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29 FLRA NO. 10



NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1853

                   Union

         and

U.S. ATTORNEY'S OFFICE
EASTERN DISTRICT OF NEW YORK
BROOKLYN, N.Y.

                              Agency

Case No. 0-NG-1081

 

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 four provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute. For the reasons discussed below, we find that the Agency must rescind its disapproval of Provisions 1, 3, and 4. The petition for review of Provision 2 is dismissed.

II. Provision 1

Prior to proposing disciplinary or adverse action against an employee(s), the Employer may conduct a preliminary investigation. All disciplinary and adverse actions will be initiated within a reasonable period of time. At any examination of an employee by the employer during which the employee reasonably believes he or she may be the subject of a disciplinary or adverse action the employee may request representation. If representation is requested no further questioning shall take place for a reasonable period of time. In the event of such a request, the Union shall provide representation within a reasonable period of time. If a representative is not available within a reasonable period of time, the Employer may proceed with the examination. (The underlined sentence is in dispute.)

A. Positions of the Parties

The Union claims that the intent of the provision is "to prevent the employer from unjustifiably using an employee's actions in the distant past as an excuse for unwarranted discipline in the present." Petition for Review at 1. The Union notes that what would constitute a reasonable period of time would vary depending upon various factors and that the proposal is simply a general, non-quantitative standard to be applied.

The Agency claims that the provision is outside the duty to bargain because it is inconsistent with Federal law, that is, section 7106(a)(2)(A) of the Statute and 5 U.S.C. 7701 (c)(2)(A). Essentially, the Agency's argument is that the provision would allow an arbitrator to use a standard other than that of "harmful error" as set forth in 5 U.S.C. 7701(c)(2)(A) to reverse disciplinary and adverse actions taken by the Agency. The arbitrator would be able to reverse such actions and presumably infringe upon the Agency's right to take disciplinary action when, in the arbitrator's view, the Agency has proposed the action beyond "a reasonable period of time."

B. Analysis and Conclusion

We find that Provision 1 is within the duty to bargain.

First, the Agency's assertion that the provision would allow use of a standard other than "harmful error" in reversing disciplinary and adverse actions cannot be sustained. In American Federation of Government Employees, AFL - CIO, Local 1458 and U.S. Department of Justice, Office of the United States Attorney, Southern District of Florida, 29 FLRA No. 1 (1987), we held that if a disciplinary action taken under 5 U.S.C. 4303 or 5 U.S.C. 7512 is grieved under a negotiated grievance procedure, rather than through the appellate procedures of 5 U.S.C. 7701, an arbitrator must apply the same standards in deciding the case as would be applied if the case had been pursued through the procedures of 5 U.S.C. 7701. This includes application of the harmful error rule set forth in 5 U.S.C. 7701(c)(2)(A). In this case, we find nothing in the provision that would require an arbitrator to apply a standard different from that which is required under 5 U.S.C. 7701(c)(2)(A). Rather, for example, in reviewing an action under 5 U.S.C. 4303 or 5 U.S.C. 7512 initiated by the Agency and possibly reversing such action, the arbitrator would have to make the initial determination that the parties' agreement has been violated and that such violation constitutes harmful error.

Moreover, while the harmful error rule is applicable to disciplinary actions taken under 5 U.S.C. 4303 and 7512, as noted above, the rule is not even applicable to other, lesser types of disciplinary actions. It does not apply to actions taken under 5 U.S.C. 7502 (suspensions for 14 days or less) or to such other actions as reprimands or admonishments. See American Federation of Government Employees Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986).

