43:0414(42)NG - - NAGE and VA, Washington, DC - - 1991 FLRAdec NG - - v43 p414



[ v43 p414 ]
43:0414(42)NG
The decision of the Authority follows:


43 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, D.C.
(Agency)

0-NG-1947
0-NG-1949

December 13, 1991

DECISION AND ORDER ON NEGOTIABILITY ISSUES

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 case concerns the negotiability of four proposals in two petitions for review which we have consolidated for decision.

For the following reasons, we conclude that Proposal 1, which would require that child care services be provided at each of the Agency's facilities for fees which are comparable to fees charged at similar Department of Defense (DoD) facilities in the area, is negotiable. We find that Proposal 2, which would require that GS and WG employees receive hazard pay differentials or environmental differential pay for exposure to tobacco smoke, is negotiable. Proposal 3, which would require that employees receive a quality step increase or a cash award for superior or outstanding performance, is nonnegotiable because it is inconsistent with Government-wide regulations. Proposal 4, which applies when the Agency decides that an employee's services are not needed on a particular day and which would require the Agency to permit the employee to remain on duty or grant administrative leave, is negotiable.

II. Proposal 1

Child Care Article

Twenty[-]four hour a day child care will be available at each facility for unit employee's [sic] children. The fee for child care will be comparable to fees charged at Department of Defense Facilities in the area.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 1 concerns a matter which is specifically provided for by 38 U.S.C. § 4209(a)(1) and, therefore, does not concern conditions of employment under section 7103(a)(14)(C) of the Statute. The Agency also contends that it has "unfettered authority" over child care matters pursuant to 38 U.S.C. § 4208.(2) Statement of Position at 3. Finally, the Agency argues that the requirement that the Agency's child care fees be comparable to DoD fees conflicts with 38 U.S.C. § 4209(b).(3)

2. The Union

The Union argues that child care facilities concern a condition of employment and that, although 38 U.S.C. § 4209(a) authorizes the Agency to operate child care centers, the Agency has "discretion" to negotiate. Reply Brief at 2. The Union asserts that the proposal constitutes an appropriate arrangement because it would ameliorate the adverse effect on employees, who are "subject to shift work, call back and overtime," of having no place to leave their children when they are assigned work at irregular hours. Id.

B. Analysis and Conclusions

1. Conditions of Employment

Under the Statute, parties are obligated to bargain over proposals concerning conditions of employment, provided that the proposals do not violate law, Government-wide regulation, or an agency regulation for which there is a compelling need. Conditions of employment are defined in section 7103(a)(14) of the Statute as personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions. Matters which are specifically provided for by Federal statute are excluded from the definition of conditions of employment in section 7103(a)(14)(C) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 192-93 (1991) (Merchant Marine Academy); American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894, 899 (1990).

The Authority has long held that the establishment of child care centers at agency facilities concerns a condition of employment. See, for example, American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA 423, 424 (1981), aff'd sub nom. Office of Personnel Management v. FLRA, 706 F.2d 1229 (1983). Although the Agency does not dispute that the establishment of child care facilities is a condition of employment, the Agency argues that child care is specifically provided for in Title 38 and, therefore, that it is nonnegotiable under section 7103(a)(14)(C).

Reference to a particular matter in a statute is insufficient to except that matter from the definition of conditions of employment under section 7103(a)(14)(C). However, where a statute specifically provides for or establishes a particular aspect of a matter, that aspect of the matter is not included within the conditions of employment about which an agency is obligated to bargain. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1060-61 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California, v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989).

38 U.S.C. § 4209(a)(1) requires that the Agency head, through the Veterans' Canteen Service (VCS), provide for the operation of child care centers at the Agency's facilities. In addition, 38 U.S.C. § 4209 requires that specific requirements be met in the operation of centers. However, that section does not specify that each facility will have a child care center or provide the hours of operation of such centers. Because the availability of child care facilities and the hours of operation of these facilities are not specified in 38 U.S.C. § 4209, we find that these matters are not specifically provided for by statute, within the meaning of section 7103(a)(14)(C) of the Statute. Consequently, Proposal 1 concerns conditions of employment. See, for example, Merchant Marine Academy at 193-94 (pay and pay procedures were not specifically provided for by statute).

2. 38 U.S.C. § 4208

Where law or applicable regulation vests an agency with exclusive authority or unfettered discretion over a matter, the agency's discretion is not subject to negotiation. See U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 442 (1991). The Agency has failed to establish that, under 38 U.S.C. § 4208, its authority to operate child care centers is not subject to bargaining under the Statute. We note two things.

First, nothing in the plain wording of 38 U.S.C. § 4208 indicates that the Agency's authority to operate child care centers is to be exercised without regard to other laws in general or the Statute in particular. Compare Illinois National Guard v. FLRA, 854 F.2d 1396, 1402 (D.C. Cir. 1988) (where the governing statute provided that agency head was required to grant compensatory time for overtime work instead of paying overtime pay and prescribe duty hours for employees "'notwithstanding any other provision of law,'" court found that the agency head had "unfettered discretion"); Police Association of the District of Columbia and Department of the Interior, National Park Service, U.S. Park Police, 18 FLRA 348, 353 (1985) (agency head was found to have "'final and conclusive'" authority regarding minor fines and suspensions where the governing statute recognized the agency head had such authority "'notwithstanding . . . any other law'").

Second, nothing in the legislative history of 38 U.S.C. § 4208 indicates that Congress intended that the Agency's discretion concerning child care facilities be exclusive of other laws, including the Statute. We note the statement in the legislative history of 38 U.S.C. § 4208 that "[s]ince the [VCS] is to function as a unit and its operations are of a commercial nature, it is considered essential that [VCS] have maximum direct control over its activities." H.R. Rep. No. 2432, 79th Cong., 2d Sess., reprinted in 1946 U.S. Code Cong. & Admin. News 1433, 1437. This explanation indicates that Congress intended VCS to operate commercially without restrictions similar to those imposed by the Agency on other activities. The statement does not support a conclusion that VCS's control over its activities was intended to be exercised without regard to the Agency's bargaining obligations under the Statute. As there is no support in the plain wording of 38 U.S.C. § 4208 or in its legislative history for the Agency's argument that its discretion over the operation of child care centers is not subject to collective bargaining, we reject that argument. Consequently, as no other basis for finding the first sentence of Proposal 1 nonnegotiable is argued or is apparent to us, we find that it is negotiable.

3. 38 U.S.C. § 4209(b)

The Agency asserts that the requirement that the Agency's child care fees be comparable to DoD child care fees is inconsistent with 38 U.S.C. § 4209(b), which requires that the VCS "establish reasonable charges" for child care services and that the charges for such services, when provided directly by the VCS, "be sufficient to provide for . . . operating expenses . . . ." The Agency contends that establishing fees comparable to those at DoD facilities would result in fees which would not meet the requirement of 38 U.S.C. § 4209(b) because DoD fees are based, under the Military Child Care Act of 1989, on family income and, if parents participate in the parent participation program, fees are lower.(4) Statement of Position at 4. According to the Agency, the Child Care Act requires DoD to set fees "on the basis of family income, with an exception of lower fees for parents involved in parent participation programs." Id.

We disagree with the Agency's assertion that Proposal 1 is inconsistent with 38 U.S.C. § 4209(b). There is nothing in the proposal's wording or in the record which establishes that child care fees could not be established that satisfied the requirements of both 38 U.S.C. § 4209(b) (fees that are reasonable and sufficient to provide for operating expenses) and the proposal (fees that are comparable to fees at DoD child care centers). It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, for example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990). A party failing to meet this burden acts at its peril. Here, nothing in the proposal or the record supports the Agency's assertion that the second sentence of Proposal 1 would result in fees inconsistent with 38 U.S.C. § 4209(b). Accordingly, we find that the second sentence is not inconsistent with 38 U.S.C. § 4209(b). As no other basis for finding the second sentence of Proposal 1 nonnegotiable is argued or is apparent to us, we conclude that it is negotiable.

