U.S. Federal Labor Relations Authority

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32:0404(61)NG - - AFGE Local 2024 and Navy, Portsmouth Naval Shipyard, Portsmouth, NH - - 1988 FLRAdec NG - - v32 p404

[ v32 p404 ]
The decision of the Authority follows:

32 FLRA No. 61







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). It concerns a proposal which would require: (1) tours of duty to be scheduled in advance covering no less than 3 consecutive weeks; and (2) basic workweeks of Monday through Friday except for employees whose services will be required on a Saturday or Sunday for at least 3 consecutive weeks. We find that the proposal is nonnegotiable because it conflicts with law, 5 U.S.C. § 610l, and Government-wide regulation, 5 C.F.R. § 610.121.

II. The Proposal

Article 11, Hours of Work, Section 1.

The Employer agrees to the following:

a. Except as provided in Section 3 below, assignments or changes to tours of duty shall be scheduled in advance and shall cover a period of not less than three (3) consecutive weeks.

b. The administrative workweek shall be seven (7) consecutive days, Sunday through Saturday. The basic workweek shall be scheduled on five (5) days which shall be Monday through Friday and the two (2) days outside the basic workweek shall be consecutive. However, basic workweeks of other than Monday through Friday may be established at the discretion of the Employer when it is known that the services of employees will be required on a Saturday or Sunday for three (3) consecutive workweeks or more.

c. The regular hours of work for the day shift shall be 0730 to 1600 and/or 0750 to 1620 hours with a thirty (30) minute lunch period. However, other day shift hours may be established when the Employer determines that they are necessary in order to effectively support or carry out work operations.

[Only the underscored portions are in dispute.]

III. Positions of the Parties

The Agency contends that the underscored portions of the proposal conflict with 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(a) and (b) by preventing the Agency from revising work schedules in circumstances where revision with less than 7 days' advance notice is necessary to avoid (1) serious handicap to the Agency in carrying out its functions or (2) substantial increase in costs.

The Union states that the proposal is intended to: (1) reflect a general description of the administrative workweek and normal daily hours of work of bargaining unit employees, and (2) provide stability in assignment to work shifts. The Union cites Article 1, section 1, of the contract which, it states, provides as follows:

It is agreed and understood that in the administration of all matters covered by this AGREEMENT, the Employer and the Union are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the AGREEMENT was approved; and by subsequently published agency policies and regulations required by law or by the terms of a controlling agreement at a higher agency level in accordance with Public Law 95-454.

The Union argues that when read in the context of Article 1, section 1, the disputed proposal does not prevent the Agency from complying with requirements applicable to the administration of work schedules.

The Union also argues that a Government-wide regulation should not bar negotiation of a proposal which concerns a matter which Congress intended to be negotiable by operation of sections 7103 and 7106(b)(3) of the Statute. The Union contends that because this proposal is negotiable under those sections, the Office of Personnel Management (OPM) regulation on which the Agency relies--5 C.F.R. § 601.121(a) and (b)--should not be allowed to render the proposal nonnegotiable.

IV. Analysis and Conclusions

"Tour of duty" means the hours of a day and days of an administrative workweek that constitute an employee's regularly scheduled administrative workweek. 5 C.F.R. § 610.102(h). Under 5 U.S.C. § 6101, agency heads are required to schedule assignments to tours of duty not less than 7 days in advance. An exception to this requirement applies where the agency head determines that the organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased.

The provisions of 5 U.S.C. § 610l are implemented by regulations issued by OPM. Those regulations mirror the above-described statutory requirement. 5 C.F.R. § 610.121(a). Additionally, those regulations require that the head of an agency schedule the work of employees to accomplish the agency's mission and that the employees' regularly scheduled administrative workweek be scheduled so that it corresponds with the employees' work requirements. 5 C.F.R. § 610.121(b)(1). The regulations require that when the agency head knows in advance of an administrative workweek that the specific days and/or hours of a day actually required will differ from those in the current workweek, he/she shall reschedule the regularly scheduled workweek to correspond with the actual requirements. 5 C.F.R. § 610.121(b)(2).

