39:0740(63)NG - - NTEU and Agriculture, Food and Nutrition Service, Chicago, IL - - 1991 FLRAdec NG - - v39 p740



[ v39 p740 ]
39:0740(63)NG
The decision of the Authority follows:


39 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOOD AND NUTRITION SERVICE

CHICAGO, ILLINOIS

(Agency)

0-NG-1849

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 21, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on 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). The appeal concerns the negotiability of two provisions that were agreed upon by the parties at the local level, but were disapproved by the U.S. Department of Agriculture (the Department).

Provision 1 provides that an employee shall submit an application for leave transfer no later than 366 days after the beginning of a medical emergency. Provision 2 provides that when unused annual leave is restored to a leave donor, the servicing personnel office shall round the amount of leave down to the nearest quarter hour.

For the following reasons, we find that the two disputed provisions are negotiable.

II. Provision 1

Article 55, Leave Transfer, Section 2B2

The application for leave transfer shall be submitted no later than 366 days after the beginning of the medical emergency.

[Only the underlined portion is in dispute].

A. Positions of the Parties

1. The Agency

The Agency argues that Provision 1 was properly disapproved because it is inconsistent with Subchapter 1-4a of Department Personnel Manual (DPM) Personnel Bulletin 630-93 (the Department rule), which provides:

A potential leave recipient must submit a written application to his or her agency personnel officer or designee. Revised Departmental Form AD-1046 has been developed for this purpose. The application may be submitted no later than 90 days after the beginning of the medical emergency. If an employee is incapacitated and cannot submit an application, a personal representative may do so on his or her behalf

. . . .

Statement of Position at 2 (emphasis in original). The Agency asserts that the Department rule is based on 5 U.S.C. º 6333(c) and 5 C.F.R. Chapter 630, Subpart I. The Agency claims that there is a compelling need for the Department rule under section 2424.11(a) of the Authority's Rules and Regulations, which provides that a compelling need exists 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."

The Agency claims that this dispute arose because neither party "took into consideration or understood the definition of a medical emergency, even though the statutory definition was incorporated into the agreement as Section 1F of Article 55." Statement of Position at 3. The Agency notes that 5 U.S.C. º 6331(4), defines "medical emergency" as follows:

"medical emergency means a medical condition of an employee or a family member of such employee that is likely to require the prolonged absence of such employee from duty and to result in a substantial loss of income to such employee because of the unavailability of paid leave.

The Agency also relies on 5 C.F.R. º 630.905(b), which provides:

Before approving an application to become a leave recipient, the potential leave recipient's employing agency shall determine that the absence from duty without available paid leave because of the medical emergency is (or is expected to be) at least 80 hours (or, in the case of a part-time employee or an employee with an uncommon tour of duty, the average number of hours of work in the employee's biweekly scheduled tour of duty).

Based on its interpretation of 5 U.S.C. 6331(4) and 5 C.F.R. 630.905(b), the Agency asserts that a medical emergency does not begin when an employee or a member of his family becomes ill or is injured. Rather, according to the Agency, a medical emergency begins when it appears that an employee has used available leave and will be absent for at least one full pay period, without pay.

The Agency alleges that Provision 1 would result in excessive "administrative disruption of adjusting pay and leave records . . . ." Statement of Position at 5. The Agency also argues that implementation of Provision 1 "may require amendment of various reports filed with the Internal Revenue Service, [Office of Personnel Management], and the Social Security Administration, and possible issuance of an amended W-2 form to the employee." Id. In this regard, the Agency notes that the Department:

has over 138,000 employees whose pay, personnel, and leave records are maintained on an integrated payroll/personnel computerized system . . . . To assure the efficient operation of the Department's payroll/personnel system and other personnel practices, it is essential that all personnel offices within the Department adhere to the same procedural rules.

Id. (emphasis in original).

