American Federation of Government Employees, Local 2875, AFL-CIO (Union) and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida (Agency)



[ v05 p441 ]
05:0441(55)NG
The decision of the Authority follows:


 5 FLRA No. 55
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2875
 Union
 
 and
 
 DEPARTMENT OF COMMERCE
 NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
 NATIONAL MARINE FISHERIES SERVICE,
 SOUTHEAST FISHERIES CENTER,
 MIAMI LABORATORY, FLORIDA
 Agency
 
                                            Case No. 0-NG-196
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C.
 7101-7135).
 
    ON SEPTEMBER 27, 1979, THE AGENCY AND THE UNION SIGNED AN ALTERNATIVE
 WORK SCHEDULE EXPERIMENT, WHICH WAS ESTABLISHED TO IMPLEMENT THE FEDERAL
 EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978, PUB. L.
 NO. 95-390, 92 STAT. 755 (1978) (HEREINAFTER REFERRED TO AS THE WORK
 SCHEDULES ACT).  THE EXPERIMENT CONTAINED A PROVISION THAT THE AGREEMENT
 WOULD BE REOPENED FOR NEGOTIATIONS ON DISPUTED ISSUES.  UNION PROPOSALS
 1, 2, 3, AND 4 INVOLVE THOSE ISSUES IN DISPUTE BETWEEN THE PARTIES.
 
                        UNION PROPOSALS 1, 2 AND 3
 
    1.  THE WORKWEEK SHALL BE MONDAY THROUGH FRIDAY.  THE WORK HOURS
 SHALL BE 0600 TO 1800.
 
    2.  THE CORE TIME SHALL BE TUESDAY AND WEDNESDAY, 10:00 A.M. TO 12:00
 NOON.
 
    3.  THE MAXIMUM HOURS PER DAY WHICH MAY BE WORKED IS LIMITED ONLY BY
 THE LEGALLY REQUIRED HALF HOUR (30 MINUTES) LUNCH PERIOD.  THE MAXIMUM
 NON-OVERTIME HOURS PER DAY PERIOD WHICH MAY BE WORKED IS 90;  EIGHTY
 (80) REGULAR HOURS AND TEN (10) CREDIT HOURS.
 
    (ONLY UNDERSCORED LANGUAGE IN THE PROPOSALS IS IN DISPUTE.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSALS 1,
 2, AND 3 CONFLICT WITH THE WORK SCHEDULES ACT /1/ AND IMPLEMENTING OPM
 ISSUANCES;  /2/ AND, IF NOT, WHETHER THE UNION'S PROPOSALS CONCERN
 MATTERS WHICH, UNDER SECTION 7106(B)(1) OF THE STATUTE /3/ ARE
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.
 
    CONCLUSION AND ORDER:  THE SUBJECT PROPOSALS DO NOT CONFLICT WITH
 PROVISIONS OF THE WORK SCHEDULES ACT AND IMPLEMENTING OPM ISSUANCES.
 FURTHERMORE, THEY DO NOT CONCERN MATTERS RELATING TO THE METHODS OF
 PERFORMING THE WORK OF THE AGENCY OR TO THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR POSITIONS ASSIGNED TO A TOUR OF DUTY, WHICH MATTERS ARE
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON THESE PROPOSALS.  /4/
 
    REASONS:  THE PROPOSALS HEREIN DISPUTE WOULD, IN ESSENCE, ESTABLISH
 THE WORK HOURS IN A DAY, CORE TIME DAYS AND HOURS, AND THE MAXIMUM HOURS
 PER DAY WHICH MAY BE WORKED UNDER A FLEXIBLE WORK SCHEDULING
 ARRANGEMENT.  THE AGENCY FIRST ALLEGES THESE PROPOSALS ARE INCONSISTENT
 WITH FEDERAL LAW BECAUSE, BASED ON THE WORK SCHEDULES ACT AND
 IMPLEMENTING OPM ISSUANCES, THE AGENCY HAS THE UNILATERAL RIGHT TO
 DETERMINE CORE TIME LENGTH, CORE TIME DAYS, AND FLEXIBLE HOURS.  IN THIS
 CONNECTION, THE AGENCY ARGUES IN ESSENCE THAT, SINCE ANY FLEXIBLE
 SCHEDULE MUST INCLUDE DESIGNATED CORE DAYS AND HOURS TO MEET STATUTORY
 REQUIREMENTS, THE AGENCY MUST UNILATERALLY DESIGNATE SUCH CORE DAYS AND
 HOURS AND CONSEQUENTLY DETERMINE FLEXIBLE HOURS DURING THE DAY.
 
    THE PLAIN MEANING OF THE LANGUAGE OF SECTION 102(A)(1) OF THE WORK
 SCHEDULES ACT (NOTE 1, SUPRA) IS THAT DAYS AND HOURS DURING WHICH
 EMPLOYEES MUST BE PRESENT (CORE DAYS AND CORE HOURS) ARE REQUIRED TO BE
 DESIGNATED IN ORDER FOR AN ALTERNATIVE WORK SCHEDULE EXPERIMENTAL
 PROGRAM TO MEET STATUTORY REQUIREMENTS.  THERE IS NOTHING IN THE
 LEGISLATIVE HISTORY OF THE ACT INDICATING THAT A DIFFERENT MEANING WAS
 INTENDED.  IN PARTICULAR, THE LANGUAGE AND LEGISLATIVE HISTORY OF
 SECTION 102(A)(1) OF THE WORK SCHEDULES ACT DO NOT REFLECT AN INTENT TO
 REQUIRE AN AGENCY UNILATERALLY TO EXERCISE ITS DISCRETION IN DESIGNATING
 CORE DAYS AND CORE HOURS OR TO PROHIBIT AN AGENCY FROM EXERCISING SUCH
 DISCRETION THROUGH NEGOTIATIONS.  THE DUTY TO BARGAIN OF AN AGENCY SO
 FAR AS IS CONSISTENT WITH LAWS AND APPLICABLE REGULATIONS EXTENDS TO
 MATTERS AS TO WHICH THE AGENCY HAS DISCRETION AFFECTING THE CONDITIONS
 OF EMPLOYMENT OF EMPLOYEES IN THE BARGAINING UNIT.  /5/ FURTHER, IN THIS
 REGARD, THE AUTHORITY REJECTED AN AGENCY CLAIM THAT UNDER THE WORK
 SCHEDULES ACT IT HAD A UNILATERAL RIGHT TO TERMINATE AN ALTERNATIVE WORK
 SCHEDULE EXPERIMENT, AS FOLLOWS:  /6/
 
    (I)T IS CLEAR FROM THE LANGUAGE AND LEGISLATIVE HISTORY OF THE WORK
 SCHEDULES ACT THAT
 
    CONGRESS INTENDED THE MATTER OF FLEXIBLE OR COMPRESSED WORK SCHEDULES
 TO BE NEGOTIATED BETWEEN
 
    THE PARTIES TO EXISTING COLLECTIVE BARGAINING RELATIONSHIPS.
 THEREFORE, BASED ON THE LANGUAGE AND INTENT OF THE WORK SCHEDULES ACT,
 THE UNION'S PROPOSALS DO NOT CONFLICT WITH PROVISIONS OF THE ACT.
 HENCE, THE ACT IS NOT A BAR TO NEGOTIATIONS OF THE DISPUTED PROPOSALS.
 
    SIMILARLY, THE PROPOSALS DO NOT CONFLICT WITH OPM ISSUANCES,
 IMPLEMENTING THE WORK SCHEDULES ACT, UPON WHICH THE AGENCY ALSO RELIES.
 THE FEDERAL PERSONNEL MANUAL (FPM) PROVISIONS RELIED UPON MERELY REFLECT
 THE STATUTORY INTENT AS ALREADY INDICATED THAT AGENCIES HAVE DISCRETION
 IN DETERMINING THE EXTENT OF THE REQUIRED CORE HOURS (NOTE 2, SUPRA).
 AS PREVIOUSLY STATED, THE EXERCISE OF SUCH DISCRETION WITH RESPECT TO A
 MATTER AFFECTING THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
 EMPLOYEES IN THE PRESENT CIRCUMSTANCES IS A MATTER WITHIN THE DUTY TO
 BARGAIN.  /7/
 
