17:0543(79)NG - AFGE Local 1923 and HHS, SSA, Baltimore, MD -- 1985 FLRAdec NG

 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).