[ v21 p870 ]
21:0870(104)NG
The decision of the Authority follows:
21 FLRA No. 104
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3804
Union
and
FEDERAL DEPOSIT
INSURANCE CORPORATION,
MADISON REGION
Agency
Case No. 0-NG-655
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute and raises issues concerning the
negotiability of fourteen Union proposals. /1/
II. Union Proposal 1
Article 1, Section 4.
In the interest of the employee's health, the Employer agrees
to pay all costs associated with annual eye examinations, physical
examinations and all devices associated with job-related better
health, such as eye glasses, hearing aids, etc. In addition, the
Employer agrees to pay on an annual basis, the deductible cost
associated with most medical insurance programs.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable under section
7117(a)(1) of the Statute because it is inconsistent with law, 5 U.S.C.
Section 8906, and applicable Government-wide regulation, 5 C.F.R.
Section 890.501. The Agency also contends that the proposal is
nonnegotiable under section 7117(a)(2) because it conflicts with an
Agency regulation for which a compelling need exists. Finally, the
Agency contends that the proposal violates its right to determine its
organization under section 7106(a)(1). The Union disputes each of the
Agency's contentions.
B. Analysis and Conclusion
Under existing Authority precedent, we find that the proposal is
nonnegotiable for reasons other than those alleged by the Agency. In
particular, Union Proposal 1 would require the Agency to pay the cost of
various medical expenses, including but not limited to medical, eye, and
dental examinations which would also be covered by medical insurance
provided employees under chapter 89 of title 5 of the United States
Code.
Under chapter 89 of title 5 of the U.S. Code, almost all Federal
employees are eligible for health insurance, a portion of the cost of
which is paid by the Federal Government. /2/ The term "employee" as
used in chapter 89 is defined in 5 U.S.C. Section 8901 /3/ to include,
under 5 U.S.C. Section 2105, /4/ persons "appointed in the civil
service" by "the head of a Government controlled corporation." See
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
217, 218 (1981) (FDIC is a "Government corporation"). "Government
controlled corporation" is defined as a Government corporation which is
not a Government owned corporation. 5 U.S.C. Section 103(2). /5/ Under
31 U.S.C. Section 9101, the FDIC is a "mixed-ownership corporation" and
not a "wholly owned Government corporation." /6/ Therefore, the FDIC is
not a Government owned corporation, but, in terms of 5 U.S.C. Section
103, a "Governemnt controlled corporation." Compare National Treasury
Employees Union and Pension Benefit Guaranty Corporation, 9 FLRA 692
(1982), aff'd mem. sub nom. National Treasury Employees Union v. Federal
Labor Relations Authority, 711 F.2d 420 (D.C. Cir. 1983) (Pension
Benefit Guaranty Corporation is a corporation owned by the Government
under 5 U.S.C. Section 103 because it is a wholly owned Government
corporation under 31 U.S.C. Section 9101). Employees of the FDIC are
thus "employees" within the meaning of 5 U.S.C. Section 8901 who are
covered by the health insurance provisions of chapter 89. More
specifically, they are covered by the limitations in that chapter on
Government contributions to the costs of such insurance.
So interpreted, Union Proposal 1 has the same effect as Union
Proposal 17 in Fort Bragg Unit of North Carolina Association of
Educators, National Education Association and Fort Bragg Dependents
Schools, Fort Bragg, North Carolina, 12 FLRA 519, 523-26 (1983), which
would have required the agency to provide "employer-paid" medical and
dental insurance. In that case, the Authority held that the amount
which a Federal Government agency must contribute to the cost of
employee health insurance is set forth in 5 U.S.C. Section 8906 and,
therefore, is a matter which is "specifically provided for by Federal
statute" under section 7103(a)(14)(C) so as to be excluded from those
"conditions of employment" over which an agency can be required to
bargain under the Statute.
For the reasons set forth in Fort Bragg Dependents Schools, Union
Proposal 1 in this case, which similarly requires Agency contributions
to the costs of employee health insurance, is excluded from the
definition of "conditions of employment." Therefore, the proposal is
outside the duty to bargain. In view of our decision, we do not need to
decide whether the proposal is inconsistent with law, 5 U.S.C. Section
8906, whether it violates management's rights under section 7106(a)(1),
or whether the Agency has shown that it is barred from negotiation by an
Agency regulation for which a compelling need exists.
III. Union Proposal 2
Article 29, Section 30.
Personnel taking maternity leave will be allowed to take all
available leave accrued and then begin a period of up to six
months leave without pay.
A. Positions of the Parties
The Agency contends that Union Proposal 2 is nonnegotiable because it
interferes with management's right under section 7106(a)(2)(B) to assign
work and because it conflicts with an Agency regulation for which a
compelling need exists. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
Federal personnel laws and regulations contain no provision for
maternity leave as a separate type of leave. Absence from duty for
maternity reasons is a combination of sick leave, annual leave, and
leave without pay. See Federal Personnel Manual (FPM) Supplement 990-2,
chapter 630, subchapter S13-2 and 3.
Union Proposal 2 requires the Agency to grant an employee's request
for up to six months of leave without pay for maternity reasons after
such employee has used all avaialble sick and annual leave. As such,
the proposal precludes the Agency from requiring the employee to return
to work at any point during the period covered by the request, even if
the employee is able to do so and the Agency determines it has need of
the employee's services. /7/ Union Proposal 2 in this case has the same
effect as Union Proposal 4 in 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 580 (1984). The proposal at issue in that case required
that supervisors grant leave in all cases where the need is clearly
documented on thge request for leave. The Authority held, relying on
its decision in National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub
nom. National Treasury Employees Union v. Federal Labor Relations
Authority, 691 F.2d 553 (D.C. Cir. 1982), that the proposal nullified
management's ability to determine when assigned work will be performed.
The Authority found, therefore, that the proposal directly interfered
with management's right to assign work under section 7106(a)(2)(B) of
the Statute.
For the reasons set forth in the Bureau of the Public Debt and
Kirtland Air Force Base decisions, Union Proposal 2 directly interferes
with management's right to assign work under section 7106(a)(2)(B) and
is outiside the Agency's duty to bargain. /8/ In view of our decision,
we do not have to decide whether the Agency has shown that the proposal
is barred from negotiation by an Agency regulation for which a
compelling need exists.
IV. Union Proposal 3
Article 29, Section 42.
If the FOS (Field Office Supervisor) is to justify why specific
examiners are or are not to write certain jobs to the Regional
Office, the FOS is to notify the prospective EIC (Examiner In
Charge) concerned.
A. Positions of the Parties
The Agency contends that the proposal does not concern a matter
affecting conditions of employment of unit employees because it relates
to matters wholly internal to management. The Agency also contends that
the proposal violates management's right to assign work under section
7106(a)(2)(B) of the Statute. The Union disputes the Agency's
contentions and argues that the proposal is procedural in nature and
negotiable under section 7106(b)(2) and (3).
B. Analysis
1. Conditions of Employment
Contrary to the Agency's contention, we find that the proposal
concerns management's decision to assign or not assign work to
employees, which is a matter affecting conditions of employment.
