[ v17 p769 ]
The decision of the Authority follows:
17 FLRA No. 106 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2484 Union and U.S. ARMY GARRISON, FORT DETRICK, MARYLAND Agency Case No. O-NG-898 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents issues concerning the negotiability of two provisions of a negotiated agreement disapproved by the Agency head pursuant to section 7116(c) of the Statute. /1/ Provision 1 Article XI, Section 2 When applicable laws and regulations change the tour of duty, employees will be given two (2) weeks notice in advance of the change. Each employee will receive written notification of the new tour of duty, their schedule and the effective date of the change. Provision 2 Article XI, Section 4 A reasonable and equitable effort will be made to rotate employee's non-workdays among different work shifts to be effective at the end of each work period. The rotation schedule shall be posted not less than one pay period in advance of shift changes and will show thereon the assigned hours and rest days of each employee affected. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The Agency's disapproval of both of these provisions is based on the asserted conflict with regulations promulgated by the Office of Personnel Management (OPM), 5 CFR 610.121 (1984), /2/ which the Agency contends are Government-wide in effect. The regulation requires, insofar as is here pertinent, that when management knows in advance of an administrative workweek that the actual hours to be worked by an employee will differ from those scheduled in the upcoming administrative workweek, the administrative workweek will be rescheduled to reflect the actual hours to be worked. The regulation also requires that the affected employee will be notified of the change. Failure on the part of management to adhere to these requirements will result in payment to the concerned employee of premium pay for the hours actually worked, in accordance with other governing regulations. Chapter 61 of Title 5, U.S. Code governs "Hours of Work" for virtually all employees in Executive agencies and military departments. It prescribes, inter alia, that assignments to tours of duty be made in advance over periods of not less than one week, unless such scheduling would handicap an agency in executing its functions. 5 U.S.C. 6101(c) assigns to OPM responsibility for promulgating regulations, subject to the approval of the President, necessary for administration of the 40 hour workweek and work schedules as they affect employees "in or under an Executive agency." Pursuant to the legislative mandate, OPM issued the cited regulations which likewise govern, inter alia, "work schedules" and are applicable, with minor exceptions not relevant here, "to each employee in or under an Executive agency." In light of these circumstances, it is concluded that the cited regulations are "Government-wide," within the meaning of section 7117(a)(1), in that they are applicable generally to employees in the competitive and excepted service and are binding on heads of Executive agencies, absent a determination that their application will impede the agency in carrying out its functions, as provided by 5 U.S.C. 6101(a)(3). See American Federation of Government Employees, AFL-CIO, Local 2302 and Department of the Army, Army Armor Center, Fort Knox, Kentucky, 16 FLRA No. 6 (1984). 5 CFR 610.121(b)(2) obligates an agency head to revise an employee's administrative workweek to comport with the hours during which the employee will actually be required to work "(w)hen the head of an agency knows in advance of an administrative workweek" that such revision is necessary. In this regard, the Agency states: Thus, if the agency knows one day prior to the beginning of the administrative workweek that actual work requirements and the regular schedule will differ, the regularly scheduled administrative workweek must be rescheduled. Unless this information is available more than two weeks or a pay period in advance, therefore, the notice required by these provisions cannot be given without violating the requirements of the regulation. Language requiring two weeks notice . . . except where the agency learns of the change in work requirements less than two weeks or one pay period before the beginning of the administrative workweek would not violate the regulation. /3/ (Footnote added.) The disputed provisions, as the Agency points out, would prevent the Agency head from taking the steps required by the regulations unless he or she became aware of the need to change work schedules not less than two weeks or one pay period prior to the rescheduling. Because the disputed provisions would, in certain circumstances, prevent the Agency from complying with Government-wide regulations, pursuant to section 7117(a)(1) of the Statute, they are outside the duty to bargain. /4/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 7, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's petition initially sought Authority review of the Agency head's disapproval of five provisions. However, during the pendency of this appeal the parties reached agreement on three provisions and the Union withdrew its petition as to those provisions. Accordingly only the two provisions on which an agreement was not reached are examined here. /2/ 5 CFR 610.121 provides, in pertinent part: (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 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 with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work. (3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under Subpart A of Part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement. /3/ Agency Statement of Position at 2. /4/ Cf. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 15 FLRA No. 158 (1984) (wherein the agency did not raise the regulations as a bar to negotiation on a similar proposal).