32:0809(119)NG - - Independent Letterman Hospital Workers' Union and Letterman Army Medical Center, Nutrition Care Division - - 1988 FLRAdec NG - - v32 p809
[ v32 p809 ]
The decision of the Authority follows:
32 FLRA No. 119
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
INDEPENDENT LETTERMAN HOSPITAL
LETTERMAN ARMY MEDICAL CENTER
NUTRITION CARE DIVISION
Case No. O-NG-1508
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns a proposal which requires the Agency to release employees from work, with pay and without charge to leave, for service with the National Guard or Army Reserves, under 5 C.F.R. º 610.305(c).
We find that the proposal is inconsistent with 5 C.F.R. º 610.305(c), which is a Government-wide regulation under section 7117(a)(1) of the Statute. Accordingly, we conclude that the proposal is outside the Agency's duty to bargain.
II. The Proposal
Consistent with 5, C.F.R. (Code of Federal Regulations) º 610.305(c), unit employee's serving in activities which the government is interested in encouraging, such as the National Guard or Army Reserves may be granted administrative leave under the provisions of this regulation, to participate in such civil activities.
III. Positions of the Parties
The Agency asserts that the proposal "conflicts with government-wide regulations governing leave administration." Agency Statement of Position at 4. It argues that 5 C.F.R. º 610.305(c) does not authorize the release of employees as required by the proposal because "a military obligation such as voluntary service in the National Guard and Army Reserves Program would not be referred to as a 'civil' activity." Agency Statement of Position at 2.
The Agency states that 5 U.S.C. º 6323(a)(1) authorizes 15 days' "military leave" per year for employees' service with the Guard or Reserves, and that Office of Personnel Management (OPM) regulations (for example, Federal Personnel Manual (FPM) Chapter 630, subchapters 9-6c, 12-2a) authorize employees to supplement their military leave allowances with annual leave and/or leave-without-pay (LWOP). The Agency argues that military leave, annual leave, and LWOP are the only available alternatives for releasing employees from their regular civilian work for service with the Guard or Reserves.
In its allegation to the Union concerning the proposal, the Agency also stated that the proposal violates management's right to assign work under section 7106(a)(2)(B) of the Statute. However, the Agency has not argued this point before us in response to the Union's appeal.
The Union does not dispute the Agency's contention that the proposal requires the Agency to release employees from work under 5 C.F.R. º 610.305(c) for their military obligations with the National Guard or Army Reserves. The Union asserts that 5 C.F.R. º 610.305(c) authorizes the Agency to release employees to serve with the National Guard or Army Reserves. The Union also asserts that the proposal does not violate management's right to assign work under section 7106(a)(2)(B).
IV. Analysis and Conclusion
Although the proposal states that the Agency should act "consistent with" 5 C.F.R. º 610.305(c), the Union states that the proposal requires the Agency to release employees under section 610.305(c) for their "commitment to the government . . . as a National Guard person or Army Reservist." Union Petition for Review at 1. Consistent with the Union's statement, we conclude that the proposal requires the Agency to release employees from work under section 610.305(c) to enable them to fulfill their military obligations.
Section 610.305(c) provides:
(c) It is in the public interest to relieve employees from work to participate in civil activities which the Government is interested in encouraging. [Emphasis added.]
By its wording, section 610.305(c) concerns only "civil activities." This phrase is not defined in section 610.305(c) or elsewhere in 5 C.F.R. Chapter I, Subpart C. However, OPM provides examples of the types of activities for which employees can be released from work under section 610.305: "voting, blood donations, or emergency rescue work." FPM Chapter 610, subchap. 3-1b. From these examples and the plain wording of the phrase, we find that section 610.305(c) does not encompass relief from work for military service. See, for example, Websters Third New International Dictionary: Unabridged 412-13 (1976) ("civil . . . belonging or relating to . . . civic or temporal affairs as distinguished from military, naval, ecclesiastical . . . affairs"). Accordingly, we conclude that section 610.305(c) does not authorize the Agency to release its employees from work to fulfill their military obligations with the National Guard or Army Reserves.
This interpretation of section 610.305(c) is supported by the guidance OPM has provided to agencies concerning the administration of "military leave" under 5 U.S.C. º 6323. Based on this guidance, agencies have four options when an employee is called to military service in the Guard or Reserves for periods which exceed the employee's allowance for military leave. The Agency may: (1) grant annual leave to supplement the allowance of military leave; (2) grant LWOP; (3) furlough the employee; or (4) separate the employee. For example, FPM Letter 630-29, para. 7b (Jan. 28, 1981). The OPM guidance does not refer to release of an employee for military service under 5 C.F.R. º 610.305(c).
5 C.F.R. º 610.305(c) and the above-discussed guidance were issued by OPM. If OPM intended section 610.305(c) to be an option for periods of military service which exceed an employee's allowance for military leave, it could have so provided. The fact that OPM did not refer to section 610.305(c) in its guidance or refer to supplementing military leave in its examples of activities which are covered by section 610.305(c), supports our conclusion that OPM did not intend that agencies would release employees from work under section 610.305(c) for that purpose.
We find, therefore, that the proposal is inconsistent with 5 C.F.R. º 610.305(c). 5 C.F.R. º 610.305(c) is an OPM regulation which is codified in title 5 of the Code of Federal Regulations and applies to regular employees throughout the Federal Government who are paid at daily, hourly, and piecework rates. We find, therefore, that 5 C.F.R. º 610.305(c) is a Government-wide regulation within the meaning of 7117(a)(1) of the Statute. For example, American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 169 n.1 (1986). Accordingly, the proposal is outside the duty to bargain because it is inconsistent with a Government-wide regulation.
In view of this conclusion and the Agency's failure to present any argument to us supporting its allegation to the Union that the proposal conflicts with the right to assign work under section 7106(a)(2)(B), we find it unnecessary to address that issue.
The Union's petition for review is dismissed.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member