25:0958(78)NG - AFGE Local 1546 and Army, Sharpe Army Depot, Lathrop, CA -- 1987 FLRAdec NG



[ v25 p958 ]
25:0958(78)NG
The decision of the Authority follows:


 25 FLRA No. 78
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1546
 Union
 
 and
 
 DEPARTMENT OF THE ARMY 
 SHARPE ARMY DEPOT 
 LATHROP, CALIFORNIA
 Agency
 
                                            Case No. 0-NG-1015 
                                             (19 FLRA No. 118)
 
                       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 a 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):
 
          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 time necessary.  (Only the underscored portion is in dispute.)
 
                              II.  Background
 
    In the previous decision in this case, American Federation of
 Government Employees, Local 1546 and Department of the Army, Sharpe Army
 Depot, Lathrop, California, 19 FLRA No. 118 (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, 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 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. Circ