20:0436(46)NG - AFGE Local 2955 and The Adjutant General, Iowa, Army and Air Force, NGB -- 1985 FLRAdec NG
[ v20 p436 ]
The decision of the Authority follows:
20 FLRA No. 46 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2955 Union and THE ADJUTANT GENERAL, IOWA, DEPARTMENTS OF THE ARMY AND THE AIR FORCE, NATIONAL GUARD BUREAU Agency Case No. 0-NG-1150 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 an issue concerning the negotiability of one provision of a negotiated agreement which was disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Provision Article 11. Hours of Work Section 1. The Employer agrees to provide the following: a. Assignments to tours of duty shall be scheduled at least seven (7) days in advance. Section 4. Individual temporary changes in tours of duty scheduled shall be in compliance with applicable laws and regulations and posted in the work area no later than seven (7) days prior to the beginning of the workweek. Notice of a change of the normal tour of duty shall contain the following: a. New hours of the tour. b. Reasons, including the circumstances for the change. c. Signature of the authorizing official. In requiring the Agency to provide advance notice of seven days before changing employee work schedules, the disputed Provision herein is to the same effect as Union Provision 1 in American Federation of Government Employees, AFL-CIO, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118(1985), which also required the agency to provide advance notice (two weeks) before changing employee work schedules and which the Authority found to be inconsistent with 5 CFR 610.121, an applicable Government-wide regulation. In that case the Authority, relying on its earlier decision in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106(1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 2484 v. FLRA, No. 85-1405 (D.C. Cir. July 3, 1985), found that the regulation obligated an agency head to revise an employee's administrative workweek to conform to the hours during which the employee will actually be required to work "(w)hen the head of the agency knows in advance of an administrative workweek" that a schedule revision is necessary. The Authority concluded in that case that the provision would prevent the agency head from revising an employee's work schedule unless the need to change the schedule was apparent not less than two weeks prior to the rescheduling. Consequently, as the instant proposal would, in certain circumstances, also prevent the Agency from complying with a Government-wide regulation, it is, based on Sharpe Army Depot, and U.S. Army Garrison, Fort Detrick, outside the duty to bargain pursuant to section 7117(a)(1) of the Statute. /2/ 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., September 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency, in its Statement of Position, withdrew its allegation of nonnegotiability with respect to a provision of the negotiated agreement captioned "OVERTIME." The issue as to this provision, therefore, has been rendered moot. Additionally, in its Reply Brief, the Union withdrew its request for a negotiability determination as regards a provision of the negotiated agreement captioned "EQUAL EMPLOYMENT OPPORTUNITY." Consequently, the issues as to these two provisions will not be considered further herein. /2/ This conclusion is not altered by the Union's contentions that OPM's interpretation of the application of 5 CFR 610.121 is violative of the Fair Labor Standards Act, 29 U.S.C. 201 et seq. and that the provision herein essentially constitutes a "procedure," i.e., does not prevent the Agency from "acting at all" as regards its reserved management rights. Virtually identical arguments were raised by the union and not sustained by the Authority in Sharpe Army Depot, supra. Consequently, the contentions in the instant case also cannot be sustained.