Thus, in circumstances where the harmful error rule is not applicable, we have found that an arbitrator can appropriately reverse or mitigate an agency's disciplinary action where there was undue delay in imposing the discipline and that such action does not interfere with the agency's right to take such disciplinary action. For example, in Immigration and Naturalization Service and American Federation of Government Employees, Local 505, 22 FLRA No. 70 (1986), the arbitrator's award directing that a suspended employee be made whole based in part on the finding that delay in the imposition of discipline was arbitrary, capricious and unreasonable was found not to conflict with section 7106(a)(2)(A). Similarly, in United States Customs Service and National Treasury Employees Union, 22 FLRA No. 68 (1986) we found no basis on which to set aside an award where the arbitrator mitigated the disciplinary action based on the failure to promptly impose the discipline as required by the parties' agreement. In other contexts, we have also upheld awards that reversed or mitigated an agency's disciplinary action based on the arbitrator's finding of contract violations. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 22 FLRA No. 66 (1986); Social Security Administration, 22 FLRA No. 19 (1986)

We do note, however, that where a proposal would establish a contractual "statute of limitations" on an agency's ability to investigate incidents for which disciplinary action might be taken it will be found to be inconsistent with section 7106(a)(2)(A) because in certain circumstances an agency would be prevented from exercising its right to take disciplinary action. See 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, 801 F.2d 477 (D.C. Cir. 1986).

Accordingly, the Agency's assertions here that: (1) the provision would allow an arbitrator to use a standard other than the harmful error rule in reversing the Agency's disciplinary and adverse actions and (2) reversal of such actions would negate the Agency's exercise of its right to discipline cannot be sustained. Therefore, the provision is within the Agency's duty to bargain.

III. Provision 2

The detail procedure shall not become a device to afford certain individuals an undue opportunity to gain qualifying experience or to prevent others from gaining such experience. Therefore, details shall be rotated to the fullest extent practicable consistent with the a the mission of the employer. (The underlined sentence is in dispute.)

A. Positions of the Parties

The Agency claims that the provision violates its right to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Union claims that the proposal is designed to rotate details rather than detailing "one or two employees, out of a large pool of possible candidates, to the advantage (or disadvantage) of the employees detailed, and to the exclusion of all other eligible employees." Petition for Review at 3.

B. Analysis and Conclusion

Because the provision does not require that selection of details be made from among qualified candidates, it violates management's rights under section 7106(a)(2)(A) and (B) of the Statute and is therefore outside the duty to bargain. See National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1984). See also American Federation of State, County and Municipal Employees, Local 2027 and ACTION, 23 FLRA No. 7 (1986). It has long been held that management's rights under section 7106(a)(2)(A) and (B) include the exercise of judgment in establishing the particular skills and qualifications needed  to perform the work to be done and in determining which employee possesses the requisite skills to do the work to be assigned. See, for example, Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration National Cemetery Office, San Francisco, California, 9 FLRA 703, 70 (1982). In explaining the provision here, the Union refers to "eligible candidates., We cannot conclude that "eligible" was intended to be synonymous with "qualified." Rather, in the context used by the Union, "eligible" would appear to refer only to those employees who have not previously been detailed and who arguably have been disadvantaged by that fact. On this basis also, we must reject the Union's assertion that the proposal does not provide for the assignment of a detail to any particular employee or category of employees. Rather, the proposal would apply to and favor a distinct type and category of employees--that is, those who have not previously been detailed and who arguably have been disadvantaged by that fact.

Additionally, we find that inclusion of the word "practicable" does not alter the conclusion that the provision is nonnegotiable. In American Federation of Government Employees, AFL - CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985) (Provision 4), the Authority concluded that the presence of the term "to the extent practicable" subjected to arbitral review the agency's assignment of work and would not remove the limitation imposed on management's exercise of its rights. See also Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA No. 21 (1987) (Proposal 1). The term "to the fullest extent practicable" here would likewise allow an arbitrator to review management's decision to assign work to a particular employee and to order the Agency to rotate work assignments when it chooses not to do so. Thus, the provision is inconsistent with management's right to assign work under section 7106(a) (2)(B) of the Statute.

IV. Provision 3

EMPLOYEE ASSIGNMENT: The Employer has the right to assign overtime work. The Employer will make a reasonable effort to have overtime work performed by qualified volunteers. Absent qualified volunteers, the Employer shall make a reasonable effort to assign overtime work to employees performing the task during the workday. A supervisor will seek to equitably rotate overtime assignments among employees under their supervision. (The underlined sentences are in dispute.) 

A. Positions of the Parties

The Union claims that the provision constitutes a negotiable procedure in the exercise of management's rights. It is also noted that the provision would merely require that the Agency make a reasonable effort to have overtime work performed by qualified volunteers.

