[ v27 p467 ]
27:0467(68)NG
The decision of the Authority follows:
27 FLRA No. 68
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL
IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL
Union
and
U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Agency
Case No. 0-NG-1069
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This petition for review comes before the Authority pursuant to
section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
Statute (the Statute) and raises issues concerning the negotiability of
seven provisions of an agreement which were disapproved by the Agency
head pursuant to section 7114(c) of the Statute.
The Union's petition for review included fourteen additional
provisions. After the petition for review was filed, the Agency
withdrew its disapproval of thirteen of these provisions pursuant to the
Union's stated meaning of those provisions. Thus, the petition for
review is moot as to the following provisions: Article 13, E(3) and
(4); Article 17H; Article 17M; Article 20E; Article 22C; Article
27C; Article 29E and G; Article 32V and D(2); Article 36F; Article
43G; Article 50; Article 56G(3); and Article 56E(3). Further, in its
response to the Agency's Statement of Position, the Union withdrew its
petition as to disputed language within Article 47D(3). Therefore, the
petition is moot as to that issue as well.
II. Provision 1
Article 13D:
An employee may file a grievance pursuant to this Article
within fifteen (15) days following:
(1) the date of the alleged discriminatory incident, or
(2) the date upon which the aggrieved became aware of the
alleged discriminatory incident or situation; or
(3) the date of the employee's final interview with the Equal
Employment Opportunity Counselor. (Only the underscored portions
are in dispute.)
A. Positions of the Parties
The Agency argues that when an employee chooses to initiate informal
counseling with an Equal Employment Opportunity (EEO) counselor, the
employee has made the election between the negotiated grievance
procedure and a statutory procedure which is required by section 7121(d)
of the Statute. /1/ According to the Agency, the disputed language is
contrary to the Statute because it would permit an employee to obtain
EEO counseling and then file a grievance under the negotiated procedure
concerning the same matter. In support of its argument, the Agency
asserts that the Equal Opportunity Employment Commission (EEOC) has
exclusive regulatory authority in these matters under 42 U.S.C. Section
2000e-16(b) /2/ and that EEOC regulations in 29 C.F.R. Section
1613.214(a)(1)(i) and (ii) /3/ provide that a complainant begins an EEO
action when counseling is initiated. The Agency also relies on an EEOC
decision which states that "first contact with the counselor, notifying
the counselor of the alleged discriminatory matter" initiates an action
under EEOC regulations. Healy v. General Services Administration, EEO
Appeal No. 01831645 (July 13, 1984).
The Union contends that an EEO action is not initiated until an
employee files a formal written complaint pursuant to 29 C.F.R. Section
1613.214. Thus, the disputed language is consistent with applicable
law, the Union argues, as an employee would be able to choose the
grievance process prior to initiating formal EEO procedures. In
addition, the Union points out that the EEOC regulations cited by the
Agency deal only with timeliness in filing an EEO complaint and do not
define what constitutes the timely initiation of an action.
B. Analysis
The disputed language in Article 13D would permit an employee to file
a grievance under the negotiated procedure within 15 days of the
employee's final interview with an EEO Counselor. Therefore, under the
provision an employee could grieve a matter which the employee had
previously brought to the attention of an EEO counselor. However, the
Statute provides in section 7121(d) that when an employee affected by a
prohibited personnel practice under section 2302(b)(1), /4/ such as an
allegation of discrimination, has raised the matter under a statutory
procedure, the employee may not file a written grievance in the
negotiated procedure concerning the same matter. /5/ Thus, the question
raised in this negotiability dispute is whether consultation with an EEO
counselor timely initiates the statutory EEO procedure.
This issue was resolved by the Authority in U.S. Department of
Justice, United States Marshals Service and International Council of
U.S. Marshals Service Locals, AFGE, 23 FLRA No. 60 (1986). In that
case, which resulted from the filing of an exception to an arbitration
award, the agency argued that the grievant had raised the matter he
grieved in a prior consultation with an EEO counselor. The agency
asserted that the award was barred by, and that it was consequently
deficient as contrary to, section 7121(d).
