[ v19 p1016 ]
19:1016(118)NG
The decision of the Authority follows:
19 FLRA No. 118
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1546
Union
and
DEPARTMENT OF THE ARMY,
SHARPE ARMY DEPOT,
LATHROP, CALIFORNIA
Agency
Case No. O-NG-1015
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 raises issues
concerning the negotiability of three provisions /1/ of a negotiated
agreement which were disapproved by the Agency head pursuant to section
7114(c) of the Statute. /2/ Upon careful consideration of the entire
record, including the parties' contentions, the Authority makes the
following determinations.
As a preliminary matter, the Union contends that the instant appeal
is moot because the disputed contract provisions have gone into effect
via a "same day" execution and approval by the local level management
official. The Union's contention cannot be sustained. In this regard,
section 7114(c) of the Statute /3/ provides that a locally negotiated
collective bargaining agreement "shall be subject to the approval of the
head of the agency" and further, that if such approval is not obtained
within 30 days the locally executed agreement shall go into effect on
the 31st day. There is nothing in the language of the Statute, or in
its legislative history, which indicates that such approval authority
could not be delegated to officials within an agency but could only be
exercised personally by the head of the agency. Thus, the head of each
agency has the discretion to determine which agency officials within the
agency will have authority to approve or disapprove locally negotiated
collective bargaining agreements. In the instant case, the Agency has
clearly established that the Commander of Sharpe Army Depot, the local
management official who purportedly approved the locally negotiated
collective bargaining agreement on behalf of the Agency head, did not
have the delegated authority to approve or disapprove collective
bargaining agreements. That is, Army Regulation 690-700, Chapter 771,
paragraph 3-4(b)(11), a published Agency regulation which the Union
concedes is applicable herein, specifies the organizations within the
Department of the Army which may review and approve or disapprove
collective bargaining agreements. Sharpe Army Depot, the local activity
herein, is not included among the listed organizations. Therefore,
since the commander of Sharpe Army Depot did not have authority to
approve or disapprove collective bargaining on behalf of the head of the
Agency, his action in approving the locally negotiated agreement in this
case was invalid and did not bar the appropriate designee of the Agency
head from reviewing and disapproving portions of the locally negotiated
agreement. Consequently, as the disapproval of provisions of the
locally negotiated collective bargaining agreement was proper, the
instant negotiability appeal is not moot but is properly before the
Authority.
Union Provision 1
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 the time necessary. (Only the underscored portion is in
dispute.)
Union Provision 1 herein is to the same effect as Provision 1 in
American Federation of Government Employees, AFL-CIO, Local 2484 and
U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA No. 106 (1985),
which also required two weeks advance notice of changes in tours of duty
and which the Authority found to be inconsistent with an applicable
Government-wide regulation. In the cited case the Authority determined
that 5 CFR 610.121(b)(2) (1984) obligated 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
provision would prevent the Agency head from revising an employee's work
schedule unless he or she became aware of the need to change work
schedules not less than two weeks prior to the rescheduling, it was
inconsistent with a Government-wide regulation and outside the duty to
bargain. /4/ Therefore, since the instant provision would also, in
certain circumstances, prevent the Agency from complying with a
Government-wide regulation, it is, based on U.S. Army Garrison, Fort
Detrick, likewise outside the duty to bargain pursuant to section
7117(a)(1) of the Statute.
This conclusion is not altered by the contentions raised by the Union
in its response to the amicus brief filed by OPM concerning Union
Provision 1. In this respect, the Union first alleges that the
provision is negotiable, either as a "procedure" or as an "appropriate
arrangement," pursuant to sections 7106(b)(2) and (3) of the Statute.
/5/ In addition, the Union contends that OPM's interpretation of 5 CFR
610.121 renders its application in violation of law, namely, the
Occupational Safety and Health Act (OSHA), 29 U.S.C. 651, et seq., the
Fair Labor Standards Act, 29 U.S.C. 201 et seq., the Alternate Work
Schedules Act, 5 U.S.C. 6101.
Turning first to the Union's claim that the provision constitutes a
"procedure" or an "appropriate arrangement," it is noted that sections
7106(b)(2) and (3) expressly apply only when management is exercising
one of the management rights set out elsewhere in section 7106. In this
case, however, Provision 1 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 regulations.
Consequently, as sections 7106(b)(2) and (3) are not applicable in these
circumstances, the Union's claim that Provision 1 constitutes a
"procedure" or "appropriate arrangement" cannot be sustained.
We turn now to the Union's claim that application of 5 CFR 610.121
violates law. In this respect, the Union provides no support for its
contentions that application of 5 CFR 610.121, which has been in effect
in its present form since January 28, 1983, /6/ either has been
implemented or would be implemented in any manner in the bargaining unit
herein which is inconsistent with the Alternate Work Schedules Act, the
OSHA requirement to provide a safe and healthful work place or with the
Fair Labor Standards Act. /7/ Finally, the Union misconstrues the
requirements of 5 U.S.C. 6101. That is, 5 U.S.C. 6101(a)(3)(A) /8/ does
not establish a particular time period before a tour of duty is to
become effective. Rather, the clear language of section 6101(a)(3)
indicates that the tour of duty itself must extend over one week and
that assignments to such tours of duty are to be scheduled in advance.