    FINALLY, AS TO THE CLAIM THAT THE UNION'S PROPOSALS INTERFERE WITH
 MANAGEMENT RIGHTS UNDER SECTION 7106(B)(1) OF THE STATUTE, THE AGENCY'S
 POSITION CANNOT BE SUSTAINED.  THE AGENCY FIRST CONTENDS IN THIS REGARD
 THAT THE PROPOSALS ARE INCONSISTENT WITH MANAGEMENT'S RIGHT TO CHOOSE
 THE "METHODS" OF PERFORMING THE WORK OF THE AGENCY.  THE ESSENCE OF THIS
 CONTENTION IS THAT THE DISPUTED PROPOSALS WOULD PREVENT THE AGENCY FROM
 SCHEDULING MEETINGS OR COOPERATIVE PROJECTS AND THAT COMMUNICATION
 BETWEEN AGENCY EMPLOYEES AND OTHER FEDERAL AGENCIES WILL BE HAMPERED.
 THUS, THE AGENCY ASSERTS THE UNION'S PROPOSALS WOULD RESTRICT THE
 AGENCY'S CHOICE AS TO THE METHODS OF PERFORMING ITS WORK AND, THEREFORE,
 ARE NEGOTIABLE ONLY AT THE AGENCY'S ELECTION UNDER SECTION 7106(B)(1) OF
 THE STATUTE.  THIS CONTENTION IS NOT PERSUASIVE AND THE AGENCY'S
 CONTENTION CANNOT BE SUSTAINED.
 
    THE PROPOSALS TO DESIGNATE THE HOURS OF THE WORKDAY AND CORE LENGTH
 TIME AND DAYS WOULD NOT PREVENT THE AGENCY FROM CHOOSING THE METHODS OF
 PERFORMING ITS WORK.  IN THIS REGARD, THE RECORD DOES NOT INDICATE THAT
 THE UNION INTENDS THE PROPOSALS TO LIMIT MANAGEMENT'S RIGHT TO ASSIGN
 INDIVIDUAL EMPLOYEES OR GROUPS OF EMPLOYEES TO SPECIFIC TOURS OF DUTY
 DURING THE FLEXI-TIME HOURS, WHEN SUCH ASSIGNMENT IS NECESSARY TO
 ACCOMPLISH THE AGENCY'S MISSION.  FURTHER, THE LANGUAGE OF THE PROPOSALS
 WOULD NOT GIVE EMPLOYEES THE RIGHT TO REFUSE TO APPEAR FOR WORK WHEN
 ORDERED TO DO SO.  THUS, THE PROPOSALS WOULD NOT PREVENT THE AGENCY FROM
 SCHEDULING MEETINGS OR COOPERATIVE PROJECTS AND REQUIRING EMPLOYEES TO
 PARTICIPATE IN THEM.  THEREFORE, CONTRARY TO THE AGENCY'S CLAIM, THE
 PROPOSALS WOULD BE CONSISTENT WITH THE AGENCY'S CHOICE OF METHODS OF
 PERFORMING ITS WORK.
 
    THE AGENCY NEXT CONTENDS THAT THE UNION'S PROPOSALS INTERFERE WITH
 MANAGEMENT'S RIGHT TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF
 EMPLOYEES OR POSITIONS ASSIGNED TO A TOUR OF DUTY AND, THEREFORE, THE
 PROPOSALS ARE NEGOTIABLE ONLY AT THE AGENCY'S ELECTION UNDER SECTION
 7106(B)(1) OF THE STATUTE.  BASED UPON THE RECORD, THE ESSENCE OF THIS
 CONTENTION IS THAT REQUIRING THE AGENCY TO BARGAIN OVER CORE TIME IS
 EQUIVALENT TO REQUIRING THE AGENCY TO BARGAIN TO ESTABLISH A NEW TOUR OF
 DUTY.
 
    A PROPOSAL IS NEGOTIABLE AT THE ELECTION OF THE AGENCY UNDER SECTION
 7106(B)(1) ONLY IF THE LANGUAGE OF THE PROPOSAL EXPLICITLY RELATES TO
 THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO A
 TOUR OF DUTY SO AS TO COME WITHIN THE LITERAL LANGUAGE OF THAT SECTION
 OR IF THE PROPOSAL, BY ITS DIRECT OR INTEGRAL RELATIONSHIP TO THE
 NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO A TOUR
 OF DUTY, WOULD BE DETERMINATIVE OF SUCH NUMBERS, TYPES, OR GRADES.  /8/
 
    IN THE PRESENT CASE, THE LANGUAGE OF THE PROPOSALS THEMSELVES DOES
 NOT EXPLICITLY RELATE TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 ASSIGNED TO A TOUR OF DUTY SO THAT THE PROPOSALS WOULD COME WITHIN THE
 LITERAL LANGUAGE OF SECTION 7106(B)(1).  THUS, THE QUESTION IS WHETHER
 THE PROPOSALS ARE SO DIRECTLY OR INTEGRALLY RELATED TO THE NUMBERS,
 TYPES, AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO A TOUR OF DUTY
 THAT THE PROPOSALS WOULD BE DETERMINATIVE OF SUCH NUMBERS, TYPES, OR
 GRADES.
 
