National Weather Service Employees Organization and National Weather Service (Authority decision, March 20, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The National Weather Service union proposed retroactive pay for employees furloughed during a lapse in funding or budget sequestration, if later appropriations and the law permitted payment. The agency called the proposal nonnegotiable but filed no position with the Authority. The Authority held that the proposal concerned employees' working conditions and, because it expressly limited payment to what law and regulation allow, found no legal conflict. It ordered the agency to bargain on request. The decision did not judge whether the proposal was good policy.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E), 7117(a)(1).
• Outcome: Proposal found negotiable; agency ordered to bargain on request.
• Key point: A conditional proposal to repay furloughed employees can be negotiable when payment is limited to what law and appropriations permit.

Full text (FLRA public release)

[ v39 p1279 ]
39:1279(112)NG

The decision of the Authority follows:

39 FLRA No. 112

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

NATIONAL WEATHER SERVICE

WASHINGTON, D.C.

(Agency)

0-NG-1871

DECISION AND ORDER ON NEGOTIABILITY
ISSUE

March 20, 1991

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The proposal requires the Agency, insofar as legally permissible and to the extent appropriations allow, to reimburse employees for wages and other compensation lost due to a furlough resulting from a "sequestration" or "lapse of appropriation."

For the reasons stated below, we find that the proposal is negotiable.

II. Proposal

Employees who are furloughed during a lapse of appropriation will be retroactively paid and otherwise compensated when appropriations are approved to the extent permitted by law and regulation.

III. Positions of the Parties

The Union states that the purpose of the proposal is to reimburse those employees who were furloughed as a result of the implementation of a Gramm-Rudman sequestration order in the event that Congress reached a target budget after implementation of the order and the Agency is subsequently given an appropriation sufficient to have covered its personnel costs had there not been a furlough. Petition for Review at 1.

In its petition for review, the Union states that the Agency orally declared the proposal to be nonnegotiable during a bargaining session relating to the impact and implementation of a possible Gramm-Rudman sequestration order. The Union also states that the Agency did not respond to the Union's request for a written allegation of nonnegotiability.

The Agency did not file a statement of position.

IV. Analysis and Conclusions

We note, at the outset, that despite the Agency's failure to respond to the Union's request for a written allegation of nonnegotiability, the Union's petition for review is properly before us in the circumstances of this case. See National Federation of Federal Employees, Local 1363 and U.S. Army Garrison, Yongsan, Korea, 15 FLRA 134 (1984).

The proposal at issue in this case would, "to the extent permitted by law and regulation," require the Agency to pay and otherwise compensate retroactively employees who had been furloughed due to a "sequestration" order or a "lapse of appropriation" when Congress approves a budget for the fiscal year and appropriates sufficient funds for the Agency to cover the personnel costs that resulted from the furlough.(1) In sum, the proposal requires the Agency, insofar as legally permissible and to the extent appropriations allow, to reimburse employees for wages and other compensation lost due to a furlough resulting from a "sequestration" order or a "lapse of appropriation."

The proposal clearly concerns the conditions of employment of bargaining unit employees. See Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990). Because the proposal would require the reimbursement of employees "to the extent permitted by law and regulation," and because the Agency has advanced no reason to conclude, and none is otherwise apparent, that the proposal is inconsistent with law and regulation, we find that the proposal is negotiable under section 7117(a)(1) of the Statute.

V. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain on the proposal.(2)

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. "Sequestration," within the meaning of the Balanced
   Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, as amended by the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. 100-119, is the automatic permanent cancellation of budgetary authority that would be necessary to reach statutory annual deficit targets if those targets cannot be reached through the legislative process.

2. In finding the proposal to be negotiable, we make no
   judgment as to its merits.