[ v20 p686 ]
The decision of the Authority follows:
20 FLRA No. 79 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2484 Union and DEPARTMENT OF THE ARMY, FORT DETRICK, MARYLAND Agency Case No. 0-NG-1087 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 Union proposal. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal Article 12, Section 4 a. The Employer reserves the right to schedule irregular tours of duty throughout the administrative workweek with hours of duty other than those specified for the basic workweek as established in Section 1 above. The preference of the majority of employees, determined jointly by Employer and the Union, on irregular tours of duty in each individual section will be considered by the Employer. In any case at least five (5) days advance notice will be given of any scheduled tour of duty change between rotating shifts. b. Any alteration to an established irregular tour of duty listed in Section 3 will be made only after two weeks advance written notice and the Union will be consulted prior to the decision to make the change. This does not preclude the Employer from taking whatever actions may be necessary to carry out the mission of the East Coast Telecommunications Center during situations of emergency. This proposal would essentially require the Agency to provide employees with advance notice of five days before changing scheduled rotating shifts and two weeks advance notice before altering an established irregular tour of duty. In this regard, the disputed proposal herein is 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 required 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 an agency knows in advance of an administrative workweek" that a schedule revision is necessary. The Authority concluded, in that case, that since 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, it was inconsistent with 5 CFR 610.121. Since the proposal in the instant case would likewise, in certain circumstances, prevent the Agency from revising an employee's work schedule to conform to the hours during which the employee will actually be required to work, it is also inconsistent with 5 CFR 610.121. This conclusion is not altered by the Union's additional arguments, raised in its response to the amicus brief filed by OPM, that the proposal constitutes a "procedure" or an "appropriate arrangement" 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. In this connection, the identical arguments were raised by the Union in Sharpe Army Depot, and not sustained by the Authority. Consequently, based on Sharpe Army Depot and U.S. Army Garrison, Fort Detrick, the disputed proposal in this case is outside the duty to bargain pursuant to section 7117(a)(1) of the Statute because, as noted above, it is inconsistent with a Government-wide regulation. 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., November 14, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- 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 the disputed proposal herein.