17:0122(24)NG - AFGE National Council of Field Labor Locals and Labor -- 1985 FLRAdec NG
[ v17 p122 ]
The decision of the Authority follows:
17 FLRA No. 24 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF FIELD LABOR LOCALS Union and DEPARTMENT OF LABOR Agency Case No. O-NG-702 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) and raises an issue regarding the negotiability of the following Union proposal: Should the funding of DOL's Supplemental Appropriations be passed after an employee suffers a loss of pay through furlough, DOL will grant each employee adversely affected an amount of administrative leave equal to the number of hours/days spent in furlough status. Such administrative leave must be used by October 1, 1983. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The Union's proposal would require the Agency to grant employees who suffered a loss of pay through furlough administrative leave equal to the number of hours or days spent in furlough status in the event that the Department of Labor's supplemental appropriations legislation is subsequently enacted. The Agency contends that the proposal is inconsistent with the Federal Personnel Manual (FPM), Supplement 990-2, Book 630, Subchapter S11-5, decisions of the Comptroller General and the use of appropriated funds as provided under 31 U.S.C. 628. /1/ Thus, the Agency contends that it has no obligations to bargain over the Union's proposal pursuant to section 7117(a) of the Statute. /2/ Contrary to the Agency's claim that its authority to grant administrative leave is limited to only those situations enumerated in the FPM, it is firmly established that the head of an agency has discretion to grant administrative leave to its employees in other situations as well. /3/ The applicable section of the FPM, Subchapter S11-5 of FPM Supplement 990-2, Book 630, /4/ in addition to stating that the granting of administrative leave is within the agency's discretion also refers to the examples listed therein as "(s)ome of the more common situations in which agencies generally excuse absences without charge to leave . . . ." Such language clearly indicates that an agency's discretion is not limited only to the given situations. Therefore, even assuming that the cited provision of the FPM is a Government-wide regulation, the Agency has failed to show that the Union's proposal is inconsistent therewith. Furthermore, as to the Agency's claim that the granting of administrative leave as requested by the proposal is inconsistent with Comptroller General's decisions, the Authority notes that the Comptroller General has issued a decision wherein he found the retroactive granting of administrative leave for employees in a non-pay status to be consistent with the FPM and Federal law. In Merit Systems Protection Board, 62 Comp.Gen. 1, 3 (1982), which involved the Merit Systems Protection Board's furlough of its employees, the Comptroller General ruled: (T)he Merit Systems Protection Board may, in its discretion, grant administrative leave retroactively to the employees affected by the partial shutdown, as a proper exercise of its administrative discretion to the extent to which funds had been appropriated and were available and adequate on the dates in question to cover the amount of the gross salaries of the affected employees. Thus, under circumstances strikingly similar to those involved herein, the Comptroller General has found appropriate the retroactive granting of administrative leave for periods in which employees were in non-pay status. Accordingly, the Agency's claim that the Union's proposal is inconsistent with Comptroller General's decisions is rejected.