10:0405(67)NG - NTEU and FDIC Washington, DC -- 1982 FLRAdec NG



[ v10 p405 ]
10:0405(67)NG
The decision of the Authority follows:


 10 FLRA No. 67
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 FEDERAL DEPOSIT INSURANCE CORPORATION
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-401
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 RAISES THE QUESTION OF THE NEGOTIABILITY OF THE FOLLOWING UNION
 PROPOSAL:
 
    THE EMPLOYER MAY NOT DENY ANNUAL LEAVE AS AN ACT IN LIEU OF
 DISCIPLINE OR IN CONNECTION
 
    WITH DISCIPLINE.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 THE AGENCY'S ALLEGATION OF NONNEGOTIABILITY CONCERNS ONLY THAT PORTION
 OF THE UNION'S PROPOSAL WHICH PREVENTS THE AGENCY FROM DENYING ANNUAL
 LEAVE IN CONNECTION WITH DISCIPLINE.  THE PARTIES ARE IN AGREEMENT THAT
 THE EFFECT OF THAT PORTION OF THE PROPOSAL WOULD BE TO PREVENT THE
 AGENCY FROM DENYING A REQUEST FOR ANNUAL LEAVE DURING THE DAYS UPON
 WHICH A SUSPENSION WOULD BE EFFECTIVE.
 
    CHAPTER 63 OF TITLE 5, UNITED STATES CODE, WHICH AUTHORIZES THE
 ACCRUAL AND USE OF LEAVE, INCLUDING PRINCIPALLY ANNUAL AND SICK LEAVE,
 GENERALLY PROVIDES AT 5 U.S.C. 6302(A) AS FOLLOWS:
 
    THE DAYS OF LEAVE PROVIDED BY THIS SUBCHAPTER ARE DAYS ON WHICH AN
 EMPLOYEE WOULD OTHERWISE
 
    WORK AND RECEIVE PAY AND ARE EXCLUSIVE OF HOLIDAYS AND NONWORKDAYS
 ESTABLISHED BY FEDERAL
 
    STATUTE, EXECUTIVE ORDER, OR ADMINISTRATIVE ORDER.
 
    THUS, UNDER FEDERAL LAW, ANNUAL LEAVE IS TO BE GRANTED ONLY ON DAYS
 DURING WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY.
 
    CHAPTER 75 OF TITLE 5, UNITED STATES CODE, ESTABLISHES THE LEGAL
 BASIS FOR THE SUSPENSION OF AN EMPLOYEE.  FOR PURPOSES OF THIS CHAPTER,
 5 U.S.C 7501(2) DEFINES SUSPENSION AS " . . . PLACING AN EMPLOYEE, FOR
 DISCIPLINARY REASONS, IN A TEMPORARY STATUS, WITHOUT DUTIES AND PAY."
 THEREFORE, A SUSPENDED EMPLOYEE WOULD NOT WORK AND WOULD NOT BE PAID.
 
    THE DISPUTED PROPOSAL WOULD REQUIRE THE AGENCY TO GRANT ANNUAL LEAVE
 STATUS TO AN EMPLOYEE WHO IS SUSPENDED UNDER CHAPTER 75 OF TITLE 5,
 UNITED STATES CODE.  THUS, IT WOULD REQUIRE THE GRANTING OF LEAVE FOR A
 PERIOD WHEN AN EMPLOYEE IS IN A NONDUTY, NONPAY STATUS.  THIS RESULT IS
 INCONSISTENT WITH 5 U.S.C. 6302(A), AS QUOTED ABOVE, AND IS THEREFORE
 NOT WITHIN THE AGENCY'S DUTY TO BARGAIN.  /1/
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S
 PETITION AS TO THAT P