26:0380(47)NG - SEIU Local 556 and Navy, Marine Corps Exchange 0911, Marine Corps Air Station, Kaneohe Bay, HI; SEIU Local 556 and Army, Army Support Command, Hawaii Fort Shafter, HI -- 1987 FLRAdec NG



[ v26 p380 ]
26:0380(47)NG
The decision of the Authority follows:


 26 FLRA No. 47
 
                                            Case No. 0-NG-737
 
 SERVICE EMPLOYEES INTERNATIONAL 
 UNION, LOCAL 556, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, MARINE 
 CORPS EXCHANGE 0911, MARINE CORPS AIR
 STATION, KANEOHE BAY, HAWAII
 Agency
 
                                            Case No. 0-NG-750
 
 SERVICE EMPLOYEES INTERNATIONAL 
 UNION, LOCAL 556, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, U.S. 
 ARMY SUPPORT COMMAND, HAWAII 
 FORT SHAFTER, HAWAII
 Agency
 
              DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
 
                         I.  Statement of the Case
 
    These cases /2/ are before the Authority because of negotiability
 appeals filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The appeals concern
 the negotiability of six Union proposals.  /3/
 
                            II.  Proposals 1-6
 
                           Proposal 1 (0-NG-737)
 
                      SICK LEAVE ARTICLE, SECTION 1:
 
          Regular full-time, regular part-time and regularly scheduled
       intermittent employees will accrue sick leave at the rate of five
       percent (5%) of the total basic workweek hours in a pay status and
       will be credited from the date of hire.  Sick leave credits,
       including those accrued while on annual or sick leave, are
       credited to the employee's account at the end of the pay period in
       which accrued.  There is no limit on the amount of sick leave that
       employees may accumulate and carry forward from one year to
       another.  No payment for unused sick leave will be made to an
       employee under any circumstances.
 
                           Proposal 2 (0-NG-750)
 
                    ARTICLE 10, SICK LEAVE, SECTION 2:
 
          Earning Rates.  Regular full-time, regular part-time, and
       regularly scheduled intermittent employees earn sick leave at the
       rate of five percent (5%) of the hours in a pay status up to a
       maximum of forth (40) hours per week.  The minimum accrual is 1/4
       hour in a pay period.  Sick leave is earned from the first pay
       period and may be used when earned.  Intermittent on-call and
       temporary employees have no entitlement to sick leave.  There is
       no maximum accumulation of sick leave.
 
                          (Proposal 3 (0-NG-737)
 
                     ANNUAL LEAVE ARTICLE, SECTION 1:
 
          Regular full-time, regular part-time, and regularly scheduled
       intermittent employees shall earn annual leave.  The amount of
       annual leave earned depends on the employee's total length of
       creditable service.  Total creditable service will be to include
       all prior DOD NAFI service, including service with current
       employer, as a regular full-time, regular part-time, and regularly
       scheduled intermittent employee.  Fractional parts of months will
       be included in determining length of service.  However, the total
       length of service will be stated in terms of complete months.
 
          a) Annual leave will accrue to regular full-time, regular
       part-time, and regularly scheduled intermittent employees while in
       a pay status, excluding overtime hours worked in excess of forty
       (40) hours during the basic workweek in accordance with the
       following:
 
          1) Employees with less than three (3) years of service will
       accrue five percent (5%) of the total hours in the basic workweek.
 
          2) Employees with three (3) years but less than fifteen (15)
       years of service will accrue 7.5 percent of the total hours in the
       basic workweek, except for the final bi-weekly period of the leave
       year when it will accrue at the rate of 12.5 percent of the total
       hours in the basic workweek.
 
          3) Employees with more than fifteen (15) years of service will
       accrue 10 percent of the total hours in the basic workweek.
 
          Accrued leave is credited to an employee upon completion of a
       ninety (90) calendar day qualifying period, and thereafter at the
       end of the pay period in which it is earned.  If an employee
       separates prior to completing the ninety (90) day qualifying
       period, no leave credit for this period of employment will be
       granted or paid for.
 
