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24:0502(55)NG - IAM Local Lodge 2424 and Army, Aberdeen Proving Ground, Aberdeen Proving Ground, MD -- 1986 FLRAdec NG

[ v24 p502 ]
The decision of the Authority follows:

 24 FLRA No. 55
                                            Case No. 0-NG-1294
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents an issue
 concerning the negotiability of a single Union proposal.  For the
 reasons set forth below, we find the proposal to be nonnegotiable.
                            II.  Union Proposal
    Tours of duty will be established at least two weeks in advance, will
 continue for a period of at least two pay periods, and will be announced
 in writing and once made, will not be changed unless two (2) weeks
 notice is given.  The commanding Officer may make exceptions to this
 requirement when circumstances preclude compliance or exceptions may be
 made when agreed to by the employee.  Exceptions will not be made,
 however, where the change in tour is for the purpose of avoiding or
 creating the necessity for payment of overtime, night differential,
 Sunday or holiday pay.  The announcement of the tour will identify the
 calendar days and the hours of each day comprising each tour.  Copies of
 the announcement will be posted in conspicuous places, readily
 accessible to all affected employees.
                      III.  Positions of the Parties
    The Agency contends that the proposal is nonnegotiable under section
 7117(a)(1) of the Statute because it conflicts with 5 CFR Section
 610.121(b)(2), a Government-wide regulation.  In support of its
 position, the Agency cites the Authority's decisions in American
 Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army
 Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985);  and National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986).
    The Union contends that the proposal is negotiable because it does
 not prevent the Agency from making changes in tours of duty and asserts
 that the proposal is not inconsistent with any law, rule or regulation.
                       IV.  Analysis and Conclusion
    The proposal would require the Agency to give two weeks' notice
 before establishing or changing employee tours of duty;  permit changes
 in the notice requirement to be made by the commanding officer "when
 circumstances preclude compliance" or by employee agreement;  and
 prohibit tour of duty changes where the purpose of the change is to
 avoid or create the need for payment of overtime, night differential,
 Sunday or holiday pay.  The issue is whether this limitation would
 impermissibly restrict the Agency's right, under statutory and
 regulatory authority, to revise employee work schedules.
    In National Association of Government Employees, Local R7-23 and
 Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No.
 97 (1986), we held that Proposal 1, which required the agency to give 14
 days notice before changing work schedules, except in emergencies, was
 outside the duty to bargain.  Specifically, we found that applicable
 law, 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a)(2),
 provides a minimum 7-day notice period except where (1) the agency would
 be handicapped in carrying out its mission, or (2) costs would be
 substantially increased.  We determined that because Proposal 1 in that
 case restricted the Agency's ability to revise work schedules within the
 7-day notice period to emergencies, it was narrower than the exceptions
 permitted under the statutory framework, and therefore, inconsistent
 with law and regulation.
    The proposal in this case is to the same effect as the proposal in
 Scott Air Force Base.  While this proposal permits the commanding
 officer in some situations to make changes in tours of duty without two
 weeks' notice, it establishes, in certain circumstances, a two-week
 notice period which must expire before the Agency would be permitted to
 revise employee tours of duty.  As explained by the Union, and as
 indicated in the record, the restriction is intended to be absolute.
 Since the proposal does not incorporate the statutory and regulatory
 exceptions to the notice period, it is inconsistent with law and
 Government-wide regulation.
    For the reasons set forth above and in Scott Air Force Base, ee find
 the proposal to be outside the duty to bargain under section 7117(a)(1)
 of the Statute.
                                 V.  Order
    Pursuant to section 2424.10 of the Authority's Rules and Regulations,
 the Union's petition for review is dismissed.
    Issued, Washington, D.C. December 17, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY