[ v37 p320 ]
37:0320(21)NG
The decision of the Authority follows:


37 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 556

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVY EXCHANGE

PEARL HARBOR, HAWAII

(Agency)

0-NG-796

(25 FLRA 796)

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 556

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS EXCHANGE 0911

MARINE CORPS AIR STATION

KANEOHE BAY, HAWAII

(Agency)

0-NG-737

(26 FLRA 380)

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 556

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY SUPPORT COMMAND

FORT SHAFTER, HAWAII

(Agency)

0-NG-750

(26 FLRA 380)

DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND

September 19, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These cases are before the Authority on remand from the United States Court of Appeals for the Ninth Circuit. Department of the Navy, Navy Exchange, Pearl Harbor v. FLRA, 841 F.2d 1128 (9th Cir. 1988) (unpublished opinion). The Court remanded the case to the Authority with permission to the Agencies to present additional evidence on the issue of whether there is a compelling need for the regulations on which the Agencies rely to support their assertions that the disputed proposals are nonnegotiable. For the following reasons, we conclude that the Agencies have not established that there is a compelling need for their regulations to bar negotiation of the disputed proposals.

II. Background

On February 19, 1987, the Authority issued its decision and order on negotiability issues in Service Employees' International Union, Local 556, AFL-CIO and Department of the Navy, Navy Exchange, Pearl Harbor, Hawaii, 25 FLRA 796 (1987) (Chairman Calhoun dissenting) (0-NG-796) (Navy Exchange, Pearl Harbor). The two proposals at issue in Navy Exchange, Pearl Harbor, a Nonappropriated Fund Instrumentality (NAFI), concerned the payment of the cost of dental coverage for regular full-time and part-time employees and regularly scheduled intermittent employees and the provision of group insurance coverage for all regular full-time and part-time employees and regularly scheduled intermittent employees.(1) The two proposals are set out in the Appendix to this decision.

The Authority noted that the employees involved in the case were Nonappropriated Fund (NAF) employees whose health insurance benefits were not established by law but were controlled by the Agency. The Authority determined that both proposals concerned conditions of employment of bargaining unit employees. The Authority determined further that, although the Agency had shown a conflict between the first proposal and a Department of Defense (DOD) regulation which provided that intermittent employees are not eligible for participation in benefit programs, the Agency had presented nothing more than generalized and conclusionary statements to support its contention that a compelling need existed for its regulation. Consequently, the Authority found that the Agency had not established that a compelling need existed for the DOD regulation to bar negotiation of the first proposal. The Authority also found that the Agency had not asserted or otherwise claimed that the second proposal conflicted with law, Government-wide rule or regulation or an Agency regulation for which a compelling need exists. Accordingly, the Authority concluded that both proposals were negotiable. On March 17, 1987, the Agency appealed the Authority's decision in Navy Exchange, Pearl Harbor regarding the DOD regulation, among other issues, to the U.S. Court of Appeals for the Ninth Circuit.

On March 25, 1987, the Authority issued its consolidated decision and order on negotiability issues 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, [0-NG-737] and Service Employees International Union, Local 556, AFL-CIO and Department of the Army, U.S. Army Support Command, Hawaii, Fort Shafter, Hawaii [0-NG-750], 26 FLRA 380 (1987) (Chairman Calhoun dissenting) (Marine Corps Air Station, Kaneohe Bay). The two proposals at issue at the Marine Corps Exchange, which are set out in the Appendix to this decision, concerned permitting regularly scheduled NAF intermittent employees to participate in annual and sick leave programs. The four proposals at issue at Fort Shafter, which are set out in the Appendix to this decision, concerned permitting regularly scheduled NAF intermittent employees to participate in annual, sick, maternity/paternity and administrative leave programs.

The Authority determined that the proposals concerned conditions of employment of bargaining unit employees. The Authority also determined that the Agencies had shown a conflict between the proposals and the DOD regulation and other Agency regulations which provided that intermittent employees are not eligible for participation in benefit programs. The Authority concluded, however, that the Agencies had presented nothing more than generalized and conclusionary statements to support the contention that a compelling need existed for the regulations. Consequently, the Authority found that the Agencies had not established that a compelling need existed for a DOD regulation or for the other Agency regulations to bar negotiation of the proposals. Thus, the Authority concluded that the proposals were negotiable. On May 21, 1987, the Agency appealed the Authority's consolidated decision in Marine Corps Air Station, Kaneohe Bay regarding the DOD regulation, among other issues, to the Ninth Circuit Court of Appeals.

On August 3, 1987, the court consolidated the appeals in Navy Exchange, Pearl Harbor and Marine Corps Air Station, Kaneohe Bay. Before the court, the Agencies argued that a compelling need existed for the portion of the DOD regulation excluding intermittent employees from participation in leave and benefit programs. However, the Agencies also claimed that their failure to offer evidence to support this contention before the Authority was based on their good faith, reasonable view that such evidence was unnecessary because the proposals were otherwise outside the duty to bargain. Thus, the Agencies requested that the court remand the cases to the Authority for further factual development concerning whether a compelling need exists for the DOD regulation. On February 26, 1988, the court remanded the cases to the Authority with permission for the Agencies to present additional evidence on the issue of whether there is a compelling need for the regulation.

Subsequent to the remand of these cases to the Authority by the Ninth Circuit Court of Appeals, the Departments of the Navy and the Army filed briefs and affidavits in support of their contentions that a compelling need exists for the regulations in question. The Authority also granted the American Federation of Government Employees, AFL-CIO (AFGE) leave to file an amicus curiae brief. On June 29, 1988, the Authority concluded, after careful review of the record, that an evidentiary hearing was appropriate to enable the parties to fully present all relevant and appropriate evidence in support of their contentions. This hearing was held on September 14, 1988, at which representatives of the Departments of Defense, Navy and Army, Local 556 of the Service Employees' International Union, AFL-CIO (the Union) and the AFGE as an amicus curiae presented their positions. The Navy, Army, the Union and AFGE filed post-hearing briefs.

