26:0446(54)NG - AFGE Local 1786 and MC, Marine Corps Exchange, Henderson Hall, Arlington, Virginia -- 1987 FLRAdec NG



[ v26 p446 ]
26:0446(54)NG
The decision of the Authority follows:


 26 FLRA No. 54
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1786
 Union
 
 and
 
 U.S. MARINE CORPS, MARINE CORPS 
 EXCHANGE, HENDERSON HALL 
 ARLINGTON, VIRGINIA
 Agency
 
                                            Case No. 0-NG-1197
 
              DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
 Service Labor-Management Relations Statute (the Statute) and presents
 issues concerning the negotiability of three provisions of a locally
 negotiated agreement disapproved under section 7114(c) of the Statute.
 /2/
 
                        II.  Provisions 3, 4 and 5
 
                                Provision 3
 
          When an employee is under summons to serve on a jury or to
       qualify for jury service, time lost from his normal work schedule
       for this purpose will be charged to court leave and the employer
       will pay him in accordance with applicable pay requirements.  Such
       time will be limited to the time necessary, but not to exceed
       eight (8) hours per day.
 
                                Provision 4
 
          Employees other than temporary employees will be authorized
       absence from work for jury duty or for attending court in an
       unofficial capacity as a witness on behalf of the United States
       Government or the Government of the District of Columbia Court.
       For court leave purpose(s), municipal courts are considered state
       courts.
 
                                Provision 5
 
          The employer may authorize time off with pay to any employee
       for blood donations (for which the employee is not paid);  for
       voting in Federal, State, County and Municipal Government
       elections;  or for brief periods of absence or tardiness due to
       circumstances which are beyond the employee's control.  Funeral
       leave up to three days may be granted.  (Only the underlined
       portion is in dispute.)
 
          A.  Positions of the Parties
 
    The Agency contends that the provisions are nonnegotiable because
 they pertain to money-related fringe benefits for Federal employees and
 therefore are not conditions of employment.  It also asserts that the
 provisions concerning leave entitlements for these employees conflict
 with Agency regulations (SECNAVINST 5300.22A) which are supported by a
 compelling need.
 
    The Union contends that the Agency has discretion to determine the
 fringe benefits (including leave entitlements) for these
 Non-appropriated Fund Instrumentality (NAFI) employees and the
 provisions are therefore within the Agency's duty to bargain.  The Union
 also argues that the Agency has failed to establish a compelling need
 for its regulations governing leave.
 
                        B.  Analysis and Conclusion
 
        1.  Provisions 3, 4 and 5 Concern Employee's 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), petition for review filed sub nom. Department of the Air
 Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir.
 Feb. 2, 1987), we held that substantive proposals regarding pay and
 fringe benefits which are not specifically provided for by Federal
 statute and, thus, are within the agency's discretion, concern
 conditions of employment and are negotiable to the extent that they are
 not inconsistent with applicable laws, rules and regulations.  Id., slip
 op. at 6-7.
 
    The Agency concedes that matters pertaining to employee benefits are
 within its discretion.  Agency Statement of Position at 2 and 6.  The
 Agency has exercised that discretion by establishing, through internal
 regulation, a system of benefits for the NAFI employment program.  Under
 Eglin AFB, therefore, Provisions 3, 4 and 5 do not concern a matter
 which is excluded from the definition of conditions of employment.  /3/
 Moreover, because the Agency has discretion concerning employee leave
 benefits, Provision 5 in this case is distinguishable from Proposal 3 in
 American Federation of Government Employees, AFL-CIO, National Council
 of SSA Field Operations Locals and Social Security Administration, 25
 FLRA No. 50 (1987) which concerned funeral leave for employees subject
 to Office of Personnel Management regulations governing leave.
 
