41:0073(9)NG - - AFGE, National VA Council and VA, Washington, DC - - 1991 FLRAdec NG - - v41 p73



[ v41 p73 ]
41:0073(9)NG
The decision of the Authority follows:


41 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL VETERANS ADMINISTRATION COUNCIL

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Agency)

0-NG-1888

DECISION

June 10, 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)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns five proposals offered by the Union when the Agency announced a proposed furlough for fiscal year 1991 due to a lack of funds.

For the following reasons, we conclude that Proposals 1 and 2, which provide that administrative leave for employees who are subject to an impending furlough is appropriate in order for them to inquire about other jobs or to apply for unemployment benefits, are negotiable. We conclude that Proposal 3, which provides that employees subject to impending furloughs are not to be discouraged from exercising their First Amendment rights in speaking about the furloughs, is negotiable. We conclude that Proposal 4, which provides that if subsequent to a furlough based on a lack of funds the funds become available, the Agency will grant affected employees retroactive administrative leave, is negotiable. We conclude that Proposal 5, which sets forth 19 specified furlough dates for a proposed fiscal year 1991 furlough, is moot.

II. Preliminary Matters

A. Mootness

The Agency asserts that all of the Union's proposals are moot because the proposed furlough to which the Union's proposals were addressed never occurred. The Union asserts that the "parties did not agree to limit the disputed proposals to the furlough the employer proposed to implement as of October 1, 1990." Reply Brief at 3. The Union also argues that its proposals could apply at any time the Agency decided to implement a furlough. As to Proposal 5, the Union notes that Proposal 5 "addresses a time frame which incorporates the entire fiscal year 1991, and, therefore, applies only to that period." Id. at 4 n.1.

1. Proposals 1-4 Are Not Moot

As noted above, Proposals 1 and 2 provide that administrative leave for employees who are subject to an impending furlough is appropriate in order for them to inquire about other jobs or to apply for unemployment benefits. Proposal 3 provides that employees subject to impending furloughs are not to be discouraged from exercising their First Amendment rights in speaking about the furloughs. Proposal 4 provides that if subsequent to a furlough based on a lack of funds the funds become available, the Agency will grant affected employees retroactive administrative leave.

Section 2429.10 of the Authority's Rules and Regulations states that the Authority will not issue advisory opinions. Thus, where the issues which led to the filing of a negotiability petition for review have been resolved, or where there is no longer a dispute between the parties, the Authority will dismiss the petition for review as being moot. See, for example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 211-12 (1988). The Authority will also dismiss petitions for review as moot in cases where a proposal requires some action on a date that has passed and there is no explanation in the record as to how the proposal could be implemented. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263 (1990) (Proposal 1) (BATF).

The furlough proposed by the Agency in August, 1990, which resulted in the submission of the disputed proposals in this case, was never implemented. The Union asserts, however, that the proposals are not limited to the implementation of that furlough. Moreover, Proposals 1-4 do not refer to any particular furlough and do not otherwise require action on dates which have passed. As such, the Union's statement is consistent with the plain wording of Proposals 1-4. Therefore, we conclude that Proposals 1-4 are not moot. See BATF, 38 FLRA at 265 (Proposals 2 and 4).

2. Proposal 5 Is Moot

Proposal 5 provides as follows:

For the period October 16, 1990 through September 30, 1991, those employees wishing a discontinuous furlough, it shall to the extent possible be distributed as follows:

November     2     Days

December     4     Days

January         1     Day

February       1     Day

March           1     Day

April             1     Day

May             0     Day

June             4     Days

July             4     Days

August         0     Day

September   1     Day

As indicated above, Proposal 5, like Proposals 1-4, was offered in response to an Agency intention to furlough employees in fiscal year 1991 due to a lack of funds. Unlike Proposals 1-4, Proposal 5 expressly concerns only the furlough proposed to be implemented in fiscal year 1991. That is, Proposal 5 provides that employees could choose to be furloughed during the fiscal year 1991 furlough on a staggered, or discontinuous basis on 19 specified dates during the year. Contrary to the Union's claim, we conclude that Proposal 5 is moot.

