30:0837(94)NG - AFGE Local 2052 and Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia -- 1987 FLRAdec NG

30 FLRA NO. 94

 30 FLRA 837

 31 DEC 1987


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2052

                          Union

       and

DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
FEDERAL CORRECTIONAL
INSTITUTION, PETERSBURG
VIRGINIA

                         Agency

Case No. 0-NG-1413

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) and concerns
the negotiability of two proposals concerning sick and annual
leave. The proposals seek to limit the Agency's inquiries
concerning an employee's absence. We find that the proposals
violate management's rights under section 7106(b)(3) and are not
appropriate arrangements. Therefore, the proposals are outside
the duty to bargain.

     II. Threshold Issue

     1. The Petition for Review is Timely

     The Agency contends that the petition for review was
untimely filed. According to the Agency, the allegations of
nonnegotiability made at the bargaining table and later reduced
to writing on November 19, 1986, constitute a valid written
allegation of nonnegotiability. The Agency argues that under
section 2424.3 a petition for review must be filed within 15 days
of service of the allegations of nonnegotiability. Thus,
according to the Agency, since the Union's petition for review
was not filed until June 16, 1987, it is untimely.

     The Union claims that it did not request the November 19,
1986, written allegation of nonnegotiability. Therefore, this
allegation did not constitute the written request required by the
regulations to start the time period within which the union must
file its petition for review. The Union states that its written
request for allegations was made on May 26, 1987, and that the
Agency in its reply letter did not address the negotiability of
the specified proposals. Thus, the Union argues that since the
Agency failed to provide written allegations of nonnegotiability
in response to the Union's written request, the petition for
review was timely filed on June 16, 1987. The Agency disputes the
Union's version of the aforementioned events.

     We find that the petition was timely filed. It is well
established, under section 2424.3, that a union may file a
negotiability petition when it receives written allegations of
nonnegotiability from an agency which are not provided in
response to a written union request. See, for example, American
Federation of Government Employees, National GSA Council (No.
236), Local 1497 and General Services Administration, Region 3,
24 FLRA  928, 929 (1986) ; International Brotherhood of
Electrical Workers, AFL - CIO, Local 121 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 10
FLRA  198 (1982).

     However, it is also quite well established that a union is
not required to file a petition for review in such circumstances.
Instead, the union may initiate its right to file a petition at a
later date by (1) serving a written request for allegations on
the agency and (2) basing its petition on the agency's response.
Id.

     If an agency does not provide written allegations of
nonnegotiability in response to a union's written request, a
petition for review filed by the union is not subject to the time
limits set out in section 2424.3 of our Regulations. For example,
American Federation of Government Employees Local 2494 and
Strategic Weapons Facility Pacific, Bremerton, Washington, 7 FLRA
590 (1982); National Treasury Employees Union and NTEU Buffalo
District Joint Council and Internal Revenue Service, Buffalo
District, 3 FLRA  337 (1980). 

     According to the Agency, written allegations of
nonnegotiability were provided to the Union months prior to the
filing of the Union's petition for review. That is, the Agency
states that during collective bargaining negotiations the
Agency's representative orally declared a number of Union
proposals nonnegotiable. At the request of the Union's
representative, the Agency's representative initialed each of the
proposals involved. The Union's representative then initialed and
wrote "Non. neg." beside each affected proposal. Subsequently,
the Agency sent to the Union a copy of the initialed proposals
transcribed in typed form together with the Agency's reasons for
declaring the proposals nonnegotiable. Thereafter, the Union
indicated that it intended to seek "third party review" of the
disputed proposals.

     In our view, however, and according to the Agency's
description of the facts, the allegations of nonnegotiability
were not provided in response to a written Union request. Thus,
the Union was not obligated to file its petition for review
within 15 days of service of the November 15, 1986, written
allegations of nonnegotiability. In fact, the petition for review
was not based on these written allegations of nonnegotiability.
Instead, the Union submitted a written request for allegations to
the Agency on a later date. Although the Agency responded to this
request, the Agency did not provide written allegations of
nonnegotiability regarding specific proposals as requested by the
Union. The Union then filed its petition for review. As
previously noted, the time limits of section 2424.3 of our
Regulations do not apply to a petition for review when an agency
fails or refuses to provide written allegations of
nonnegotiability in response to a written request. Thus, the
Union's petition for review cannot be found to be untimely under
section 2424.3 as argued by the Agency. Also, although the Agency
argues for a change in this long-standing policy, it has not
advanced persuasive reasons for such a change in policy.
Therefore, we do not change this policy.

