20:0811(101)CA - DOD, Army HQ XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 -- 1985 FLRAdec CA

 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).