[ v17 p543 ]
The decision of the Authority follows:
17 FLRA No. 79 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1923 Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND Agency Case No. 0-NG-865 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 concerning the negotiability of one Union proposal. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /2/ Union Proposal Only under unusual circumstances where offering an employee time off for religious observance would severely disrupt the agency's function, will the accommodation be denied. This proposal would expressly require the Agency to grant an employee's request for religious compensatory time unless doing so "would severely disrupt the agency's function." The Authority concludes, in agreement with the Agency, that the disputed proposal is inconsistent with a Government-wide regulation governing the granting of compensatory time for religious observances. Specifically, the Office of Personnel Management (OPM) has promulgated 5 CFR 550.1002 (1984) in order to implement the requirement in 5 U.S.C. 5550a that OPM prescribe regulations setting out the circumstances when employees may be entitled to compensatory time for religious observances. /3/ 5 CFR 550.1002 provides in relevant part as follows: Sec. 550.1002 Compensatory time off for religious observances . . . . (b) To the extent that such modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission, the agency shall in each instance afford the employee the opportunity to work compensatory overtime and shall in each instance grant compensatory time off to an employee requesting such time off for religious observances when the employee's personal religious beliefs require that the employee abstain from work during certain periods of the workday or workweek. The standard set out in the proposal for denying an employee's request for compensatory time for religious observances, namely, "only under unusual circumstances which would severely disrupt the agency's function" is clearly more restrictive than the standard established by 5 CFR 500.1002 which is "(interference) with the efficient accomplishment of the agency's mission." Thus, the Union proposal conflicts with the OPM regulation and is outside the duty to bargain pursuant to section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., April 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its Reply Brief, the Union withdrew its request for a negotiability determination on three other proposals. Hence these proposals are not considered here. /2/ The Agency's contention that the Union's petition for review should be dismissed as being untimely filed cannot be sustained. It is well established that a union is not required to file a petition for review in response to an unsolicited allegation of nonnegotiability. American Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981) at 400-401. Furthermore, a union may file a petition for review in response to an allegation of nonnegotiability made by an agency in the context of a Federal Service Impasses Panel (Panel) proceeding. International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982). The record in this case indicates that the Union did not file a petition for review in response to an unsolicited allegation of nonnegotiability. Instead, the Union filed a petition for review within 15 days of service upon it of an allegation of nonnegotiability made in the Agency's response to the Union's request for Panel consideration of an impasse. The Union's petition is therefore timely. /3/ The Authority concludes that the cited OPM regulation is a Government-wide regulation within the meaning of section 7117(a)(1) because it applies to the Federal civilian workforce as a whole. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).