     2. Issues as to whether the Proposals are Inconsistent with
a Master Agreement are not Appropriate for Resolution in this
Negotiability Appeal

     The Agency's claims that both proposals are outside the duty
to bargain because they are inconsistent with the parties' Master
Agreement cannot be sustained. Issues concerning whether a
proposal interferes with the parties' Master Agreement are not
appropriate for resolution in a negotiability appeal.
Rather, such issues should be resolved in other appropriate
proceedings, such as the parties' negotiated grievance procedure
or the unfair labor practice procedures under section 7118 of the
Statute. See American Federation of Government Employees, Local
12, AFL - CIO and Department of Labor, 26 FLRA  768, 769-70
(1987).

     III. Proposal 1

     Article VI, Sick Leave/Annual Leave

     When an employee calls in on sick leave, the supervisor
shall not ask or order an employee to make a medical diagnosis of
his/her condition.

     A. Positions of the Parties

     The Agency argues that this proposal is nonnegotiable for
the following reasons: (1) it is inconsistent with 5 C.F.R.
630.403; and (2) it violates management's rights under section
7106(a) of the Statute to assign and direct employees; to
suspend, remove, reduce in grade or pay or to take other
disciplinary action against employees; to assign work and to
determine its internal security practices.

     The Union argues that the intent of this proposal is to
protect private information regarding an employee's medical
condition. In addition, the Union argues that this proposal is an
appropriate arrangement directed to protect the privacy, of
employees, as well as to "allay embarrassment and stress." Reply
Brief at 11.

     1. The Proposal does not violate Government-wide
Regulations

     Under law, 5 U.S.C. 6307, and regulation, 5 C.F.R. 620.401 -
630.407, an employee may be excused from work with pay when the
employee (1) receives medical, dental or optical examination or
treatment; (2) is incapacitated for duty because of sickness,
injury or pregnancy and confinement: (3) is required to give care
and attendance to an immediate family member afflicted with a
contagious disease; or (4) has been exposed to a contagious
disease. The regulations provide that a request for sick leave
must be supported by administratively acceptable evidence. 5
C.F.R. 630.402. An employee's statement or certification that one
of the bases exists upon which sick leave may be granted is
considered administratively acceptable evidence for absences
of any duration. However, an agency also may require a
medical certificate or other evidence for absences of more than 3
days or where sick leave abuse is suspected. 5 C.F.R. 630.403;
Federal Personnel (FPM) Supplement 990-2, Subchapter S4-2.b.

     Thus, contrary to the Agency's claim, 5 C.F.R. 630.403 does
not require employees to provide reasons in addition to the
employee's certification as to the basis for sick leave usage.
Rather, the requirement to provide additional reasons is
discretionary with the Agency even for absences of more than 3
days or where sick leave abuse is suspected. Consequently, we
find that the Agency has not sustained its claim that Proposal 1
is inconsistent with 5 C.F.R. 630.403.

     2. The Proposal Violates Management Rights

     It is well established that management's rights to direct
employees and to assign work under section 7106(a)(2)(A) and (B)
include the right to require employees to account for their
failure to meet standards of performance, standards of conduct or
for other derelictions which may result in discipline. Tidewater
Virginia Federal Employees Metal Trades Council and Navy Public
Works Center, Norfolk, Virginia, 15 FLRA  343 (1984) (Provision
1); Navy Public Works Center, Pearl Harbor, Honolulu, Hawaii v.
Federal Labor Relations Authority, 678 F. 2d 97 (9th Cir. 1982).
Proposals which permit employees the option to not answer
questions concerning their performance or conduct immunize
employees from discipline for refusing to account for their work
or conduct and, thus, directly interferes with management's
rights to direct employees and to assign work and also directly
interferes with management's right to discipline employees under
section 7106(a)(2)(A). Id.

     Proposal 1 expressly precludes supervisors from asking or
ordering employees to provide reasons for sick leave usage, in
addition to the employee's certification and is nonnegotiable on
that basis alone. Proposals which prevent particular management
officials from performing certain functions interfere with
management's right to assign work under section 7106(a)(2)(B) of
the Statute. See, for example, American Federation of Government
Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA 
273 (1987) (Proposal 2).

     Moreover, although Proposal 1 is directed at preventing
supervisors from requesting reasons for sick leave usage in
addition to an employee's certification, it is clear from the
record that this proposal is intended to permit employees to
avoid being questioned about sick leave usage. Reply Brief at 11.
Consequently, like Provision 1 in Navy Public Works Center,
Norfolk, Proposal I would immunize employees from refusing to
account for their work related conduct, here, their sick leave
usage. Thus, based on Navy Public Works Center, Norfolk, Proposal
1 violates management's rights to direct employees, to assign
work and to discipline employees under section 7106(a) of the
Statute.

