25:0952(77)CA - AFGE Local 900 and Army, Office of the Adjutant General, Army Reserve Components Personnel and Administrative Center, St. Louis, MO -- 1987 FLRAdec CA



[ v25 p952 ]
25:0952(77)CA
The decision of the Authority follows:


 25 FLRA No. 77
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 900
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, OFFICE 
 OF THE ADJUTANT GENERAL, U.S. ARMY 
 RESERVE COMPONENTS PERSONNEL AND 
 ADMINISTRATIVE CENTER, ST. LOUIS, MISSOURI
 Agency
 
                                            Case No. 0-NG-909 
                                             (18 FLRA No. 6)
 
                       DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The question involved is whether the following provision of the
 negotiated agreement disapproved by the Agency head pursuant to section
 7114(c) of the Statute is within the duty to bargain under the Federal
 Service Labor-Management Relations Statute (the Statute):
 
          Except in cases of emergency, tours of duty will be established
       or changed at least two (2) weeks in advance, and will continue
       for at least two (2) pay periods.  Tours of duty shall be
       announced in writing and posted in the work area at least three
       (3) workdays prior to the beginning of the administrative workweek
       affected.
 
                              II.  Background
 
    In the previous decision in this case, American Federation of
 Government Employees, AFL-CIO, Local 900 and Department of the Army,
 Office of the Adjutant General, U.S. Army Reserve Components Personnel
 and Administrative Center, St. Louis, Missouri, 18 FLRA No. 6 (1985) the
 Authority determined that the provision was nonnegotiable because it
 would, in certain circumstances, prevent the Agency from complying with
 5 C.F.R. Section 610.121(b) /1/ -- a Government-wide regulation issued
 by the Office of Personnel Management (OPM).  In reaching this
 conclusion the Authority relied upon its earlier decision in American
 Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army
 Garrison, Fort Detrick, Maryland, 17 FLRA 769.  In that decision the
 Authority concluded that the OPM regulation required an agency to change
 an employee's work schedule as soon as the agency became aware that such
 a change in the employee's work schedule would be necessary.
 
    The Union's appeal of the Authority's previous decision in this case
 to the U.S. Court of Appeals for the District of Columbia Circuit was
 pending when we reconsidered the basis of the Fort Detrick decision 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).  In Scott Air Force Base, we stated that 5 U.S.C. Section
 6101(a)(3)(A), /2/ provides that an agency shall schedule employees'
 tours of duty not less than seven days in advance, except where it is
 determined that the agency would be seriously handicapped in carrying
 out its functions or that costs would be substantially increased.  5
 C.F.R. Section 610.121(a)(1) implements that statutory provision and
 contains essentially the same language.  In Fort Detrick, the Authority
 interpreted 5 C.F.R. Section 610.121(b)(2) as requiring an agency to
 change employee work schedules as soon as it became aware that such a
 change would be necessary.  Upon further review, we concluded in Scott
 Air Force Base that this interpretation did not fully take into account
 the statutory requirement that work schedules may be revised less than
 seven days in advance only where it is necessary to prevent the agency
 from being handicapped in the execution of its functions or to forestall
 a substantial increase in operational costs.  In other words,
 interpreting 5 C.F.R. Section 610.121 as a whole, employees must have a
 minimum of seven days advance notice of a change in work schedules
 unless the Agency would be seriously handicapped in carrying out its
 functions or costs would be substantially increased.
 
    In view of our decision in Scott Air Force Base, we requested the
 D.C. Circuit to remand the instant case to us for further consideration
 in light of that decision.  On November 17, 1986, the D.C. Circuit
 granted our unopposed request.  American Federation of Government
 Employees, Local 2484 v. Federal Labor Relations Authority, No. 85-1405
 (D.C. Cir. Nov. 17, 1986).
 
                       III.  Analysis and Conclusion
 
    The provision in this case requires that except in emergencies the
 Agency must provide two weeks notice of a change in an employee's work
 schedule and to continue that work schedule for at least two pay
 periods.  The Union contends that this provision is consistent with law,
 including the Statute and constitutes a negotiable procedure under
 section 7106(b)(2) or an appropriate arrangement under section
 7106(b)(3).
 
    In our view this provision is to the same effect as Proposal 1 found
 nonnegotiable in Scott Air Force Base, which required the agency to give
 14 days notice before changing work schedules except in emergencies.  We
 determined that the exception to the notice period set forth in the
 proposal was too narrow.  We found that the terms defining the statutory
 (5 U.S.C. Section 6101(a)(3)(A)) and regulatory (5 C.F.R. Section
 610.121(a)) exceptions were broader than the term "emergency" used in
 the proposal.  We noted that situations falling within the scope of
 applicable law and regulation -- circumstances which would seriously
 handicap an agency in accomplishing its functions or would substantially
 increase costs -- would not necessarily constitute "emergencies." We
 concluded therefore, that Proposal 1 was inconsistent with law and
 regulation.  See International Association of Aerospace Workers, Local
 Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Aberdeen
 Proving Ground, Maryland, 24 FLRA No. 55 (1986).
 
    Consequently, based on the reasons set forth in Scott Air Force Base,
 we find this provision to be inconsistent with law and Government-wide
 regulation and thus outside the duty to bargain under section 7117(a)(1)
 of the Statute.  Since sections 7106(b)(2) and (3) apply 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 the
 provision constitutes a "procedure" or 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).
 
                                III.  Order
 
    The petition for review is dismissed.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) For the text of the pertinent portions of 5 C.F.R. Section
 610.121 see the Appendix attached to this decision.
 
    (2) For the text of 5 U.S.C. Section 6101(a)(3)(A) see the Appendix
 attached to this decision.
 
 
                                 APPENDIX
 
    /1/ 5 C.F.R. Section 610.121 provides, in pertinent part:
 
          Section 610.121 Establishment of work schedules.
 
          (a) Except when the head of an agency determines that the
       agency would be seriously handicapped in carrying out its
       functions or that costs would be substantially increased, he or
       she shall provide that --
 
          (1) Assignments to tours of duty are scheduled in advance of
       the administrative workweek over periods of not less than 1 week;
 
          (2) The basic 40-hour workweek is scheduled on 5 days, Monday
       through Friday when possible, and the 2 days outside the basic
       workweek are consecutive(.)
 
                       .  .  .  .  .  .  .
 
 
          (b)(1) The head of an agency shall schedule the work of his or
       her employees to accomplish the mission of the agency.  The head
       of an agency shall schedule an employee's regularly scheduled
       administrative workweek so that it corresponds with the employee's
       actual work requirements.
 
          (2) When the head of an agency knows in advance of an
       administrative workweek that the specific days and/or hours of a
       day actually required of an employee in that administrative
       workweek will differ from those required in the current
       administrative workweek, he or she shall reschedule the employee's
       regularly scheduled administrative workweek to correspond with
       those specific days and hours.  The head of the agency shall
       inform the employee of the change, and he or she shall record the
       change on the employee's time card or other agency document for
       recording work.
 
                       .  .  .  .  .  .  .
 
 
    /2/ 5 U.S.C. Section 6101(a)(3)(A) and (B) provides as follows:
 
          Section 6101.  Basic 40-hour workweek;  work schedules;
       regulations
 
                       .  .  .  .  .  .  .
 
 
          (a)(3) Except when the head of an Executive agency, a milit