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U.S. Federal Labor Relations Authority

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17:0769(106)NG - AFGE Local 2484 and Army Garrison, Fort Detrick, MD -- 1985 FLRAdec NG

[ v17 p769 ]
The decision of the Authority follows:

 17 FLRA No. 106
                                            Case No. O-NG-898
    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
                                       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).