[ v20 p587 ]
20:0587(72)CA
The decision of the Authority follows:
20 FLRA No. 72
U.S. DEPARTMENT OF INTERIOR
BUREAU OF RECLAMATION
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT, LOCAL 1991
Charging Party
Case No. 3-CA-30237
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order as modified below.
In agreement with the Judge, the Authority finds that the
Respondent's conduct in changing its established policy of automatically
advancing annual leave to employees at the beginning of a leave year
without first notifying the Charging Party and affording it an
opportunity to request bargaining with respect to the change constituted
a violation of section 7116(a)(1) and (5) of the Statute. However, to
the extent that one portion of the pre-existing policy appears to have
been inconsistent with a Government-wide rule or regulation under
section 7117 of the Statute, /2/ the Respondent's conduct in changing
that portion of the policy to conform with the Government-wide rule or
regulation did not violate the Statute. In this latter connection, and
as cited by the Judge, Federal Personnel Manual (FPM) Chapter 630,
Subchapter 3-4.c. provides in pertinent part that "(i)t is within the
discretion of each agency to grant annual leave to an employee in
advance of its actual earning to the extent that leave will accrue to
him during the current leave year." As further explained in FPM Letter
630-29 dated January 28, 1981, "an employee may not be advanced . . .
annual leave . . . when it is know (or reasonably expected) that the
employee will not return to duty(.)" The Respondent's policy prior to
the change did not condition the advancement of leave to an employee on
whether or not the employee would accrue such leave. The changed policy
provides that requests for advance annual leave should not be approved
when there is a reason to suspect that the employee will not earn (and
thereby accrue) the advanced leave requested.
The Federal leave system is governed by Chapter 63 of title 5 of the
United States Code. Among its provisions, 5 U.S.C. 6311 empowers the
Office of Personnel Management to issue regulations necessary for the
administration of the leave system. /3/ Those regulations appear in FPM
Chapter 630 and are applicable generally to employees of the United
States Government including those of the Respondent herein. /4/ In the
Authority's view, FPM Chapter 630, Subchapter 3-4.c., for purposes here,
constitutes a Government-wide rule or regulation within the meaning of
section 7117(a) of the Statute. Thus, issuance of the regulation is
statutorily authorized under 5 U.S.C. 6311 and is binding on the
officials and agencies to which it applies and, further, the regulation
is applicable generally to Federal employees. /5/ Under these
circumstances, where the Respondent's change in its leave policy
resulted in conformity with a Government-wide rule or regulation, the
Authority finds that the Respondent's conduct in effecting such a change
did not violate the Statute. /6/ However, and as found by the Judge, to
the extent that the Respondent effected other changes to its leave
policy which were within the duty to bargain, its failure to have
notified the Charging Party and given it an opportunity to request
bargaining over such changes constitutes a violation of section
7116(a)(1) and (5) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Department of Interior, Bureau of Reclamation, shall:
1. Cease and desist from:
(a) Unilaterally instituting a change in the past practice of
crediting unit employees at the beginning of each leave year with
the total amount of annual leave to be earned during the ensuing
year without first notifying and, upon request, bargaining with
the employees' exclusive representative, the National Federation
of Federal Employees, Independent, Local 1991, concerning such
changes to the extent consonant with law and regulation.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) To the extent consistent with law and regulation, rescind
the change in the past practice or crediting unit employees at the
beginning of each leave year with the total amount of annual leave
to be earned during the ensuing year.
(b) Notify the National Federation of Federal Employees,
Independent, Local 1991, the unit employees' exclusive
representative, of any intention to change the practice of
crediting unit employees at the beginning of each leave year with
the total amount of annual leave to be earned during the ensuing
year, and, upon request, negotiate in good faith, to the extent
consonant with law and regulation, as to such changes.
