American Federation of Government Employees, Local 1786 and U.S. Marine Corps, Marine Corps Exchange, Henderson Hall (Authority decision, March 31, 1987)

Final FLRA decision. The Authority finds three disputed contract provisions within the duty to bargain and orders the agency to rescind its disapproval. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1786 challenged the Marine Corps Exchange's disapproval of three negotiated leave provisions for employees of its nonappropriated fund operation. The provisions addressed court leave for jury service and witness duty, and time off for activities including funeral leave. The Authority found these discretionary benefits were conditions of employment. Although the court leave provisions conflicted with an agency regulation, the Exchange had not shown a compelling need for that regulation. The Authority ordered the Exchange to rescind its disapproval of all three provisions. Chairman Calhoun dissented.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E) and agency regulation limits under § 7117(a)(2).
• Outcome: Three leave provisions found within the duty to bargain; disapproval rescinded.
• Key point: General cost savings and uniformity claims did not establish a compelling need for the agency's court leave rule.

Full text (FLRA public release)

[ v26 p446 ]

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.