30:0010(3)NG - AFGE Local 3884 and VA Medical and Regional Office Center, Fargo, ND -- 1987 FLRAdec NG
[ v30 p10 ]
30:0010(3)NG
The decision of the Authority follows:
30 FLRA NO. 3
30 FLRA 10
10 NOV 1987
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3884, AFL-CIO
Union
and
VETERANS ADMINISTRATION MEDICAL
AND REGIONAL OFFICE CENTER,
FARGO, ND
Agency
Case No. O-NG-1388
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of two Union proposals
which apply to nurses who are employed within the Agency's
Department of Medicine and surgery (DM&S). We reject the Agency's
contention that the Union's appeal should be dismissed on
procedural grounds. We conclude that the first proposal is
nonnegotiable. The second proposal is negotiable.
II. Procedural Issues
A. The Union's Petition as a Whole
Without objection by the Union, the Agency requests us to
consider its supplemental submission, which asserts that the
Union's appeal should be dismissed because the Agency has not
changed conditions of employment relative to the matters proposed
for negotiation so as to give rise to a duty to bargain. We grant
the request and have considered the Agency's submission and the
Union's response concerning the Authority's jurisdiction over the
Union's petition under section 7117. We reject these contentions
of the Agency for the following reasons.
Under part 2424 of our Regulations, we consider a petition
for review of negotiability issues only where the parties
are in dispute as to whether a matter proposed for bargaining is
inconsistent with law, rule, or regulation. In this case, the
Agency claims that the Union's proposals are inconsistent with
various provisions of law and regulation. Where, as here, the
conditions for review of negotiability issues have been met, a
union is entitled to a decision by the Authority as to whether a
proposal is negotiable under the Statute, despite the existence
of additional issues in the case. For example, in this case the
Agency claims that it has no duty to bargain because no change in
conditions of employment has occurred. See Internal Revenue
Service, 29 FLRA No. 12 (1987) ("the goal of providing more
equality in the positions of unions and agencies ... is promoted
by requiring bargaining on union-initiated, mid-term proposals in
some circumstances").
To the extent that there are additional issues regarding the
duty to bargain in this case, these issues should be resolved in
other appropriate proceedings. See American Federation of
Government Employees, AFL - CIO, Local 2736 and Department of the
Air Force, Headquarters 379th Combat Support Group (SAC),
Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).
Accordingly, the Agency's claim that a threshold duty to bargain
does not exist does not preclude us from determining the
negotiability of the Union's proposals because they are otherwise
properly before us. American Federation of Government Employees,
Local 12, AFL - CIO and Department of Labor, 26 FLRA 768
(1987).
B. The Union's Second Proposal
In its statement of position, the Agency argues that the
petition should be dismissed as to the second proposal on grounds
that it is not sufficiently specific to constitute a "proposal"
within the meaning of our Regulations. In our view, the Agency
has shown no basis for this contention.
As explained below, the proposal requires management to
provide certain information to unit employees and the Union. In
our opinion, the information which management would be required
to release under the proposal is sufficiently specific to enable
the Agency to review the proposal in connection with the
requirements of law, rule, and regulation and to enable us to
rule on the proposal's negotiability. Therefore, we reject the
Agency's claim that this proposal should be dismissed for lack of
specificity.
III. Proposal 1
If management feels that a pattern of leave abuse is
developing, it shall inform the Union 90 days prior to any type
of action being taken against the employee. Within the 90 days,
if corrective action/substantiation of need takes place, there
shall be no administrative action.
A. Positions of the Parties
The Agency asserts that this proposal is outside its duty to
bargain because the proposal concerns disciplinary matters which
are specifically provided for by Federal statute (5 U.S.C.
7503(a)) and are therefore excepted from the definition of
conditions of employment under section 7103(a)(14)(C) of the
Statute. It also asserts that this proposal conflicts with
management's right to discipline employees, under section
7106(a)(2)(A), because the proposal would preclude effective use
of counseling and discipline for patterns of leave abuse. The
Union disputes the Agency's contentions and argues that the
proposal constitutes a negotiable procedure and/or appropriate
arrangement under section 7106(b)(2) and (3).
B. Analysis
1. Section 7103(a)(14)(C)
The proposal as a whole is not excepted from the definition
of "conditions of employment" under section 7103(a)(14) (C) so as
to be outside the duty to bargain, as contended by the Agency.
Under 38 U.S.C. 4108, the Agency's Administration has discretion
to establish personnel policies for nurses in its DM&S
notwithstanding any law or regulation. Furthermore, 38 U.S.C.
4119 requires the provisions of title 5 to yield to the
provisions of title 38 where a direct conflict exists between
those statutes, except in circumstances not present in this case.
See Colorado Nurses Association and Veterans Administration
Medical Center Ft. Lyons, Colorado, 25 FLRA 803, 806 (1987),
petition for review filed sub nom. Colorado Nurses Association v.
FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987). Accordingly, the
Agency has not shown that 5 U.S.C. 7503(a) "specifically
provides" for the matter covered by the proposal within the
meaning of section 7103 (a)(14). For example, Veterans
Administration, Washington, D.C., 27 FLRA 159 (1987), petition
for review filed sub nom. Veterans Administration, Washington,
D.C. v. FLRA, No. 87-1341 (D.C. Cir. July 24, 1987).
2. The Right to Discipline Under Section 7106(a)(2)(A)
For the reasons discussed below, we find that the proposal
directly interferes with management's right to discipline
employees under section 7106(a)(2)(A). See, for example, American
Federation of Government Employees, Local 1822, AFL - CIO and
Veterans Administration Medical Center, Waco, Texas, 9 FLRA 709,
711-12 (1982) and National Treasury Employees Union and Internal
Revenue Service, 6 FLRA 522, 522-53 (1981) (union proposals
which bar management from using discipline to correct employee
infractions conflict with section 7106(a)(2)(A)).
Based on the proposal's wording and the Union's explanation
of its intent, this proposal requires management to inform the
Union of a suspected pattern of leave abuse 90 days before
management takes "any type of action" against an employee for
such conduct. The proposal also precludes management from
disciplining an employee for a pattern of leave abuse if the
employee corrects the pattern within the 90-day period.
So intended, this proposal does not merely delay management
actions concerning patterns of leave abuse, as argued by the
Union. It prevents management form taking effective action to
prevent or correct patterns of leave abuse. After management has
informed the Union that a pattern of leave abuse has occurred,
management must remain blind to the the abuse for 90 days. It
cannot take action to correct the abuse which has occurred. It
cannot act to prevent abuse which may be continuing. Management
is also totally precluded from taking disciplinary action
concerning a pattern of leave abuse, no matter how severe the
pattern prior to or during the 90-day period if the employee
corrects the pattern at some time during the 90-day period (for
example, on the 90th day).
3. Section 7106(b)(2) and (3)
As explained above, the proposal directly and substantively
interferes with management's right to discipline employees under
section 7106(a)(2)(A). Therefore, it does not constitute a
procedure which is negotiable under 7106(b)(2). For example,
National Federation of Federal Employees, Local 1454 and Veterans
Administration, 26 FLRA 848 (1987) (Proposals 4-6). Further, we
conclude that the proposal does not constitute a negotiable
appropriate arrangement under section 7106(b)(3).
Like subsection (a) of Provision 22 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 113 (1987),
this proposal concerns employees against whom management may
initiate discipline for conduct for which the employee is at
"fault." Further, by both (1) substantively limiting management's
ability to use discipline to prevent recurrences of leave abuse
and (2) precluding management from disciplining an employee no
matter how severe the abuse, if the employee corrects the pattern
consistent with the proposal, the proposal would excessively
interfere with the right to discipline. In this regard, we find
that the nature and extent of the proposal's interference with
the right to discipline strongly outweighs the alleged benefit to
employees from the Union's proposed arrangement. Id.
C. Conclusion
Proposal 1 is nonnegotiable. It excessively interferes with
management's right to discipline employees under section
7106(a)(2)(A).
IV. Proposal 2
Management shall supply to the Union all pat-terns of leave
use which Management feels are leave abuse.
A. Positions of the Parties
The Agency asserts that the information which this proposal
requires management to provide the Union is governed by Agency
regulations (1) which are promulgated under the authority of 38
U.S.C. 4108 and (2) which mirror the requirements of Government -
Wide regulations of the Office of Personnel Management (OPM). It
argues that the proposal is outside its duty to bargain for these
reasons. The Agency also argues that the proposal conflicts with
management's right to discipline employees under section
7106(a)(2)(A). The Union disputes these contentions and argues
that the proposal is negotiable.
B. Analysis and Conclusion
This proposal is negotiable. It merely requires management
to notify the Union of the patterns of leave use which management
believes would constitute patterns of leave abuse. There is
nothing in the wording of this proposal or the Union's
explanation of its intent which indicates that
implementation of this proposal would affect the descriptions of
leave abuse which may be contained in the Agency's regulations.
In any event, the Agency has not asserted that the proposal
conflicts with its regulations, that a compelling need exists for
its regulation to bar negotiation of the proposal, or that the
regulations involve the exercise of management's rights.
Accordingly, the Agency's contention that this proposal is barred
from negotiation by Agency regulations is without merit.
The contention that this proposal conflicts with
management's right to discipline employees is also without merit.
As explained by the Union, this proposal is only intended to
require management to provide the Union and employees with
advance notice of the patterns of leave use which management
feels are indicative of leave abuse. In our view, based on the
plain wording of the proposal, the proposal would not limit
management's prerogative to discipline employees for leave abuse
when management decides that leave abuse has occurred, even if
the pattern of leave abuse involved was one as to which the
Agency has not previously informed the Union.
V. Order
The Agency must upon request, or as otherwise agreed to by
the parties, bargain concerning Proposal 2. 1 The Union's
petition for review is dismissed as to Proposal 1.
Issued, Washington, D.C., November 10, 1987
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 In finding this proposal to be within the duty to
bargain, we make no judgment as to its merits.