[ v14 p280 ]
The decision of the Authority follows:
14 FLRA No. 52 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES Union and DEPARTMENT OF THE INTERIOR Agency Case No. O-NG-882 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises an issue concerning the negotiability of the following provision of an agreement which was disapproved by the Agency head pursuant to section 7114(c) of the Statute: /1/ HOURS OF WORK AND BASIC WORKWEEK The Employer shall notify the employee(s) two weeks or as far in advance as reasonably feasible of contemplated changes in shifts and duty hours. The Employer may make exceptions to this requirement when emergency circumstances preclude compliance. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The provision by its plain language, contrary to the Agency's interpretation, would require the Agency to give notice of a change in shift assignments or duty hours two weeks in advance of the change absent emergency circumstances. The provision is to the same effect as Union Proposal 11 in American Federation of Government Employees, Local 2272 and Department of Justice, U.S. Marshals Service, Washington, D.C., 9 FLRA No. 140 (1982), which also required the Agency to give prior notice of a change in assignments. The Authority, therein, found the proposal to be a procedure which management would observe in the exercise of its right to assign work and, thus, was within the duty to bargain under section 7106(b)(2) of the Statute. In that case, the Authority cited American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152, 155 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), which stated that section 7106(b)(2) "is intended to authorize an exclusive representative to negotiate fully on procedures except to the extent that such negotiations would prevent agency management from acting at all." With respect to the case at issue, contrary to the Agency's assertion, there is no indication that meeting the provision's notice requirement would in any manner prevent it from acting at all to assign employees. Hence, for the reasons stated and the case cited in Department of Justice, U.S. Marshals Service, Washington, D.C., the provision herein is within the duty to bargain. /2/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall rescind the disapproval of the disputed provision which was bargained on and agreed to by the parties. Issued, Washington, D.C., April 20, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's contention that the negotiability appeal should be dismissed due to mootness cannot be sustained. It is clear from a Memorandum of Understanding contained in the record that the parties intended the Union to proceed with the instant negotiability appeal irrespective of their subsequent signing of the collective bargaining agreement which excluded the disputed provision. See American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA No. 112 (1984). /2/ In deciding that the disputed provision is within the duty to bargain, the Authority makes no judgment as to its merits.