[ v20 p498 ]
The decision of the Authority follows:
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.