25:0908(75)NG - AFGE Local 2484 and Army Garrison, Fort Detrick, MD -- 1987 FLRAdec NG

[ v25 p908 ]
The decision of the Authority follows:

 25 FLRA No. 75
                                            Case No. 0-NG-898 
                                             (17 FLRA 769)
                       DECISION AND ORDER ON REMAND
                         I.  Statement of the Case
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The question involved is whether the following two provisions of a
 negotiated agreement disapproved by the Agency head pursuant to section
 7114(c) of the Statute are within the duty to bargain under the Federal
 Service Labor-Management Relations Statute (the Statute):
                                Provision 1
          Article XI, Section 2 When applicable laws and regulations
       change the tour of duty, employees will be given two (2) weeks
       notice in advance of the change.  Each employee will receive
       written notification of the new tour of duty, their schedule and
       the effective date of the change.
                                Provision 2
          Article XI, Section 4 A reasonable and equitable effort will be
       made to rotate employees' non-workdays among different work shifts
       to be effective at the end of each work period.  The rotation
       schedule shall be posted not less than one pay period in advance
       of shift changes and will show thereon the assigned hours and rest
       days of each employee affected.
                              II.  Background
    In the previous decision in this case, American Federation of
 Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort
 Detrick, Maryland, 17 FLRA 769 (1985), the Authority determined that the
 two provisions were nonnegotiable because they would, in certain
 circumstances, prevent the Agency from complying with 5 C.F.R. Section
 610.121(b) /1/ -- a Government-wide regulation issued by the Office of
 Personnel Management (OPM).  The Authority reasoned that the OPM
 regulation required an agency to change an employee's work schedule as
 soon as the agency became aware that such a change in the schedule would
 be necessary.  The Authority determined that the disputed provisions
 would prevent the agency from taking steps required by the regulations
 to change an employee's schedule unless the agency had become aware of
 the need to change work schedules not less than two weeks or one pay
 period prior to the rescheduling.  Thus, the Authority concluded that
 the provisions were inconsistent with the OPM regulations.
    The Union's appeal of the Authority's previous decision in this case
 to the U.S. Court of Appeals for the District of Columbia Circuit was
 pending when we reconsidered the basis of the Fort Detrick decision 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)
 (Proposal 1).  In Scott Air Force Base, we stated that 5 U.S.C. Section
 6101(a)(3)(A), /2/ provides that an agency shall schedule employees'
 tours of duty not less than seven days in advance, except where it is
 determined that the agency would be seriously handicapped in carrying
 out its functions or that costs would be substantially increased.  5
 C.F.R. Section 610.121(a)(1) implements that statutory provision and
 contains essentially the same language.  In Fort Detrick, the Authority
 interpreted 5 C.F.R. Section 610.121(b)(2) as requiring an agency to
 change employee work schedules as soon as it became aware that such a
 change would be necessary.  Upon further review, we concluded in Scott
 Air Force Base that this interpretation did not fully take into account
 the statutory reqjirement that work schedules may be revised less than
 seven days in advance only where it is necessary to prevent the agency
 from being handicapped in the execution of its functions or to forestall
 a substantial increase in operational costs.  In other words,
 interpreting 5 C.F.R. Section 610.121 as a whole, employees must have a
 minimum of seven days advance notice of a change in work schedules
 unless the Agency would be seriously handicapped in carrying out its
 functions or costs would be substantially increased.
    In view of our decision in Scott Air Force Base, we requested the
 D.C. Circuit to remand the instant case to us for further consideration
 in light of that decision.  On November 17, 1986, the D.C. Circuit
 granted our unopposed request.  American Federation of Government
 Employees, Local 2484 v. Federal Labor Relations Authority, No. 85-1405
 (D.C. Cir. Nov. 17, 1986).
                       III.  Analysis and Conclusion
    The provisions in this case require the Agency to provide two weeks
 notice (Prov ision 1) or one pay period notice (Provision 2) of a change
 in an employee's work schedule.  The Union argues that the provisions
 are either consistent with law or concern matters which are negotiable
 at the election of the Agency and cannot be disapproved under section
 7114(c).  These contentions cannot be sustained.  There is nothing in
 the express language of either provision or in the record in the case
 which indicates that the Agency would be permitted to change work
 schedules without the required notice even in circumstances when the
 Agency determined that the requirements of 5 U.S.C. Section
 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) were met.  That is, even
 if the Agency determined that it would be seriously handicapped in
 carrying out its functions or that costs would be substantially
 increased if it did not change work schedules, for example, to avoid
 overtime, these provisions preclude such changes.  Thus, as these
 provisions are inconsistent with law and Government-wide regulation,
 they are outside the duty to bargain under section 7117(a)(1) of the
 Statute.  Since sections 7106(b)(2) and (3) apply only when management
 exercises one of the reserved rights set out elsewhere in section 7106
 it is unnecessary for us to address the Union's claim that the
 provisions constitute "procedures" or "appropriate arrangements." See
 National Federation of Federal Employees, Local 29 and Department of the
 Army, Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986).
                                IV.  Order
    The petition for review is dismissed.
    Issued, Washington, D.C., February 26, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) For the text of the pertinent portions of 5 C.F.R. Section
 610.121 see the Appendix attached to this decision.
    (2) For the text of 5 U.S.C. Section 6101(a)(3)(A) see the Appendix
 attached to this decision.