48:0546(53)NG - - Patent Office Professional Association and Commerce, Patent and Trademark Office, Washington, DC - - 1993 FLRAdec NG - - v48 p546

[ v48 p546 ]
The decision of the Authority follows:

48 FLRA No. 53














September 27, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one provision concerning compensatory time for religious observances which was disapproved by the Agency head under section 7114(c) of the Statute. We find that the provision is negotiable.

II. Preliminary Matters

A. Disapproval by Agency Head

Section 7114(c)(1) of the Statute provides that collective bargaining agreements are subject to approval by the head of the agency. Section 7114(c)(2) provides that the agency head "shall approve the agreement" if it is in accordance with the Statute and "any other applicable law, rule, or regulation . . . ." Agency heads may delegate the authority to approve or disapprove agreements under section 7114(c) of the Statute to subordinate officials in the agency. Fort Bragg Association of Teachers and U.S. Department of the Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852, 855 (1992).

The Union claims that because the agreement was executed by the Acting Commissioner of Patents and Trademarks on behalf of the Agency, the Agency head (the Secretary of Commerce) was foreclosed from reviewing and disapproving the agreement. However, the Union does not provide any evidence that the Secretary of Commerce has delegated authority to the Commissioner of Patents and Trademarks to approve or disapprove labor agreements under section 7114(c) of the Statute. Consequently, we have no basis on which to conclude that execution of the agreement by the Acting Commissioner of Patents and Trademarks constituted agency head approval of the agreement pursuant to section 7114(c). Accordingly, we find that the Union's claim that the Agency head was foreclosed from disapproving the agreement by the Acting Commissioner's execution of the agreement is without merit.

B. Offer to Modify Provision

The Union states that on March 26 and April 30, 1993, it made an offer to the Agency's chief negotiator to "add the phrase 'consistent with Article 20, Section 5' [of the parties' Basic Agreement] to the provision[,]" and that it made the same offer to the Agency's labor counsel on April 27, 1993. Response at 6 (footnote omitted). We interpret the Union's statement as a proposed modification of the disputed provision. The Authority will not consider a modification of a disputed proposal or provision where the modified proposal or provision has not been the subject of an agency allegation of nonnegotiability. See, for example, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52, 82 (1992). There is no indication in the record that the Union requested an allegation of nonnegotiability on the proposed modification of the provision or that the Agency has alleged that the modified provision is nonnegotiable. Consequently, the proposed modification of Provision 1 is not properly before us and will not be considered. We find, therefore, that the provision in the agreement executed by the parties, disapproved by the Agency head, and contained in the Union's petition is the provision before us for review.

We note that nothing precludes a union, following an agency head's disapproval of collective bargaining agreement provisions, from filing a negotiability petition while continuing to pursue negotiations with the agency to reach agreement on revised agreement provisions. If the continuing negotiations are successful, the petition for review may be withdrawn. However, if the negotiations are not successful, the parties may still receive a decision as to the negotiability of the agreement provisions contained in the petition for review. See, for example, National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 1537, 1539-41 (1991).

III. Provision

2. In accordance with the Office's published policy:

(a) when an employee requests religious compensatory time and states it is his/her personal religious belief which requires his/her abstinence from work and the reasons are obvious, there is no need to inquire further as to the nature of the personal religious belief unless some other fact makes a supervisor question whether the personal religious belief is sincere, then, any inquiry made by the Office as to the sincerity of the employee's personal religious belief shall be limited to the extent necessary to verify the sincerity of the employee's personal religious belief that requires his/her abstinence from work for a specific period of time and shall be conducted in a dignified manner intended to be respectful of the employee's personal religious belief;

(b) the Office shall grant reasonable time that is requested by the employee.

[Only the underscored portion of the provision is in dispute; footnotes have been omitted.]

IV. Positions of the Parties

A. Agency

The Agency contends that the provision is nonnegotiable under section 7117(a)(1) of the Statute because it violates 5 C.F.R. § 550.1002(b), which is a Government-wide regulation. According to the Agency, 5 C.F.R. § 550.1002(b) grants compensatory time for religious observance "only 'to the extent that such modifications in work schedule do not interfere with the efficient accomplishment of an agency mission.'" Statement at 2 (citing 5 C.F.R. § 550.1002(b)).

The Agency claims that the provision establishes a more stringent standard for denying requests for