14:0179(37)NG - NTEU and FDIC -- 1984 FLRAdec NG



[ v14 p179 ]
14:0179(37)NG
The decision of the Authority follows:


 14 FLRA No. 37
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 FEDERAL DEPOSIT INSURANCE
 CORPORATION
 Agency
 
                                            Case No. O-NG-430
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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).  The issue presented
 is the negotiability of the following Union proposal:
 
          Once earned, employees may use compensatory time at any time
       prior to the end of a leave year or any time within six pay
       periods-- whichever is later.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The Agency by regulation has established a policy that compensatory time
 " . . . must be taken during the same or the next two pay periods
 succeeding the one in which the overtime work was performed . . . " The
 sole purpose of the Union's proposal is to expand that two pay period
 time frame to the later of either six pay periods or the end of the
 leave year in order to insure adequate opportunity for use of
 compensatory time.  The Union's statement of intent is not inconsistent
 with the proposal and, thus, is adopted for purposes of this decision.
 The Agency principally takes the position that the Union's proposal is
 barred from negotiations by its regulation for which it claims a
 compelling need.  (Subchapter 3-5 of the Agency's Leave Policy entitled
 "Using Compensation Time").
 
    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 a conflicting union
 proposal.  The illustrative criteria for determining the compelling need
 for agency regulations as relied upon by the Agency herein, are provided
 in section 2424.11(a) of the Authority's Rules and Regulations.  /1/
 Under that section, an agency can establish that a compelling need
 exists for its regulation only if it demonstrates that such regulation
 is "essential as distinguished from helpful or desirable" to achieve
 certain ends.  Thus, essentiality is the measure of whether the
 necessity claimed for the regulation to bar negotiations on a
 conflicting union proposal rises to the level of a compelling need.
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
 217, 219-20(1981).
 
    In support of its compelling need contention, the Agency asserts but
 does not demonstrate that it "would experience a serious disruption in
 the assignment of employees to necessary duties and, consequently, would
 operate less efficiently and effectively" if its policy embodied in its
 regulation on compensatory time were altered.  The proposal, by its
 language and the Union's stated intent would clearly not require this
 result.  The proposal, contrary to the Agency's assertion, only
 increases the time limit within which an employee may use compensatory
 time.  It does not require the Agency to grant an employee's particular
 request for compensatory time, if mission needs dictate otherwise,
 during the six pay period interval anymore than during the two pay
 period interval embodied in the Agency's regulation.
 
    The Agency also asserts, in support of its compelling need
 contention, that the proposal would cause recordkeeping problems both
 because of the longer period during which compensatory time could be
 carried on the books before it is used, and because it would be more
 difficult to maintain two recordkeeping systems, i.e., one for employees
 within the bargaining unit and the second for non-bargaining unit
 employees.  These Agency assertions concerning recordkeeping problems
 clearly relate to the helpfulness or desirability to the Agency of its
 regulation but do not demonstrate essentiality.  That is, the fact that
 the policy reflected in the regulation may facilitate the operation of a
 comprehensive recordkeeping system from which deviation may pose
 administrative difficulty, does not in itself demonstrate that the
 regulation meets the compelling need criteria so as to bar negotiation
 of an