III. Preliminary Matter

In the earlier proceedings before the Authority and before the Ninth Circuit Court of Appeals, the Departments of the Navy and Army alleged that a compelling need exists under section 2424.11(a) for chapter II.A.2.a(3)(d) of the Department of Defense Personnel Policy Manual for Nonappropriated Fund Instrumentalities so as to preclude collective bargaining of conflicting proposals under 5 U.S.C. § 7117. The portion of the DOD regulation in question provides that intermittent employees are not eligible for participation in benefit and leave programs. The Department of Defense (DOD), however, presented no evidence to support the contentions raised by the Departments of the Navy and Army. Instead, on August 19, 1988, DOD filed a letter with the Authority in which it stated that because the policy expressed in the DOD regulation has been incorporated into the regulations of the Army and the Navy, "the Department of Defense will not continue to rely on paragraph II.A.2.a(3)(d) as a bar to negotiations." Transcript (Tr.) at AFGE Exhibit 1.

Notwithstanding this assertion, we conclude that as the August 19, 1988, letter does not comply with the requirements of section 7117(b)(2) of the Statute, the question of whether a compelling need exists for the DOD regulation so as to preclude collective bargaining under section 7117 of the Statute remains at issue. Section 7117(b)(2) provides as follows:

(2) For the purpose of this section, a compelling need shall be determined not to exist for any rule or regulation only if--

(A) the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist; or

(B) the Authority determines that a compelling need for a rule or regulation does not exist.

Contrary to the requirements of section 7117(b)(2)(A) of the Statute, the DOD letter does not state that a compelling need does not exist for its regulation. Furthermore, at the hearing, the DOD representative reiterated that DOD was not stating that there was no compelling need for its regulation, but only that DOD was "not going to rely on that regulation as a part of negotiations." Tr. at 16. Further, as stated by DOD, the policy of excluding intermittent employees from participation in leave and benefit programs has been incorporated into the Navy and Army regulations. As components of the DOD, the Navy or the Army may not prescribe policies which are inconsistent with DOD policies and regulations. See, for example, Army Post-Hearing Brief (Army P. Hearing Br.) at 10-11. Therefore, a bargaining order requiring the Navy and the Army to negotiate on the disputed proposals would be meaningless if the Navy and the Army were nonetheless precluded from negotiating because of the DOD policy.

Consequently, we conclude that the issue of whether a compelling need exists for the portion of the DOD regulation in question is, and has been since the inception of these cases, before the Authority. DOD's belated post-remand attempt to remove that regulation from consideration in this case does not relieve the Authority of the obligation to determine whether a compelling need exists for the DOD regulation.

IV. Positions of the Parties

A. Department of the Navy

The Department of the Navy contends that the two proposals at issue at the Navy Exchange, Pearl Harbor, Hawaii and the two proposals at issue at the Marine Corps Exchange, Marine Corps Air Station, Kaneohe Bay, Hawaii are not negotiable because they conflict with the Navy and Marine Corps Personnel Policy Manual for Nonappropriated Fund Instrumentalities, SECNAVINST 5300.22A, chapter II, paragraph 3.(d), which provides that intermittent employees are not eligible to participate in benefit or leave programs. The Navy contends that a compelling need exists for this regulation under section 2424.11(a) of the Authority's Rules so as to preclude collective bargaining under 5 U.S.C. § 7117. Until the hearing, the Navy, in conjunction with the DOD, also made these assertions regarding the DOD regulation.

In support of its position that a compelling need exists for its regulation, the Navy contends that the mission of NAFIs is essential to accomplishment of the military mission of the Department of Defense. According to the Navy, NAFI programs, including discount buying privileges at exchanges and subsidized recreational activities, have become a condition of employment for servicemen and servicewomen and constitute a key recruiting device in attracting and retaining members of the all volunteer military force. Navy Brief (Navy Br.) at 15.

The Navy contends that appropriated fund support for NAFI morale, welfare and recreation (MWR) programs is decreasing. The Navy states that any increase in MWR costs results in either reduced MWR services for the military member or increased prices charged for those services. See, for example, Prepared Testimony of West at 5-7. According to the Navy, either situation has an adverse effect on retention and readiness of the military. See, for example, id. at 10.

The Navy argues that excluding intermittent employees from participation in benefit and leave programs reduces personnel costs, which maximizes profits to support MWR activities. Navy P. Hearing Br. at 7. The Navy contends that the extension of such benefits to intermittent employees would be so expensive that the ability of NAFIs to carry out their military mission within the entire Department of the Navy would be significantly reduced. Navy Br. at 21. The Navy also argues that the cost impact on the NAF system as a whole must be addressed because a determination that no compelling need exists for the Navy regulation would result in bargaining on the extension of similar benefits to intermittent employees in other bargaining units within the Department of the Navy. Navy Br. at 20; Tr. at 65; Navy P. Hearing Br. at 13.

In support of its position that the disputed proposals would have a significant cost impact, the Navy claimed that implementation of the Union's proposals would increase costs at the Navy Exchange, Pearl Harbor by $1.4 million per year as follows: $811 thousand for the insurance proposals; $417 thousand for the leave proposals; and $191 thousand for additional holidays. Prepared Testimony of La Valle, Navy Documentary Evidence at Tab 2, pp. 11-12. Further, the Navy estimated that implementation of the Union's proposals throughout the Navy Exchange System would increase costs in the whole system by $16.1 million per year as follows: $9.6 million for the insurance proposals; $3.3 million for the leave proposals; and $3.2 million for increased holidays. See id. According to the Navy, the cost of implementing the proposals in the Navy's MWR program was estimated at $25.3 million annually. Tr. at 83; Navy P. Hearing Br. at Attachment 6. The Navy also claims that the amount of the net profit not distributed to the recreation funds must be retained by the Navy for reinvestment in inventory, construction and renovation of facilities and obligations to vendors and retiring employees. Prepared Testimony of Squibb, Navy Documentary Evidence at Tab 1, pp. 2-3; Navy P. Hearing Br. at 16-17.

The Navy also submitted information as to the projected costs of implementing the proposals in the Army and Air Force Exchange Service (AAFES). The cost of extending leave benefits to intermittent employees of AAFES was estimated at $11.7 million per year. Prepared Testimony of Maddin, Navy Documentary Evidence at Tab 6, p. 10; Tr. at 119. The cost of extending insurance benefits to other than full-time AAFES employees was estimated to be $3.8 million if 20 percent of less-than-full-time employees participated and the cost of the insurance was divided equally between AAFES and the employees. Tr. at Navy Exhibit 3. AAFES also claimed that if 100 percent of eligible employees participated and AAFES contributed 100 percent of the cost of the insurance the increased cost would be $73.7 million per year. Prepared Testimony of Maddin, Navy Documentary Evidence at Tab 6, p. 10; Tr. at 119; Tr. at Navy Exhibit 3.

The Marine Corps estimated the increased cost of extending leave benefits to intermittent employees at the Marine Corps Exchange, Kaneohe Bay at between $41 and $51.8 thousand per year depending on the number of holidays included in the calculation. Navy P. Hearing Br. at Attachment 7. In addition, the Marine Corps estimated the increased system-wide cost of extending leave benefits to intermittent employees at between $1.6 million and $2 million per year depending on the number of holidays included in the calculation. Id.

In further support for its claim that a compelling need exists for its regulation, the Navy argues that centralized, uniform rules governing NAFI employee fringe benefit programs are indispensable to the efficient and effective operation of the NAFI mission. The Navy notes that there are more than 100 bargaining units of NAF employees in the Navy/Marine Corps. Navy Br. at 15. According to the Navy, if bargaining were permitted on fringe benefit packages in each of these bargaining units, there would be disparate benefit levels at separate NAFIs in the same city or community. The Navy claims that the result would be competition among these NAFIs for employees. Moreover, according to the Navy, insurance plans are centrally administered in order to achieve economies of scale. Navy Br. at 25. Thus, the Navy argues that permitting individual NAFIs to negotiate such plans increases administrative costs.

Furthermore, the Navy states that NAFI activities operated by the Army, the Navy and the Marine Corps all may operate within the same metropolitan area in a number of geographic locations. The Navy claims that centralized, uniform rules and regulations governing NAFI operations guarantees that these individual NAFI activities operated by separate military services in the same metropolitan area do not compete against one another for their work forces. Tr. at 34-35; Navy P. Hearing Br. at 6. Thus, the Navy states that "[w]age and benefit packages will be virtually identical among the various services." Tr. at 35.

The Navy also argues that excluding casually employed intermittent employees from participation in insurance and leave benefit programs is consistent with the practice applicable to Federal civil service intermittent employees and with the practice in the private sector. See, for example, Navy P. Hearing Br. at 11-12. The Navy claims that permitting these casually employed individuals to bargain over fringe benefits would transform them from employees only entitled to wage compensation due to the casual nature of their employment into "'regular' employees -- a class of workers with a strong expectancy of continued employment and a significant stake in their jobs." Navy Br. at 25.

B. The Department of the Army

The Department of the Army contends that the four proposals at issue at the U.S. Army Support Command, Hawaii, Fort Shafter, Hawaii are not negotiable because they conflict with paragraph 5-1 of Army Regulation 215-3, entitled Nonappropriated Funds and Related Activities Personnel Policies and Procedures, which provides that "[t]he provisions of this chapter [governing leave] apply to all regular full-time and regular part-time employees[.]" Army Documentary Evidence at Exhibit 2, Paragraph 5-1. Although this regulation does not expressly exclude intermittent employees from participation in leave and benefit programs, the Army representative at the hearing stated that paragraph 5-1 was intended to exclude intermittent employees from participation in leave and benefit programs. Tr. at 25-26. The Army contends that a compelling need exists for this regulation under sections 2424.11(a) and (c) of the Authority's Rules so as to preclude collective bargaining under 5 U.S.C. § 7117. Until the hearing, the Army, in conjunction with the DOD, raised the same assertions regarding the DOD regulation.

The Army asserts that the mission of Army NAFIs is to provide MWR programs for Army personnel. The Army also asserts that these MWR programs are essential for retention and readiness of Army personnel. See, for example, Tr. at 147-48; Army P. Hearing Br. at 15.

The Army contends that it shares the Navy's concern over the potential costs of extending leave benefits to intermittent employees. In support, although the Army did not estimate the increased costs at the Army Support Command, Fort Shafter, the Army estimated the cost of extending leave benefits to intermittent employees in bargaining units on a system-wide basis at between $833,200 and $1 million per year. Army Brief (Army Br.) at 2-3.

At the hearing, however, the Army indicated that the effect of the proposals on career progression was more of a problem than their cost. Tr. 156-57. In its post-hearing brief, the Army stated, as further support for its contention that the Army regulation is essential, that "[t]his essentiality is not primarily a cost savings matter (although cost is an issue) but involves management flexibility and the uniformity required to insure the stability of the Army's MWR mission." Army P. Hearing Br. at 32. The Army claims that its principal arguments to support a compelling need for its regulation are that: (1) the regulation meets a congressional mandate to provide for a comprehensive career progression within the NAF workforce; and (2) the Army's need to provide comparable MWR services at each post, camp, or station throughout the world can only be met through a unified system of compensation and benefits. Id. at 13.

