15:0580(126)NG - AFGE Local 2263 and Air Force, HQ, 1606th Air Base Wing (MAC), Kirtland AFB, NM -- 1984 FLRAdec NG
[ v15 p580 ]
15:0580(126)NG
The decision of the Authority follows:
15 FLRA No. 126
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2263
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, 1606TH AIR BASE
WING (MAC), KIRTLAND AIR FORCE
BASE, NEW MEXICO
Agency
Case No. O-NG-588
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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), and presents issues
concerning the negotiability of five Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
ARTICLE 5 - MERIT PROMOTION
Section 2
When filling bargaining unit positions by the promotion method,
the Employer agrees that the minimum area of consideration
(Kirtland AFB-wide) plus voluntary applications from other tenant
organizations will be explored first. If one or two highly
qualified candidates are available, the selecting official may
make the selection from that group or may request that the area be
extended either MAC-wide or Air Force-wide. However, no further
extension of the area of consideration will be made when there are
at least three highly qualified candidates available, if the
Employer wishes to fill the position through the Merit Promotion
Plan. If less than three highly qualified candidates are
available within the extended area of consideration, enough
qualified candidates may be referred to bring the total number of
candidates to at least five. All Unit employees will be provided
bona fide consideration for all vacant positions for which they
are eligible. (Only the last sentence of the proposal is not in
dispute.)
In agreement with the Agency, the Authority finds that Union Proposal
1 interferes with management's right pursuant to section 7106(a)(2)(C)
of the Statute to make selections for appointments from a promotion list
of properly ranked and certified candidates or from any other
appropriate source. Specifically, the proposal would foreclose the use
of the Merit Promotion Plan as a source for selection if management
declined to make a selection from a list of "at least three highly
qualified candidates" initially identified through use of the Plan. In
this respect, Union Proposal 1 is to the same effect as the Union
Proposal in American Federation of Government Employees, AFL-CIO, Local
2494 and Strategic Weapons Facility Pacific, Bremerton, Washington, 7
FLRA 590 (1982), preventing extension of the area of consideration when
three or more candidates within the area of consideration were rated
highly qualified, which the Authority found operated to preclude the
Agency from exercising its right to select within the meaning of section
7106(a)(2)(C). Hence, based on Strategic Weapons Facility Pacific, and
the reasons and cases cited therein, Union Proposal 1 is not within the
Agency's duty to bargain.
Union Proposal 2
ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY
Section 1. The Employer will assure that there is equal
employment opportunity on all levels and that the full workforce
is free from discrimination because of race, color, religion, sex
(including sexual harassment), national origin, age, mental or
physical handicap, marital status, political affiliation, and
reprisal, coercion, restraint, interference, because of having
filed an EEO complaint, grievance, or been a witness or
representative on an EEO complaint or grievance. The Employer is
responsible for promoting equal opportunity through a positive,
continuing program involving all management policies, programs,
objectives, practices and personnel. (The underscored portions of
the proposal are in dispute.)
The Agency points out that only 2,000 of the 5,500 employees at
Kirtland Air Force Base are represented by the Union herein. The Agency
interprets Union Proposal 2 as seeking to encompass "the full
workforce," that is, all 5,500 employees, including those not in the
bargaining unit. On this basis alone it claims the proposal is outside
the duty to bargain. The Union, however, states that the Agency
misunderstands the proposal which "is not intended to apply to other
than bargaining unit employees." The Authority finds the Union's
interpretation of its proposal to be consistent with the express
language thereof and adopts it for purposes of this decision.
Accordingly, the Authority finds that Union Proposal 2, is within the
duty to bargain. /2/
Union Proposal 3
In connection with efforts to correct underutilization and
underrepresentation of minorities and women, the Employer will at
the minimum:
(a) Identify and provide work opportunities commensurate with
employee skills and potential at all grade levels and occupational
series, but with emphasis at the lower levels.
Union Proposal 3 expressly would require management to provide
employees with opportunities to perform work commensurate with their
skills and abilities. The proposal is to the same effect as the
proposal designated as "the last sentence of Article 10 section 9" in
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 9 FLRA 983 (1982) which obligated management to assign
work which would enable an employee's ability to perform higher grade
work to be evaluated. Noting that the proposal could result in an
arbitrator substituting his or her judgment for that of management with
respect to the assignment of duties, the Authority concluded that it
directly interfered with the agency's right, pursuant to section
7106(a)(2)(B) of the Statute, "to assign work." Consequently, based on
U.S. Customs Service, and the reasons and cases cited therein, Union
Proposal 3, herein, is outside the duty to bargain.
Union Proposal 4
(h) Permit individuals with physical or mental handicaps,
chronic illness, illnesses or injuries, and single heads of
households with dependents to use sick or annual leave or LWOP
(leave without pay) to handle responsibilities for themselves
and/or dependents. Supervisors will grant leave in all cases
where the need is clearly documented on the request for leave,
without undue pressure to the employee. (The underscored portion
of the proposal is in dispute.)
