[ v18 p741 ]
The decision of the Authority follows:
18 FLRA No. 86 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-36 Union and DEPARTMENT OF THE ARMY, SAVANNAH ARMY DEPOT Agency Case No. 0-NG-1029 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 an issue concerning the negotiability of the following provision of a local agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. Article 7, Section 3-- Whenever a change in the work shift currently in effect is contemplated in an area, the Employer agrees to notify the employees concerned and the employee organization, prior to making such a change. If a change is made, except in emergencies, such change shall be announced in writing at least two weeks in advance; . . . . Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The disputed provision in the instant case is to the same effect as Provision 1 in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106 (1985) which also required two weeks advance notice of changes in tours of duty and which the Authority found to be inconsistent with an applicable Government-wide regulation. /1/ In the cited case the Authority determined that 5 CFR 610.121(b)(2) (1984) 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. Thus, the Authority concluded that as the provision therein would prevent the agency head from revising an employee's work schedule unless he or she became aware of the need to change work schedules not less than two weeks prior to the rescheduling, it was inconsistent with a Government-wide regulation and outside the duty to bargain. Therefore, based on U.S. Army Garrison, Fort Detrick, since the instant provision would also, in certain circumstances, prevent the Agency from complying with a Government-wide regulation, it is likewise outside the duty to bargain pursuant to section 7117(a)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., June 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union notes that the Authority in National Association of Government Employees and Department of the Interior, 14 FLRA 280 (1984) found a provision similar to the one in issue to be negotiable. However, the agency did not raise the regulation concerning the establishment of work schedules as a bar to negotiations in Department of the Interior and, thus, this particular regulation was not considered by the Authority in that case. The Authority, therefore, found the provision to be within the duty to bargain based upon the record before it, since it is well established that the parties bear the burden for creating a record upon which the Authority can make its decision. See National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'd National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). See also American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress, 14 FLRA 59 (1984).