[ v26 p380 ]
26:0380(47)NG
The decision of the Authority follows:
26 FLRA No. 47
Case No. 0-NG-737
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Union
and
DEPARTMENT OF THE NAVY, MARINE
CORPS EXCHANGE 0911, MARINE CORPS AIR
STATION, KANEOHE BAY, HAWAII
Agency
Case No. 0-NG-750
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Union
and
DEPARTMENT OF THE ARMY, U.S.
ARMY SUPPORT COMMAND, HAWAII
FORT SHAFTER, HAWAII
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
I. Statement of the Case
These cases /2/ are before the Authority because of negotiability
appeals filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). The appeals concern
the negotiability of six Union proposals. /3/
II. Proposals 1-6
Proposal 1 (0-NG-737)
SICK LEAVE ARTICLE, SECTION 1:
Regular full-time, regular part-time and regularly scheduled
intermittent employees will accrue sick leave at the rate of five
percent (5%) of the total basic workweek hours in a pay status and
will be credited from the date of hire. Sick leave credits,
including those accrued while on annual or sick leave, are
credited to the employee's account at the end of the pay period in
which accrued. There is no limit on the amount of sick leave that
employees may accumulate and carry forward from one year to
another. No payment for unused sick leave will be made to an
employee under any circumstances.
Proposal 2 (0-NG-750)
ARTICLE 10, SICK LEAVE, SECTION 2:
Earning Rates. Regular full-time, regular part-time, and
regularly scheduled intermittent employees earn sick leave at the
rate of five percent (5%) of the hours in a pay status up to a
maximum of forth (40) hours per week. The minimum accrual is 1/4
hour in a pay period. Sick leave is earned from the first pay
period and may be used when earned. Intermittent on-call and
temporary employees have no entitlement to sick leave. There is
no maximum accumulation of sick leave.
(Proposal 3 (0-NG-737)
ANNUAL LEAVE ARTICLE, SECTION 1:
Regular full-time, regular part-time, and regularly scheduled
intermittent employees shall earn annual leave. The amount of
annual leave earned depends on the employee's total length of
creditable service. Total creditable service will be to include
all prior DOD NAFI service, including service with current
employer, as a regular full-time, regular part-time, and regularly
scheduled intermittent employee. Fractional parts of months will
be included in determining length of service. However, the total
length of service will be stated in terms of complete months.
a) Annual leave will accrue to regular full-time, regular
part-time, and regularly scheduled intermittent employees while in
a pay status, excluding overtime hours worked in excess of forty
(40) hours during the basic workweek in accordance with the
following:
1) Employees with less than three (3) years of service will
accrue five percent (5%) of the total hours in the basic workweek.
2) Employees with three (3) years but less than fifteen (15)
years of service will accrue 7.5 percent of the total hours in the
basic workweek, except for the final bi-weekly period of the leave
year when it will accrue at the rate of 12.5 percent of the total
hours in the basic workweek.
3) Employees with more than fifteen (15) years of service will
accrue 10 percent of the total hours in the basic workweek.
Accrued leave is credited to an employee upon completion of a
ninety (90) calendar day qualifying period, and thereafter at the
end of the pay period in which it is earned. If an employee
separates prior to completing the ninety (90) day qualifying
period, no leave credit for this period of employment will be
granted or paid for.
The maximum amount of accumulated annual leave that may be
carried over from one leave year to the next will be two hundred
forty (240) hours. Upon separation from a NAFI, an employee will
be paid for the accumulated annual leave credited to the
employee's account.
Proposal 4 (0-NG-750)
ARTICLE 12, ANNUAL LEAVE, SECTION 1:
Regular full-time, regular part-time, and regularly scheduled
intermittent employees shall earn annual leave. The amount of
annual leave earned depends on the employee's total length of
creditable service. Total creditable service will include all
prior D.O.D. NAFI service, including service with current employer
as a regular full-time, regular part-time and regularly scheduled
intermittent employee. Fractional parts of months will be
included in determining length of service. However, the total
length of service will be stated in terms of complete months.
a) Annual leave will accrue to regular full-time, regular
part-time, and regularly scheduled intermittent employees while in
a pay status, not to exceed forty (40) hours per week.
1. Employees with less than three (3) years of service will
accrue five percent (5%) of the total hours in the basic workweek.
2. Employees with three (3) years, but less than fifteen (15)
years of service, will accrue 7.5 percent of the total hours in
the basic workweek, except for the final bi-weekly period of the
leave year, when it will accrue at the rate of 12.5 percent of the
total hours in the basic workweek.
b) Accrual of annual leave is a right of the employee, in that
its accrual may not be denied.
