53:0271(37)NG - - NAGE, Local R1-109 and VA Medical Center, Newington, CT - - 1997 FLRAdec NG - - v53 p271
[ v53 p271 ]
The decision of the Authority follows:
53 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
August 15, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
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 Agency filed a statement of position and the Union filed a response.
For the reasons that follow, we find that the proposal is outside the duty to bargain.
The Agency notified the Union of its intent to rescind the Improved Sick Leave Accumulation Program (ISLAP), and subsequently rescinded the ISLAP. Under the ISLAP, full-time employees who used 4 hours or less of sick leave during a calendar year quarter received a coupon redeemable for 4 hours of administrative leave. The purpose of the ISLAP was to encourage the accumulation of sick leave by employees "through a meaningful incentive program" and, thereby, to reduce the amount of overtime required due to unscheduled leave. Station Policy Memorandum 05-9, attached to the Petition for Review, at 1.
III. Proposal (1)
The proposal in dispute reads as follows:
It is the Union's Proposal that the program remain in effect.
IV. Positions of the Parties
The Agency contends that the proposal is inconsistent with law and Government-wide regulation because time off for nonuse of sick leave is inconsistent with 5 U.S.C. Chapter 45 and implementing Office of Personnel Management (OPM) regulations, 5 C.F.R. Part 451. The Agency asserts that employee nonuse of sick leave does not constitute a superior accomplishment or other personal effort that contributes to the quality, efficiency, or economy of Government operations within the meaning of Chapter 45 and Part 451. In support of this claim, the Agency relies on a Comptroller General decision, 67 Comp. Gen. 349 (1988). According to the Agency, in that decision the Comptroller General refused to authorize awards for nonuse of sick leave, based on guidance issued by OPM pursuant to its regulatory authority over sick leave and incentive awards.
The Union does not address the Agency's claim that the proposal is inconsistent with law and Government-wide regulation. With respect to the Agency's claim in its allegation of nonnegotiability that the proposal is inconsistent with VA Regulation MP-5, Part 1, Chapter 451, Section G.7.e.(7) (Agency regulation), the Union contends that the Agency has not demonstrated that a compelling need exists for the Agency regulation to bar negotiation of the proposal.
V. Analysis and Conclusions
A. Meaning of the Proposal
Consistent with the plain wording of the proposal, the proposal would require the Agency to continue the ISLAP. Pursuant to the terms of the ISLAP, the Agency would be required to grant time off to an employee who uses only the specified amount of sick leave during a calendar year quarter, regardless of the circumstances.
B. The Proposal is Inconsistent With Law and Government-Wide Regulation
Under 5 U.S.C. § 4502(e), which is part of the Government Incentive Awards Act, 5 U.S.C. §§ 4501-06, agencies are authorized, consistent with OPM regulations, to grant employees, as an incentive award, time off from duty in recognition of superior accomplishment or other personal effort that contributes to the quality, efficiency, or economy of Government operations.(2) See also 5 U.S.C. § 4503, which authorizes agencies to grant awards. OPM regulations implementing the Government Incentive Awards Act provide that an agency may grant time off to an employee as an incentive award (3) on the basis of superior accomplishment, productivity gain, or other personal effort that contributes to the efficiency, economy, or other improvement of Government operations. 5 C.F.R. § 451.104(a)(1).(4)
Neither 5 U.S.C. chapter 45 nor 5 C.F.R. Part 451 defines the phrases "superior accomplishment" or "personal effort." In the absence of statutory or regulatory definitions, it is appropriate to refer to the normally accepted meanings of terms as reflected in the dictionary. E.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1283-84 (1997). "Accomplishment" is defined as "the act of accomplishing" and "accomplish" is defined as "to execute fully" or "perform, achieve[.]" "Effort" is defined as the "conscious exertion of physical or mental power[.]" Webster's Third New International Dictionary (1986)(Unabridged). Based on the dictionary definitions of "accomplishment" and "effort," it is reasonable to conclude that both 5 U.S.C. § 4502(e) and 5 C.F.R. § 451.104(a)(1) require that an award be based on performance or activity by an employee.
Although nonuse of sick leave may in some instances be traceable to an employee's effort to work even though ill, it is not reasonable to conclude that nonuse of sick leave results from such efforts in all instances. Instead, it is reasonable to conclude that some, if not most, nonuse of sick leave results only from the fact that the employee simply did not get sick. This is among the reasons that OPM advised agencies that incentive awards were not appropriate under law and regulation for nonuse of sick leave. OPM stated as follows:
The rationale for this position is the following: (1) sick leave is an employee benefit to be used for bona fide health purposes and it is to the employees advantage not to abuse it; (2) employees who show up at work every day because they are fortunate enough to realize good health are only doing what's expected of them and are not performing above and beyond job requirements; (3) since the purpose of such incentives is to discourage employees who abuse sick leave, it would not be fair to those employees who are actually sick, as their valid absence from work would disqualify them; also, employees might come into work when actually sick; and (4) employees abuse sick leave privileges for any number of reasons, both personal and job related: monetary incentives would likely have little, if any, impact in changing this situation.
