18:0307(38)NG - NAGE Local R14-62 and Army Dugway Proving Ground, Dugway, UT; NAGE Local R14-62 and Army Dugway Proving Ground, Dugway, UT -- 1985 FLRAdec NG



[ v18 p307 ]
18:0307(38)NG
The decision of the Authority follows:


 18 FLRA No. 38
 
 NATIONAL ASSOCIATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL R14-62 
 Union,
 
 and 
 
 U.S. ARMY DUGWAY PROVING 
 GROUND, DUGWAY, UTAH 
 Agency
 
                                            Case No. 0-NG-727
 
 and 
 
 NATIONAL ASSOCIATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL R14-62 
 Union,
 
 and 
 
 U.S. ARMY DUGWAY PROVING 
 GROUND, DUGWAY, UTAH 
 Agency
 
                                            Case No. 0-NG-912
 
          CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petitions for review in these cases /1/ come before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raise an issue
 regarding the negotiability of the following two identical Union
 proposals:
 
          Affected employees (shall) be placed on administrative leave
       without charge to annual leave for the period of partial closure.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The record indicates that the Union sought to negotiate over the
 disputed proposals upon receiving notice that the Agency intended to
 partially close its facilities at Dugway Proving Ground during the
 Christmas-New Year holiday period.  The Agency refused to bargain over
 the Union's proposals which would require the granting of administrative
 leave to employees compelled to take leave during the partial closure,
 contending that such proposals are inconsistent with Agency regulations
 for which there is a compelling need and, therefore, barred from
 negotiations under section 7117(a)(2) of the Statute.  /2/ In this
 regard, the Agency relies upon Army Civilian Personnel Regulation 990-2
 (C11), subchapter 610.S3, paragraph C3 /3/ and Department of Defense
 Civilian Personnel Manual Supplement 990-2, Book 610, subchapter S3,
 paragraph 1(a), /4/ as prohibiting the Agency from granting
 administrative leave when sufficient advance notice can be given to
 permit, as relevant herein, the granting of annual leave. The Agency
 contends that the regulations are essential to the functioning of the
 Agency in an effective and efficient manner, as provided under section
 2424.11(a) of the Authority's Rules and Regulations, /5/ since it can
 only perform its national defense mission effectively and efficiently
 where it retains the right to curtail operations which do not contribute
 to the accomplishment of that mission.  The Agency basically argues that
 the regulations are essential to insure that the Agency's objective of
 curtailing operations, and thereby reducing expenditures by temporarily
 closing its facilities during unproductive periods of operation, is not
 negated by the expense incurred by granting administrative leave to
 employees during the period of partial closing.  The Union, in essence,
 argues that the Agency has not demonstrated the essentiality of its
 regulations to eliminate unproductive work time by curtailing
 unproductive operation, since the Agency has failed to provide evidence
 that the cited regulations represent the only way to eliminate
 unproductive work time.
 
    The Authority finds that the decision to shut down or curtail
 operations of an agency is an aspect of management's right to layoff
 under section 7106(a)(1) of the Statute.  The proposal would not prevent
 the Agency from deciding to shut down its facilities.  It would,
 however, conflict with the Agency's regulations, which implement that
 decision in a manner which is critical to achieving the Agency's goal of
 saving money.  That is, the Agency has demonstrated that its regulations
 prohibiting administrative leave (which the proposals would require)
 during the partial closing are critical components of the Agency's
 achieving its objective of saving money by curtailing operations so as
 to insure the Agency's performance of its mission in an effective and
 efficient manner.  /6/ Thus, in the circumstances herein, the Authority
 finds that it would be consistent with an effective and efficient
 Government for the Agency's regulations to bar negotiation of the
 Union's proposals and, therefore, finds that the proposals are outside
 the duty to bargain under section 7117(a)(2).
 
    Contrary to the Union's contention, there is no indication in the
 record that the Agency could achieve its objective of reducing
 expenditures during periods of unproductive operation without the
 implementation of its rule prohibiting administrative leave when
 sufficient advance notice is given.  Clearly, the implementation of the
 Union proposals, which would require the Agency to grant employees
 administrative leave during this period, would result in additional
 labor cost during a period in which the Agency seeks to reduce
 expenditures.  The Agency, in essence, would be compelled to pay
 employees during periods when the facility was not in full operation and
 when a substantial number of employees would normally (if the proposals
 were not in effect) be on annual leave.  Therefore, the Authority
 concludes that the Agency herein has demonstrated that its regulations
 are "essential as distinguished from helpful or desirable" and, thus,
 has established that a compelling need exists for the regulations under
 the requirements set forth in section 2424.11(a) of the Authority's
 Rules and Regulations so as to bar negotiations of the Union's
 proposals.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., May 24, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority, pursuant to a request by the parties, has
 consolidated these two cases because the proposals involved are
 identical and present the same negotiability question.
 
 
    /2/ Section 7117(a)(2) provides:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
                                  * * * *
 
          (a)(2) The duty to bargain in good faith shall, to the extent
       not inconsistent with Federal law or any Government-wide rule or
       regulation, extend to matters which are the subject of any agency
       rule or regulation referred to in paragraph (3) of this subsection
       only if the Authority has determined under subsection (b) of this
       section that no compelling need (as determined under regulations
       prescribed by the Authority) exists for the rule or regulation.
 
 
    /3/ Section 990-2, subchapter 610.S3, paragraph 3C, of the Army
 Civilian Personnel Regulation provides as follows:
 
                        S3-3.  EFFECT OF DISMISSAL
 
                                  * * * *
 
          c.  Where advance notice can be given.
 
          The authority to excuse employees administratively is not to be
       used in instances where the period of interrupted or suspended
       operations can be anticipated sufficiently in advance to permit
       arranging for assignment to other work or the scheduling of annual
       leave . . . .
 
 
    /4/ Section 990-2, Book 610, subchapter S3-1(a), of the Department of
 Defense Civilian Personnel Manual Supplement provides as follows:
 
          S3-1. General Authority
 
          a.  Closing an Activity.  Commanders are authorized to close
       all or part of an activity consistent with the policy outlined in
       this subchapter and to excuse employees administratively.  Such
       instances will be made a matter of record at the activity.  This
       authority does not extend to periods of interrupted or suspended
       operations that can be anticipated sufficiently in advance to
       permit arranging for assignment to other work or the scheduling of
       annual leave.
 
 
    /5/ Section 2424.11 of the Authority's Rules and Regulations