In support of its claim that a compelling need exists for its regulation under section 2424.11(a) of the Authority's Rules because its regulation is essential to the effective and efficient administration of the NAF system, the Army argues that the cost and range of MWR services provided to Army military personnel must be comparable, throughout the world, wherever Army personnel are assigned. According to the Army, individual commanders who are responsible for providing MWR activities provide these programs primarily by using nonappropriated funds. The Army states that these commanders cannot expect outside nonappropriated fund supplements to cover excess expenses. The Army asserts that requiring individual commanders to negotiate over fringe benefits for intermittent employees would introduce a new and unforeseen cost element which would result in unequal MWR services being provided to military personnel based on whether a commander is a successful negotiator. That is, the Army claims that commanders who are not successful in negotiating limits on these costs will either curtail services or raise fees to make up the costs. Id. at 14-17. The Army concludes that providing such unequal benefits will adversely affect the readiness and retention of soldiers. Id. at 17.

In addition, the Army notes that the Army MWR system has 48 separate bargaining units. Id. at 24. According to the Army, if bargaining on fringe benefits were permitted in each of these bargaining units, a uniform compensation system would cease to exist and, in its place, there would be 48 or more different pay and fringe benefit packages.

The Army also argues that a compelling need exists for its regulation under section 2423.11(c) of the Authority's Rules because the regulation implements an essentially nondiscretionary mandate to the Army. According to the Army, this mandate is manifested by the continuing intense and detailed congressional oversight of the management of MWR programs. See, for example, id. at 33. Thus, the Army states that "while Congress may have not expressly or by clear implication directed the Army to deny leave or fringe benefits to intermittent employees, both the congressional mandate regarding MWR and its ongoing oversight, clearly show that Congress approved the Army regulation." Id. at 20.

The Army argues further that Congress has directed the Army to utilize an all-NAF employee staff for NAF activities with a personnel system having coherent career progression. In support, the Army relies on a House Committee on Armed Services report which provides as follows:

Payment of salaries for all employees within the business activities category with nonappropriated funds should create an all-nonappropriated funded business-oriented civilian personnel system with coherent career progression.

H.R. Rep. No. 563, 100th Cong., 2d Sess. 198 (1988).

According to the Army, the overall scheme of the NAF personnel system established by its regulation provides for progressively more attractive pay and fringe benefit packages so that NAF employees are encouraged to progress to higher levels within the NAF system. Army P. Hearing Br. at 21. The Army argues further that in setting the baseline pay and benefits package for intermittent employees, it followed the private sector practice of providing the minimum wages and fringe benefits necessary to attract qualified workers. The Army contends that a progressive compensation system minimizes employee turnover by providing strong incentives for employees who enter NAF employment as intermittents to move up to part-time positions and then to full-time positions in order to increase their benefits. Id. at 23. In the Army's view, this progressive compensation system is what Congress envisioned when it directed the creation of an all-NAF workforce with coherent career progression.

Finally, the Army contends that the Authority's approach, which requires an agency to demonstrate an overriding need for a regulation in order to support a compelling need for that regulation, is inconsistent with the view of the Supreme Court as expressed in Federal Labor Relations Authority v. Aberdeen Proving Ground, Department of the Army, 485 U.S. 409 (1988) (Aberdeen Proving Ground). According to the Army, the Supreme Court has stated that the rights of Federal employees to bargain collectively must be weighed against the paramount public interest in the effective conduct of the public business. Army P. Hearing Br. at 35. In the Army's view, the Supreme Court was applying a presumption of regularity to agency rules and regulations that requires a certain degree of deference to the issuing agency's judgment. Therefore, the Army concludes that "some agency regulations involving a significant agency mission should be recognized as compelling by the Authority if the agency demonstrates its commitment to such regulation at the highest level, as has been the case here." Id. at 37.

C. The Union

The Union asserts that because on-call intermittent employees and temporary employees were excluded from the bargaining unit, the proposals affect only those employees who are regularly scheduled on a tour of duty and who have a reasonable expectation of continued employment. Tr. at 182-83. The Union contends that many intermittent employees, who are not entitled to participate in benefit programs under Navy, Army and DOD regulations, are nevertheless scheduled to work more than 30 hours per week on a regular basis. Tr. at 171; Tr. at 197-99. The Union argues that the purpose of its proposals is to preclude the denial of insurance and leave benefits to this large number of regularly scheduled employees. Tr. at 170.

The Union also points out, without contravention, that although the Navy excludes regular part-time employees from participation in group insurance programs, the Marine Corps and the Army offer regular part-time employees participation in group insurance programs. Tr. at 181.

D. AFGE

In its amicus brief, AFGE asserts that the expansive definition of intermittent employees contained in the regulations permits the Agencies to avoid providing leave and insurance benefits to a large segment of employees who would receive such benefits if they were not employed in the NAF system. AFGE Brief (AFGE Br.) at 12.

AFGE argues that the Navy's main justification for excluding intermittent employees from participation in leave and benefit programs is to reduce employee costs. AFGE contends that almost any condition of employment, including such matters as reduction-in-force protections, safety protections, official time and others have potential cost ramifications. Therefore, according to AFGE, if a compelling need finding could be based solely on an assertion of a need to limit costs, an agency would be empowered to remove these conditions of employment from bargaining simply by issuing a regulation. AFGE argues that an agency regulation cannot be supported solely on a need to contain costs. In support, AFGE cites Lexington-Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA 50 (1986).