Without deciding whether the matter at issue was, in fact, the same,
the Authority concluded that "a grievance timely filed in writing in
accordance with the negotiated grievance procedure is only precluded or
barred by the grievant having earlier raised the same matter by the
timely filing of a formal written complaint, in accordance with 29 CFR
Section 1613.214." United States Marshals Service, slip op. at 4,
(emphasis added). In reaching this conclusion, we found that 29 C.F.R.
part 1613 does not specify when an action concerning a matter of
discrimination is raised under the EEO procedures. However, we noted
that the EEOC has proposed to amend its regulations to provide at 29
C.F.R. Section 1613.219 that an election to proceed under EEO procedures
is indicated only by the filing of a formal written complaint and that
the use of the precomplaint process of 29 C.F.R. Section 1613.213 does
not constitute an election of remedies. 51 Fed. Reg. 29482, 29483,
39488-89 (to be codified at 29 C.F.R. pt. 1613) (proposed Aug. 18,
1986). Additionally, we stated that one of the primary purposes of
section 7121 is to preclude litigation of the same matter under the
applicable statutory procedure and the negotiated grievance procedure.
Since the precomplaint process is a predominantly informal,
confidential, and conciliatory process, the avoidance of litigation in
two forums is not served by barring grievances from the negotiated
grievance procedure because employees have sought counseling under EEO
procedures.
C. Conclusion
Based on the reasoning and analysis in United States Marshals
Service, we conclude that the timely initiation of an action under the
statutory EEO procedure occurs with the filing of a formal written
complaint. Thus, Provision 1 is not inconsistent with the Statute and
we hold that it is within the duty to bargain.
III. Provisions 2 and 7
Provision 2, Article 13E(9) (Equal Employment Opportunity) and
Provision 7, Article 57, G(9) (Sexual Harassment) are identical and
state as follows:
At any stage in the processing of an EEO complaint, the
employee shall have the right to be accompanied, represented, and
advised by a representative of his/her choosing.
A. Positions of the Parties
The Agency contends that these provisions are nonnegotiable because
they intrude in an area over which the EEOC has exclusive regulatory
authority pursuant to 42 U.S.C. Section 2000e-16(b). Further, the
Agency asserts that no statutory right of representation exists at the
counseling stage. The Union argues that the provisions are negotiable
since they constitute an affirmation of rights already in existence
under 29 C.F.R. Section 1613.214(b).
B. Analysis and Conclusion
The disputed provisions contain nearly the same language as 29 C.F.R.
Section 1613.214(b). That section provides, in part, that "(a)tany
stage in the presentation of a complaint, including the counseling stage
under Section 1613.213, the complainant shall have the right to be
accompanied, represented, and advised by a representative of his own
choosing." Thus, these provisions are consistent with regulation and
affirm existing rights of bargaining unit employees. In this regard,
contrary to the Agency's assertion, it is noted that the regulations
specifically provide for representation in the counseling stage of an
EEO matter.
The disputed provisions in this case are similar to those in American
Federation of Government Employees, Local 2761 and U.S. Army Adjutant
General Publication Center, St. Louis, Missouri, 17 FLRA 899 (1985)
(Proposal 3). In that case, the union sought to negotiate two proposals
stating that management was committed to the EEO program and would
allocate necessary resources to the program, including a staff of
trained EEO counselors. The Authority concluded that the proposals
implemented and provided generalized support for the agency's EEO
program consistent with law. Similarly, in this case, the provisions
reinforce the rights of bargaining unit employees to representation in
the EEO complaint process. Therefore, based on U.S. Army Adjutant
General Publication Center, we find that the provisions are within the
duty to bargain. See also Delaware Army and Air National Guard and
Association of Civilian Technicians, Delaware Chapter, 16 FLRA 398, 402
(1984) (proposal stating that no position would be filled in any manner
that would circumvent the EEO rights of any bargaining unit member held
to constitute an affirmation of rights already in existence and to
require the employer to act in a manner consistent with law).
IV. Provision 3
Article 17K(2):
Approved annual leave requests for sixteen (16) hours or more,
once approved, will be cancelled only for valid operational
reasons which require the employee not to take leave. Valid
operational reasons include such matters as illness or death of
another employee, directed details by authority outside the
Service, special mission requirements which do not lend themselves
to normal scheduling, and other events which create an actual
necessity for personnel and not reasons which may make cancelling
leave merely desirable. (Only the underscored portion is in
dispute.)
