19:0048(6)NG - NFFE Local 15 and Army Armament Munitions and Chemical Command, Rock Island Arsenal, IL -- 1985 FLRAdec NG
[ v19 p48 ]
19:0048(6)NG
The decision of the Authority follows:
19 FLRA No. 6
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 15
Union
and
U.S. ARMY ARMAMENT MUNITIONS
AND CHEMICAL COMMAND,
ROCK ISLAND ARSENAL, ILLINOIS
Agency
Case No. O-NG-1022
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 two Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Article XXI Leave
Section 13 Leave Without Pay
a. It shall be the policy of the employer to grant leave
without pay (LWOP) under the following circumstances:
1). For educational purposes which would contribute to the
best interests of the organization.
2). For recovery from illness or disability not of a permanent
or disqualifying nature, after all sick and annual leave are
exhausted.
3). Pending final action by the Office of Personnel Management
(OPM) on a claim for disability retirement upon exhaustion of all
sick and annual leave, and pending final action by the Bureau of
Employees' Compensation on a claim for employment connected injury
or disease.
4). To avoid a break in the continuity of service for
conditional employees who must relocate because they are
dependents of service members or of Federal employees who are
obliged to move on rotational assignments or upon the transfer of
a function or activity.
b. Benefits - At least one of the following benefits should be
expected to result from the granting of extended LWOP:
1). Increased job ability.
2). Protection and/or improvement of the employee's health.
3). Retention of a desirable employee.
4). Furtherance of a program of interest to the Government
(e.g., Peace Corps volunteer).
5). OPM and DA guidance indicates that LWOP should not
initially be granted in excess of 1 calendar year. Under special
circumstances the LWOP may be extended for another year in
increments of 6 months. Such extensions will be the exception
rather than the rule.
The Union contends the proposal would merely serve to provide
guidance to management in determining when an employee should be granted
leave without pay (LWOP). However, the Agency contends the proposal
sets forth substantive criteria which would limit management in the
exercise of its rights. The Authority finds, in agreement with the
Agency, that the clear language of the proposal would require the Agency
to grant LWOP to an employee who meets the specified criteria. In this
regard, the Authority held in American Federation of Government
Employees, AFL-CIO, Local 2263 and Department of the Air Force,
Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New
Mexico, 15 FLRA No. 126, at 4-5 (1984), that a proposal which would
require an agency to grant an employee's request for leave without
regard to the necessity for that employee's service during the period
covered by the request violates management's right under section
7106(a)(2)(B) of the Statute to assign work. Specifically, the
Authority found that insofar as the proposal 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. Thus, for the reasons set forth in Kirtland Air
Force Base, the Authority concludes that Union Proposal 1 would deny the
Agency the discretion to exercise its right under section 7106(a)(2)(B)
of the Statute to assign work and, consequently, is outside the duty to
bargain.
Union Proposal 2
Article XXI Leave
Section 14 Absent Without Leave (AWOL)
The employer agrees that absent without leave (AWOL) is to be
used for purposes of charging employees who knowingly and
willfully do not report for work without notifying the supervisor
and employees who do not request leave in advance. AWOL should
not be used for charging employees who have a legitimate reason
for being absent because of events that are no fault of their own.
The Union contends that this proposal is also meant only to provide
guidance to management in determining when an employee should be charged
with being absent without leave (AWOL). However, the Authority finds,
in agreement with the Agency, that the clear language of Union Proposal
2 provides substantive criteria for management to apply when deciding
whether to authorize employee absences. Based upon this interpretation,
the Agency contends that, insofar as the proposal would require the
Agency to approve certain employee absences, it would prevent the Agency
from taking disciplinary action against employees on the basis of those
absences and would therefore interfere with management's right under
section 7106(a)(2)(A) of the Statute to discipline employees. /2/ The
Authority agrees.
In American Federation of Government Employees, Local 1822, AFL-CIO
and Veterans Administration Medical Center, Waco, Texas, 9 FLRA 709,
711-12 (1982), the Authority held that a proposal which would have had
the effect of modifying the substantive criteria for taking disciplinary
action against employees violated management's right to discipline
employees under section 7106(a)(2)(A) of the Statute. In terms of this
case, the Authority notes that AWOL is a proper basis for disciplinary
action against an employee. /3/ Therefore, in circumstances where Union
Proposal 2 would require the Agency to approve the employee's absence,
the employee would no longer be considered AWOL and the absence could
not be the basis for discipline. Thus, for the reasons set forth in
Veterans Administration Medical Center, Waco, Texas, the Authority
concludes in agreement with the Agency that the Union's proposal would
violate the Agency's right under section 7106(a)(2)(A) of the Statute to
discipline employees, and, consequently, is outside the duty to bargain.
/4/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C. July 11, 1985.
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ As the result of an understanding between the parties, the Union
withdrew its appeal as to two additional proposals concerning areas of
consideration and procedures for processing union/employer disputes.
/2/ Section 7106(a)(2)(A) provides:
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 suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees(.)
/3/ Federal Personnel Manual Supplement 990-2, book 630, subchap.
S1-6. FPM chap. 751, subchap. 2-1.
/4/ In view of the decision herein, it is unnecessary to address the
Agency's additional contentions regarding Union Proposal 2.