[ v19 p1016 ]
The decision of the Authority follows:
19 FLRA No. 118 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1546 Union and DEPARTMENT OF THE ARMY, SHARPE ARMY DEPOT, LATHROP, CALIFORNIA Agency Case No. O-NG-1015 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 raises issues concerning the negotiability of three provisions /1/ of a negotiated agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. /2/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. As a preliminary matter, the Union contends that the instant appeal is moot because the disputed contract provisions have gone into effect via a "same day" execution and approval by the local level management official. The Union's contention cannot be sustained. In this regard, section 7114(c) of the Statute /3/ provides that a locally negotiated collective bargaining agreement "shall be subject to the approval of the head of the agency" and further, that if such approval is not obtained within 30 days the locally executed agreement shall go into effect on the 31st day. There is nothing in the language of the Statute, or in its legislative history, which indicates that such approval authority could not be delegated to officials within an agency but could only be exercised personally by the head of the agency. Thus, the head of each agency has the discretion to determine which agency officials within the agency will have authority to approve or disapprove locally negotiated collective bargaining agreements. In the instant case, the Agency has clearly established that the Commander of Sharpe Army Depot, the local management official who purportedly approved the locally negotiated collective bargaining agreement on behalf of the Agency head, did not have the delegated authority to approve or disapprove collective bargaining agreements. That is, Army Regulation 690-700, Chapter 771, paragraph 3-4(b)(11), a published Agency regulation which the Union concedes is applicable herein, specifies the organizations within the Department of the Army which may review and approve or disapprove collective bargaining agreements. Sharpe Army Depot, the local activity herein, is not included among the listed organizations. Therefore, since the commander of Sharpe Army Depot did not have authority to approve or disapprove collective bargaining on behalf of the head of the Agency, his action in approving the locally negotiated agreement in this case was invalid and did not bar the appropriate designee of the Agency head from reviewing and disapproving portions of the locally negotiated agreement. Consequently, as the disapproval of provisions of the locally negotiated collective bargaining agreement was proper, the instant negotiability appeal is not moot but is properly before the Authority. Union Provision 1 Article XI, Hours of Work; Section 6, Change in Tour of Duty The Employer agrees to provide two weeks notice to employees in the event changes in work shifts are required. For changes that may be required by emergencies, employees will be provided as much advance notice as practical, and will continue on the shift only for the time necessary. (Only the underscored portion is in dispute.) Union Provision 1 herein 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. In the cited case the Authority determined that 5 CFR 610.121(b)(2) (1984) obligated 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 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. /4/ Therefore, since the instant provision would also, in certain circumstances, prevent the Agency from complying with a Government-wide regulation, it is, based on U.S. Army Garrison, Fort Detrick, likewise outside the duty to bargain pursuant to section 7117(a)(1) of the Statute. This conclusion is not altered by the contentions raised by the Union in its response to the amicus brief filed by OPM concerning Union Provision 1. In this respect, the Union first alleges that the provision is negotiable, either as a "procedure" or as an "appropriate arrangement," pursuant to sections 7106(b)(2) and (3) of the Statute. /5/ In addition, the Union contends that OPM's interpretation of 5 CFR 610.121 renders its application in violation of law, namely, the Occupational Safety and Health Act (OSHA), 29 U.S.C. 651, et seq., the Fair Labor Standards Act, 29 U.S.C. 201 et seq., the Alternate Work Schedules Act, 5 U.S.C. 6101. Turning first to the Union's claim that the provision constitutes a "procedure" or an "appropriate arrangement," it is noted that sections 7106(b)(2) and (3) expressly apply only when management is exercising one of the management rights set out elsewhere in section 7106. In this case, however, Provision 1 is outside the duty to bargain not because it is inconsistent with an enumerated management right but, rather, because it is inconsistent with an applicable Government-wide regulations. Consequently, as sections 7106(b)(2) and (3) are not applicable in these circumstances, the Union's claim that Provision 1 constitutes a "procedure" or "appropriate arrangement" cannot be sustained. We turn now to the Union's claim that application of 5 CFR 610.121 violates law. In this respect, the Union provides no support for its contentions that application of 5 CFR 610.121, which has been in effect in its present form since January 28, 1983, /6/ either has been implemented or would be implemented in any manner in the bargaining unit herein which is inconsistent with the Alternate Work Schedules Act, the OSHA requirement to provide a safe and healthful work place or with the Fair Labor Standards Act. /7/ Finally, the Union misconstrues the requirements of 5 U.S.C. 6101. That is, 5 U.S.C. 6101(a)(3)(A) /8/ does not establish a particular time period before a tour of duty is to become effective. Rather, the clear language of section 6101(a)(3) indicates that the tour of duty itself must extend over one week and that assignments to such tours of duty are to be scheduled in advance. In this connection, 5 CFR 610.121 implements the statutory requirement. Consequently, the Union's claim that application of 5 CFR 610.121 violates law also cannot be sustained. Union Provision 2 Article XXI, Contracting Out