(c) Post at its Washington, D.C. Office copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the head of the Bureau of Reclamation, or a designee, and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., November 6, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally institute a change in the past practice of
crediting unit employees at the beginning of each leave year with the
total amount of annual leave to be earned during the ensuing year
without first notifying and, upon request, bargaining with the
employees' exclusive representative, the National Federation of Federal
Employees, Independent, Local 1991, concerning such changes to the
extent consonant with law and regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, to the extent consistent with law and regulation, rescind
the change in the past practice of crediting unit employees at the
beginning of each leave year with the total amount of annual leave to be
earned during the ensuing year.
WE WILL notify the National Federation of Federal Employees,
Independent, Local 1991, the unit employees' exclusive representative,
of any intention to change the practice of crediting unit employees at
the beginning of each leave year with the total amount of annual leave
to be earned during the ensuing year, and, upon request, negotiate in
good faith, to the extent consonant with law and regulation, as to such
changes.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, NW., Room 700, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-30237
Beatrice G. Chester, Esquire
For the Respondent
Erica Cooper, Esquire
Peter Sutton, Esquire
For the General Counsel
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
U.S.C.Section 7101, et seq. and the Rules and Regulations issued
thereunder.
Pursuant to a charge filed on January 18, 1983, by Local 1991,
National Federation of Federal Employees (Independent), (hereinafter
called the Union or NFFE), a Complaint and Notice of Hearing was issued
on October 20, 1983, by the Regional Director for Region III, Federal
Labor Relations Authority, Washington, D.C. The Complaint alleges that
the U.S. Department of Interior, Bureau of Reclamation, (hereinafter
called the Respondent or Bureau), violated Sections 7116(a)(1) and (5)
of the Federal Service Labor-Management Relations Statute, (hereinafter
called the Statute), by virtue of its actions in implementing a new
annual leave policy without affording the Union prior notice of the
change and the opportunity to bargain with respect to the change in
working conditions.
A hearing was held in the captioned matter on January 17, 1984, in
Washington, D.C. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on February 16 and 17, 1984,
respectively, which have been duly considered. /7/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the exclusive representative of a unit of employees
working in the Washington office of the Bureau of Reclamation. Ms.
Trudy Ward has been the President of the Union since December 1981. In
her capacity as Union President, Ms. Ward acts as the Union's Liaison
with Respondent's personnel office.
Since at least 1976 the Respondent followed the practice of crediting
to all employees on their first January "Leave and Earnings Statement"
the total amount of annual leave which they would earn for the current
calendar year. While the record is not clear with respect to whether or
not employees generally submitted a Form SF-71 when requesting leave, it
is clear, however, that the taking of the advanced leave was subject to
the approval of the employees respective supervisors. The
aforementioned practice was in accord with the Bureau's then existing
Instruction on Annual Leave dated May 31, 1962.
On July 2, 1982, for reasons to be discussed infra, Respondent,
without any notice whatsoever to the Union, /8/ amended its "Reclamation
Instructions" (FPM Chapter 630 - Absence and Leave - FPMR-630-3;
5/31/62) to provide, among other things, that effective with the 1983
leave year "Annual leave shall not be advanced, except in unusual
circumstances or where undue hardship will result. "Employees . . .
experiencing personal emergencies or undue hardships may request and be
granted advanced annual leave; however, the amount advanced cannot
exceed that which the employee would accrue during the current leave
year."
The Instruction further provided in pertinent part as follows:
Requests for advance annual leave must (1) be in writing; (2)
state the amount of leave to be advanced; (3) include
justification or reasons therefor; (4) be signed and dated by the
employee; and (5) receive prior approval at least one level above
the immediate supervisor, if feasible. Requests for advance
annual leave should not be approved when there is reason to
suspect that the employee will not earn the advanced leave
requested, nor should it be granted in situations where sick leave
is appropriate. /9/
On December 17, 1982, Mr. William Spillers, Respondent's Chief,
Division of Personnel Management distributed a memorandum to "All
Washington Office Employees" concerning "Advancing, Annual Leave." The
memorandum which was received by Ms. Ward, Union President, solely in
her capacity as an employee reads in pertinent part as follows:
This is to advise all Bureau employees that, effective with the
1983 leave year, annual leave will no longer be automatically
advanced at the beginning of the leave year. Employees will be
able to use only annual leave they have actually earned except in
special need situations. Employees should be aware of this policy
change in planning leave for the coming year.