We note that the Authority has found a proposal permitting employees to be furloughed on a discontinuous basis to be negotiable. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 307, 308 (1986), affirmed mem. sub nom. Office of Personnel Management v. FLRA, No. 86-1482 (D.C. Cir. Sept. 24, 1987). The majority of the dates set out in the proposed fiscal year 1991 furlough schedule in Proposal 5, however, have passed and the particular furlough to which the schedule refers was never implemented. Moreover, the Union offers no explanation as to how this proposal could be implemented. Therefore, we conclude that Proposal 5 is moot and we will dismiss the Union's petition for review as it relates to Proposal 5. See BATF, 38 FLRA at 265 (Proposal 1). In view of our decision that Proposal 5 is moot, it is unnecessary for us to address the Agency's additional arguments concerning the negotiability of Proposal 5.

B. Proposals 1-4 Involve Conditions of Employment

The Agency asserts that the proposals do not involve conditions of employment. The Agency concedes that the furloughs it proposed in August, 1990, "were a matter that potentially affected employees' conditions of employment," but that "they no longer are" because the furlough was never implemented. Statement of Position at 5 (emphasis in original).

In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles). It is clear, with respect to the first factor, that the Union's proposals pertain to unit employees. We note also that a furlough results in employees being placed in a "temporary status without duties or pay." 5 U.S.C. § 7511(a)(5). Thus, a furlough has a significant impact on the employment relationship of bargaining unit employees. Moreover, the Agency's claim that the proposals do not affect conditions of employment is based solely on its view that the proposals concern a specific furlough that was never implemented. Contrary to the Agency's claim, however, nothing in the wording of Proposals 1-4 limits their application to any specific furlough. Therefore, we conclude that Proposals 1-4 concern conditions of employment of bargaining unit employees.

III. Proposals 1 and 2

Proposal 1

Administrative leave to contact federal job placement officials and employment agencies.

Proposal 2

Administrative time and counseling to apply for unemployment benefits.

A. Positions of the Parties

1. The Agency

The Agency asserts that the proposals require it to grant administrative leave in the stated situations and, therefore, directly interfere with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that although the Authority has found negotiable proposals "that simply require granting administrative leave after management has approved an employee's absence from work[,]" Proposals 1 and 2 require it to grant administrative leave without giving consideration to staffing or workload requirements. Statement of Position at 9.

2. The Union

The Union contends that the Agency's "discretion to approve administrative leave is a mandatory subject of bargaining[,]" citing American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Polaris Missile Facility, Atlantic, Charleston, South Carolina, 35 FLRA 591 (1990) (Polaris Missile Facility). Reply Brief at 9.

The Union argues that Proposals 1 and 2 "do not guarantee approval of a request for absence." Id. at 10. The Union states that the proposals "clearly speak to the kind of absence employees would be authorized . . . rather than to the determination regarding whether any absence would be approved or denied." Id.

B. Analysis and Conclusions

Proposals that preserve management's discretion to approve or disapprove employee absences do not conflict with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Polaris Missile Facility, 35 FLRA at 593 (a proposal granting employees the right to administrative leave to attend a motorcycle training program did not interfere with the agency's right to assign work under section 7106(a)(2)(B) of the Statute where the employees' entitlement to administrative leave was contingent upon the agency's approval of the employee's absence from duty).

In its petition, the Union explains that, under Proposals 1 and 2, "authorized absence," that is, administrative leave, would be used for employees to make contacts concerning other jobs, seek counseling, or apply for unemployment benefits. Petition for Review at 1. In its reply brief, the Union states that Proposals 1 and 2 "do not guarantee approval of a request for absence" because the proposals "clearly speak to the kind of absence employees would be authorized if absence were approved rather than to the determination regarding whether any absence would be approved or denied." Reply Brief at 10.

In our view, the plain wording of Proposals 1 and 2 is consistent with the Union's statements. As worded, the proposals do not require the Agency to grant administrative leave. They merely state some of the purposes for which administrative leave may be granted. Therefore, we adopt the Union's interpretation of the proposals for the purposes of this decision.

