[ v24 p56 ]
24:0056(7)NG
The decision of the Authority follows:
24 FLRA No. 7
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-75
Union
and
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
BLUE RIDGE PARKWAY
Agency
Case No. 0-NG-1144
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority under section 7105(a)(2)(E) of the
Federal Service Labor-Management Relations Statute (the Statute) and
concerns the negotiability of five provisions of a negotiated agreement
disapproved by the Agency head under section 7114(c) of the Statute.
/1/
II. Provision 1
Article XIV, Annual Leave, Section 4
In the event of a conflict in annual leave scheduling among
employees, the senior employee based on length of service, using
service computation dates, will be given first choice in the
absence of determinable hardship and thereafter rotated in
descending seniority sequence. However, length of service shall
not be used for the same choice leave each year, (e.g., Christmas
Holidays, July 4th Holidays, New Year Holidays, first week of
hunting season and etc.).
A. Positions of the Parties
The Agency asserts that the provision violates its right to assign
work under section 7106(a)(2)(B) of the Statute because the provision
mandates leave approvals, based on seniority, which may conflict with
work requirements. The Union disputes this assertion.
B. Analysis and Conclusion
The provision is negotiable. As worded and explained by the Union,
the provision creates a procedure for resolving conflicts between
employee leave schedules. Where the number of employees who apply for
leave for a particular period exceeds the number management can release
from work during that period, the provision requires that the more
senior employees will be given preference. The Agency's interpretation
of the provision -- that it requires that employee leave requests take
precedence over mangement's work requirements -- is unsupported. The
provision creates a procedure for resolving conflicts among employee
requests for leave.
Although the Agency correctly cites Authority precedent on
management's right to disapprove leave requests which conflict with its
work requirements, for example, 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 580, 583-84 (1984), that precedent is inapplicable to
this provision because the provision preserves management's right to
schedule and approve leave based on its work requirements.
III. Provision 2
Article XIV, Annual Leave, Section 8
An employee may be called back from leave when an emergency
arises.
A. Positions of the Parties
The Agency claims the provision conflicts with management's right to
assign work under section 7106(a)(2)(B) of the Statute because it would
prevent management from calling employees back from leave except in
emergencies. The Union asserts that the Agency has misinterpreted the
provision.
B. Analysis and Conclusion
The provision is negotiable. As worded and explained by the Union,
the provision advises employees that they may be called back from leave
in emergencies. The provision does not limit management's right to
cancel leave to a particular definition of an "emergency" or limit
management's right to cancel leave for other reasons. Further, unlike
provision 2 in National Federation of Federal Employees, Local 2059 and
U.S. Department of Justice, U.S. Attorney's Office, Southern District of
New York, New York, 22 FLRA No. 13 (1986), this provision does not limit
the Agency's right to act in emergencies under section 7106(a)(2)(D) of
the Statute by imposing a definition of "emergency" on management.
IV. Provision 3
Article XXVI, Disciplinary and Adverse Actions, Section 6(b)
(b) An employee against whom an adverse action is proposed is
entitled to a total of at least thirty (30) calendar days advance
written notice prior to the effective date of the action taken.
An employee shall be given at least fifteen (15) calendar days
advance notice prior to the effective date of a suspension of
fourteen (14) days or less. These time frames shall not preclude
the EMPLOYER from taking immediate action if the crime provisions
are invoked in accordance with 5 U.S.C. 7513(b)(1) and 5 C.F.R.
752.404(d). (Only the underscored sentence is in dispute.)
A. Positions of the Parties
The Agency argues that the disputed language conflicts with
management's right to discipline employees under section 7106(a)(2)(A)
of the Statute because the provision would prevent it from suspending
employees on 24-hour notice. The Agency also argues that the disputed
language conflicts with management's right to assign work under section
7106(a)(2)(B) of the Statute because suspending an employee from work
inherently concerns whether work will be assigned to that employee. The
Union argues that the provision is negotiable because it constitutes a
"procedure" or an "appropriate arrangement" under section 7106(b)(2) and
(3) of the Statute and it does not conflict with managment's right to
discipline employees.
B. Analysis and Conclusion
The disputed language is within the Agency's duty to bargain under
section 7106(b)(2) of the Statute. As worded and explained by the
Union, the disputed language applies to suspensions of employees under 5
U.S.C. Sections 7501-7504 and 5 CFR Section 752.101-.203, which require
agencies to follow certain procedures when they propose to suspend
employees for 14 days or less. For these suspensions, under 5 U.S.C.
