17:0122(24)NG - AFGE National Council of Field Labor Locals and Labor -- 1985 FLRAdec NG

 17 FLRA No. 24
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, NATIONAL COUNCIL
 OF FIELD LABOR LOCALS
 Union
 
 and
 
 DEPARTMENT OF LABOR
 Agency
 
                                            Case No. O-NG-702
 
                 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
 regarding the negotiability of the following Union proposal:
 
          Should the funding of DOL's Supplemental Appropriations be
       passed after an employee suffers a loss of pay through furlough,
       DOL will grant each employee adversely affected an amount of
       administrative leave equal to the number of hours/days spent in
       furlough status.  Such administrative leave must be used by
       October 1, 1983.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The Union's proposal would require the Agency to grant employees who
 suffered a loss of pay through furlough administrative leave equal to
 the number of hours or days spent in furlough status in the event that
 the Department of Labor's supplemental appropriations legislation is
 subsequently enacted.  The Agency contends that the proposal is
 inconsistent with the Federal Personnel Manual (FPM), Supplement 990-2,
 Book 630, Subchapter S11-5, decisions of the Comptroller General and the
 use of appropriated funds as provided under 31 U.S.C. 628.  /1/ Thus,
 the Agency contends that it has no obligations to bargain over the
 Union's proposal pursuant to section 7117(a) of the Statute.  /2/
 
    Contrary to the Agency's claim that its authority to grant
 administrative leave is limited to only those situations enumerated in
 the FPM, it is firmly established that the head of an agency has
 discretion to grant administrative leave to its employees in other
 situations as well.  /3/ The applicable section of the FPM, Subchapter
 S11-5 of FPM Supplement 990-2, Book 630, /4/ in addition to stating that
 the granting of administrative leave is within the agency's discretion
 also refers to the examples listed therein as "(s)ome of the more common
 situations in which agencies generally excuse absences without charge to
 leave . . . ." Such language clearly indicates that an agency's
 discretion is not limited only to the given situations.  Therefore, even
 assuming that the cited provision of the FPM is a Government-wide
 regulation, the Agency has failed to show that the Union's proposal is
 inconsistent therewith.
 
    Furthermore, as to the Agency's claim that the granting of
 administrative leave as requested by the proposal is inconsistent with
 Comptroller General's decisions, the Authority notes that the
 Comptroller General has issued a decision wherein he found the
 retroactive granting of administrative leave for employees in a non-pay
 status to be consistent with the FPM and Federal law.  In Merit Systems
 Protection Board, 62 Comp.Gen. 1, 3 (1982), which involved the Merit
 Systems Protection Board's furlough of its employees, the Comptroller
 General ruled:
 
          (T)he Merit Systems Protection Board may, in its discretion,
       grant administrative leave retroactively to the employees affected
       by the partial shutdown, as a proper exercise of its
       administrative discretion to the extent to which funds had been
       appropriated and were available and adequate on the dates in
       question to cover the amount of the gross salaries of the affected
       employees.
 
    Thus, under circumstances strikingly similar to those involved
 herein, the Comptroller General has found appropriate the retroactive
 granting of administrative leave for periods in which employees were in
 non-pay status.  Accordingly, the Agency's claim that the Union's
 proposal is inconsistent with Comptroller General's decisions is
 rejected.
 
    Similarly, the Agency's claim that the Union's proposal would require
 the improper use of appropriated funds is rejected.  As noted by the
 Comptroller General, an agency does not violate appropriation
 legislation by granting administrative leave to employees for periods
 spent in non-pay status provided the agency had the funds available
 during the period in which employees occupied this status.  Insofar as
 the Agency has not alleged, and the Authority has no reason to believe,
 that the Agency lacked the appropriate funds at the time that employees
 were proposed to be in non-pay status, the Agency has failed to show
 that the proposal would violate any appropriation act as suggested by
 the Agency.
 
    Thus, the granting of administrative leave as proposed by the Union,
 which is a matter affecting the working conditions of unit employees, is
 within the discretion of the Agency.  Since the Agency has not shown
 that the exercise of such discretion through negotiation on the proposal
 would be inconsistent with law or with Government-wide regulations, the
 proposal at issue herein is within the duty to bargain under the
 Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning the proposal.
 /5/ Issued, Washington, D.C., March 11, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Revised and recodified at 31 U.S.C. 1301(a) (1982).
 
 
    /2/ Section 7117 of the Statute provides, in pertinent part, as
 follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /3/ See Long Beach Naval Shipyard, Long Beach, California, and
 International Federation of Professional and Technical Engineers, Local
 174, AFL-CIO, et al., 7 FLRA 362 (1981), and Merit Systems Protection
 Board, 62 Comp.Gen. 1 (1982).
 
 
    /4/ Subchapter S11-5 of the FPM Supplement 990-2, Book 630, states as
 follows:
 
                      S11-5 Administrative Discretion
 
          a.  General.  With few exceptions, agencies determine
       administratively situations in which they will excuse employees
       from duty without charge to leave and may by administrative
       regulation place any limitations or restrictions they feel are
       needed.  Some of the more common situations in which agencies
       generally excuse absence without change to leave and in addition
       to those specifically given above, are covered in this section.
 
 
    /5/ In deciding that the proposal is within the duty to bargain, the
 Authority makes no judgment as to its merits.