49:0151(21)NG - - NFFE, Local 2119 and Army, Rock Island Arsenal, Rock Island, IL - - 1994 FLRAdec NG - - v49 p151



[ v49 p151 ]
49:0151(21)NG
The decision of the Authority follows:


49 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2119

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ROCK ISLAND ARSENAL

ROCK ISLAND, ILLINOIS

(Agency)

0-NG-2156

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 25, 1994

_____

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 one proposal relating to the use of administrative leave for bargaining unit employees who were required to remain on duty when other employees were dismissed early on December 24 and 31, 1991. The proposal also addresses the availability of administrative leave for employees who were on annual or sick leave on December 24 and 31, 1991.

We find that the portion of the proposal authorizing administrative leave for certain employees who were on annual or sick leave on December 24 and 31 is negotiable. The remainder of the proposal, as it applies to all other employees, is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation.

II. Background and Preliminary Matters

At the time of the events giving rise to this dispute, the bargaining unit consisted of employees of the Agency located in four separate activities: Rock Island Arsenal (Arsenal); Headquarters, U.S. Army Armament, Munitions and Chemical Command (AMCCOM), U.S. Army Information Systems Command (ISC), and the U.S. Army Troop Support Command, Rock Island Arsenal Commissary (Commissary).

On both December 24 and 31, 1991, AMCCOM and ISC dismissed nonessential employees from work early and placed them on administrative leave, without charge to annual leave, for the remainder of their duty day. Essential employees in AMCCOM and ISC as well as the employees in the Arsenal and the Commissary were not dismissed early. According to the Agency, the early dismissals of the employees in AMCCOM and ISC were authorized under Federal Personnel Manual (FPM) chapter 610, subchapter 3, Group Dismissal or Closure of Activities. In January 1992, the Union requested to bargain with respect to the dismissals of employees and the parties commenced negotiations. No agreement was reached.

In March 1992, the Union filed a grievance alleging that the Agency was engaging in bad faith bargaining. The grievance was submitted to arbitration. The arbitrator issued a decision in the matter directing the Agency to bargain. The parties resumed negotiations but were unable to reach agreement. They jointly requested the assistance of the Federal Service Impasses Panel (the Panel), which declined to assert jurisdiction on the basis that there was an outstanding issue concerning the Agency's obligation to bargain over the Union's proposals. Subsequently, in June 1992, the Agency declared the Union's proposals nonnegotiable in response to the latter's request for a written allegation of nonnegotiability.

As a preliminary matter, the Union maintains that the Agency waived its right to raise an allegation of nonnegotiability. The Union argues, in this connection, that the Agency's failure to file an exception to the arbitrator's award essentially signifies that the Agency's refusal to bargain was based solely on an interpretation of the parties' agreement and was not predicated on an alleged inconsistency with law, rule, or regulation. In addition, the Union asserts that the Agency's participation in a joint request for Panel assistance indicates that it was in agreement with the Union that the parties were at impasse, rather than involved in a negotiability dispute. The Agency did not respond to these arguments.

We reject the Union's contentions. In our view, the Agency's failure to except to an arbitral award requiring bargaining over the 1991 group dismissals does not establish that the Agency waived its right to contest the negotiability of a proposal resulting from those negotiations. Under section 7117 of the Statute and section 2424.1 of the Authority's Rules and Regulations, the Authority will consider a petition for review of a negotiability issue where the parties disagree over whether a proposed matter conflicts with law, rule, or regulation. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990). In this case, the Agency declared the proposal nonnegotiable on the basis that it is inconsistent with management's right to assign work under the Statute and with regulations governing administrative, sick, and annual leave. Where, as here, the conditions governing review of a negotiability appeal have been met, the Authority is required to determine whether a proposal is negotiable under the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 630-31 (D.C. Cir. 1983). To the extent the Union raises other issues concerning the Agency's bargaining obligation, those issues should be addressed in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).(1)

III. The Proposal

1. All bargaining unit employees not afforded an opportunity for early release on December 24th and 31st of 1991 be given an opportunity to use four (4) hours of administrative leave for each of the days. The use of the administrative leave will be subject to the approval of the appropriate supervisor. Approval will be based on the same criteria used for the approval of annual leave.

