[ v17 p122 ]
The decision of the Authority follows:
17 FLRA No. 24 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF FIELD LABOR LOCALS Union and DEPARTMENT OF LABOR Agency Case No. O-NG-702 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 an issue regarding the negotiability of the following Union proposal: Should the funding of DOL's Supplemental Appropriations be passed after an employee suffers a loss of pay through furlough, DOL will grant each employee adversely affected an amount of administrative leave equal to the number of hours/days spent in furlough status. Such administrative leave must be used by October 1, 1983. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The Union's proposal would require the Agency to grant employees who suffered a loss of pay through furlough administrative leave equal to the number of hours or days spent in furlough status in the event that the Department of Labor's supplemental appropriations legislation is subsequently enacted. The Agency contends that the proposal is inconsistent with the Federal Personnel Manual (FPM), Supplement 990-2, Book 630, Subchapter S11-5, decisions of the Comptroller General and the use of appropriated funds as provided under 31 U.S.C. 628. /1/ Thus, the Agency contends that it has no obligations to bargain over the Union's proposal pursuant to section 7117(a) of the Statute. /2/ Contrary to the Agency's claim that its authority to grant administrative leave is limited to only those situations enumerated in the FPM, it is firmly established that the head of an agency has discretion to grant administrative leave to its employees in other situations as well. /3/ The applicable section of the FPM, Subchapter S11-5 of FPM Supplement 990-2, Book 630, /4/ in addition to stating that the granting of administrative leave is within the agency's discretion also refers to the examples listed therein as "(s)ome of the more common situations in which agencies generally excuse absences without charge to leave . . . ." Such language clearly indicates that an agency's discretion is not limited only to the given situations. Therefore, even assuming that the cited provision of the FPM is a Government-wide regulation, the Agency has failed to show that the Union's proposal is inconsistent therewith. Furthermore, as to the Agency's claim that the granting of administrative leave as requested by the proposal is inconsistent with Comptroller General's decisions, the Authority notes that the Comptroller General has issued a decision wherein he found the retroactive granting of administrative leave for employees in a non-pay status to be consistent with the FPM and Federal law. In Merit Systems Protection Board, 62 Comp.Gen. 1, 3 (1982), which involved the Merit Systems Protection Board's furlough of its employees, the Comptroller General ruled: (T)he Merit Systems Protection Board may, in its discretion, grant administrative leave retroactively to the employees affected by the partial shutdown, as a proper exercise of its administrative discretion to the extent to which funds had been appropriated and were available and adequate on the dates in question to cover the amount of the gross salaries of the affected employees. Thus, under circumstances strikingly similar to those involved herein, the Comptroller General has found appropriate the retroactive granting of administrative leave for periods in which employees were in non-pay status. Accordingly, the Agency's claim that the Union's proposal is inconsistent with Comptroller General's decisions is rejected. Similarly, the Agency's claim that the Union's proposal would require the improper use of appropriated funds is rejected. As noted by the Comptroller General, an agency does not violate appropriation legislation by granting administrative leave to employees for periods spent in non-pay status provided the agency had the funds available during the period in which employees occupied this status. Insofar as the Agency has not alleged, and the Authority has no reason to believe, that the Agency lacked the appropriate funds at the time that employees were proposed to be in non-pay status, the Agency has failed to show that the proposal would violate any appropriation act as suggested by the Agency. Thus, the granting of administrative leave as proposed by the Union, which is a matter affecting the working conditions of unit employees, is within the discretion of the Agency. Since the Agency has not shown that the exercise of such discretion through negotiation on the proposal would be inconsistent with law or with Government-wide regulations, the proposal at issue herein is within the duty to bargain under 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 concerning the proposal. /5/ Issued, Washington, D.C., March 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Revised and recodified at 31 U.S.C. 1301(a) (1982). /2/ Section 7117 of the Statute provides, in pertinent 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 rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /3/ See Long Beach Naval Shipyard, Long Beach, California, and International Federation of Professional and Technical Engineers, Local 174, AFL-CIO, et al., 7 FLRA 362 (1981), and Merit Systems Protection Board, 62 Comp.Gen. 1 (1982). /4/ Subchapter S11-5 of the FPM Supplement 990-2, Book 630, states as follows: S11-5 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 absence without change to leave and in addition to those specifically given above, are covered in this section. /5/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.