          The maximum amount of accumulated annual leave that may be
       carried over from one leave year to the next will be two hundred
       forty (240) hours.  Upon separation from a NAFI, an employee will
       be paid for the accumulated annual leave credited to the
       employee's account.
 
                           Proposal 4 (0-NG-750)
 
                   ARTICLE 12, ANNUAL LEAVE, SECTION 1:
 
          Regular full-time, regular part-time, and regularly scheduled
       intermittent employees shall earn annual leave.  The amount of
       annual leave earned depends on the employee's total length of
       creditable service.  Total creditable service will include all
       prior D.O.D. NAFI service, including service with current employer
       as a regular full-time, regular part-time and regularly scheduled
       intermittent employee.  Fractional parts of months will be
       included in determining length of service.  However, the total
       length of service will be stated in terms of complete months.
 
          a) Annual leave will accrue to regular full-time, regular
       part-time, and regularly scheduled intermittent employees while in
       a pay status, not to exceed forty (40) hours per week.
 
          1.  Employees with less than three (3) years of service will
       accrue five percent (5%) of the total hours in the basic workweek.
 
          2.  Employees with three (3) years, but less than fifteen (15)
       years of service, will accrue 7.5 percent of the total hours in
       the basic workweek, except for the final bi-weekly period of the
       leave year, when it will accrue at the rate of 12.5 percent of the
       total hours in the basic workweek.
 
          b) Accrual of annual leave is a right of the employee, in that
       its accrual may not be denied.
 
                           Proposal 5 (0-NG-750)
 
   ARTICLE 11, ABSENCE FOR MATERNITY/PATERNITY REASONS, SECTIONS
 1 & 2:
 
          Section 1.  Absence for maternity reasons will be approved for
       incapacitation related to pregnancy and confinement.  It is
       changeable to sick leave, annual leave, and/or leave without pay.
 
          Section 2.  Regular full-time, regular part-time and regularly
       scheduled intermittent male employees may request annual leave
       and/or leave without pay for purposes of assisting or caring for
       their minor children, or the mother of their newborn child, while
       she is incapacitated, for maternity reasons.
 
                           Proposal 6 (0-NG-750)
 
  ARTICLE 13, ADMINISTRATIVE LEAVE AND EXCUSED ABSENCES, SECTIONS
 1, 4,
 and 5:
 
          Section 1.  A regular full-time, regular part-time, or
       regularly scheduled intermittent employee will be authorized
       absence from official duties for official jury duty or for
       attending court in the capacity of a witness on behalf of the U.S.
       Government or a Nonappropriated Fund Instrumentality of the U.S.
       Army Support Command, Hawaii.  The employee must present the court
       order, subpoena or summons to his supervisor as far in advance as
       possible so that arrangements may be made for his absence.  Upon
       return to duty, written evidence of his attendance at court is
       required, showing the dates (and hours, if possible) of the
       service.
 
          Section 4.  Military leave for a regular full-time, regular
       part-time or regularly scheduled intermittent employee, who is a
       reservist of the Armed Forces of the United States or a member of
       the National Guard, shall be granted in accordance with applicable
       regulations.
 
          Section 5.  During periods of shutdown, all regular full-time,
       regular part-time, and regularly scheduled intermittent employees
       will be authorized administrative leave without charge to leave or
       loss of basic pay when advance notice is given.
 
                         III.  Preliminary Matters
 
    The Union argues that the Agencies' statements of position are not
 properly before the Authority because they were not signed by either
 Agency's designated representative of record.  This same argument was
 made and rejected in Service Employees' International Union, Local 556,
 AFL-CIO and Department of the Navy Exchange, Pearl Harbor, Hawaii, 25
 FLRA No. 65 (1987).  It is rejected here for the same reasons as
 expressed in that decision.
 