2. Employees in an annual leave or sick leave status on December 24th and 31st 1991 will be re-credited with one hour of administrative leave for each hour of AL or SL not to exceed four (4) hours for each day.

3. Employees using less than four (4) hours of leave on each of those days will be credited with one hour of administrative leave for hour of AL or SL used. Any additional hours of administrative leave (up to four (4) hours per day) will be available for use as provided for in part #1 of this proposal.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal which, in its view, provides certain employees with a bank of 8 hours of administrative leave, is inconsistent with the provisions of the FPM governing excused absences for individual employees, for group dismissals, and closures of activities. The Agency also maintains that the proposal violates laws and Government-wide regulations governing the purposes and uses of annual and sick leave. In addition, in its allegation of nonnegotiability, the Agency claimed that the proposal was also inconsistent with the right to assign work under section 7106(a)(2)(B) of the Statute.

Specifically, the Agency maintains that the proposal is inconsistent with FPM chapter 610, subchapter 3, governing group dismissals, because it seeks administrative leave for essential employees in AMCCOM and ISC whose services were required on December 24 and 31, 1991. According to the Agency, the FPM provision applies only to dismissals of non-essential employees.

The Agency also argues that the proposal is inconsistent with FPM chapter 630, subchapter 11, governing administrative leave for individuals, because the proposal allows for the use of administrative leave for personal purposes. The Agency explains that the use of administrative leave for personal purposes is inconsistent with the FPM and quotes section 11-5b of subchapter 11 as permitting excused absences only "for the benefit of the agency's mission or a Government[-]wide recognized and sanctioned purpose." According to the Agency, the fact that the proposal provides that the use of administrative leave will be based on the same criteria as the approval for annual leave is evidence that the proposal is intended to allow for the use of administrative leave for personal purposes. In support of its position that the proposal is inconsistent with the cited regulation, the Agency cites American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 557 (1987), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 87-1727 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 472 (1988) (Proposal 6B), and American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 894-99 (1986) (Proposal 15).

The Agency also disputes the Union's reliance on various Authority decisions in which proposals authorizing the use of administrative leave were found negotiable. The Agency asserts that several of those decisions addressed the leave status of employees whose services the agencies determined were not needed during periods of temporary shutdowns. In contrast, the Agency argues that the proposal here addresses "granting a bank of administrative leave for employees whose services were needed by the [A]gency." Statement of Position at 8. The Agency further asserts that an additional Authority decision cited by the Union addressed the use of leave for employee counseling. In the Agency's view, such counseling constituted a work-related matter, unlike the proposal in this case, which addresses the use of administrative leave "for personal reasons unrelated to the mission of the [A]gency." Id. Further, the Agency maintains that the FPM does not authorize administrative leave "solely for the purpose of equity." Id. at 6.

In addition, the Agency contends that the proposal conflicts with 5 U.S.C. chapter 63, because it would allow for the accumulation of annual and sick leave beyond the amount specified in that chapter. The Agency explains that 5 U.S.C. §§ 6303 and 6707 specify the amount of annual and sick leave an employee is entitled to accrue and do not provide for the accumulation of any additional leave.

The Agency further argues that the proposal is inconsistent with regulations governing the administration of annual and sick leave. The Agency maintains, for example, that the proposal allows for administrative leave to be used for the same reasons as annual and sick leave, despite the fact that FPM chapter 630 "does not contemplate the use of administrative leave where sick or annual leave would be appropriate." Id. at 7. In support of its position, the Agency cites American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622, 626-27 (1987) (Social Security Administration), affirmed as to other matters, 836 F.2d 1408 (D.C. Cir. 1988) (Proposal 3).

