38 FLRA No. 107

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). It concerns the negotiability of three proposals.⁽¹⁾

Proposal 1 concerns the use of official time to prepare and maintain records and reports required by Federal agencies. Proposal 2 concerns requests for compensatory time off for religious observances. Proposal 3 concerns certain procedures to be applied before probationary employees may be terminated. For the reasons that follow, we find that Proposal 1 is negotiable and Proposals 2 and 3 are nonnegotiable.

II. Proposal 1

Article 9, Section 2(F)14 and 16

F. The activities referred to in subsection E. above (i.e. those for which official time is granted), are those:

14. To prepare and maintain records and reports required of the union by Federal agencies;

16. To maintain financial records and books required to complete IRS reports;

[Only the underscored portion is in dispute]

A. Positions of the Parties

The Agency contends that the disputed portion of the proposal violates section 7131(b) of the Statute and is therefore outside the Agency's duty to bargain under section 7117(a)(1) of the Statute. The Agency argues that the compilation of the reports and records referenced in Proposal 1 relates solely to the internal affairs of the Union and that section 7131(b) prohibits the use of official time for such activities, citing American Federation of Government Employees, Local 1778, AFL-CIO and Department of the Air Force, Headquarters, 438th Air Base Group (MAC), McGuire Air Force Base, 10 FLRA 346 (1982); American Federation of Government Employees, AFL-CIO, Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2 FLRA 4 (1979) (VA, Cleveland). The Agency argues that the "preparation of documents which the union is required by law to submit in order to retain viability must be found to be prepared for internal [union] purposes." Agency Statement of Position at 5.

The Union contends that the records and reports contemplated by the proposal are not activities which constitute internal business of a union within the meaning of section 7131(b). The Union argues that such records and reports are required strictly to promote the public interest and that the use of official time to prepare and maintain the records and reports is consistent with section 7131(d)(2) of the Statute.

B. Analysis and Conclusion

Section 7131(b) of the Statute states that "[a]ny activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status." The legislative history of section 7131(b) indicates that "Congress intended to proscribe the use of duty time for only those activities relating to the union as an organization and pertaining to the operation of that organization, such as union business meetings, communication with members, contracting for goods and services, payment of bills, and other similar and associated activities." VA, Cleveland, 2 FLRA at 8. Preparation of reports that "function as an externally imposed disclosure mechanism opening to view facets of the operations of the labor organization" is not an activity "solely related to the institutional structure of a labor organization and, thus, is not . . . related to the internal business of a labor organization within the meaning of section 7131(b)." Id. at 9.

The Agency argues that the "preparation of documents which the union is required by law to submit in order to retain viability must be found to be prepared for internal [union] purposes." Agency Statement of Position at 5. We disagree. Records, reports, and books that a union must prepare and maintain to meet requirements established by Federal agencies are not related to the internal business of a labor organization within the meaning of section 7131(b).

In our view, Proposal 1 is similar to the proposal found negotiable in VA, Cleveland, which concerned official time for the preparation of financial and other reports required by the U.S. Department of Labor under section 7120(c) of the Statute, concerning the operations of a labor organization. In that case, the Authority found that, unlike the activities expressly cited in section 7131(b) of the Statute as not eligible to be conducted on official time, such reports did not solely relate to the structure and institution of the labor organization. 2 FLRA at 8. Rather, they "make[] available to the public information regarding the conduct of union affairs." Id. Similarly, the records and reports referenced in Proposal 1 do not solely relate to the structure and institution of the Union. Rather, the Union must prepare and maintain these records and reports to meet requirements imposed by Federal agencies upon the Union to disclose certain information about its operations. Accordingly, Proposal 1 is not inconsistent with Federal law and is, therefore, within the duty to bargain.

