[ v17 p769 ]
17:0769(106)NG
The decision of the Authority follows:
17 FLRA No. 106
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2484
Union
and
U.S. ARMY GARRISON,
FORT DETRICK, MARYLAND
Agency
Case No. O-NG-898
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents issues
concerning the negotiability of two provisions of a negotiated agreement
disapproved by the Agency head pursuant to section 7116(c) of the
Statute. /1/
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 employee's 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.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The Agency's disapproval of both of these provisions is based on the
asserted conflict with regulations promulgated by the Office of
Personnel Management (OPM), 5 CFR 610.121 (1984), /2/ which the Agency
contends are Government-wide in effect. The regulation requires,
insofar as is here pertinent, that when management knows in advance of
an administrative workweek that the actual hours to be worked by an
employee will differ from those scheduled in the upcoming administrative
workweek, the administrative workweek will be rescheduled to reflect the
actual hours to be worked. The regulation also requires that the
affected employee will be notified of the change. Failure on the part
of management to adhere to these requirements will result in payment to
the concerned employee of premium pay for the hours actually worked, in
accordance with other governing regulations.
Chapter 61 of Title 5, U.S. Code governs "Hours of Work" for
virtually all employees in Executive agencies and military departments.
It prescribes, inter alia, that assignments to tours of duty be made in
advance over periods of not less than one week, unless such scheduling
would handicap an agency in executing its functions. 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 the legislative mandate, OPM issued
the cited regulations which likewise govern, inter alia, "work
schedules" and are applicable, with minor exceptions not relevant here,
"to each employee in or under an Executive agency." In light of these
circumstances, it is concluded that the cited regulations are
"Government-wide," within the meaning of section 7117(a)(1), in that
they are applicable generally to employees in the competitive and
excepted service and are binding on heads of Executive agencies, absent
a determination that their application will impede the agency in
carrying out its functions, as provided by 5 U.S.C. 6101(a)(3). See
American Federation of Government Employees, AFL-CIO, Local 2302 and
Department of the Army, Army Armor Center, Fort Knox, Kentucky, 16 FLRA
No. 6 (1984).
5 CFR 610.121(b)(2) 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. In this regard, the Agency states:
Thus, if the agency knows one day prior to the beginning of the
administrative workweek that actual work requirements and the
regular schedule will differ, the regularly scheduled
administrative workweek must be rescheduled. Unless this
information is available more than two weeks or a pay period in
advance, therefore, the notice required by these provisions cannot
be given without violating the requirements of the regulation.
Language requiring two weeks notice . . . except where the agency
learns of the change in work requirements less than two weeks or
one pay period before the beginning of the administrative workweek
would not violate the regulation. /3/ (Footnote added.)
The disputed provisions, as the Agency points out, would prevent the
Agency head from taking the steps required by the regulations unless he
or she became aware of the need to change work schedules not less than
two weeks or one pay period prior to the rescheduling. Because the
disputed provisions would, in certain circumstances, prevent the Agency
from complying with Government-wide regulations, pursuant to section
7117(a)(1) of the Statute, they are outside the duty to bargain. /4/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 7, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union's petition initially sought Authority review of the
Agency head's disapproval of five provisions. However, during the
pendency of this appeal the parties reached agreement on three
provisions and the Union withdrew its petition as to those provisions.
Accordingly only the two provisions on which an agreement was not
reached are examined here.
/2/ 5 CFR 610.121 provides, in pertinent part:
(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 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.
(3) If it is determined that the head of an agency should have
scheduled a period of work as part of the employee's regularly
scheduled administrative workweek and failed to do so in
accordance with paragraphs (b)(1) and (2) of this section, the
employee shall be entitled to the payment of premium pay for that
period of work as regularly scheduled work under Subpart A of Part
550 of this chapter. In this regard, it must be determined that
the head of the agency: (i) Had knowledge of the specific days
and hours of the work requirement in advance of the administrative
workweek, and (ii) had the opportunity to determine which employee
had to be scheduled, or rescheduled, to meet the specific days and
hours of that work requirement.
/3/ Agency Statement of Position at 2.
/4/ Cf. American Federation of Government Employees, AFL-CIO, Local
32 and Office of Personnel Management, 15 FLRA No. 158 (1984) (wherein
the agency did not raise the regulations as a bar to negotiation on a
similar proposal).