18:0741(86)NG - NAGE Local R7-36 and Army, Savanna Army Depot -- 1985 FLRAdec NG

 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).