---

29 FLRA NO. 60

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 29

                  Union

       and

DEPARTMENT OF DEFENSE, HQ
U.S. MILITARY ENTRANCE
PROCESSING COMMAND

                  Agency

Case No. 0-NG-1366

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The case presents issues concerning the negotiability of two provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. 1 For the reasons discussed below, we find that both provisions are within the duty to bargain and therefore the Agency must rescind its disapproval of the provisions.

II. Provision 1

Provision D - Article 7, section 11:

At any step of the negotiated grievance procedure, when any management deciding official designates someone to act on his/her behalf, that designee will have complete authority to render a decision at that step and will render the decision. The designee will never be someone who decided the issue at any previous step. (Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that the disputed portion of Provision 1 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency argues that the disputed sentence would prevent it from assigning a particular task (rendering a decision at a step in the grievance procedure) to a particular individual (one who had already made a decision at an earlier step). Further, the Agency asserts that the disputed sentence is not an appropriate arrangement under section 7106(b)(3) because there are no adverse consequences to employees resulting from management's exercise of its rights in the circumstances presented by this portion of the provision.

The Union disputes the Agency's contentions and argues that the disputed portion of the provision is simply a "procedure" for the processing of grievances within the meaning of section 7106(b)(2) of the Statute. The Union also asserts that, in accordance with statutory requirements, this sentence is intended to ensure that the grievance procedures be fair, simple and provide for expeditious processing.

B. Analysis and Conclusions

The first sentence of Provision 1, which is not in dispute, states that when a management deciding official designates someone to act on his or her behalf at any step of the negotiated grievance procedure, the designee will have the authority to render a decision. The second sentence, which is in dispute, states that the designee may not be someone who decided the issue at any previous step. According to the Union, the intent of this provision is to ensure fair evaluation of grievances by preventing any designee--who might be a first-line supervisor and the subject of a grievance--from deciding issues at more than one step in the grievance process.

Section 7121 of the Statute requires that all collective bargaining agreements negotiated under the Statute include a grievance procedure. However, the Statute does not provide  the structure of that procedure. The parties therefore must determine the structure of the procedure through negotiation. In particular, agencies and unions must negotiate on, among other things, the number of steps in the procedure and the organizational level to which each step applies.

Provision 1 provides that when management officials delegate authority to decide a grievance, they will not designate an official who has decided the issue at a previous step. The Agency argues that the provision is outside the duty to bargain because it violates management's right to assign work under section 7106(a)(2)(B) of the Statute. We reject that argument. To agree with the Agency's position would be tantamount to authorizing an agency unilaterally to determine an aspect of the structure of the grievance procedure, contrary to the clearly expressed Congressional intent that it be a negotiated grievance procedure. See, for example, H.R. Rep. No. 1403, 95th Cong. 2d Sess. 55-56 (1978); S. Rep. No. 969, 95th Cong. 2d Sess. 109-111 (1978); H.R. Rep. No. 1717, 95th Cong. 2d Sess. 157 (1978).

In our view, the requirement of section 7121 that the parties' mandatory grievance procedure be negotiated carves out an exception to management's right to assign work under section 7106(a)(2)(B) of the Statute. In that respect, it is like section 7131(d) of the Statute, which authorizes the negotiation of official time. We held in Military Entrance Processing Station, Los Angeles, California, 25 FLRA No. 57 (1987), slip op. at 4, that section 7131(d) created an exception to management's right to assign work because otherwise that right would preclude any negotiation on official time, since official time will always affect the assignment of work. See also American Federation of Government Employees, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1530-31 (D.C. Cir. 1986). In our view, a similar conflict exists between management's right to assign work and its obligation under section 7121 to bargain on the structure of the grievance procedure. We resolve that conflict in favor of section 7121 because we do not believe that management's interest in assigning to a particular official the responsibility for hearing a grievance at a specific step in the grievance procedure outweighs the strongly defined Congressional policy that the parties should negotiate the structure of that procedure.