AFGE argues that the estimated costs of the disputed proposals "are clearly worst case scenarios which presuppose that the Union in these cases and every union everywhere would successfully negotiate similar benefits." AFGE Br. at 15-16. AFGE points out that although the Union's proposals are limited to regularly scheduled intermittent employees, the Navy made no distinction in its calculations between intermittent employees who are regularly scheduled and those employees who are scheduled only on an irregular basis. AFGE also argues that to the extent that dependents of military members are employed as intermittent employees, the Navy's increased insurance costs projections must be further reduced because such individuals are entitled to alternate insurance coverage through the military member.

As to the claim raised by the Navy and the Army that they must have a uniform policy concerning benefit packages for intermittent employees, AFGE presented testimony that leave benefits were extended to intermittent employees of the Marine Corps at one installation between 1982 and 1985 without any adverse effects on the profitability of the NAFI involved. Tr. at 201, 207. AFGE also presented testimony that NAF employees performing the same work in different localities receive different salaries due to differences in the local prevailing rate and differences in the applicable state minimum wage. Tr. at 214-16; AFGE Br. at 22.

V. Analysis and Conclusions

In order to show that a proposal is nonnegotiable because it conflicts with an agency regulation for which there is a compelling need, an agency must: (1) identify a specific agency-wide or primary national subdivision-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 standards set forth in section 2424.11(a) of its Regulations. See American Federation of Government Employees, Local 3836 and Federal Emergency Management Agency, Washington, D.C., 31 FLRA 921, 930 (1988).

As previously noted, the Navy and DOD regulations at issue in this proceeding exclude intermittent employees from participation in benefit and leave programs and the Army regulation at issue has been interpreted by the Army to exclude intermittent employees from participation in benefit and leave programs. The proposals in dispute, however, would permit regularly scheduled intermittent employees at the Marine Corps Exchange, Marine Corps Air Station, Kaneohe Bay, Hawaii and at the U.S. Army Support Command, Hawaii, Fort Shafter, Hawaii to participate in the leave program and regularly scheduled intermittent employees at the Navy Exchange Pearl Harbor, Hawaii to participate in health insurance programs. We conclude, therefore, that the proposals in dispute conflict with the regulations in question, which provide that intermittent employees are not eligible to participate in benefit or leave programs.

For the reasons which follow, we find that although the proposals conflict with the portions of the regulations in question, a compelling need does not exist for the regulations. In reaching this conclusion, we also find that the Army's reliance on the Supreme Court's decision in Aberdeen Proving Ground to support its claim that a compelling need exists for its regulation is misplaced. In Aberdeen Proving Ground, the Supreme Court determined only that an issue as to whether a compelling need exists for a particular agency regulation may not be resolved in an unfair labor practice proceeding. We find nothing in that decision which casts doubt on the regulatory criteria by which the Authority makes compelling need determinations.

A. A Compelling Need Has Not Been Established Under Section 2424.11(a) For Either the Navy or the Army Regulation to Bar Intermittent Employees From Participating in Benefit or Leave Programs

Under section 2424.11(a) of the Authority's Rules, a compelling need exists for an agency rule or regulation if "[t]he 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." In our view, the portions of the regulations in question are not "essential" within the meaning of our regulatory criterion to carrying out the mission of the Nonappropriated Fund Instrumentalities (NAFIs) in each of the Departments. That is, we find that the requirement that intermittent employees be excluded from participation in benefit or leave programs is not essential to the accomplishment of the mission of the NAFIs in providing for the MWR of active duty military members, their families and retirees.

We recognize that permitting intermittent employees to participate in leave and benefit programs will result in an increase in personnel costs. We note, however, an agency is not released from its duty to bargain whenever it suffers economic hardship. See American Federation of Government Employees v. Federal Labor Relations Authority, 785 F.2d 333 (D.C. Cir. 1986). In its decision, the U.S. Court of Appeals for the D.C. Circuit stated as follows:

[E]conomic hardship is a fact of life in employment, for the public sector as well as the private. Such monetary considerations often necessitate substantial changes. If an employer was released from its duty to bargain whenever it has suffered economic hardship, the employer's duty to bargain would practically be non-existent in a large proportion of cases. Congress has not established a collective bargaining system in which the duty to bargain exists only at the agency's convenience or desire, or only when the employer is affluent.

Id. at 338. Consequently, in our view, even if a regulation is promulgated for the express purpose of forestalling increases in personnel costs, such purpose does not, standing alone, support a finding that a compelling need exists for that regulation.

In addition, even assuming that a finding of compelling need could be based on costs alone, we reject the Navy's claims that the projected costs of permitting intermittent employees to participate in leave and benefit programs are so enormous that the NAF system would be unable to meet its mission to provide MWR programs in an effective and efficient manner. First, we find instead that the estimates of the increased costs provided by the Agencies are speculative and inaccurate.

For example, although the Union indicated that the proposals were intended only to apply to regularly scheduled intermittent employees, the Navy's calculation of $16.1 million increased costs is based on an extension of leave and insurance benefits to the total number of intermittent employees employed in the NAF system. No attempt was made by the Navy to distinguish what portion of the increased costs is attributable to extending benefits only to regularly scheduled intermittent employees or to determine what percentage of the total number of intermittent employees are regularly scheduled. See, for example, Tr. at 73. Further, $3.2 million of the estimated $16.1 million increase related to adding a number of paid holidays--a matter not sought by the Union. In addition, both the Navy and the AAFES based the projected costs for permitting intermittent employees to participate in insurance programs in part on an extension of insurance benefits to part-time employees. In addition, the $25.3 million estimate of increased costs submitted on behalf of the Navy recreation program also included the projected cost of matters not at issue, such as retirement costs. See Navy P. Hearing Br. at Attachment 6.

