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26:0446(54)NG
The decision of the Authority follows:
26 FLRA No. 54
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1786
Union
and
U.S. MARINE CORPS, MARINE CORPS
EXCHANGE, HENDERSON HALL
ARLINGTON, VIRGINIA
Agency
Case No. 0-NG-1197
DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
Service Labor-Management Relations Statute (the Statute) and presents
issues concerning the negotiability of three provisions of a locally
negotiated agreement disapproved under section 7114(c) of the Statute.
/2/
II. Provisions 3, 4 and 5
Provision 3
When an employee is under summons to serve on a jury or to
qualify for jury service, time lost from his normal work schedule
for this purpose will be charged to court leave and the employer
will pay him in accordance with applicable pay requirements. Such
time will be limited to the time necessary, but not to exceed
eight (8) hours per day.
Provision 4
Employees other than temporary employees will be authorized
absence from work for jury duty or for attending court in an
unofficial capacity as a witness on behalf of the United States
Government or the Government of the District of Columbia Court.
For court leave purpose(s), municipal courts are considered state
courts.
Provision 5
The employer may authorize time off with pay to any employee
for blood donations (for which the employee is not paid); for
voting in Federal, State, County and Municipal Government
elections; or for brief periods of absence or tardiness due to
circumstances which are beyond the employee's control. Funeral
leave up to three days may be granted. (Only the underlined
portion is in dispute.)
A. Positions of the Parties
The Agency contends that the provisions are nonnegotiable because
they pertain to money-related fringe benefits for Federal employees and
therefore are not conditions of employment. It also asserts that the
provisions concerning leave entitlements for these employees conflict
with Agency regulations (SECNAVINST 5300.22A) which are supported by a
compelling need.
The Union contends that the Agency has discretion to determine the
fringe benefits (including leave entitlements) for these
Non-appropriated Fund Instrumentality (NAFI) employees and the
provisions are therefore within the Agency's duty to bargain. The Union
also argues that the Agency has failed to establish a compelling need
for its regulations governing leave.
B. Analysis and Conclusion
1. Provisions 3, 4 and 5 Concern Employee's Conditions of
Employment
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
No. 41 (1986), petition for review filed sub nom. Department of the Air
Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir.
Feb. 2, 1987), we held that substantive proposals regarding pay and
fringe benefits which are not specifically provided for by Federal
statute and, thus, are within the agency's discretion, concern
conditions of employment and are negotiable to the extent that they are
not inconsistent with applicable laws, rules and regulations. Id., slip
op. at 6-7.
The Agency concedes that matters pertaining to employee benefits are
within its discretion. Agency Statement of Position at 2 and 6. The
Agency has exercised that discretion by establishing, through internal
regulation, a system of benefits for the NAFI employment program. Under
Eglin AFB, therefore, Provisions 3, 4 and 5 do not concern a matter
which is excluded from the definition of conditions of employment. /3/
Moreover, because the Agency has discretion concerning employee leave
benefits, Provision 5 in this case is distinguishable from Proposal 3 in
American Federation of Government Employees, AFL-CIO, National Council
of SSA Field Operations Locals and Social Security Administration, 25
FLRA No. 50 (1987) which concerned funeral leave for employees subject
to Office of Personnel Management regulations governing leave.
2. The Agency Has Not Demonstrated a Compelling Need for
Its Regulations
To establish a compelling need for an agency-wide regulation, an
agency must: (1) identify a specific agency-wide regulation; (2) show
that there is a conflict between its regulation and the provision; 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. Eglin Air Force Base, Florida, 24 FLRA No. 41
(1986), slip. op. at 11. As to Provision 5, we find that the Agency has
failed to identify a specific regulation that addresses the matter of
funeral leave. The last sentence of Provision 5 provides that up to
three days funeral leave may be granted. The Agency regulation does not
provide for funeral leave for any category of employee. Thus there is
no substantive provision of the Agency's regulations with which
Provision 5 can be said to conflict. Since the Agency has not
demonstrated that the provision conflicts with its regulations,
Provision 5 is a negotiable condition of employment which is within the
Agency's duty to bargain.
Under Provision 3, all employees in the bargaining unit (full-time,
part-time, temporary and intermittent) would be eligible for court leave
for jury service. Under Provision 4, intermittent employees as well as
full-time and part-time employees would be eligible for court leave for
purposes of serving as a witness. However, the Agency regulation allows
court leave to be granted only to full-time and part-time employees.