Annual leave may be advanced only in unusual circumstances or
where undue hardship would result. Annual leave may not be
advanced for any reason during the first year of Federal Service.
According to Ms. Ward, who, as noted above, received the notice of
the change solely in her capacity as a unit employee, she did not
request bargaining on the matter "Mainly because I was not notified as
union president, and when I saw the notice, to me, it looked like it was
already done. It was already in the works. It was final."
Further, according to the credited testimony of Ms. Ward, in the
past, i.e. prior to the December 17, 1982 memorandum, employees were not
required to submit a written justification for advanced annual leave or
establish either a hardship or emergency situation before being eligible
to receive advanced annual leave. In the past all that an employee had
to do was verbally ask her supervisor if she could take some leave and
if the employee could be spared it was granted without any distinction
being made between accrued and advanced annual leave.
The record indicates that there were approximately 140 employees in
the bargaining unit and that the average annual leave carried over by
such employees from 1982 to 1983 was 126 hours. The record further
indicates that at least ten employees followed the new procedures
established pursuant to the July 2, 1982 Bureau Instruction.
Mr. George Mussare, a position classification specialist assigned to
the Chief Relations and Position Management Branch of the Bureau of
Reclamation testified that his Branch was responsible for developing
"all policy" for the Bureau of Reclamation. According to Mr. Mussare,
Respondent amended Reclamation Instruction FPMR-630-3 on July 2, 1982,
in order to make it conform with Department of Interior Regulation 370
DM 630,3.1 dated 7/29/76 which provided in Subchapter 3.2 "Granting and
Advancing Annual Leave" as follows:
C. An employee may be permitted to take the annual leave to his
credit plus the leave that will accrue during the current leave
year at any time during that year. Annual leave may be advanced
only when there are no reasons known to the approving officer why
the employee will not be able to earn the leave advanced. /10/
Further, according to Mr. Mussare inasmuch as the Reclamation
Instruction FPMR 630-3 dated 5/31/62, made no mention of the fact that
advanced annual leave was not to be approved when there was a
possibility that the requesting employee might not return to work,
Respondent decided to, and did, amend the Reclamation Instruction on
July 2, 1982, to limit the use of advanced annual leave. Mr. Mussare
also testified that Respondent was concerned with the Debt Collection
Act of 1982 which, among other things "imposed upon the agency the
requirement to offer an employee a hearing prior to the collection of
any monies owed the government." Finally, according to Mr. Mussare, it
was the opinion of the Respondent that in curtailing the use of advanced
annual leave, Respondent would reduce the administrative costs of debt
collections caused by the advancement of leave to employees leaving the
federal service prior to the time that they had put in enough time to
earn the advanced leave.
The record establishes that throughout all of 1982 and the first half
of 1983, the Union and the Respondent had been engaged in negotiations
for a collective bargaining agreement. As the parties would reach
agreement on any article or provision to be included in the final
collective bargaining agreement, they would initial same and proceed on
to another article or provision. The parties eventually reached
agreement on a collective bargaining contract which became effective on
June 23, 1983. The Preamble of the collective bargaining contract
provides as follows:
Pursuant to the Federal Service Labor-Management Relations
Statute . . . and subject to all applicable Federal laws,
executive orders, rules and regulations of appropriate
authorities, including those set forth in the Federal Personnel
Manual and by published Department of the Interior and Bureau of
Reclamation policies and regulations in existence at the time this
Agreement is approved, except where the Articles of this Agreement
conflict with such regulations of the Bureau and Department and
where a waiver has been granted, the following Articles constitute
an Agreement by and between the Bureau of Reclamation and the
National Federation of Federal Employees, Local 1991.
Section 6 of Article XVIII provides as follows:
All leave shall be earned, requested and authorized, and used
in accordance with applicable statutes and regulations.
With respect to the above quoted provisions of the collective
bargaining contract the record establishes that the parties signed off
on the Preamble on July 14, 1982, and signed off on Section 6 of Article
XVIII on April 1, 1982, approximately 5 and 9 months, respectively,
before the change in the use of advanced leave was announced. In this
letter connection, Mr. Michael Nash, Service Labor Relations Officer for
the Bureau, the individual assigned the task of negotiating the
collective bargaining contract on behalf of the Respondent, testified
without contradiction, that the ground rules for the negotiations
provided that either party could change its position on any of the
signed off articles at any time prior to the execution of a final
collective bargaining agreement. Further, according to Mr. Nash, the
Union made no attempt to change the above cited articles and at no time
requested bargaining on the change announced on December 17, 1982, with
respect to curtailing the prior practice of crediting employees with
their yearly leave on the first day of the calendar year.
Discussion and Conclusions
The General Counsel takes the position that Respondent violated
Sections 7116(a)(1) and (5) of the Statute by virtue of its actions in
terminating an existing negotiable practice which had ripened into a
condition of employment without first giving the Union appropriate
timely notice and the opportunity to request bargaining over the
substance of the change in the existing practice. Additionally, the
General Counsel takes the position that the record does not support the
Respondent's defenses predicated upon "compelling need" and "waiver" by
the Union of its right to negotiate the change in leave policy.
Respondent, on the other hand, takes the position that it did not
violate Sections 7116(a)(1) and (5) of the Statute since (1) the change
in leave policy was based on compelling need; (2) there was no
substantial impact on bargaining unit employees; (3) the Union in any
event received appropriate notice of the change and failed to request
bargaining; and (4) the Union by subsequently executing the collective
bargaining agreement wherein it agreed to abide by all existing
regulations waived its right to bargain over the change in leave policy.
The record establishes and I find, based particularly upon the
credited testimony of Ms. Ward, that the Respondent had since at least
1976 followed the practice of crediting each employee at the beginning
of every leave year with the total amount of leave they were expected to
earn during the ensuing year. The record further establishes, and I so
find, that subject to obtaining permission from their respective first
line supervisors, the unit employees were allowed to use the credited
leave at any time during the year. Accordingly, based upon the
foregoing, I further find that the practice of crediting and advancing
leave prior to the actual date that such leave was earned ripened into a
condition of employment which could not be unilaterally altered by the
Respondent without first giving the Union appropriate notice thereof an
an opportunity to bargain thereon. Internal Revenue Service and
Brookhaven Service Center, 6 FLRA No. 127; Department of the Navy,
Naval Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64.
Respondent does not appear to contest the above finding but defends
its action in failing to bargain with the Union on the basis of (1)
absence of a demand for bargaining by the Union, (2) compelling need,
(3) waiver, and (4) lack of substantial impact.
Taking the defense of the Respondent in the above order, I find that
the Union was not given appropriate timely notice of the change and an
opportunity to bargain thereon before the change was announced as a fait
accompli. In this connection the record establishes that Union
President Ward, the party entitled to receive appropriate notice of any
change in a condition of employment, was not served notice of the change
in leave policy in her capacity as Union President, but rather learned
of the change through the medium of a general distribution of a
memorandum directed to "All Washington Office Employees." The memorandum
did not state that the change in past practice was being considered, but
rather made it clear that a decision on the subject of advancing leave
had already been made and that effective the first pay period in January
1983 the practice of advancing leave was discontinued.
In reaching the above conclusions I rely on the Authority's decision
in Social Security Administration, Field Assessment Office, Atlanta,
Georgia, 11 FLRA No. 78, and Defense Logistics Agency, et al., 12 FLRA
86, wherein the Authority reaffirmed its position taken in United States
Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology
Center, Newark, Ohio, 4 FLRA No. 70, enforcement denied 681 F.2d 466,
concerning what constitutes appropriate timely notice to a Union. In
U.S. Air Force, Air Force Logistics Command, supra, the Authority made
it clear that in order for a "notice" to be valid it must be given to
the appropriate union official in his capacity "as a union
representative." Failure to give such notice impedes the ability of the
union representative to act as an equal partner and thus constitutes a
violation of Sections 7116(a)(1) and (5) of the Statute.
Although the Authority found the notice to be deficient in U.S.
Force, Air Force Logistics Command, supra, it did not order the agency
to bargain with the union since there was no showing "that a demand to
bargain based on actual knowledge of the change would have been futile,
nor was it shown that the failure of appropriate advance notice would
have made effective negotiations impossible." Inasmuch as the facts of
the present case are clearly distinguishable from those presented to the
Authority in U.S. Air Force, Air Logistics Command, supra, I find that a
bargaining order is appropriate under the guidelines inferentially set
forth by the Authority in U.S. Air Force, Air Force Logistics Command,
supra. Not only is there testimony by Ms. Ward that her failure to
request bargaining was based on her belief that such a request would be
a futile gesture, but there is also record evidence supporting such
futility. Thus, it is noted that the memorandum announcing the change
was predicated upon the Bureau Instruction which had been revised months
earlier, again, without notice to the Union. In such circumstances, I
find that the record supports the conclusion that the change was a fait
accompli and that any request to bargain thereon would not have resulted
in any meaningful negotiations.
Turning now to the Respondent's second defense, i.e. compelling need,
I find that the record falls short of establishing that a compelling
need existed for either the revised Bureau regulation or the subsequent
December 17, 1982, memorandum, both of which unilaterally terminated the
practice of advancing annual leave. In reaching this conclusion, I rely
upon a literal reading of both the Department of Interior and FPM
Instructions. Neither of such Instructions carry an outright
prohibition against the practice of advancing or crediting an employee
with the annual leave to be earned during the ensuing year. In fact
both Instructions make it clear that such practice is discretionary,
subject only to the caveat that advanced annual leave shall not be given
to an employee where the approving officer has reason to believe that
the employee "will not be able to earn the leave advanced." The Bureau's
Regulations and subsequent Memorandum to All Employees goes further than
either the Departmental Regulation or the FPM Regulation and puts a
blanket restriction on all advanced leave. In view of the foregoing,
and particularly since both the Departmental and FPM Instructions carry
no outright prohibition against the practice of advancing annual leave,
but rather make it discretionary with the approving officer, I find
Respondent's defense predicated upon "compelling need" to be without
merit. Cf. American Federation of Government Employees, Local 3488 and
Federal Deposit Insurance Corporation, 12 FLRA 532, 533; National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748.
In support of its third defense, i.e. waiver by the Union of its
right to negotiate over the change in leave policy, Respondent relies on
Section 6 and the Preamble of the collective bargaining agreement
executed subsequent to its action in unilaterally changing the practice
of crediting to each employee in January of each year the amount of
leave the employee is expected to earn or accrue during the ensuing
year. According to the Respondent inasmuch as the Union has agreed in
such sections of the collective bargaining agreement to be bound by the
existing regulations of the Bureau it is estopped "from complaining
about the issuance of the December 15, 1982, memorandum."