In sum, we conclude that Proposal 1 concerns a condition of employment, within the meaning of section 7103(a)(14) of the Statute. We conclude also that the Agency does not have exclusive authority to operate child care centers at Agency facilities under 38 U.S.C. § 4208 and that the second sentence of Proposal 1 is not inconsistent with 38 U.S.C. § 4209(b). As no other bases for finding Proposal 1 are argued or apparent to us, we conclude that the proposal is negotiable.

III. Proposal 2

Facility Use Article, Section 4.

Employees exposed to smoke in their work areas will be compensated as follows:

GS 25% Hazardous Pay
WG 8% Environmental Differential Pay

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 2 is inconsistent with statutory provisions and Government-wide regulations which preclude hazard pay or environmental differential pay (EDP) for employees exposed to tobacco smoke in the workplace.

The Agency argues that GS employees are not entitled to a hazard pay differential for exposure to tobacco smoke because employees' exposure to tobacco smoke does not meet the requirement of 5 U.S.C. § 5545(d) that hazard pay be for "hazardous duty 'not usually involved' in the employees' performance of their duties." Statement of Position at 6. In addition, the Agency asserts that such exposure is not listed as a hazardous duty in the schedule in 5 C.F.R. Part 550, subpart I, appendix A. The Agency concedes that tobacco smoke "contains airborne toxic chemicals." Id. at 5. In addition, the Agency acknowledges that certain patients in its medical facilities are permitted to smoke tobacco. However, the Agency asserts that hazard pay is only authorized "'when there is a possibility of leakage or spillage[]'" of toxic chemical materials and that employees' exposure to tobacco smoke "occurs by its diffusion throughout a common airspace[]" rather than through leakage or spillage. Id. at 6.

The Agency argues that the requirement that wage grade (WG) employees receive EDP for exposure to tobacco smoke is inconsistent with 5 U.S.C. § 5343(c)(4) because exposure to airborne tobacco smoke is not listed as a hazard in 5 C.F.R. part 532, appendix A. The Agency asserts that EDP is not authorized for tobacco smoke under the toxic chemical category because the examples given in appendix A concern "work situations directly involving work with or near toxic chemicals which are a part of the work itself." Id. at 8. Tobacco smoke, according to the Agency, is "a by-product of patient activity not related to [the Agency's] work itself." Id. The Agency also argues that EDP is authorized only for "'unusually' severe hazards." Id. Because employees are exposed to tobacco smoke in "everyday life," the Agency asserts that exposure at the Agency's facilities is not unusual. Id. at 9.

2. The Union

The Union contends that GS employees are authorized hazard pay for exposure to toxic chemicals under 5 C.F.R. part 550, subpart I, appendix A, and WG employees are entitled to EDP under the Federal Personnel Manual (FPM) Supplement 532-1, appendix J. The Union contends that whether "exposure to tobacco smoke and the toxic chemicals contained therein is a work situation" which falls within those Office of Personnel Management (OPM) categories "is a proper subject for bargaining." Reply Brief at 4.

B. Analysis and Conclusions

1. General Schedule Employees

Hazard pay differentials for GS employees are authorized by the Hazardous Duty Act, 5 U.S.C. § 5545(d).(5) Employees may be compensated for physical hardship or hazardous duty encountered in the performance of their duties in two ways. First, if the hazardous duty or physical hardship is performed "with sufficient regularity," it may be taken into account in the classification of a position and a differential is not payable. 5 C.F.R. § 550.904(b)(1). Second, if an employee is occasionally subjected to unusual physical hardship or hazardous duty, a differential may be paid under 5 U.S.C. § 5545(d) for any period the employee "is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position."