Insofar as the disputed portion of Proposal 4 concerns the granting
of annual leave (or LWOP in lieu thereof), it leaves management with no
discretion to deny such requests from employees as long as the
employee's need is "clearly documented" in the request. That is, the
proposal would require that an employee's request be granted without
regard to the necessity for that employee's service during the period
covered by the request. /3/ In this regard, the Authority noted, in
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National
Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d
553 (D.C. Cir. 1982), that the right "to assign work" pursuant to
section 7106(a)(2)(B) of the Statute "includes the right to assign
general continuing duties, to make specific periodic work assignments to
employees, to determine when such assignments will occur and to
determine when the work which has been assigned will be performed."
Since Union Proposal 4 removes management's discretion to deny annual
leave in the circumstances described, it would effectively nullify the
Agency's ability to determine when assigned work will be performed and
thus violates management's right, pursuant to section 7106(a)(2)(B) of
the Statute, "to assign work."
Insofar as the disputed portion of Union Proposal 4 concerns the
granting of sick leave (or LWOP in lieu thereof), it is noted that,
pursuant to its responsibility pursuant to 5 U.S.C. 6311, the Office of
Personnel Management (OPM) has promulgated criteria for the granting of
sick leave. Specifically, 5 CFR 630.401 (1983) provides that sick leave
will be granted when an employee: (1) receives medical, dental or
optical treatment or examination; (2) is incapacitated for duty by
sickness, injury, or pregnancy and confinement; (3) is required to care
for an immediate family member suffering from a contagious disease, or
(4) would threaten the health of others at the worksite because of
exposure to a contagious disease. To the extent that Union Proposal 4
would require the Agency to grant sick leave on bases other than those
provided by 5 CFR 630.401, so long as the need is "clearly documented,"
it is inconsistent with a "Government-wide" regulation /4/ within the
meaning of section 7117(a)(1) of the Statute /5/ and thus is outside the
duty to bargain.
Union Proposal 5
Accommodations, including granting administrative leave, will
be made to the religious needs of employees, including those who
observe the Sabbath on a day other than Sunday, when such changes
can be made without undue adverse impact on the other employees.
Union Proposal 5, by basing the standard for granting administrative
leave or other "accommodations" to the religious needs of unit employees
upon the absence of undue adverse impact on other unit employees, is
inconsistent with the management right pursuant to section 7106(a)(2)(B)
of the Statute "to assign work." In this regard the proposal would,
except in the circumstances prescribed, prohibit management from
assigning work to employees who wish to absent themselves from work for
religious reasons. The proposal excludes from consideration, in
excusing an employee for religious reasons, the Agency's need for the
employee's services during the period of excusal. Rather, such excusal
could only be denied when the absence would have an "undue adverse
impact" on fellow employees. Thus, by mandating that leave for
religious reasons be granted except when other employees are affected by
the grant, the proposal is inconsistent with the management right
pursuant to section 7106(a)(2)(B) to assign work, which includes the
right "to determine when . . . assignments will occur and to determine
when the work which has been assigned will be performed." /6/
Moreover, the standards for denial of an accommodation to an
employee's religious needs, as set forth in the proposal, is
significantly different from that prescribed in governing law. /7/ The
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., in
section 2000e(j) provides:
(j) The term "religion" includes all aspects of religious
observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate to an
employee's or prospective employee's religious observance or
practice without undue hardship on the conduct of the employer's
business.
Union Proposal 5, by failing to permit management to deny an
accommodation because of undue hardship on the conduct of the Agency's
business, does not comport with the standard for accommodating religious
practice established by section 2000e(j). /8/ Since the proposal is not
consistent with the statutory standard for denying accommodations on
religious grounds and is also inconsistent, as noted above, with
management's right "to assign work," Union Proposal 5 is not within the
duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as to Union
Proposals 1, 3, 4 and 5 be, and it hereby is, dismissed. IT IS FURTHER
ORDERED that the Agency shall upon request (or as otherwise agreed to by
the parties) bargain concerning Union Proposal 2.
Issued, Washington, D.C., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ As the result of an understanding between the parties, the Union
withdrew its appeal as to four additional proposals concerning merit
promotion, matters appropriate for negotiation, equal employment
opportunity, and coverage of the agreement.
/2/ In finding Union Proposal 2 within the duty to bargain, the
Authority makes no judgment as to its merits.
/3/ The Authority's conclusions with respect to Union Proposal 4 do
not concern grants of emergency annual leave since the proposal does not
specifically allude to those situations.
/4/ Accord 55 Comp.Gen. 183 (1975).
/5/ The Authority concludes that the cited OPM regulation is a
Government-wide regulation within the meaning of section 7117(a)(1)
because it applies to the Federal civilian workforce as a whole, i.e.,
employees who earn sick leave under the provisions of 5 U.S.C. 6307.
See National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748 (1980).
/6/ Bureau of the Public Debt, 3 FLRA 769 (1980).
/7/ See, e.g., Haring v. Blumenthal, 471 F.Supp. 1172 (D.C. D.C.
1979).
/8/ See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).