    AS MENTIONED PREVIOUSLY, THERE IS NO INDICATION IN THE RECORD THAT
 THE UNION INTENDS THE DISPUTED PROPOSALS TO GIVE EMPLOYEES THE RIGHT TO
 REFUSE TO APPEAR FOR WORK WHEN ORDERED TO DO SO OR TO LIMIT MANAGEMENT'S
 RIGHT TO ASSIGN INDIVIDUAL EMPLOYEES OR GROUPS OF EMPLOYEES TO SPECIFIC
 TOURS OF DUTY ESTABLISHED BY MANAGEMENT DURING THE FLEXI-TIME ALLOWANCES
 WHEN SUCH ASSIGNMENT IS NECESSARY TO THE AGENCY'S MISSION.  MOREOVER,
 THE AGREEMENT BETWEEN THE PARTIES EXPRESSLY PROVIDES THAT EMPLOYEES WHO
 HAVE DUTIES THAT MUST BE PERFORMED AT A PARTICULAR TIME ARE EXPECTED TO
 BE ON DUTY AT THAT TIME.  /9/ THEREFORE, THE AGENCY HAS NOT SHOWN THAT
 THE UNION'S PROPOSALS ARE DIRECTLY OR INTEGRALLY RELATED TO THE AGENCY'S
 POSITIONS OR PERSONNEL IN A MANNER WHICH WOULD BE DETERMINATIVE OF THE
 NUMBERS, TYPES, AND GRADES OF THE EMPLOYEES OR POSITIONS ASSIGNED TO A
 TOUR OF DUTY.  THUS, THE PROPOSALS DO NOT CONCERN MATTERS NEGOTIABLE
 ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE
 STATUTE.
 
    IN SUM, AS THE UNION'S PROPOSALS ARE NOT INCONSISTENT WITH PROVISIONS
 OF THE WORK SCHEDULES ACT, THE FPM OR SECTION 7106(B)(1) OF THE STATUTE,
 THEY ARE WITHIN THE AGENCY'S DUTY TO BARGAIN.
 
                             UNION PROPOSAL 4
 
    4.  ANNUAL, SICK, AND COMPENSATORY LEAVE MAY BE TAKEN AND CHARGED IN
 QUARTER HOURS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION'S
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH
 AN AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS UNDER SECTION
 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(A) OF THE AUTHORITY'S
 RULES.
 
    CONCLUSION AND ORDER:  NO COMPELLING NEED EXISTS UNDER SECTION
 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(A) OF THE AUTHORITY'S
 RULES FOR THE AGENCY REGULATION RELIED UPON TO BAR NEGOTIATIONS ON THE
 UNION'S PROPOSAL.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON THIS PROPOSAL.  /10/
 
    REASONS:  THE UNION'S PROPOSAL PROVIDES THAT EMPLOYEES MAY TAKE AND
 BE CHARGED FOR ANNUAL, SICK, AND COMPENSATORY LEAVE IN QUARTER HOURS.
 THE AGENCY CONTENDS THAT THE UNION'S PROPOSAL IS BARRED FROM
 NEGOTIATIONS UNDER SECTION 7117(A)(2) OF THE STATUTE AND SECTION
 2424.11(A) OF THE AUTHORITY'S RULES BY AN AGENCY REGULATION (CHAPTER 12,
 SECTION 01.4.A. OF THE NOAA PERSONNEL HANDBOOK) WHICH PROVIDES THAT "THE
 MINIMUM CHARGE FOR ANNUAL AND SICK LEAVE AND LEAVE WITHOUT PAY IS ONE
 HOUR.  ADDITIONAL LEAVE IS CHARGED IN MULTIPLES OF ONE HOUR."
 
