12:0532(101)NG - AFGE Local 3488 and FDIC -- 1983 FLRAdec NG

[ v12 p532 ]
The decision of the Authority follows:

 12 FLRA No. 101
                                            Case No. O-NG-316
    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 questions
 relating to the negotiability of eight Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          Disclosure statements required by FDIC shall conform to the
       laws as enacted by Congress and be requested only from GS-16's and
       above and from political appointees.
    In agreement with the Agency, the Authority concludes that Union
 Proposal 1 is not within the duty to bargain under section 7117(a)(1) of
 the Statute because it is inconsistent with Government-wide regulations,
 specifically, regulations promulgated by the Office of Personnel
 Management (OPM) to implement Executive Order 11222, May 8, 1965.  The
 regulations require financial disclosure statements from Federal
 employees in grades GS-13 and above who are responsible, e.g., for
 government procurement, administering grants or subsidies, regulating or
 auditing private enterprise.  Also required to file statements are those
 whose decisions or actions have an economic impact on the interests of
 private enterprise or may potentially conflict with personal financial
 interests.  /1/ The instant proposal, however, would bar requiring
 reports from the Agency's nonpolitical appointees below the GS-16 grade
 level without any reference to the aforementioned job related criteria.
 The proposal, then, is not merely concerned with a "procedure," as
 asserted by the Union.  Rather, it would exempt from the reporting
 requirement of the OPM regulations certain nonpolitically appointed
 employees based exclusively on their grade levels.  Therefore, Union
 Proposal 1 is inconsistent with such regulations and is outside the duty
 to bargain.
                             Union Proposal 2
          Compensatory days will be available for all employees who elect
       to work overtime.  Compensatory days will be treated the same as
       annual leave subject to use within one year from the date earned.
                             Union Proposal 5
          Employees over GS-10 may elect compensatory time in lieu of
       overtime payment.  Compensatory time not taken in one year from
       the date earned will receive overtime payment.  (Only the
       underscored sentences are in dispute.)
    In agreement with the Union, the Authority finds that these proposals
 are not barred from negotiations either by the Federal Personnel Manual
 (FPM) or by internal Agency regulations, as claimed by the Agency.  As
 to FPM chapter 550, subchapter 1-3.d.(3), relied upon by the Agency,
 such provision expressly recognizes the discretion of agency heads to
 "fix a time within which compensatory time off is to be requested or
 taken." The Agency has not established, and it is not otherwise
 apparent, that such discretion is sole and exclusive so that it could
 not be exercised through collective bargaining.  Consequently, this
 provision of the FPM is not a bar to negotiation of the disputed
 language.  See National Treasury Employees Union, Chapter 6 and Internal
 Revenue Service, New Orleans District, 3 FLRA 748 (1980).
    As to the Agency's internal regulation, requiring use of compensatory
 time in a time frame shorter than the Union proposes, the Agency claims,
 but has not demonstrated, that a "compelling need" exists for such
 regulation under section 2424.11(a) and (c) of the Authority's Rules and
 Regulations.  /2/ That is, the Agency proffers no persuasive support for
 its claim that the regulation is essential to the accomplishment of the
 Agency's mission or to the execution of its functions in a manner which
 is consistent with the requirements of an effective and efficient
 government;  or that the regulation implements a mandate under law or
 other outside authority.  Hence, the Agency regulation is not a bar to
 negotiation of the disputed portions of the proposals.  See American
 Federation of Government Employees, AFL-CIO, Local 1928 and Department
 of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2
 FLRA 451 (1980).
                             Union Proposal 3
          In order to reduce gasoline consumption at least 20% as well as
       other related travel costs, all field personnel will work a 4-day
       workweek with each Friday as a non-workday.
    On July 23, 1982, and during the pendency of this appeal, the Federal
 Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L.
 No. 97-221, 96 Stat. 227, became effective.  Under this Act, a new
 section 6131 was added to title 5, U.S. Code, which prescribes the
 criteria and review procedures governing the establishment or
 termination of a flexible or compressed schedule where the head of an
 agency determines that such schedule would have an adverse agency
 impact.  Neither party has had the opportunity to address the
 applicability to the matters involved in the instant proposal of Pub. L.
 No. 97-221 which substantially differs in some respects from its
 predecessor (Federal Employees Flexible and Compressed Work Schedules
 Act of 1978, Pub. L. No. 95-390, 92 Stat. 755 (1978), as amended by Pub.
 L. No. 97-160, 96 Stat. 21 (1982)).  Accordingly, the dispute concerning
 Union Proposal 3 is moot.  The Union, however, may file another appeal,
 pursuant to the Authority's Rules and Regulations, on the same issue
 after the parties have considered the applicability of Pub. L. No.
 97-221 to the matters involved in the proposal.  See American Federation
 of Government Employees, Council of Social Security District Office
 Locals and Department of Health and Human Services, Social Security
 Administration, 11 FLRA No. 8 (1983).
