American Federation of Government Employees, AFL-CIO, Local 1617 and Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base, Texas

 2 FLRA No. 57
 
 MR. RONALD D. KING, DIRECTOR
 CONTRACT AND APPEALS DIVISION
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, NW.
 WASHINGTON, D.C. 20005
 
                           RE:  AMERICAN FEDERATION OF GOVERNMENT
                                EMPLOYEES, AFL-CIO, LOCAL 1617 AND
                                HEADQUARTERS, SAN ANTONIO AIR
                                LOGISTICS CENTER, KELLY AIR FORCE
                                BASE, TEXAS, Case No. 0-NG-33
 
 DEAR MR. KING:
 
    REFERENCE IS MADE TO YOUR PETITION FOR REVIEW FILED ON BEHALF OF THE
 UNION, THE AGENCY'S STATEMENT OF POSITION AND THE UNION'S RESPONSE
 THERETO, IN THE ABOVE-ENTITLED CASE.  FOR THE REASONS INDICATED BELOW,
 THE AUTHORITY HAS DETERMINED THAT THE PETITION FOR REVIEW MUST BE
 DISMISSED.
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS:  CURING
 THE TERM OF AN AGREEMENT BETWEEN THE SAN ANTONIO AIR LOGISTICS CENTER
 (ACTIVITY) AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1617 (UNION), THE ACTIVITY NOTIFIED THE UNION OF ITS INTENT TO
 ESTABLISH AN "UNCOMMON TOUR OF DUTY," I.E., A SEVEN-DAY STAGGERED SHIFT
 OPERATION TO MEET INCREASED WORK LOAD REQUIREMENTS.  THE PARTIES MET TO
 DISCUSS THE IMPACT ON ADVERSELY AFFECTED UNIT EMPLOYEES.  AT THAT TIME,
 HOWEVER, THE ACTIVITY REFUSED TO BARGAIN ON ITS DECISION TO ESTABLISH
 THE NEW TOUR OF DUTY.  FOLLOWING THE ACTIVITY'S IMPLEMENTATION OF THE
 UNCOMMON TOUR OF DUTY, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
 WITH THE DALLAS REGIONAL OFFICE OF THE AUTHORITY ALLEGING THAT THE
 ACTIVITY HAD "IMPLEMENTED A CHANGE IN PAST PRACTICES, POLICIES AND
 WORKING CONDITIONS BY ESTABLISHING (U)NCOMMON (T)OURS OF (D)UTY FOR
 (U)NIT EMPLOYEES WITHOUT GIVING THE EXCLUSIVE REPRESENTATIVE . . . AN
 OPPORTUNITY TO BARGAIN ON ITS MERITS OR THE IMPACT ON (U)NIT EMPLOYEES,"
 IN VIOLATION OF SECTION 7116(A)(1), (2), (5), (7) AND (8) AND SECTION
 7117 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 (STATUTE).  AT THE SAME TIME, THE UNION FILED THE NEGOTIABILITY APPEAL
 HEREIN.
 
