23:0117(13)NG - NFFE Local 1429 and Army, Letterkenny Army Depot -- 1986 FLRAdec NG
[ v23 p117 ]
The decision of the Authority follows:
23 FLRA No. 13 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1429 Union and U.S. DEPARTMENT OF THE ARMY LETTERKENNY ARMY DEPOT Agency Case No. 0-NG-1154 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case The petition for review comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of a single provision of an agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. II. Provision Article 22, Section 2 -- Employees who volunteer as blood donors will normally be authorized four hours of excused absence, insofar as scheduling of donors will allow, for recuperation following blood donation. In unusual cases, i.e. the unusual need for recuperation occurs, up to an additional four hours may be authorized (Ref: CPM 990-2, Book 630.S11). Such absence will not include time spent in donating bloor, traveling from the site of donation nor will it include the employees' lunch hour. The scheduling of blood donation times will be the function of the depot blood coordinator through the division office with times being equally rotated throughout the divisions. Employees who request, but are not scheduled for the quarterly bloodmobile visit, will be given an opportunity to donate in accordance with FPM Supplement 990-2, Book 630. Emergency donations will be handled on a case-by-case basis by the depot blood coordinator. (Only the underlined portion of the provision is in dispute.) III. Positions of the Parties The Agency contends that the provision is inconsistent with (1) the Agency's right to assign work under section 7106(a)(2)(B) of the Statute; and (2) Department of Defense Regulation, Civilian Personnel Manual (CPM) 1400.25-M CPM 990-2, 630.S11-5, /1/ for which a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11 of the Authority's Rules and Regulations. In support of its first contention, the Agency argues that the granting of an employee's request for administrative leave in an amount in excess of four hours for the purpose of donating blood without regard to the necessity of the employee's service during the period covered by the request interferes with the Agency's right to assign work under the Statute. In support of its second contention, the Agency argues that the provision conflicts with its regulation by requiring more than four hours of administrative leave to be granted and that a compelling need exists for that regulation. In response to the Agency's first contention, the Union maintains that its intent in using the language, "normally be authorized four hours of excused absence," is that the Agency can deny permission for employees to donate blood when the time necessary for such donation would interfere with the Agency's mission and, therefore, it does not interfere with the assignment of work. According to the Union, the provision applies only to those employees who can be scheduled by management for the time off. In response to the Agency's second contention, the Union argues that the Agency regulation (1) does not have a compelling need, and (2) is a guideline rather than a mandatory provision. IV. Analysis and Conclusion The disputed provision requires the Agency to add the time spent donating blood and traveling to the donation site to the four hours of excused absence for employees who donate blood. Contrary to the Agency's contention, the provision, as interpreted by the Union, is not inconsistent with its right to assign work under the Statute. As noted, the Union's intent is that the Agency can deny permission for employees to donate blood when the time necessary for such donation would interfere with the Agency's work. Thus, the provision would not restrict the Agency's right to deny an employee's request when the Agency needed the employee to perform work. Accordingly, the provision is not inconsistent with the Agency's right to assign work. The Agency's second contention is that the provision is inconsistent with Agency regulation, CPM 1400.25-M, CPM 990-2, 630.S1105. In order for the Agency to establish that the provision is barred by an Agency regulation, it must (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the provision; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its Regulations. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Union Proposal 7). To establish compelling need the Agency must demonstrate that its regulation is "essential" or "necessary" to achieve certain ends. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 220 (1981). Generalized and conclusionary reasoning is not enough to support a finding of compelling need. Federal Deposit Insurance Corporation, Madison Region, supra. The first two requirements of the three part test have been met. The Agency has identified a specific Agency-wide regulation, CPM 1400.25-M, CPM 990-2, 630.S11-5 and the provision authorizes the grant of more than four hours of excused absence in situations other than those specified in the regulation. Thus, the provision conflicts with the Agency regulation. As to the final requirement, the Agency argues that under criterion (a) of section 2424.11 /2/ the provision is not "consistent with the requirements of an effective and efficient government" because the provision would raise costs to the Agency by increasing at least 50% the amount of time for excused absence for blood donation. The increase, the Agency asserts, would be a result of additional time in giving blood and traveling to and from the donation site. The Union disputes these assertions, contending that the time taken in actually giving blood is only 10 to 15 minutes and that the time for traveling to the donation site is minimal since most donations are made at bloodmobiles on the military installation. As noted in Federal Deposit Insurance Corporation, Chicago Region, Illinois, supra, to establish compelling need the Agency must demonstrate that its regulation is "essential" or "necessary". In this case the Agency has not done so. The Agency has offered only generalized and conclusionary reasoning, which was disputed by the Union, in support of its assertion that there is a compelling need for the Agency regulation. With reference to the alleged increase in costs, the Agency has not shown that there would be any increase in the number of employees who donate blood under the provision. Even assuming that the provision would result in an increase in the hours of excused absence, the Agency has not shown that the increase would be sufficient to justify a finding that the provision is inconsistent with an effective and efficient government. Since the Agency has not established a compelling need for the Agency regulation under section 2424.11 of the Authority's Rules and Regulations, the Agency has not shown that the provision is barred by an Agency regulation. Therefore, the provision is within the Agency's duty to bargain under the Statute. V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall rescind its disapproval of the disputed provision. /3/ Issued, Washington, D.C., August 14, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) S-11.5. Administrative Discretion b. Blood Donation. DOD employees are encouraged to serve as blood donors and will be excused from work without charge to leave for the time necessary to donate the blood, for recuperation following blood donation, and for necessary travel to and from the donation site. The maximum excusal time will not exceed 4 hours, except in unusual cases. When the employee must travel a long distance, or when unusual need for recuperation occurs, up to an additional 4 hours may be authorized. (2) Section 2424.11(a) of the Authority's Rules and Regulations contains the following criterion: (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. (3) In deciding that the provision is within the duty to bargain, the Authority expresses no opinion as to the merits of the provision.