23:0117(13)NG - NFFE Local 1429 and Army, Letterkenny Army Depot -- 1986 FLRAdec NG

 23 FLRA No. 13
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1429
 Union
 
 and
 
 U.S. DEPARTMENT OF THE ARMY 
 LETTERKENNY ARMY DEPOT
 Agency
 
                                            Case No. 0-NG-1154
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    The petition for review comes before the Authority pursuant to
 section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management
 Relations Statute (the Statute) and presents issues concerning the
 negotiability of a single provision of an agreement disapproved by the
 Agency head pursuant to section 7114(c) of the Statute.
 
                              II.  Provision
 
    Article 22, Section 2 --
 
          Employees who volunteer as blood donors will normally be
       authorized four hours of excused absence, insofar as scheduling of
       donors will allow, for recuperation following blood donation.  In
       unusual cases, i.e. the unusual need for recuperation occurs, up
       to an additional four hours may be authorized (Ref:  CPM 990-2,
       Book 630.S11).  Such absence will not include time spent in
       donating bloor, traveling from the site of donation nor will it
       include the employees' lunch hour.  The scheduling of blood
       donation times will be the function of the depot blood coordinator
       through the division office with times being equally rotated
       throughout the divisions.  Employees who request, but are not
       scheduled for the quarterly bloodmobile visit, will be given an
       opportunity to donate in accordance with FPM Supplement 990-2,
       Book 630.  Emergency donations will be handled on a case-by-case
       basis by the depot blood coordinator.  (Only the underlined
       portion of the provision is in dispute.)
 
                      III.  Positions of the Parties
 
    The Agency contends that the provision is inconsistent with (1) the
 Agency's right to assign work under section 7106(a)(2)(B) of the
 Statute;  and (2) Department of Defense Regulation, Civilian Personnel
 Manual (CPM) 1400.25-M CPM 990-2, 630.S11-5, /1/ for which a compelling
 need exists under section 7117(a)(2) of the Statute and section 2424.11
 of the Authority's Rules and Regulations.  In support of its first
 contention, the Agency argues that the granting of an employee's request
 for administrative leave in an amount in excess of four hours for the
 purpose of donating blood without regard to the necessity of the
 employee's service during the period covered by the request interferes
 with the Agency's right to assign work under the Statute.  In support of
 its second contention, the Agency argues that the provision conflicts
 with its regulation by requiring more than four hours of administrative
 leave to be granted and that a compelling need exists for that
 regulation.
 
    In response to the Agency's first contention, the Union maintains
 that its intent in using the language, "normally be authorized four
 hours of excused absence," is that the Agency can deny permission for
 employees to donate blood when the time necessary for such donation
 would interfere with the Agency's mission and, therefore, it does not
 interfere with the assignment of work.  According to the Union, the
 provision applies only to those employees who can be scheduled by
 management for the time off.  In response to the Agency's second
 contention, the Union argues that the Agency regulation (1) does not
 have a compelling need, and (2) is a guideline rather than a mandatory
 provision.
 
                       IV.  Analysis and Conclusion
 
    The disputed provision requires the Agency to add the time spent
 donating blood and traveling to the donation site to the four hours of
 excused absence for employees who donate blood.
 
    Contrary to the Agency's contention, the provision, as interpreted by
 the Union, is not inconsistent with its right to assign work under the
 Statute.  As noted, the Union's intent is that the Agency can deny
 permission for employees to donate blood when the time necessary for
 such donation would interfere with the Agency's work.  Thus, the
 provision would not restrict the Agency's right to deny an employee's
 request when the Agency needed the employee to perform work.
 Accordingly, the provision is not inconsistent with the Agency's right
 to assign work.
 
    The Agency's second contention is that the provision is inconsistent
 with Agency regulation, CPM 1400.25-M, CPM 990-2, 630.S1105.  In order
 for the Agency to establish that the provision is barred by an Agency
 regulation, it must (1) identify a specific agency-wide regulation;  (2)
 show that there is a conflict between its regulation and the provision;
 and (3) demonstrate that its regulation is supported by a compelling
 need with reference to the Authority's standards set forth in section
 2424.11 of its Regulations.  See American Federation of Government
 Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
 Corporation, Madison Region, 21 FLRA No. 104 (1986) (Union Proposal 7).
 To establish compelling need the Agency must demonstrate that its
 regulation is "essential" or "necessary" to achieve certain ends.
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
 217, 220 (1981).  Generalized and conclusionary reasoning is not enough
 to support a finding of compelling need.  Federal Deposit Insurance
 Corporation, Madison Region, supra.
 
    The first two requirements of the three part test have been met.  The
 Agency has identified a specific Agency-wide regulation, CPM 1400.25-M,
 CPM 990-2, 630.S11-5 and the provision authorizes the grant of more than
 four hours of excused absence in situations other than those specified
 in the regulation.  Thus, the provision conflicts with the Agency
 regulation.
 
    As to the final requirement, the Agency argues that under criterion
 (a) of section 2424.11 /2/ the provision is not "consistent with the
 requirements of an effective and efficient government" because the
 provision would raise costs to the Agency by increasing at least 50% the
 amount of time for excused absence for blood donation.  The increase,
 the Agency asserts, would be a result of additional time in giving blood
 and traveling to and from the donation site.  The Union disputes these
 assertions, contending that the time taken in actually giving blood is
 only 10 to 15 minutes and that the time for traveling to the donation
 site is minimal since most donations are made at bloodmobiles on the
 military installation.
 
    As noted in Federal Deposit Insurance Corporation, Chicago Region,
 Illinois, supra, to establish compelling need the Agency must
 demonstrate that its regulation is "essential" or "necessary".  In this
 case the Agency has not done so.  The Agency has offered only
 generalized and conclusionary reasoning, which was disputed by the
 Union, in support of its assertion that there is a compelling need for
 the Agency regulation.  With reference to the alleged increase in costs,
 the Agency has not shown that there would be any increase in the number
 of employees who donate blood under the provision.  Even assuming that
 the provision would result in an increase in the hours of excused
 absence, the Agency has not shown that the increase would be sufficient
 to justify a finding that the provision is inconsistent with an
 effective and efficient government.  Since the Agency has not
 established a compelling need for the Agency regulation under section
 2424.11 of the Authority's Rules and Regulations, the Agency has not
 shown that the provision is barred by an Agency regulation.  Therefore,
 the provision is within the Agency's duty to bargain under the Statute.
 
                                 V.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
 of the disputed provision.  /3/
 
    Issued, Washington, D.C., August 14, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) S-11.5.  Administrative Discretion
 
          b.  Blood Donation.  DOD employees are encouraged to serve as
       blood donors and will be excused from work without charge to leave
       for the time necessary to donate the blood, for recuperation
       following blood donation, and for necessary travel to and from the
       donation site.  The maximum excusal time will not exceed 4 hours,
       except in unusual cases.  When the employee must travel a long
       distance, or when unusual need for recuperation occurs, up to an
       additional 4 hours may be authorized.
 
    (2) Section 2424.11(a) of the Authority's Rules and Regulations
 contains the following criterion:
 
          (a) The rule or regulation is essential, as distinguished from
       helpful or desirable, to the accomplishment of the mission or the
       execution of functions of the agency or primary national
       subdivision in a manner which is consistent with the requirements
       of an effective and efficient government.
 
    (3) In deciding that the provision is within the duty to bargain, the
 Authority expresses no opinion as to the merits of the provision.