14:0179(37)NG - NTEU and FDIC -- 1984 FLRAdec NG
[ v14 p179 ]
14:0179(37)NG
The decision of the Authority follows:
14 FLRA No. 37
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
FEDERAL DEPOSIT INSURANCE
CORPORATION
Agency
Case No. O-NG-430
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). The issue presented
is the negotiability of the following Union proposal:
Once earned, employees may use compensatory time at any time
prior to the end of a leave year or any time within six pay
periods-- whichever is later.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
The Agency by regulation has established a policy that compensatory time
" . . . must be taken during the same or the next two pay periods
succeeding the one in which the overtime work was performed . . . " The
sole purpose of the Union's proposal is to expand that two pay period
time frame to the later of either six pay periods or the end of the
leave year in order to insure adequate opportunity for use of
compensatory time. The Union's statement of intent is not inconsistent
with the proposal and, thus, is adopted for purposes of this decision.
The Agency principally takes the position that the Union's proposal is
barred from negotiations by its regulation for which it claims a
compelling need. (Subchapter 3-5 of the Agency's Leave Policy entitled
"Using Compensation Time").
Section 7117(a)(2) of the Statute provides that agency regulations
for which a compelling need exists, as determined under regulations
prescribed by the Authority, will bar negotiation on a conflicting union
proposal. The illustrative criteria for determining the compelling need
for agency regulations as relied upon by the Agency herein, are provided
in section 2424.11(a) of the Authority's Rules and Regulations. /1/
Under that section, an agency can establish that a compelling need
exists for its regulation only if it demonstrates that such regulation
is "essential as distinguished from helpful or desirable" to achieve
certain ends. Thus, essentiality is the measure of whether the
necessity claimed for the regulation to bar negotiations on a
conflicting union proposal rises to the level of a compelling need.
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
217, 219-20(1981).
In support of its compelling need contention, the Agency asserts but
does not demonstrate that it "would experience a serious disruption in
the assignment of employees to necessary duties and, consequently, would
operate less efficiently and effectively" if its policy embodied in its
regulation on compensatory time were altered. The proposal, by its
language and the Union's stated intent would clearly not require this
result. The proposal, contrary to the Agency's assertion, only
increases the time limit within which an employee may use compensatory
time. It does not require the Agency to grant an employee's particular
request for compensatory time, if mission needs dictate otherwise,
during the six pay period interval anymore than during the two pay
period interval embodied in the Agency's regulation.
The Agency also asserts, in support of its compelling need
contention, that the proposal would cause recordkeeping problems both
because of the longer period during which compensatory time could be
carried on the books before it is used, and because it would be more
difficult to maintain two recordkeeping systems, i.e., one for employees
within the bargaining unit and the second for non-bargaining unit
employees. These Agency assertions concerning recordkeeping problems
clearly relate to the helpfulness or desirability to the Agency of its
regulation but do not demonstrate essentiality. That is, the fact that
the policy reflected in the regulation may facilitate the operation of a
comprehensive recordkeeping system from which deviation may pose
administrative difficulty, does not in itself demonstrate that the
regulation meets the compelling need criteria so as to bar negotiation
of an otherwise negotiable proposal. American Federation of Government
Employees, AFL-CIO, Local 2875 and Department of Commerce, National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service, Southeast Fisheries Center, Miami, Florida, 5 FLRA 441(1981)
(Union Proposal 4). In this regard, in failing to demonstrate that, in
the absence of its regulation, the Agency would be unable to keep
accurate leave records, it must be concluded that the Agency has not met
its burden of showing that its regulation is essential to the
accomplishment of that objective. AFGE, Local 3804 and FDIC, 7 FLRA
217, 220.
The Agency additionally argues that the proposal interferes with its
rights under section 7106(a)(2)(A) and (B) of the Statute to assign
employees, to assign work and to determine the personnel by which agency
operations should be conducted. /2/ These arguments by the Agency
cannot be sustained since, as noted earlier, the proposal, consistent
with the Union's stated intent, does not require the Agency to grant an
employee's particular request for compensatory time, if mission needs
dictate otherwise. /3/
Thus, contrary to the Agency's allegation, the Union's Proposal is
within the duty to bargain under section 7117(a)(2) of 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 on this proposal. /4/
Issued, Washington, D.C., April 3, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 2424.11 of the Authority's Rules and Regulations
provides:
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.
(b) The rule or regulation is necessary to insure the
maintenance of basic merit principles.
(c) The rule or regulation implements a mandate to the agency
or primary national subdivision under law or other outside
authority, which implementation is essentially nondiscretionary in
nature.
/2/ Section 7106 of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management Rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
(A) to . . . assign . . . employees in the agency . . . ;
(B) to assign work . . . and to determine the personnel by
which agency operations shall be conducted (.)
/3/ Cf. American Federation of Government Employees, Local 3488 and
Federal Deposit Insurance Corporation, 12 FLRA No. 101(1983) (Proposal
2, that compensatory days will be subject to use within one year from
date earned, was not barred from negotiations either by the Federal
Personnel Manual or internal agency regulation).
/4/ In so deciding that the proposal is within the duty to bargain,
the Authority, of course, makes no judgment as to its merits.