In this connection, 5 CFR 610.121 implements the statutory requirement.
Consequently, the Union's claim that application of 5 CFR 610.121
violates law also cannot be sustained.
Union Provision 2
Article XXI, Contracting Out of Unit Positions; Section 3,
Contract Conversion
A conversion to a commercial activity (CA) operation shall not
be effected by the Employer until:
The Employer provides notification to the Union that the
Employer had been directed to study the feasibility for
contracting out;
The Employer provides the Union the opportunity to review the
comparative cost analysis. (Only the underscored portions are in
dispute.)
Union Provision 2 expressly would prohibit the Agency from
contracting out certain functions without first notifying the Union
"that the Employer had been directed to study the feasibility for
contracting out." The Union states that its intent, in terms of this
provision, is ". . . to require notification to the Union of cost
studies to the extent that the (OMB Circular) A-76 (in effect when a
particular contracting out action is taken) also required such studies."
/9/ The Authority, however, has consistently held that it will not base
a negotiability determination on a union's statement of intent which is
inconsistent with the express language of the disputed proposal. See
e.g., American Federation of Government Employees, AFL-CIO, Local 2955
and National Guard Bureau, Office of the Adjutant General, Des Moines,
Iowa, 5 FLRA 617 (1981). In this respect, the instant provision makes
no reference to OMB Circular A-76. Additionally, in its Statement of
Position, the Agency based its position on an understanding that the
provisions mandated notification of a cost study even where specific
exemptions from the requirement to conduct a cost study were provided by
OMB Circular A-76, such as where an agency decides to contract out
activities which currently employ less than 10 full time, permanent
employees. The Agency's interpretation is, therefore, deemed consistent
with the language of the provision and is adopted for the purpose of
this decision.
Consequently, Union Provision 2 is to the same effect as proposals
the Authority has found nonnegotiable which sought to limit or impose
prior conditions on the exercise of the Agency's right to engage in
deliberative discretion with respect to its right to contract out
pursuant to section 7106(a)(2)(B) of the Statute. See, e.g., National
Federation of Federal Employees, Local 1167 and Department of the Air
Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom. National
Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982)
(Union Proposals 1, 2 and 4). Hence, Union Provision 2, herein, which
also would impose a condition on the Agency's right to make
determinations with respect to contracting out pursuant to section
7106(a)(2)(B) of the Statute, is outside the duty to bargain.
Union Provision 3
Article XXXVII, Duration of Agreement; Section 1
The Agreement is "a living document" and shall remain in force
for three years from the date executed unless Articles and/or
Sections of Articles conflict with existing or future laws, or
whenever it is determined the Union is no longer entitled to
exclusive recognitions under the Act.
This provision would require that the effective date of the
collective bargaining agreement negotiated between the parties shall be
the date of execution. In this regard, the instant provision is to the
same effect as Union Provision 3 in National Federation of Federal
Employees, Local 1263 and Defense Language Institute, Presidio of
Monterey, California, 14 FLRA 761 (1984) (Union Provision), enforcement
denied as to other matters sub nom. Defense Language Institute v. FLRA,
. . . F.2d . . . (9th Cir. 1985). In that case, the Authority, noting
that section 7114(c) of the Statute specifically provides that an agency
head has 30 days to approve or disapprove a collective bargaining
agreement, found the disputed provision, which would have established
the date of execution as the effective date of the agreement, to be
outside the duty to bargain.
Consequently, since Union Provision 3, herein, likewise seeks to
establish the date of execution as the effective date of the parties'
agreement, it is, for the reasons and case cited in Presidio of
Monterey, outside the duty to bargain.
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., August 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Office of Personnel Management (OPM) filed an amicus curiae
brief and the Union filed a response thereto regarding Union Provision
1, herein.
/2/ The Agency withdrew its allegation of nonnegotiation with respect
to two other provisions of the negotiated agreement. The issues as to
these two provisions, therefore, have been rendered moot and will not be
considered further herein.
/3/ Section 7114 of the Statute provides, in pertinent part, as
follows:
Sec. 7114. Representation rights and duties
. . . .
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
/4/ The Authority also found a second provision requiring one pay
period advance notice of non-workday rotation schedule changes to be
inconsistent with the same Government-wide regulation and outside the
duty to bargain.
/5/ Section 7106(b)(2) and (3) of the Statute provides, in pertinent
part, as follows:
Sec. 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/ See 48 Fed.Reg. 3935 (1983).
/7/ In support of its claim that application of 5 CFR 610.121
violates the Fair Labor Standards Act, the Union relies upon 29 CFR
778.106 (1984) which is promulgated by the Wage and Hour Administrator
of the Department of Labor and which proscribes shift changes to avoid
overtime payments under the Act. However, this regulation is not
applicable to Federal employees. That is, the Act, 29 U.S.C. 204(f),
specifically delegates to the Civil Service Commission, now the Office
of Personnel Management, the sole authority to administer the provisions
of the Act which apply to Federal employees.
/8/ 5 U.S.C. 6101 provides in pertinent part as follows:
Sec. 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
carryout 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(.)
/9/ Union Reply Brief at 7.