20:0498(56)NG - AFGE Local 1909 and DOD, Army, Army Training Center and Fort Jackson, SC -- 1985 FLRAdec NG

 20 FLRA No. 56
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 1909
 Union 
 
 and 
 
 DEPARTMENT OF DEFENSE, 
 DEPARTMENT OF THE ARMY, 
 U.S. ARMY TRAINING CENTER AND 
 FORT JACKSON, SOUTH CAROLINA 
 Agency 
 
                                            Case No. 0-NG-1168
 
                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 two provisions of a negotiated agreement
 which were disapproved by the Agency head pursuant to section 7114(c) of
 the Statute.  Upon careful consideration of the entire record, including
 the parties' contentions, the Authority makes the following
 determinations.
 
                             Union Provision 1
 
          ARTICLE 10, Section 5.
 
          All tours of duty shall be established or changed at least two
       weeks in advance, shall continue for a period of at least two pay
       periods, and shall be announced in writing.  The commander or his
       designee may make exceptions to this requirement when unusual
       circumstances preclude compliance.
 
                             Union Provision 2
 
          Article 10, Section 4.
 
          All schedule tours of duty and/or hours of work, including
       establishment of or changes thereto, shall be announced to the
       affected employees in writing at least one week in advance and if
       practicable, two weeks in advance.  It is recognized that changes
       in schedules may be required because of emergency situations;
       however, the Employer will make every effort to avoid last minute
       changes in duty schedules.  Provisions of this section do not
       apply in the case of employees assigned as relief personnel.
 
    Union Provision 1 would require the Agency to provide employees with
 advance notice of two weeks before establishing or changing tours of
 duty.  However, by its terms, Union Provision 2 would only require the
 Agency to provide advance notice of one week ("and if practicable, two
 weeks") before establishing or changing tours of duty.  Hence, these
 provisions, presented by the Union as alternatives, would essentially
 require the Agency to provide advance notice of two weeks and one week,
 respectively, before establishing or changing tours of duty.  In this
 regard, the disputed provisions herein are to the same effect as Union
 Provision 1 in American Federation of Government Employees, Local 1546
 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19
 FLRA No. 118(1985), which also required the agency to provide employees
 with two weeks advance notice of changes in tours of duty 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 provisions would, in certain
 circumstances, also prevent the Agency from complying with a
 Government-wide regulation, they are, 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.  /1/
 
    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., October 15, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ This conclusion is not altered by the Union's contentions that
 these provisions constitute "procedures" or "appropriate arrangements"
 pursuant to sections 7106(b)(2) and (b)(3) of the Statute or that OPM's
 interpretation of the regulation renders its application violative of
 law, namely, the Occupational Safety and Health Act, 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. 6120 et seq. and 5 U.S.C. 6101.  Virtually
 identical arguments were raised by the union and not sustained by the
 Authority in Sharpe Army Depot.  Consequently, the contentions in the
 instant case also cannot be sustained.