Proposal 5 (0-NG-750)
ARTICLE 11, ABSENCE FOR MATERNITY/PATERNITY REASONS, SECTIONS
1 & 2:
Section 1. Absence for maternity reasons will be approved for
incapacitation related to pregnancy and confinement. It is
changeable to sick leave, annual leave, and/or leave without pay.
Section 2. Regular full-time, regular part-time and regularly
scheduled intermittent male employees may request annual leave
and/or leave without pay for purposes of assisting or caring for
their minor children, or the mother of their newborn child, while
she is incapacitated, for maternity reasons.
Proposal 6 (0-NG-750)
ARTICLE 13, ADMINISTRATIVE LEAVE AND EXCUSED ABSENCES, SECTIONS
1, 4,
and 5:
Section 1. A regular full-time, regular part-time, or
regularly scheduled intermittent employee will be authorized
absence from official duties for official jury duty or for
attending court in the capacity of a witness on behalf of the U.S.
Government or a Nonappropriated Fund Instrumentality of the U.S.
Army Support Command, Hawaii. The employee must present the court
order, subpoena or summons to his supervisor as far in advance as
possible so that arrangements may be made for his absence. Upon
return to duty, written evidence of his attendance at court is
required, showing the dates (and hours, if possible) of the
service.
Section 4. Military leave for a regular full-time, regular
part-time or regularly scheduled intermittent employee, who is a
reservist of the Armed Forces of the United States or a member of
the National Guard, shall be granted in accordance with applicable
regulations.
Section 5. During periods of shutdown, all regular full-time,
regular part-time, and regularly scheduled intermittent employees
will be authorized administrative leave without charge to leave or
loss of basic pay when advance notice is given.
III. Preliminary Matters
The Union argues that the Agencies' statements of position are not
properly before the Authority because they were not signed by either
Agency's designated representative of record. This same argument was
made and rejected in Service Employees' International Union, Local 556,
AFL-CIO and Department of the Navy Exchange, Pearl Harbor, Hawaii, 25
FLRA No. 65 (1987). It is rejected here for the same reasons as
expressed in that decision.
Furthermore, the Union alleges that the Agencies failed to provide
the Union with relevant and pertinent information needed to fully
present its position. The Union had requested statistical data as to
the number of hours worked by intermittent employees and the length of
time in terms of months that those employees worked for the past two
years. However, the Authority concludes that such information is not
relevant to the negotiability of the proposals. That is, the Union's
ability to present this negotiability appeal was not prejudiced by the
Agencies' alleged failure to disclose the requested data. Issues as to
an Agency's alleged failure to provide information should be raised in
an unfair labor practice proceeding, not a negotiability appeal.
Finally, the Union contends that the Agencies are prevented here from
raising these allegations of nonnegotiability because they had, in prior
cases concerning the same subject matter, withdrawn their allegations of
nonnegotiability. However, again, the Union's contention cannot be
sustained. An Agency's withdrawal of its allegations of
nonnegotiability in prior cases is not dispositive of whether proposals
are within the duty to bargain under the Statute. Similarly, the prior
inclusion of proposals concerning the same subject matter in a
collective bargaining agreement is not dispositive of those proposals'
negotiability under the Statute.
IV. Positions of the Parties
Proposals 1, 2, 3, and 4 would enable regularly scheduled
intermittent employees in Nonappropriated Fund Instrumentalities (NAFIs)
to earn sick and annual leave. Proposal 5 would permit absence for
maternity or paternity reasons utilizing various types of leave for
these employees. Proposal 6 would provide the same employees with
administrative leave and excused absences under the circumstances
described in that proposal. /4/ The Agencies contend that the proposals
are outside the duty to bargain because they do not concern conditions
of employment of bargaining unit employees and are inconsistent with
Agency regulations for which there is a compelling need under section
7117(a)(2). In this regard, the Agencies argue that excluding certain
NAF employees from enjoying some benefits is necessary to maintain a
financially viable NAF system. Derivatively, they claim that finding
the proposals negotiable would be inconsistent with the statutory
requirement of an effective and efficient government. The Union
disputes the Agencies' contentions.
V. Analysis and Conclusion
A. The Proposals Concern Conditions of Employment
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
No. 41 (1986), appeal docketed sub nom. Department of the Air Force,
Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2,
1987), the Authority held that nothing in the Statute, or its
legislative history, bars negotiation of proposals relating to pay and
fringe benefits insofar as (1) the matters proposed are not specifically
provided for by law and are within the discretion of the agency and (2)
the proposals are not otherwise inconsistent with law, Government-wide
rule or regulation or an agency regulation for which a compelling need
exists. Based on that analytical framework, we held the proposal in
that case, which required the agency to pay up to 75 percent of the
premium cost of health insurance for NAF employees, to be within the
duty to bargain.