    SECTION 7117(A)(2) OF THE STATUTE PROVIDES THAT AGENCY REGULATIONS
 FOR WHICH A COMPELLING NEED EXISTS, AS DETERMINED UNDER REGULATIONS
 PRESCRIBED BY THE AUTHORITY, WILL BAR NEGOTIATION ON CONFLICTING UNION
 PROPOSALS.  /11/ THE AUTHORITY'S CRITERIA FOR DETERMINING THE COMPELLING
 NEED FOR AGENCY RULES AND REGULATIONS UNDER SECTION 7117(A)(2) ARE
 PROVIDED IN SECTION 2424.11 OF THE AUTHORITY'S RULES.  SECTION 2424.11
 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.11) PROVIDES, AS
 RELEVANT HEREIN, AS FOLLOWS:
 
    SEC. 2424.11 ILLUSTRATIVE CRITERIA.
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF
 
    EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
 MEETS ONE OR MORE OF THE
 
    FOLLOWING ILLUSTRATIVE CRITERIA:
 
    (A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE, TO THE
 
    ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
 AGENCY OR PRIMARY NATIONAL
 
    SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
 AN EFFECTIVE AND
 
    EFFICIENT GOVERNMENT.
 
    AS INDICATED IN THE LEGISLATIVE HISTORY OF THE STATUTE, THE
 COMPELLING NEED PROVISIONS OF THE STATUTE ARE MEANT TO INSURE THAT
 BARGAINING PROPOSALS CONCERNING CONDITIONS OF EMPLOYMENT OF BARGAINING
 UNIT EMPLOYEES, WHICH ARE OTHERWISE WITHIN THE DUTY TO BARGAIN, ARE
 BARRED FROM NEGOTIATION DUE TO A CONFLICT WITH AGENCY RULES OR
 REGULATIONS ONLY IF THE AGENCY INVOLVED DEMONSTRATES AND JUSTIFIES,
 UNDER CRITERIA ESTABLISHED BY THE AUTHORITY, AN OVERRIDING NEED FOR THE
 POLICIES REFLECTED IN THE RULES OR REGULATIONS TO BE UNIFORMLY APPLIED
 THROUGHOUT THE AGENCY.  /12/ HENCE, AS RELEVANT HEREIN, THE AUTHORITY'S
 ILLUSTRATIVE CRITERION FOR DETERMINING COMPELLING NEED IN SECTION
 2424.11(A) OF THE RULES, CONSISTENT WITH THE LEGISLATIVE INTENT,
 REQUIRES AN AGENCY TO DEMONSTRATE THE RULE OR REGULATION UPON WHICH IT
 RELIES AS A BAR TO NEGOTIATION ON A CONFLICTING UNION PROPOSAL IS
 "ESSENTIAL AS DISTINGUISHED FROM HELPFUL OR DESIRABLE" TO ACHIEVE
 CERTAIN ENDS.  THIS STANDARD OF ESSENTIALITY IS THE MEASURE UNDER THE
 STATUTE AND THE AUTHORITY'S RULES OF WHETHER THE NECESSITY CLAIMED FOR
 AN AGENCY REGULATION TO BAR NEGOTIATIONS ON A CONFLICTING UNION
 PROPOSAL, IN THE CIRCUMSTANCES OF A CASE, RISES TO THE LEVEL OF A
 COMPELLING NEED.
 
    IN THE PRESENT CASE, AS ALREADY MENTIONED, THE AGENCY CLAIMS THAT THE
 REGULATORY PROVISION AT ISSUE HEREIN MEETS THE COMPELLING NEED CRITERION
 IN SECTION 2424.11(A) OF THE AUTHORITY'S RULES.  IN SUPPORT OF THIS
 ALLEGATION, THE AGENCY ARGUES, IN ESSENCE, THAT THE SUBJECT REGULATORY
 PROVISION IS ESSENTIAL AS DISTINGUISHED FROM HELPFUL OR DESIRABLE TO THE
 EXECUTION OF ITS PAYROLL AND LABOR COST SYSTEM IN A MANNER WHICH IS
 CONSISTENT WITH AN EFFECTIVE AND EFFICIENT GOVERNMENT.  MORE
 SPECIFICALLY, THE AGENCY CONTENDS THAT BECAUSE OF THE CENTRALIZED NATURE
 OF ITS PAYROLL SYSTEM, THE ENTIRE SYSTEM WOULD HAVE TO BE REDESIGNED IN
 ORDER TO ACCEPT LEAVE CHARGES FOR BARGAINING UNIT EMPLOYEES IN QUARTER
 HOUR INCREMENTS, AS PROPOSED BY THE UNION.  IN THIS REGARD, THE AGENCY
 ASSERTS THAT SUCH CHANGES WOULD AFFECT THE TOTAL AGENCY WORK FORCE OF
 APPROXIMATELY 17,000 EMPLOYEES, WHILE THE BARGAINING UNIT CONSISTS OF
 ONLY 28 EMPLOYEES.  THE AGENCY FURTHER ASSERTS THAT THE CHANGES REQUIRED
 WOULD TAKE 3 TO 5 YEARS TO IMPLEMENT AND COST BETWEEN $350,000 TO
 $500,000.
 