2. Union

In its petition for review, the Union explains that the "proposal provides an opportunity for employees of the bargaining unit to have equal access to time off work without charge to leave as provided to some [other] bargaining unit members." Petition for Review at 1. More specifically as to part 1 of the proposal, the Union states that it is designed to provide equal treatment of bargaining unit employees who were not released from duty on December 24 and 31, 1991. The Union further states that the proposal permits the Agency to approve the use of administrative leave based on its "ability . . . to release the employee from work." Id. at 2. As to parts 2 and 3 of the proposal, the Union explains that these sections allow for absences based on previously approved leave to be charged to administrative leave. However, the Union notes that the Agency would not be required to recredit the leave accounts of employees on annual and sick leave under parts 2 and 3 of the proposal if the Agency provides those employees with the administrative leave authorized in part 1 of the proposal.

The Union maintains that the proposal is similar to prior Authority decisions in which proposals authorizing the use of administrative leave were found negotiable. The Union states, as a general matter, that proposals are negotiable when management retains the discretion to approve the use of leave. According to the Union, because the Agency retains control of when to approve the use of the administrative leave, the proposal does not interfere with management's right to assign work. The Union also contends that the proposal is not "violative of any law, rule or applicable regulation." Response at 3.

In addition, the Union asserts that the proposal is consistent with both FPM chapter 630, subchapter 11, governing administrative leave for individuals, and FPM chapter 610, subchapter 3, governing administrative leave for group dismissals. More particularly as to chapter 630, the Union states that agency heads may release employees for short periods of time and that subchapter 11-4 is designed to "'[p]romote equity and consistency in the granting of individual requests for excused absence.'" Response at 2, quoting FPM chapter 630, subchapter 11-4b. The Union further notes that FPM chapter 630, subchapter 11-1 states that that subchapter provides guidance on the granting of excused absence and is not "'intended to be a comprehensive index of all instances in which excused absence may be granted[.]'" Response at 2, quoting FPM chapter 630, subchapter 11-1. With respect to dismissals under FPM chapter 610, the Union adds that under subchapter 3, the Agency has "discretionary authority . . . to release non-essential personnel for the personal benefit of those employees on the two holiday [evenings]." Response at 2-3.

B. Analysis and Conclusions

Under section 7117(a)(1) of the Statute, we will find a proposal nonnegotiable if it is inconsistent with Federal law or a Government-wide rule or regulation. For the following reasons, we conclude that the proposal, in part, is inconsistent with FPM chapter 630, subchapter 11. Accordingly, to that extent, the proposal is nonnegotiable. We also find, as explained more fully below, that a portion of the proposal is negotiable.

Initially, we note that during the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document at 1. FPM chapter 610 was abolished. See id., Chapter Summary Sheet at 77. FPM chapter 630, subchapter 11, has been provisionally retained. Id. at 78. We also note that there are provisions contained in the Code of Federal Regulations (CFR) that address administrative dismissals for employees who are paid on a daily, hourly, or piecework basis. Although neither of the parties made specific arguments with respect to the applicability of those provisions to this case, we will discuss them, where appropriate. See 5 C.F.R. part 610, subpart C.

In addressing the negotiability of the proposal before us, we will not apply the provisions contained in FPM chapter 610, insofar as that chapter has been abolished. We will, however, apply the FPM provisions that have been provisionally retained. In this regard, the Authority has often stated that in resolving cases before it, it applies the law that exists at the time each case is decided. See, for example, American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, Headquarters, U.S. Marine Corps, Washington, D.C, 39 FLRA 839, 845 (1991). This includes the application of provisions contained in Government-wide regulations in ruling on the negotiability of proposals. See 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 47, 51 n.2 (1991). In this latter connection, the Authority previously has found that FPM chapter 630, subchapter 11 is a Government-wide regulation. See International Organization of Masters, Mates and Pilots and U.S. Department of the Navy, Chief of Naval Operations, Washington, D.C., 47 FLRA 218, 223 (1993) (Department of the Navy).

Turning now to the instant proposal, we find that it seeks a retroactive grant of administrative leave for all employees who were required to work on December 24 and 31, 1991, regardless of whether they were deemed essential or non-essential employees. The proposal also seeks a retroactive grant of administrative leave for all employees who were on annual or sick leave on December 24 and 31, 1991.