of Unit Positions; Section 3, Contract Conversion A conversion to a commercial activity (CA) operation shall not be effected by the Employer until: The Employer provides notification to the Union that the Employer had been directed to study the feasibility for contracting out; The Employer provides the Union the opportunity to review the comparative cost analysis. (Only the underscored portions are in dispute.) Union Provision 2 expressly would prohibit the Agency from contracting out certain functions without first notifying the Union "that the Employer had been directed to study the feasibility for contracting out." The Union states that its intent, in terms of this provision, is ". . . to require notification to the Union of cost studies to the extent that the (OMB Circular) A-76 (in effect when a particular contracting out action is taken) also required such studies." /9/ The Authority, however, has consistently held that it will not base a negotiability determination on a union's statement of intent which is inconsistent with the express language of the disputed proposal. See e.g., American Federation of Government Employees, AFL-CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). In this respect, the instant provision makes no reference to OMB Circular A-76. Additionally, in its Statement of Position, the Agency based its position on an understanding that the provisions mandated notification of a cost study even where specific exemptions from the requirement to conduct a cost study were provided by OMB Circular A-76, such as where an agency decides to contract out activities which currently employ less than 10 full time, permanent employees. The Agency's interpretation is, therefore, deemed consistent with the language of the provision and is adopted for the purpose of this decision. Consequently, Union Provision 2 is to the same effect as proposals the Authority has found nonnegotiable which sought to limit or impose prior conditions on the exercise of the Agency's right to engage in deliberative discretion with respect to its right to contract out pursuant to section 7106(a)(2)(B) of the Statute. See, e.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), enforced sub nom. National Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (Union Proposals 1, 2 and 4). Hence, Union Provision 2, herein, which also would impose a condition on the Agency's right to make determinations with respect to contracting out pursuant to section 7106(a)(2)(B) of the Statute, is outside the duty to bargain. Union Provision 3 Article XXXVII, Duration of Agreement; Section 1 The Agreement is "a living document" and shall remain in force for three years from the date executed unless Articles and/or Sections of Articles conflict with existing or future laws, or whenever it is determined the Union is no longer entitled to exclusive recognitions under the Act. This provision would require that the effective date of the collective bargaining agreement negotiated between the parties shall be the date of execution. In this regard, the instant provision is to the same effect as Union Provision 3 in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 14 FLRA 761 (1984) (Union Provision), enforcement denied as to other matters sub nom. Defense Language Institute v. FLRA, . . . F.2d . . . (9th Cir. 1985). In that case, the Authority, noting that section 7114(c) of the Statute specifically provides that an agency head has 30 days to approve or disapprove a collective bargaining agreement, found the disputed provision, which would have established the date of execution as the effective date of the agreement, to be outside the duty to bargain. Consequently, since Union Provision 3, herein, likewise seeks to establish the date of execution as the effective date of the parties' agreement, it is, for the reasons and case cited in Presidio of Monterey, outside the duty to bargain. 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., August 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management (OPM) filed an amicus curiae brief and the Union filed a response thereto regarding Union Provision 1, herein. /2/ The Agency withdrew its allegation of nonnegotiation with respect to two other provisions of the negotiated agreement. The issues as to these two provisions, therefore, have been rendered moot and will not be considered further herein. /3/ Section 7114 of the Statute provides, in pertinent part, as follows: Sec. 7114. Representation rights and duties . . . . (c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. (2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision). (3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation. /4/ The Authority also found a second provision requiring one pay period advance notice of non-workday rotation schedule changes to be inconsistent with the same Government-wide regulation and outside the duty to bargain. /5/ Section 7106(b)(2) and (3) of the Statute provides, in pertinent part, as follows: Sec. 7106. Management rights . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. /6/ See 48 Fed.Reg. 3935 (1983). /7/ In support of its claim that application of 5 CFR 610.121 violates the Fair Labor Standards Act, the Union relies upon 29 CFR 778.106 (1984) which is promulgated by the Wage and Hour Administrator of the Department of Labor and which proscribes shift changes to avoid overtime payments under the Act. However, this regulation is not applicable to Federal employees. That is, the Act, 29 U.S.C. 204(f), specifically delegates to the Civil Service Commission, now the Office of Personnel Management, the sole authority to administer the provisions of the Act which apply to Federal employees. /8/ 5 U.S.C. 6101 provides in pertinent part as follows: Sec. 6101. Basic 40-hour workweek; work schedules; regulations . . . . (a)(3) Except when the head of an Executive agency, a military department, or of the government of the District of Columbia determines that his organization would be seriously handicapped in carryout its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that-- (A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week(.) /9/ Union Reply Brief at 7.