III. Proposal 2

Article 23, Section 4(A)1

A. An employee whose personal religious beliefs require the abstention from work during certain periods of time, including a religious observance connected with a death in the immediate family, may elect to engage in compensatory overtime work for time lost, without charge to leave, for meeting those religious requirements. Such requests will be granted unless:

1. an employee[']s presen[c]e on a job at a time in question is deemed absolutely essential and there is no suitable replacement;

[Only the underscored portion is in dispute]

A. Positions of the Parties

The Agency contends that Proposal 2 is inconsistent with a Government-wide regulation, 5 C.F.R. § 550.1002 (1989). The Agency argues that the regulation requires the Agency to grant an employee's request to work compensatory overtime only if it does not "interfere with the efficient accomplishment of an agency's mission[,]" citing National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987) (Provision 11), enforced in part and reversed in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989); and Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 26 FLRA 568 (1987) (Naval Underwater). Agency Statement of Position at 7. The Agency also contends that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute.

The Union contends that Proposal 2 would not interfere with the efficient accomplishment of the Agency's mission and, therefore, is not inconsistent with 5 C.F.R. § 550.1002. The Union argues that the proposal allows the Agency flexibility by providing the Agency discretion to deny the request if: (1) the employee's absence would interfere with the efficient accomplishment of the Agency's mission, or (2) the replacement employee would not suffice to maintain the function of the Agency. Therefore, the Union argues that the proposal is not as restrictive as the proposals in the cases cited by the Agency.

B. Analysis and Conclusion

The granting of compensatory time off for religious observances is governed by 5 C.F.R. § 550.1002, which is a Government-wide regulation. Naval Underwater, 26 FLRA at 569. An agency must afford an employee the opportunity to work compensatory overtime "[t]o the extent that . . . modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission[.]" 5 C.F.R. § 550.1002(b). In Naval Underwater, a proposal was found to be nonnegotiable because it was inconsistent with the standard for granting compensatory time off for religious observances in 5 C.F.R. § 550.1002. That proposal required an agency to grant compensatory time off to employees for religious observances unless it "would seriously interfere with the efficient accomplishment of the activity's mission." Naval Underwater, 26 FLRA at 568.

The Union contends that Proposal 2 is not inconsistent with 5 C.F.R. § 550.1002 because it does not interfere with the efficient accomplishment of the Agency's mission. We disagree. In contrast to the requirement of 5 C.F.R. § 550.1002(b), quoted above, Proposal 2 requires that an employee's request for compensatory overtime work for time lost for meeting religious observances will be granted unless an employee's presence on a job at a time in question "is deemed absolutely essential and there is no suitable replacement." Thus, Proposal 2 establishes a standard for denying requests for compensatory time off for religious observances that is far more restrictive than the standard in 5 C.F.R. § 550.1002(b). Consequently, Proposal 2 conflicts with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with law or regulation. Compare American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 27 FLRA 467, 476-77 (1987) (Provision 4 incorporated essentially the same standard as in 5 C.F.R. § 550.1002(b) and, therefore, was not in conflict with that regulation). In view of this conclusion, it is not necessary for us to consider the Agency's additional contention that the proposal interferes with its right to assign work.

IV. Proposal 3

Article 37, Section 1(B), (C), and (E)

B. The parties agree that when the Employer determines that a probationary employee is to be terminated, the Employer will, if sufficient probationary time remains, give the affected employee fifteen (15) days notice of termination or such notice as the remaining probationary period permits.

C. The Employer agrees to meet with an affected probationary employee upon request and/or accept a written statement relating to the termination, whether or not the employee is on the rolls. If the employee elects both, the written statement must be delivered to the Employer on or before the date of the meeting. If the affected employee elects to request a meeting to submit a written statement, the request for meeting or receipt of written statement must be within fifteen (15) days of receipt of notice. If a meeting is held, the employee may be accompanied by two representatives designated by the Union and national representative of the Union.

D. The affected employee will be advised by the Employer whether the decision to terminate is sustained or rescinded after considering the employee's written statement or oral statement made at the meeting.

E. Those portions of C. and D. above which entitle an employee to a meeting with the Employer to discuss the employee's termination will not apply to probationary employees who have not completed the third month of their probationary period.

