National Federation of Federal Employees, Local 1789 (Union) and Department of Housing and Urban Development, St. Louis Area Office, St. Louis, Missouri (Agency) (Authority decision, December 3, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed flexible daily schedules for employees at a HUD area office in St. Louis. HUD asserted that its handbook barred local flexitime and that the regulation had a compelling need. The Authority found HUD had not shown a compelling need under the applicable criteria. It set aside the agency’s nonnegotiability allegation and ordered bargaining on request.

Decision snapshot

• Authority: 5 U.S.C. § 7117(a)(2).
• Outcome: Agency nonnegotiability allegation set aside; flexible schedule proposal negotiable.
• Key point: An agency regulation barred bargaining only if its compelling need was established.

Full text (FLRA public release)

[ v04 p708 ]

04:0708(94)NG

The decision of the Authority follows:

4 FLRA No. 94

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1789
Union

and

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
ST. LOUIS AREA OFFICE, ST. LOUIS, MISSOURI
Agency

Case No. 0-NG-95

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL

FLEXITIME: REGULAR DAY SHIFT EMPLOYEES SHALL WORK DURING A STANDARD
"CORE " PERIOD OF FIVE

(5) HOURS BETWEEN 10:00 AM AND 3:00 PM. EMPLOYEES MAY BEGIN WORK AT
ANY TIME PRIOR TO THIS

CORE PERIOD, AND MAY LEAVE WORK AT ANY TIME AFTER THIS CORE PERIOD,
SO LONG AS THE TOTAL

NUMBER OF HOURS WORKED EACH DAY (EXCLUSIVE OF NON-PAID LUNCH PERIOD
OR APPROVED LEAVE) IS

EIGHT (8) HOURS. FOR EMPLOYEES WORKING OTHER THAN REGULAR DAY SHIFT
HOURS, SIMILAR FLEXIBLE

SCHEDULES SHALL BE ESTABLISHED THROUGH CONSULTATION AND/OR
NEGOTIATION BETWEEN THE

PARTIES. EXCEPTIONS TO THIS POLICY SHALL BE MADE ONLY FOLLOWING
MUTUAL AGREEMENT OF THE

PARTIES THROUGH CONSULTATION AND/OR NEGOTIATION.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE
OBLIGATION TO BARGAIN UNDER SECTION 7117(A)(2) OF THE STATUTE /1/
BECAUSE, AS ALLEGED BY THE AGENCY, IT IS INCONSISTENT WITH AN AGENCY
REGULATION FOR WHICH A COMPELLING NEED EXISTS.

OPINION

CONCLUSION AND ORDER: THE AGENCY HAS FAILED TO SUPPORT ITS
ALLEGATION THAT A COMPELLING NEED EXISTS FOR THE REGULATION RELIED UPON
TO BAR NEGOTIATION OF THE UNION'S PROPOSAL AND, THEREFORE, THE UNION'S
PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT
IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO
BY THE PARTIES) BARGAIN CONCERNING THE UNION'S PROPOSAL. /2/

REASONS: THE PROPOSAL AT ISSUE WOULD REQUIRE THE AGENCY TO ESTABLISH
FLEXIBLE WORK HOURS AT THE ST. LOUIS AREA OFFICE. THE AGENCY ALLEGES
THAT NEGOTIATION OF THIS PROPOSAL IS BARRED, UNDER SECTION 7117(A)(2) OF
THE STATUTE, BY AN AGENCY REGULATION (HUD HANDBOOK 600.1 REV CHG 1,
MARCH 12, 1979) WHICH PROVIDES, IN PERTINENT PART:

6.1 FLEXITIME

A. DEFINITION. FLEXITIME IS A CONCEPT OF REPLACING STANDARD FIXED
TIMES OF ARRIVAL AT AND

DEPARTURE FROM WORK WITH VARIABLE WORKING HOURS.

B. POLICY. THE ESTABLISHMENT OF DEPARTMENTAL POLICY IS PENDING
COMPLETION OF A FLEXITIME

STUDY BY THE OFFICE OF ORGANIZATION AND MANAGEMENT INFORMATION. THIS
STUDY WILL DETERMINE

FLEXITIME'S ADVANTAGES OR DISADVANTAGES, COSTS AND BENEFITS AND
APPROPRIATENESS TO THE

DEPARTMENT'S WORK ENVIRONMENT.

C. IMPLEMENTATION. IMPLEMENTATION OF FLEXITIME IS PROHIBITED EXCEPT
AS FOLLOWS:

(1) OFFICES CURRENTLY PARTICIPATING IN A FLEXITIME EXPERIMENT WILL
CONTINUE UNTIL THAT

EXPERIMENT IS CANCELLED OR MADE PERMANENT.