Chapter 61 of title 5, U.S. Code, governs "Hours of Work" for virtually all employees in Executive agencies and military departments. 5 U.S.C. § 6101(c) assigns to OPM responsibility for promulgating regulations, subject to the approval of the President, necessary for administration of the 40-hour workweek and work schedules as they affect employees "in or under an Executive agency." Pursuant to this legislative mandate, OPM issued regulations which are codified at Part 610, title 5, Code of Federal Regulations. These regulations, which include the section relied on by the Agency, pertain to employees in or under an Executive agency with certain exceptions not relevant here and govern hours of duty including weekly and daily scheduling of work. See 5 C.F.R. § 610.101. In these circumstances, we conclude that the cited regulations are "Government-wide," within the meaning of section 7117(a)(1), in that they are applicable generally to the employees in the competitive and excepted service and are binding on heads of Executive agencies. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 751-55 (1980).

The Union argues that it intends the proposal only to set forth a "norm" and not to prevent the Agency from making changes in tours of duty when necessary to comply with applicable laws and regulations. The wording of the proposal does not reflect this stated intent.

The proposal requires tour of duty assignments to cover a period of not less than 3 consecutive weeks. The qualifier "normally," on which the Union relies to support its contention that the proposal allows compliance with legal and regulatory requirements, appears only in conjunction with the provisions relating to the establishment of a Monday through Friday basic workweek (subsection (b)) and the hours of work of the day shift (subsection (c)). The proposed requirement that tour of duty assignments be established and maintained for a period of 3 consecutive weeks is not qualified in any way. That requirement restricts the Agency's ability to change tour of duty assignments. The proposal allows no exception to this 3-week requirement under the circumstances specified in 5 U.S.C. § 6101 and 5 C.F.R. § 610.121(a) and (b): where serious handicap or substantial cost increase are involved.

The Union could have drafted its proposal to reflect its stated intent. It has not done so. If a proposal is written so that it includes matters to which the Agency cannot lawfully agree, the Agency has no obligation to negotiate over it. See Overseas Education Association v. FLRA, 827 F.2d 814, 818 (D.C. Cir. 1987).

The Union's assertion that other contract provisions would prevent the proposal from being administered in a manner which is contrary to law or Government-wide regulation does not alter this conclusion. A proposal which is inconsistent with law or Government-wide regulation is nonnegotiable under section 7117 of the Statute.

The proposal conflicts with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121(a) and (b) because it would require the Agency to establish and maintain tour of duty assignments for a minimum of 3 consecutive weeks without regard to whether such work schedules would seriously handicap the Agency in carrying out its functions or result in substantial increases in costs. Therefore, it is nonnegotiable. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400 (1987) (Proposal 10); and National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753 (1986) (Proposal 1).

We reject the Union's argument that the proposal is negotiable under the rationale set forth in our decision on Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380 (1987) (Member Frazier dissenting), petition for review filed sub nom. Office of Personnel Management v. FLRA, No. 87-1726 (D.C. Cir. Nov. 27, 1987). We held that the proposal at issue in that case conflicted with management's right to select under section 7106(a)(2)(C), but that it constituted an appropriate arrangement under section 7106(b)(3). Next, in addressing the agency's claim that the proposal was nonnegotiable because it conflicted with a Government-wide regulation--Requirement 4, of section 1-4 of Federal Personnel Manual (FPM) chapter 335--we held that since the Government-wide regulation involved essentially restated management's right to select under section 7106, it should not constitute a greater bar to bargaining than the statutory right itself.(*)

Unlike Requirement 4, the OPM regulation involved in this case does not restate a management right under section 7106. Rather, the OPM regulation--5 C.F.R. § 610.121-- implements statutory provisions of 5 U.S.C. § 6101 relating to workweeks and work schedules. Consequently, the reasoning underlying our decision in Office of Personnel Management does not apply here.

V. Order

The petition for review is dismissed.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

(If blank, the decision does not have footnotes.)

*/ Chairman Calhoun also held that bargaining over the proposal at issue in the case was consistent with the Agency's discretion under subchapter 1-5(c) of FPM chapter 335.