[ v26 p380 ]
The decision of the Authority follows:
26 FLRA No. 47 Case No. 0-NG-737 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 556, AFL-CIO Union and DEPARTMENT OF THE NAVY, MARINE CORPS EXCHANGE 0911, MARINE CORPS AIR STATION, KANEOHE BAY, HAWAII Agency Case No. 0-NG-750 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 556, AFL-CIO Union and DEPARTMENT OF THE ARMY, U.S. ARMY SUPPORT COMMAND, HAWAII FORT SHAFTER, HAWAII Agency DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/ I. Statement of the Case These cases /2/ are before the Authority because of negotiability appeals filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeals concern the negotiability of six Union proposals. /3/ II. Proposals 1-6 Proposal 1 (0-NG-737) SICK LEAVE ARTICLE, SECTION 1: Regular full-time, regular part-time and regularly scheduled intermittent employees will accrue sick leave at the rate of five percent (5%) of the total basic workweek hours in a pay status and will be credited from the date of hire. Sick leave credits, including those accrued while on annual or sick leave, are credited to the employee's account at the end of the pay period in which accrued. There is no limit on the amount of sick leave that employees may accumulate and carry forward from one year to another. No payment for unused sick leave will be made to an employee under any circumstances. Proposal 2 (0-NG-750) ARTICLE 10, SICK LEAVE, SECTION 2: Earning Rates. Regular full-time, regular part-time, and regularly scheduled intermittent employees earn sick leave at the rate of five percent (5%) of the hours in a pay status up to a maximum of forth (40) hours per week. The minimum accrual is 1/4 hour in a pay period. Sick leave is earned from the first pay period and may be used when earned. Intermittent on-call and temporary employees have no entitlement to sick leave. There is no maximum accumulation of sick leave. (Proposal 3 (0-NG-737) ANNUAL LEAVE ARTICLE, SECTION 1: Regular full-time, regular part-time, and regularly scheduled intermittent employees shall earn annual leave. The amount of annual leave earned depends on the employee's total length of creditable service. Total creditable service will be to include all prior DOD NAFI service, including service with current employer, as a regular full-time, regular part-time, and regularly scheduled intermittent employee. Fractional parts of months will be included in determining length of service. However, the total length of service will be stated in terms of complete months. a) Annual leave will accrue to regular full-time, regular part-time, and regularly scheduled intermittent employees while in a pay status, excluding overtime hours worked in excess of forty (40) hours during the basic workweek in accordance with the following: 1) Employees with less than three (3) years of service will accrue five percent (5%) of the total hours in the basic workweek. 2) Employees with three (3) years but less than fifteen (15) years of service will accrue 7.5 percent of the total hours in the basic workweek, except for the final bi-weekly period of the leave year when it will accrue at the rate of 12.5 percent of the total hours in the basic workweek. 3) Employees with more than fifteen (15) years of service will accrue 10 percent of the total hours in the basic workweek. Accrued leave is credited to an employee upon completion of a ninety (90) calendar day qualifying period, and thereafter at the end of the pay period in which it is earned. If an employee separates prior to completing the ninety (90) day qualifying period, no leave credit for this period of employment will be granted or paid for. The maximum amount of accumulated annual leave that may be carried over from one leave year to the next will be two hundred forty (240) hours. Upon separation from a NAFI, an employee will be paid for the accumulated annual leave credited to the employee's account. Proposal 4 (0-NG-750) ARTICLE 12, ANNUAL LEAVE, SECTION 1: Regular full-time, regular part-time, and regularly scheduled intermittent employees shall earn annual leave. The amount of annual leave earned depends on the employee's total length of creditable service. Total creditable service will include all prior D.O.D. NAFI service, including service with current employer as a regular full-time, regular part-time and regularly scheduled intermittent employee. Fractional parts of months will be included in determining length of service. However, the total length of service will be stated in terms of complete months. a) Annual leave will accrue to regular full-time, regular part-time, and regularly scheduled intermittent employees while in a pay status, not to exceed forty (40) hours per week. 1. Employees with less than three (3) years of service will accrue five percent (5%) of the total hours in the basic workweek. 