A. Positions of the Parties

The Agency contends that Proposal 3 is inconsistent with 5 U.S.C. § 3321 and 5 C.F.R. Part 315, Subpart H, which concern, in part, the termination of probationary employees. The Agency argues that Proposal 3 improperly would add procedural protections for probationary employees to those provided by the Office of Personnel Management (OPM) regulations, citing American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105 (1988) (Navy, Oceana).

The Union contends that Proposal 3 gives probationary employees only one additional, discretionary procedural protection and is therefore not inconsistent with law and regulation. The Union argues that the Authority's holding in Navy, Oceana oversimplifies and overstates National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988) (NTEU) and United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (INS). In this regard, the Union states that Proposal 3 does not conflict with NTEU and INS because it does not impose third party review on the Agency's decision to terminate a probationary employee, but instead creates only a procedure for optional internal review by the Agency of its decision to terminate a probationary employee.

B. Analysis and Conclusions

In INS, the United States Court of Appeals for the District of Columbia Circuit found that, in the Civil Service Reform Act of 1978, Congress expressly preserved an agency's discretion to remove summarily a probationary employee, preserving for the probationary employee only minimal due process. See Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 661 (1988). The Authority has also reiterated that "in enacting the Statute, Congress did not intend that procedural protections for probationary employees be established through collective bargaining under the Statute." Navy, Oceana, 30 FLRA at 1127 (quoting Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 15 FLRA 714, 715 (1984) (HHS, SSA)). Rather, "Congress instructed OPM, not FLRA, to implement the probationary program and to provide whatever procedural protections were necessary for probationary employees." HHS, SSA, 15 FLRA at 715 (quoting INS, 709 F.2d at 729).

Proposal 3 would require, among other things, that the Agency, prior to terminating a probationary employee: (1) give 15 days' notice of termination to the employee, under certain circumstances; (2) meet with the probationary employee and/or accept a written statement relating to the termination whether or not the employee is still employed by the Agency; and (3) consider the employee's oral or written statements and advise the employee if the decision to terminate is sustained or rescinded. By establishing such requirements, Proposal 3 imposes procedural protections beyond those provided by OPM. See Navy, Oceana, 30 FLRA at 1128. For example, the OPM regulations at 5 C.F.R. § 315.804 require only that a notice of termination be in writing and include certain specified information, whereas Proposal 3 requires that the affected employee receive 15 days' notice if there is sufficient remaining time in the probationary period to do so.

The Union states that Proposal 3 "creates a procedure for optional internal review by the [A]gency itself of a decision to terminate. . . . [T]he triggering of the [A]gency's obligation to conduct reconsideration is entirely within the [A]gency's control." Union Response to Agency Statement of Position at 7. We disagree. Proposal 3 states that: "[t]he Employer agrees to meet with an affected probationary employee upon request and/or accept a written statement" and "[t]he affected employee will be advised by the Employer whether the decision to terminate is sustained or rescinded after considering the employee's written statement or oral statement made at the meeting" (emphasis added). The option to request a meeting or to submit a written statement is solely the affected employee's prerogative. Once such a request has been made, the Agency must comply. In our view, the Union's statement of the intent of the proposal is less restrictive than the plain wording of Proposal 3 and, therefore, is inconsistent with the proposal. Accordingly, we base our decision on the plain wording of the proposal, not on the Union's statement of intent. See National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 35 FLRA 26, 28 (1990) (the Authority will not adopt a union's statement of intent that is inconsistent with the wording of the proposal, but will base its decision on the interpretation that is consistent with the plain wording of the proposal). Thus, Proposal 3 would establish procedural protections for probationary employees beyond those provided by OPM's Government-wide regulations.

Accordingly, we find that Proposal 3 is inconsistent with Federal law and government-wide regulation. Consequently, it is nonnegotiable under section 7117(a)(1) of the Statute.

V. Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning Proposal 1.⁽²⁾ The petition for review is dismissed insofar as it concerns Proposals 2 and 3.

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

1. The Union's petition for review contained one additional proposal, which the Union has withdrawn. Therefore, we will not rule on the negotiability of that proposal.

2. In finding Proposal 1 to be within the duty to bargain, we make no judgment as to its merits.