[ v19 p176 ]
The decision of the Authority follows:
19 FLRA No. 18 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 7 Union and U.S. ARMY CORPS OF ENGINEERS, PORTLAND DISTRICT Agency Case No. O-NG-984 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 an issue concerning the negotiability of two provisions of a local agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ Provision 1 Article 8.1c. Any deviations from the existing approved workdays and workweeks shall be after consultations between management and designated NFFE 7 representatives of unit employees have taken place. Provision 2 Article 8.1d. All tours of duty shall be established or changed at least two weeks in advance and continue for at least two pay periods and will be announced in writing. Whenever conditions are such that work cannot be reasonably performed during standard schedules, non-standard schedules may be established by the Employer. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /2/ The Agency's disapproval of both of these provisions is based on the asserted conflict with 5 CFR 610.121 (1984). /3/ Essentially, the disputed provisions in the instant case are to the same effect as those in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106 (1985) which required advance notice of changes in tours of duty and which the Authority found to be inconsistent with an applicable Government-wide regulation, 5 CFR 610.121(b)(2) (1984), which 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. The Authority concluded, therefore, that as the provisions 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 that Government-wide regulation and outside the duty to bargain. Therefore, based on U.S. Army Garrison, Fort Detrick, since the instant provisions would also, in certain circumstances by placing conditions on the Agency head's ability to act, prevent the Agency from complying with that Government-wide regulation, they are likewise outside the duty to bargain pursuant to section 7117(a)(1) of the Statute. /4/ 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., July 18, 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 fifteen provisions. However, during the pendency of this appeal the Union withdrew its appeal regarding one provision, the parties reached agreement on four provisions, and the Agency withdrew its allegation of nonnegotiability for eight provisions. Subsequently, 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/ The Office of Personnel Management was permitted to file an amicus curiae brief, and the Union was permitted to file a response thereto, concerning the matters involved in the present case. /3/ The Agency in its Response at 3-4 contends that Provision 1 is inconsistent with the cited regulation because it would prevent it from rescheduling work, as required, while consultations with the Union over revised work schedules are taking place. The Union did not refute this contention. /4/ 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 provision 2 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'g 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).