19:1016(118)NG - AFGE Local 1546 and Army, Sharpe Army Depot, Lathrop, CA -- 1985 FLRAdec NG



[ v19 p1016 ]
19:1016(118)NG
The decision of the Authority follows:


 19 FLRA No. 118
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1546
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 SHARPE ARMY DEPOT,
 LATHROP, CALIFORNIA
 Agency
 
                                            Case No. O-NG-1015
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of three provisions /1/ of a negotiated
 agreement which were disapproved by the Agency head pursuant to section
 7114(c) of the Statute.  /2/ Upon careful consideration of the entire
 record, including the parties' contentions, the Authority makes the
 following determinations.
 
    As a preliminary matter, the Union contends that the instant appeal
 is moot because the disputed contract provisions have gone into effect
 via a "same day" execution and approval by the local level management
 official.  The Union's contention cannot be sustained.  In this regard,
 section 7114(c) of the Statute /3/ provides that a locally negotiated
 collective bargaining agreement "shall be subject to the approval of the
 head of the agency" and further, that if such approval is not obtained
 within 30 days the locally executed agreement shall go into effect on
 the 31st day.  There is nothing in the language of the Statute, or in
 its legislative history, which indicates that such approval authority
 could not be delegated to officials within an agency but could only be
 exercised personally by the head of the agency.  Thus, the head of each
 agency has the discretion to determine which agency officials within the
 agency will have authority to approve or disapprove locally negotiated
 collective bargaining agreements.  In the instant case, the Agency has
 clearly established that the Commander of Sharpe Army Depot, the local
 management official who purportedly approved the locally negotiated
 collective bargaining agreement on behalf of the Agency head, did not
 have the delegated authority to approve or disapprove collective
 bargaining agreements.  That is, Army Regulation 690-700, Chapter 771,
 paragraph 3-4(b)(11), a published Agency regulation which the Union
 concedes is applicable herein, specifies the organizations within the
 Department of the Army which may review and approve or disapprove
 collective bargaining agreements.  Sharpe Army Depot, the local activity
 herein, is not included among the listed organizations.  Therefore,
 since the commander of Sharpe Army Depot did not have authority to
 approve or disapprove collective bargaining on behalf of the head of the
 Agency, his action in approving the locally negotiated agreement in this
 case was invalid and did not bar the appropriate designee of the Agency
 head from reviewing and disapproving portions of the locally negotiated
 agreement.  Consequently, as the disapproval of provisions of the
 locally negotiated collective bargaining agreement was proper, the
 instant negotiability appeal is not moot but is properly before the
 Authority.
 
                             Union Provision 1
 
          Article XI, Hours of Work;  Section 6, Change in Tour of Duty
 
          The Employer agrees to provide two weeks notice to employees in
       the event changes in work shifts are required.  For changes that
       may be required by emergencies, employees will be provided as much
       advance notice as practical, and will continue on the shift only
       for the time necessary.  (Only the underscored portion is in
       dispute.)
 
    Union Provision 1 herein is to the same effect as Provision 1 in
 American Federation of Government Employees, AFL-CIO, Local 2484 and
 U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106 (1985),
 which also required two weeks advance notice of changes in tours of duty
 and which the Authority found to be inconsistent with an applicable
 Government-wide regulation.  In the cited case the Authority determined
 that 5 CFR 610.121(b)(2) (1984) obligated an agency head to revise an
 employee's administrative workweek to comport with the hours during
 which the employee will actually be required to work "(w)hen the head of
 an agency knows in advance of an administrative workweek" that such
 revision is necessary.  Thus, the Authority concluded that as the
 provision would prevent the Agency head from revising an employee's work
 schedule unless he or she became aware of the need to change work
 schedules not less than two weeks prior to the rescheduling, it was
 inconsistent with a Government-wide regulation and outside the duty to
 bargain.  /4/ Therefore, since the instant provision would also, in
 certain circumstances, prevent the Agency from complying with a
 Government-wide regulation, it is, based on U.S. Army Garrison, Fort
 Detrick, likewise outside the duty to bargain pursuant to section
 7117(a)(1) of the Statute.
 
