[ v42 p993 ]
42:0993(70)NG
The decision of the Authority follows:
42 FLRA No. 70
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal that would require the Agency to place employees affected by a holiday shutdown of the Agency's operations in November-December 1991 on administrative leave, rather than on annual leave. We find that the proposal is negotiable.
II. Proposal
Affected employees shall be placed on administrative leave without charge to annual leave for the periods of shutdown.
III. Positions of the Parties
1. Agency
The Agency argues that the proposal interferes with management's rights to direct, assign and lay off employees under section 7106(a)(2)(A) of the Statute and with the right to assign work under section 7106(a)(2)(B) of the Statute. The Agency explains that the Union's proposal arose out of impact and implementation bargaining concerning the proposed 1991 holiday shutdown and the Agency's proposal that employees take annual leave during that period. The Agency states that on previous holiday shutdowns, employees were required to take annual leave or leave without pay. The Agency argues that the Union's proposal would prevent the Agency from placing employees in a leave without pay or annual leave status. The Agency also explains that the reasons supporting the holiday shutdown are threefold: (1) savings in energy costs would be realized by not having to heat manufacturing and office buildings; (2) the Agency would have to adjust its manufacturing operations to provide meaningful work, which is not always possible, to those employees who are not on annual leave--in contrast, productivity would be enhanced and the Agency made more competitive if the use of annual leave were shifted to the time when a majority of employees use leave; and (3) in light of anticipated budget reductions and reductions-in-force, there is a concern with long-term job preservation.
More specifically in support of its declaration that the proposal is nonnegotiable, the Agency contends that the proposal would remove all discretion from management in determining whether to grant leave and the type of leave to grant. The Agency asserts that the Authority has found that proposals restricting management's discretion concerning the granting of leave, as the proposal does here, interfere with the right to assign work under section 7106(a)(2)(B) of the Statute. In support of this position, the Agency relies on American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580 (1984) (Proposal 4) (Department of the Air Force). The Agency further argues that the proposal's requirement to grant administrative leave to employees during the shutdown would prevent the Agency from closing its operations, thereby interfering with management's right to assign work, as well as with management's rights to direct and lay off employees under section 7106(a)(2)(A) of the Statute. For these propositions, the Agency cites Department of the Navy, Naval Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir. 1988) (Department of the Navy); Federal Employees Metal Trades Council of Charleston, AFL-CIO and Charleston Naval Shipyard, Charleston, South Carolina, 33 FLRA 618 (1988) (Charleston Naval Shipyard). The Agency also argues that the proposal is similar to one found nonnegotiable in International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711 (1988) (Proposal 5) (Bureau of Engraving and Printing), in which the Authority found that a proposal that would prevent management from requiring that annual leave be taken when agency operations are curtailed could allow employees to thwart the decision to curtail operations by refusing to take annual leave, thereby interfering with the agency's rights to assign employees and assign work.
2. Union
The Union disputes the Agency's reasons for the shutdown. Essentially, the Union argues that: (1) monetary savings alone do not bar negotiations over the proposal; (2) forcing employees to take annual leave or placing employees in a leave without pay status "causes an employee to expend their [sic] earning at the behest of the agency/employer for a Traditional Holiday Period that may not be of their choosing or compatible with their religious beliefs[,]" Union Response at 5; and (3) the Agency's concern for preserving jobs "finds no support of a compelling need or a violation of a management right . . . ." Id. at 6.
With respect to the Agency's contention that the proposal is nonnegotiable, the Union maintains that the proposal does not deny management the right to assign work, determine when work will be performed, or determine who will perform work. The Union states that the proposal, which concerns the use of administrative leave rather than annual leave, "only affects the status of those employees management has determined to be off work." Id. at 7. In this manner, the Union asserts that the proposal differs from proposals which have been found nonnegotiable by the Authority and which would have required management to grant annual leave based on employees' requests. The Union states that under its proposal, management will determine which personnel will be off work as well as which employees are required to work.
The Union also disputes the Agency's contention that the proposal interferes with the right to lay off employees. The Union states that the Agency has not proposed or decided to lay off employee during the period of the holiday shutdown and that "the basis for the shutdown does not meet requirements for the laying off of or the furloughing of employees." Id. at 11.