The Authority previously has described the circumstances under which agencies are authorized to grant administrative leave or, more specifically, brief periods of excused absence without charge to leave or loss of pay, consistent with FPM chapter 630, subchapter 11.(2) See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106 (1991) (Provision 6), petition for review dismissed, 953 F.2d 687 (D.C. Cir. 1992). An example of the appropriate use of excused absence includes participation in counseling and/or treatment sessions relating to an agency's drug testing program. See id. Other examples, as specified in subchapter 11, include time off for registration and voting, blood donation, and attendance at conferences and conventions that serve the interests of the Federal service. While we have stated that FPM chapter 630, subchapter 11 "do[es] not prescribe mandatory requirements governing the grant of administrative leave[,]" we find here that the granting of such leave is restricted to the general circumstances described in the FPM. See U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Immigration and Naturalization Service Council, Local 46, American Federation of Government Employees, AFL-CIO, 48 FLRA 1269, 1276 (1993). See also Department of the Navy. Thus, we conclude from the foregoing that in order to find that administrative leave is consistent with FPM chapter 630, subchapter 11, the purpose for which the leave is sought must bear some relationship to the situations described in subchapter 11 for which an excused absence may be appropriate. See Department of the Navy, 47 FLRA at 224 ("The appropriateness of a proposal involving administrative leave is based on its consistency with FPM chapter 630, subchapter 11").

Addressing first the employees in the Arsenal and the Commissary, and the essential employees in AMCCOM and ISC, who were not released early from duty on December 24 and 31, 1991, we find that the Union is seeking administrative leave for a purpose that is outside the ambit of FPM chapter 630, subchapter 11. In Department of the Navy, the proposal was designed to permit the exchange of overtime payment for administrative leave. We held that there was no provision in FPM chapter 630, subchapter 11 authorizing the use of administrative leave for the purpose sought by the Union and, therefore, that the proposal was inconsistent with that FPM subchapter. We reach the same result here.

As explained by the Union, the proposal is designed to provide equal treatment for bargaining unit employees who were not released early on December 24 and 31, 1991, and to provide them with a personal benefit. Thus, the proposal would provide administrative leave to employees who were required to work on the dates in question. We see nothing in FPM chapter 630, subchapter 11 that suggests that administrative leave is appropriate in such a situation. See also National Federation of Federal Employees, Local 3 and U.S. Department of Transportation, United States Coast Guard, Milwaukee, Wisconsin, 45 FLRA 805 (1992) (Coast Guard) (proposals requiring agency to grant administrative leave to bargaining unit employees whenever nonessential military personnel were granted such leave found to directly and excessively interfere with the right to assign work; additionally, the proposals were unlike proposals where administrative leave was sought for periods of agency shutdowns). Additionally, while the Union notes that FPM chapter 630, subchapter 11-4 is designed to promote equity and consistency in the granting of excused absences, that goal is predicated on the appropriate use of excused absences. To the extent the proposal seeks administrative leave for employees in the Arsenal and the Commissary and the essential employees in AMCCOM and ISC who were required to work on December 24 and 31, 1991, we find that the proposal is inconsistent with FPM chapter 630, subchapter 11.

We also reject the Union's assertion that the proposal is negotiable because it permits the Agency to approve the use of administrative leave consistent with the Agency's needs. As we stated above, in ascertaining the appropriateness of administrative leave, we must determine whether that leave is consistent with FPM chapter 630, subchapter 11. Having found that the proposal granting the right to the administrative leave is inconsistent with that subchapter, we need not address whether the proposal is consistent with the Agency's right to approve the use of such leave.

