25:0958(78)NG - AFGE Local 1546 and Army, Sharpe Army Depot, Lathrop, CA -- 1987 FLRAdec NG
[ v25 p958 ]
25:0958(78)NG
The decision of the Authority follows:
25 FLRA No. 78
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1546
Union
and
DEPARTMENT OF THE ARMY
SHARPE ARMY DEPOT
LATHROP, CALIFORNIA
Agency
Case No. 0-NG-1015
(19 FLRA No. 118)
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 provision of a negotiated
agreement disapproved by the Agency head pursuant to section 7114(c) of
the Statute is within the duty to bargain under the Federal Service
Labor-Management Relations Statute (the Statute):
Article XI, Hours of Work; Section 6, Change in Tour of Duty
The employer agrees to provide two weeks notice to employees in
the event changes in work shifts are required. For changes that
may be required by emergencies, employees will be provided as much
advance notice as practical, and will continue on the shift only
for time necessary. (Only the underscored portion is in dispute.)
II. Background
In the previous decision in this case, American Federation of
Government Employees, Local 1546 and Department of the Army, Sharpe Army
Depot, Lathrop, California, 19 FLRA No. 118 (1985) the Authority
determined that the provision was nonnegotiable because it 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). In reaching this conclusion the
Authority relied upon its earlier decision in American Federation of
Government Employees, Local 2484 and U.S. Army Garrison, Fort Detrick,
Maryland, 17 FLRA 769. In that decision the Authority concluded 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
employee's work schedule would be necessary.
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 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 requirement 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 provision in this case requires the Agency to provide two weeks
notice of changes in tours of duty except in emergencies. The Union
argues that the provision is a negotiable procedure under section
7106(b)(2) or an appropriate arrangement under section 7106(b)(3). The
Union, in its response to the amicus brief filed by OPM in this case,
also claims that OPM's interpretation of 5 C.F.R. Section 610.121
violates the Occupational Safety and Health Act (29 U.S.C. Section 651
et seq.), the Fair Labor Standards Act, (29 U.S.C. Section 201 et seq.),
5 U.S.C. Section 6101, and 5 U.S.C. Section 6120 et seq. which concerns
flexible and compressed work schedules.
The Union's contentions cannot be sustained. In our view this
provision is to the same effect as Proposal 1 found nonnegotiable in
Scott Air Force Base, which required the agency to give 14 days notice
before changing work schedules except in emergencies. We determined
that the exception to the notice period set forth in the proposal was
too narrow. We found that the terms defining the statutory (5 C.F.R.
Section 6101(a)(3)(A)) and regulatory (5 C.F.R. Section 610.121(a))
exceptions were broader than the term "emergency" used in the proposal.
We noted that situations falling within the scope of applicable law and
regulation -- circumstances which would seriously handicap an agency in
accomplishing its functions or would substantially increase costs --
would not necessarily constitute "emergencies." We concluded therefore,
that Proposal 1 was inconsistent with law and regulation. See
International Association of Aerospace Workers, Local Lodge 2424 and
Department of the Army, Aberdeen Proving Ground, Aberdeen Proving
Ground, Maryland, 24 FLRA No. 55 (1986). Based on the reasons set forth
in Scott Air Force Base, we find this provision is also inconsistent
with law and Government-wide regulation and thus, outside the duty to
bargain under section 7117(a)(1) of the Statute.
This conclusion is not changed by the Union's additional claims that
the OPM regulation violates law or that the provision constitutes a
"procedure" or "appropriate arrangement." Under section 7117 of the
Statute, we do not rule on the validity of a Government-wide regulation.
American Federation of Government Employees v. FLRA, 794 F.2d 1013 (5th
Cir. 1986) enforcing American Federation of Government Employees,
AFL-CIO, National Council of Grain Inspection Locals and Department of
Agriculture, Federal Grain Inspection Service, 18 FLRA No. 70 (1985).
Further, since sections 7106(b)(2) and (3) apply only when management
exercises one of the reserved rights set out elsewhere in section 7106
is it unnecessary to address the Union's claim that the provision
constitutes a "procedure" or an "appropriate arrangement." 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 27, 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.
APPENDIX
/1/ 5 C.F.R. Section 610.121 provides, in pertinent part:
Section 610.121 Establishment of work schedules.
(a) Except when the head of an agency determines that the
agency would be seriously handicapped in carrying out its
functions or that costs would be substantially increased, he or
she shall provide that --
(1) Assignments to tours of duty are scheduled in advance of
the administrative workweek over periods of not less than 1 week;
(2) The basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive(.)
. . . . . . .
(b)(1) The head of an agency shall schedule the work of his or
her employees to accomplish the mission of the agency. The head
of an agency shall schedule an employee's regularly scheduled
administrative workweek so that it corresponds with the employee's
actual work requirements.
(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.
. . . . . . .
/2/ 5 U.S.C. Section 6101(a)(3)(A) and (B) provides as follows:
Section 6101. Basic 40-hour workweek; work schedules;
regulations
(a)(3) Except when the head of an Executive agency, a military
department, or of the government of the District of Columbia
determines that his organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased, he shall provide, with respect to each employee in his
organization, that --
(A) assignments to tours of duty are scheduled in advance over
periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive(.)