25:0952(77)CA - AFGE Local 900 and Army, Office of the Adjutant General, Army Reserve Components Personnel and Administrative Center, St. Louis, MO -- 1987 FLRAdec CA
[ v25 p952 ]
25:0952(77)CA
The decision of the Authority follows:
25 FLRA No. 77
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 900
Union
and
DEPARTMENT OF THE ARMY, OFFICE
OF THE ADJUTANT GENERAL, U.S. ARMY
RESERVE COMPONENTS PERSONNEL AND
ADMINISTRATIVE CENTER, ST. LOUIS, MISSOURI
Agency
Case No. 0-NG-909
(18 FLRA No. 6)
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 the
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):
Except in cases of emergency, tours of duty will be established
or changed at least two (2) weeks in advance, and will continue
for at least two (2) pay periods. Tours of duty shall be
announced in writing and posted in the work area at least three
(3) workdays prior to the beginning of the administrative workweek
affected.
II. Background
In the previous decision in this case, 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) 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, AFL-CIO, 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 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 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 that except in emergencies the
Agency must provide two weeks notice of a change in an employee's work
schedule and to continue that work schedule for at least two pay
periods. The Union contends that this provision is consistent with law,
including the Statute and constitutes a negotiable procedure under
section 7106(b)(2) or an appropriate arrangement under section
7106(b)(3).
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 U.S.C. 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).
Consequently, based on the reasons set forth in Scott Air Force Base,
we find this provision to be inconsistent with law and Government-wide
regulation and thus 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 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).
III. 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(.)