Section 7503(b)(2) employees are to be provided with a "reasonable time"
to answer the proposed action. Under 5 CFR Section 752.203(c),
employees must be given at least 24 hours to answer.
The Agency has not argued or shown that an answer period of 15 days,
as provided in the disputed language, is contrary to 5 U.S.C. Section
7503(b)(2) or 5 CFR Section 752.203(c). Accordingly, we find that the
disputed language is consistent with applicable law and regulations.
The disputed language also does not conflict with management's right to
take disciplinary action. Under no circumstances would the provision
preclude the Agency from initiating disciplinary action against an
employee. Rather, it establishes a procedure to be followed after
disciplinary action has been proposed. Compare National Federation of
Federal Employees, Local 615 and National Park Service, Sequoia and
Kings Canyon National Parks, U.S. Department of the Interior, 17 FLRA
318 (1985), aff'd sub nom. NFFE Local 615 v. FLRA, No. 85-1299 (D.C.
Cir. Sept. 12, 1986). The provision balances the Agency's need to
impose discipline against employees' rights to have notice of and an
opportunity to answer the charges against them and does not prevent the
Agency from exercising its rights. The provision, therefore,
constitutes a negotiable procedure under section 7106(b)(2).
As noted by the Union, other language in the agreement provision,
which refers to 5 U.S.C. Section 7513 and 5 CFR Section 752.404,
preserves the Agency's right to separate an employee from the workplace,
without delay, for a serious offense and where the employee's presence
at the workplace might threaten other Agency employees, Agency property,
or other legitimate Agency interests. The Office of Personnel
Management's (OPM's) implementing regulations at 5 CFR Section
752.404(b)(3)(i)(v) detail a list of options for this purpose. In
addition, the fact that the provision requires the Agency to follow the
procedures of 5 U.S.C. Sections 7512-7514 and 5 CFR Section 752.401-.406
when contemplating such immediate actions does not render the provision
nonnegotiable. The Authority has consistently held that provisions
requiring management to exercise its statutory rights under section 7106
in compliance with law are within the duty to bargain. American
Federation of Government Employees. AFL-CIO, International Council of
U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 11 FLRA 672, 677-78 (1983).
Finally, the provision does not affect the Agency's right to assign
work. The provision does not affect the Agency's determinations
concerning the assignment of work to an employee during the period prior
to an employee's suspension and does not require that suspensions become
effective at any particular time. The Agency is therefore free to
determine employees' work assignments during the period a suspension is
in prospect, and when it becomes effective.
V. Provision 4
Article XXX, Health and Safety, Section 6
The EMPLOYER will provide relief or assistance to an employee
who is required to lift an item, or operate machinery or
equipment, requiring physical exertion beyond safe limits
specified in current applicable directives.
A. Positions of the Parties
The Agency asserts that the provision conflicts with management's
right to assign work because it would allow an employee to refuse work.
The Union disputes this and argues that the provision is negotiable as
an "appropriate arrangement" under section 7106(b)(3) of the Statute.
B. Analysis and Conclusion
The provision is negotiable. The provision requires management to
provide assistance to employees -- in the form of other personnel or
additional tools or equipment -- when the physical exertion required for
a task exceeds safe limits under applicable directives. As worded and
explained by the Union, the provision does not prevent management from
assigning work to employees or empower employees to refuse work
assignments. Accordingly, the provision does not conflict with
mangement's right to assign work under section 7106(a)(2)(B) of the
Statute.
The assistance required by the provision would take the form of
additional personnel, tools or equipment. Union Response to Agency
Statement of Position at 6. Although not raised by the Agency,
implementation of the provision could affect management's rights to
determine numbers, types, and grades of employees who are assigned to a
work project or the methods and means of performing work under section
7106(b)(1) of the Statute. See, for example, International Organization
of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508,
524 (1983); Laborers' International Union, Local No. 1276 and
Department of Defense, Defense Logistics Agency, 12 FLRA 62 (1983).
These matters are permissive subjects of bargaining under section
7106(b)(1), that is, matters on which the Agency may elect to bargain or
not to bargain. See, for example, American Federation of Government
Employees, AFL-CIO, National Immigration & Naturalization Service
Council and U.S. Department of Justice, Immigration & Naturalization
Service, 8 FLRA 347, 381-82 (1982), enforcement denied as to other
matters sub nom. Department of Justice v. FLRA, 727 F.2d 481, 487-88
(5th Cir. 1984). Negotiations on permissive subjects may begin and
later cease. See Civil Service Reform Act of 1978: Conference Report,
H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 154 (1978), reprinted in
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, H.R. Comm.