The Union also contends that "5 CFR, Sub-part C, Administrative Dismissals of Daily, Hourly, and Piecework Employees and [Federal Personnel Manual (FPM)] Supplement 990-2, Book 610, Subchapter S3-2 . . ." authorize administrative dismissal in the circumstances of this case. Union Response at 9. The Union states that the Authority consistently has held that agencies have discretion to grant administrative leave for brief periods and, further, that the use of administrative leave is negotiable. Also, with regard to the use of annual leave, the Union states that annual leave is an entitlement of employees as specified in FPM Supplement 990-2, Book 630, which employees have an absolute right to take, subject to management's discretion to establish the time periods within which leave may be taken. The Union states that nothing in the cited FPM provision "permits management to direct or require employees to take annual leave." Id. at 13.
IV. Analysis and Conclusions
The duty to bargain under section 7117 of the Statute extends to any matter that is not inconsistent with law, rule or regulation. We find that the Agency has not established that the proposal is outside the duty to bargain. Rather, we find that the proposal, which authorizes the use of administrative leave during the period of a holiday shutdown, is negotiable.
The Authority recently has addressed the availability of administrative leave for various activities. In American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 380 (1991), we noted that FPM chapter 630, subchapter 11-1, defines administrative leave as "'an absence from duty administratively authorized without loss of pay and without charge to leave.'" We then found that a proposal requiring the agency to grant employees 40 hours of administrative leave to attend scout functions was nonnegotiable because it directly interfered with the agency's right to assign work. Subsequently, in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106 (1991) (Department of the Treasury), petition for review filed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 91-1493 (D.C. Cir. Oct. 8, 1991), we found that a proposal authorizing the use of administrative leave for employees who participate in counseling and/or treatment sessions constituted a negotiable appropriate arrangement. In the latter case, we addressed more specifically the requirements of the FPM pertaining to administrative leave. Department of the Treasury at 1126. We found that the head of an agency has discretion, which is subject to negotiations, to grant administrative leave to employees of the agency in certain situations for brief periods of time. We also noted the Authority's previous determination in National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105, 1114 (1986) (Eastern Mapping Agency), finding negotiable a provision that provided administrative leave or excused absence for short periods of agency closure due to circumstances beyond the agency's control.
In addition to Eastern Mapping Agency, the Authority previously has addressed and found negotiable proposals concerning the use of administrative leave or excused absence for periods of temporary curtailment of agency operations. See, for example, Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 494-95 (1987), enf'd as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990) (no reduction in employees' pay where operations curtailed because of adverse weather conditions or other situations barring the conduct of regular classroom activities); National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 26 FLRA 59 (1987) (employees affected by holiday closure placed on administrative leave without charge to annual leave).
The proposal here would require the Agency to place employees affected by the holiday shutdown on administrative leave, without charge to annual leave. As noted, agencies have discretion, subject to negotiations, to grant employees administrative leave for brief periods of time. In this case, the amount of time for which administrative leave would be authorized consists of 40 hours and would include the day after Thanksgiving and December 23, 24, 26 and 27. Petition for Review at 1. (1) In our view, the use of administrative leave for this brief period of time is within the Agency's discretion and, therefore, negotiable under the requirements of the FPM. We note, in this regard, the absence of any contention by the Agency that such negotiations are precluded by the FPM.
We further find that the proposal does not directly interfere with the management rights alleged by the Agency. However, even if there was a direct interference, we would find the proposal negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
First, we reject the contention that the proposal interferes with the right to assign work by removing the discretion to determine whether to grant leave and the appropriate leave to grant. We agree with the Union that the proposal concerns the status of employees whom the Agency has determined to place on leave. Thus, the Agency has already decided that employees will be on leave by virtue of its decision to temporarily curtail operations. As to a determination concerning the type of leave that will be authorized, we have found that the use of administrative leave is a matter that is subject to negotiations. The Agency's reliance on Department of the Air Force is inapposite. In that case, the proposal would have required the agency to grant annual leave as long as the employee's need was clearly documented. The Authority found that the proposal interfered with section 7106(a)(2)(B) by removing management's discretion to deny leave. In this case, the Agency has already decided to place employees on leave. There is nothing in the proposal that would prevent the Agency from placing employees on leave for the period of the holiday shutdown.