    Furthermore, the Union alleges that the Agencies failed to provide
 the Union with relevant and pertinent information needed to fully
 present its position.  The Union had requested statistical data as to
 the number of hours worked by intermittent employees and the length of
 time in terms of months that those employees worked for the past two
 years.  However, the Authority concludes that such information is not
 relevant to the negotiability of the proposals.  That is, the Union's
 ability to present this negotiability appeal was not prejudiced by the
 Agencies' alleged failure to disclose the requested data.  Issues as to
 an Agency's alleged failure to provide information should be raised in
 an unfair labor practice proceeding, not a negotiability appeal.
 
    Finally, the Union contends that the Agencies are prevented here from
 raising these allegations of nonnegotiability because they had, in prior
 cases concerning the same subject matter, withdrawn their allegations of
 nonnegotiability.  However, again, the Union's contention cannot be
 sustained.  An Agency's withdrawal of its allegations of
 nonnegotiability in prior cases is not dispositive of whether proposals
 are within the duty to bargain under the Statute.  Similarly, the prior
 inclusion of proposals concerning the same subject matter in a
 collective bargaining agreement is not dispositive of those proposals'
 negotiability under the Statute.
 
                       IV.  Positions of the Parties
 
    Proposals 1, 2, 3, and 4 would enable regularly scheduled
 intermittent employees in Nonappropriated Fund Instrumentalities (NAFIs)
 to earn sick and annual leave.  Proposal 5 would permit absence for
 maternity or paternity reasons utilizing various types of leave for
 these employees.  Proposal 6 would provide the same employees with
 administrative leave and excused absences under the circumstances
 described in that proposal.  /4/ The Agencies contend that the proposals
 are outside the duty to bargain because they do not concern conditions
 of employment of bargaining unit employees and are inconsistent with
 Agency regulations for which there is a compelling need under section
 7117(a)(2).  In this regard, the Agencies argue that excluding certain
 NAF employees from enjoying some benefits is necessary to maintain a
 financially viable NAF system.  Derivatively, they claim that finding
 the proposals negotiable would be inconsistent with the statutory
 requirement of an effective and efficient government.  The Union
 disputes the Agencies' contentions.
 
                        V.  Analysis and Conclusion
 
    A.  The Proposals Concern Conditions of Employment
 
    In American Federation of Government Employees, AFL-CIO, Local 1897
 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
 No. 41 (1986), appeal docketed sub nom. Department of the Air Force,
 Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2,
 1987), the Authority held that nothing in the Statute, or its
 legislative history, bars negotiation of proposals relating to pay and
 fringe benefits insofar as (1) the matters proposed are not specifically
 provided for by law and are within the discretion of the agency and (2)
 the proposals are not otherwise inconsistent with law, Government-wide
 rule or regulation or an agency regulation for which a compelling need
 exists.  Based on that analytical framework, we held the proposal in
 that case, which required the agency to pay up to 75 percent of the
 premium cost of health insurance for NAF employees, to be within the
 duty to bargain.
 
    The present case involves leave benefits for NAF employees, which are
 matters not governed by law, but by agency regulations.  Since leave
 benefits are not a matter specifically provided for by Federal statute,
 this matter is not excepted from the definition of conditions of
 employment under section 7103(a)(14)(C) of the Statute.
 
    B.  The Agency Has Not Established a Compelling Need for Its
 Regulations to Bar Negotiations
 
    To establish that a proposal is nonnegotiable on the basis of
 compelling need, an agency must (1) identify a specific agency-wide
 regulation;  (2) show that there is a conflict between its regulation
 and the proposal;  and (3) demonstrate that its regulation is supported
 by a compelling need with reference to the Authority's illustrative
 standards set forth in section 2424.11 of the Authority's Rules and
 Regulations (5 CFR Section 2424.11).  Generalized and conclusionary
 reasoning does not support a finding of compelling need.  American
 Federation of Government Employees, AFL-CIO, Local 3804 and Federal
 Deposit Insurance Coporation, Madison Region, 21 FLRA No. 104 (1986)
 (Proposal 7).
 