(2) OFFICES APPROVED BY THE OFFICE OF ORGANIZATION AND MANAGEMENT
INFORMATION FOR

PARTICIPATION IN THE STUDY MAY IMPLEMENT FLEXITIME IN ACCORDANCE WITH
THE STUDY.

THE AGENCY ARGUES IN SUPPORT OF ITS ALLEGATION THAT THE OFFICE OF
PERSONNEL MANAGEMENT (OPM) HAS CLEARLY INTENDED IN FPM LETTER 610-5 OF
MARCH 22, 1978, THAT CONTROLLED EXPERIMENTATION AND STUDY WILL TAKE
PLACE. THEREFORE, THERE "IS A COMPELLING NEED TO TEMPORARILY PROHIBIT
FURTHER LOCAL IMPLEMENTATION OF FLEXITIME UNTIL THE AGENCY HAS CONCLUDED
ITS CONTROLLED EXPERIMENT AND ANALYSIS OF ANY IMPACT OF FLEXITIME ON THE
EFFICIENT DELIVERY OF SERVICES."

THE CONSIDERATIONS GOVERNING THE PROCESSING OF CASES IN WHICH AN
AGENCY RAISES THE ISSUE OF "COMPELLING NEED" FOR ONE OF ITS REGULATIONS
ON WHICH IT RELIES AS A BAR TO NEGOTIATIONS ON A UNION PROPOSAL, WERE
STATED AS FOLLOWS IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1928 AND DEPARTMENT OF THE NAVY, NAVAL AIR DEVELOPMENT
CENTER, WARMINSTER, PENNSYLVANIA, 2 FLRA NO. 62 (1980):

THE DUTY TO BARGAIN IN GOOD FAITH UNDER SECTION 7117 OF THE STATUTE
EXTENDS IN GENERAL TO

MATTERS WHICH ARE THE SUBJECT OF AGENCY RULES AND REGULATIONS WHICH
ARE NOT GOVERNMENT-WIDE

RULES AND REGULATIONS, TO THE EXTENT THEY ARE NOT INCONSISTENT WITH
FEDERAL LAW. WHEN THERE

IS A "COMPELLING NEED," HOWEVER, FOR PARTICULAR INTERNAL AGENCY RULES
AND REGULATIONS TO

PREVAIL VIS A VIS PARTICULAR CONFLICTING UNION BARGAINING PROPOSALS,
SUCH RULES AND

REGULATIONS WILL STAND AS BARS TO NEGOTIATION ON SUCH PROPOSALS.
THEREFORE, INTERNAL AGENCY

RULES AND REGULATIONS . . . MAY BAR NEGOTIATIONS ON CONFLICTING
COLLECTIVE BARGAINING

PROPOSALS WHEN, UNDER THE STATUTE, A COMPELLING NEED FOR SUCH A
(REGULATION) IS DETERMINED TO

EXIST BY THE AUTHORITY PURSUANT TO (ITS RULES AND REGULATIONS).

HENCE, IN A PROCEEDING BEFORE THE AUTHORITY SUCH AS THE INSTANT CASE
INVOLVING AN

ALLEGATION BY AN AGENCY THAT A UNION PROPOSAL IS NOT WITHIN THE DUTY
TO BARGAIN UNDER SECTION

7117(A)(2) OF THE STATUTE BECAUSE OF AN INTERNAL AGENCY REGULATION .
. . THE AGENCY BEARS THE

BURDEN OF COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ASSERTION
THAT THE REGULATION IN

QUESTION BARS NEGOTIATIONS BECAUSE, IMPLICITLY, A COMPELLING NEED
EXISTS FOR THE

REGULATION. THIS IS CONSISTENT WITH THE REQUIREMENT IN THE
AUTHORITY'S RULES CONCERNING THE

REVIEW OF NEGOTIABILITY ISSUES THAT AN AGENCY'S STATEMENT OF POSITION
FILED WITH THE AUTHORITY

SHALL SET FORTH "IN FULL ITS POSITION ON ANY MATTERS RELEVANT TO THE
PETITION WHICH IT WISHES

THE AUTHORITY TO CONSIDER IN REACHING ITS DECISION, INCLUDING A FULL
AND DETAILED STATEMENT OF

ITS REASONS SUPPORTING THE ALLEGATION." FURTHERMORE, WITH REGARD TO
ITS OWN REGULATIONS, THE

AGENCY OBVIOUSLY SHOULD HAVE THE GREATEST FAMILIARITY WITH THE
CIRCUMSTANCES UNDER WHICH THE

PARTICULAR REGULATION INVOLVED WAS DEVELOPED AND ISSUED AND THE
PURPOSE IT WAS INTENDED TO

SERVE. CONSEQUENTLY, SINCE THE AGENCY IS RELYING ON THE REGULATION
TO BAR NEGOTIATIONS ON AN

OTHERWISE NEGOTIABLE PROPOSAL, THE AGENCY PROPERLY IS REQUIRED TO
ADDUCE SUCH RELEVANT

CIRCUMSTANCES IN THE STATEMENT OF ITS POSITION BEFORE THE AUTHORITY.