    This conclusion is not altered by the contentions raised by the Union
 in its response to the amicus brief filed by OPM concerning Union
 Provision 1.  In this respect, the Union first alleges that the
 provision is negotiable, either as a "procedure" or as an "appropriate
 arrangement," pursuant to sections 7106(b)(2) and (3) of the Statute.
 /5/ In addition, the Union contends that OPM's interpretation of 5 CFR
 610.121 renders its application in violation of law, namely, the
 Occupational Safety and Health Act (OSHA), 29 U.S.C. 651, et seq., the
 Fair Labor Standards Act, 29 U.S.C. 201 et seq., the Alternate Work
 Schedules Act, 5 U.S.C. 6101.
 
    Turning first to the Union's claim that the provision constitutes a
 "procedure" or an "appropriate arrangement," it is noted that sections
 7106(b)(2) and (3) expressly apply only when management is exercising
 one of the management rights set out elsewhere in section 7106.  In this
 case, however, Provision 1 is outside the duty to bargain not because it
 is inconsistent with an enumerated management right but, rather, because
 it is inconsistent with an applicable Government-wide regulations.
 Consequently, as sections 7106(b)(2) and (3) are not applicable in these
 circumstances, the Union's claim that Provision 1 constitutes a
 "procedure" or "appropriate arrangement" cannot be sustained.
 
    We turn now to the Union's claim that application of 5 CFR 610.121
 violates law.  In this respect, the Union provides no support for its
 contentions that application of 5 CFR 610.121, which has been in effect
 in its present form since January 28, 1983, /6/ either has been
 implemented or would be implemented in any manner in the bargaining unit
 herein which is inconsistent with the Alternate Work Schedules Act, the
 OSHA requirement to provide a safe and healthful work place or with the
 Fair Labor Standards Act.  /7/ Finally, the Union misconstrues the
 requirements of 5 U.S.C. 6101.  That is, 5 U.S.C. 6101(a)(3)(A) /8/ does
 not establish a particular time period before a tour of duty is to
 become effective.  Rather, the clear language of section 6101(a)(3)
 indicates that the tour of duty itself must extend over one week and
 that assignments to such tours of duty are to be scheduled in advance.
 In this connection, 5 CFR 610.121 implements the statutory requirement.
 Consequently, the Union's claim that application of 5 CFR 610.121
 violates law also cannot be sustained.
 
                             Union Provision 2
 
          Article XXI, Contracting Out of Unit Positions;  Section 3,
       Contract Conversion
 
          A conversion to a commercial activity (CA) operation shall not
       be effected by the Employer until:
 
          The Employer provides notification to the Union that the
       Employer had been directed to study the feasibility for
       contracting out;
 
          The Employer provides the Union the opportunity to review the
       comparative cost analysis.  (Only the underscored portions are in
       dispute.)
 
    Union Provision 2 expressly would prohibit the Agency from
 contracting out certain functions without first notifying the Union
 "that the Employer had been directed to study the feasibility for
 contracting out." The Union states that its intent, in terms of this
 provision, is ". . . to require notification to the Union of cost
 studies to the extent that the (OMB Circular) A-76 (in effect when a
 particular contracting out action is taken) also required such studies."
 /9/ The Authority, however, has consistently held that it will not base
 a negotiability determination on a union's statement of intent which is
 inconsistent with the express language of the disputed proposal.  See
 e.g., American Federation of Government Employees, AFL-CIO, Local 2955
 and National Guard Bureau, Office of the Adjutant General, Des Moines,
 Iowa, 5 FLRA 617 (1981).  In this respect, the instant provision makes
 no reference to OMB Circular A-76.  Additionally, in its Statement of
 Position, the Agency based its position on an understanding that the
 provisions mandated notification of a cost study even where specific
 exemptions from the requirement to conduct a cost study were provided by
 OMB Circular A-76, such as where an agency decides to contract out
 activities which currently employ less than 10 full time, permanent
 employees.  The Agency's interpretation is, therefore, deemed consistent
 with the language of the provision and is adopted for the purpose of
 this decision.
 