                             Union Proposal 4
          There will be no limit placed on the number of days for which
       expenses are billed for work in the Regional Office or any field
    Based on the record, this proposal would apply in circumstances where
 an employee is assigned by the Agency to perform work temporarily at a
 location which, under Agency regulations, would entitle the employee to
 reimbursement for certain expenses, up to a maximum of 60 days, as
          Employees assigned to duty in a Corporation office or on detail
       to a Corporation office for more than 60 work days in any calendar
       year are not entitled to (lodgings-plus and per diem allowances).
 The disputed Union proposal would simply remove the 60 day regulatory
 limitation on such entitlement.
    In agreement with the Union, the Authority finds that this proposal
 is not inconsistent with the Agency's right under section 7106(a)(1) of
 the Statute "to determine the . . . budget . . . of the Agency," or its
 right under section 7106(b)(1) to determine "the technology, methods,
 and means of performing work." As to its budget, the Agency merely
 asserts, "the union's proposal, potentially resulting in virtually
 limitless expenses, would have an adverse impact upon the ability of the
 agency to properly control its budget." The proposal, on its face, does
 not require any increase in Agency expenditures, nor has the Agency
 established that such requirement otherwise is inherent in the proposal.
  That is, for example, the proposal does not require the temporary
 assignment of any employee for more than 60 days in a year.  Moreover,
 even assuming that a cost increase would result from implementing the
 proposal, the Agency has not demonstrated that such increase would be
 "significant and unavoidable and . . . not offset by compensating
 benefits . . . (so as) to violate the agency's right to determine its
 budget under section 7106(a) of the Statute." American Federation of
 Government Employees, AFL-CIO, and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to
 other matters sub nom. Department of Defense v. Federal Labor Relations
 Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
 FLRA, 455 U.S. 945 (1982).
    As to the technology, methods, and means, the Agency asserts without
 any support whatsoever that the proposal "clearly . . . would infringe
 upon these rights." Since, however, the Agency has not established that
 either the proposal would have any technological relationship to
 accomplishing or furthering the performance of the Agency's work;  or
 that it involves the methods or means of such work performance, there is
 no basis upon which to conclude that the proposal concerns these matters
 which are negotiable only at the election of the Agency under section
 7106(b)(1).  American Federation of State, County and Municipal
 Employees, AFL-CIO, Local 2477 and Library of Congress, Washington,
 D.C., 7 FLRA No. 89 (1982).
    Finally, as to the Agency's additional contention that the proposal
 is barred from negotiation by the Agency regulation quoted above, for
 which it asserts a compelling need, the Authority makes the following
 determination.  The Agency's claim that its regulation "can be
 considered essential . . . due to the necessity of a uniform policy
 regarding field expenses that conforms to budgetary requirements and
 limitations in this fiscally unpredictable period," is wholly
 unsupported in the record.  Consequently, the Agency has failed to
 demonstrate that the regulation meets any of the criteria set forth in
 section 2424.11 of the Authority's Rules and Regulations.  Thus, the
 Agency regulation cannot bar negotiation of the Union proposal.  Naval
 Air Development Center, 2 FLRA 451 (1980), supra.
                             Union Proposal 6
          Certification of condition requiring sick leave.  An employee
       who is absent on sick leave is generally not required to submit a
       medical certificate.  When it has been established that a pattern
       of abuse exists, the employee will be notified in writing that
       future absences must be substantiated by a doctor's certificate
       preferably on FDIC Form 62.
    The Agency's regulations, as relevant here, require an employee to
 submit a medical certificate for absences on sick leave of more than
 three days.  The Union's proposal, in contrast, generally would not
 require such certificates except when it has been established that a
 "pattern of abuse" of sick leave exists.  The Union has clarified the
 phrase "pattern of abuse" as meaning usage of sick leave giving rise to
 suspicion of abuse.  In agreement with the Union, the Authority finds
 that this proposal is not barred from negotiation either by the FPM or
 by Agency regulation, as claimed by the Agency.
    As to FPM chapter 630, relied upon by the Agency, it merely provides
 that "Agency administrators and supervisors are . . . responsible for
 controlling absence and leave so that all employees use leave according
 to legal requirements and without abuse of leave privileges(;)" and that
 "(a)n agency has the authority and responsibility to determine that the
 nature of the employee's illness was such as to incapacitate him for his
 job and that the other reasons for which sick leave is granted are
 true." Thus, the FPM does not require certification for such leave
 absences of any duration.  FPM provisions, at most, prescribe various
 general agency responsibilities concerning control of leave usage;
 under them an agency retains discretion as to what methods are to be
 used in determining the validity of sick leave usage by its employees.
 Hence, the disputed proposal is not inconsistent with these FPM
    As to the internal regulation upon which the Agency relies, the
 Agency contends that a compelling need for it exists, in effect, under
 section 2424.11(a) of the Authority's Rules and Regulations.  /3/
 Specifically, the Agency asserts that the regulation is necessary for
 the purpose of preventing sick leave abuse that "would impair the
 mission and function of the (Agency)." The Agency, however, has failed
 to support its contention that without the certificate requirement
 contained in its regulation it will be unable to prevent sick leave
 abuse.  In this respect, the record indicates that the Union proposal,
 as the Union explains it, would require medical certification from
 employees whose pattern of sick leave usage gives rise to a suspicion of
 abuse.  Hence, the Agency's claim of compelling need for its regulation
 cannot be sustained.  Naval Air Development Center, 2 FLRA 451 (1980),
                             Union Proposal 7
          All stayout travel will be accomplished during the normal
       working hours.
                             Union Proposal 8
          The following provisions apply to temporary duty assignments:
          (a) The beginning day, usually Monday, of travel from the
       employee's residence to a job assignment and at the ending day,
       usually Friday, of return travel to employee's residence.  This
       travel will be accomplished at the employee's option within the
       duty hour workweek.
          (b) In any change of job assignment on a day in between the
       normal workweek of Monday through Friday, the employee will be
       allowed to return and subsequently leave his/her residence within
       the normal tour of duty eight (8) hour workday as detailed above
       unless the assignment is in the same city.
          (c) A temporary duty assignment (any job assignment) normally
       ends on Friday and begins on the following Monday even if the job
       location (bank assignment) has not changed.  Therefore, travel to
       and from the employee's residence, at the employee's option, will
       be accomplished within the forty (40) hour workweek.
    Based on the record before the Authority, it appears that Union
 Proposals 7 and 8 concern travel to and from temporary duty stations.
 In this regard, 5 U.S.C. 6101(b)(2) requires agencies to schedule
 employee travel during hours of duty "to the maximum extent
 practicable." However, it is implicit under this section that management
 can direct employees to perform travel on their own time when travel
 during duty hours is not "practicable." /4/ Thus, even if Union
 Proposals 7 and 8 were meant to apply only in non-emergency situations,
 so as to permit the Agency to take whatever action is necessary during
 periods of emergency, as claimed by the Union, the "emergency" standard
 is nonetheless more restrictive than and, hence, inconsistent with the
 statutory standard "to the maximum extent practicable," established in 5
 U.S.C. 6101(b)(2).  Therefore, these proposals are outside the duty to
 bargain under section 7117(a) of the Statute.
    In addition, sections (a) and (c) of Union Proposal 8 would also
 place impermissible restrictions on the Agency's right to determine when
 temporary work assignments will begin and end.  That is, sections (a)
 and (c) of Proposal 8, by mandating that temporary assignments begin on
 Monday and end on Friday, with such Mondays and Fridays being used for
 employee travel, effectively prohibit the Agency from assigning work
 connected with temporary duty assignments on all or a portion of Mondays
 and Fridays.  In this respect, sections (a) and (c) are to the same
 effect as Proposal III in International Association of Firefighters,
 AFL-CIO, Local F-116 and Headquarters, 4392d Aerospace Support Group
 (SAC), Vandenberg Air Force Base, California, 9 FLRA No. 83 (1982),
 which would have limited the hours during which work normally could have
 been performed and which was found to be inconsistent with management's
 right under section 7106(a)(2)(B) of the Statute "to assign work." Thus,
 based on the decision in 4392d Aerospace Support Group, and the reasons
 stated therein, sections (a) and (c) of Proposal 8 are also inconsistent
 with the right "to assign work." /5/
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review relating to
 Union Proposals, 1, 3, 7 and 8 be, and it hereby is dismissed.  IT IS
 FURTHER ORDERED that the Agency shall upon request (or as otherwise
 agreed to by the parties) bargain concerning Union Proposals 2, 4, 5 and
 6.  /6/ Issued, Washington, D.C., August 12, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ 5 CFR 735.403 (1982).
    /2/ Section 2424.11 provides, in pertinent part, 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.
                                .  .  .  .
          (c) The rule or regulation implements a mandate to the agency
       or primary national subdivision under law or other outside
       authority, which implementation is essentially nondiscretionary in
    /3/ Note 2, supra.
    /4/ See 55 Comp.Gen. 590 (1975) holding that payment of two or more
 days of per diem to facilitate employee travel only during duty hours is
 "unreasonable" and, hence, employees may be required to travel on their
 own time to avoid such "unreasonable" payment.
    /5/ In view of the decision herein, it is unnecessary to pass upon
 the Agency's additional contentions concerning the nonnegotiability of
 Union Proposals 7 and 8.
    /6/ In finding Union Proposals 2, 4, 5 and 6 negotiable, the
 Authority makes no judgment as to their merits.