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U.S. Federal Labor Relations Authority

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18:0344(45)NG - NAGE Local R14-9 and Army Dugway Proving Ground, Dugway, UT -- 1985 FLRAdec NG

[ v18 p344 ]
The decision of the Authority follows:

 18 FLRA No. 45
 LOCAL R14-9 
                                            Case No. 0-NG-733
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises an issue
 regarding the negotiability of the following Union proposal:
          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 Agency refused to bargain over the Union's proposal which would
 require the granting of administrative leave to employees compelled to
 take leave during the partial closure, contending that the proposal is
 inconsistent with Agency regulations /1/ for which there is a compelling
 need and, therefore, barred from negotiations under section 7117(a)(2)
 of the Statute.  /2/ The Agency contends that the regulations are
 essential, as provided under section 2424.11(a) of the Authority's Rules
 and Regulations, /3/ to insure the Agency's objective of curtailing
 operations in order to reduce expenditures during unproductive periods
 of operation is not negated by the expense incurred by granting
 administrative leave to employees during this period.  The Union, in
 essence, argues that the Agency has not demonstrated the essentiality of
 its regulations to eliminate unproductive work time since the Agency has
 failed to provide evidence that the cited regulations represent the only
 way to eliminate unproductive work time.  Thus, the proposal and
 arguments raised by the Agency and Union in the instant appeal are
 identical to those at issue in National Association of Government
 Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway,
 Utah, 18 FLRA 38 (1985), wherein the Authority found that the agency had
 established that its regulations were "essential as distinguished from
 helpful or desirable" for the policies reflected in its regulations such
 that the necessity it claimed raised to the level of a compelling need.
 In that case, the Authority ruled that the agency had demonstrated that
 prohibiting administrative leave during partial closing of its
 facilities was a critical component of the agency 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.  Accordingly, the Authority found it to be consistent with an
 effective and efficient Government for the agency's regulations to bar
 negotiation of the union's proposal.  Hence, for the reasons stated and
 the case cited in U.S. Army Dugway Proving Ground, the Authority
 concludes that the Agency has established 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 negotiation of the Union's proposal.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and hereby
 is, dismissed.  Issued, Washington, D.C., June 6, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The regulations upon which the Agency relies include:
          Section 990-2, subchapter 610.S3, paragraph 3c, of the Army
       Civilian Personnel Regulation, which provides in pertinent part as
                        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 . . . .
          Section 990-2, Book 610, subchapter S3-1(a), of the Department
       of Defense Civilian Personnel Manual Supplement, which provides as
          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.
    /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 2424.11(a) of the Authority's Rules and Regulations
 provides 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.