The Agency asserts that hazard pay is not payable for GS employees' exposure to tobacco smoke because such exposure fails to meet the "not usually involved" requirement of 5 U.S.C. § 5545(d). However, the Agency concedes that only "certain patients" are permitted to smoke and does not otherwise establish that employees' exposure to tobacco smoke is more than occasional. Statement of Position at 5, 6. Accordingly, we reject the Agency's argument that employees' exposure to tobacco smoke does not satisfy the requirement in 5 U.S.C. § 5545(d) that a differential be paid only for physical hardship or hazard that is "not usually involved" in the performance of an employee's duties.

We also reject the Agency's argument that GS employees are not entitled to hazard pay for exposure to tobacco smoke under Part 550, subpart I, appendix A because, as relevant here, the toxic chemicals in tobacco smoke are not covered by that regulation. The Agency offers no support for its argument that it has no authority to determine that hazard pay could not be provided unit employees under this provision. Moreover, where a GS employee claimed hazard pay under 5 U.S.C. § 5545(d) for exposure to tobacco smoke under the toxic chemical category, the Comptroller General held that "whether a particular situation warrants a payment of a hazardous duty differential is a decision which is vested primarily in the employing agency . . . ." Comp. Gen. No. B-197978 (June 5, 1980) (unpublished).

We conclude, in agreement with the Comptroller General, that agencies have discretion to decide whether payment of a hazard pay differential to GS employees exposed to tobacco smoke is appropriate. Where an agency has discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically limits the exercise of discretion to the agency or the proposal or provision is otherwise nonnegotiable. See, for example, National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019, 1025 (1991) (Rock Island II). Accordingly, we conclude that the portion of Proposal 2 encompassing GS employees is negotiable.

2. Wage Grade Employees

OPM is authorized under 5 U.S.C. § 5343(c)(4) to issue regulations providing EDP for WG employees "for duty involving unusually severe working conditions or unusually severe hazards[.]" Under 5 C.F.R. § 532.511(a)(1), a WG employee may be paid an environmental differential for exposure to certain working conditions or hazards. Category 4 of 5 C.F.R. part 532, appendix A, Part II, provides EDP when an employee is exposed to toxic chemicals which present a "high degree hazard." Category 5 permits EDP when employees are "[w]orking with or in close proximity to . . . toxic chemicals . . . in situations for which the nature of the work does not require the individual to be in as direct contact with, or exposure to, the more toxic agents . . . ."

We reject the Agency's argument that EDP for exposure to tobacco smoke at the Agency is inappropriate because it is "not related" to the "work itself." Statement of Position at 8. We find no such requirement in Categories 4 or 5 of appendix A. Moreover, the Agency concedes that tobacco smoke contains toxic chemicals and that unit employees are exposed to smoke at work. Further, FPM Supplement 532-1, subchapter S8-7g.(3)(6) provides that the specific work situations for which an environmental differential is payable under the categories in appendix A may be negotiated. Accordingly, consistent with long-standing Authority precedent, we conclude that the specific work situations for which an environmental differential is payable under the categories in appendix A are negotiable and, therefore, that Proposal 2 is negotiable. See, for example, U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 991 (1991); U.S. Department of the Army, McAlester Army Ammunition Plant, McAlester, Oklahoma, 36 FLRA 434, 438 (1990).

IV. Proposal 3

Performance Appraisal Article, Section 9.

All unit employees receiving a superior/outstanding rating will receive a QSI or a cash award. Cash awards will be the same percentage for all employees. The Union will be provided a list of QSI's, cash awards, and superior/outstanding ratings.

[Only the underscored portions are in dispute.]

