International Association of Machinists and Aerospace Workers, Local Lodge 2424 and Department of the Army, Aberdeen Proving Ground (Authority decision, December 17, 1986)

Final FLRA decision. The Authority dismisses the union's negotiability petition after finding its work schedule proposal outside the duty to bargain. An aggrieved person may seek judicial review of a final Authority order by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

Machinists Local Lodge 2424 proposed that Aberdeen Proving Ground generally establish and change employee tours of duty with two weeks' written notice. The Army argued that this rule conflicted with a government-wide scheduling regulation. The Authority found that the proposal would sometimes prevent schedule changes until two weeks had passed and did not include the exceptions allowed by federal law and regulation. It held the proposal outside the duty to bargain and dismissed the union's petition.

Decision snapshot

• Authority: Work schedule notice under 5 U.S.C. § 6101(a)(3)(A), 5 C.F.R. § 610.121(a)(2), and 5 U.S.C. § 7117(a)(1).
• Outcome: Proposal held nonnegotiable; union's petition dismissed.
• Key point: A schedule notice proposal cannot omit the statutory and regulatory exceptions for changing work schedules.

Full text (FLRA public release)

[ v24 p502 ]

24:0502(55)NG

The decision of the Authority follows:

24 FLRA No. 55

INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 2424
Union

and

DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND,
ABERDEEN PROVING GROUND,
MARYLAND
Agency

Case No. 0-NG-1294

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents an issue concerning the negotiability of a single Union proposal. For the reasons set forth below, we find the proposal to be nonnegotiable.

II. Union Proposal

Tours of duty will be established at least two weeks in advance, will continue for a period of at least two pay periods, and will be announced in writing and once made, will not be changed unless two (2) weeks notice is given. The commanding Officer may make exceptions to this requirement when circumstances preclude compliance or exceptions may be made when agreed to by the employee. Exceptions will not be made, however, where the change in tour is for the purpose of avoiding or creating the necessity for payment of overtime, night differential, Sunday or holiday pay. The announcement of the tour will identify the calendar days and the hours of each day comprising each tour. Copies of the announcement will be posted in conspicuous places, readily accessible to all affected employees.

III. Positions of the Parties

The Agency contends that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it conflicts with 5 CFR Section 610.121(b)(2), a Government-wide regulation. In support of its position, the Agency cites the Authority's decisions in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985); and National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986).

The Union contends that the proposal is negotiable because it does not prevent the Agency from making changes in tours of duty and asserts that the proposal is not inconsistent with any law, rule or regulation.

IV. Analysis and Conclusion

The proposal would require the Agency to give two weeks' notice before establishing or changing employee tours of duty; permit changes in the notice requirement to be made by the commanding officer "when circumstances preclude compliance" or by employee agreement; and prohibit tour of duty changes where the purpose of the change is to avoid or create the need for payment of overtime, night differential, Sunday or holiday pay. The issue is whether this limitation would impermissibly restrict the Agency's right, under statutory and regulatory authority, to revise employee work schedules.

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), we held that Proposal 1, which required the agency to give 14 days notice before changing work schedules, except in emergencies, was outside the duty to bargain. Specifically, we found that applicable law, 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a)(2), provides a minimum 7-day notice period except where (1) the agency would be handicapped in carrying out its mission, or (2) costs would be substantially increased. We determined that because Proposal 1 in that case restricted the Agency's ability to revise work schedules within the 7-day notice period to emergencies, it was narrower than the exceptions permitted under the statutory framework, and therefore, inconsistent with law and regulation.

The proposal in this case is to the same effect as the proposal in Scott Air Force Base. While this proposal permits the commanding officer in some situations to make changes in tours of duty without two weeks' notice, it establishes, in certain circumstances, a two-week notice period which must expire before the Agency would be permitted to revise employee tours of duty. As explained by the Union, and as indicated in the record, the restriction is intended to be absolute. Since the proposal does not incorporate the statutory and regulatory exceptions to the notice period, it is inconsistent with law and Government-wide regulation.

For the reasons set forth above and in Scott Air Force Base, ee find the proposal to be outside the duty to bargain under section 7117(a)(1) of the Statute.

V. Order

Pursuant to section 2424.10 of the Authority's Rules and Regulations, the Union's petition for review is dismissed.

Issued, Washington, D.C. December 17, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY