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U.S. Federal Labor Relations Authority

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14:0179(37)NG - NTEU and FDIC -- 1984 FLRAdec NG

[ v14 p179 ]
The decision of the Authority follows:

 14 FLRA No. 37
                                            Case No. O-NG-430
    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).  The issue presented
 is the negotiability of the following Union proposal:
          Once earned, employees may use compensatory time at any time
       prior to the end of a leave year or any time within six pay
       periods-- whichever is later.
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The Agency by regulation has established a policy that compensatory time
 " . . . must be taken during the same or the next two pay periods
 succeeding the one in which the overtime work was performed . . . " The
 sole purpose of the Union's proposal is to expand that two pay period
 time frame to the later of either six pay periods or the end of the
 leave year in order to insure adequate opportunity for use of
 compensatory time.  The Union's statement of intent is not inconsistent
 with the proposal and, thus, is adopted for purposes of this decision.
 The Agency principally takes the position that the Union's proposal is
 barred from negotiations by its regulation for which it claims a
 compelling need.  (Subchapter 3-5 of the Agency's Leave Policy entitled
 "Using Compensation Time").
    Section 7117(a)(2) of the Statute provides that agency regulations
 for which a compelling need exists, as determined under regulations
 prescribed by the Authority, will bar negotiation on a conflicting union
 proposal.  The illustrative criteria for determining the compelling need
 for agency regulations as relied upon by the Agency herein, are provided
 in section 2424.11(a) of the Authority's Rules and Regulations.  /1/
 Under that section, an agency can establish that a compelling need
 exists for its regulation only if it demonstrates that such regulation
 is "essential as distinguished from helpful or desirable" to achieve
 certain ends.  Thus, essentiality is the measure of whether the
 necessity claimed for the regulation to bar negotiations on a
 conflicting union proposal rises to the level of a compelling need.
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
 217, 219-20(1981).
    In support of its compelling need contention, the Agency asserts but
 does not demonstrate that it "would experience a serious disruption in
 the assignment of employees to necessary duties and, consequently, would
 operate less efficiently and effectively" if its policy embodied in its
 regulation on compensatory time were altered.  The proposal, by its
 language and the Union's stated intent would clearly not require this
 result.  The proposal, contrary to the Agency's assertion, only
 increases the time limit within which an employee may use compensatory
 time.  It does not require the Agency to grant an employee's particular
 request for compensatory time, if mission needs dictate otherwise,
 during the six pay period interval anymore than during the two pay
 period interval embodied in the Agency's regulation.
    The Agency also asserts, in support of its compelling need
 contention, that the proposal would cause recordkeeping problems both
 because of the longer period during which compensatory time could be
 carried on the books before it is used, and because it would be more
 difficult to maintain two recordkeeping systems, i.e., one for employees
 within the bargaining unit and the second for non-bargaining unit
 employees.  These Agency assertions concerning recordkeeping problems
 clearly relate to the helpfulness or desirability to the Agency of its
 regulation but do not demonstrate essentiality.  That is, the fact that
 the policy reflected in the regulation may facilitate the operation of a
 comprehensive recordkeeping system from which deviation may pose
 administrative difficulty, does not in itself demonstrate that the
 regulation meets the compelling need criteria so as to bar negotiation
 of an otherwise negotiable proposal.  American Federation of Government
 Employees, AFL-CIO, Local 2875 and Department of Commerce, National
 Oceanic and Atmospheric Administration, National Marine Fisheries
 Service, Southeast Fisheries Center, Miami, Florida, 5 FLRA 441(1981)
 (Union Proposal 4).  In this regard, in failing to demonstrate that, in
 the absence of its regulation, the Agency would be unable to keep
 accurate leave records, it must be concluded that the Agency has not met
 its burden of showing that its regulation is essential to the
 accomplishment of that objective.  AFGE, Local 3804 and FDIC, 7 FLRA
 217, 220.
    The Agency additionally argues that the proposal interferes with its
 rights under section 7106(a)(2)(A) and (B) of the Statute to assign
 employees, to assign work and to determine the personnel by which agency
 operations should be conducted.  /2/ These arguments by the Agency
 cannot be sustained since, as noted earlier, the proposal, consistent
 with the Union's stated intent, does not require the Agency to grant an
 employee's particular request for compensatory time, if mission needs
 dictate otherwise.  /3/
    Thus, contrary to the Agency's allegation, the Union's Proposal is
 within the duty to bargain under section 7117(a)(2) of the Statute.
 Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on this proposal.  /4/
    Issued, Washington, D.C., April 3, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 2424.11 of the Authority's Rules and Regulations
    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.
          (b) The rule or regulation is necessary to insure the
       maintenance of basic merit principles.
          (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
    /2/ Section 7106 of the Statute provides, in relevant part, as
    Sec. 7106.  Management Rights
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
                                  * * * *
          (2) in accordance with applicable laws--
          (A) to . . . assign . . . employees in the agency . . . ;
          (B) to assign work . . . and to determine the personnel by
       which agency operations shall be conducted (.)
    /3/ Cf. American Federation of Government Employees, Local 3488 and
 Federal Deposit Insurance Corporation, 12 FLRA No. 101(1983) (Proposal
 2, that compensatory days will be subject to use within one year from
 date earned, was not barred from negotiations either by the Federal
 Personnel Manual or internal agency regulation).
    /4/ In so deciding that the proposal is within the duty to bargain,
 the Authority, of course, makes no judgment as to its merits.