[ v20 p811 ]
The decision of the Authority follows:
20 FLRA No. 101 DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, HEADQUARTERS XVIII AIRBORNE CORPS AND FORT BRAGG, FORT BRAGG, NORTH CAROLINA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770, AFL-CIO Charging Party Case No. 4-CA-40644 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, the General Counsel's brief, an amicus curiae brief filed by the Office of Personnel Management (OPM), /1/ and a response to the amicus curiae brief submitted by the American Federation of Government Employees, AFL-CIO (AFGE), the Authority finds: The amended complaint essentially alleges that the Department of Defense, Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /2/ by its failure and refusal to negotiate in good faith with the American Federation of Government Employees, Local 1770, AFL-CIO (the Union) over a proposal which the Authority previously found to be negotiable. The Union is the exclusive representative of certain of the Respondent's employees located at Fort Bragg, North Carolina. On or about October 28, 1983, the Respondent's Civilian Personnel Officer notified the Union's President of a proposed change in its regulations concerning, inter alia, the scheduling of employees' workweeks. The Respondent indicated that the proposed change, which was to be implemented on November 16, 1983, was required to implement FPM Bulletin No. 550-48 (Feb. 17, 1983). /3/ It essentially gave managers and supervisors the right, when it was known in advance of an administrative workweek that an employee's tour of duty during an ensuing week would differ from that already scheduled, to reschedule the employee's tour of duty to correspond with the duty hours for the ensuing administrative workweek. By letter dated November 10, 1983, the Union requested the Respondent to bargain concerning the impact and implementation of the proposed change prior to its implementation. Subsequently, by letter dated January 10, 1984, the Union submitted proposals concerning the subject change. Thereafter, the parties met for a bargaining session on March 1, 1984, during which the Union submitted a proposal concerning advance notice of changes in the employees' basic workweek. By letter to the Union dated March 16, 1984, the Respondent summarized the parties' negotiations on the matter herein, and stated, among other things, that the parties disagreed on two issues, one of which concerned "the length of the advance notice when the Employer reschedules an employee's regularly scheduled administrative workweek (AW) . . . ." The letter also included the Respondent's final proposal on the matter, which stated: When the Employer knows in advance of the AW that a requirement exists for an employee's specific days and/or work hours to differ from those in the current AW, the Employer will reschedule the employee's regularly scheduled AW to correspond with the actual work requirements. The employee shall be verbally informed of his/her revised schedule and the reasons for the revision as early as is known, but not later than the Friday preceding the beginning of the AW. (Emphasis in original.) The Respondent stated that the underlined portion could not be negotiated because it represented a management decision on the advance notice period. Thereafter, by letter dated April 9, 1984, the Union in reply to the Respondent's letter of March 16, 1984, proposed the following: In cases where an appropriate level of Management (Division Chief or higher) knows sufficiently in advance that a requirement exists for a specific employee's basic workweek to differ from his/her normal basic workweek, the official may reschedule the employee's basic workweek to correspond with actual work requirements. In such cases the following procedures will apply: a. Except in emergency situations, the employee will be informed of the change at least 10 days in advance of the revised basic workweek. (Emphasis added.) On or about June 14, 1984, the parties met with a mediator concerning the matter. During such meeting, the Union gave the Respondent a copy of the Authority's decision in National Association of Government Employees and Department of the Interior, 14 FLRA 280 (1984), wherein the Authority found negotiable a proposal similar to the disputed (underlined) portion of the Union's proposal herein. On the same day, the Respondent, notwithstanding the Authority's decision previously mentioned, declared the Union's proposal of April 9, 1984, described above, to be nonnegotiable. The Respondent was acting in this regard consistent with directions from the Department of Defense and the Department of the Army. The General Counsel argues that the Respondent, by declaring nonnegotiable a proposal which the Authority previously found to be within the duty to bargain, refused to bargain in good faith with the Union and thus violated section 7116(a)(1) and (5) of the Statute. In this regard, the General Counsel contends that the underlined portion of the Union's proposal, set forth above, is negotiable based upon Authority law as it existed in 1984, and therefore the Respondent's contention that such proposal is nonnegotiable and its resulting refusal to bargain violated the Statute. OPM, in its amicus curiae brief, essentially contends that the Respondent's failure to bargain with the Union over the proposal involved herein was not violative of the Statute because such proposal conflicts with a Government-wide regulation, 5 C.F.R. Section 610.121(b), and therefore is nonnegotiable. /4/ On the other hand, AFGE asserts in its reply brief that the proposal herein is not inconsistent with the Government-wide regulation mentioned above, but instead is negotiable as "procedures" and "appropriate arrangements" pursuant to section 7106(b)(2) and (3) of the Statute. /5/ AFGE also contends that OPM's interpretation of 5 C.F.R. Section 610.121(b) renders its application in violation of law, namely the Occupational Safety and Health Act (OSHA), 29 U.S.C. Section 651 et seq., the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq., the Alternate