2. Employees with three (3) years, but less than fifteen (15) years of service, will accrue 7.5 percent of the total hours in the basic workweek, except for the final bi-weekly period of the leave year, when it will accrue at the rate of 12.5 percent of the total hours in the basic workweek. b) Accrual of annual leave is a right of the employee, in that its accrual may not be denied. Proposal 5 (0-NG-750) ARTICLE 11, ABSENCE FOR MATERNITY/PATERNITY REASONS, SECTIONS 1 & 2: Section 1. Absence for maternity reasons will be approved for incapacitation related to pregnancy and confinement. It is changeable to sick leave, annual leave, and/or leave without pay. Section 2. Regular full-time, regular part-time and regularly scheduled intermittent male employees may request annual leave and/or leave without pay for purposes of assisting or caring for their minor children, or the mother of their newborn child, while she is incapacitated, for maternity reasons. Proposal 6 (0-NG-750) ARTICLE 13, ADMINISTRATIVE LEAVE AND EXCUSED ABSENCES, SECTIONS 1, 4, and 5: Section 1. A regular full-time, regular part-time, or regularly scheduled intermittent employee will be authorized absence from official duties for official jury duty or for attending court in the capacity of a witness on behalf of the U.S. Government or a Nonappropriated Fund Instrumentality of the U.S. Army Support Command, Hawaii. The employee must present the court order, subpoena or summons to his supervisor as far in advance as possible so that arrangements may be made for his absence. Upon return to duty, written evidence of his attendance at court is required, showing the dates (and hours, if possible) of the service. Section 4. Military leave for a regular full-time, regular part-time or regularly scheduled intermittent employee, who is a reservist of the Armed Forces of the United States or a member of the National Guard, shall be granted in accordance with applicable regulations. Section 5. During periods of shutdown, all regular full-time, regular part-time, and regularly scheduled intermittent employees will be authorized administrative leave without charge to leave or loss of basic pay when advance notice is given. III. Preliminary Matters The Union argues that the Agencies' statements of position are not properly before the Authority because they were not signed by either Agency's designated representative of record. This same argument was made and rejected in Service Employees' International Union, Local 556, AFL-CIO and Department of the Navy Exchange, Pearl Harbor, Hawaii, 25 FLRA No. 65 (1987). It is rejected here for the same reasons as expressed in that decision. Furthermore, the Union alleges that the Agencies failed to provide the Union with relevant and pertinent information needed to fully present its position. The Union had requested statistical data as to the number of hours worked by intermittent employees and the length of time in terms of months that those employees worked for the past two years. However, the Authority concludes that such information is not relevant to the negotiability of the proposals. That is, the Union's ability to present this negotiability appeal was not prejudiced by the Agencies' alleged failure to disclose the requested data. Issues as to an Agency's alleged failure to provide information should be raised in an unfair labor practice proceeding, not a negotiability appeal. Finally, the Union contends that the Agencies are prevented here from raising these allegations of nonnegotiability because they had, in prior cases concerning the same subject matter, withdrawn their allegations of nonnegotiability. However, again, the Union's contention cannot be sustained. An Agency's withdrawal of its allegations of nonnegotiability in prior cases is not dispositive of whether proposals are within the duty to bargain under the Statute. Similarly, the prior inclusion of proposals concerning the same subject matter in a collective bargaining agreement is not dispositive of those proposals' negotiability under the Statute. IV. Positions of the Parties Proposals 1, 2, 3, and 4 would enable regularly scheduled intermittent employees in Nonappropriated Fund Instrumentalities (NAFIs) to earn sick and annual leave. Proposal 5 would permit absence for maternity or paternity reasons utilizing various types of leave for these employees. Proposal 6 would provide the same employees with administrative leave and excused absences under the circumstances described in that proposal. /4/ The Agencies contend that the proposals are outside the duty to bargain because they do not concern conditions of employment of bargaining unit employees and are inconsistent with Agency regulations for which there is a compelling need under section 7117(a)(2). In this regard, the Agencies argue that excluding certain NAF employees from enjoying some benefits is necessary to maintain a financially viable NAF system. Derivatively, they claim that finding the proposals negotiable would be inconsistent with the statutory requirement of an effective and efficient government. The Union disputes the Agencies' contentions. V. Analysis and Conclusion A. The Proposals Concern Conditions of Employment In American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), appeal docketed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2, 1987), the Authority held that nothing in the Statute, or its legislative history, bars negotiation of proposals relating to pay and fringe benefits insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exists. Based on that analytical framework, we held the proposal in that case, which required the agency to pay up to 75 percent of the premium cost of health insurance for NAF employees, to be within the duty to bargain. The present case involves leave benefits for NAF employees, which are matters not governed by law, but by agency regulations. Since leave benefits are not a matter specifically provided for by Federal statute, this matter is not excepted from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. B. The Agency Has Not Established a Compelling Need for Its Regulations to Bar Negotiations To establish that a proposal is nonnegotiable on the basis of compelling need, an agency must (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's illustrative standards set forth in section 2424.11 of the Authority's Rules and Regulations (5 CFR Section 2424.11). Generalized and conclusionary reasoning does not support a finding of compelling need. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Coporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 7). The Agencies assert that, because the proposals would provide leave benefits to intermittent employees, they conflict with the Department of Defense Personnel Policy Manual for Nonappropriated Fund Instrumentalities and other Agency regulations authorizing leave benefits only to regular full-time and regular part-time employees. The Agencies contend that the regulatory provisions meet the Authority's criterion for determining compelling need set forth in 5 CFR Section 2424.11(a). That is, they claim that the regulations are essential, as distinguished from helpful or desirable, to the accomplishment of their missions in a manner which is consistent with the requirements of an effective and efficient government. In support, the Agencies state but do not demonstrate that the regulations are necessary to maintain a viable NAF system. The Agencies do not indicate why this goal could not be achieved through means other than the regulations at issue. They also fail to show that the proposals would result in significant and unavoidable costs not offset by compensating benefits. See Lexington-Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986), in which the Authority held that effectiveness and efficiency are not to be measured solely in monetary terms. We find that the Agencies have shown a conflict between the proposals and the regulations relied upon, but that they have presented nothing more than generalized and conclusionary statements to support the contention that a compelling need exists for the regulations. Thus, we find that the Agencies have not met their burden of demonstrating that the regulations are essential, as distinguished from merely being helpful or desirable, under 5 CFR Section 2424.11(a), as claimed. See American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454 (1980). Consequently, we conclude that the Agencies have not provided a basis for finding the proposals nonnegotiable. VI. Order The Agencies must bargain, upon request or as otherwise agreed to by the parties, over the proposals. /5/ Issued, Washington, D.C., March 25, 1987 /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun As in American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), petition for review filed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir. February 2, 1987), the bargaining unit in this case is composed of Non-appropriated Fund Instrumentality (NAFI) employees. In Eglin, the issue concerned the negotiability of a proposal concerning the employer's share of the premium costs of employee health insurance. In my opinion in that case, I stated that I would find a compelling need for the regulatory scheme which sets forth the policies, organization, and practices for the administration and management of NAFIs and their employees, including the specific regulations concerning health insurance, as well as wages and other money-related fringe benefits. I reach the same conclusion in this case, where the regulation provides that "intermittent employees are not eligible for participation in benefit programs including the various types of leave." In my view, this regulation, as part of the overall NAFI regulatory scheme, is necessary to maintain the uniformity in treatment of NAFI employees which is, in turn, essential to the accomplishment of the Agencies' worldwide missions within the meaning of section 2424.11(a) of the Authority's regulations. Also, as I stated in Eglin Air Force Base, in the absence of a clear expression of Congressional intent to make these matters negotiable, the Authority should not imply such an intent. Accordingly, I would find the Unions' proposals in this case to be nonnegotiable. Issued, Washington, D.C., March 25, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun dissents for the reasons stated in his separate opinion. (2) The record indicates that the Agency requested that cases 0-NG-736 and 0-NG-750 be consolidated. This request is denied because the issues involved are not sufficiently similar to warrant consolidation. Instead, 0-NG-737 is consolidated with 0-NG-750 because these cases present issues which are in effect identical. (3) The Agency, in its Statement of Position (0-NG-750), withdrew its allegation of nonnegotiability as to Article 13, Sections 2(a), (b), (c) and (d). Therefore, they will not be considered further herein. (4) There is a difference in wording between the petition and an attachment to the petition with reference to section 5 of Proposal 6. However, it is undisputed that what this section is intended to do is to extend the administrative leave provision to regularly scheduled intermittent employees. Furthermore, it is clear that the Agency disputes only such extension and not the substance of the administrative leave policy itself. (5) In finding the proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.