2. The Union

The Union contends that the Agency has not demonstrated that a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11(a) of the Authority's Rules and Regulations for the Department's requirement that an employee file an application for leave transfer within 90 days after the beginning of a medical emergency. The Union also contends that Provision 1 does not conflict with any Federal law or Government-wide regulation. The Union asserts, in this regard, that the parties' disagreement over the meaning of the term "medical emergency" is irrelevant to determining whether there is a compelling need for the Department rule.

The Union argues that "the Agency has failed to demonstrate how its desire for consistency is compelling under the law. In addition, [the Agency] has ignored the infrequency with which employees actually utilize the leave transfer program." Reply Brief at 6-7. The Union asserts that although an agency's recordkeeping problems may relate to the helpfulness or desirability of a regulation, those problems do not demonstrate essentiality. The Union concludes that as the Agency has not met its burden to prove that its rule is essential, as distinguished from helpful or desirable, the Agency has not established that a compelling need for its rule exists.

B. Analysis and Conclusions

In order to show that a provision 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 standard's set forth in section 2424.11 of its Regulations. See Service Employees International Union, Local 556 and U.S. Department of the Navy, Navy Exchange, Pearl Harbor, Hawaii, 37 FLRA 320, 333 (1990) (Navy Exchange).

1. Provision 1 Is Inconsistent With Subchapter 1-4a of DPM Personnel Bulletin 630-93

DPM Personnel Bulletin 630-93, Subchapter 1-4a, provides, in pertinent part, that an employee seeking to become a leave recipient must submit an application to the Agency no later than 90 days after the beginning of the medical emergency. Provision 1 provides that such application shall be submitted no later than 366 days after the beginning of the medical emergency. It is clear, therefore, that Provision 1 is inconsistent with Subchapter 1-4a of DPM Personnel Bulletin 630-93.

We note that the parties disagree over what constitutes a medical emergency. In agreement with the Union's argument, however, we find that the Agency has not demonstrated that this disagreement is relevant to our decision in this case. Therefore, we will not address this matter further.

2. A Compelling Need Has Not Been Established Under Section 2424.11(a) for Subchapter 1-4a of DPM Personnel Bulletin 630-93

The Agency asserts that there is a compelling need for the Department rule under section 2424.11(a) of the Authority's Rules and Regulations because it is essential for it to have uniform rules regarding the processing of leave records. We reject the Agency's argument. It is well established that:

the fact that the policy reflected in the [agency] regulation may facilitate the operation of a comprehensive recordkeeping system from which deviation may pose administrative difficulty, does not in itself demonstrate that the regulation meets the compelling need criteria so as to bar negotiation of an otherwise negotiable proposal.

National Treasury Employees Union and Federal Deposit Insurance Corporation, 14 FLRA 179, 181 (1984) (FDIC). See also, for example, American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441, 447-50 (1981). An agency's assertions "concerning recordkeeping problems clearly relate to the helpfulness or desirability to the Agency of its regulation but do not demonstrate essentiality." FDIC at 181.

Here, the Agency's sole argument in support of its assertion of compelling need is that implementation of Provision 1 would result in recordkeeping problems. The Agency has failed, however, to demonstrate that the alleged recordkeeping problems relate to anything other than the helpfulness or desirability of the rule. We note, in this regard, that the Agency has provided no evidence concerning the frequency with which the Leave Transfer Program has been used. As such, even assuming that administrative disruptions of the kind alleged by the Agency could provide a basis for a finding of compelling need, the Agency's arguments here are speculative. Consistent with FDIC, therefore, we find that the Agency has not demonstrated that the Department's rule is essential, within the meaning of section 2424.11(a) of the Authority's Rules and Regulations.

As the Agency has failed to demonstrate, pursuant to section 2424.11(a) of the Authority's Rules and Regulations, that the Department rule is essential, the Agency has failed to establish a compelling need for the rule. As this is the sole argument relied on by the Agency for finding Provision 1 to be nonnegotiable, we find that the provision is negotiable.