IN THIS CASE THE AGENCY CLAIMS GENERALLY, WITHOUT ANY SPECIFIC
REFERENCE TO ANY OF THE ILLUSTRATIVE CRITERIA SET OUT IN SECTION 2424.11
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.11), THAT A
COMPELLING NEED EXISTS FOR ITS REGULATION TO BAR NEGOTIATIONS ON THE
UNION'S PROPOSAL. THIS CLAIM, CONSTRUED IN A LIGHT MOST FAVORABLE TO
THE AGENCY, APPEARS TO STATE THAT THE REGULATION MEETS THE CRITERION OF
SECTION 2424.11(C) OF THE RULES IN THAT THE "REGULATION IMPLEMENTS A
MANDATE TO THE AGENCY . . . UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
IMPLEMENTATION IS ESSENTIALLY NONDISCRETIONARY IN NATURE."

THE AGENCY'S ALLEGATION CANNOT BE SUSTAINED. FPM LETTER 610-5, THE
"OUTSIDE AUTHORITY" RELIED UPON BY THE AGENCY, DOES NOT PROHIBIT OR
OTHERWISE LIMIT THE DISCRETION OF AN AGENCY TO ADOPT FLEXIBLE WORKING
HOURS, BUT ONLY REQUESTS THE REPORTING OF INFORMATION CONCERNING AGENCY
EXPERIMENTS WITH FLEXIBLE WORKING HOURS. SUBSEQUENT OPM ISSUANCES
RELATING TO THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES
ACT OF 1978, PUB. L. NO. 95-390, 92 STAT. 755 (1978), CLEARLY STATE THAT
AGENCIES REMAIN FREE TO IMPLEMENT FLEXIBLE WORKING SCHEDULES WHICH FALL
OUTSIDE THE ACT'S PROVISIONS AND THAT ANY SUCH IMPLEMENTATION MUST BE
NEGOTIATED WITH LABOR ORGANIZATIONS WHERE APPROPRIATE. (SEE 5 CFR
620.102 AND FPM LETTER 620-2 (JUNE 4, 1979) AT 3 AND 4.) ADDITIONALLY,
THE AUTHORITY HAS HELD IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION, NATIONAL
CAPITAL REGION, WASHINGTON, D.C., 3 FLRA NO. 37 (1980), THAT "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."

FURTHER, THE AGENCY PROVIDES NO ADDITIONAL INFORMATION TO SUPPORT A
CLAIM THAT ITS REGULATION MEETS THE REQUIREMENTS OF ANY OF THE REMAINING
CRITERIA SET OUT IN SECTION 2424.11 OF THE AUTHORITY'S RULES AND
REGULATIONS.

IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED UNDER THE REQUIREMENTS
SET FORTH IN THE AUTHORITY'S RULES AND REGULATIONS THAT A COMPELLING
NEED EXISTS FOR ITS REGULATION PROHIBITING LOCAL IMPLEMENTATION OF
FLEXITIME SYSTEMS. FOR THAT REASON, THE AGENCY'S CLAIM THAT THE
REGULATION IS A BAR TO NEGOTIATIONS ON THE DISPUTED PROPOSAL CANNOT BE
SUSTAINED AND THE AGENCY'S ALLEGATION TO THAT EFFECT IS SET ASIDE.

ISSUED, WASHINGTON, D.C., DECEMBER 3, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:

MR. BILL E. BAKER

NATIONAL REPRESENTATIVE

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

12220 D SPANISH TRACE DRIVE

MARYLAND HEIGHTS, MISSOURI 63043

MR. WILLIAM A. MEDINA

ASSISTANT SECRETARY FOR ADMINISTRATION

DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT

WASHINGTON, D.C. 20410

--------------- FOOTNOTES$ ---------------

/1/ SECTION 7117(A)(2) OF THE STATUTE PROVIDES:

SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT

. . . .

(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,
EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION
REFERRED TO IN PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY
HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING
NEED (AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY)
EXISTS FOR THE RULE OR REGULATION.

/2/ IN SO DECIDING THAT THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.