National Labor Relations Board, Region 5 (Activity)  and National Labor Relations Board Union, Local 5 (Union)

 2 FLRA No. 42
 
 NATIONAL LABOR RELATIONS BOARD,
 REGION 5
 (Activity)
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION,
 LOCAL 5
 (Union)
 
                                           Case No. 0-NG-62
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                            UNION PROPOSAL /1/
 
    ARTICLE III
 
    IT IS RECOGNIZED BY THE REGIONAL DIRECTOR AND THE UNION THAT THE
 NATURE OF THE WORK OF THE NLRB AT TIMES NECESSITATES THAT PROFESSIONAL
 EMPLOYEES WORK OUTSIDE OF REGULAR OFFICE HOURS (EIGHT HOURS PER DAY
 AND/OR FORTY HOURS PER WEEK).  IN RECOGNITION OF THIS FACT IT IS
 UNDERSTOOD THAT ALL PROFESSIONAL EMPLOYEES WHOSE ASSIGNMENTS
 NECESSITATE
 THEIR WORKING OUTSIDE REGULAR OFFICE HOURS WILL BE PERMITTED TO CLAIM
 PAID OVERTIME OR COMPENSATORY TIME FOR ALL WORK PERFORMED OUTSIDE
 REGULAR OFFICE HOURS BASED ON THE FOLLOWING:
 
    1.  PROFESSIONAL EMPLOYEES WILL WORK EIGHT HOURS A DAY.
 
   *          *          *          *
 
 
    5.  PROFESSIONAL EMPLOYEES ARE ENTITLED TO ONE 30 MINUTE GRACE PERIOD
 PER PAY PERIOD.  PROFESSIONAL EMPLOYEES MAY USE ALL OR PART OF THIS
 GRACE PERIOD TO COVER OCCASIONAL AND UNAVOIDABLE INSTANCES OF TARDINESS
 IN REPORTING FOR WORK IN THE MORNING.
 
    (ONLY SECTION 5 IS DISPUTED IN THE INSTANT CASE.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL FOR, IN EFFECT, EXCUSED
 ABSENCE OF UP TO THIRTY MINUTES PER PAY PERIOD PER EMPLOYEE FOR
 OCCASIONAL AND UNAVOIDABLE TARDINESS IN REPORTING TO WORK, IS WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE(THE STATUTE) OR IS OUTSIDE THE DUTY TO BARGAIN BECAUSE
 IT WOULD VIOLATE LAW AND GOVERNMENT-WIDE REGULATIONS, AS ALLEGED BY THE
 AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONCERNS MATTERS WITHIN THE DUTY TO BARGAIN
 IN GOOD FAITH UNDER SECTION 7117(A) OF THE STATUTE.  /2/ ACCORDINGLY,
 PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44
 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  /3/
 
    REASONS:  THE AGENCY CONSTRUES THE DISPUTED PROPOSAL IN THIS CASE TO
 BE AN ATTEMPT TO NEGOTIATE A WORKWEEK OF LESS THAN FORTY HOURS.  IT
 CONTENDS THAT, SINCE FEDERAL STATUTE AND GOVERNMENT-WIDE REGULATION(5
 U.S.C. 6101 AND FPM SUPPLEMENT 990-1, PART 610) PROHIBIT A REDUCTION OF
 THE BASIC WORKWEEK TO LESS THAN FORTY HOURS, THE PROPOSAL, THEREFORE, IS
 NOT WITHIN THE DUTY TO BARGAIN.
 