We distinguish this case from American Federation of Government Employees, AFL - CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. American Federation of Government Employees, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983). In that case, the Authority considered the negotiability of proposals providing that the identification of critical elements and the establishment of performance standards would be subject to the negotiated grievance procedure. Based on the wording of section 7106, namely, that "nothing" in the Statute shall affect the authority of management to exercise the rights set forth in that section, the Authority held that the grievance procedure could not be used to deny the authority of management to exercise its rights under section 7106 of the Statute by identifying critical elements and establishing performance standards. This case, however, concerns the establishment of the grievance procedure itself, not whether it will be used to challenge the exercise of management's rights. That is, this case concerns the structure of the grievance procedure rather than its scope and coverage.

Applying our conclusions to this case, it is clear that the intent of the provision is to negotiate on the structure of the grievance procedure; that is, to assure that different officials consider a grievance at successive steps of the procedure. We conclude that the provision, which was locally negotiated, is consistent with the intent of Congress that the parties' grievance procedure be a negotiated procedure. We find, therefore, that the provision is within the duty to bargain under the Statute.

In addition, there are other considerations concerning section 7121 which lead us to conclude that this is the correct result. In our view, the requirement in section 7121 of the Statute that the negotiated grievance procedure be "fair" means that it must be designed and implemented in a manner which ensures as much as possible that employees receive an impartial review of their grievances. Officials who have decided a matter at one step in the grievance procedure are unlikely to view the matter differently if they are designated to decide that matter again at a subsequent step. Rather, those officials could have an interest in maintaining the decision which was made at the earlier step. In such circumstances, employees would be deprived of the opportunity to have someone new, with no involvement or interest in the matter, consider their grievances. Impartial review of employee grievances can only be assured, therefore, if the grievance procedure provides, at successive steps, for officials to review a matter who have not previously decided that matter. Only in this way can the grievance procedure be a "fair" procedure within the meaning of section 7121. Provision 1 does no more than implement the requirement of section 7121 that the negotiated grievance procedure be "fair."

In sum, we reemphasize that the right to assign work does not preclude negotiation on this provision. Nothing in our decision, however, is intended to require either party to designate any particular official to represent it in the grievance procedure; that choice is to be made by each party. On the other hand, the parties must designate some official in order to effectuate Congress' intent as to the negotiated grievance procedure. Provision 1 would permit the Agency to designate any official other than one who had previously heard the grievance, consistent with the requirement of section 7121 that the grievance procedure be "fair and equitable."

III. Provision 2

Provision H - Article 18, section 5:

An employee may decline his or her assigned task because of reasonable belief that, under the circumstances, the task poses an imminent risk of death or serious bodily harm coupled with a reasonable belief that there is an insufficient time to seek effective redress through normal hazard reporting and abatement procedures.

A. Positions of the Parties

The Agency contends that Provision 2 conflicts with its rights to assign work and discipline employees under section 7106(a)(2)(A) and (B) of the Statute. According to the Agency, although considerations involving employee health and safety are factors which it may take into account when assigning work, a provision which requires the performance of work or prohibits work performance on that basis is outside its duty to bargain.

The Union disputes the Agency's contentions and argues that Provision 2 is both a "procedure" and an "appropriate arrangement" under section 7106(b)(2) and (3). Further, the Union asserts that its provision is not intended to immunize employees from discipline and only becomes operative if two conditions exist: (1) the existence of a reasonable, objective basis for fearing imminent danger; and (2) the absence of another means of redress. Thus, according to the Union, this provision is distinguishable from similar provisions on which the Authority has ruled. 

B. Analysis and Conclusions

Based on its wording and the Union's explanation of its intent, this provision would prevent the Agency from assigning work to employees in circumstances where they reasonably believe that the duties present an imminent risk of death or serious bodily harm coupled with an insufficient time within which to abate the hazard. In this regard, it is well established that proposals which prescribe preconditions on management's ability to require employees to perform particular duties directly interfere with management's right to assign work and are not within the duty to bargain. See American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 4).

