30:0909(102)NG - AFGE and Army and Air Force Exchange Service -- 1988 FLRAdec NG

30 FLRA NO. 102
 30 FLRA 909

15 JAN 1988

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES

                   Union

     and

ARMY AND AIR FORCE
EXCHANGE SERVICE

                   Agency

Case No. 0-NG-1397

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.

     The two provisions concern an employee's declining to
perform a task where he/she reasonably believes the task poses
imminent danger of death or serious physical harm. We find that
the provisions are within the duty to bargain under section
7106(b)(3) because they constitute appropriate arrangements for
employees adversely affected by the exercise of management's
rights to assign work and direct employees under section 7106 of
the Statute.

     II. Provision 1

     Article 35, Health and Safety, Section 9

     The tern "imminent danger" means any conditions or practices
in any work place which could reasonably be expected to cause
death or serious physical harm immediately or before there is
sufficient time for the imminence of such danger to be
eliminated through normal procedures. In the case of imminent
danger situations, employees shall make reports by the most
expeditious means available. The employee has the right to
decline to perform assigned tasks because of a reasonable belief
that, under the circumstances, the tasks pose an imminent risk of
death or serious bodily harm, coupled with a reasonable belief
that there is insufficient time to effectively seek corrective
action through normal hazard reporting and abatement procedures.
In these instances, the employee must report the situation to his
supervisor or the next immediately-available, higher level
supervisor. If the supervisor believes the condition or corrected
condition does pose an immediate danger, then the supervisor
shall request an inspection by the Employer's Safety and Security
Technician or Specialist (SST or SSS) as well as contact the
Local Union safety representative, who shall be afforded the
opportunity to be present at the time the inspection is made.
Should the SST or SSS decide the condition does not pose an
immediate danger and give an instruction to return to work,
continued refusal by the employee at this point would be
justified, if there was a reasonable basis for the employee to
believe that imminent danger was present.

     A. Positions of the Parties

     The Agency contends that Provision 1 conflicts with its
rights to assign work, direct employees, and discipline employees
under section 7106(a)(2)(A) and (B) of the Statute. The Agency
argues that the provision transfers to the employee the sole
discretion to determine whether or not to perform assigned tasks.
That is, the Agency contends that if an employee has a reasonable
basis to believe that imminent danger is present, the employee
can refuse to perform the task. Further, an employee can continue
to refuse even after appropriate management officials have
investigated the situation and have determined, after any
necessary corrections, that it does not pose an imminent danger
to the employee. The Agency argues that while the provision does
not expressly state that employees may not be disciplined for
refusing to perform work, it allows employees in the described
situations to refuse to perform assigned tasks and thereby to be
immune from discipline for such refusal. 

     The Union argues that the provision is a negotiable
procedure and an appropriate arrangement for employees who in the
course of their jobs are faced with life-threatening situations.
Moreover, the Union maintains that the provision does not
prohibit the initiation of discipline but, rather, provides a
defense when discipline is proposed.

     B. Analysis and Conclusions

     We find that this provision would prevent the Agency from
assigning work to employees in circumstances where employees
reasonably believe that the duties present an imminent danger of
death or serious bodily harm coupled with insufficient time
within which to abate the hazard even if the Agency had abated
the imminent danger or decided that it did not exist.

     Proposals which prescribe conditions on management's ability
to require employees to perform particular duties directly
interfere with management's right to assign work. See American
Federation of Government Employees, Local 2094, AFL - CIO and
Veterans Administration Medical Center, New York, New York, 22
FLRA  710 (1986) (Proposal 4), aff'd sub nom. American Federation
of Government Employees, AFL - CIO, Local 2094 v. FLRA,  833 F.2d
1037 (D.C. Cir. 1987).

     In VA Medical Center, New York, the Authority found that
Proposal 4, which prevented the Agency from assigning overtime
work to employees if the employees believed,-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. Provision 1, 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. Furthermore, since the
right to direct employees under section 7106(a)(2)(A) involves
the right to supervise and guide them in the performance of their
duties, the right to direct employees is reflected in the
supervisory function of assigning work. 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, 120 (1987).

     Moreover, the fact that the provision reflects essentially
the same wording as Occupational Safety and Health Administration
(OSHA) regulation, 29 C.F.R. 1960.46(a), does not make it
negotiable. The provision  goes beyond the contractual
recognition of externally imposed limitations and imposes an
independent, substantive contractual requirement. 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).

     Based on the Union's intent and the wording of the
provision, we find that the provision does not prevent management
from initiating disciplinary actions against employees.
Consequently, the provision does not concern the exercise of
management's right to discipline employees. The provision is
distinguishable from Provisions 26-28 in Department of the
Treasury, Bureau of Engraving and Printing, 25 FLRA  113, 135-37.
In that case, we found that the provisions stating that an
employee "shall not be subject to disciplinary action" did not
concern an employee's defense to discipline but totally precluded
management from instituting discipline against employees.

     Because Provision 1 conflicts with management's rights to
assign work and derivatively to direct employees under section
7106(a)(2)(A) and (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  24 (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 are 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 rights to assign work and direct
employees. Based on the Union's undisputed explanation, the
provision is intended to protect employees from the adverse
impact of assignment to, and direction to perform, duties which
will seriously endanger their health and safety.

