Bureau of Land Management v. Federal Labor Relations Authority

864 F.2d 89
Court of Appeals for the Ninth Circuit·Decided December 27, 1988·No. Nos. 87-7382, 87-7449·Published·Cited by 1 cases

Opinion

SCHROEDER, Circuit Judge:

The Bureau of Land Management petitions for review of a negotiability decision by the Federal Labor Relations Authority (FLRA). The decision is reported as National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 F.L.R.A. 862 (1987).

Congress created the FLRA to administer the Federal Labor-Management Relations Act (FLMRA), 5 U.S.C. §§ 7101-35 (1982 & Supp. IV 1986). See 5 U.S.C. § 7105. That statute requires all federal agencies to bargain in good faith with unions, 5 U.S.C. § 7117, and empowers the FLRA to adjudicate disputes regarding such good faith bargaining. 5 U.S.C. § 7105. We have jurisdiction to review the FLRA decision pursuant to 5 U.S.C. § 7123. Section 7123(c) directs us to review the FLRA’s decision in accord with 5 U.S.C. § 706 (1982), which provides that we set aside the agency action only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or in excess of statutory jurisdiction or authority. See American Fed ’n of Gov’t Employees v. F.L.R.A., 802 F.2d 1159, 1161 (9th Cir.1986).

The order under review would require the BLM to bargain over all aspects of a proposal submitted in 1986 by the National Federation of Federal Employees Union. The FLRA cross-petitions for enforcement [90] of its order. We affirm the FLRA’s decision and enforce its order.

The Union proposal in question was designed to initiate bargaining over an alternative work schedule (AWS) as authorized by the Flexible and Compressed Work Schedules Act (FCWSA), 5 U.S.C. §§ 6120-33 (1982 & Supp. IV 1986). Congress originally enacted FCWSA as a temporary experiment in improving the efficiency of federal government service. See Pub.L. No. 97-221, 96 Stat. 227 (1982). After success with the experimental program, FCWSA was made permanent in 1985. Pub.L. No. 99-190, 99 Stat. 1324 (1985).

The purpose of FCWSA is to promote federal government productivity and service to the public by allowing employees to select work schedules other than the basic eight-hour, five-day work week. 5 U.S.C. § 6120. It authorizes government agencies to establish a “flexible schedule” in which all employees are present during certain “core hours” of the day but have an option as to which other hours of the day they will work. 5 U.S.C. § 6122. Employees may also earn “credit hours” by working longer than their normal work day, using those credit hours to offset the length of a different work day. Id. An agency may also establish a “compressed schedule” in which employees work longer hours but fewer days within any two-week period. 5 U.S.C. § 6127. The statute anticipates that in the case of employees represented by a union, an AWS will be the subject of collective bargaining.1 5 U.S.C. § 6130.

In this case the Union submitted a comprehensive AWS plan to the Bureau of Land Management Lakeview District Office (BLM), to afford the office workers AWS options. The proposal incorporated options already available to field operations employees in the district. The BLM took exception to two sections of Proposal 3, which detailed the AWS schedules. The full text of proposal 3 is set forth in the margin.2

[91] The BLM found fault with sections c and g.3 It claimed they violated management prerogatives mandated by federal law. Those sections provide:

(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.
(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.

While these two sections would seem to be grants of management authority rather than restrictions on it, the BLM views these sections as being restrictive to management rather than expansive. The BLM interprets these sections as limiting the power of management to deny an employee’s work schedule request to those situations where the work objectives of the unit are being damaged. The BLM further believes that these sections imply the availability of grievance and arbitration upon the denial of an employee’s schedule request.

The BLM refused to negotiate with the Union over the proposal, and the Union filed an unfair labor practice charge with the FLRA under 5 U.S.C. § 7116(a)(5). The FLRA held a hearing pursuant to 5 U.S.C. § 7105(a)(2), resulting in the decision and order below.

The BLM argued before the FLRA that the proposal sections in issue were nonnegotiable because they violated the “management rights” section of FLMRA, 5 U.S.C. § 7106, which grants management the final authority in deciding how work should be apportioned to employees.4 The BLM also argued that the sections violated a management rights provision within FCWSA, which states “an [AWS] 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.” 5 U.S.C. § 6122(a).

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Bureau of Land Management v. Federal Labor Relations Authority, 864 F.2d 89 (9th Cir. 1988).

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