Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy, Naval Underwater Systems Center (Authority decision, April 9, 1987)

Final FLRA decision. The Authority dismisses the union’s petition after finding its religious compensatory time proposal outside the duty to bargain. An aggrieved person may seek judicial review of a final Authority order by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The Federal Union of Scientists and Engineers proposed that the Naval Underwater Systems Center accommodate requests for religious compensatory time unless doing so would seriously interfere with its mission. The Authority compared that standard with a governmentwide regulation allowing schedule changes only when they do not interfere with efficient mission performance. It found the proposal’s serious interference threshold narrower than the regulatory standard, and held the proposal outside the duty to bargain. The Authority dismissed the petition without reaching the Navy’s other objections.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. § 7105(a)(2)(E) and governmentwide regulation under 5 C.F.R. § 550.1002.
• Outcome: Proposal outside the duty to bargain; petition dismissed.
• Key point: The proposed serious interference threshold conflicted with the standard in the cited regulation.

Full text (FLRA public release)

[ v26 p568 ]

26:0568(67)NG

The decision of the Authority follows:

26 FLRA No. 67

FEDERAL UNION OF SCIENTISTS
AND ENGINEERS, LOCAL R1-144
Union

and

DEPARTMENT OF THE NAVY
NAVAL UNDERWATER SYSTEMS
CENTER
Agency

Case No. 0-NG-1327

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of the following proposal:

The activity will to the maximum extent possible accommodate employees' requests for compensatory time off or work for religious compensatory time, unless such modification in the individual's work schedule would seriously interfere with the efficient accomplishment of the activity's mission. (Note. The activity is expected to accommodate to an employee's request to work compensatory time. If no productive time is available to be worked by the employee at such time as he or she may initially request, alternative times shall be arranged for the performance of the compensatory work.)

II. Position of the Parties

The Agency argues that the first sentence regarding the granting of compensatory time is inconsistent with a Government-wide regulation, specifically 5 CFR 550.1002, which governs the granting of compensatory time for religious observances. The Agency states that the proposal's requirement that it "to the maximum extent possible accommodate employee's requests" unless it "would seriously interfere with the efficient accomplishment of the activity's mission" is more restrictive than the standard established by 5 CFR 550.1002. The Agency also argues that the proposal violates management's right to assign work under section 7106(a)(2)(B) of the Statute, because it interferes with management's right to approve or disapprove leave, and because it compels management to provide some type of "make-work" if no work is available.

The Union argues that the proposal allows management leeway to arrange productive work at alternative times for the performance of the compensatory work, and that in the case that no work were available, no work would be assigned. The Union also states that the words "to the maximum extent possible" allow management's right to assign work since it may not be possible to accommodate the employee's request.

III. Analysis and Conclusion

This proposal requires the Agency to grant compensatory time off to employees "to the maximum extent possible" unless it "would seriously interfere with the efficient accomplishment of the activity's mission." As such, this proposal is similar to the proposal found nonnegotiable in American Federation of Government Employees, Local 1923 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 17 FLRA 543 (1985). The proposal in that case required that requests for religious compensatory time be granted unless doing so "would seriously disrupt the agency's function." The Authority found that the standard set out in the proposal for denying such requests was inconsistent with the standard set out in 5 CFR 550.1002. In this regard, 5 CFR 550.1002 requires an agency to grant an employee's request for religious compensatory time and to modify the employee's work schedule "to the extent that such modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission(.)" Inasmuch as 5 CFR 550.1002 is a Government-wide regulation, the Authority concluded that the proposal was nonnegotiable.

As previously set forth, the proposal in this case requires the Agency to grant compensatory time off to employees unless this "would seriously interfere with the efficient accomplishment of the activity's mission." Like the proposal in Social Security Administration, Baltimore, Maryland, this standard is inconsistent with the standard established by 5 CFR 550.1002. Thus, the proposal in this case conflicts with the Government-wide regulation and is outside the duty to bargain under section 7117(a)(1) of the Statute.

The inclusion of the phrase "to the maximum extent possible" does not alter our conclusion that this proposal is nonnegotiable. This language does not modify in any manner the standard set out in the proposal for denying requests for compensatory time for religious observances which standard is inconsistent with 5 CFR 550.1002. Rather, this phrase obligates the Agency to make maximum efforts to grant requests for religious compensatory time if the standard for denying such requests set out in the proposal is not met. Since the standard is inconsistent with the applicable Government-wide regulation, the Agency cannot be required to make maximum efforts to comply with it.

In view of this finding, it is unnecessary for us to consider the Agency's additional contentions concerning the negotiability of this proposal. Further, it is unnecessary for us to address the Union's claim that the proposal is an appropriate arrangement under section 7106(b)(3) since that section applies only when management exercises one of the reserved rights set out elsewhere in section 7106. See American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 25 FLRA No. 75 (1987).

IV. Order

The petition for review is dismissed.

Issued, Washington, D.C., April 9, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY