National Treasury Employees Union and Federal Deposit Insurance Corporation (Authority decision, April 3, 1984)

Final FLRA decision. The Authority ordered the agency to bargain on the union's proposal. Under 5 U.S.C. § 7123(a), a person aggrieved by a final Authority order may generally seek judicial review within 60 days of issuance. A review petition does not itself stay the order.

Plain-English summary

NTEU proposed letting employees use earned compensatory time through the end of the leave year or within six pay periods, whichever came later. The FDIC's rule allowed only two succeeding pay periods, and the agency said its rule was needed to avoid scheduling and recordkeeping problems. The Authority found that the FDIC had not shown a compelling need for that limit. The proposal did not force the agency to approve a particular request when work needs prevented it. The Authority held the proposal negotiable and ordered bargaining on request.

Decision snapshot

• Authority: Agency regulation compelling need under 5 U.S.C. § 7117(a)(2) and management rights under § 7106(a)(2).
• Outcome: Union proposal held negotiable; FDIC ordered to bargain on request.
• Key point: Administrative convenience did not establish a compelling need for the FDIC's shorter use period.

Full text (FLRA public release)

[ v14 p179 ]

14:0179(37)NG

The decision of the Authority follows:

14 FLRA No. 37

NATIONAL TREASURY EMPLOYEES
UNION
Union

and

FEDERAL DEPOSIT INSURANCE
CORPORATION
Agency

Case No. O-NG-430

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented is the negotiability of the following Union proposal:

Once earned, employees may use compensatory time at any time prior to the end of a leave year or any time within six pay periods-- whichever is later.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The Agency by regulation has established a policy that compensatory time " . . . must be taken during the same or the next two pay periods succeeding the one in which the overtime work was performed . . . " The sole purpose of the Union's proposal is to expand that two pay period time frame to the later of either six pay periods or the end of the leave year in order to insure adequate opportunity for use of compensatory time. The Union's statement of intent is not inconsistent with the proposal and, thus, is adopted for purposes of this decision. The Agency principally takes the position that the Union's proposal is barred from negotiations by its regulation for which it claims a compelling need. (Subchapter 3-5 of the Agency's Leave Policy entitled "Using Compensation Time").

Section 7117(a)(2) of the Statute provides that agency regulations for which a compelling need exists, as determined under regulations prescribed by the Authority, will bar negotiation on a conflicting union proposal. The illustrative criteria for determining the compelling need for agency regulations as relied upon by the Agency herein, are provided in section 2424.11(a) of the Authority's Rules and Regulations. /1/ Under that section, an agency can establish that a compelling need exists for its regulation only if it demonstrates that such regulation is "essential as distinguished from helpful or desirable" to achieve certain ends. Thus, essentiality is the measure of whether the necessity claimed for the regulation to bar negotiations on a conflicting union proposal rises to the level of a compelling need. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 219-20(1981).

In support of its compelling need contention, the Agency asserts but does not demonstrate that it "would experience a serious disruption in the assignment of employees to necessary duties and, consequently, would operate less efficiently and effectively" if its policy embodied in its regulation on compensatory time were altered. The proposal, by its language and the Union's stated intent would clearly not require this result. The proposal, contrary to the Agency's assertion, only increases the time limit within which an employee may use compensatory time. It does not require the Agency to grant an employee's particular request for compensatory time, if mission needs dictate otherwise, during the six pay period interval anymore than during the two pay period interval embodied in the Agency's regulation.

The Agency also asserts, in support of its compelling need contention, that the proposal would cause recordkeeping problems both because of the longer period during which compensatory time could be carried on the books before it is used, and because it would be more difficult to maintain two recordkeeping systems, i.e., one for employees within the bargaining unit and the second for non-bargaining unit employees. These Agency assertions concerning recordkeeping problems clearly relate to the helpfulness or desirability to the Agency of its regulation but do not demonstrate essentiality. That is, the fact that the policy reflected in the regulation may facilitate the operation of a comprehensive recordkeeping system from which deviation may pose administrative difficulty, does not in itself demonstrate that the regulation meets the compelling need criteria so as to bar negotiation of an otherwise negotiable proposal. American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami, Florida, 5 FLRA 441(1981) (Union Proposal 4). In this regard, in failing to demonstrate that, in the absence of its regulation, the Agency would be unable to keep accurate leave records, it must be concluded that the Agency has not met its burden of showing that its regulation is essential to the accomplishment of that objective. AFGE, Local 3804 and FDIC, 7 FLRA 217, 220.

The Agency additionally argues that the proposal interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees, to assign work and to determine the personnel by which agency operations should be conducted. /2/ These arguments by the Agency cannot be sustained since, as noted earlier, the proposal, consistent with the Union's stated intent, does not require the Agency to grant an employee's particular request for compensatory time, if mission needs dictate otherwise. /3/

Thus, contrary to the Agency's allegation, the Union's Proposal is within the duty to bargain under section 7117(a)(2) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on this proposal. /4/

Issued, Washington, D.C., April 3, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ Section 2424.11 of the Authority's Rules and Regulations provides:

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.

(b) The rule or regulation is necessary to insure the maintenance of basic merit principles.

(c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

/2/ Section 7106 of the Statute provides, in relevant part, as follows:

Sec. 7106. Management Rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

(2) in accordance with applicable laws--

(A) to . . . assign . . . employees in the agency . . . ;

(B) to assign work . . . and to determine the personnel by which agency operations shall be conducted (.)

/3/ Cf. American Federation of Government Employees, Local 3488 and Federal Deposit Insurance Corporation, 12 FLRA No. 101(1983) (Proposal 2, that compensatory days will be subject to use within one year from date earned, was not barred from negotiations either by the Federal Personnel Manual or internal agency regulation).

/4/ In so deciding that the proposal is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.