The AAFES also estimated that if it paid 100 percent of the cost of the insurance, all employees would participate, resulting in a total increased cost of $73.7 million. However, nothing in the record establishes that the Union sought to require that insurance be provided free of cost to all full-time, part-time and intermittent employees. Rather, the Union sought only to permit regularly scheduled intermittent employees to participate in insurance plans already in existence. We also note that even the more modest AAFES estimate of an increase of $3.8 million included the cost of extending insurance participation to part-time employees, an extension of benefits which was not sought by the Union.

In addition, as noted in the record, many intermittent employees are military dependents. Tr. at 63, 106-7. For example, the representative of the AAFES testified that 74 percent of its intermittent work force is composed of military dependents. Tr. at 124-25. None of the cost estimates, however, take into account the fact that, as military dependents, such employees likely would not elect to participate in insurance benefit programs.

Further, the Marine Corps' calculation of the increased costs associated with extending leave benefits to intermittent employees also is based on the extension of those benefits to all intermittent employees, not just regularly scheduled intermittent employees. The Marine Corps figures also include the costs related to providing intermittent employees with a number of paid holidays. However, since intermittent employees are already entitled to holiday pay, those costs would not result from negotiation of the proposals and, thus, are not properly included in the cost estimate. See Navy P. Hearing Br. at 8.

Moreover, even taking the Agencies' cost estimates at face value, we reject the Agencies' claims that such costs are so enormous as to prevent the NAF system from meeting its mission to provide MWR programs in an effective and efficient manner. For example, although the Navy claimed that the estimated cost of implementing the proposals in the Navy Exchange system as a whole was $16.1 million per year, we note that financial data submitted by the Navy indicates that total personnel costs for the Navy Exchange system exceeded $264.7 million in fiscal year 1986 and exceeded $261 million in fiscal year 1985. See Navy Documentary Evidence at Tab G-6. Thus, even assuming that the estimated increase of $16.1 million is accurate, such amount represents an increase in costs of only 6 percent.

Similarly, AAFES estimated that the cost of extending leave benefits to intermittent employees was $11.7 million per year and that if 100 percent of eligible employees participated in insurance plans and AAFES contributed 100 percent of the cost of the insurance, its personnel costs would increase $73.7 million per year. Financial data submitted by the Navy on behalf of AAFES indicates, however, that total personnel costs for AAFES exceeded $934 million in fiscal year 1987 and exceeded $845.6 million in fiscal year 1986. See Joint Exhibits submitted by the Navy on behalf of AAFES at Tab 2 at 20. Thus, even assuming that the AAFES cost estimates are accurate they amount to only a 9 percent increase.

In the same manner, financial data submitted on behalf of the Marine Corps indicates that for the fiscal year ending in January 1987 personnel costs for the Marine Corps Exchange System exceeded $66.1 million. Navy Documentary Evidence at Tab R-3. Thus, an estimated increase in costs of $2 million constitutes a 3 percent increase.

Finally, we note that neither the Navy, which estimated that personnel costs in the Navy's MWR program would increase by $25.3 million annually, nor the Army, which estimated the cost of extending leave benefits to intermittent employees in bargaining units on a system-wide basis at between $833,200 and $1 million per year, provided financial data concerning their total personnel expenses. Thus, it is not possible to determine the relationship of the estimated increase in personnel costs due to a proposed inclusion of regularly scheduled intermittent employees in leave and benefit programs to the total personnel costs of those NAF entities.

Consequently, although inclusion of regularly scheduled intermittent employees in the leave and benefit programs necessarily will increase personnel costs, we do not agree with the Agencies' claims that increases in costs of between 3 and 9 percent are of such a magnitude as to severely impede the ability of the NAF system to provide MWR programs and services. Moreover, we find that the estimated costs provided by the Navy and AAFES are speculative. Thus, we find that the Agencies have not supported their claims that inclusion of regularly scheduled intermittent employees in leave and benefit programs would cost so much that the ability of the NAF system to provide MWR programs and services would be severely compromised.

We also reject the Navy and Army claims that the exclusion of all intermittent employees from participation in leave and benefit programs is necessary to establish a uniform benefit structure for all NAFI employees so that MWR services can be provided in an efficient and effective manner. In the first place, there is no basis in the Authority's Rules to support a finding of a compelling need for a regulation on a claimed need to establish a uniform personnel policy. Moreover, we note that the benefit structure currently provided for NAF employees is not uniform.

For example, contrary to the Navy's claim that there must be a uniform benefit structure for NAFI employees so that, among other things, there will not be competition among different NAFIs in the same geographic area in hiring employees, we note that within the Department of the Navy, the Marine Corps permits part-time employees to participate in insurance programs, while the Navy excludes part-time employees from participation in insurance programs. Further, the record establishes that the Army also permits part-time employees to participate in insurance programs. See, for example, Tr. at 181. In light of the lack of uniformity in current benefit packages for NAF employees, we find that the Navy has not established that it must maintain uniformity by excluding intermittent employees from participation in leave and benefit programs in order to preclude competition among NAFIs in hiring.

Further, contrary to the Army's claim that a uniform policy on compensation and fringe benefit packages was necessary to equalize personnel costs throughout its world-wide NAF system, the record establishes that employees performing the same job in different locations are paid different amounts due to differences in local prevailing rates and differences in state minimum wages. See Tr. at 214-16. Moreover, employee participation in Army insurance and retirement plans is voluntary. See Army Regulation 215-3 Update at chapter 15-6 and 15-22 included as Army Documentary Evidence, Exhibit 3. Consequently, personnel costs at any particular NAFI will vary from any other NAFI based on such factors as the local prevailing rates, applicable state minimum wage and the extent of employee participation in insurance and retirement plans. In other words, an inequality in personnel costs among Army NAFIs already exists. Therefore, in our view, the Army has not established that it must uniformly exclude intermittent employees from participation in leave and benefit programs in order for Army NAFIs to provide MWR services efficiently and effectively.