III. Provision 2

Article 55, Leave Transfer, Section 2M3(a)(3)

3. Servicing personnel offices shall:

a. Determine the amount of unused transferred annual leave to be restored as follows:

(1) Divide the number of unused transferred annual leave hours by the number of hours of annual leave hours transferred to the recipient;

(2) Multiply the result by the number of hours of annual leave transferred by each donor eligible for restoration; and

(3) Round the result down to the nearest quarter hour.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency alleges that Provision 2 is inconsistent with Subchapter 1-9 of DPM Personnel Bulletin 630-93, which provides that in determining the amount of unused transferred annual leave to be restored to a donor, the total amount shall be rounded down to the nearest full hour. The Agency asserts that its rule is based on 5 U.S.C. º 6336(a)(2)(A), which provides, among other things, that restoration of leave to a leave donor shall not be required if the amount of leave which would be restored to such donor would be less than 1 hour or other shorter period of time which the Office of Personnel Management (OPM) prescribes by regulation. The Agency notes that OPM's regulation, 5 C.F.R. 630.911(b)(3), provides, in pertinent part, that the amount of unused annual leave restored to each leave donor shall be rounded off to the nearest increment of time established by the leave donor's employing agency to account for annual leave.

The Agency alleges that "[t]here is no provision in the law for transferring increments of annual leave smaller than 1 hour, nor do the OPM regulations permit transfer of leave in less than 1 hour increments." Statement of Position at 8. The Agency claims that "this limitation was established to facilitate the recordkeeping involved in the program since many time and attendance systems can handle only hourly increments of leave usage." Id. According to the Agency, the "1 hour increment for restoration of transferred leave . . . is critical to ensure the administrative feasibility of this aspect of the program." Id. at 8-9.

The Union contends that the Agency's argument is inconsistent with the fact that "Article 22, Section 12 of the collective bargaining agreement between NTEU and FNS Midwest Regional Office provides that 'all forms of leave will be charged in fifteen (15) minute increments.'" Reply Brief at 9. The Union states that:

the Agency's assertion that "there is no provision in the law for transferring increments of annual leave smaller than one hour, nor do OPM regulations permit transfer of leave in less than one hour increments" is clearly erroneous based upon Article 22, Section 12 of the collective bargaining agreement which was approved upon Agency head review.

Id. at 9 (emphasis in original). The Union claims that the Agency has failed to demonstrate that Subchapter 1-9 of DPM Bulletin No. 630-93 is essential, as opposed to helpful or desirable, to accomplishment of its mission with respect to the leave transfer program.

B. Analysis and Conclusions

1. Provision 2 Is Inconsistent With Subchapter 1-9 of DPM Personnel Bulletin 630-93

DPM Personnel Bulletin 630-93, Subchapter 1-9 requires, in pertinent part, that the amount of unused transferred annual leave be restored by rounding the amount of leave down to the nearest full hour. Provision 2 requires that the amount of transferred leave be restored by rounding the amount down to the nearest quarter hour. It is clear, therefore, that Provision 2 is inconsistent with Subchapter 1-9 of DPM Personnel Bulletin 630-93.

2. A Compelling Need Has Not Been Established Under Section 2424.11(a) for Subchapter 1-9 Of DPM Personnel Bulletin 630-93

As noted by the Union, the Agency approved Article 22, Section 12 of the parties' collective bargaining agreement, which provides that "[a]ll forms of leave will be charged in fifteen (15) minute increments." Attachment to Union's Response at 44. It is clear, therefore, that the Agency has agreed in collective bargaining that a quarter hour is the increment of time used to account for annual leave. We reject, in this regard, the Agency's argument that OPM regulations do not permit transfer of leave in less than 1-hour increments. Instead, as noted above, 5 C.F.R. º 630.911(b)(3) refers to "the nearest increment of time established by the leave donor's employing agency to account for annual leave." The increment of time established by the Agency is a quarter hour.

As annual leave is charged in increments of 15 minutes, the Agency's argument that it is essential, within the meaning of section 2424.11(a) of the Authority's Regulations, that annual leave be returned to leave donors in increments of 1 hour cannot be sustained. Therefore, we conclude that the