Contrary to the contention of the Respondent, I cannot conclude on
the basis of the instant record that the Union either waived its right
to bargain over the change in leave policy or is "estopped from
complaining" about the change by virtue of its action in signing the
collective bargaining agreement. Aside from the fact that the Union
signed off on the preamble and section 6 of the collective bargaining
agreement months before the announcement of the change in the practice
of advancing and or crediting annual leave, the cited contractual
provisions fall short of establishing a clear and unmistakenable waiver
of the Union's right to bargain over the substance of the change in past
practice. The preamble merely makes it clearly that the provisions of
the contract are subordinate to any existing regulations absent a clear
waiver of same by either the Department or the Bureau, and section 6
merely states that leave will be earned, requested, authorized, etc., in
accordance with applicable statutes and regulations. Neither of such
provisions clearly and unmistakeably indicate a conscious waiver by the
Union of its right to bargain over the change and pursue the enforcement
of such right through the unfair labor practice charge under
consideration herein. Additionally, in the absence of any probative
evidence to the contrary, it would appear that since there was a pending
unfair labor practice which indirectly challenged the validity of the
surreptitiously amended regulation dealing with the crediting of leave
to be accrued, any agreement to be bound by the existing regulation
concerning the crediting of leave would implicitly be contingent on an
adverse ruling on the pending unfair labor practice. Accordingly, I
find that the Union neither waived its right to bargain over the change
nor is it now "estopped from complaining" about the change by virtue of
its action in executing the collective bargaining agreement.
With respect to Respondent's final defense predicated upon the
alleged absence of any showing that the change in past practice had a
"substantial impact" on the working conditions of unit employees, I find
such defense to be inapplicable herein since the issue under
consideration concerns the failure of Respondent to bargain with the
Union over the substance of the change in past practice. Additionally,
as pointed out by the Authority in Internal Revenue Service (District,
Region, National Office Unit), 13 FLRA No. 61, the test is that of
"impact" not "substantial impact." In any event, the record indicates
that a number of employees began the January 1983 leave year with no
annual leave to their credit. In such circumstances, absent a showing
of unusual circumstances or undue hardship, such employees, contrary to
a past practice, would not be able to schedule a vacation until such
time as they had accumulated the annual leave necessary for such
vacation. Accordingly, I find that the change in the leave policy
impacted on unit employees.
Having concluded that Respondent violated Sections 7116(a)(1) and (5)
of the Statute by virtue of its actions in unilaterally changing the
past practice of crediting employees at the beginning of each leave year
with the total amount of leave to be earned during the ensuing year, it
is recommended that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Statute, the Authority hereby orders that the
U.S. Department of Interior, Bureau of Reclamation, shall:
1. Cease and desist from:
(a) Unilaterally instituting a change in the past practice of
crediting employees at the beginning of each leave year with the
total amount of annual leave to be earned during the ensuing year
without first providing timely appropriate notice to, and upon
request bargaining with, the National Federation of Federal
Employees, Independent, Local 1991, the exclusive representative
of a unit of employees working in the Bureau of Reclamation's
Washington, D.C. Office.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the change in the past practice of crediting
employees at the beginning of each leave year with the total
amount of annual leave to be earned during the ensuing year.
(b) Notify the National Federation of Federal Employees,
Independent, Local 1991, the exclusive representative of a unit of
employees working in the Bureau of Reclamation's Washington, D.C.
Office, of any intention to change its past practice of crediting
employees at the beginning of each leave year with the total
amount of annual leave to be earned during the ensuing year, and
upon request, negotiate in good faith, to the extent consonant
with law and regulation, as to such change.
(c) Post at is Washington, D.C. Office copies of the attached
Notice marked Appendix, on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall
be signed by an appropriate official, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said Notices are not altered,
defaced, or covered by any other material.
Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: April 25, 1984
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER TO THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE POLICIES OF CHAPTER 71 OF
THE TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally institute a change in the past practice of
crediting employees at the beginning of each leave with the total amount
of annual leave to be earned during the ensuing year without first
providing timely appropriate notice to, and upon request bargaining
with, the National Federation of Federal Employees, Independent, Local
1991, the exclusive representative of a unit of employees working in the
Washington Office of the Bureau of Reclamation.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the change in the past practice of crediting
employees at the beginning of each leave year with the total amount of
annual leave to be earned during the ensuing year.
