48:0546(53)NG - - Patent Office Professional Association and Commerce, Patent and Trademark Office, Washington, DC - - 1993 FLRAdec NG - - v48 p546



[ v48 p546 ]
48:0546(53)NG
The decision of the Authority follows:


48 FLRA No. 53

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

WASHINGTON, D.C.

(Agency)

0-NG-2136

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

September 27, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one provision concerning compensatory time for religious observances which was disapproved by the Agency head under section 7114(c) of the Statute. We find that the provision is negotiable.

II. Preliminary Matters

A. Disapproval by Agency Head

Section 7114(c)(1) of the Statute provides that collective bargaining agreements are subject to approval by the head of the agency. Section 7114(c)(2) provides that the agency head "shall approve the agreement" if it is in accordance with the Statute and "any other applicable law, rule, or regulation . . . ." Agency heads may delegate the authority to approve or disapprove agreements under section 7114(c) of the Statute to subordinate officials in the agency. Fort Bragg Association of Teachers and U.S. Department of the Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852, 855 (1992).

The Union claims that because the agreement was executed by the Acting Commissioner of Patents and Trademarks on behalf of the Agency, the Agency head (the Secretary of Commerce) was foreclosed from reviewing and disapproving the agreement. However, the Union does not provide any evidence that the Secretary of Commerce has delegated authority to the Commissioner of Patents and Trademarks to approve or disapprove labor agreements under section 7114(c) of the Statute. Consequently, we have no basis on which to conclude that execution of the agreement by the Acting Commissioner of Patents and Trademarks constituted agency head approval of the agreement pursuant to section 7114(c). Accordingly, we find that the Union's claim that the Agency head was foreclosed from disapproving the agreement by the Acting Commissioner's execution of the agreement is without merit.

B. Offer to Modify Provision

The Union states that on March 26 and April 30, 1993, it made an offer to the Agency's chief negotiator to "add the phrase 'consistent with Article 20, Section 5' [of the parties' Basic Agreement] to the provision[,]" and that it made the same offer to the Agency's labor counsel on April 27, 1993. Response at 6 (footnote omitted). We interpret the Union's statement as a proposed modification of the disputed provision. The Authority will not consider a modification of a disputed proposal or provision where the modified proposal or provision has not been the subject of an agency allegation of nonnegotiability. See, for example, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52, 82 (1992). There is no indication in the record that the Union requested an allegation of nonnegotiability on the proposed modification of the provision or that the Agency has alleged that the modified provision is nonnegotiable. Consequently, the proposed modification of Provision 1 is not properly before us and will not be considered. We find, therefore, that the provision in the agreement executed by the parties, disapproved by the Agency head, and contained in the Union's petition is the provision before us for review.

We note that nothing precludes a union, following an agency head's disapproval of collective bargaining agreement provisions, from filing a negotiability petition while continuing to pursue negotiations with the agency to reach agreement on revised agreement provisions. If the continuing negotiations are successful, the petition for review may be withdrawn. However, if the negotiations are not successful, the parties may still receive a decision as to the negotiability of the agreement provisions contained in the petition for review. See, for example, National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 1537, 1539-41 (1991).

III. Provision

2. In accordance with the Office's published policy:

(a) when an employee requests religious compensatory time and states it is his/her personal religious belief which requires his/her abstinence from work and the reasons are obvious, there is no need to inquire further as to the nature of the personal religious belief unless some other fact makes a supervisor question whether the personal religious belief is sincere, then, any inquiry made by the Office as to the sincerity of the employee's personal religious belief shall be limited to the extent necessary to verify the sincerity of the employee's personal religious belief that requires his/her abstinence from work for a specific period of time and shall be conducted in a dignified manner intended to be respectful of the employee's personal religious belief;

(b) the Office shall grant reasonable time that is requested by the employee.

[Only the underscored portion of the provision is in dispute; footnotes have been omitted.]