Print No. 96-7, 96th Cong., 1st Sess. 793, 822 (1979) (where it is
stated: "In sum, the conference report fully preserves the right of
management to refuse to bargain on "methods and means" and to terminate
bargaining at any point even if it initially agrees to negotiations.")
In this case, bargaining on the provision occurred at the local level
and an agreement was executed. Disapproval of the provision occurred
pursuant to section 7114(c) of the Statute. Local agreements are
subject to review by the agency head (or designee) under section
7114(c). National Treasury Employees Union, Chapter 52 and Internal
Revenue Service, Austin District, 23 FLRA No. 93 (1986). As for the
scope of the review, however, "(s)ection 7114(c) strictly limits the
occasions in which the head of the agency may invalidate an
agreement(.)" AFGE v. FLRA, 778 F.2d 850, 859 n.15 (D.C. Cir. 1985).
Section 7114(c) requires approval by the agency head "if the agreement
is in accordance with the (Statute) and any other applicable law, rule,
or regulation(.)"
We conclude that agreement provisions may not be disapproved by an
agency head under section 7114(c) simply because they relate to section
7106(b)(1) matters. These provisions are not inconsistent with the
Statute. They differ, in this respect, from provisions which conflict
with management's rights under section 7106(a) of the Statute. Unlike
section 7106(a), which provides that "nothing in (the Statute) shall
affect the authority of any management official" to exercise those
rights, section 7106(b)(1) provides that "nothing in this section shall
preclude an agency" from electing to bargain on those subjects.
Provisions relating to section 7106(b)(1) matters, therefore, may be
included in an agreement in accordance with the Statute. As a result,
unless they are otherwise inconsistent with applicable law, rule, or
regulation, these provisions are not subject to disapproval under
section 7114(c). /2/
VI. Provision 5
Article XII, Adverse Weather Policy, Section 5
Within those functions where there are two or more employees
performing the same function and less than the full work force is
required a reasonable effort will be made to rotate the personnel
designated as mission essential. The names of the personnel
designated as mission essential will be posted in the work area
and updated to reflect changes.
A. Positions of the Parties
The Agency asserts that the provision conflicts with section
7106(a)(2)(A) because it would prevent management from assigning
employees to tasks based on their individual abilities. The Agency also
asserts that the provision prevents the Agency from determining which
Agency personnel are mission essential and that it is nonnegotiable for
this reason because these determinations are critical for the Agency's
internal security practices. The Union disputes these assertions.
B. Analysis and Conclusion
The provision is negotiable. As explained by the Union, this
provision merely requires that assignments of personnel who are mission
essential be rotated in situations where less than a full workforce is
required, to ensure that these assignments are evenly distributed. The
provision does not affect management's discretion to determine which
Agency personnel are mission essential. The provision also explicitly
preserves management's right to change these determinations as it deems
necessary.
The provision is analogous to the proposals on overtime assignments
held negotiable by the Authority in National Federation of Federal
Employees, Local 1622 and U.S. Commissary, Fort Meade, Maryland, 16 FLRA
998, 999-1000 (1984) and American Federation of Government Employees,
AFL-CIO, National Joint Council of Food Inspection Locals and Department
of Agriculture, Food Safety and Quality Service, Washington, D.C., 9
FLRA 663, 664-65 (1982). The Authority found that those proposals did
not violate management's right to assign work under section
7106(a)(2)(B) because they only established procedures for assigning
work to employees who normally perform such work.
VII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency rescind its disapproval of
the disputed provisions. /3/
Issued, Washington, D.C., November 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In response to the Union's petition for review, the Agency
withdrew its disapprovals of two provisions: "Article XIV, Annual
Leave, Section 1" and "Article XXVIII, Training, Section 3."
Accordingly, these provisions need not be considered here.
(2) For a similar conclusion under the analogous agency head review
provisions of Executive Order 11491, as amended, see AFGE Council of
Locals 1497 and 2165 and Region 3, General Services Administration,
Baltimore, Maryland, 3 FLRC 397, 400-01 (1975).
(3) In finding the disputed provisions to be negotiable, the
Authority makes no judgment as to their merits.