[ v20 p811 ]
20:0811(101)CA
The decision of the Authority follows:
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).