    The Agencies assert that, because the proposals would provide leave
 benefits to intermittent employees, they conflict with the Department of
 Defense Personnel Policy Manual for Nonappropriated Fund
 Instrumentalities and other Agency regulations authorizing leave
 benefits only to regular full-time and regular part-time employees.  The
 Agencies contend that the regulatory provisions meet the Authority's
 criterion for determining compelling need set forth in 5 CFR Section
 2424.11(a).  That is, they claim that the regulations are essential, as
 distinguished from helpful or desirable, to the accomplishment of their
 missions in a manner which is consistent with the requirements of an
 effective and efficient government.  In support, the Agencies state but
 do not demonstrate that the regulations are necessary to maintain a
 viable NAF system.  The Agencies do not indicate why this goal could not
 be achieved through means other than the regulations at issue.  They
 also fail to show that the proposals would result in significant and
 unavoidable costs not offset by compensating benefits.  See
 Lexington-Blue Grass Army Depot, Lexington, Kentucky and American
 Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6
 (1986), in which the Authority held that effectiveness and efficiency
 are not to be measured solely in monetary terms.
 
    We find that the Agencies have shown a conflict between the proposals
 and the regulations relied upon, but that they have presented nothing
 more than generalized and conclusionary statements to support the
 contention that a compelling need exists for the regulations.  Thus, we
 find that the Agencies have not met their burden of demonstrating that
 the regulations are essential, as distinguished from merely being
 helpful or desirable, under 5 CFR Section 2424.11(a), as claimed.  See
 American Federation of Government Employees, AFL-CIO, Local 1928 and
 Department of the Navy, Naval Air Development Center, Warminster,
 Pennsylvania, 2 FLRA 451, 454 (1980).  Consequently, we conclude that
 the Agencies have not provided a basis for finding the proposals
 nonnegotiable.
 
                                VI.  Order
 
    The Agencies must bargain, upon request or as otherwise agreed to by
 the parties, over the proposals.  /5/
 
    Issued, Washington, D.C., March 25, 1987
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                   Separate Opinion of Chairman Calhoun
 
    As in American Federation of Government Employees, AFL-CIO, Local
 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24
 FLRA No. 41 (1986), petition for review filed sub nom. Department of the
 Air Force, Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir.
 February 2, 1987), the bargaining unit in this case is composed of
 Non-appropriated Fund Instrumentality (NAFI) employees.  In Eglin, the
 issue concerned the negotiability of a proposal concerning the
 employer's share of the premium costs of employee health insurance.  In
 my opinion in that case, I stated that I would find a compelling need
 for the regulatory scheme which sets forth the policies, organization,
 and practices for the administration and management of NAFIs and their
 employees, including the specific regulations concerning health
 insurance, as well as wages and other money-related fringe benefits.
 
    I reach the same conclusion in this case, where the regulation
 provides that "intermittent employees are not eligible for participation
 in benefit programs including the various types of leave." In my view,
 this regulation, as part of the overall NAFI regulatory scheme, is
 necessary to maintain the uniformity in treatment of NAFI employees
 which is, in turn, essential to the accomplishment of the Agencies'
 worldwide missions within the meaning of section 2424.11(a) of the
 Authority's regulations.  Also, as I stated in Eglin Air Force Base, in
 the absence of a clear expression of Congressional intent to make these
 matters negotiable, the Authority should not imply such an intent.
 Accordingly, I would find the Unions' proposals in this case to be
 nonnegotiable.
 
    Issued, Washington, D.C., March 25, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) The record indicates that the Agency requested that cases
 0-NG-736 and 0-NG-750 be consolidated.  This request is denied because
 the issues involved are not sufficiently similar to warrant
 consolidation.  Instead, 0-NG-737 is consolidated with 0-NG-750 because
 these cases present issues which are in effect identical.
 
    (3) The Agency, in its Statement of Position (0-NG-750), withdrew its
 allegation of nonnegotiability as to Article 13, Sections 2(a), (b), (c)
 and (d).  Therefore, they will not be considered further herein.
 
    (4) There is a difference in wording between the petition and an
 attachment to the petition with reference to section 5 of Proposal 6.
 However, it is undisputed that what this section is intended to do is to
 extend the administrative leave provision to regularly sch