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. 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 the Agency to provide two weeks
 notice of changes in tours of duty except in emergencies.  The Union
 argues that the provision is a negotiable procedure under section
 7106(b)(2) or an appropriate arrangement under section 7106(b)(3).  The
 Union, in its response to the amicus brief filed by OPM in this case,
 also claims that OPM's interpretation of 5 C.F.R. Section 610.121
 violates the Occupational Safety and Health Act (29 U.S.C. Section 651
 et seq.), the Fair Labor Standards Act, (29 U.S.C. Section 201 et seq.),
 5 U.S.C. Section 6101, and 5 U.S.C. Section 6120 et seq. which concerns
 flexible and compressed work schedules.
 
    The Union's contentions cannot be sustained.  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 C.F.R.
 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).  Based on the reasons set forth
 in Scott Air Force Base, we find this provision is also inconsistent
 with law and Government-wide regulation and thus, outside the duty to
 bargain under section 7117(a)(1) of the Statute.
 
    This conclusion is not changed by the Union's additional claims that
 the OPM regulation violates law or that the provision constitutes a
 "procedure" or "appropriate arrangement." Under section 7117 of the
 Statute, we do not rule on the validity of a Government-wide regulation.
  American Federation of Government Employees v. FLRA, 794 F.2d 1013 (5th
 Cir. 1986) enforcing American Federation of Government Employees,
 AFL-CIO, National Council of Grain Inspection Locals and Department of
 Agriculture, Federal Grain Inspection Service, 18 FLRA No. 70 (1985).
 Further, since sections 7106(b)(2) and (3) apply only when management
 exercises one of the reserved rights set out elsewhere in section 7106
 is it 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).
 
                                IV.  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