IV. Positions of the Parties

A. Agency

The Agency contends that the provision is nonnegotiable under section 7117(a)(1) of the Statute because it violates 5 C.F.R. § 550.1002(b), which is a Government-wide regulation. According to the Agency, 5 C.F.R. § 550.1002(b) grants compensatory time for religious observance "only 'to the extent that such modifications in work schedule do not interfere with the efficient accomplishment of an agency mission.'" Statement at 2 (citing 5 C.F.R. § 550.1002(b)).

The Agency claims that the provision establishes a more stringent standard for denying requests for leave than the standard set forth in 5 C.F.R. § 550.1002(b). Specifically, the Agency contends that the provision requires the Agency to grant any request for reasonable time, without regard to whether granting the request could interfere with the efficient accomplishment of the Agency's mission. The Agency cites National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 35 (1991) (Office of Chief Counsel, IRS), decision and order on request for reconsideration as to other matters, 40 FLRA 849 (1991), enforced in part, vacated in part, and remanded in part as to other matters, 960 F.2d 1068 (D.C. Cir. 1992), decision and order on remand as to other matters, 45 FLRA 1256 (1992).

B. Union

The Union states that the provision is "intended to clarify that religious compensatory time is not to be limited to an 'arbitrary' amount of time off[.]" Response at 2. Rather, according to the Union, the provision requires the Agency to grant "reasonable time." Id.

The Union claims that the Agency misinterprets the provision because the Agency ignores the requirement that compensatory time for religious purposes be granted "[i]n accordance with the Office's published policy . . . ." According to the Union, the Office's published policy states that the statutory provisions authorizing compensatory time for religious observances were intended to provide reasonable accommodation for employees' religious needs "when such accommodation does not interfere with the efficient accomplishment of the Agency's work." Id. at 3 (citation omitted).

The Union maintains that the provision does not establish a standard for denying employees' requests for leave. In particular, the Union distinguishes the provision in this case from the proposal in Office of Chief Counsel, IRS on the ground that the proposal in that case established a standard governing management's denial of requests for leave for religious observances.

V. Analysis and Conclusions

For the following reasons, we find that the provision is consistent with 5 C.F.R. § 550.1002(b), a Government-wide regulation, and conclude, therefore, that the provision is negotiable.

Provision 1 provides that, in accordance with the Office's published policy, the Agency will grant reasonable time for religious observances that is requested by an employee. We agree with the Union that the provision must be read to include the prefatory phrase "in accordance with the Office's published policy." See, for example, American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base, California, 34 FLRA 909, 911 (1990). Interpreted in this manner, the provision conditions any grant of time for religious observance on Office policy. The record demonstrates that, in explaining Office policy, the Agency notified employees that, under applicable statutes, compensatory time would be granted to accommodate employees' religious needs when such an accommodation does not interfere with the efficient accomplishment of the Agency's work. By requiring the Agency to grant reasonable compensatory time in accordance with Office policy, therefore, the provision requires the Agency to grant employees' requests for reasonable time for religious observances where doing so would not interfere with the efficient accomplishment of Agency work.

Under 5 C.F.R. § 550.1002(b), compensatory time for religious observances will be granted "[t]o the extent that . . . modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission[.]" 5 C.F.R. § 550.1002(b). As interpreted above, the disputed provision in this case requires the Agency to grant reasonable time that is requested by an employee for religious observances where doing so would not interfere with the efficient accomplishment of the Agency's work. We find that, interpreted in this manner, the provision incorporates the conditions governing compensatory time for religious observances that are prescribed by 5 C.F.R. § 550.1002(b). We conclude, therefore, that the provision is consistent with 5 C.F.R. § 550.1002(b).

Because the provision in this case incorporates the conditions prescribed by 5 C.F.R. § 550.1002(b), the provision is distinguishable from the provision in Office of Chief Counsel, IRS, 39 FLRA at 35-36. The provision in that case precluded the agency from denying an employee's request for leave for religious observances unless the employee's presence was abso