2. Management Rights
Union Proposal 3 requries that an employee be notified by the field
office supervisor (FOS) whenever higher level management makes an
inquiry regarding the assignment of work to a particular employee. The
proposal, therefore, would provide an employee with information as to
internal management discussions and deliberations concerning its work
assignments.
The Authority has consistently held that the management rights
enumerated in section 7106 of the Statute encompass not only the right
to act but also the right to discuss and deliberate concerning the
relevant factors upon which decisons as to the exercise of those rights
will be made. /9/ Moreover, the Authority has held that proposals which
require union participation in such discussions and deliberations
pertaining to the exercise of management's rights are not procedures but
are a part of management's substantive decision-making process. They
would have the effect of directly interfering in management's statutory
right to make the decisions involved. See, for example, Homestead Air
Force Base, (union observers at management conferences regarding
decisions to contract out work nonnegotiable); VA Medical Center,
(union participation on committees which decide, among other things,
whether to remove probationary employees nonnegotiable); National
Federation of Federal Employees, Local 1497 and Headquarters, Lowry
Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA
565, 566-68 (1983) (Union Proposal 1) (union Participation on panel to
determine selective factors nonnegotiable).
While the cited cases concern union involvement in internal
management discussions and deliberations, and the proposal here concerns
access to those deliberations by an employee, the substantive impact on
management's decision-making is the same. In both instances, an outside
party is interjected into, and acquires knowledge of, management's
internal decision-making process. Union Proposal 3 directly interferes
with the deliberative process associated with management's right to
assign work under section 7106(a)(2)(B) of the Statute. In so holding,
we note that the Union provides no support for the conclusion, nor is it
otherwise apparent, that the proposal constitutes an "appropriate
arrangement" within the meaning of section 7106(b)(3). See National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA NO. 4 (1986), in which the Authority discussed
the approach it will take in deciding cases involving section 7106(b)(3)
of the Statute.
C. Conclusion
Union Proposal 3 directly interferes with management's right to
assign work under section 7106(a)(2)(B) and is outside the Agency's duty
to bargain.
V. Union Proposal 4
Article 29, Section 49.
Transferees should have the option of temporarily performing in
their new field office prior to making a final decision to move.
A. Positions of the Parties
The Agency contends that the proposal interferes with management's
right to assign employees under section 7106(a)(2)(A) of the Statute.
The Union contends that the proposal is a negotiable procedure under
section 7106(b)(2).
B. Analysis and Conclusion
Union Proposal 4 would provide an employee with the option of a
temporary reassignment prior to a transfer or permanent reassignment to
a different field office. Union Proposal 4 in this case has the same
effect as Union Proposal 3 in American Federation of Government
Employees, Local 1395 and Social Security Administration, Great Lakes
Program Center, Chicago, Illinois, 14 FLRA 408, 411-12 (1984). The
proposal at issue in that case provided that employees who were
performing unsatisfactorily had the option of reassignment to another
position of the same grade. The Authority held, relying on its decision
in International Organization of Masters, Mates, and Pilots and Panama
Canal Commission, 11 FLRA 115, 119-20 (1983), that by subjecting
management's decision concerning reassignment of an employee to the
control of that employee's decision to seek reassignment, the proposal
directly interfered with management's right to assign employees under
section 7106(a)(2)(A) of the Statute. Similarly, Union Proposal 4
provides employees with the right to determine whether or not they will
be transferred. The proposal, therefore, directly interferes with
management's right to assign employees under section 7106(a)(2)(A) and
is not a negotiable procedure under section 7106(b)(2).
For the reasons more fully set forth in the Authority's Panama Canal
Commission and Great Lakes Program Center decisions, Union Proposal 4 is
outside the Agency's duty to bargain. See also National Treasury
Employees Union and Internal Revenue Service, San Francisco, California,
14 FLRA 65, 71-72 (1984).
VI. Union Proposal 5
Article 29, Section 55.
It is agreed to allow travel time on Monday and Friday to
include carry over assignments.
A. Positions of the Parties
The Agency contends that the proposal is barred from negotiation by
the Agency's travel regulations, for which a compelling need exists
under section 7117(a)(2) of the Statute. The Union disputes the
Agency's contention.
B. Analysis and Conclusion
Under existing Authority precedent, we find the proposal
nonnegotiable for reasons other than those alleged by the Agency. It
appears that Union Proposal 5 is intended to permit employees an
unlimited amount of travel time to return to their residences on Friday
from a temporary assignment which is outside their normal commuting area
and, on Monday, to return to that assignment, if it has not been
completed. The proposal would grant an unlimited amount of time,
normally spent performing work, for purposes of travel.
5 U.S.C. Section 6101(b)(2) requires agencies to schedule, to the
maximum extent practicable, time spent in travel status during regularly
scheduled duty time. /10/ However, the proposal, by granting employees
a right to unlimited travel time, would prevent the Agency from
requiring employees to travel during nonduty time in those circumstances
where it was determined that travel during duty time was not
practicable, that is, where other alternatives to accomplishing a work
assignment and still scheduling travel during a portion of the workday
were not practicable.
Interpreted in this way, the proposal has the same effect as the
proposals at issue in American Federation of Government Employees,
AFL-CIO, Local 3424 and Federal Home Loan Bank Board, San Francisco,
California, 14 FLRA 79 (1984) and American Federation of Government
Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New
York District Office, 13 FLRA 446 (1983). In those decisions, the
Authority held that, by precluding management from requiring employees
to work a full workday and to travel on nonduty time where other
alternatives were not practicable, the disputed proposals directly
interfered with management's right to assign work under section
7106(a)(2)(B) of the Statute.
For the reasons set forth more fully in the Federal Home Loan Bank
Board decisions, Union Proposal 5 directly interferes with management's
right to assign work under section 7106(a)(2)(B) and is outside the
Agency's duty to bargain. In view of our decision, we do not have to
decide whether the Agency has shown that the proposal is barred from
negotiation by an Agency regulation for which a compelling need exists.
VII. Union Proposal 7
Article 29, Section 67.
When employees commute to and from their residence and are out
over 10-hours they will receive $8.00 plus mileage and other
expenses.
A. Positions of the Parties
The AgencyS sole contention is that the proposal is barred from
negotiation by a provision of its travel regulations for which a
compelling need exists. The Union disputes the Agency's contention.
B. Analysis and Conclusion
As a "Government controlled corporation" the FDIC is not subject to
statutory and regulatory provisions governing travel on official
business for the Government. 5 U.S.C. Section 5701. Consequently,
Agency policies regarding such travel are established by internal
regulations. The internal regulation relied on by the Agency to bar
Union Proposal 7 is Federal Deposit Insurance Corporation General Travel
Regulations (FDIC GTRs), paragraph 1205(a). /11/ The regulation
establishes the criteria which the Agency uses to determine whether to
compensate employees whose duties on any given day require a commute
which is significantly longer than normal. The Agency argues that the
proposal, by shortening the time period to an amount close to that which
would be required for commuting to and from work, negates the intent of
its regulation to compensate employees whose commute, due to unusual
circumstances, requires an inordinate amount of time. In support for
this regulatory policy, the Agency contends that it is essential for
there to be Agency-wide uniformity on this matter so as to provide
equitable treatment for its employees.
The compelling need provisions of the Statute are meant to insure
that otherwise negotiable bargaining proposals are taken outside the
duty to bargain only if the agency involved demonstrates and justifies
an overriding need for the policies reflected in the rules or
regulations to be uniformly applied throughout the agency. American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 220
(1981). Therefore, 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 standards set
forth in section 2424.11 of its Regulations. 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). Generalized and conclusionary reasoning is not enough to
support a finding of compelling need. The Authority is not in a
position on its own to determine the purposes Agency regulations are
designed to achieve or the importance the Agency attaches to those
regulations. Unless the Agency provides us with facts and arguments
bearing on each of these questions, we cannot judge the validity of the
Agency's contentions. /12/
In this case, the Agency has failed to indicate on which of the
Authority's compelling need criteria it relies and makes no attempt to
demonstrate that the cited regulation meets the requirements of those
criteria. The Agency has merely made general statements as to how
important its regulation is. The Authority does not have in the record
before it, therefore, the facts and arguments which permit it to make a
reasoned judgment on the Agency's claims. The Agency has not met its
burden and its claim of compelling need cannot be sustained.
The Agency has not shown that Union Proposal 7 is barred by an Agency
regulation for which a compelling need exists and, therefore, the
proposal is within the Agency's duty to bargain. /13/
VIII. Union Proposal 8
Article 29, Section 66.
In order to bring the employees on an equal basis with the
employees of the U.S. Postal Service, the Employer agrees that all
within grade increases will be on an annual basis and the present
practice of 2 and 3 year intervals be discontinued.
A. Positions of the Parties.
The Agency contends that the proposal is nonnegotiable under section
7117(a)(1) of the Statute because it is inconsistent with a
Government-wide regulation, Federal Personnel Manual, chapter 531,
subchapter 4, paragraph 4-7. The Agency also contends that the proposal
is barred from negotiation by an Agency regulation for which a
compelling need exists. The Union disputes the Agency's contentions.
B. Analysis
1. Inconsistent with Government-wide Regulation
Union Proposal 8 would eliminate the waiting period for within-grade
increases at steps 5 through 10 of each grade of the Federal Deposit
Insurance Corporation pay schedule. For employees covered by the
Federal General Schedule pay system the waiting periods for within-grade
increases of steps 5 through 10 of each grade are mandated by law, 5
U.S.C. Section 5335(a) /14/ and Government-wide regulation, 5 C.F.R.
Section 531.405. /15/ The FDIC, however, is a "Government controlled
corporation" within the meaning of 5 U.S.C. Section 103(2). See Union
Proposal 1 above. Under 5 U.S.C. Section 5331(a) /16/ and 5 U.S.C.
Section 5102(a)(1)(i), /17/ therefore, employees of the FDIC are not
covered by the General Schedule pay system and, in particular, are not
subject to the statutory and regulatory provisions as to waiting periods
for within-grade increases. See National Treasury Employees Union,
Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C.,
14 FLRA 598, 610 (1984) (Member Haughton dissenting), appeal docketed
sub nom. National Treasury Employees Union v. Federal Labor Relations
Authority, No. 84-1286 (D.C. Cir. July 6, 1984) (Decision on Remand, 21
FLRA No. 36 (1986). Thus, the proposal is not outside the duty to
bargain because it is inconsistent with a Government-wide regulation.
The regulation in question does not apply to FDIC employees and the
decision of the FDIC to follow the regulatory provisions establishing
waiting periods for within-grade increases does not bring its employees
within the coverage of those regulations.
2. Compelling Need
Based on the record, it appears that the Agency, in its own internal
regulations, has promulgated the same requirements as to waiting periods
for a within-grade increase as are set forth in 5 C.F.R. Section
531.405. /18/ The Agency claims that a "compelling need" exists for
this regulation specifically citing only section 2424.11(c) of the
Authority's Rules and Regulations. /19/ As indicated above, the FDIC
employees are not subject to statutory and regulatory requirements as to
waiting periods for within-grade increases. The Agency's internal
regulation, therefore, does not implement a nondiscretionary mandate of
that law or regulatory authority, as the Agency claims. For this
reason, the Agency regulation cannot serve as a bar to negotiation on
the disputed proposal under section 2424.11(c) of the Authority's Rules
and Regulations.
The Agency also contends that a compelling need exists for the cited
regulation because it establishes a uniform policy regarding
within-grade increases which is essential for fairness and the
maintenance of employee morale. However, the Agency does not
specifically reference either one of the other compelling need criteria
set forth in section 2424.11(a) and (b) of the Authority's Rules and
Regulations. Nor does the Agency advance any specific arguments as to
how the cited Agency regulation meets the requirements of those
criteria. The Agency has provided none of the facts and arguments which
we would need in order to judge the validity of its contentions. See
our discussion of Union Proposal 7 in this case. Since the Agency has
provided no support for this additional compelling need contention, that
contention cannot be sustained, and the cited Agency regulation does not
provide a bar to negotiation on Union Proposal 8 herein. See American
Federation of Government Employees, AFL-CIO, Local 1928 and Department
of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2
FLRA 451 (1980). Compare National Treasury Employees Union, Chapter 207
and Federal Deposit Insurance Corporation, Washington, D.C., 14 FLRA
598, 610-12 (1984) (Member Haughton dissenting), appeal docketed sub
nom. National Treasury Employees Union v. Federal Labor Relations
Authority, No. 84-1286 (D.C. Cir. July 6, 1984), (Decision on Remand, 21
FLRA No. 36 (1986)) (the Authority found that the agency had
demonstrated that its regulation established uniform pay practices which
were essential to the accomplishment of the Agency's mission in a manner
consistent with the requirements of an effective and efficient
government).
C. Conclusion
Union Proposal 8 is not inconsistent with an applicable
Government-wide regulation. Nor has the Agency shown that the proposal
is barred from negotiation by an Agency regulation for which a
compelling need exists. The proposal, therefore, is within the Agency's
duty to bargain.
In reaching this conclusion we note that the proposal does not
concern the amount of the increase in salary which an employee will
receive with each step increase. Rather, the proposal only concerns the
timing of an employee's step increase. For this reason, the proposal
does not involve issues concerning the negotiability of wages in the
Federal sector.
IX. Union Proposal 9
Article 27, Section 1.
Management adopt a work schedule which incorporates the
principle of flexitime which would provide for a nine hour work
day for eight (8) days. The ninth work day would consist of an
eight (8) hour work day.
Article 27, Section 2.
By providing for a nine-hour work day as set forth in Section 1
of this Article, every other week would consist of a four day work
week.
A. Position of the Parties
The Agency contends that the proposal is nonnegotiable under section
7117(a)(1) because it is inconsistent with law. The Agency also
contends that the proposal is barred from negotiation by Agency
regulations for which a compelling need exists. Finally, the Agency
argues that the proposal concerns the methods and means of performing
its work and is negotiable only at its election under section
7106(b)(1). The Union disputes the Agency's contentions.
B. Analysis
1. Inconsistent with Federal Law
Union Proposal 9 concerns the compressed work schedule know as
"5-4-9", that is, a 9-hour, 5-day workweek followed by an approximately
9-hour day, 4-day workweek. During the pendency of the appeal in this
case, the Federal Employees Flexible and Compressed Work Schedules Act
of 1982, Pub. L. 97-221, 96 Stat. 227, took effect. /20/ That Act, as
indicated both by its terms /21/ and by its legislative history, /22/
clearly contemplates the negotiation of such compressed work schedules.
2. Compelling Need
The Agency contends that its regulation pertaining to hours of work
and tours of duty, and a related statement of policy which precludes
alternative work schedules such as flexitime, are essential to the
accomplishment of the mission or the execution of the functions of the
Agency in a manner which is consistent with the requirements of an
effective and efficient government within the meaning of section
2424.11(a) of the Authority's Rules and Regulations. Specifically, the
Agency argues that its regulation setting specific limits on hours and
tours of duty, /23/ which is reinforced by its policy disfavoring
alternate work schedules, /24/ is essential to the accomplishment of the
Agency's bank examining function because it facilitates the access of
examiners to member banks during the operating hours of those banks.
However, the Agency has produced no evidence that its employees are
unable to have access to bank offices for more than eight hours a day.
Moreover, the Agency has not shown that the work of all, or even a
significant portion, of unit employees requires that they have such
access to banks, or that all their work, or a significant part thereof,
must be performed on site in the banks. Even assuming employees have
limited access to banks, the Agency has not shown that it would be
prevented from accomplishing its mission in an efficient and effective
manner if it were unable to require unit employees to work five 8-hour
days per workweek, since it has not shown what portion of the unit would
be subject to such limited access or what portion of unit employees'
work is constituted of on-site examination of bank records. There is
thus no basis in the record for concluding that, should the Agency agree
to afford unit employees the opportunity to participate in an
alternative work schedule such as the "5-4-9," it would have any
detrimental effect on the Agency's productivity. We also find that
neither the language of the proposal nor the record in the case suggest
that the proposal is intended to require that unit employees work a
"5-4-9" compressed schedule. Nor is the proposal intended to preclude
the Agency from requiring employees to work five 8-hour days when that
is necessary to accomplish the Agency's mission, or to give employees
the right to refuse to appear for work when ordered to do so. See
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 14 FLRA 6, 7-8 (1984);
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
Laboratory, Florida, 5 FLRA 441, 447-49 (1981). It must be determined,
therefore, that the Agency has not shown that the cited regulations and
policy are supported by a compelling need.
Under the Federal Employees Flexible and Compressed Work Schedules
Act of 1982, 5 U.S.C. Section 6131, the Federal Service Impasses Panel
(FSIP) has the responsibility of settling impasses with respect to
agency claims that proposed alternate work schedules would have an
"adverse agency impact." In subsequent negotiations on Union Proposal 9
the Agency may decide not to establish the proposed "5-4-9" compressed
schedule because it would have such an adverse impact. We express no
opinion as to whether, should the matter be referred to the FSIP, a
finding of an "adverse agency impact" would be justified so as to
preclude adoption of Union Proposal 9. We decide only that the Agency
has not shown that a compelling need exists for its regulation
establishing hours and tours of duty to bar negotiation on the proposal.
3. Management Rights
For the reasons stated in National Marine Fisheries Service, cited
above, we hold that the proposal for a compressed work schedule does not
concern the methods and means of performing work within the meaning of
section 7106(b)(1).
C. Conclusion
Union Proposal 9 is not inconsistent with Federal law or management's
rights under section 7106(b)(1) of the Statute. Nor has the Agency
shown that the proposal is barred from negotiation by an Agency
regulation for which a compelling need exists. The proposal, therefore,
is within the Agency's duty to bargain.
X. Union Proposal 10
Article 29, Section 1.
Each employee be given the option of having the Employer
provide leased automobiles for their business use.
A. Positions of the Parties
The Agency contends that the proposal violates its right to determine
its budget under section 7106(a)(1) and its right to determine the
methods and means of performing its work under section 7106(b)(1). The
Agency also contends that the proposal is barred from negotiation by its
internal regulations concerning delegations of authority for which a
compelling need exists. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
Union Proposal 10 requires the Agency to lease automobiles for
employees to use, primarily for transportation to bank examining
assignments. As a necessary part of carrying out its mission to protect
the deposits made by the public in member banks, the FDIC undertakes
periodic examinations of the financial status of those banks. Many of
the banks are outside the commuting area of examiners' duty stations and
residences. Frequent travel is thus a necessary aspect of accomplishing
examining assignments. The decision regarding transportation to and
from such assignments concerns the means to be used to accomplish the
Agency's work. National Treasury Employees Union and U.S. Customs
Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979).
Management is not required to bargain over a particular "means" of
performing its examining assignments. See also American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA
384 (1980) (Union Proposal I); American Federation of Government
Employees, AFL-CIO, National Immigration & Naturalization Service
Council and U.S. Department of Justice, Immigration & Naturalization
Service, 8 FLRA 347, 349-51 (1982) (Union Proposal 2).
Union Proposal 10 concerns a matter which is subject to bargaining at
the election of the Agency under section 7106(b)(1). Since the Agency
has elected not to bargain, it is not within its duty to bargain under
the Statute. In view of our decision, we do not have to decied whether
the proposal violates management's right to determine its budget or
whether the Agency has shown that the proposal is barred by an Agency
regulation for which a compelling need exists.
XI. Union Proposal 11
Article 29, Section 2.
Any and all changes, proposed or otherwise, to the Travel
Regulations is (sic) subject to collective bargaining between the
Employer and the Union.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it
conflicts with an Agency regulation concerning approval of changes in
travel regulations for which a comprelling need exists. The Agency also
contends that the proposal concerns the technology, methods and means of
performing its work, a matter which is negotiable only at its election
under section 7106(b)(1). The Union disputes the Agency's contentions,
arguing that the proposal requires nothing which is not already provided
for under the Statute.
B. Analysis
1. Compelling Need
As a "Government controlled corporation" the FDIC is not subject to
the statutory and regulatory provisions governing travel on official
business for the Government. 5 U.S.C. Section 5701. See also Union
Proposal 7 above. Consequently, Agency policies regarding such travel
are established by internal Agency regulation. Compare American
Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home
Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Union
Proposal 1) (where employees covered under Federal Travel Regulations,
proposal designating employee's residence as his or her official duty
station inconsistent with those Government-wide regulations).
Union Proposal 11 requires that the Agency notify the Union when it
decides to change its travel regulations and provide the Union an
opportunity to negotiate on the application of those regulations to the
bargaining unit. The proposal constitutes a procedure which has the
effect of reopening the parties' negotiated agreement to allow for
limited bargaining. Nothing in the language of the proposal or the
record of this case suggests that the proposal is intended to authorize
the exclusive representative at the local level to negotiate over the
substance of Agency-wide travel policy. /25/
In requiring the Agency to negotiate on the application of proposed
changes in internal travel regulations to bargaining unit employees the
proposal requires nothing which is not also required by law. Under
section 7117, matters covered by agency regulations are subject to the
duty to bargain unless the regulations are supported by a compelling
need. Of course, any negotiation on proposed changes in such
regulations must concern matters which affect the conditions of
employment of unit employees and are otherwise consistent with law and
regulation. Compare American Federation of Government Employees,
AFL-CIO, International Counsil of U.S. Marshals Service Locals and
Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Union
Proposal 5) (proposal to negotiate supplemental agreements at the local
level concerning specific matters not inconsistent with law). The
record does not indicate that the Union proposed a blanket waiver of the
Agency's right to assert a compelling need in connection with any
proposed changes in its travel regulations. The Union states, in this
regard, that the "appropriate time" to raise questions of compelling
need "is during individual negotiations on specific changes." The
proposal here would not foreclose the Agency from contesting the
negotiability of any Union proposal during future negotiations relating
to specific changes in the Agency's travel regulations.
As to the Agency's allegation that a compelling need exists for its
regulation regarding the delegation of authority to change the Agency's
travel regulations, the proposal, as discussed above, does not authorize
the Union to negotiate changes in these travel regulations. Moreover,
as stated with respect to Proposal 1, an agency cannot restrict
bargaining on an otherwise negotiable matter by refusing to delegate
authority over the matter to the level of recognition.
Further, the Agency's claim that a compelling need exists for
uniformity in its travel regulations because such uniformity is
"essential" to prevent "administrative chaos" is wholly unsupported in
the record. The Agency has provided none of the facts and arguments
which we would need in order to judge the validity of its contentions.
See our discussion of Union Proposal 7 in this case. Consequently, the
Agency has failed to meet its burden of demonstrating that its travel
regulations meet any of the criteria set forth in section 2424.11 of the
Authority's Rules and Regulations. None of those regulations can,
therefore, in the circumstances of this case, bar negotiation of the
Union proposal. See American Federation of Government Employees,
AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development
Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). See also American
Federation of Government Employees, Local 3488 and Federal Deposit
Insurance Corporation, 12 FLRA 532 (1983) (Union Proposal 4).
2. Management Rights
The Agency's allegation that Union Proposal 11 concerns matters
pertaining to the "technology, methods, and means" of performing the
Agency's work is without any support whatsoever in the record. The
Agency has not established that merely providing for a contract reopener
as to travel regulations in and of itself has any technological
realtionship to accomplishing or furthering the Agency's work or
involves the methods and means of such work performance. The mere
possibility that Union Proposal 5 might concern such matters is not
enough to render this proposal nonnegotiable. See American Federation
of Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA
672 (1983) (Union Proposal 5). Thus, there is no basis upon which to
conclude that the proposal concerns the technology, methods and means of
performing work, which are negotiable only at the election of the Agency
under section 7106(b)(1). See Federal Deposit Insurance Corporation,
supra.
C. Conclusion
The Agency has not shown that Union Proposal 11 is barred from
negotiations by an Agency regulation for which a compelling need exists.
Nor does the proposal concern a matter which is negotiable only at the
election of the Agency under section 7106(b)(1). The proposal is
therefore within the Agency's duty to bargain.
XII. Union Proposal 13
Article 29, Section 27.
Regional staffing of teaching assignments at the FDIC training
center shall be for a period not to exceed two years in duration
to enable those desiring to teach the opportunity to do so.
A. Positions of the Parties
The Agency contends that the proposal violates management's right to
assign work under section 7106(a)(2)(B). The Union claims that the
proposal is a negotiable procedure under section 7106(b)(2) and (3).
B. Analysis and Conclusion
The record in this case is unclear as to whether the proposal
involves the assignment of unit employees to teaching positions at the
FDIC Training Center or concerns the assignment to employees of teaching
duties at the Center. However, regardless of whether the proposal
concerns assignment of employees to teaching positions and thus involves
management's right to assign employees to positions in the Agency under
section 7106(a)(2)(A), or concerns the assignment of teaching duties and
thus involves management's right to assign work under section
7106(a)(2)(B), it in either instance restricts management's
determination of the duration of such assignments. The proposal
prescribes a maximum length for such assignments of two years. If the
proposal concerns the assignment of employees to positions, it has the
same effect as Paragraph (3) of Union Provision II in American
Federation of Government Employees, AFL-CIO, Local 916 and Tinker Air
Force Base, Oklahoma, 7 FLRA 292 (1981). In that case, the Authority
held that a proposal restricting certain temporary assignments to a
maximum of 60 days directly interfered with management's right, under
section 7106(a)(2)(A), to assign employees in the agency by restricting
management's right to determine the duration of an assignment. On the
other hand, if the proposal concerns work assignments, it has the same
effect as Union Proposals I and II in National Association of Air
Traffic Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588 (1981). In that case, the Authority held,
relying on its decision in International Association of Fire Fighters,
Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980), that a
proposal limiting the duration of assigned training directly interfered
with management's right to assign work under section 7106(a)(2)(B) of
the Statute. Therefore, whether Union Proposal 13 concerns assignment
to teaching positions or assignment of teaching duties, for the reasons
set forth in the Tinker Air Force Base, Federal Aviation Administration,
and Philadelphia Naval Shipyard decisions, it directly interferes with
the substantive exercise of management's rights under section 7106(a)(2)
of the Statute. In so holding, we note that the Union provides no
support for its conclusion, nor is any otherwise apparent, that the
proposal constitutes an "appropriate arrangement" within the meaning of
section 7106(b)(3).
Union Proposal 13 directly interferes with management's right to
assign employees under section 7106(a)(2)(A) and to assign work under
section 7106(a)(2)(B). It is, therefore, outside the Agency's duty to
bargain.
XIII. Union Proposal 14
Article 29, Section 33.
The part-time policy shall be extended to all personnel with a
legitimate reason, including education, with no time limit
constraints.
A. Positions of the Parties
The Agency contends only that a compelling need exists for its
regulations concerning part-time employment to bar negotiations on the
proposal. The Union disputes the Agency's contention, contending that
it does not intend its proposal to require the Agency to grant an
employee's request.
B. Analysis and Conclusion
Under existing Authority precedent, we find the proposal
nonnegotiable for reasons other than those alleged by the Agency. The
Agency's part-time policy is to make part-time positions available to
employees under limited circumstances. /26/ The proposal would extend
the circumstances under which the policy would apply to any employee
with a "legitimate reason." The Authority interprets the proposal as
preventing the Agency from denying an employee's request if the employee
has a legitimate reason. The Agency would not have the authority to put
any time limit constraints on its decision to grant an employee's
request for part-time status. As a result, the effect of the proposal
would be to limit the Agency's ability to require an employee to return
to work when it determines there is a need for the employee's services
on a full-time basis. The length of time an employee could remain in
part-time status would depend on the decision of the employee without
consideration of the Agency's need to perform its work. The proposal,
therefore, has the same effect as Union Proposal 1 in National
Federation of Federal Employees, Local 15 and U.S. Army Armament
Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA
No. 6 (1985). The proposal in that case required the Agency to grant an
employee's request for leave without pay (LWOP) if the employee met the
criteria set forth in the proposal. Relying on our decision in American
Federation of Government Employees, AFL-CIO, Local 2263 and Deaprtment
of the Air Force, Headquarters, 160th Air Base Wing (MAC), Kirtland Air
Force Base, New Mexico, 15 FLRA 580 (1984), we held the proposal
nonnegotiable under section 7106(a)(2)(B) because it would require the
agency to grant an employee's request for leave without pay regardless
of the need for the employee's services during the period of the
request. The proposal in this case, involving requests for part-time
status, as opposed to requests for leave without pay, restricts the
Agency's ability to determine when assigned work will be performed.
For the reason set forth in the Rock Island Arsenal and Kirtland Air
Force Base decisions, we find that Union Proposal 14 directly interferes
with management's right to assign work under section 7106(a)(2)(B) and
is outside the AgencyS duty to bargain. In view of our decision, we do
not have to decide whether the Agency has shown that the proposal would
be barred from negotiation by an Agency regulation for which a
compelling need exists.
XIV. Union Proposal 15
Article 29, Section 71.
Each employee of the bargaining unit will receive eight (8)
days (personal days) of official time to use at their discretion.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable under section
7117(a)(1) of the Statute because it is inconsistent with a
Government-wide regulation. The Agency also argues that the proposal is
barred from negotiation by the Agency's leave regulations for which a
compelling need exists. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
Union Proposal 15 provides for eight (8) days of "official time" to
be used for "personal" business which cannot be taken care of while an
employee is in a travel status. The proposal is stated in terms of
"official time," a phrase employed in the Statute to mean absence from
duty without charge to leave or loss of pay for employees performing
union representational activities. It is clear from the context and
based on Union statements in the record that the proposal concerns
"administrative leave," which is a term used to refer generally to
absence from duty administratively authorized without charge to leave or
loss of pay. The Authority adopts this interpretation for purposes of
this decision.
It is well established that, under the Statute, an agency must
negotiate with an exclusive representative on matters concerning
conditions of employment of unit employees within its discretion to the
extent consistent with law and regulation. /27/ As to the subject
matter of the instant proposal, the Authority has consistently construed
those portions of the Federal Personnel Manual (FPM) concerned with
"excused absence" or "administrative leave" /28/ as providing that "the
head of an agency has discretion to grant administrative leave to
employees of the agency in certain situations for brief periods of
time."
(Underscoring in original; footnote omitted.) /29/ The first issue
in this case is whether the administrative leave provided for in the
Union's proposal exceeds the limitations on agency discretion imposed by
the provisions of the FPM, so as to be inconsistent therewith. The
second issue is whether those provisions of the FPM constitute
Government-wide regulations under section 7117(a)(1) of the Statute.
We turn first to the issue of whether eight (8) days of
administrative leave for personal business is outside the scope of an
agency's permissible discretion under the FPM. The Office of the
Comptroller General has considered a variety of situations involving
grants of administrative leave and, in determining whether such grants
are appropriate, interprets the applicable provisions of the FPM as
limiting an agency to authorizing only brief periods of absence from
duty. See, for example, 54 Comp. Gen. 706, 708 (1975).
Moreover, the Comptroller General has emphasized that while it is not
necessarily a determinative consideration in connection with most
circumstances involving a brief absence, a grant of administrative leave
for an extended period of time is not appropriate unless it is in
furtherance of an agency function. /30/ See, for example, 61 Comp. Gen.
652 (1982). As the Comptroller General interprets the FPM, therefore,
in determining whether a grant of administrative leave is appropriate,
the crucial considerations are, depending on the circumstances involved,
the length of time authorized and the purpose for which that time is to
be used. In weighing those considerations in particular cases, the
Comptroller General has approved agency grants of approximately five (5)
hours of administrative leave for an employee to rest after prolonged
and difficult travel, 55 Comp. Gen. 510 (1975), and eight (8) hours for
an employee to locate suitable housing in connection with an extended
temporary assignment, Comptroller General Decision B-192258 (September
25, 1978), both of which were work-related situations. The Authority
has also found negotiable a proposal which would have required
authorization of a maximum of thirty (30) minutes of administrative
leave per pay period for tardiness (that is, a maximum of 13 hours a
year). /31/ National Labor Relations Board, Region 5, supra.
Conversely, the Comptroller General has held that a grant of
administrative leave for excess travel time is inappropriate where the
excess time taken is attributable to an employee's delay for personal
reasons or as a matter of personal convenience. 56 Comp. Gen. 865,
868-69 (1977). Moreover, the Comptroller General refused to question an
agency's denial of eight (8) hours of administrative leave to an
employee who, as the elected chief of a local all volunteer fire
department, participated in fighting a fire and was absent from duty for
that amount of time. 54 Comp. Gen. 706 (1974). In another case, the
Comptroller General refused to restore to an employee's annual leave
account five (5) days of annual leave which was charged after a previous
grant of administrative leave, to represent his installation in a chess
tournament, was later denied. Comptroller General Decision B-176020
(August 4, 1972). /32/
Based upon the foregoing Comptroller General interpretations of FPM
Supplement 990-2, chapter 630, subchapter S11-5, it does not appear that
a blanket authorization of eight (8) days for personal business, without
consideration of the specific circumstances of each case, constitutes a
brief period of absence from duty for appropriate reasons which is
within the Agency's discretion to grant. In thus exceeding the limits
of an appropriate exercise of discretion under the FPM, Union Proposal
15 is inconsistent therewith within the meaning of section 7117(a)(1).
The remaining issue is whether the provisions of FPM Supplement
990-2, chapter 630, subchapter S11-5 constitute Government-wide rules or
regulations within the meaning of the Statute. If so, those provisions
would bar negotiations of Union Proposal 15. In National Federation of
Federal Employees, Local 1497 and Department of the Air Force, Lowry Air
Force Base, Colorado, 9 FLRA 151, 154-5 (1982), the Authority, relying
on its decision in National Treasury Employees Union, Chapter 6 and
Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980),
determined that chapter 511, subchapter 4-3.b. of the FPM was a
Government-wide regulation within the meaning of section 7117(a)(1)
because it applies to Federal civilian employees in the executive,
legislative and judicial branches of the Government and thus is
generally applicable to the Federal civilian work force. The provisions
of FPM Supplement 990-2, chapter 630, subchapter S11-5 at issue in this
case apply to a substantial portion of the civilian employees of the
executive and judicial branches of the Federal Government. 5 U.S.C.
Sections 6301(2)(A), 6311. 5 C.F.R. Section 630.201(b)(4). See also
Crain v. U.S., 77 F. Supp. 505 (D.C. Ill. 1948). Those provisions are
likewise generally applicable to the Federal civilian work force so as
to be "Government-wide" within the meaning of section 7117(a)(1).
As to whether FPM Supplement 990-2, chapter 630, subchapter S11-5
constitutes a "rule or regulation" within the meaning of section
7117(a)(1), the Authority determined in Lowry Ari Force Base that the
term was not intended to refer only to those rules and regulations which
met formal requirements as to notice and comment, see, for example, 5
U.S.C. Section 553. The term also includes official declarations of
policy which are binding on the officials and agencies to which they
apply. Concerning FPM Supplement 990-2, chapter 630, subchapter S11-5,
which is issued by the Office of Personnel Management (OPM), OPM is
statutorily empowered to regulate the leave system governing Federal
employment, 5 U.S.C. Section 6311. The requirements as to excused
absence which are set forth in subchapter S11-5 constitute its
determination of the policies necessary to implement that system.
Moreover, the fact that the provisions of subchapter S11-5 are
enforceable by the Comptroller General against the officials and
agencies to which they apply leads us to conclude that they are binding
on those officials and agencies. The Authority finds, therefore, that
FPM Supplement 990-2, chapter 630, subchapter S11-5 regarding an
agency's limited discretion to authorize administrative leave is a
Government-wide rule or regulation.
Union Proposal 15 is outside the Agency's duty to bargain under
section 7117(a)(1) because it is inconsistent with an applicable
Government-wide regulation. In view of our decision, we do not have to
decide whether the Agency has shown that the proposal is barred from
negotiation by an Agency regulation for which a compelling need exists.
XV. Union Proposal 16
Article 3, Section 7
Only officers of the Union will be granted official time and
expenses per the Employer's General Travel Regulations to
participate in all business (excluding internal union business) in
the Union's other bargaining unit (Chicago Region of the
Employer).
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable under section
7117(a)(1) because it is inconsistent with Federal law. The Union
disputes the Agency's contention.
B. Analysis and Conclusion
Union Proposal 16 requires the Agency to negotiate on official time
for Union officers who are members of the Madison Region to represent
the Union in the separate Chicago Region unit. On May 31, 1985, another
union was certified as exclusive representative for the employees in the
Chicago Region. Consequently, the Union which is party to the petition
herein is no longer the exclusive representative of the Chicago unit.
/33/ There is no bargaining relationship between the Agency and the
Union with respect to the Chicago Region unit and no obligation on the
part of the Agency to bargain with the Union which filed the petition in
this case with respect to its representation of the Chicago Region unit.
Therefore, issues as to the scope of bargaining as it pertains to that
unit are not appropriate for resolution by the Authority. See Overseas
Education Association and Department of Defense, Office of Dependents
Schools, Alexandria, Virginia, 7 FLRA 84 (9181).
We conclude that the negotiability issues raised by Union Proposal
16, insofar as they relate to the Chicago Region unit, have been
rendered moot by the issuance of the certification of exclusive
representation in Case No. 5-RO-50005. See American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, 18 FLRA NO. 90 (1985).
XVI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the appeal as to Union Proposals 1-5,
10, and 13-16 be, and it hereby is, dismissed. IT IS FURTHER ORDERED
that the Agency shall upon request, or as otherwise agreed to by the
parties, bargain on Union Proposals 7, 8, 9, and 11. /34/
Issued, Washington, D.C., May 19, 1986.
/s/Jerry L. Calhoun, Chairman
/s/Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union has withdrawn two proposals from its appeal in this
case: Proposal 6, concerning the filing of financial statements by
employees' spouses, and Proposal 12, concerning employees' evaluations
of their supervisors. Union Reply to Agency Statement of Position at 4.
These proposals will not be considered further here.
(2) For the text of 5 U.S.C. Section 8906 see the Appendix to this
decision.
(3) For the text of 5 U.S.C. Section 8901(1)(A) see the Appendix.
(4) For the text of 5 U.S.C. Section 2105(a)(1)(E) see the Appendix.
(5) For the text of 5 U.S.C. Section 103 see the Appendix.
(6) For the text of 31 U.S.C. Section 9101 see the Appendix.
(7) For policies governing employee requests for, and employee return
to work following, maternity leave, see FPM Supplement 990-2, chap. 630,
subchap. S13-4.a. and 5.a.
(8) An agency's determination as to the amount of leave to grant an
employee for maternity reasons is subject to applicable law and
regulation. See FPM Supplement 990-2, chap. 630, subchap. S13-3 and 6.
(9) National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 579-81 (1981),
enforced sub nom. National Federation of Federal Employees v. Federal
Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982); National
Federation of Federal Employees, Local 1431 and Veterans Administration
Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982).
(10) 5 U.S.C. Section 6101(b)(2) provides:
Section 6101. Basic 40-hour workweek; work schedules; regulations
(b)(2) To the maximum extent practicable, the head of an agency shall
schedule the time to be spent by an employee in a travel status away
from his official duty station within the regularly scheduled workweek
of the employee.
See also 5 C.F.R. Section 610.123 and Federal Deposit Insurance
Corporation General Travel Regulations, paragraph 1208(a), which
authorizes up to two hours for travel on Friday and Monday in
circumstances involving "carry over assignments."
(11) FDIC GTRs, paragraph 1205(a) provides in part:
a. Commuting. Reimbursement in connection with travel of 24
hours or less, when lodging is not required, will be claimed on
the basis of subsistence plus transportation. Subsistence is
reimbursable at $8.00 for any day on which official duty requires
both of the following:
(1) Absence from residence exceeding 11 hours
(2) Return to residence after 6:00 p.m.
Transportation includes actual cost of public transportation
and/or mileage at the prescribed rate, tolls, and parking costs.
(Emphasis in original.)
(12) See also National Federation of Federal Employees, Local 1167 v.
Federal Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982),
affirming National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981).
(13) Our decision with respect to Union Proposal 7 does not mean that
we would not, in different circumstances, find that a compelling need
exists for this regulation. Of course, at the Authority has
consistently stated, see note 34 infra, our determination that a
proposal is negotiable is not a judgment on the merits of that proposal.
(14) For the text of 5 U.S.C. Section 5335(a) see the Appendix.
(15) For the text of 5 C.F.R. Section 531.405(a)(1) see the Appendix.
(16) For the text of 5 U.S.C. Section 5331(a) see the Appendix.
(17) For the text of 5 U.S.C. Section 5102(a)(1)(i) see the Appendix.
(18) FDIC Within-Grade Increases Policy, subchapter 1-4. See Agency
Statement of Position at Exhibit M.
(19) For the text of section 2424.11(c) of the Authority's Rules and
Regulations see the Appendix.
(20) The Federal Employees Flexible and Compressed Work Schedules Act
of 1982 applies to employees of FDIC. See 5 U.S.C. Section 6121(2) and
5 U.S.C. Section 2105. See also the discussion of Union Proposal 1
above at note 3 and following. As originally enacted into law, the Act
provided only temporary authority for the establishment of flexible and
compressed work schedules. That authority was to have expired in July
1985. Since that date, Pub. L. 99-196 Stat. 1350 was enacted, which
made the authority permanent.
(21) 5 U.S.C. Section 6127 provides:
Section 6127. Compressed schedules; agencies authorized to use
(a) Notwithstanding section 6101 of this title, each agency may
establish programs which use a 4-day workweek or other compressed
schedule.
See also 5 U.S.C. Sections 6121(5), 6130.
(22) For the text of S. REP. No. 97-365 see the Appendix.
(23) FDIC Circular 2100.1 (April 3, 1978) ("FDIC Hours and Tours of
Duty"), paragraph 2.B. states, in part, as to Regional Office employees,
that "(t)ours of duty for full-time employees will consist of an eight
hour work day, exclusive of the lunch period." See also Agency Statement
of Position at 22 and Exhibit N.
(24) FDIC Memorandum (May 31, 1979) ("Flextime"). Agency Statement
of Position at Exhibit O.
(25) Even absent a contractual reopener such as is proposed here, the
Agency would be obligated to notify the Union and Provide the Union an
opportunity to negotiate as appropriate regarding any proposed
mid-contract changes in travel regulations which affect employee working
conditions. See Department of the Air Force, Scott Air Force Base,
Illinois and National Association of Government Employees, Local R7-23,
5 FLRA 9 (1981).
(26) Federal Deposit Insurance Corporation Memorandum on Part-Time
Employment Policy, EX-02-80 (August 7, 1980). See Agency Statement of
Position at Exhibit R.