         2.  The Agency Has Not Demonstrated a Compelling Need for
 
                Its Regulations
 
    To establish a compelling need for an agency-wide regulation, an
 agency 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.  Eglin Air Force Base, Florida, 24 FLRA No. 41
 (1986), slip. op. at 11.  As to Provision 5, we find that the Agency has
 failed to identify a specific regulation that addresses the matter of
 funeral leave.  The last sentence of Provision 5 provides that up to
 three days funeral leave may be granted.  The Agency regulation does not
 provide for funeral leave for any category of employee.  Thus there is
 no substantive provision of the Agency's regulations with which
 Provision 5 can be said to conflict.  Since the Agency has not
 demonstrated that the provision conflicts with its regulations,
 Provision 5 is a negotiable condition of employment which is within the
 Agency's duty to bargain.
 
    Under Provision 3, all employees in the bargaining unit (full-time,
 part-time, temporary and intermittent) would be eligible for court leave
 for jury service.  Under Provision 4, intermittent employees as well as
 full-time and part-time employees would be eligible for court leave for
 purposes of serving as a witness.  However, the Agency regulation allows
 court leave to be granted only to full-time and part-time employees.
 Thus, the Agency has demonstrated that the provisions are inconsistent
 with the provisions of SECNAVINST 5300.22A.
 
    The Agency asserts that the policy of permitting only certain
 employees to enjoy leave benefits directly reflects the need to maintain
 a viable NAFI system, essentially because it reduces the overhead costs
 of the NAF instrumentalities.  It further asserts that a failure to find
 a compelling need for this policy would be inconsistent with the
 requirement of an effective and efficient government.
 
    Such generalized and conclusive statements are not enough to support
 a finding of compelling need.  Moreover, as we have held in other
 circumstances, demonstration that a regulation will produce cost savings
 as compared with a particular proposal is not sufficient to establish
 that the regulation is essential, as distinguished from helpful or
 desirable, to the accomplishment of the mission or the execution of the
 functions of an agency in a manner which is consistent with the
 requirements of an efficient and effective Government.  See National
 Association of Government Employees, Local R14-62 and U.S. Army, Dugway
 Proving Ground, Dugway, Utah, 26 FLRA No. 7 (1987);  Lexington-Blue
 Grass Army Depot, Lexington, Kentucky and American Federation of
 Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986).  The
 Agency therefore has failed to demonstrate how its regulation is
 essential to the effective and efficient operation of the NAF system so
 as to satisfy the Authority's compelling need criteria set forth in
 section 2424.11(a) of the Authority's Rules and Regulations.  See
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104
 (1986) (Proposal 7).  Consequently, we find that Provisions 3 and 4 are
 also within the duty to bargain.
 
                                III.  Order
 
    The Agency shall rescind its disapproval of the disputed provisions.
 /4/
 
    Issued, Washington, D.C., March 31, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                  Dissenting 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, No. 87-3073 (11th Cir.
 Feb. 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
 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.
 Subsequently, in Service Employees International Union, Local 556,
 AFL-CIO and Department of the Navy, Marine Corps Exchange 0911, Marine
 Corps Air Station, Kaneohe Bay, Hawaii, et al., 26 FLRA No. 47 (1987), I
 stated that I would find a compelling need for a NAFI regulation
 providing that intermittent employees are not eligible for certain
 benefit programs enjoyed by other employees, including leave.
 
    I reach the same conclusion as to Provisions 3 and 4 in this case,
 where the regulation establishes a system of leave administration for
 the full-time, part-time, temporary and intermittent employees of the
 Agency.  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 Agency's worldwide missions within the meaning of section 2424.11(a)
 of the Authority's regulations.  Accordingly, I would find Provisions 3
 and 4 in this case to be nonnegotiable.
 
    As to Provision 5, I agree with my colleagues that it does not
 conflict with the Agency's regulations.  Nevertheless, I consider the
 matters covered by Provision 5 to be a money-related fringe benefit and,
 as I stated in my dissent in Eglin Air Force Base, I believe that
 Congress intended money-related fringe benefits to be excluded from
 collective bargaining, absent sp