American Federation of Government Employees (Union) and United States, Department of Defense, Defense Logistics Agency, Defense Distribution, Center, New Cumberland, Pennsylvania (Agency)

[ v58 p331 ]

58 FLRA No. 77

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE,
DEFENSE LOGISTICS AGENCY,
DEFENSE DISTRIBUTION
CENTER, NEW CUMBERLAND
PENNSYLVANIA
(Agency)

0-NG-2658

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

January 28, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position, to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons that follow, we find that the proposal is outside the duty to bargain and dismiss the petition for review.

II.      Proposal

The standard workweek and hours of duty are based upon mission requirements of the Employer, with full consideration for the best interests of the employees. The standard workweek shall be dayshift Monday through Friday, when possible. The standard hours of duty (prime shift) will be either 0600-1430 or 0700-1530 for eight (8) hour days. Any deviation from the currently established workweek and hours of duty will be negotiated at each site with the AFGE Local. Any workweek other than the standard workweek will be considered an irregular or non-preferred tour of duty. No changes shall be made in the workweek or tour of duty, without the Employer and AFGE Local surveying the employees' wishes, proper notification by the Employer and negotiation with the appropriate AFGE Local. (Only the underlined portion of the proposal is in dispute.)

III.     Positions of the Parties

A.     Agency

      The Agency claims that the proposal violates a Government-wide regulation, 5 C.F.R. § 610.121(a), which allows the Agency to determine work schedules without advance notice under two circumstances: when the Agency has determined that such notice would seriously handicap it in carrying out its functions; and when the Agency determines that its costs would be substantially increased. The Agency argues that the proposal does not allow the Agency to act unilaterally in either situation since the proposal does not include any exceptions. In support, the Agency cites Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 378 (2001) (FOP). In response to the Union's assertion that a provision of the parties' master agreement essentially contains the regulatory exceptions, the Agency states that the provision "is narrower than the exceptions" and is itself "unenforceable." Agency's Reply at 1.

      The Agency also contends that the proposal interferes with management's right to determine its mission under § 7106(a)(1) of the Statute because it prescribes the operating hours of the Agency. Further, the Agency asserts that the proposal concerns the numbers, types, and grades of employees assigned to a work area or project under § 7106(b)(1) of the Statute, and the Agency has elected not to bargain over the proposal. Finally, interpreting a Union argument as a claim that the proposal is negotiable under § 7106(b)(2) and/or § 7106(b)(3), the Agency states that the claim is a bare assertion that should be rejected.

B.     Union

      The Union contends that the proposal is not inconsistent with 5 C.F.R. § 610.121, given the existence of Article 20, Section 3D of the parties' master agreement, which provides that: "Unless precluded by emergency or extraordinary situations, the [Agency] shall notify the DLA Council Local 1 week in advance of any change in work schedules." Response, Attachment.

      Further, the Union disputes the Agency's contention that the proposal affects management's right to determine its mission under § 7106(a)(1) of the Statute. [ v58 p332 ] The Union argues that, by its wording, the proposal does not prescribe the operating hours of the Agency.

      The Union also disputes the Agency's § 7106(b)(1) argument, asserting that the Agency agreed to negotiate on § 7106(b)(1) matters in a supplemental agreement. The Union adds that "if this was not so, the Union then would have the right in the proposal to negotiate appropriate arrangements/implementation[s]." Response at 1.

IV.     Analysis and Conclusions

A.     Meaning of the Proposal

      The proposal would establish the starting and quitting times of the day shift and would require the parties to negotiate changes in the workweek or tour of duty before such changes are made, including the solicitation of employees' views. The proposal makes no reference to the Agency's ability to make changes under any other circumstances. However, as explained by the Union, when the proposal is read in conjunction with a provision of the parties' master agreement, the proposal would allow the Agency to unilaterally change work schedules in emergencies or extraordinary situations.

      Where, as here, a proposal is silent with respect to a particular matter and the union has clarified that matter, we adopt the meaning, as clarified. See Nat'l Education Ass'n, Overseas Education Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996) (when a proposal is silent as to a particular matter, a union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording). Therefore, we interpret the proposal as permitting the Agency to change workweeks or tours of duty in emergencies and extraordinary situations.

B.     The proposal is contrary to 5 C.F.R. § 610.121(a)

      Under § 7117(a)(1) of the Statute, parties cannot bargain over matters that are inconsistent with a Government-wide regulation. The Authority has previously found that 5 C.F.R. § 610.121(a) is a Government-wide regulation. See AFGE, Local 1815, 53 FLRA 606, 619 (1997). That regulation explicitly permits an agency to change employees' work schedules without limitation "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[.]" 5 C.F.R. § 610.121(a).

      The proposal, among other things, would require the parties to survey the employees' wishes and negotiate any changes in the workweek or tour of duty before such changes can be made. As construed, the proposal would permit the Agency to unilaterally change work schedules in emergencies or extraordinary situations, but those situations are not the same as described in 5 C.F.R. § 610.121(a). Like the proposal in FOP, this proposal would limit the Agency's ability to unilaterally change work schedules pursuant to 5 C.F.R. § 610.121(a). See FOP, 57 FLRA at 378 (proposal that required agency to notify and negotiate with union concerning shift changes before such changes could be made found inconsistent with 5 C.F.R. § 610.121(a)). [n1] As the proposal would preclude the Agency from unilaterally changing work schedules in the situations described in 5 C.F.R. § 610.121(a), the proposal is inconsistent with the regulation and is outside the duty to bargain under § 7117(a)(1) of the Statute.

      In view of this result, there is no need to address the parties' additional contentions. See, e.g., id. (where a provision is contrary to a Government-wide regulation, there is no need to address the parties' § 7106 arguments).

V.