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18:0307(38)NG
The decision of the Authority follows:
18 FLRA No. 38
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-62
Union,
and
U.S. ARMY DUGWAY PROVING
GROUND, DUGWAY, UTAH
Agency
Case No. 0-NG-727
and
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-62
Union,
and
U.S. ARMY DUGWAY PROVING
GROUND, DUGWAY, UTAH
Agency
Case No. 0-NG-912
CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUE
The petitions for review in these cases /1/ come before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raise an issue
regarding the negotiability of the following two identical Union
proposals:
Affected employees (shall) be placed on administrative leave
without charge to annual leave for the period of partial closure.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The record indicates that the Union sought to negotiate over the
disputed proposals upon receiving notice that the Agency intended to
partially close its facilities at Dugway Proving Ground during the
Christmas-New Year holiday period. The Agency refused to bargain over
the Union's proposals which would require the granting of administrative
leave to employees compelled to take leave during the partial closure,
contending that such proposals are inconsistent with Agency regulations
for which there is a compelling need and, therefore, barred from
negotiations under section 7117(a)(2) of the Statute. /2/ In this
regard, the Agency relies upon Army Civilian Personnel Regulation 990-2
(C11), subchapter 610.S3, paragraph C3 /3/ and Department of Defense
Civilian Personnel Manual Supplement 990-2, Book 610, subchapter S3,
paragraph 1(a), /4/ as prohibiting the Agency from granting
administrative leave when sufficient advance notice can be given to
permit, as relevant herein, the granting of annual leave. The Agency
contends that the regulations are essential to the functioning of the
Agency in an effective and efficient manner, as provided under section
2424.11(a) of the Authority's Rules and Regulations, /5/ since it can
only perform its national defense mission effectively and efficiently
where it retains the right to curtail operations which do not contribute
to the accomplishment of that mission. The Agency basically argues that
the regulations are essential to insure that the Agency's objective of
curtailing operations, and thereby reducing expenditures by temporarily
closing its facilities during unproductive periods of operation, is not
negated by the expense incurred by granting administrative leave to
employees during the period of partial closing. The Union, in essence,
argues that the Agency has not demonstrated the essentiality of its
regulations to eliminate unproductive work time by curtailing
unproductive operation, since the Agency has failed to provide evidence
that the cited regulations represent the only way to eliminate
unproductive work time.
The Authority finds that the decision to shut down or curtail
operations of an agency is an aspect of management's right to layoff
under section 7106(a)(1) of the Statute. The proposal would not prevent
the Agency from deciding to shut down its facilities. It would,
however, conflict with the Agency's regulations, which implement that
decision in a manner which is critical to achieving the Agency's goal of
saving money. That is, the Agency has demonstrated that its regulations
prohibiting administrative leave (which the proposals would require)
during the partial closing are critical components of the Agency's
achieving its objective of saving money by curtailing operations so as
to insure the Agency's performance of its mission in an effective and
efficient manner. /6/ Thus, in the circumstances herein, the Authority
finds that it would be consistent with an effective and efficient
Government for the Agency's regulations to bar negotiation of the
Union's proposals and, therefore, finds that the proposals are outside
the duty to bargain under section 7117(a)(2).
Contrary to the Union's contention, there is no indication in the
record that the Agency could achieve its objective of reducing
expenditures during periods of unproductive operation without the
implementation of its rule prohibiting administrative leave when
sufficient advance notice is given. Clearly, the implementation of the
Union proposals, which would require the Agency to grant employees
administrative leave during this period, would result in additional
labor cost during a period in which the Agency seeks to reduce
expenditures. The Agency, in essence, would be compelled to pay
employees during periods when the facility was not in full operation and
when a substantial number of employees would normally (if the proposals
were not in effect) be on annual leave. Therefore, the Authority
concludes that the Agency herein has demonstrated that its regulations
are "essential as distinguished from helpful or desirable" and, thus,
has established that a compelling need exists for the regulations under
the requirements set forth in section 2424.11(a) of the Authority's
Rules and Regulations so as to bar negotiations of the Union's
proposals.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Authority, pursuant to a request by the parties, has
consolidated these two cases because the proposals involved are
identical and present the same negotiability question.
/2/ Section 7117(a)(2) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
* * * *
(a)(2) The duty to bargain in good faith shall, to the extent
not inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
/3/ Section 990-2, subchapter 610.S3, paragraph 3C, of the Army
Civilian Personnel Regulation provides as follows:
S3-3. EFFECT OF DISMISSAL
* * * *
c. Where advance notice can be given.
The authority to excuse employees administratively is not to be
used in instances where the period of interrupted or suspended
operations can be anticipated sufficiently in advance to permit
arranging for assignment to other work or the scheduling of annual
leave . . . .
/4/ Section 990-2, Book 610, subchapter S3-1(a), of the Department of
Defense Civilian Personnel Manual Supplement provides as follows:
S3-1. General Authority
a. Closing an Activity. Commanders are authorized to close
all or part of an activity consistent with the policy outlined in
this subchapter and to excuse employees administratively. Such
instances will be made a matter of record at the activity. This
authority does not extend to periods of interrupted or suspended
operations that can be anticipated sufficiently in advance to
permit arranging for assignment to other work or the scheduling of
annual leave.
/5/ Section 2424.11 of the Authority's Rules and Regulations provides
in pertinent part as follows:
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.
/6/ See National Treasury Employees Union, Chapter 207 and Federal
Deposit Insurance Corporation, Washington, D.C., 14 FLRA 598 (1984)
(Union Proposal 5), appeal docketed sub nom. National Treasury Employees
Union, Chapter 207 v. Federal Labor Relations Authority, No. 84-1286
(D.C. Cir. July 6, 1984).