19:0176(18)NG - NFFE Local 7 and Army Corps of Engineers, Portland District -- 1985 FLRAdec NG

 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).