     In deciding whether the intended arrangement is appropriate,
we must determine whether its negative impact on management's
rights to assign work and direct employees is 
"excessive" when weighed against the intended benefit to
adversely affected employees. By enabling employees who
reasonably perceive their work situations to present serious and
life-threatening conditions, Provision 1 clearly benefits those
employees. Since the provision applies in a narrowly defined set
of circumstances and does not prevent management from
disciplining employees, we conclude that it does not excessively
interfere with management's rights, as explained below.

     Under this proposal if a supervisor instructs an employee to
perform work in circumstances which the employee believes is an
"imminent danger" situation, the employee has the obligation and
the opportunity to explain this to the supervisor. If the
supervisor, alone or in conjunction with an Agency safety
representative, reasserts the instruction, with or without
attempted corrective action, the employee must choose between (1)
setting aside his or her concerns and performing the work or (2)
disobeying the order and risking disciplinary action, for
example, for insubordination.

     If the Agency institutes disciplinary action against the
employee, the proposal enables the employee or the Union to
dispute the disciplinary action, through the parties' negotiated
grievance procedure. The employee's defense against the
discipline would be that, because the employee's perception that
the work situation constituted an imminent danger was correct,
the discipline would not be for just cause. If the grievance is
not settled short of arbitration and the matter is submitted to
arbitration under the parties' procedures, the arbitrator
ultimately would decide that issue based on evidence concerning
the work situation presented by the parties.

     Provision 1 does not apply to every perceived threat to
employee health and safety. Under Provision 1 there must be facts
which would support a reasonable belief that the threat (1) is
imminent; (2) poses a risk of death or serious physical injury;
and (3) cannot be abated through normal procedures. The provision
would apply the same standard in circumstances where an employee
continued to refuse to work based on disagreement with a decision
by Agency officials that there was no immediate danger present or
that the condition had been corrected. Provision 1 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  493, 505-09, (1987) (Provision 3)
petition for review filed sub nom. Department of the
Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina v.
FLRA,  No. 87-2661 (4th Cir. September 22, 1987) (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, under Provision 1 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 physical harm
would not justify employees' stopping work. Only in the most
limited circumstances, therefore, 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  69, 77-79 (1987)
(Provision 4), petition for review filed sub nom. U.S. Army
Missile Command, U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, The U.S. Army Information Systems
Command - Redstone Arsenal Commissary v. FLRA,  No. 87-7445 (11th
Cir. July 17, 1987) (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 1 would result in some interference with management's
rights, that interference is not excessive.

     On balance, therefore, while the provision interferes with
management's right to assign work, it concerns a matter of great
importance to the health and safety of employees. We conclude
that the benefit afforded by the provision to employees who may
be required to work in situations where their health and safety
are 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 1 does
not excessively interfere with management's right and constitutes
a negotiable appropriate arrangement under section 7106(b)(3) of
the Statute. See National Federation of Federal Employees, Local
29 and Department of Defense, HQ, U.S. Military Entrance
Processing Command, 29 FLRA  726 (1987). 

     III. Provision 2

     Article 37, Over the Road Drivers, Section 8 Employees are
not required to, and will not be penalized for failing to,
continue a run when a situation arises which would make
continuing it an imminent danger.

     A. Positions of the Parties

     The Agency contends that Provision 2 excessively interferes
with its rights to assign work, direct employees, and discipline
employees under section 7106(a)(2)(A) and (B). The Union
maintains that the provision is within the duty to bargain as a
negotiable procedure and appropriate arrangement for employees
who are faced with life-threatening situations in the performance
of their work. The Union states that it intends the definition of
"imminent danger" and the standard of "reasonable belief" as used
in Provision 1 to be incorporated into Provision 2. Moreover, the
Union states that Provision 2 does not immunize an employee from
the initiation of a disciplinary action by the Agency but,
rather, provides a defense once discipline is undertaken.

     B. Analysis and Conclusion

     Based on its language and the Union's statement of intent,
we conclude that Provision 2 is to the same effect as Provision
1. We conclude for the same reasons expressed in conjunction with
Provision 1, that Provision 2 interferes with the Agency's right
to assign work and direct employees but does not interfere with
the right to discipline employees. It is, however, negotiable
under section 7106(b)(3) as an appropriate arrangement. In
reaching the conclusion that the provision does not interfere
with the right to discipline employees we adopt the Union's
explanation of the provision, as follows:

     The driver provision only protects an employee from being
penalized (e.g., disciplined) if an imminent danger did exist.
Thus, in the context of the disputed provisions taken together,
proposing discipline does not constitute a penalty and would not
be barred by the driver provision.

     Union Response at 3 (emphasis in original). 

     In view of this statement, we find that the phrase "will not
be penalized" in this provision refers only to the outcome of a
disciplinary action in which an employee who establishes that an
"imminent danger" existed will not be punished. The provision
does not prevent the Agency from instituting a disciplinary
action. Compare Department of the Treasury, Bureau of Engraving
and Printing, 25 FLRA  113, 135-37 (the phrase "shall not be
subject to disciplinary action" totally precluded management from
instituting discipline against employees).

     IV. Order

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

     Issued, Washington, D.C. January 15, 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

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