[ v18 p307 ]
The decision of the Authority follows:
18 FLRA No. 38 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62 Union, and U.S. ARMY DUGWAY PROVING GROUND, DUGWAY, UTAH Agency Case No. 0-NG-727 and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62 Union, and U.S. ARMY DUGWAY PROVING GROUND, DUGWAY, UTAH Agency Case No. 0-NG-912 CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUE The petitions for review in these cases /1/ come before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and raise an issue regarding the negotiability of the following two identical Union proposals: Affected employees (shall) be placed on administrative leave without charge to annual leave for the period of partial closure. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The record indicates that the Union sought to negotiate over the disputed proposals upon receiving notice that the Agency intended to partially close its facilities at Dugway Proving Ground during the Christmas-New Year holiday period. The Agency refused to bargain over the Union's proposals which would require the granting of administrative leave to employees compelled to take leave during the partial closure, contending that such proposals are inconsistent with Agency regulations for which there is a compelling need and, therefore, barred from negotiations under section 7117(a)(2) of the Statute. /2/ In this regard, the Agency relies upon Army Civilian Personnel Regulation 990-2 (C11), subchapter 610.S3, paragraph C3 /3/ and Department of Defense Civilian Personnel Manual Supplement 990-2, Book 610, subchapter S3, paragraph 1(a), /4/ as prohibiting the Agency from granting administrative leave when sufficient advance notice can be given to permit, as relevant herein, the granting of annual leave. The Agency contends that the regulations are essential to the functioning of the Agency in an effective and efficient manner, as provided under section 2424.11(a) of the Authority's Rules and Regulations, /5/ since it can only perform its national defense mission effectively and efficiently where it retains the right to curtail operations which do not contribute to the accomplishment of that mission. The Agency basically argues that the regulations are essential to insure that the Agency's objective of curtailing operations, and thereby reducing expenditures by temporarily closing its facilities during unproductive periods of operation, is not negated by the expense incurred by granting administrative leave to employees during the period of partial closing. The Union, in essence, argues that the Agency has not demonstrated the essentiality of its regulations to eliminate unproductive work time by curtailing unproductive operation, since the Agency has failed to provide evidence that the cited regulations represent the only way to eliminate unproductive work time. The Authority finds that the decision to shut down or curtail operations of an agency is an aspect of management's right to layoff under section 7106(a)(1) of the Statute. The proposal would not prevent the Agency from deciding to shut down its facilities. It would, however, conflict with the Agency's regulations, which implement that decision in a manner which is critical to achieving the Agency's goal of saving money. That is, the Agency has demonstrated that its regulations prohibiting administrative leave (which the proposals would require) during the partial closing are critical components of the Agency's achieving its objective of saving money by curtailing operations so as to insure the Agency's performance of its mission in an effective and efficient manner. /6/ Thus, in the circumstances herein, the Authority finds that it would be consistent with an effective and efficient Government for the Agency's regulations to bar negotiation of the Union's proposals and, therefore, finds that the proposals are outside the duty to bargain under section 7117(a)(2). Contrary to the Union's contention, there is no indication in the record that the Agency could achieve its objective of reducing expenditures during periods of unproductive operation without the implementation of its rule prohibiting administrative leave when sufficient advance notice is given. Clearly, the implementation of the Union proposals, which would require the Agency to grant employees administrative leave during this period, would result in additional labor cost during a period in which the Agency seeks to reduce expenditures. The Agency, in essence, would be compelled to pay employees during periods when the facility was not in full operation and when a substantial number of employees would normally (if the proposals were not in effect) be on annual leave. Therefore, the Authority concludes that the Agency herein has demonstrated that its regulations are "essential as distinguished from helpful or desirable" and, thus, has established that a compelling need exists for the regulations under the requirements set forth in section 2424.11(a) of the Authority's Rules and Regulations so as to bar negotiations of the Union's proposals. 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., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Authority, pursuant to a request by the parties, has consolidated these two cases because the proposals involved are identical and present the same negotiability question. /2/ Section 7117(a)(2) provides: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult * * * * (a)(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. /3/ Section 990-2, subchapter 610.S3, paragraph 3C, of the Army Civilian Personnel Regulation provides as follows: S3-3. EFFECT OF DISMISSAL * * * * c. Where advance notice can be given. The authority to excuse employees administratively is not to be used in instances where the period of interrupted or suspended operations can be anticipated sufficiently in advance to permit arranging for assignment to other work or the scheduling of annual leave . . . . /4/ Section 990-2, Book 610, subchapter S3-1(a), of the Department of Defense Civilian Personnel Manual Supplement provides as follows: S3-1. General Authority a. Closing an Activity. Commanders are authorized to close all or part of an activity consistent with the policy outlined in this subchapter and to excuse employees administratively. Such instances will be made a matter of record at the activity. This authority does not extend to periods of interrupted or suspended operations that can be anticipated sufficiently in advance to permit arranging for assignment to other work or the scheduling of annual leave. /5/ Section 2424.11 of the Authority's Rules and Regulations 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. /6/ See National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 14 FLRA 598 (1984) (Union Proposal 5), appeal docketed sub nom. National Treasury Employees Union, Chapter 207 v. Federal Labor Relations Authority, No. 84-1286 (D.C. Cir. July 6, 1984).