    IN THE CIRCUMSTANCES OF THIS CASE, THE NEGOTIABILITY ISSUE SOUGHT TO
 BE RAISED BY THE UNION IN ITS APPEAL, I.E., WHETHER THE ESTABLISHMENT OF
 UNCOMMON TOURS OF DUTY IS A NEGOTIABLE MATTER UNDER THE STATUTE, HAS
 BEEN RENDERED MOOT.  AS PREVIOUSLY INDICATED, THE UNION FILED AN UNFAIR
 LABOR PRACTICE CHARGE ALLEGING, IN PART, THAT THE ACTIVITY VIOLATED THE
 STATUTE BY "ESTABLISHING (U)NCOMMON (T)OURS OF (D)UTY FOR (U)NIT
 EMPLOYEES WITHOUT GIVING THE EXCLUSIVE REPRESENTATIVE . . . AN
 OPPORTUNITY TO BARGAIN ON ITS MERITS . . . ." THE REGIONAL DIRECTOR (RD)
 REFUSED TO ISSUE A COMPLAINT ON THE UNFAIR LABOR PRACTICE CHARGE,
 FINDING, IN EFFECT, THAT THE ACTIVITY WAS UNDER NO OBLIGATION TO BARGAIN
 ON THE MATTER OF UNCOMMON TOURS OF DUTY INASMUCH AS IT WAS COVERED BY
 THE PARTIES' NEGOTIATED AGREEMENT /1/ AND THE ACTIVITY HAD COMPLIED WITH
 THE PROVISIONS CONTAINED THEREIN.  THE RD ALSO FOUND THAT THE PARTIES
 HAD NEGOTIATED AND REACHED AGREEMENT ON THE IMPACT AND IMPLEMENTATION OF
 MANAGEMENT'S DECISION TO ESTABLISH THE UNCOMMON TOURS OF DUTY.  HE
 FURTHER NOTED THAT, IF THERE WAS ANY DISAGREEMENT WITH THE ACTIVITY'S
 INTERPRETATION AND APPLICATION OF THE AGREEMENT, THE UNION COULD HAVE
 UTILIZED THE CONTRACTUAL GRIEVANCE AND ARBITRATION PROCEDURE TO RESOLVE
 THE MATTER.  THE GENERAL COUNSEL, PURSUANT TO SECTION 2423.9(E) OF THE
 AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44761(1979)), AFFIRMED
 THE RD'S REFUSAL TO ISSUE A COMPLAINT.  SAN ANTONIO AIR LOGISTICS
 CENTER, KELLY AIR FORCE BASE, TEXAS, CASE NO.  6-CA-33(DEC. 21, 1979).
 
    IN VIEW OF THE FINDING THAT THE ACTIVITY WAS UNDER NO OBLIGATION TO
 BARGAIN IN THESE CIRCUMSTANCES, WERE THE AUTHORITY TO ISSUE A DECISION
 UNDER SECTION 7117(C) OF THE STATUTE, SUCH DECISION WOULD CONSTITUTE
 MERELY AN ADVISORY OPINION CONTRARY TO THE AUTHORITY'S RULES AND
 REGULATIONS.  /2/
 
    THEREFORE, INASMUCH AS THE DISPOSITION OF THE UNION'S RELATED UNFAIR
 LABOR PRACTICE CHARGE HAS RENDERED THE UNDERLYING NEGOTIABILITY ISSUE
 MOOT, THE UNION'S PETITION FOR REVIEW IS DISMISSED PURSUANT TO SECTION
 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44740 ET
 SEQ.(1979)), WITHOUT PASSING UPON THE MERITS OF THE APPEAL.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
    CC:  D. DRESSER
 
    AIR FORCE
 
    /1/ AS FOUND BY THE RD, ARTICLE X, SECTION 2 OF THE PARTIES'
 AGREEMENT STATES:
 
    "SHIFTS AND TOURS OF DUTY ALREADY ESTABLISHED BY THE EMPLOYER WILL
 REMAIN IN EFFECT EXCEPT AS FOLLOWS.  CHANGES TO THESE SHIFTS AND TOURS
 OF DUTY WILL BE KEPT TO THE MINIMUM POSSIBLE AND WILL BE MADE ONLY WHEN
 DICTATED BY MISSION REQUIREMENT.  THE UNION WILL BE GIVEN THE
 OPPORTUNITY TO HAVE ITS VIEWS CONSIDERED BY MANAGEMENT PRIOR TO THE
 IMPLEMENTATION OF A CHANGE . . . ."
 
    SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS AND
 AFGE, LOCAL 1617, CASE NO. 6-CA-33(AUG. 29, 1979).
 
    /2/ IN THIS REGARD, SECTION 2429.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED. REG. 44771(1979)) PROVIDES THAT "(T)HE AUTHORITY .
 . . WILL NOT ISSUE ADVISORY OPINIONS."