A. Positions of the Parties

1. The Agency

The Agency asserts that proposals requiring quality step increases (QSI's) are nonnegotiable because they conflict with 5 C.F.R. § 531.504, "which makes them discretionary."(7) Statement of Position at 9. The Agency also asserts that to the extent that Proposal 2 "requires a QSI for employees receiving a superior rating," the proposal conflicts with 5 C.F.R. § 531.504, which limits QSIs "to employees with outstanding ratings." Id. at 10. In addition, the Agency claims that the guarantee of a performance award violates 5 C.F.R. § 430.503(c)(1)(8), which "requires 2 levels of management review of each award[.]" Id.

The Agency also contends that Proposal 3 violates 5 C.F.R. §§ 430.203, 430.204, 430.206(b) "by causing management to consider non-merit factors (i.e., factors not reflected in critical elements), in assigning the ratings mandating the awards, namely the impact of the mandatory awards on the budget." Id.

Finally, the Agency argues that Proposal 3 directly interferes with management's right under section 7106(a)(1) of the Statute to determine its budget. The Agency asserts that mandatory awards violate the requirement of 5 C.F.R. §§ 430.503(f) and 430.506(a) that awards programs be administered within existing appropriated funds.

2. The Union

The Union asserts that it intends the terms "superior" and "outstanding" to be synonymous. Reply Brief at 4. According to the Union, in the past some Agency officials have used the term "superior" instead of "outstanding" to describe the highest performance rating level. Id. The Union argues that Proposal 3 would make an employee receiving an outstanding performance rating eligible for, but would not mandate, a QSI. The Union claims that cash awards exist as an "option" to a QSI under the proposal. Id. at 5.

The Union contends that the intent of Proposal 3 "is to ensure fairness in the distribution of cash awards for performance." Petition for Review at 2. The Union claims that the proposal "does not mandate a fixed percentage cash award." Reply Brief at 5. Rather, the Union contends that the proposal "merely provides that the same percentage be paid to all employees receiving cash awards for outstanding performance." Id.

B. Analysis and Conclusions

Proposal 3 requires that all unit employees rated superior/outstanding receive either a QSI or a cash award. The proposal is negotiable only if one of the options is negotiable. See, for example, American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 377-78 (1991) (Fort Campbell). For the following reasons, we conclude that both options are inconsistent with Government-wide regulations and, therefore, that Proposal 3 is nonnegotiable under section 7117(a)(1) of the Statute.

1. The QSI Option is Nonnegotiable

In National Treasury Employees Union, Chapter 245 and Department of Commerce, Patent and Trademark Office, 30 FLRA 1219, 1224-26 (1988), the Authority found that Proposal 2, which required that an agency grant a QSI to an employee who met certain criteria, was inconsistent with 5 C.F.R. § 531.504, a Government-wide regulation. The Authority found that 5 C.F.R. § 531.504 prohibits an agency from "establishing a requirement that a QSI will be granted, even to an employee who meets established criteria." Id. at 1226. Consequently, the Authority held that the proposal was inconsistent with 5 C.F.R. § 531.504 and was nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 3 would require that the Agency grant a QSI to an employee who is rated superior/outstanding if the employee is not given a cash award. Because Proposal 3 would require the Agency to give a QSI in certain circumstances, it is inconsistent with 5 C.F.R. § 531.504 and is nonnegotiable. Id.

2. The Cash Award Requirement Conflicts with a Government-wide Regulation and Is Nonnegotiable

Proposals which mandate the granting of cash awards are inconsistent with 5 C.F.R. § 430.503(c)(1), a Government-wide regulation, and are nonnegotiable under section 7117(a) of the Statute. In Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 950 (1990) (Norfolk Naval Shipyard), we found that 5 C.F.R. § 430.503(c)(1) requires that each determination to grant a cash award be reviewed and approved by an agency official at a higher level than the recommending official and by the agency manager responsible for the performance awards budget. We also stated that "the expressed authority to review and approve inherently encompasses the authority to review and disapprove." Id. at 950. Accordingly, proposals which do not permit disapproval of awards are inconsistent with 5 C.F.R. § 430.503(c)(1).