     3. The Proposal is not an Appropriate Arrangement

     We assume, for purposes of this decision, that Proposal 1
was intended to ameliorate an adverse effect perceived by
employees who are asked to provide a reason for sick leave usage
in addition to their certification that they are incapacitated
for duty. However, Proposal 1 totally prevents the Agency from
requiring employees to account for their sick leave usage,
thereby immunizing then from discipline for failure to account
for absence. Such a proposal which abrogates the exercise of the
discretion to assign work under section 7106(a)(2)(A) and (B) and
the Agency's right to discipline employees under section
7106(a)(2)(A) does not constitute an appropriate arrangement
within the meaning of section 7106(b)(3). See AFGE Local 2782 v.
FLRA,  702 F.2d 1183, 1188 (D.C. Cir. 1983), reversing and
remanding American Federation of Government Employees, AFL - CIO,
Local 2782 and Department of Commerce, Bureau of the Census,
Washington, D.C. 7 FLRA  91 (1981). Thus, in our view, the effect
of Proposal 1 on management's rights outweighs the benefits to,
employees. Accordingly, Proposal 1 excessively interferes with
management's rights to direct employees, to assign work: and to
discipline employees.

     In summary, Proposal 1 is outside the duty to bargain
because it violates management's rights to direct employees, to
assign work and to discipline employees under section 7106(a) of
the Statute. Further, Proposal 1 does not constitute an
appropriate arrangement under section 7106(b)(3) of the Statute.
In view of this determination, we find it is unnecessary to
address the Agency's additional arguments concerning the
negotiability of this proposal. 

     IV. Proposal 2

     Article VI, Sick Leave/Annual Leave

     The employer agrees to not routinely visit or phone
employees on sick leave for the purpose of checking up on their
sick leave usage.

     A. Positions of the Parties

     The Agency argues that this proposal violates management's
right to determine its internal security practices under section
7106(a)(1) of the Statute and its right to suspend, remove and
discipline employees under section 7106(a)(2)(A) of the
Statute.

     The Union argues that this proposal does not conflict with
any of management's rights or, in the alternative, that it
constitutes an appropriate arrangement designed to alleviate the
adverse effect of the exercise of management's rights.

     B. Analysis and Conclusion

     1. The Proposal Directly Interferes with Management's Right
to Discipline

     Abuse of sick leave is subject to disciplinary action and
can result in removal of an employee. See, for example, Kean v.
Department of the Army, 24 M.S.P.R. 226 (1984). The right to
discipline includes the right to investigate to determine whether
discipline is justified in the first place. National Federation
of Federal Employees, Local 615 and National Park Service,
Sequoia and Kings Canyon National Parks, U.S. Department of
Interior, 17 FLRA  318 (1985) (Provision 2) aff'd sub nom.
National Federation of Federal Employees, Local 615 v. FLRA  801
F.2d 477 (D.C. Cir. 1985) . Proposal 2, however, would prevent
the Agency from visiting or telephoning employees on sick leave
to determine whether sick leave is being abused unless management
first had a "reasonable suspicion" that such abuse was occurring.
Reply Brief at 12. Thus, Proposal 2 would limit the Agency's use
of appropriate investigative techniques to uncover conduct which
would be subject to disciplinary action. Consequently', Proposal
2, in our view, imposes substantive limitations on management's
ability to conduct disciplinary investigations and thereby
directly interferes with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute.
See Sequoia and Kings Canyon National Parks.

     2. The Proposal is Not an Appropriate Arrangement

     Even assuming that Proposal 2 was intended to ameliorate an
adverse effect perceived by employees who are off work on sick
leave when these employees are called or visited by Agency
officials for the purpose of verifying the appropriateness of the
sick leave, the proposed amelioration is not appropriate. As
noted above, the Proposal limits management's ability to uncover
conduct which could lead to disciplinary action. On the other
hand, and despite the Union's claim that telephone calls or home
visits by supervisors constitutes harassment, we find that the
benefit to employees consists primarily of not being
inconvenienced by answering the telephone or the door.

     In these circumstances, the effect of the Proposal on
management's right to discipline outweighs the benefit to
employees. Accordingly, Proposal 2 excessively interferes with
management's right to discipline under section 7106(a)(2)(A) of
the Statute.

     In summary, Proposal 2 is outside the duty to bargain
because it violates management's right to discipline employees
under section 7106(a)(2)(A) and does not constitute an
appropriate arrangement under section 7106(b)(3) of the Statute.
In view of this determination, we find it is unnecessary to
address the Agency's additional argument concerning the
negotiability of this proposal.

     V. Order

     The petition for review is, dismissed.

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY