[ v12 p532 ]
The decision of the Authority follows:
12 FLRA No. 101 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3488 Union and FEDERAL DEPOSIT INSURANCE CORPORATION Agency Case No. O-NG-316 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises questions relating to the negotiability of eight Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Disclosure statements required by FDIC shall conform to the laws as enacted by Congress and be requested only from GS-16's and above and from political appointees. In agreement with the Agency, the Authority concludes that Union Proposal 1 is not within the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with Government-wide regulations, specifically, regulations promulgated by the Office of Personnel Management (OPM) to implement Executive Order 11222, May 8, 1965. The regulations require financial disclosure statements from Federal employees in grades GS-13 and above who are responsible, e.g., for government procurement, administering grants or subsidies, regulating or auditing private enterprise. Also required to file statements are those whose decisions or actions have an economic impact on the interests of private enterprise or may potentially conflict with personal financial interests. /1/ The instant proposal, however, would bar requiring reports from the Agency's nonpolitical appointees below the GS-16 grade level without any reference to the aforementioned job related criteria. The proposal, then, is not merely concerned with a "procedure," as asserted by the Union. Rather, it would exempt from the reporting requirement of the OPM regulations certain nonpolitically appointed employees based exclusively on their grade levels. Therefore, Union Proposal 1 is inconsistent with such regulations and is outside the duty to bargain. Union Proposal 2 Compensatory days will be available for all employees who elect to work overtime. Compensatory days will be treated the same as annual leave subject to use within one year from the date earned. Union Proposal 5 Employees over GS-10 may elect compensatory time in lieu of overtime payment. Compensatory time not taken in one year from the date earned will receive overtime payment. (Only the underscored sentences are in dispute.) In agreement with the Union, the Authority finds that these proposals are not barred from negotiations either by the Federal Personnel Manual (FPM) or by internal Agency regulations, as claimed by the Agency. As to FPM chapter 550, subchapter 1-3.d.(3), relied upon by the Agency, such provision expressly recognizes the discretion of agency heads to "fix a time within which compensatory time off is to be requested or taken." The Agency has not established, and it is not otherwise apparent, that such discretion is sole and exclusive so that it could not be exercised through collective bargaining. Consequently, this provision of the FPM is not a bar to negotiation of the disputed language. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). As to the Agency's internal regulation, requiring use of compensatory time in a time frame shorter than the Union proposes, the Agency claims, but has not demonstrated, that a "compelling need" exists for such regulation under section 2424.11(a) and (c) of the Authority's Rules and Regulations. /2/ That is, the Agency proffers no persuasive support for its claim that the regulation is essential to the accomplishment of the Agency's mission or to the execution of its functions in a manner which is consistent with the requirements of an effective and efficient government; or that the regulation implements a mandate under law or other outside authority. Hence, the Agency regulation is not a bar to negotiation of the disputed portions of the proposals. See American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). Union Proposal 3 In order to reduce gasoline consumption at least 20% as well as other related travel costs, all field personnel will work a 4-day workweek with each Friday as a non-workday. On July 23, 1982, and during the pendency of this appeal, the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227, became effective. Under this Act, a new section 6131 was added to title 5, U.S. Code, which prescribes the criteria and review procedures governing the establishment or termination of a flexible or compressed schedule where the head of an agency determines that such schedule would have an adverse agency impact. Neither party has had the opportunity to address the applicability to the matters involved in the instant proposal of Pub. L. No. 97-221 which substantially differs in some respects from its predecessor (Federal Employees Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755 (1978), as amended by Pub. L. No. 97-160, 96 Stat. 21 (1982)). Accordingly, the dispute concerning Union Proposal 3 is moot. The Union, however, may file another appeal, pursuant to the Authority's Rules and Regulations, on the same issue after the parties have considered the applicability of Pub. L. No. 97-221 to the matters involved in the proposal. See American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 11 FLRA No. 8 (1983). Union Proposal 4 There will be no limit placed on the number of days for which expenses are billed for work in the Regional Office or any field office. Based on the record, this proposal would apply in circumstances where an employee is assigned by the Agency to perform work temporarily at a location which, under Agency regulations, would entitle the employee to reimbursement for certain expenses, up to a maximum of 60 days, as follows: Employees assigned to duty in a Corporation office or on detail to a Corporation office for more than 60 work days in any calendar year are not entitled to (lodgings-plus and per diem allowances). The disputed Union proposal would simply remove the 60 day regulatory limitation on such entitlement. In agreement with the Union, the Authority finds that this proposal is not inconsistent with the Agency's right under section 7106(a)(1) of the Statute "to determine the . . . budget . . . of the Agency," or its right under section 7106(b)(1) to determine "the technology, methods, and means of performing work." As to its budget, the Agency merely asserts, "the union's proposal, potentially resulting in virtually limitless expenses, would have an adverse impact upon the ability of the agency to properly control its budget." The proposal, on its face, does not require any increase in Agency expenditures, nor has the Agency established that such requirement otherwise is inherent in the proposal. That is, for example, the proposal does not require the temporary assignment of any employee for more than 60 days in a year. Moreover, even assuming that a cost increase would result from implementing the proposal, the Agency has not demonstrated that such increase would be "significant and unavoidable and . . . not offset by compensating benefits . . . (so as) to violate the agency's right to determine its budget under section 7106(a) of the Statute." American Federation of Government Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). As to the technology, methods, and means, the Agency asserts without any support whatsoever that the proposal "clearly . . . would infringe upon these rights." Since, however, the Agency has not established that either the proposal would have any technological relationship to accomplishing or furthering the performance of the Agency's work; or that it involves the methods or means of such work performance, there is no basis upon which to conclude that the proposal concerns these matters which are negotiable only at the election of the Agency under section 7106(b)(1). American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA No. 89 (1982). Finally, as to the Agency's additional contention that the proposal is barred from negotiation by the Agency regulation quoted above, for which it asserts a compelling need, the Authority makes the following determination. The Agency's claim that its regulation "can be considered essential . . . due to the necessity of a uniform policy regarding field expenses that conforms to budgetary requirements and limitations in this fiscally unpredictable period," is wholly unsupported in the record. Consequently, the Agency has failed to demonstrate that the regulation meets any of the criteria set forth in section 2424.11 of the Authority's Rules and Regulations. Thus, the Agency regulation cannot bar negotiation of the Union proposal. Naval Air Development Center, 2 FLRA 451 (1980), supra. Union Proposal 6 Certification of condition requiring sick leave. An employee who is absent on sick leave is generally not required to submit a medical certificate. When it has been established that a pattern of abuse exists, the employee will be notified in writing that future absences must be substantiated by a doctor's certificate preferably on FDIC Form 62. The Agency's regulations, as relevant here, require an employee to submit a medical certificate for absences on sick leave of more than three days. The Union's proposal, in contrast, generally would not require such certificates except when it has been established that a "pattern of abuse" of sick leave exists. The Union has clarified the phrase "pattern of abuse" as meaning usage of sick leave giving rise to suspicion of abuse. In agreement with the Union, the Authority finds that this proposal is not barred from negotiation either by the FPM or by Agency regulation, as claimed by the Agency. As to FPM chapter 630, relied upon by the Agency, it merely provides that "Agency administrators and supervisors are . . . responsible for controlling absence and leave so that all employees use leave according to legal requirements and without abuse of leave privileges(;)" and that "(a)n agency has the authority and responsibility to determine that the nature of the employee's illness was such as to incapacitate him for his job and that the other reasons for which sick leave is granted are true." Thus, the FPM does not require certification for such leave absences of any duration. FPM provisions, at most, prescribe various general agency responsibilities concerning control of leave usage; under them an agency retains discretion as to what methods are to be used in determining the validity of sick leave usage by its employees. Hence, the disputed proposal is not inconsistent with these FPM provisions. As to the internal regulation upon which the Agency relies, the Agency contends that a compelling need for it exists, in effect, under section 2424.11(a) of the Authority's Rules and Regulations. /3/ Specifically, the Agency asserts that the regulation is necessary for the purpose of preventing sick leave abuse that "would impair the mission and function of the (Agency)." The Agency, however, has failed to support its contention that without the certificate requirement contained in its regulation it will be unable to prevent sick leave abuse. In this respect, the record indicates that the Union proposal, as the Union explains it, would require medical certification from employees whose pattern of sick leave usage gives rise to a suspicion of abuse. Hence, the Agency's claim of compelling need for its regulation cannot be sustained. Naval Air Development Center, 2 FLRA 451 (1980), supra. Union Proposal 7 All stayout travel will be accomplished during the normal working hours. Union Proposal 8 The following provisions apply to temporary duty assignments: (a) The beginning day, usually Monday, of travel from the employee's residence to a job assignment and at the ending day, usually Friday, of return travel to employee's residence. This travel will be accomplished at the employee's option within the duty hour workweek. (b) In any change of job assignment on a day in between the normal workweek of Monday through Friday, the employee will be allowed to return and subsequently leave his/her residence within the normal tour of duty eight (8) hour workday as detailed above unless the assignment is in the same city. (c) A temporary duty assignment (any job assignment) normally ends on Friday and begins on the following Monday even if the job location (bank assignment) has not changed. Therefore, travel to and from the employee's residence, at the employee's option, will be accomplished within the forty (40) hour workweek. Based on the record before the Authority, it appears that Union Proposals 7 and 8 concern travel to and from temporary duty stations. In this regard, 5 U.S.C. 6101(b)(2) requires agencies to schedule employee travel during hours of duty "to the maximum extent practicable." However, it is implicit under this section that management can direct employees to perform travel on their own time when travel during duty hours is not "practicable." /4/ Thus, even if Union Proposals 7 and 8 were meant to apply only in non-emergency situations, so as to permit the Agency to take whatever action is necessary during periods of emergency, as claimed by the Union, the "emergency" standard is nonetheless more restrictive than and, hence, inconsistent with the statutory standard "to the maximum extent practicable," established in 5 U.S.C. 6101(b)(2). Therefore, these proposals are outside the duty to bargain under section 7117(a) of the Statute. In addition, sections (a) and (c) of Union Proposal 8 would also place impermissible restrictions on the Agency's right to determine when temporary work assignments will begin and end. That is, sections (a) and (c) of Proposal 8, by mandating that temporary assignments begin on Monday and end on Friday, with such Mondays and Fridays being used for employee travel, effectively prohibit the Agency from assigning work connected with temporary duty assignments on all or a portion of Mondays and Fridays. In this respect, sections (a) and (c) are to the same effect as Proposal III in International Association of Firefighters, AFL-CIO, Local F-116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg Air Force Base, California, 9 FLRA No. 83 (1982), which would have limited the hours during which work normally could have been performed and which was found to be inconsistent with management's right under section 7106(a)(2)(B) of the Statute "to assign work." Thus, based on the decision in 4392d Aerospace Support Group, and the reasons stated therein, sections (a) and (c) of Proposal 8 are also inconsistent with the right "to assign work." /5/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review relating to Union Proposals, 1, 3, 7 and 8 be, and it hereby is dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposals 2, 4, 5 and 6. /6/ Issued, Washington, D.C., August 12, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 CFR 735.403 (1982). /2/ Section 2424.11 provides, in pertinent part, as follows: Sec.2424.11 Illustrative Criteria. A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria: (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. . . . . (c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature. /3/ Note 2, supra. /4/ See 55 Comp.Gen. 590 (1975) holding that payment of two or more days of per diem to facilitate employee travel only during duty hours is "unreasonable" and, hence, employees may be required to travel on their own time to avoid such "unreasonable" payment. /5/ In view of the decision herein, it is unnecessary to pass upon the Agency's additional contentions concerning the nonnegotiability of Union Proposals 7 and 8. /6/ In finding Union Proposals 2, 4, 5 and 6 negotiable, the Authority makes no judgment as to their merits.