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U.S. Federal Labor Relations Authority

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20:0436(46)NG - AFGE Local 2955 and The Adjutant General, Iowa, Army and Air Force, NGB -- 1985 FLRAdec NG

[ v20 p436 ]
The decision of the Authority follows:

 20 FLRA No. 46
                                       Case No. 0-NG-1150
    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 an issue
 concerning the negotiability of one provision of a negotiated agreement
 which was disapproved by the Agency head pursuant to section 7114(c) of
 the Statute.  /1/ Upon careful consideration of the entire record,
 including the parties' contentions, the Authority makes the following
                              Union Provision
          Article 11.  Hours of Work
          Section 1.  The Employer agrees to provide the following:
          a.  Assignments to tours of duty shall be scheduled at least
       seven (7) days in advance.
          Section 4.  Individual temporary changes in tours of duty
       scheduled shall be in compliance with applicable laws and
       regulations and posted in the work area no later than seven (7)
       days prior to the beginning of the workweek.  Notice of a change
       of the normal tour of duty shall contain the following:
          a.  New hours of the tour.
          b.  Reasons, including the circumstances for the change.
          c.  Signature of the authorizing official.
    In requiring the Agency to provide advance notice of seven days
 before changing employee work schedules, the disputed Provision herein
 is to the same effect as Union Provision 1 in American Federation of
 Government Employees, AFL-CIO, Local 1546 and Department of the Army,
 Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118(1985), which
 also required the agency to provide advance notice (two weeks) before
 changing employee work schedules and which the Authority found to be
 inconsistent with 5 CFR 610.121, an applicable Government-wide
 regulation.  In that case the Authority, relying on its earlier decision
 in American Federation of Government Employees, AFL-CIO, Local 2484 and
 U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106(1985),
 petition for review filed sub nom.  American Federation of Government
 Employees, AFL-CIO, Local 2484 v. FLRA, No. 85-1405 (D.C. Cir. July 3,
 1985), found that the regulation obligated an agency head to revise an
 employee's administrative workweek to conform to the hours during which
 the employee will actually be required to work "(w)hen the head of the
 agency knows in advance of an administrative workweek" that a schedule
 revision is necessary.  The Authority concluded in that case that the
 provision would prevent the agency head from revising an employee's work
 schedule unless the need to change the schedule was apparent not less
 than two weeks prior to the rescheduling.  Consequently, as the instant
 proposal would, in certain circumstances, also prevent the Agency from
 complying with a Government-wide regulation, it is, based on Sharpe Army
 Depot, and U.S. Army Garrison, Fort Detrick, outside the duty to bargain
 pursuant to section 7117(a)(1) of the Statute.  /2/
    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., September 30, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency, in its Statement of Position, withdrew its allegation
 of nonnegotiability with respect to a provision of the negotiated
 agreement captioned "OVERTIME." The issue as to this provision,
 therefore, has been rendered moot.  Additionally, in its Reply Brief,
 the Union withdrew its request for a negotiability determination as
 regards a provision of the negotiated agreement captioned "EQUAL
 EMPLOYMENT OPPORTUNITY." Consequently, the issues as to these two
 provisions will not be considered further herein.
    /2/ This conclusion is not altered by the Union's contentions that
 OPM's interpretation of the application of 5 CFR 610.121 is violative of
 the Fair Labor Standards Act, 29 U.S.C. 201 et seq. and that the
 provision herein essentially constitutes a "procedure," i.e., does not
 prevent the Agency from "acting at all" as regards its reserved
 management rights.  Virtually identical arguments were raised by the
 union and not sustained by the Authority in Sharpe Army Depot, supra.
 Consequently, the contentions in the instant case also cannot be