In revising 5 C.F.R. part 430, OPM removed 5 C.F.R. § 430.503(c) and added 5 C.F.R. § 430.504(d), which contains a requirement for review and approval of decisions to grant awards that is similar to that formerly contained in section 430.503(c)(1).(9) 56 Fed. Reg. 20331, 20332 (1991). The rationale that we applied in Norfolk Naval Shipyard in the context of former section 430.503(c) applies equally to Proposal 3 in the context of 5 C.F.R. § 430.504(d). See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 1349, 1361 (1991), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 91-1503 (D.C. Cir. Oct. 15, 1991).

Proposal 3 mandates that all employees who are rated superior/outstanding receive cash awards unless they receive QSIs. By its plain wording, the proposal prevents the Agency from disapproving a cash award if an employee receives the required performance rating and does not receive a QSI. Because Proposal 3 would require approval of performance awards in situations where, under 5 C.F.R. § 430.504(d), Agency officials may disapprove such awards, we find that the option of a cash award in Proposal 3 is inconsistent with 5 C.F.R. § 430.504(d). In reaching this conclusion, we reject the Union's assertion that Proposal 3 meets regulatory requirements because an Agency regulation requires that "the performance rating must be approved by the approving official and the official with the responsibility for managing the performance awards budget prior to informing employees of the performance rating." Reply Brief at 6. Proposal 3 would not allow disapproval of a cash award if an employee received a superior/outstanding performance rating. Accordingly, because Proposal 3 is inconsistent with 5 C.F.R. § 430.504(d), it is nonnegotiable under section 7117(a)(1) of the Statute. See, for example, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA No. 3 (1991).

In view of our conclusion, it is unnecessary to address the Agency's additional contentions regarding
Proposal 3.

V. Proposal 4

When an employee reports for duty in accordance with the regular work schedule, and it is determined by the Employer that the employee's services are not required that day, the employee may request annual leave. In the absence of a request, the employee will remain on duty or will be administratively excused.(10)

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 4 "violates management's right to assign employees and work and to curtail operations when deemed necessary." Statement of Position at 11. By requiring management to keep employees on duty, the Agency argues that Proposal 4 "impermissibly" requires the Agency to assign work to employees, "irrespective of need or employee qualification, and irrespective of the need to curtail operations." Id. at 12. The Agency also asserts that the requirement that management grant administrative leave is nonnegotiable.

Finally, the Agency argues that Proposal 4 directly interferes with management's rights to assign work and employees under section 7106(a)(2)(A) and (B) of the Statute because it prohibits the Agency from placing employees on annual leave.

2. The Union

The Union contends that Proposal 4 is intended as an appropriate arrangement for "employees who thru [sic] no fault of theirs are prevented from performing their regular duties on a scheduled workday." Reply Brief at 7. The Union asserts that the proposal "would prevent management from placing employees on enforced leave" which adversely affects employees' leave balances. Id.

B. Analysis and Conclusions

Proposal 4 requires the Agency to exercise one of two options when management determines that an employee's services are not needed on a regularly scheduled workday and the employee does not request annual leave. One option is to permit the employee to remain on duty. This option, the Agency argues, would require management to assign work to the employee. If the Agency does not permit the employee to remain on duty, then Proposal 4 requires that the Agency administratively excuse the employee. The negotiability of Proposal 4 depends on whether one of these options is negotiable. See, for example, Fort Campbell at 377-78.

We find that the decision to grant administrative leave to an employee when management decides it does not need that employee on a scheduled work day is within management's discretion and, therefore, is negotiable. In National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993, 995-97 (1991) (Rock Island I), we noted that the head of an agency has discretion, which is subject to negotiations, to grant administrative leave to employees of the agency in certain situations for brief periods of time. We held that the proposal in Rock Island I, which required that the agency place employees on administrative leave for 40 hours during a holiday shutdown, was negotiable.