The Agency argues that when the first underlined sentence of the provision is read in conjunction with the next sentence (which itself is not in dispute and which we will therefore not address), the provision would permit the use of "unqualified employees" or "non-volunteers" where "qualified volunteers" are not available. Statement of Position at 9. Therefore, the provision is not a negotiable procedure and instead conflicts with management's rights under section 7106(a)(2)(A) and (B).

The Agency also makes certain arguments with respect to these sentences generally for the proposition that the provision impermissibly limits the Agency's right to assign work under section 7106(a)(2)(B).

B. Analysis and Conclusion

The provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute. We find first that the Agency's reliance on the Authority's decisions in the following cases is misplaced: American Federation of Government Employees, AFL - CIO, National Border Patrol Council and Department of Justice, Immigration and Naturalization Service, 16 FLRA 251 (1984) (Proposal 1); American Federation of Government Employees, Local 1409, AFL - CIO and U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 16 FLRA 352 (1984) (Provision 1); American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and U.S. Department of Justice, U.S. Marshals Service, 8 FLRA 268 (1982) (Proposals 1-4); and National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Proposal V). In those cases, the Authority found nonnegotiable proposals which, respectively, would have had the following effects: potentially limiting the agency's right to assign work at a temporary location for more than a prescribed period of time; limiting the assignment of overtime to bargaining unit employees; eliminating the discretion to assign work to particular employees; and requiring assignment of specific work to qualified bargaining unit employees, not to other employees in the unit or employees outside the unit.

Rather, we find the provision here to be to the same effect as provisions found negotiable in National Federation of Federal Employees, Local 1622 and U.S. Commissary, Fort Meade, Maryland, 16 FLRA 998 (1984) (Provision 2); International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provisions 5 and 9). The provision in U.S. Commissary, Fort Meade required management to accede to an employee's request to be relieved of an overtime assignment if another employee, qualified and willing to perform the work, were available. In finding the provision to be within the duty to bargain, the Authority noted that when agency management has determined that two or more employees are equally qualified to perform a task, the selection of any of those employees to perform the work is consistent with management's right to assign work. In Bureau of Engraving and Printing, the provisions concerned the assignment of overtime work to qualified employees, as determined by the agency, using inverse seniority and allowing an employee to refuse an overtime assignment where a qualified employee was available to take his place. There, we determined that the provisions allowed the agency the discretion to determine when overtime work is required and whether employees are qualified to perform that work and were therefore negotiable procedures under section 7106(b)(2).

Likewise in this case, the provision constitutes a negotiable procedure by which the selection for overtime assignments would be made from among volunteers deemed by management to be qualified. Therefore, the provision does not conflict with section 7106(a)(2)(B) of the Statute.

As to the second disputed sentence of the provision, the Agency has not specifically set forth reasons in its Statement of Position to support its claim of non-negotiability. The only specific reasons appear in the Agency head's determination which states, "if management is required to assign work first to volunteers and then to employees performing the task during the workday, it would appear virtually impossible to rotate assignments." However, we see no inherent conflict between the final sentence and the balance of the provision. That is, the last sentence would merely require that overtime assignments be equitably rotated among those employees who would be eligible to receive such work under the guidelines established by the provision. Obviously, where only two employees were qualified to perform a task and one of those employees usually declined to work overtime, management would not be obliged to rotate the assignments to other employees unqualified for the work. However, if there were a larger pool of qualified volunteers, management would be required to rotate "equitably" the assignment to members of that pool. That the rotation shall be made "equitably" also renders the provision a negotiable procedure. See National Federation of Federal Employees, Local 1798 and Veterans Administration Medical Center, Martinsburg, West Virginia, 27 FLRA No. 37 (1987) (Proposal 11), petition for review filed sub nom. Veterans Administration Medical Center v. FLRA, No. 87-1342 (D.C. Cir. July 24, 1987); American Federation of Government Employees, AFL - CIO, Local 1631 and Veterans Administration Medical Center, Chillicothe, Ohio, 25 FLRA No. 26 (1987) (Provision 2); and Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987) (Proposal 6), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987).