We also reject the Agency's contentions that the proposal interferes with the rights to direct, assign and lay off employees under section 7106(a)(2)(A). Again, nothing in the proposal would interfere with the Agency's decision to have a holiday shutdown or prevent the Agency from closing its operations. In this manner, the proposal is distinguishable from Bureau of Engraving and Printing in which the application of the proposal was such that an employee or a group of employees could thwart the agency's decision to curtail its operations by refusing to take annual leave. There is nothing in either the proposal itself or the Union's explanation as to the manner in which the proposal is intended to operate that would indicate such a result. Moreover, unlike the proposal in Bureau of Engraving and Printing, which was silent concerning the availability of administrative leave, the proposal here is designed to permit the use of administrative rather than annual leave for the period of the temporary shutdown. Additionally, as the proposal here would not require the Agency to assign work to employees during the period of the shutdown, the proposal is distinguishable from Charleston Naval Shipyard, 33 FLRA 618-19, which required management to "attempt to provide available work first to employees not having annual leave to their credit[,]" during periods of shutdown or reduced operations.
Finally, the Agency's reliance on Department of the Navy is misplaced. Unlike the agency in that case, there is every indication that the Agency intended to maintain employees in a paid leave status, as evidenced by the Agency's statement that it "proposed that employees would take annual leave during the period of the shutdown." Statement of Position at 2. The Union's proposal merely requires that administrative leave be negotiated as an alternative to annual leave for the period of the holiday shutdown.
We further conclude, however, that even if the proposal were found to directly interfere with the exercise of management's rights, the proposal would constitute a negotiable appropriate arrangement. In determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is first necessary to determine whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the proposal is intended to be an arrangement, the Authority next examines whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
In disputing the Agency's reasons for the holiday shutdown, the Union explains that requiring employees to take annual leave or be placed in a leave without pay status causes employees to use their leave in a manner that is not compatible with their needs. As such, we view the Union's proposal as an arrangement for employees adversely affected by the Agency's decision to conduct a holiday shutdown.
Next, we find that the proposal does not excessively interfere with the exercise of management's rights. We find that the benefits accruing to employees under the proposal outweigh the minimal burden imposed on the Agency. As noted by the Union, the Agency's plan to require employees to take annual leave or to place them in a leave without pay status may be incompatible with the needs of employees. Under the proposal, employees would be able to preserve their annual leave and use that leave, subject to applicable legal and regulatory requirements, when the leave is most appropriate and beneficial to them. While the use of administrative leave by employees during the period of the shutdown would enable those employees to preserve their annual leave for use at some future date, the Agency has not argued that such a result would impair the Agency's operations in any way.
In terms of the effect of the proposal on the exercise of management's rights, we note that the Agency has already decided that it is beneficial to temporarily curtail its operations. The Agency has not argued that the cost of placing employees on administrative leave as opposed to annual leave would impose a significant burden. We note that the amount of administrative leave that would be taken is not without limits but, instead, is limited to the brief period of 5 days per employee. Although this use of administrative leave essentially would represent a savings to employees of an equivalent number of days of annual leave, which is then available for employees' use, the Agency has not established that the proposal would result in a substantial number of workdays lost or the manner in which it would presently impair the Agency's operations. Additionally, even though employees would preserve several days of annual leave, management would still retain the right to grant or deny leave requests based on workload requirements.
Finally, the Agency has suggested that there is a concern for long-term job preservation. While it is entirely appropriate for the Agency to take such matters into consideration, such a long-term effect, when faced with the application of the Union's proposal to the Agency's proposed 1991 holiday shutdown, is purely speculative. Moreover, in finding that the proposal is within the duty to bargain, we are not passing on the relative merits of the proposal but are simply directing the parties to negotiate. The parties are free, of course, to bargain to impasse. Any arguments concerning the relative merits of the proposal are more appropriately made in a proceeding before the Federal Service Impasses Panel. See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414 (1990).
V. Order
The Agency must bargain, upon request or as otherwise agreed to by the parties, over the proposal.(2)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Union indicates, in its petition for review, that the Agency originally proposed a partial shutdown of 56 hours but that following negotiations, the Agency agreed to limit the shutdown to 40 hours.
2. In finding the proposal to be within the duty to bargain, we make no judgment as to its merits.