Proposal 4 is substantively similar to the proposal in Rock Island I because it requires the Agency to grant administrative leave to an employee if the agency decides that the employee's services are not required on a scheduled work day and that the employee will not remain on duty. Accordingly, consistent with our decision in Rock Island I, we find that Proposal 4's option of granting administrative leave to an employee on a day when the Agency decides that the employee's services are not required is negotiable. See also Rock Island II 42 FLRA 1019 at 1026-28 (proposal providing 1 day of administrative leave after a shutdown for each day of LWOP, annual leave, or other leave employees used during the shutdown held to be a negotiable appropriate arrangement).

As the Agency has the option under Proposal 4 to grant administrative leave to an employee whose services are not required, the proposal does not require that management allow the employee to remain on duty. Accordingly, Proposal 4 preserves management's right to decide not to assign work to the employee. In this regard, Federal Employees Metal Trades Council of Charleston, AFL-CIO and Charleston Naval Shipyard, Charleston, South Carolina, 33 FLRA 618 (1988) (Charleston Naval Shipyard), relied on by the Agency, is inapposite. The proposal in Charleston Naval Shipyard required that, during shutdowns, available work be assigned to employees who lacked annual leave. By contrast, under Proposal 4, management is not required to assign work to employees who are not needed. Moreover, by its plain wording, Proposal 4 takes effect after the Agency has decided that an employee's services are not required on a particular day and concerns only the status of that employee. Therefore, unlike the proposal in Charleston Naval Shipyard, we conclude that the proposal does not directly interfere with management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute and would not prevent the Agency from curtailing its operations. In addition, we note the Union's assertion, which is consistent with the wording of Proposal 4, that the proposal does not apply to "advanced planned situations for which advance notice is required such as furloughs." Reply Brief at 7.

Finally, we reject the Agency's assertion that Proposal 4 directly interferes with management's rights to assign work and employees by "prohibiting enforced annual leave[.]" Statement of Position at 12. 5 U.S.C. § 6302(d) provides that "[t]he annual leave provided by this subchapter, . . . may be granted at any time during the year as the head of the agency concerned may prescribe." FPM chapter 630, subchapter 3-4.b., which implements this statutory provision, states, in relevant part:

Annual leave provided by law is a benefit and accrues automatically. However, supervisors have the responsibility to decide when the leave may be taken. This decision will generally be made in the light of the needs of the service rather than solely on the desires of the employee.

Consistent with these provisions, an agency may deny an employee's request to use accrued annual leave when the agency requires an employee's services. However, where an agency has decided it does not need an employee's services on a particular day, neither 5 U.S.C. § 6302(d) nor its implementing regulations support a conclusion that an agency may require an employee to take annual leave on that day. The Agency has not cited any other statute or regulation, and none is apparent to us, which provides the Agency such a right.(11) Accordingly, we reject the Agency's argument that it may require employees to take annual leave in the circumstances encompassed by Proposal 4. Compare Rock Island II, 42 FLRA 1019, 1024 (where group dismissal is appropriate, agencies have discretion to decide among various types of leave or, if appropriate, to furlough employees and must negotiate to the extent of that discretion). To the extent that previous decisions have indicated that agencies have the right to require employees to take annual leave, they will no longer be followed.

In sum, we conclude that the portion of Proposal 4 requiring the Agency to grant employees administrative leave is negotiable. Accordingly, Proposal 4 does not require the Agency to permit an employee to remain on duty and does not, therefore, directly interfere with management's right to assign work and employees under section 7106(a)(2)(A) and (B) of the Statute.

VI. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, over Proposals 1, 2, and 4.(12) We dismiss the petition as to Proposal 3.




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

1. 38 U.S.C. § 4209(a) provides, in pertinent part:

(1) The Administrator, through the Service, shall provide for the operation of child care centers at Veterans' Administration facilities in accordance with this section. The operation of such centers shall be carried out to the extent that the Administrator determines, bas