20:0686(79)NG - AFGE Local 2484 and Army, Fort Detrick, MD -- 1985 FLRAdec NG

 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.