V. Provision 4 1

TECHNOLOGICAL CHANGE: If the Employer changes or modifies office technology, employees not skilled in such technologies will be provided adequate training to update their skills and will be provided a reasonable grace period, of not less than (60) days, to bring performance related to such changed or modified technology to the satisfactory level.

During this grace period, action to discipline or otherwise adversely affect an employee for performance deficiencies related to such technology. will be initiated only for reasonable cause as will promote the efficiency of the Service.

What constitutes a "reasonable grace period" and "reasonable cause" shall depend upon the circumstances of the case. The Employer shall take into account the following factors, if applicable; the scope of the technological change; the complexity and novelty of any newly introduced technology; the scope of other duties, unrelated to the technological change, which the employee must perform was provided training prior to, and will be provided training during, the grace period, which is related to the technology; the scope and nature of any employee deficiencies related to the new technology; the extent to which the employee has made a good faith effort to improve performance on the technology and/or the treatment of other employees in like circumstances. This is not an exhaustive list of possibly relevant factors.

During this period the Employer shall make every effort to avail the employee of such additional training as may be necessary to improve performance related to such technologies.

A. Positions of the Parties

The Union claims that the provision constitutes a negotiable procedure. More specifically, the Union states that the provision would not prevent the employer from disciplining or otherwise adversely affecting an employee for performance deficiencies that are related to "changed or modified" office technology during the grace period. Rather, such action will only be initiated for reasonable cause as will promote the efficiency of the service.

The Agency argues, in essence, that by prohibiting management from taking a performance based action during a period of not less than 60 days unless management can demonstrate that such action was initiated "only for reasonable cause as will promote the efficiency of the Service," the provision violates management's rights under section 7106(a)(2)(A) of the Statute and is inconsistent with 5 U.S.C. 4303, 7503, 7513 and 7701. 

B. Analysis and Conclusion

By way of background, it is clear that under law and regulation, management may evaluate an employee's performance at any point in the appraisal period and take disciplinary action against that employee if the employee's performance in one or more critical elements of the job is unacceptable. See 5 C.F.R. 432.203(a) (1987). However, before management may initiate an action under 5 U.S.C. Chapter 43 for unacceptable performance, it must first give the employee an opportunity to demonstrate acceptable performance. 5 U.S.C. 4302(b)(6); 5 C.F.R. 432.101(a). The opportunity to demonstrate acceptable performance must consist of a reasonable time for the employee to demonstrate an ability to meet the minimum performance standards for the job. 5 C.F.R. 432.202, 203(b). Reasonable time is not defined in terms of a particular minimum or maximum period but rather as "an amount of time commensurate with the duties and responsibilities of the employee's job which is sufficient to allow the employee to show whether he or she can meet established minimum performance standards." 5 C.F.R. 432.202. Moreover, OPM regulations contemplate that the length of the period of time considered reasonable may be negotiated. Attachment to Federal Personnel Manual Letter 432-1, III.10. at 3 (May 5, 1983), states that an agency must follow any minimum or maximum period it has negotiated.

While an agency may take a performance based action under 5 U.S.C. Chapter 43, it is not required to use this procedure exclusively. Instead, the agency may choose to take a performance based action under 5 U.S.C. Chapter 75. Lovshin v. Department of Navy, 767 F.2d 826 (Fed. Cir. 1985) cert. denied 106 S. Ct. 1523 (1985), rehearing denied 106 S. Ct. 2931 (1985). In such instances, the agency would have to establish that its performance based action was for such cause as will promote the efficiency of the service. 5 U.S.C. 7503 and 5 U.S.C. 7513.

Turning to Provision 4, the first portion remaining in dispute provides an employee with not less that 60 days to bring performance to the satisfactory level. Obviously, if the employee's performance was already satisfactory, there would be no need to provide a "grace period" for the employee to improve. However, where performance is not at the satisfactory level, this part of Provision 4 would establish through negotiations the length of the opportunity period required by 5 U.S.C. 4302(b)(6) before a performance based  action could be initiated under 5 U.S.C. 4303. Additionally, we find nothing in the express language of Provision 4 or in the record to indicate that an employee's performance during the "grace period" could not be evaluated or viewed as the basis for a performance based action. Therefore we find that Provision 4 is consistent with 5 U.S.C. Chapter 43 and does not violate management's right under section 7106(a)(2)(A) to discipline.

