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(.)