Excerpt from "Incentive Awards Notes," vol. 30, no. 3, published by the Incentive Awards Branch of OPM, 1984, attached to the Agency's Statement of Position.
OPM's Assistant General Counsel subsequently confirmed this advice in a memorandum to OPM's Agency Services Division, Workforce Effectiveness and Development Group. See Memorandum attached to Agency's Statement of Position. In addition, relying on the Assistant General Counsel's Memorandum, the Comptroller General ruled that incentive awards for nonuse of sick leave were inappropriate under the Incentive Awards Act. Specifically, the Comptroller General stated that "the use of sick leave by a government employee is, in many cases, fortuitous and has no relationship to the employee's superior performance as contemplated by the Incentive Awards Act." 67 Comp. Gen. at 351.
Because the proposal does not distinguish among the reasons why employees have not used sick leave, it includes instances in which nonuse of sick leave is traceable to nothing more than the fact that an employee did not get sick and, thus, did not use more than the specified amount of sick leave during a calendar year quarter. 5 U.S.C. § 4502(e) and 5 C.F.R. § 451.104(a)(1) require performance or activity on the part of an employee as the basis for an award. By requiring the Agency to grant an employee an incentive award only for the fact that he or she did not get sick, the proposal requires the Agency to grant an incentive award to an employee on a basis that does not involve performance or activity by that employee. As such, the proposal is inconsistent with 5 U.S.C. § 4502(e) and 5 C.F.R. § 451.104(a)(1). See 67 Comp. Gen. at 351; memorandum attached to Agency's Statement of Position. Consequently, the proposal is inconsistent with law and Government-wide regulation and outside the duty to bargain under section 7117(a)(1) of the Statute. See American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1330-31 (1996); Panama Canal Commission, 51 FLRA at 351-52.
Because the proposal is inconsistent with law and Government-wide regulation and, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute, it is not necessary to consider whether the proposal is within the duty to bargain under section 7106(b)(2) and (b)(3). Sections 7106(b)(2) and (b)(3) are not exceptions to section 7117(a)(1). See, e.g., National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1196 (1991).(5)
The petition for review is dismissed.
5 U.S.C. § 4502(e) provides as follows:
§ 4502. General provisions
(e) The Office of Personnel Management may by regulation permit agencies to grant employees time off from duty, without loss of pay or charge to leave, as an award in recognition of superior accomplishment or other personal effort that contributes to the quality, efficiency, or economy of Government operations.
5 U.S.C. § 4503 provides as follows:
§ 4503. Agency awards
The head of an agency may pay a cash award to, and incur necessary expense for the honorary recognition of, an employee who--
(1) by his suggestion, invention, superior accomplishment, or other personal effort contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork; or
(2) performs a special act or service in the public interest in connection with or related to his official employment.
5 C.F.R. § 451.104(a)(1) provides as follows:
§ 451.104 Awards.
(a) An agency may grant a cash, honorary, or informal recognition award, or grant time-off without charge to leave or loss of pay consistent with chapter 45 of title 5, United States Code, and this part to an employee, as an individual or member of a group, on the basis of--
(1) A suggestion, invention, superior accomplishment, productivity gain, or other personal effort that contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork[.]
(If blank, the decision does not have footnotes.)
1. The Union's petition for review is ambiguous with respect to the number of proposals in dispute. The Union's initial submission to the Agency included the following as the second sentence in its proposal: "The Union further proposes that the status quo be maintained until such time as the parties have resolved the issue through the negotiation process, up to and including impasse." Union letter to Agency, attached to Petition for Review. In addition, the Union's petition for review refers both to "proposals" that are being appealed and to its "proposal" in its initial submission to the Agency. Petition for Review at 1. However, the Agency did not allege that this second sentence was nonnegotiable. Accordingly, even if this sentence is included in the petition for review (either as a separate proposal or as the second part of the first proposal), the petition does not meet the conditions governing review of negotiability issues as to this sentence. Consequently, the petition for review as to this sentence is dismissed without prejudice. E.g., National Federation of Federal Employees Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923, 924-25 (1994).
2. The text of 5 U.S.C. §§ 4502(e) and 4503 is set forth