Thus, the Agency has demonstrated that the provisions are inconsistent
with the provisions of SECNAVINST 5300.22A.
The Agency asserts that the policy of permitting only certain
employees to enjoy leave benefits directly reflects the need to maintain
a viable NAFI system, essentially because it reduces the overhead costs
of the NAF instrumentalities. It further asserts that a failure to find
a compelling need for this policy would be inconsistent with the
requirement of an effective and efficient government.
Such generalized and conclusive statements are not enough to support
a finding of compelling need. Moreover, as we have held in other
circumstances, demonstration that a regulation will produce cost savings
as compared with a particular proposal is not sufficient to establish
that the regulation is essential, as distinguished from helpful or
desirable, to the accomplishment of the mission or the execution of the
functions of an agency in a manner which is consistent with the
requirements of an efficient and effective Government. See National
Association of Government Employees, Local R14-62 and U.S. Army, Dugway
Proving Ground, Dugway, Utah, 26 FLRA No. 7 (1987); Lexington-Blue
Grass Army Depot, Lexington, Kentucky and American Federation of
Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986). The
Agency therefore has failed to demonstrate how its regulation is
essential to the effective and efficient operation of the NAF system so
as to satisfy the Authority's compelling need criteria set forth in
section 2424.11(a) of the Authority's Rules and Regulations. See
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104
(1986) (Proposal 7). Consequently, we find that Provisions 3 and 4 are
also within the duty to bargain.
III. Order
The Agency shall rescind its disapproval of the disputed provisions.
/4/
Issued, Washington, D.C., March 31, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissenting Opinion of Chairman Calhoun
As in American Federation of Government Employees, AFL-CIO, Local
1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24
FLRA No. 41 (1986), petition for review filed sub nom. Department of the
Air Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir.
Feb. 2, 1987), the bargaining unit in this case is composed of
Non-appropriated Fund Instrumentality (NAFI) employees. In Eglin, the
issue concerned the negotiability of a proposal concerning the
employer's share of the premium costs of employee health insurance. In
that case, I stated that I would find a compelling need for the
regulatory scheme which sets forth the policies, organization, and
practices for the administration and management of NAFIs and their
employees, including the specific regulations concerning health
insurance, as well as wages and other money-related fringe benefits.
Subsequently, in Service Employees International Union, Local 556,
AFL-CIO and Department of the Navy, Marine Corps Exchange 0911, Marine
Corps Air Station, Kaneohe Bay, Hawaii, et al., 26 FLRA No. 47 (1987), I
stated that I would find a compelling need for a NAFI regulation
providing that intermittent employees are not eligible for certain
benefit programs enjoyed by other employees, including leave.
I reach the same conclusion as to Provisions 3 and 4 in this case,
where the regulation establishes a system of leave administration for
the full-time, part-time, temporary and intermittent employees of the
Agency. In my view, this regulation, as part of the overall NAFI
regulatory scheme, is necessary to maintain the uniformity in treatment
of NAFI employees which is, in turn, essential to the accomplishment of
the Agency's worldwide missions within the meaning of section 2424.11(a)
of the Authority's regulations. Accordingly, I would find Provisions 3
and 4 in this case to be nonnegotiable.
As to Provision 5, I agree with my colleagues that it does not
conflict with the Agency's regulations. Nevertheless, I consider the
matters covered by Provision 5 to be a money-related fringe benefit and,
as I stated in my dissent in Eglin Air Force Base, I believe that
Congress intended money-related fringe benefits to be excluded from
collective bargaining, absent specific indications to the contrary.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) The Union has withdrawn its petition as to Provisions 1 (annual
leave) and 2 (detail of employees to vacant or new positions for periods
in excess of 120 days). They will not be considered further in this
decision.
(3) In view of our decision, we do not reach the issue of whether an
agency head, in disapproving a provision of a locally negotiated
agreement under section 7114(c), is precluded from relying on a
contention that the provision at issue does not concern a matter
affecting conditions of employment. See generally the decision of the
Federal Labor Relations Council in National Federation of Federal
Employees, Local 1745 and Veterans Administration Data Processing
Center, Austin, Texas, 5 FLRC 784, 786-89 (1977). Cf. National
Association of Government Employees, Local R4-75 and U.S. Department of
the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No. 7
(1986).
(4) In finding these provisions to be negotiable, we express no
opinion as to their merits.