The present case involves leave benefits for NAF employees, which are
matters not governed by law, but by agency regulations. Since leave
benefits are not a matter specifically provided for by Federal statute,
this matter is not excepted from the definition of conditions of
employment under section 7103(a)(14)(C) of the Statute.
B. The Agency Has Not Established a Compelling Need for Its
Regulations to Bar Negotiations
To establish that a proposal is nonnegotiable on the basis of
compelling need, an agency must (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal; and (3) demonstrate that its regulation is supported
by a compelling need with reference to the Authority's illustrative
standards set forth in section 2424.11 of the Authority's Rules and
Regulations (5 CFR Section 2424.11). Generalized and conclusionary
reasoning does not support a finding of compelling need. American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Coporation, Madison Region, 21 FLRA No. 104 (1986)
(Proposal 7).
The Agencies assert that, because the proposals would provide leave
benefits to intermittent employees, they conflict with the Department of
Defense Personnel Policy Manual for Nonappropriated Fund
Instrumentalities and other Agency regulations authorizing leave
benefits only to regular full-time and regular part-time employees. The
Agencies contend that the regulatory provisions meet the Authority's
criterion for determining compelling need set forth in 5 CFR Section
2424.11(a). That is, they claim that the regulations are essential, as
distinguished from helpful or desirable, to the accomplishment of their
missions in a manner which is consistent with the requirements of an
effective and efficient government. In support, the Agencies state but
do not demonstrate that the regulations are necessary to maintain a
viable NAF system. The Agencies do not indicate why this goal could not
be achieved through means other than the regulations at issue. They
also fail to show that the proposals would result in significant and
unavoidable costs not offset by compensating benefits. See
Lexington-Blue Grass Army Depot, Lexington, Kentucky and American
Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6
(1986), in which the Authority held that effectiveness and efficiency
are not to be measured solely in monetary terms.
We find that the Agencies have shown a conflict between the proposals
and the regulations relied upon, but that they have presented nothing
more than generalized and conclusionary statements to support the
contention that a compelling need exists for the regulations. Thus, we
find that the Agencies have not met their burden of demonstrating that
the regulations are essential, as distinguished from merely being
helpful or desirable, under 5 CFR Section 2424.11(a), as claimed. See
American Federation of Government Employees, AFL-CIO, Local 1928 and
Department of the Navy, Naval Air Development Center, Warminster,
Pennsylvania, 2 FLRA 451, 454 (1980). Consequently, we conclude that
the Agencies have not provided a basis for finding the proposals
nonnegotiable.
VI. Order
The Agencies must bargain, upon request or as otherwise agreed to by
the parties, over the proposals. /5/
Issued, Washington, D.C., March 25, 1987
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
As in American Federation of Government Employees, AFL-CIO, Local
1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24
FLRA No. 41 (1986), petition for review filed sub nom. Department of the
Air Force, Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir.
February 2, 1987), the bargaining unit in this case is composed of
Non-appropriated Fund Instrumentality (NAFI) employees. In Eglin, the
issue concerned the negotiability of a proposal concerning the
employer's share of the premium costs of employee health insurance. In
my opinion in that case, I stated that I would find a compelling need
for the regulatory scheme which sets forth the policies, organization,
and practices for the administration and management of NAFIs and their
employees, including the specific regulations concerning health
insurance, as well as wages and other money-related fringe benefits.
I reach the same conclusion in this case, where the regulation
provides that "intermittent employees are not eligible for participation
in benefit programs including the various types of leave." In my view,
this regulation, as part of the overall NAFI regulatory scheme, is
necessary to maintain the uniformity in treatment of NAFI employees
which is, in turn, essential to the accomplishment of the Agencies'
worldwide missions within the meaning of section 2424.11(a) of the
Authority's regulations. Also, as I stated in Eglin Air Force Base, in
the absence of a clear expression of Congressional intent to make these
matters negotiable, the Authority should not imply such an intent.
Accordingly, I would find the Unions' proposals in this case to be
nonnegotiable.
Issued, Washington, D.C., March 25, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) The record indicates that the Agency requested that cases
0-NG-736 and 0-NG-750 be consolidated. This request is denied because
the issues involved are not sufficiently similar to warrant
consolidation. Instead, 0-NG-737 is consolidated with 0-NG-750 because
these cases present issues which are in effect identical.
(3) The Agency, in its Statement of Position (0-NG-750), withdrew its
allegation of nonnegotiability as to Article 13, Sections 2(a), (b), (c)
and (d). Therefore, they will not be considered further herein.
(4) There is a difference in wording between the petition and an
attachment to the petition with reference to section 5 of Proposal 6.
However, it is undisputed that what this section is intended to do is to
extend the administrative leave provision to regularly scheduled
intermittent employees. Furthermore, it is clear that the Agency
disputes only such extension and not the substance of the administrative
leave policy itself.
(5) In finding the proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.