NAGE Local R14-9 and Dugway Proving Ground (Authority decision, June 6, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. 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

NAGE proposed paid administrative leave for employees affected by a partial facility closure instead of charging annual leave. The Authority found a compelling need for the Army regulations barring that leave to meet cost saving and mission goals. It held the proposal outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Compelling need limit under 5 U.S.C. § 7117(a)(2).
• Outcome: Administrative leave proposal rejected.
• Key point: The leave proposal conflicted with a regulation needed for the agency's closure plan.

Full text (FLRA public release)

[ v18 p344 ]

18:0344(45)NG

The decision of the Authority follows:

18 FLRA No. 45

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R14-9
Union

and

U.S. ARMY DUGWAY PROVING
GROUND, DUGWAY, UTAH
Agency

Case No. 0-NG-733

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises an issue regarding the negotiability of the following Union proposal:

Affected employees (shall) be placed on administrative leave without charge to annual leave for the period of partial closure.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The Agency refused to bargain over the Union's proposal which would require the granting of administrative leave to employees compelled to take leave during the partial closure, contending that the proposal is inconsistent with Agency regulations /1/ for which there is a compelling need and, therefore, barred from negotiations under section 7117(a)(2) of the Statute. /2/ The Agency contends that the regulations are essential, as provided under section 2424.11(a) of the Authority's Rules and Regulations, /3/ to insure the Agency's objective of curtailing operations in order to reduce expenditures during unproductive periods of operation is not negated by the expense incurred by granting administrative leave to employees during this period. The Union, in essence, argues that the Agency has not demonstrated the essentiality of its regulations to eliminate unproductive work time since the Agency has failed to provide evidence that the cited regulations represent the only way to eliminate unproductive work time. Thus, the proposal and arguments raised by the Agency and Union in the instant appeal are identical to those at issue in National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA 38 (1985), wherein the Authority found that the agency had established that its regulations were "essential as distinguished from helpful or desirable" for the policies reflected in its regulations such that the necessity it claimed raised to the level of a compelling need. In that case, the Authority ruled that the agency had demonstrated that prohibiting administrative leave during partial closing of its facilities was a critical component of the agency achieving its objective of saving money by curtailing operations so as to insure the agency's performance of its mission in an effective and efficient manner. Accordingly, the Authority found it to be consistent with an effective and efficient Government for the agency's regulations to bar negotiation of the union's proposal. Hence, for the reasons stated and the case cited in U.S. Army Dugway Proving Ground, the Authority concludes that the Agency has established that its regulations are "essential as distinguished from helpful or desirable" and, thus, has established that a compelling need exists for the regulations under the requirements set forth in section 2424.11(a) of the Authority's Rules and Regulations so as to bar negotiation of the Union's proposal.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and hereby is, dismissed. Issued, Washington, D.C., June 6, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The regulations upon which the Agency relies include:

Section 990-2, subchapter 610.S3, paragraph 3c, of the Army Civilian Personnel Regulation, which provides in pertinent part as follows:

S3-3. EFFECT OF DISMISSAL

c. Where advance notice can be given.

The authority to excuse employees administratively is not to be used in instances where the period of interrupted or suspended operations can be anticipated sufficiently in advance to permit arranging for assignment to other work or the scheduling of annual leave . . . .

and

Section 990-2, Book 610, subchapter S3-1(a), of the Department of Defense Civilian Personnel Manual Supplement, which provides as follows:

S3-1. General Authority

a. Closing an Activity. Commanders are authorized to close all or part of an activity consistent with the policy outlined in this subchapter and to excuse employees administratively. Such instances will be made a matter of record at the activity. This authority does not extend to periods of interrupted or suspended operations that can be anticipated sufficiently in advance to permit arranging for assignment to other work or the scheduling of annual leave.

/2/ Section 7117(a)(2) provides:

Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult

(a)(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.

/3/ Section 2424.11(a) of the Authority's Rules and Regulations provides as follows:

Sec. 2424.11 Illustrative criteria.

A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:

(a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government.