(27) International Federation of Professional and Technical
Engineers, AFL-CIO, NASA Headquarters Professional Association and
National Aeronautics and Space Administration, Headquarters, Washington,
D.C., 8 FLRA 212, 215 (1982); National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA
748, 759-62 (1980).
(28) Federal Personnel Manual, Chap. 630, subchap. 11-5. FPM
Supplement 990-2, chap. 630, subchap. S11-5.
(29) Long Beach Naval Shipyard, Long Beach, California and
International Federation of Professional and Technical Engineers, Local
174, AFL-CIO and American Federation of Government Employees, Local
2237, AFL-CIO and Federal Employees' Metal Trades Council, Long Beach,
California, 7 FLRA 362, 367 (1981). See also National Labor Relations
Board, Region 5 and National Labor Relations Board Union, Local 5, 2
FLRA 327 (1979).
(30) The Comptroller General also stresses as important
considerations whether the grant of administrative leave is for some
purpose connected to the employee's work and, relying on references in
the FPM to voting and blood donations, for some "civic" purpose. See,
for example, Comptroller General Decision B-156287 (February 5, 1975).
(31) The circumstances involved in the Long Beach Naval Shipyard
case, note 30, supra, wherein the proposal involved, at most, an
authorization of 4 to 5 days, are distinguishable. That case involved a
group dismissal due to a shut-down of the shipyard for retooling and is
a circumstance specifically referenced in the part of the FPM covering
such dismissals. The proposal in this case concerns only individual
instances of administrative leave and is covered by a different part of
the FPM.
(32) The Comptroller General has also held that grants of
administrative leave for 14 days, 28 days, and 31 days, to prepare for a
bar examination are inappropriate, Comptroller General Decision B-156287
(February 5, 1975); that a grant of 23 days to participate in the Pan
American Games as a member of the United States field hockey team is
inappropriate, Comptroller General Decision B-185128 (December 3, 1975);
that a grant of six weeks for voluntary, humanitarian service with
Africare is inappropriate, Comptroller General Decision B-156287 (June
26, 1974).
(33) An election had been conducted pursuant to a representation
petition filed in Case No. 5-RO-50005.
(34) In finding that Union Proposals 7, 8, 9 and 11 are negotiable,
we express no opinion as to their merits.
APPENDIX
(2) 5 U.S.C. Section 8906 provides, in pertinent part:
Section 8906. Contributions
(b)(1) Except as provided by paragraphs (2) and (3) (relating to
contributions for part-time employees) of this subsection, the biweekly
Government contribution for health benefits for an employee or annuitant
enrolled in a health benefits plan under this chapter is adjusted to an
amount equal to 60 percent of the average subscription charge determined
under subsection (a) of this section . . . .
(2) The biweekly Government contribution for an employee or annuitant
enrolled in a plan under this chapter shall not exceed 75 percent of the
subscription charge.
(3) 5 U.S.C. Section 8901(1)(A) provides:
Section 8901. Definitions
For the purpose of this chapter --
(1) "employee" means --
(A) an employee as defined by section 2105 of this title(.)
(4) 5 U.S.C. Section 2105(a)(1)(E) provides:
Section 2105. Employee
(a) For the purpose of this title, "employee", except as otherwise
provided by this section or when specifically modified, means an officer
and an individual who is --
(1) appointed in the civil service by one of the following acting in
an official capacity --
(E) the head of a Government controlled corporation(.)
(5) 5 U.S.C. Section 103 provides:
Section 103. Government corporation
For the purpose of this title --
(1) "Government corporation" means a corporation owned or controlled
by the Government of the United States; and
(2) "government controlled corporation" does not include a
corporation owened by the Government of the United States.
(6) 31 U.S.C. Section 9101 provides, in pertinent part:
Section 9101. Definitions
In this chapter --
(1) "Government corporation" means a mixed-ownership Government
corporation and a wholly owned Government corporation.
(2) "mixed-ownership Government corporation" means --
(C) the Federal Deposit Insurance Corporation.
(14) 5 U.S.C. Section 5335(a) provides, in relevant part, as follows:
Section 5335. Periodic step-increases
(a) An employee paid on an annual basis, and occupying a permanent
position within the scope of the General Schedule, who has not reached
the maximum rate of pay for the grade in which his position is placed,
shall be advanced in pay successively to the next higher rate within the
grade at the beginning of the next pay period following the completion
of --
(1) each 52 calendar weeks of service in pay rates 1, 2, and 3;
(2) each 104 calendar weeks of service in pay rates 4, 5, and 6;
or
(3) each 156 calendar weeks of service in pay rates 7, 8, and 9(.)
(15) 5 CFR 531.405(a)(1) provides as follows:
Section 531.405 Waiting periods for within-grade
increase.
(a) Length of waiting period. (1) For an employee with a scheduled
tour of duty the waiting periods for advancement to the following steps
in all General Schedule grades are:
(i) Steps 2, 3, and 4 -- 52 calendar weeks of creditable service;
(ii) Steps 5, 6, and 7 -- 104 calendar weeks of creditable service;
(iii) Steps 8, 9, and 10 -- 156 calendar weeks of creditable service.
(16) 5 U.S.C. Section 5331(a) provides as follows:
Section 5331. Definitions; application
(a) For the purpose of this subchapter, "agency", "employee",
"position", "class", and "grade" have the meanings given them by section
5102 of this title.
(17) 5 U.S.C. Section 5102(a)(1)(i) provides as follows:
Section 5102. Definitions; application
(a) For the purpose of this chapter --
(1) "agency" means --
but does not include --
(i) a Government controlled corporation(.)
(19) Section 2424.11 of the Authority's Rules and Regulations
provides, in pertinent part, as follows:
Section 2424.11 Illustrative criteria.
A compelling need exists for an agency rule or regulation concerning
any condition of employement when the agency demonstrates that the rule
or regulation meets one or more of the following illustrative criteria:
(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.
(22) S. REP. No. 97-365, 97th Cong., 2nd Sess. 7 (1982) states as
follows:
Paragraph (3) defines the term "basic work requirement" to mean the
number of hours, excluding overtime hours, which an employee is required
to work or is required to account for by leave or otherwise.
In view of the nature of a flexible schedule or compressed schedule
experiment, any standard for determining what constitutes a regular work
period must be adaptable to the particular flexible or compressed
schedule. Accordingly, an employee's "basic work requirement" may be
calcualted on a daily, weekly, or biweekly basis depending on the hours
which a particular employee is required to work or to otherwise account
for. For example, a full-time employee working the standard
8-hour/5-day week has an 8-hour daily basic work requirement, a 40-hour
weekly basic work requirement, and an 80-hour biweekly basic work
requirement. An employee under a compressed schedule such as the 5-4-9
program, which consists of a 9-hour day/5-day workweek followed by an
approximately 9-hour day/workweek (sic) has a 9-hour daily basic work
requirement, one 45-hour weekly basic work requirement (first week), one
35-hour weekly basic work requirement (second week), and an 80-hour
biweekly basic work requirement. Similarly, an employee under a
compressed schedule which consists of four 10-hour days each week, has a
10-hour daily basic work requirement, a 40-hour weekly basic work
requirement, and an 80-hour biweekly basic work requirement.