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17:0122(24)NG
The decision of the Authority follows:
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.