    THE AGENCY HAS MISINTERPRETED THE SUBJECT PROPOSAL AND ITS CONTENTION
 IS WITHOUT MERIT VIS-A-VIS THE PLAIN LANGUAGE AND INTENDED MEANING OF
 THE PROPOSAL.  ON ITS FACE, THE PROPOSAL IS CONCERNED ONLY WITH THE
 CONTINGENCY OF EMPLOYEES OCCASIONALLY ARRIVING LATE TO WORK BECAUSE OF
 REASONS WHICH ARE BEYOND THEIR CONTROL.  CONTRARY TO THE AGENCY'S
 ASSERTIONS, THE LANGUAGE OF THE PROPOSAL DOES NOT PURPORT TO AUTHORIZE
 EMPLOYEES TO WORK LESS THAN EIGHT HOURS A DAY OR FORTY HOURS A WEEK.
 THEREFORE, THE PROPOSAL WOULD NOT, AS THE AGENCY FURTHER CLAIMS, VEST
 EMPLOYEES WITH THE RIGHT TO DETERMINE WHEN, AND UNDER WHAT
 CIRCUMSTANCES, THE BRIEF TARDINESS, WHICH IS THE SUBJECT OF THE
 PROPOSAL, WOULD NOT BE CHARGED TO LEAVE.  THE RECORD BEFORE THE
 AUTHORITY IN THIS CASE ADDS SUPPORT TO THE PLAIN MEANING OF THE LANGUAGE
 OF THE PROPOSAL.  IT INDICATES THAT THE UNDISPUTED PORTION OF THE
 UNION'S PROPOSED ARTICLE III, ITSELF, PROVIDES AS A GENERAL REQUIREMENT
 THAT EMPLOYEES WILL WORK EIGHT HOURS A DAY OR FORTY HOURS A WEEK;  AND
 THAT THE UNION EXPRESSLY INTENDS THAT SUCH REQUIREMENT WOULD BE
 ENFORCEABLE BY MANAGEMENT.  IT IS THEREFORE CLEAR THAT THE DISPUTED
 LANGUAGE REGARDING A "GRACE PERIOD" OF 30 MINUTES PER PAY PERIOD DOES
 NOT BY ITS PLAIN LANGUAGE, OR UNDER THE UNION'S STATEMENT AS TO THE
 INTENDED MEANING OF THAT LANGUAGE, AUTHORIZE EMPLOYEES TO BE LATE FOR
 WORK EITHER REGULARLY OR FOR AVOIDABLE REASONS, WITHOUT CHARGE TO LEAVE.
 
    THE QUESTION REMAINS, WHETHER THE AGENCY HAS DISCRETION UNDER LAW AND
 REGULATIONS TO EXCUSE SUCH OCCASIONAL, UNAVOIDABLE AND BRIEF ABSENCES
 DURING DUTY HOURS.  SINCE THE SCOPE OF AN AGENCY'S AUTHORITY TO EXCUSE
 AN EMPLOYEE FROM WORK FOR OCCASIONAL, UNAVOIDABLE AND BRIEF PERIODS OF
 TIME, WITHOUT CHARGE TO LEAVE OR LOSS OF PAY, IS NOT CLEARLY DEFINED IN
 LAW, IN THE ABSENCE OF A STATUTORY BAR, SUCH AS HERE, WE FIND THAT THE
 HEAD OF AN AGENCY IS NOT PRECLUDED FROM EXERCISING DISCRETION ON SUCH
 MATTERS.  /4/ IN THIS REGARD, THE FPM LISTS EXAMPLES OF CIRCUMSTANCES
 UNDER WHICH AGENCIES GENERALLY EXCUSE ABSENCE WITHOUT CHARGE TO LEAVE.
 THE LIST EXPRESSLY INCLUDES "TARDINESS AND BRIEF ABSENCE" THE
 CIRCUMSTANCES WITH WHICH THE DISPUTED PROPOSAL IN THIS CASE IS
 CONCERNED.  /5/
 
    HENCE, THE AUTHORITY CONCLUDES THAT THE DISPUTED PROPOSAL MERELY
 PROVIDES FOR EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE FOR OCCASIONAL,
 BRIEF, AND UNAVOIDABLE TARDINESS IN REPORTING FOR WORK AND THAT
 APPLICABLE LAW AND REGULATIONS DO NOT PRECLUDE THE AGENCY FROM
 EXERCISING ITS ADMINISTRATIVE DISCRETION TO EXCUSE SUCH ABSENCE.
 