A. Positions of the Parties
The Agency claims that Provision 3 interferes with its rights under
section 7106(a)(2)(A) and (B) of the Statute to direct employees and
assign work by unduly restricting its determination of when annual leave
will be taken. In this regard, the Agency relies on Federal Personnel
Manual (FPM) Letter 630-29 (Jan. 28, 1981) which states that agencies
may fix the time at which leave is taken. Provision 3, according to the
Agency, would require that management persuade an arbitrator that a
business necessity existed for an employee's services before leave was
cancelled. Since management must schedule and approve annual leave
early in the calendar year under the parties' collective bargaining
agreement, the Agency asserts the arbitration requirement would prevent
it from considering contingencies that might arise after leave was
approved.
The Union responds that Provision 3 does not conflict with
management's unilateral discretion to cancel approved annual leave. In
support of its argument, the Union asserts that the standard established
in Provision 3 is consistent with FPM Letter 630-29. Furthermore, the
Union states that the provision does not require arbitration prior to a
leave cancellation.
B. Analysis
Contrary to the Agency's argument, we find that Provision 3 does not
set a precondition on management's right to cancel annual leave. The
language of the provision does not require arbitration before management
cancels approved annual leave. Moreover, there is no information in the
record to support the Agency's contention that the provision would
require it to arbitrate before it cancels an employee's leave.
In agreement with the Union, we find that the standard in Provision
3, that approved annual leave for sixteen hours or more may be cancelled
"only for valid operational reasons," is consistent with Office of
Personnel Management (OPM) guidance in FPM Letter 630-29. That letter
states in section 2:
Denial of a leave request or cancellation of approved leave
normally needs to be based on the necessity for the employee's
services. Leave must not be denied or cancelled for arbitrary or
capricious reasons. Denial or cancellation of leave is not
disciplinary in character and must not be used as a punitive
measure.
In our view, Provision 3 requires that management make the same
determination that is required by the standard in the cited FPM letter.
That is, management must consider whether an employee's services are
needed for operational reasons before cancelling approved annual leave.
Furthermore, the examples of "valid operational reasons" in Provision 3
make it clear that management is able to reconsider annual leave which
it previously approved. Changed circumstances, such as an unexpected
lack of personnel to perform work, unanticipated assignments, and
similar contingencies which were unknown to management when leave was
approved would constitute "valid operational reasons" for leave
cancellation.
After consideration of the above factors, we conclude that the
disputed portion of Provision 3 does not restrict management's
discretion to determine when leaved will be taken. Compare American
Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army
Missile Command, The U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, the U.S. Army Information Systems
Command-Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (provision
requiring an agency to approve an annual leave request submitted because
of an employee's dire physical, family, or other personal emergency
regardless of its need to assign overtime work held nonnegotiable
because it excessively interfered with management's right to assign
work); 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 (1984)
(Proposal 4) (proposal held nonnegotiable because it left management no
discretion to deny an employee's leave request if the request was
clearly documented).
C. Conclusion
In these circumstances, we hold that Provision 3 does not interfere
with management's right to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute and is within the duty to
bargain.
V. Provision 4
Article 24D(1) and (2):
(1) The Service will make every effort to accommodate the
practice of religious beliefs by individual employees as
consistent with the needs of the Service. Employees who are
required to be absent for some period of the workday because of
religious observance or belief, may elect to work compensatory
overtime as a substitute for the time off, or take appropriate
leave.
(2) The employer shall grant compensatory time off to an
employee requesting such time off, and shall in each instance
afford the employee the opportunity to work compensatory overtime
in order to repay the compensatory time off. A request may be
disapproved, however, if the requested change in work schedule
would interfere with the ability of an organization to efficiently
accomplish its mission. In such circumstances, there is no
obligation to approve requests for time off for religious
observances. (Only the underscored portions are in dispute.)
A. Positions of the Parties
The Agency contends that Provision 4 conflicts with its right to
assign work under section 7106(a)(2)(B) of the Statute because
subsection D(1) mandates that leave be granted for religious reasons at
a particular time. Moreover, the standard for review, according to the
Agency, is inconsistent with, and presumably stricter, than the "undue
hardship" standard set forth in 42 U.S.C. Section 2000e(j), the Civil
Rights Act of 1964, as amended. Additionally, the Agency asserts that
the provision would subject management's decisions regarding its need
for an employee's services to arbitral review.
The Union claims that the provision does not mandate that leave be
granted to accommodate employees' religious beliefs because subsection
D(2) specifically states that requests may be disapproved. Further, the
Union argues that the provision's "efficient accomplishment of mission"
standard is consistent with the "undue hardship" standard of 42 U.S.C.
Section 2000e(j).
B. Analysis
Considering the disputed subsections together, we conclude that
subsection D(1) does not mandate that management grant leave or
compensatory time off at a particular time to an employee to accommodate
the practice of religious beliefs. Rather, the language "make every
effort" in subsection D(1) is limited by the standard set forth in
subsection D(2) which states that leave may be disapproved if the
requested change would interfere with the ability of the organization to
efficiently accomplish its mission. Moreover, the language at D(1)
refers to the "needs of the Service." Therefore, in disagreement with
the Agency, we find that management retains discretion under Provision 4
to determine whether an employee's request for leave or compensatory
time will be approved.
Also, contrary to the Agency's assertions, we see no conflict between
the standard in the disputed provision and the "undue hardship" test in
42 U.S.C. Section 2000e(j), the Civil Rights Act of 1964. The latter
standard requires employers including Federal agencies, to "reasonably
accommodate to an employee's . . . religious observance or practice
without undue hardship on the conduct of the employer's business." In
addition, in 1978 Congress required that OPM establish regulations
providing for compensatory time off for religious observances. See 5
U.S.C. Section 5550a. The standard in subsection D(2) is essentially
the same as that established by OPM in 5 C.F.R. Section 550.1002(b)
which states as follows:
To the extent that such modifications in work schedules do not
interfere with the efficient accomplishment of an agency's
mission, the agency shall in each instance afford the employee the
opportunity to work compensatory overtime and shall in each
instance grant compensatory time off to an employee requesting
such time off for religious observances when the employee's
personal religious beliefs require that the employee abstain from
work during certain periods of the workday or workweek. (Emphasis
added.)
In our view, the Government-wide regulation concerning work schedule
changes to accommodate employees' personal religious beliefs applies the
broader religious accommodation provision of the Civil Rights Act.
Inasmuch as Provision 4 incorporates the standard found in a
Government-wide regulation, the Agency's argument that the standard is
inappropriate cannot be sustained.
It is noted that the Authority has consistently held nonnegotiable
proposals which establish a standard different from that found in 5
C.F.R. Section 550.1002(b). Federal Union of Scientists and Engineers,
Local R1-144 and Department of the Navy, Naval Underwater Systems
Center, 26 FLRA No. 67 (1987) (proposal requiring an agency to grant
compensatory time off unless it "would seriously interfere with the
accomplishment of the activity's mission"). See also American
Federation of Government Employees, AFL-CIO, Local 1923 and Department
of Health and Human Services, Social Security Administration, Baltimore,
Maryland, 17 FLRA 543, 544 (1985); 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, 584 (1984) (Proposal 5).
Additionally, the Agency argues that the provision is nonnegotiable
because it would subject management decisions regarding accommodation
for religious observances to the grievance procedure and permit the
substitution of an arbitrator's judgment for that of management. We
reject this argument based on section 7103(a)(9)(C)(ii) of the Statute
which defines a grievance to include "any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment." As discussed above, provision for a
change in work schedules for religious observances and a standard to
evaluate management's decisions on employees' requests is part of a
Government-wide regulation. Therefore, regardless of whether the
disputed language becomes part of the contract, a management decision
concerning leave or a change in work schedule is a grievable matter
under section 7103. See National Treasury Employees Union and Internal
Revenue Service, 3 FLRA 693 (1980) (laws affecting conditions of
employment are encompassed within the definition of "grievance" under
section 7103(a)(9) and thus are within the scope of a negotiated
procedure under section 7121).
C. Conclusion
We conclude that the disputed language in Provision 4 does not
conflict with the Agency's right to assign work at a particular time
under section 7106(a)(2)(B) of the Statute. In these circumstances, we
find that the disputed portions in Provision 4 are within the duty to
bargain.
V. Provision 5
Article 38D:
The Service will attempt to minimize actions that adversely
affect employees which often follow reduction-in-force by using,
to the extent feasible, attrition to accomplish reductions. All
reductions-in-force will comply with applicable laws and
regulations.
Article 38J:
The Service will attempt to minimize actions that adversely
affect employees which often follow a reduction-in-force by using,
to the extent possible, attrition to accomplish reductions. In
the event career or career-conditional employees are separated by
reduction-in-force, the Service will refer these names to the
Department of Justice for inclusion on the appropriate
reemployment priority list in accordance with governing
regulations. Employees will be given preference for reemployment
consistent with governing regulation. (Only the underscored
portions are in dispute.)
A. Positions of the Parties
The Agency contends that the disputed language violates management's
rights to determine its organization under section 7106(a)(1) of the
Statute; to hire, layoff, and retain employees pursuant to section
7106(a)(2)(A); to determine the personnel by which agency operations
shall be conducted under section 7106(a)(2)(B); and, to fill positions
from any appropriate source under section 7106(a)(2)(C) of the Statute.
Further, the Agency maintains that the provision is nonnegotiable under
section 7117(a)(1) of the Statute because it conflicts with FPM chapter
335, Subchapter 1-4, Requirement 4, by preventing management from using
any appropriate source for selections.
The Union argues that the disputed language constitutes a procedure
and an appropriate arrangement within the meaning of sections 7106(b)(2)
and (3) respectively and does not prevent the Agency from "acting at
all." Further, the Union asserts that FPM chapter 335 permits an agency
to reassign employees following a reassignment which is the result of a
reduction in force (RIF).
B. Analysis
The disputed portions of Provision 5 would require that the Agency
use attrition, to the extent feasible, to accomplish reductions in
staffing prior to conducting a RIF. In this regard, the provision is to
the same effect as Proposals 1 and 2 in Congressional Research Employees
Association and Library of Congress, Congressional Research Service, 25
FLRA No. 21 (1987). In that case, the Authority found that the language
"to the extent that it is practicable" and "whenever possible" mandated
that the agency exhaust other cost-saving methods, including attrition,
before conducting a RIF and prevented the agency from exercising its
section 7106(a)(2)(A) right to layoff employees without using
alternative cost-saving measures first. We also concluded that the
cost-saving methods suggested in these proposals interfered with the
management right to determine the personnel by which agency operations
would be conducted under section 7106(a)(2)(B) of the Statute. However,
we found that the requirement that the agency utilize attrition and
other cost-saving measures did not excessively interfere with
management's exercise of its rights and thus constituted appropriate
arrangements under section 7106(b)(3) for employees who would be
adversely affected by a RIF. /6/ Therefore, for the reasons set forth
more fully in Congressional Research Service and the cases cited in that
decision, we conclude that Provision 5 is negotiable as an appropriate
arrangement under section 7106(b)(3).
The Agency also asserts that the provision is nonnegotiable because
it conflicts with a Government-wide regulation -- Requirement 4 of FPM
chapter 335, which grants management the right to select from any
appropriate source. In this regard, the Agency interprets the provision
as requiring management to fill vacancies by reassignment to avoid
laying off employees. However, there is nothing in the language of the
provision which dictates that management must reassign employees to
accomplish reductions. Rather, the provision speaks specifically of
utilizing attrition to avoid RIFs. Moreover, the Union states that the
provision was not intended to prevent management from hiring from
sources other than employees who might be adversely affected by a RIF.
Petition for Review at page 2. In these circumstances, we conclude that
the provision does not concern management's right to fill vacancies from
any appropriate source and reject the Agency's argument that Provision 5
is inconsistent with a Government-wide regulation.
C. Conclusion
Based on the reasoning and analysis above, we conclude that the
disputed portions of Provision 5 are within the duty to bargain as
appropriate arrangements to assist employees adversely affected by a
RIF.
VI. Provision 6
Article 38K
If, as a result of a reduction-in-force or a transfer of
function, an employee is reassigned to a new position, he will be
given a reasonable period of time to attain satisfactory
performance. If the employee cannot attain satisfactory
performance, reasonable efforts will be made to make a new
assignment at the same grade level. (Only the underscored
sentence is in dispute.)
A. Positions of the Parties
The Agency contends that the disputed sentence bars the exercise of
management's right to hire, remove, demote, or reassign under section
7106(a)(2)(A) of the Statute. The Agency also maintains that the
sentence is inconsistent with 5 U.S.C. Section 4302(b)(6) as it prevents
management from taking action for unacceptable performance. Finally,
the Agency argues that the disputed sentence violates management's right
to make selections under section 7106(a)(2)(C) of the Statute.
The Union argues that the disputed sentence is both a procedure and
appropriate arrangement within the meaning of sections 7106(b)(2) and
(3), respectively. Further, the Union states that an agency may
reassign an employee who was reassigned during a RIF consistent with FPM
chapter 351 and 5 U.S.C. Section 4303.
B. Analysis
We find that the disputed sentence in Provision 6 would require the
Agency to reassign an employee who is unable to perform acceptably and
who is occupying a position as a result of an earlier RIF or transfer of
function. While the phrase "reasonable efforts will be made" does not
specifically require the Agency to reassign an employee whose
performance is unacceptable, management's implementation of the
provision would be mandatory rather than discretionary. That is, the
practical consequences of the second sentence would be that in nearly
all instances where a vacancy existed for which an affected employee
qualified, the Agency would be obligated to reassign the employee. See
National Federation of Federal Employees, Local 943 and Department of
the Air Force, Headquarters Kessler Technical Training Center, Kessler
Air Force Base, Mississippi, 19 FLRA 949, 951 (1985) (Proposal 2)
(proposal requiring management to "assist" employees in finding
assignments compatible with their medical condition held to require the
reassignment of employees whenever possible). See also American
Federation of Government Employees, AFL-CIO, National Border Patrol
Council and Department of Justice, Immigration and Naturalization
Service, 16 FLRA 251, 252 (1984) (holding that the phrase "to the
maximum extent possible" does not leave an agency discretion to exercise
its rights to direct employees and assign work); American Federation of
Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank
Board, New York District Office, 13 FLRA 446, 450-52 (1983) (holding
that the phrase "to the extent practicable" places substantive
limitation on agency's right to identify critical elements).
Since our conclusion is that the Agency's implementation of the
disputed sentence in Provision 6 would be mandatory, we find that the
sentence is to the same effect as the proposal held to be nonnegotiable
in National Labor Relations Board Union and National Labor Relations
Board, Office of the General Counsel, 18 FLRA 320 (1985). In that case,
the proposal would have required the agency to reassign an employee in
every instance prior to removing or reducing the employee in grade. The
Authority found that the proposal directly interfered with management's
rights under section 7106(a)(2)(A) in situations in which an employee's
performance was unacceptable and therefore the proposal did not
constitute a procedure within the meaning of section 7106(b)(2) of the
Statute. In addition, the Authority determined that the proposal would
not protect the needs of management to decide whether to fill vacancies
or to determine what remedial actions were commensurate with a
particular employee's performance deficiencies. The Authority concluded
that the proposal interfered with management's rights under section
7106(a)(2)(A) to an excessive degree and therefore was not an
appropriate arrangement under section 7106(b)(3). In reaching this
conclusion, the Authority stated that the proposal concerned employees
who management had determined were unable or unwilling to perform the
duties of their positions at an acceptable level. Furthermore, it was
noted that under 5 U.S.C. Section 4302(b)(6) an employee has an
opportunity to demonstrate acceptable performance before action may be
taken against that employee. /7/ National Labor Relations Board at 324.
The second sentence in Provision 6 in this case, like the proposal in
National Labor Relations Board, directly interferes with management's
right to remove or reduce in grade an employee whose performance is
unacceptable. Therefore, the second sentence in Provision 6 also does
not constitute a negotiable procedure within the meaning of section
7106(b)(2) of the Statute. American Federation of Government Employees,
Local 1923 v. FLRA, No. 86-1297, slip op. 7-8 (D.C. Cir. May 19, 1987)
aff'g on other grounds American Federation of Government Employees,
Local 1923, AFL-CIO and Department of Health and Human Services, Office
of the Secretary, Headquarters, Office of the General Counsel, Social
Security Division, 21 FLRA No. 28 (1986) (Proposal 6)).
We turn now to whether the disputed sentence is an appropriate
arrangement. In this regard, the Union states that its intent in
Provision 6 is to ameliorate the adverse affects of reassignments which
occurred as a result of a RIF or transfer of function. However, we note
that under the disputed language the Agency would be unable to decide
whether to fill vacancies as well as to determine its course of action
if management decided that an employee's performance was unacceptable.
Thus, like the proposal in National Labor Relations Board, we find that
the second sentence of Provision 6 also excessively interferes with
management's rights under section 7106(a)(2)(A).
C. Conclusion
We hold, based on the reasoning and analysis in National Labor
Relations Board, that the disputed sentence in Provision 6 does not
constitute a negotiable procedure under section 7106(b)(2) or an
appropriate arrangement under section 7106(b)(3) and therefore is not
within the duty to bargain.
VII. Order
The Agency must rescind its disapproval of Provisions 1, 2, 3, 4, 5,
and 7 which were bargained on and agreed to by the parties at the local
level. /8/ The petition for review as to Provision 6 is dismissed.
Issued, Washington, D.C., June 23, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7121(d) of the Statute, in part, provides:
An employee shall be deemed to have exercised his option under
this subsection to raise the matter under either a statutory
procedure or the negotiated procedure at such time as the employee
timely initiates an action under the applicable statutory
procedure or timely files a grievance in writing, in accordance
with the provisions of the parties' negotiated procedure,
whichever event occurs first.
(2) 42 U.S.C. 2000e-16(b) provides:
Except as otherwise provided in this subsection, the Equal
Opportunity Commission shall have authority to enforce the
provisions of subsection (a) of this section through appropriate
remedies, including reinstatement or hiring of employees with or
without back pay, as will effectuate the policies of this section,
and shall issue such rules, regulations, orders and instructions
as it deems necessary and appropriate to carry out its
responsibilities under this section . . . .
(3) 29 C.F.R. Section 1613.214 provides as follows:
Section 1613.214 Filing and presentation of complaint.
(a) Time limits. (1) An agency shall require that a complaint
be submitted in writing by the complainant or his representative
and be signed by the complainant. The complaint may be delivered
in person or submitted by mail. The Agency may accept the
complaint for processing in accordance with this subpart only if
--
(i) The complainant brought to the attention of the Equal
Employment Opportunity Counselor the matter causing him to believe
he had been discriminated against within 30 calendar days of the
date of that matter or, if a personnel action, within 30 calendar
days of its effective date, and
(ii) The complainant or his representative submitted his
written complaint to an appropriate official within 15 calendar
days of the date of his final interview with the Equal Employment
Opportunity Counselor.
(4) 5 U.S.C. 2302(b)(1) provides as follows:
Prohibited personnel practices
(b) An employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not, with
respect to such authority --
(1) discriminate for or against any employee or applicant for
employee --
(A) on the basis of race, color, religion, sex, or national
origin, as prohibited under section 717 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and 15
of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
631, 633a);
(C) on the basis of sex, as prohibited under section 6(d) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as prohibited under
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or political affiliation, as
prohibited under any law, rule, or regulation.
(5) Although in this case, Article 13D does not specifically state
that to "file a grievance" means to do so in writing, neither party has
asserted that it does not. Also, filing a grievance in labor relations
is generally understood to mean the submission of a written complaint.
Therefore, we assume that in this dispute to "file a grievance" means to
reduce a complaint to writing.
(6) The Authority has determined that proposals which concern
"arrangements" for employees adversely affected by the exercise of
management rights are negotiable unless the arrangement excessively
interferes with the exercise of those rights. National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986).
(7) 5 U.S.C. 4302(b)(6). Provides as follows:
reassigning reducing in grade, or removing employees who
continue to have unacceptable performance but only after an
opportunity to demonstrate acceptable performance.
(8) In finding these provisions to be within the duty to bargain, we
make no judgment as to their merits.