    THE UNION DISPUTES THE AGENCY'S CONTENTION THAT A COMPELLING NEED
 EXISTS FOR THE SUBJECT REGULATORY PROVISION AND ASSERTS THAT ITS
 PROPOSAL IS CONSISTENT WITH THE FPM WHICH PROVIDES THAT AN AGENCY HAS
 DISCRETION TO ESTABLISH THROUGH NEGOTIATIONS A MINIMUM CHARGE FOR LEAVE
 OF LESS THAN AN HOUR.  /13/
 
    THE QUESTION PRESENTED, THEREFORE, IS WHETHER, BASED ON THE RECORD
 HEREIN, THE AGENCY HAS DEMONSTRATED, AS REQUIRED UNDER SECTION
 2424.11(A) OF THE AUTHORITY'S RULES, THAT THE CITED REGULATION IS
 ESSENTIAL, AS OPPOSED TO HELPFUL OR DESIRABLE, TO THE EXECUTION OF THE
 AGENCY'S FUNCTIONS IN A MANNER CONSISTENT WITH AN EFFECTIVE AND
 EFFICIENT GOVERNMENT.  /14/ FOR THE FOLLOWING REASONS, THE AUTHORITY
 FINDS THE AGENCY HAS NOT SHOWN A COMPELLING NEED EXISTS WITHIN THE
 MEANING OF SECTION 2424.11(A) FOR ITS REGULATION TO BAR NEGOTIATION ON
 THE UNION'S PROPOSAL.
 
    WHILE THE AGENCY HAS ALLEGED CERTAIN COSTS ASSOCIATED WITH
 MODIFICATION OF ITS AGENCY-WIDE PAYROLL DATA SYSTEM TO COMPLY WITH THE
 UNION'S PROPOSAL, IT HAS FAILED TO DEMONSTRATE THAT CHARGING LEAVE IN
 HOURLY INCREMENTS, AS IS UNIFORMLY REQUIRED IN THE AGENCY UNDER THE
 DISPUTED REGULATION, IS OF OVERRIDING NECESSITY TO THE EXECUTION BY THE
 AGENCY OF ITS PAYROLL AND LEAVE ADMINISTRATION FUNCTIONS IN AN EFFECTIVE
 AND EFFICIENT MANNER.  /5/ THE AGENCY DOES NOT DEMONSTRATE THAT THE
 POLICY REFLECTED IN THE SUBJECT REGULATION REQUIRING LEAVE CHARGES TO BE
 MADE IN INCREMENTS OF ONE HOUR WAS ESTABLISHED BECAUSE OPERATION OF ITS
 PAYROLL AND LEAVE ADMINISTRATION FUNCTIONS WOULD BE LESS COSTLY IF LEAVE
 WAS CHARGED TO EMPLOYEES IN HOURLY, AS OPPOSED TO QUARTER-HOUR,
 INCREMENTS.  THAT IS, THE AGENCY DOES NOT SHOW THAT MODIFICATION OF ITS
 PRESENT PAYROLL DATA SYSTEM TO ACCOMMODATE LEAVE CHARGES IN QUARTER
 HOUR
 INCREMENTS WOULD PRECLUDE THE AGENCY FROM ADMINISTERING ITS PAYROLL
 FUNCTIONS EFFICIENTLY AND EFFECTIVELY.  FURTHERMORE, THE AGENCY DOES NOT
 CLAIM THAT ADMINISTERING LEAVE CHARGES IN QUARTER HOUR INCREMENTS, AS
 PROPOSED BY THE UNION, IS ITSELF INEFFECTIVE OR INEFFICIENT.  RATHER,
 THE AGENCY'S CONTENTIONS AS TO THE COSTS WHICH IT CLAIMS THE PROPOSAL
 WOULD ENGENDER RELATE TO THE "START-UP" COSTS OF CHANGING ITS COMPUTER
 SYSTEM TO ACCOMPLISH THE PROPOSED LEAVE ADMINISTRATION FUNCTION, WITH
 RESPECT TO THE ENTIRE AGENCY.  CONSEQUENTLY, THE UNSTATED PREMISE WHICH
 APPEARS TO UNDERLIE THE AGENCY'S POSITION IS THAT ITS UNILATERAL
 DECISION CONCERNING THE LEAVE CHARGE INCREMENTS OF BARGAINING UNIT
 EMPLOYEES, AN OTHERWISE NEGOTIABLE CONDITION OF EMPLOYMENT, IS NOT
 SUBJECT TO THE DUTY TO BARGAIN SOLELY BECAUSE THE POLICY REFLECTED IN
 THE AGENCY'S REGULATION WAS IMPLEMENTED BY MEANS OF A COMPREHENSIVE
 SYSTEM, WHICH IT MAY BE COSTLY TO MODIFY.  THIS PREMISE AND THE EXPLICIT
 AGENCY ARGUMENTS ARE NOT SUFFICIENT TO DEMONSTRATE THAT THE SUBJECT
 REGULATION MEETS THE COMPELLING NEED CRITERION IN SECTION 2424.11(A) OF
 THE AUTHORITY'S RULES.  IN THIS REGARD, THE AGENCY HAS NOT SHOWN THAT,
 FOR EXAMPLE, MANUAL PROCESSING OF ITS LEAVE ADMINISTRATION FUNCTION FOR
 MEMBERS OF THE BARGAINING UNIT WOULD BE COSTLY OR INEFFECTIVE.
 MOREOVER, AS THE AUTHORITY HAS FREQUENTLY EMPHASIZED, ITS DECISION THAT
 A PROPOSAL IS SUBJECT TO THE DUTY TO BARGAIN DOES NOT REQUIRE AN AGENCY
 TO AGREE TO THAT PROPOSAL.  /16/ IN THE CIRCUMSTANCES OF THIS CASE,
 AFTER BARGAINING OVER THE UNION'S PROPOSAL, SHOULD THE AGENCY'S ESTIMATE
 OF THE COST OF IMPLEMENTING THE UNION'S PROPOSAL REMAIN AN OBSTACLE TO
 AGREEMENT, THOSE CONSIDERATIONS AS TO COST MAY BE PRESENTED TO THE
 FEDERAL SERVICE IMPASSES PANEL IN A PROCEEDING TO RESOLVE A NEGOTIATION
 IMPASSE PURSUANT TO SECTION 7119 OF THE STATUTE.
 
    THEREFORE, AS DETAILED ABOVE, THE AGENCY HAS NOT DEMONSTRATED THAT
 ITS REGULATION REQUIRING LEAVE TO BE CHARGED IN HOURLY INCREMENTS,
 RELIED UPON AS A BAR TO NEGOTIATIONS ON UNION PROPOSAL 4, IS ESSENTIAL
 TO THE AGENCY'S OPERATION OF ITS PAYROLL FUNCTION IN AN EFFECTIVE AND
 EFFICIENT MANNER, WITHIN THE MEANING OF SECTION 2424.11(A) OF THE
 AUTHORITY'S RULES.
 
    ACCORDINGLY, THE AGENCY HAS FAILED TO DEMONSTRATE THAT A COMPELLING
 NEED EXISTS, WITHIN THE MEANING OF SECTION 7117(A)(2) OF THE STATUTE AND
 SECTION 2424.11 OF THE AUTHORITY'S RULES, FOR THE AGENCY REGULATION
 ASSERTED AS A BAR TO NEGOTIATION ON THE UNION'S PROPOSAL.  THEREFORE,
 THE UNION'S PROPOSAL, WHICH IS OTHERWISE NEGOTIABLE, IS WITHIN THE
 AGENCY'S DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., MARCH 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 102(A)(1) OF THE WORK SCHEDULES ACT, RELIED UPON BY THE
 AGENCY, PROVIDES AS FOLLOWS:
 
    SEC. 102.(A) (E)XPERIMENTS MAY BE CONDUCTED IN AGENCIES TO TEST
 FLEXIBLE SCHEDULES WHICH
 
    INCLUDE--
 
    (1) DESIGNATED HOURS AND DAYS DURING WHICH AN EMPLOYEE ON SUCH A
 SCHEDULE MUST BE PRESENT
 
    FOR WORK(.)
 
    /2/ FPM LETTER 620-2, RELIED U