We also note that both the Navy and the Army argued that uniformity in benefit levels is necessary in order to reduce administrative and financial costs which would be associated with the negotiation of different benefit packages in each of the numerous bargaining units of NAF employees. See, for example, Tr. at 107-9. However, no claim was made that any of the disputed proposals concerned the negotiation of a different leave or benefit package from that which is already in existence. Rather, the disputed proposals only seek to permit regularly scheduled intermittent employees to participate in the leave and benefit plans which currently apply to regularly scheduled full-time and part-time employees.

Both the Navy and the Army also argued that the level of benefits provided to NAF intermittent employees is comparable to that provided to such employees in the private sector. In support, the Navy included various compensation surveys purporting to indicate that private sector employers do not provide such benefits as leave and insurance plans to part-time employees. See Navy Documentary Evidence at Tab D.2-D.6. The Navy also argued that because applicable Government-wide regulations exclude civil service intermittent employees paid from appropriated funds from coverage under leave and insurance programs, the level of benefits provided to NAF intermittent employees is comparable to the benefits provided to civil service intermittent employees. See Navy P. Hearing Br. at 9.

We find, however, that the compensation surveys submitted by the Navy are inconclusive. In fact, one such survey included indicated that 41 percent of the employers surveyed provided paid vacation time and 23 percent of the employers provided paid sick time to part-time employees who work less than 20 hours per week. See Navy Documentary Evidence at Tab D.5-2. The same survey indicated further that 75 percent of the employers provided paid vacation time and 51 percent provided paid sick time to part-time employees who work between 20 and 30 hours per week and 85 percent of the employers provided paid vacation and 62 percent provided paid sick time to part-time employees who worked more than 30 hours per week. As stated by the Union, the disputed proposals apply only to those intermittent employees who are assigned to a regularly scheduled tour of duty and who have a reasonable expectation of continued employment. The Union also contended that many of these intermittent employees are scheduled to work more than 30 hours per week on a regular basis. See Tr. at 171, 197-99.

As noted by the Navy, intermittent employees in the civil service paid from appropriated funds are not entitled to accrue leave or to participate in insurance programs. See 5 C.F.R. §§ 870.202(a), 890.102(c); Federal Personnel Manual (FPM) Supplement 630.S2-3a(4). However, FPM chapter 340, subchapter 4-1 provides as follows:

When an agency schedules an intermittent employee, in advance of the pay period, to work at some time during each administrative week for more than two consecutive pay periods, the agency is required to change the employee' work schedule from intermittent to part time (or full time in the case of a 40 hour per week schedule) . . . . The employee would then be entitled to the benefits appropriate to the work schedule and appointment, i.e., leave and service credit. The employee would also be eligible for retirement, health benefits and life insurance coverage[.] (Emphasis in original.)

As previously stated, the proposals in these cases apply only to those intermittent employees who are regularly scheduled on a tour of duty and who have a reasonable expectation of continued employment. Thus, we reject the claims that excluding all NAF intermittent employees from participation in leave and benefit programs is consistent with private sector practices and with Federal civil service practices.

Further, we reject the Navy's claim that the legislative history of 5 U.S.C. § 2105(c) indicates that NAFI employees should receive less pay and benefits than Federal civil service employees. Rather, in describing the purposes of that section of law to exclude NAFI employees from coverage under laws applicable to Federal civil service employees, the House Committee on Post Office and Civil Service noted that the annual and sick leave benefits for exchange employees were similar to the leave program in force for Government employees under civil service. See H.R. Rep. No. 1995, 82d Cong., 2d Sess. 2, reprinted in 1952 U.S. Code Cong. & Admin. News 1520, 1521.

Consequently, we find that the policy of precluding all intermittent employees from participation in leave and benefit programs set out in the Navy and Army regulations is not essential to fulfilling the NAFIs' mission to provide for the morale, welfare and recreation of active duty military members and their dependents. Therefore, we conclude that there is no compelling need for the portions of the Navy and Army regulations in question under section 2424.11(a) of the Authority's Rules and Regulations.

B. A Compelling Need Has Not Been Established Under Section 2424.11(c) For the Army Regulation to Bar Intermittent Employees From Participating in Benefit or Leave Programs

Under section 2424.11(c) of the Authority's Rules, a compelling need exists for an agency rule or regulation if "[t]he rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature." In our view, the portion of the Army regulation in question does not implement a nondiscretionary mandate to the Army under law or other outside authority.

We find that evidence of continuing congressional oversight of and involvement in MWR programs does not by itself establish a nondiscretionary mandate to prohibit the extension of leave and benefit programs to intermittent employees or otherwise indicate that Congress approved the Army regulation. As the Army itself notes, Congress did not expressly or by clear implication direct the Army "to deny leave or fringe benefits to intermittent employees[.]" Army P. Hearing Br. at 20.

We also find that the Army has not established that the congressional mandate to create an all-NAF, business-oriented, personnel system with coherent career progression included a specific direction to deny leave or fringe benefits to intermittent employees. In directing each of the military services, not just the Army, to create an all-NAF personnel system for business-oriented NAFIs, Congress sought to eliminate the use of military and civil service personnel paid from appropriated funds in those activities. See H.R. Rep. No. 563, 100th Cong., 2d Sess. 197-99. The Army, however, makes no showing that Congress directed the military services to create any particular personnel system with specified compensation and benefit packages for specified categories of employees. Compare, for example, American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1255-58 (1988) (Provision 12) (a compelling need was found to exist under 2424.11(c) of our Rules for DOD Joint Travel Regulations because such regulations had been issued in order to comply with a specific congressional mandate to prohibit the disbursement of funds for lodging employees who were on temporary duty when "adequate Government quarters" were available but not occupied).

Further, we disagree with the Army's position that the only way it can meet the congressional mandate to create an all-NAF personnel system with coherent career progression is to uniformly provide the same level of compensation and fringe benefits to similar categories of NAFI employees wherever they may be assigned. As noted above, the mandate to create an all-NAF personnel system applies to each of the military services. Nevertheless, each of the military services does not provide the same level of compensation and fringe benefits packages to similar categories of employees. For example, the Army and the Marine Corps permit part-time employees to participate in insurance programs while the Navy and the AAFES do not.

In addition, the record establishes that employees performing the same job in different locations are paid different amounts due to differences in local prevailing rates and differences in state minimum wages. See, for example, Tr. at 214-16. Thus, we conclude that the Army has not established that its policy of precluding intermittent employees from participation in leave and benefit programs implements a nondiscretionary mandate to the Army under statute or other outside authority. See Fort Stewart Schools v. Federal Labor Relations Authority, 110 S. Ct. 2043, 2052 (1990) (Army regulation requiring, among other things, that Army school teacher salaries be equal to the salaries paid teachers in local public schools did not implement a nondiscretionary mandate to the Army where statute authorizing employment of Army school teachers did not specifically provide that Army school teacher salaries must be equal to teacher salaries at local public schools).

Therefore, we find that there is no compelling need under section 2424.11(c) of our Rules for the Army regulation to bar intermittent employees from participating in benefit and leave programs.

C. A Compelling Need Has Not Been Established Under Section 2424.11 For the DOD Regulation to Bar Intermittent Employees From Participating in Benefit or Leave Programs

For the following reasons, we find that there is no compelling need for the portion of the DOD regulation which provides that intermittent employees are not eligible to participate in benefit or leave programs.

As previously noted, the policy of excluding intermittent employees from participation in leave and benefit programs set out in the DOD regulation has been incorporated into the Navy and Army regulations. Thus, the three regulations operate in concert to establish a single DOD-wide policy to exclude intermittent employees from participation in leave and benefit programs. Although the Navy and the Army presented evidence in support of their positions that a compelling need existed for their regulations, DOD presented no evidence to support a claim that there is a compelling need for its regulation to bar intermittent employees from participation in leave and benefit programs.

In this case, we determined that neither the Navy or Army had demonstrated that uniform policies governing fringe benefit programs for intermittent employees were essential in order for the NAF system to meet its mission to provide MWR programs. Among other things, we found that the record established that uniform pay and benefit policies do not currently exist among NAFIs operated by the different military services. In view of this finding, we conclude that it is also not essential for the identical DOD policy set out in the DOD regulation to bar intermittent employees from participation in leave and benefit programs. That is, a uniform DOD-wide policy to exclude regularly scheduled intermittent employees from participation in leave and benefit programs is not essential in order for the NAF system to provide MWR programs in an effective and efficient manner. Consequently, we conclude that there is also no compelling need for the portion of the DOD regulation in question under section 2424.11(a) of our Rules.

In addition, the record in this case establishes that there is no mandate under law or other outside authority to require a single DOD-wide policy concerning the levels of benefits to be provided to these NAF employees. Therefore, we find that there is also no compelling need for the portion of the DOD regulation in question under section 2424.11(c) of our Rules so as to preclude collective bargaining under section 7117 of the Statute.

In summary, since we hold that there is no compelling need for the DOD, Navy and Army regulations so as to preclude collective bargaining under section 7117 of the Statute, we will order that the parties bargain on the disputed proposals.

VI.Order

The Agency in each of these cases must, upon request, or as otherwise agreed to by the parties, bargain concerning the disputed proposals. (*)

APPENDIX

Proposal 1 (0-NG-796)

DENTAL BENEFITS

Section 1.

The employer agrees to pay on behalf of each regular full-time, regular part-time, and regularly scheduled intermittent employee the entire monthly cost of dental coverage as provided by the Union through the Hawaii Dental Service 70/30 plan. (Refer to Appendix , ) Covered Dental Services, Page .)(*)

a)In the event an employee requests to have their family covered under the dental plan, the employee shall bear the full cost to include their spouse and/or dependents.

b)It is agreed by the Employer to permit employees who choose coverage in subsection (a) above, to payroll deduct the appropriate cost.

c)It is further agreed that the Employer will forward a list of covered employees, their social security number and a check payable to SEIU Local 556, AFL-CIO, no later than the twentieth (20th) day of each month.

Proposal 2 (0-NG-796)

GROUP INSURANCE COVERAGE

Section 1.

All regular full-time, regular part-time and regularly scheduled intermittent employees will be eligible for coverage under the Group Insurance Plan provided by the Navy Resale and Services Support Office.

Section 2.

All regular part-time and regularly scheduled intermittent employees currently employed who are electing coverage for the first time shall be eligible to join the plan immediately.

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-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 1 (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 forty (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 2 (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 3 (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 chargeable 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 4 (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.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Full-time, part-time and intermittent categories of employment are defined as follows: Full-time employees have a regular schedule of more than 35 hours per week; Part-time employees have a regular schedule of between 20 and 34 hours per week; and the category of Intermittent employees include those employees who do not have a regular schedule and who usually work less than 35 hours per week as well as those employees who work less than 20 hours per week with or without a regular schedule. See Navy Post-hearing Brief (Navy P. Hearing Br.) at attachment 1, II-2; Army Documentary Evidence at Exhibit 3, Army Regulation 215-3 Update, Appendix D


FOOTNOTE TO AUTHORITY:

*/ In finding these proposals to be negotiable, we make no judgment as to their merits.


FOOTNOTE TO APPENDIX:

 

*/ The referenced Appendix sets forth in detail a description of the Dental Benefits program. Since this Appendix is not relevant to the disposition o