WE WILL give appropriate and timely notification to the National
Federation of Federal Employees, Independent, Local 1991, the exclusive
representative of a unit of employees working in the Bureau of
Reclamation's Washington, D.C. Office, of any intention to change the
past practice of crediting employees at the beginning of each leave year
with the total amount of annual leave to be earned during the ensuing
year, and upon request, negotiate in good faith, to the extent consonant
with law and regulation, as to such change.
(Agency or Activity)
DATED:
BY: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region III, whose
address is: 1111 18th Street, NW., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8456.
--------------- FOOTNOTES$ ---------------
/1/ The Authority hereby grants the General Counsel's "Motion to
Withdraw Opposition to Exceptions" and therefore finds it unnecessary to
consider the Respondent's opposition to the General Counsel's previously
filed opposition to the Respondent's exceptions.
/2/ Section 7117(a)(1) of the Statute provides 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.
/2/ 5 U.S.C. 6311(1982) provides:
The Office of Personnel Management may prescribe regulations
necessary for the administration of this subchapter.
/4/ See FPM Chapter 630, Subchapter 2-1.
/5/ See, e.g., 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 No. 126
(1984) (Union Proposal 4); National Federation of Federal Employees,
Local 1497 and Department of the Air Force, Lowry Air Force Base,
Colorado, 9 FLRA 151(1982) (Union Proposal 1); and National Treasury
Employees Union, Chapter 6 and Internal Revenue Service, New Orleans
District, 3 FLRA 748(1980).
/6/ See Department of the Interior, U.S. Geological Survey,
Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9
FLRA 543(1982), wherein the Authority determined that there was no
obligation to bargain over the decision to change a past practice so as
to conform with the requirements of law and regulation.
/7/ On March 9, 1984, the General Counsel filed a "Motion to Strike
Portions of Respondent's Brief." Respondent filed a Motion in Opposition
on March 12, 1984. Having reviewed the General Counsel's Motion and
Respondent's Motion in Opposition, I find the General Counsel's Motion
to be without merit and accordingly deny same.
/8/ The Union learned of the July 2, 1982, change in the Instruction
in June of 1983 in connection with a negotiability appeal. The amended
instruction was attached to a position paper addressed to the FLRA.
/9/ The earlier Instruction dated 5/31/62, provided as follows:
4. Advanced Annual Leave should not be advanced to an employee
during his first year of Federal Service. Thereafter employees
shall have available to them for use at any time the accumulated
annual leave to their credit, plus all annual leave that will
accrue to them during the current year. In instances where
unusual circumstances exist or undue hardship will result, this
policy may be waived for employees who have not completed the
required year of service. If this policy results in overdrawn
annual leave at the end of the leave year, the excess amount shall
be carried forward for charge against leave earned in the
following year. However, a refund may be required in any case in
which it is considered to be in the interest of the Government, or
otherwise good administrative practice.
/10/ The Department of Interior Regulation tracks the FPM, relevant
portions of which are included in the record as General Counsel's
Exhibit No. 2. FPM 630-7, Subchapter 3 entitled Annual Leave provides
in Subchapter 3-4(c) as follows: "Advancing annual leave. It is within
the discretion of each agency to grant annual leave to an employee in
advance of actual earning to the extent that leave will accrue to him
during the current leave year." Similarly, FPM Letter 630-29 dated
1/28/81, and appearing in the record also as General Counsel's Exhibit
No. 2, provides in pertinent part, as follows:
5. Advancing Leave. An employee may be advanced, at the
beginning of the leave year or at any time thereafter, such annual
leave as he or she may be expected to accrue during the leave year
. . . Approval of requests for advance leave is at the discretion
of the agencies. However, an employee may not be advanced annual
leave . . . when it is known (or reasonably expected) that the
employee will not return to duty. . . .