    Consequently, Union Provision 2 is to the same effect as proposals
 the Authority has found nonnegotiable which sought to limit or impose
 prior conditions on the exercise of the Agency's right to engage in
 deliberative discretion with respect to its right to contract out
 pursuant to section 7106(a)(2)(B) of the Statute.  See, e.g., National
 Federation of Federal Employees, Local 1167 and Department of the Air
 Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
 Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom. National
 Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982)
 (Union Proposals 1, 2 and 4).  Hence, Union Provision 2, herein, which
 also would impose a condition on the Agency's right to make
 determinations with respect to contracting out pursuant to section
 7106(a)(2)(B) of the Statute, is outside the duty to bargain.
 
                             Union Provision 3
 
          Article XXXVII, Duration of Agreement;  Section 1
 
          The Agreement is "a living document" and shall remain in force
       for three years from the date executed unless Articles and/or
       Sections of Articles conflict with existing or future laws, or
       whenever it is determined the Union is no longer entitled to
       exclusive recognitions under the Act.
 
    This provision would require that the effective date of the
 collective bargaining agreement negotiated between the parties shall be
 the date of execution.  In this regard, the instant provision is to the
 same effect as Union Provision 3 in National Federation of Federal
 Employees, Local 1263 and Defense Language Institute, Presidio of
 Monterey, California, 14 FLRA 761 (1984) (Union Provision), enforcement
 denied as to other matters sub nom. Defense Language Institute v. FLRA,
 . . . F.2d . . . (9th Cir. 1985).  In that case, the Authority, noting
 that section 7114(c) of the Statute specifically provides that an agency
 head has 30 days to approve or disapprove a collective bargaining
 agreement, found the disputed provision, which would have established
 the date of execution as the effective date of the agreement, to be
 outside the duty to bargain.
 
    Consequently, since Union Provision 3, herein, likewise seeks to
 establish the date of execution as the effective date of the parties'
 agreement, it is, for the reasons and case cited in Presidio of
 Monterey, outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., August 23, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management (OPM) filed an amicus curiae
 brief and the Union filed a response thereto regarding Union Provision
 1, herein.
 
 
    /2/ The Agency withdrew its allegation of nonnegotiation with respect
 to two other provisions of the negotiated agreement.  The issues as to
 these two provisions, therefore, have been rendered moot and will not be
 considered further herein.
 
 
    /3/ Section 7114 of the Statute provides, in pertinent part, as
 follows:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
          (2) The head of the agency shall approve the agreement within
       30 days from the date the agreement is executed if the agreement
       is in accordance with the provisions of this chapter and any other
       applicable law, rule, or regulation (unless the agency has granted
       an exception to the provision).
 
          (3) If the head of the agency does not approve or disapprove
       the agreement within the 30-day period, the agreement shall take
       effect and shall be binding on the agency and the exclusive
       representative subject to the provisions of this chapter and any
       other applicable law, rule, or regulation.
 
 
    /4/ The Authority also found a second provision requiring one pay
 period advance notice of non-workday rotation schedule changes to be
 inconsistent with the same Government-wide regulation and outside the
 duty to bargain.
 
 
    /5/ Section 7106(b)(2) and (3) of the Statute provides, in pertinent
 part, as follows:
 
          Sec. 7106.  Management rights
 
                                .  .  .  .
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
                                .  .  .  .
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section;  or
 
          (3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by such
       management officials.
 
 
    /6/ See 48 Fed.Reg. 3935 (1983).
 
 
    /7/ In support of its claim that application of 5 CFR 610.121
 violates the Fa