Work Schedules Act, 5 U.S.C. Section 6120 et seq. and 5 U.S.C. Section 6101. The sole issue posed by the parties in this case concerns whether the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the proposal herein, which proposal, it is alleged, was not materially different from a proposal previously found negotiable by the Authority. In National Association of Government Employees and Department of the Interior, 14 FLRA 280 (1984), the Authority found negotiable a provision similar to the one at issue herein. Following the issuance of that decision, however, the Authority 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 the proposal therein (Provision 1) which also required two weeks advance notice of changes in tours of duty, to be inconsistent with an applicable Government-wide regulation and thus nonnegotiable. The Authority determined that 5 C.F.R. Section 610.121(b) (1984) obligates an agency head to revise an employee's administrative workweek to comport with 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 such revision is necessary. Thus, the Authority concluded that, as the disputed provision would prevent the agency head from revising employees' work schedules unless he or she became aware of the need to change work schedules not less than two weeks prior to the rescheduling, such provision was inconsistent with a Government-wide regulation and therefore outside the duty to bargain. See also American Federation of Government Employees, AFL-CIO, Local 900 and Department of the Army, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administrative Center, St. Louis, Missouri, 18 FLRA No. 6 (1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 900 v. FLRA, No. 85-1406 (D.C. Cir. July 3, 1985); National Federation of Federal Employees, Local 687 and Department of the Air Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base, California, 19 FLRA No. 78 (1985) (Union Proposal 2); and American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985) (Union Provision 1), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No. 85-1689 (D.C. Cir. October 21, 1985). Therefore, since the instant proposal would also, in certain circumstances, prevent the Respondent from complying with a Government-wide regulation, the Authority finds, based on the rationale contained in U.S. Army Garrison, Fort Detrick, that the subject proposal is outside the duty to bargain pursuant to section 7117(a)(1) of the Statute /6/ and thus the Respondent's refusal to bargain with respect thereto did not constitute a violation of section 7116(a)(1) and (5) of the Statute. Contrary to the contentions of the General Counsel and AFGE and without determining whether or not the subject proposal is without material difference from the proposal found negotiable in National Association of Government Employees and Department of the Interior, 14 FLRA 280 (1984), the proposal does not constitute a "procedure" or an "appropriate arrangement" within the meaning of section 7106(b)(2) and (3) of the Statute. /7/ In this regard, it is noted that section 7106(b)(2) and (3) expressly applies only where management is exercising one of the management rights set out elsewhere in section 7106. The subject proposal, as noted above, is outside the duty to bargain not because it is inconsistent with an enumerated management right but, rather, because it is inconsistent with an applicable Government-wide regulation. Therefore, as section 7106(b)(2) and (3) is not applicable in these circumstances, the assertion that the subject proposal constitutes a "procedure" or "appropriate arrangement" cannot be sustained. Further, as to the contentions that the application of the Government-wide regulation is contrary to law and other regulations, virtually identical arguments have previously been rejected by the Authority. See Sharpe Army Depot, 19 FLRA No. 118 (1985). Finally, to the extent that the Respondent here asserted that the subject proposal is outside the duty to bargain prior to the rulings by the Authority concerning the applicable Government-wide regulation, the Authority has earlier held in similar circumstances that while an agency acts at its peril when it refuses to negotiate on proposals similar to proposals previously found negotiable by the Authority, an unfair labor practice will not be found where subsequently established law supports the agency's position. See Office of Personnel Management, 17 FLRA No. 41 (1985). ORDER IT IS ORDERED that the complaint in Case No. 4-CA-40644 be, and it hereby is, dismissed. Issued, Washington, D.C., December 11, 1985 /s/ Henry B. Frazier III, Acting Chairman /s/ William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY ------------------- FOOTNOTES$ ---------------- (1) OPM was granted permission to participate in this proceeding as amicus curiae pursuant to section 2429.9 of the Authority's Rules and Regulations. (2) Section 7116(a)(1) and (5) provides: Section 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency -- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) (3) In this Bulletin, OPM notified agencies of a change in the Federal Personnel regulations (5 CFR Parts 550 and 610) concerning pay administration and hours of duty. More specifically, OPM informed agencies that the regulations were being revised to clarify the definition of the term "regularly scheduled" and to clarify the relationship between an agency's requirement to establish workweeks for its employees and an employee's entitlement to premium pay for that work. (4) 5 C.F.R. Section 610.121(b) (1984) provides, in pertinent part: . . . . . . . (2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work. (5) Section 7106(b)(2) and (3) provides: Section 7106. Management rights . . . . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating -- . . . . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. (6) Section 7117 provides, in pertinent part: Section 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. (7) See also American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 15 FLRA No. 158 (1984) (Union Proposal 2).