Finally, we find that the provisions contained in 5 C.F.R. §§ 610.301-610.306 do not alter our conclusion that the proposal is nonnegotiable with respect to the above-noted employees. Those provisions govern administrative dismissals of daily, hourly, and piecework employees for situations such as the interruption of normal operations by events beyond the control of management or employees, the closing of an establishment for short periods of time for managerial reasons, or where the public interest allows employees to participate in civil activities. Additionally, agencies may, by regulation, authorize dismissals under other circumstances. Assuming that the employees in this case are covered by these provisions, we do not see how the provisions would operate to authorize a dismissal where, in fact, the employees in the Arsenal and the Commissary and the essential employees in AMCCOM and ISC were required to work on December 24 and 31, 1991. Compare U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen & Schedulers Association, Local 5, 48 FLRA 1372 (1994) (arbitration award found not to conflict with 5 C.F.R. § 610.302 where the arbitrator directed the agency to grant employees administrative leave during a 4-day shutdown).

Next, we address the proposal insofar as it seeks administrative leave for employees in AMCCOM and ISC who were on annual or sick leave on December 24 and 31, 1991. For the following reasons, we find that the proposal is negotiable as to these employees.

First, we find no merit to the Agency's claim that the proposal conflicts with 5 U.S.C. chapter 63 because it would allow for the accumulation of annual and sick leave in amounts greater than authorized by law. There is nothing in the language of the proposal or the Union's explanation as to the manner in which it will operate that supports the Agency's contention.

We also reject the Agency's argument that the proposal is nonnegotiable under FPM chapter 630, subchapter 11. As we noted previously, the Agency dismissed non-essential employees in AMCCOM and ISC from work early on December 24 and 31, 1991, pursuant to FPM chapter 610, which governed group dismissals. By its terms, subchapter 11 "do[es] not apply to group dismissals or closures of activities." FPM chapter 630, subchapter 11-6. Because the employees at issue were in the Agency components that were part of a group dismissal, we find that FPM chapter 630, subchapter 11 does not apply. Therefore, unlike our discussion with respect to the employees who were not released early on December 24 and 31, 1991, we need not determine whether the purpose for which the administrative leave is sought is appropriate. Accordingly, contrary to the Agency, we find that subchapter 11 does not bar negotiations over the proposal with respect to the employees in AMCCOM and ISC who were on annual or sick leave on December 24 and 31, 1991.

Further, we find no merit to the Agency's assertion that the proposal is inconsistent with regulations governing the administration of annual and sick leave because those regulations do not contemplate the use of administrative leave where annual or sick leave would be appropriate. The Agency did not cite the particular regulations on which its argument is premised, other than FPM chapter 630. However, the Agency relied on Social Security Administration in support of its position and, in that case, the Authority discussed the requirements of FPM chapter 630, subchapter 3-4.a(2). Therefore, it is logical to presume that the Agency's argument is based on that regulatory provision. However, as we stated earlier, FPM chapter 630, subchapter 3 has been abolished. Thus, reliance on that regulatory provision cannot serve as a bar to negotiations over the proposal.

Finally, we find no merit to the Agency's contention that the proposal is inconsistent with the right to assign work under section 7106(a)(2)(B) of the Statute. It is well established that proposals that require management to grant leave prevent management from requiring employees to remain on duty to perform work and, thus, directly interfere with that management right. See, for example, Coast Guard, 45 FLRA at 809. In this case, the proposal explicitly states that the use of administrative leave will be subject to the approval of the appropriate supervisor and that such approval will be based on the same criteria as the approval of annual leave. Because the proposal preserves the Agency's right to approve the use of administrative leave, we find that there is no direct interference with the right to assign work. Compare American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 378-81 (1991) (proposal that did not preserve the agency's right to decide whether or not to grant requests for administrative leave held to directly interfere with the right to assign work).

IV. Summary

We find that the proposal is negotiable insofar as it pertains to the employees in AMCCOM and ISC who were on annual or sick leave on December 24 and 31, 1991. We further find that the proposal is nonnegotiable as it applies to employees of the Arsenal and the Commissary and the essential employees in AMCCOM and ISC.

V. Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over the proposal to the extent described above.(3) The petition for review is dismissed to the extent that the proposal has been found nonnegotiable.

APPENDIX

FPM chapter 630, subchapter 11 provides, in relevant part, as follows:

11-6 Procedures The following guidelines are offered for agencies to use when administering the granting of excused absence. These