14:0280(52)NG - NAGE and Interior -- 1984 FLRAdec NG

 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.