    FOR THE REASONS STATED, AND SINCE IT DOES NOT APPEAR THAT THE
 DISPUTED PROPOSAL IS INCONSISTENT WITH ANY APPLICABLE LAW OR REGULATION,
 THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN PURSUANT TO SECTION 7117(A)
 OF THE STATUTE.  ACCORDINGLY, THE AGENCY'S ALLEGATION IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 31, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IT APPEARS FROM THE RECORD BEFORE THE AUTHORITY THAT THE UNION'S
 PROPOSAL IS ONE OF MANY RELATED PROPOSALS OFFERED BY THE UNION DURING
 THE COURSE OF NEGOTIATIONS FOR A LOCAL SUPPLEMENTARY AGREEMENT.  THE
 UNION REQUESTED ASSISTANCE FROM THE FEDERAL SERVICE IMPASSES PANEL AND
 SUBSEQUENTLY WAS NOTIFIED IN WRITING BY THE AGENCY THAT THE PROPOSED
 THIRTY MINUTE GRACE PERIOD PER PAY PERIOD WAS OUTSIDE THE DUTY TO
 BARGAIN.
 
    /2/ THE STATUTE, SEC. 7117(92 STAT. 1205) PROVIDES, IN RELEVANT PART,
 AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY
 FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION REFERRED TO IN
 PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY HAS DETERMINED
 UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING NEED(AS
 DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR THE
 RULE OR REGULATION.
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ ACCORD, 53 COMP. GEN. 583(1974), 53 COMP. GEN. 1054(1974), 54
 COMP. GEN. 706(1975), 55 COMP. GEN. 510(1975), 56 COMP. GEN. 865(1977).
 
    /5/ FPM SUPPLEMENT 990-2, BOOK 630, SUBCHAPTER S11-5, PROVIDES, IN
 RELEVANT PART:
 
                         ADMINISTRATIVE DISCRETION
 
    A.  GENERAL.  WITH FEW EXCEPTIONS, AGENCIES DETERMINE
 ADMINISTRATIVELY SITUATIONS IN WHICH THEY WILL EXCUSE EMPLOYEES FROM
 DUTY WITHOUT CHARGE TO LEAVE AND MAY BY ADMINISTRATIVE REGULATION PLACE
 ANY LIMITATIONS OR RESTRICTIONS THEY FEEL ARE NEEDED.  SOME OF THE MORE
 COMMON SITUATIONS IN WHICH AGENCIES GENERALLY EXCUSE ABSENCES WITHOUT
 CHARGE TO LEAVE AND IN ADDITION TO THOSE SPECIFICALLY GIVEN ABOVE, ARE
 COVERED IN THIS SECTION.
 
   *          *          *          *
 
 
    C.  TARDINESS AND BRIEF ABSENCE.  BRIEF ABSENCE FROM DUTY OF LESS
 THAN AN HOUR AND TARDINESS MAY BE EXCUSED WHEN REASONS APPEAR TO BE
 ADEQUATE TO THE SUPERVISOR . . .  .  THE ABSENCE MAY ALSO BE COMPENSATED
 FOR BY ADDITIONAL WORK OR MAY BE CHARGED AGAINST ANY COMPENSATORY TIME
 THE EMPLOYEE MAY HAVE TO HIS CREDIT OR MAY BE CHARGED TO ANNUAL LEAVE,
 LEAVE WITHOUT PAY(WITH THE EMPLOYEE'S CONSENT), OR ABSENCE WITHOUT
 LEAVE.  THE ABSENCE MAY BECOME THE BASIS FOR DISCIPLINARY ACTION
 ACCORDING TO THE POLICY OF THE AGENCY.