Based on the plain wording of Proposals 1 and 2 and the Union's statement, we conclude, consistent with our finding in Polaris Missile Facility, that Proposals 1 and 2 do not require the Agency's approval of any specific request for administrative leave. The proposals merely establish that the use of administrative leave is appropriate for the purposes set forth in the proposals after management has approved an employee's absence from work.

As Proposals 1 and 2 do not require the Agency to grant administrative leave, the proposals do not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, as no other basis for finding the proposals nonnegotiable is asserted by the Agency or is apparent to us, the proposals are negotiable.

IV. Proposal 3

The Department of Veterans Affairs will not in any manner, attempt to dissuade its employees from exercising their 1st [A]mendment rights, i.e. to express their feelings, perception and factual matters, concerning the proposed furloughs.

A. Analysis and Conclusion

In its allegation of nonnegotiability, the Agency asserted that Proposal 3 interferes with its right to discipline employees. In its Statement of Position, however, the Agency asserts only that Proposal 3 is moot and does not involve a condition of employment. We have rejected these arguments. In the absence of any further support by the Agency for its assertion that Proposal 3 interferes with its right to discipline under section 7106(a)(2)(A) of the Statute, and as no other basis for finding Proposal 3 to be nonnegotiable is apparent to us, we conclude that it is negotiable.

V. Proposal 4

The agency will grant employees who suffer loss of pay through furlough, administrative leave equal to the lost time if an appropriation is enacted.

A. Positions of the Parties

1. The Agency

The Agency asserts that because Proposal 4 "requires the [Agency] to spend funds that would not have been available . . . during the time the employees were furloughed[,]" the proposal conflicts with the Anti-Deficiency Act, codified at 31 U.S.C. § 1341. Statement of Position at 14. The Agency further contends that the proposal would interfere with its right to lay off employees under section 7106(a)(2)(A) of the Statute.

2. The Union

The Union contends that the proposal does not require the Agency to place employees on administrative leave during the time when the Agency is without appropriated funds to do so. According to the Union, the proposal presumes that any furlough which is necessitated by a lack of appropriated funds has occurred, and that appropriated funds are subsequently made available for the period when the employees were on furlough. Under those circumstances, the Union maintains, the proposal merely requires the Agency to retroactively place employees on administrative leave. The Union acknowledges that the number of days for which the Agency will be able to grant employees retroactive administrative leave will be determined by the amount of funds appropriated for the period of the furlough.

The Union further asserts that the proposal does not interfere with the Agency's right to lay off employees during that period. The Union argues that the purpose of Proposal 4 is to "lessen the adverse effects on employees of having been in furlough status . . . ." Reply Brief at 16 (emphasis in original). According to the Union, the proposal has no effect on the Agency's ability to conduct any furlough necessitated by a lack of appropriated funds.

B. Analysis and Conclusions

The Union asserts that the proposal would not limit the Agency's right to place employees in a furlough, or nonpay, status when the Agency has insufficient appropriated funds to pay them for a period of time. Rather, the Union contends, the proposal would be effective only after appropriated funds subsequently were made available for the period covered by the furlough. The Union argues that the proposal would ameliorate the effect on employees of having been placed in a furlough status by requiring the Agency to retroactively put them on administrative leave for a period equal to the length of time they were furloughed.

We find that the plain wording of Proposal 4 is consistent with the Union's statement of intent. Therefore, we adopt the Union's interpretation of Proposal 4 for the purposes of this decision.

Based on that interpretation, we conclude that the proposal does not violate the Anti-Deficiency Act because it does not require the Agency to spend funds when they are not available. Instead, the proposal requires that the funds necessary to provide the administrative leave granted employees under the proposal have been appropriated before the proposal is effectuated. Our determination is consistent with the Comptroller General's decision at 62 Comp. Gen. 1, 3 (1982), which states that an agency, "in its discretion, has the authority to grant excused absences to its employees" and that, therefore, an agency may grant administrative leave retroactively to its employees "to the extent to which funds have been appropriated and were available and adequate on the date in question to cover" the costs incurred by the granting of administrative leave.

We further conclude that Proposal 4 does not interfere with the Agency's right to lay off employees under section 7106(a)(2)(A) of the Statute. The proposal would not affect the ability of the Agency to furlough employees when it is without adequate appropriated funds. Rather, the proposal addresses only retr