[ v25 p908 ]
25:0908(75)NG
The decision of the Authority follows:
25 FLRA No. 75
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2484
Union
and
U.S. ARMY GARRISON
FORT DETRICK, MARYLAND
Agency
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.
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(.)