which can be adopted or
varied at the agencies' discretion: "adoption of these guidelines in
whole or in part by any agency is at its discretion." FPM Supplement
990-2, Appendix A at page F-1. The provision relied on by the Agency,
therefore, is not a "binding declaration of official policy" so as to
constitute a "regulation" within the meaning of section 7117(a)(1). See
National Federation of Federal Employees, Local 1497 and Department of
the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151 (1982). Thus,
whether an agency requires an employee on previously approved leave to
be charged for that leave when agency operations are suspended by
administrative decision is a matter of internal agency regulation.
Compare Lexington-Blue Grass Army Depot, Lexington, Kentucky and
American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA
No. 6 (1986) (no compelling need for agency regulation requiring
employees to take annual leave during periods of partial closure). The
Agency in this case does not rely on an internal regulation to bar
negotiation of Proposal 12. Because the provision of FPM Supplement
990-2, Appendix A on which the Agency relies is not a "regulation"
within the meaning of section 7117(1)(1), therefore, it does not
preclude negotiations on Proposal 12. In view of our determination that
the provision of the FPM relied on by the Agency is not a "regulation,"
we need not address the issue as to whether National Guard technicians
are subject to that provision.
VIII. Order
The Union's petition for review is dismissed as to the second
sentence of Proposal 2, the third, fifth, and last sentences of the
second paragraph of Proposal 3, Proposal 8, and Proposal 10. The Agency
must bargain on the last sentence of Proposal 2, the second sentence of
the second paragraph of Proposal 3, and on Proposals 5 and 12. /4/
Issued, Washington, D.C., April 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union appealed twelve proposals to the Authority. The
Agency, however, contests the negotiability of only six of those
proposals. The remaining six proposals will not be considered further
here.
(2) Federal Employees Flexible and Compressed Work Schedules Act of
1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Sections
3401, 6101 and note, 6106, 6120-6133), which was made permanent in 1986,
Pub. L. No. 99-196, 99 Stat. 1350.
(3) For the text of 32 U.S.C. Section 709(g) see the Appendix to this
decision.
(4) In finding these proposals and portions of proposals to be within
the duty to bargain, we express no opinion as to their merits.
APPENDIX
/3/ 32 U.S.C. Section 709(g) provides as follows:
Section 709 Technicians: Employment, use, status
. . . .
(g)(1) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
other provision of law, the Secretary concerned may, in the case of
technicians assigned to perform operational duties at air defense sites
--
(A) prescribe the hours of duties; (B) fix the rates of basic
compensation; and (C) fix the rates of additional compensation;
to reflect unusual tours of duty, irregular additional duty, and work
on days that are ordinarily nonworkdays. Additional compensation under
this subsection may be fixed on an annual basis and is determined as an
appropriate percentage, not in excess of 12 percent, of such part of the
rate of basic pay for the position as does not exceed the minimum rate
of basic pay for GS-10 of the General Schedule under section 5332 of
title 5.
(2) Notwithstanding section 5544(a) and 6101(a) of title 5 or any
other provision of law, the Secretary concerned may, for technicians
other than those described in clause (1) of this subsection, prescribe
the hours of duty for technicians. Notwithstanding sections 5542 and
5543 of title 5 or any other provision of law, such technicians shall be
granted an amount of compensatory time off from their scheduled tour of
duty equal to the amount of any time spent by them in irregular or
overtime work, and shall not be entitled to compensation for such work.