We turn now to the second portion of Provision 4 in dispute which permits the Agency to take a performance based disciplinary action against an employee during the "grace period" for reasonable cause as will promote the efficiency of the service. In this regard, and as we previously stated, an agency has the option to take a performance based disciplinary action against an employee under 5 U.S.C. Chapter 75 for such cause as will promote the efficiency of the service. The issue as to this portion of Provision 4 is whether the use of the term "reasonable cause" results in a standard different from "such cause" which is required by 5 U.S.C. Chapter 75.

The Agency claims that use of the term "reasonable," including the identification in paragraph 3 of the provision of several factors the Agency shall take into account in taking actions under Chapter 75, deviates from the statutory standard of "such cause" and is therefore inconsistent with that standard. The Agency further claims that use of a standard other than that prescribed by Statute violates congressional intent to maintain consistency between the outcome of cases that are appealed to the Merit Systems Protection Board (MSPB) and those that are pursued through grievance arbitration.

Contrary to the Agency's position, we do not view use of the term "reasonable cause" as resulting in a different standard for performance based actions taken under Chapter 75 than the standard of "such cause." Nothing in the provision itself or the Union's stated intent suggests that a different standard was being proposed. While, as a general proposition, it would be preferable for parties to use statutory language, where appropriate, in drafting their proposals, we find for purposes of this decision that &reasonable cause, has the same meaning as "such cause." We note that our finding on this matter is consistent with Social Security Administration, 22 FLRA No. 19 (1986), in which we determined that use of a negotiated "just cause" standard for disciplinary  actions constituted the parties' capsulation of the statutory standard of "such cause" as will promote the efficiency of the service. A subsequently issued arbitration award based on application of the "just cause" standard was therefore determined to constitute an award based on application of the standard of "such cause" as will promote the efficiency of the service.

With regard to the examples of "reasonable cause" set forth in paragraph 3 of the provision, which the Agency claims is inconsistent with the statutory standard, we note first that this paragraph was not declared by the Agency to be outside the duty to bargain. Therefore, this portion of the provision is not properly before us. However, we do note that the examples are merely matters the Agency shall take into account, if applicable. We do not view such examples as either substitutions for or limitations on the matters the Agency, in fact, will take into account in reaching a decision to take a Chapter 75 action. As to the Agency's claim concerning the desire to maintain consistency between cases appealed to the MSPB and those pursued through grievance arbitration, an arbitrator would be required to apply the same standards as would be applied by the MSPB. See our discussion on Provision 1.

Finally, we must reject the Agency's assertion that use of a "reasonable cause" standard is inconsistent with 5 U.S.C. 7701 and, more specifically, section 7701(c)(1)(A). That section provides that an agency decision to take a Chapter 43 action will be sustained by the MSPB if the action is supported by "substantial evidence." As we stated, use of the "reasonable cause" standard, which we find to be synonymous with the standard of "such cause" is applicable to actions taken under Chapter 75. It does not apply to actions taken under Chapter 43. Therefore, and apart from other considerations, the Agency's argument that "reasonable cause" is inconsistent with "substantial evidence" cannot be sustained.

Accordingly, we find Provision 4 to be within the duty to bargain. 

VI. Order

The Agency must rescind its disapproval of Provisions 1, 3 and 4 which were bargained on and agreed to by the parties at the local level. 2 The petition for review as to Provision 2 is dismissed.

Issued, Washington, D.C., September 28, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

 

FOOTNOTES

Footnote 1 In its Petition for Review at 4, the Union concedes that the language of the underlined portion of the first paragraph which reads "employees not skilled in such technologies will be provided adequate training to update their skills" and the entire last paragraph are outside the duty to bargain. What remains in dispute, then, are the remaining underlined portions.

Footnote 2 In finding the provisions to be within the duty to bargain, we make no judgment as to their merits.

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