In VA Medical Center, New York, the Authority found that the proposal, which prevented the Agency from assigning overtime work to employees if the employees felt that it would endanger their health, was a substantive infringement on the agency's right to assign work under section 7106(a) (2)(B) and that it was not a "procedure" within the meaning of section 7106(b)(2) of the Statute. Since Provision 2 likewise would prevent the Agency from assigning work to employees under the circumstances stated in the provision, we find, for the reasons stated in VA Medical Center, New York, that it directly interferes with the right to assign work. Moreover, the fact that the provision reflects the wording of an Occupational Safety and Health Administration (OSHA) regulation, 29 C.F.R. 1960.46(a), does not make it negotiable. See National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 577 (1981) (Proposal 1), aff'd sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Finally, as the Agency acknowledges, the provision does not concern the exercise of management's right to discipline employees. Agency's Statement of Position at 6. The provision is therefore distinguishable from Proposals 26-28 in 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). The proposals in that case explicitly precluded management from disciplining employees.

Because Provision 2 conflicts with management's right to assign work under section 7106(a)(2)(B), it is nonnegotiable unless it constitutes a negotiable appropriate  arrangement under section 7106(b)(3) of the Statute. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). As explained in Kansas Army National Guard, in order to determine whether the provision constitutes a negotiable appropriate arrangement, we determine whether the provision is intended to be an arrangement for employees who may be adversely affected by the exercise of management's statutory rights. If the provision is so intended, we then determine whether it is inappropriate because it excessively interferes with the exercise of management's rights.

We conclude that this provision is intended to be an arrangement for employees who may be adversely affected by the exercise of management's right to assign work. Based on the Union's undisputed explanation, the provision is intended to protect employees from the adverse impact of assignment to duties which will seriously endanger their health and safety.

In deciding whether the intended arrangement is appropriate, we must determine whether the proposed amelioration of management's right to assign work is "excessive" when weighed against the intended benefit to adversely affected employees. By providing protection against serious and life-threatening injury, Provision 2 clearly benefits employees. We believe that the scope of protection which this provision affords employees is sufficiently narrow that it does not excessively interfere with management's rights.

As a practical matter, under Provision 2 not just any perceived threat to employee health and safety is sufficient to justify a decision by an employee to stop work. There must be facts which would support a reasonable belief that: (1) the threat is imminent; (2) it poses a risk of serious bodily harm or is life-threatening; and (3) it cannot be abated through normal procedures. Provision 2 does not protect employees who feel themselves to be in danger where there is no clear evidence to support that conviction. Compare American Federation of Government Employees, AFL - CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA No. 66 (1987) (Provision 3) (provision permitting employees to refuse work where they feel in danger held inconsistent with 29 C.F.R. 1960.46(a)). The threat must also be immediate and pressing rather than merely likely.

Moreover, the harm with which employees are threatened must present a risk of serious bodily harm or be life-threatening. A risk of injury of any sort is not sufficient. Finally, the threat must be so pressing and severe that it is  not possible to deal with it in time to prevent the harm. Problems which may be resolved before they result in serious injury or death do not, under the terms of the provision, justify employees in stopping work. Only in the most limited circumstances, therefor?, would the provision restrict the Agency's ability to assign work. 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 4) (provision permitting employees to refuse details which would be beyond their physical capacities held not to be an appropriate arrangement under section 7106(b)(3) because it would apply to any assignments, for any reason, and to any extent). Thus, while the protection afforded employees by Provision 2 would result in some interference with management's rights, that interference is not excessive.

On balance, therefore, we conclude that the benefit afforded by the provision to employees who may be required to work in situations where their health and safety is seriously threatened outweighs the detriment to management caused by the provision's limited interference with management's right to assign work. Consequently, we find that Provision 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

IV. Order

The Agency must rescind its disapproval of Provisions 1 and 2. 2

Issued, Washington, D.C., October, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

 

FOOTNOTES

Footnote 1 The Union's petition sought review of 11 provisions of a negotiated agreement. In its Statement of Position, the Agency suggested that seven provisions were moot and that two provisions were acceptable, if revised. In its response, the Union agreed with the Agency's view regarding the provisions which were considered to be moot and also agreed with the Agency's revisions concerning the remaining two provisions. It is therefore unnecessary to consider those provisions.

Footnote 2 In finding that Provisions 1 and 2 are within the duty to bargain, we make no judgment as to their merits.

---