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44 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FORT BRAGG ASSOCIATION OF TEACHERS

(Union)

and

U.S. DEPARTMENT OF THE ARMY

FORT BRAGG SCHOOLS

FORT BRAGG, NORTH CAROLINA

(Agency)

0-NG-1883

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of five provisions of a collective bargaining agreement negotiated by the Union and the Superintendent of Fort Bragg Schools (Activity) that were disapproved by the Department of the Army (Agency or Army) under section 7114(c) of the Statute.⁽¹⁾

Provision 1 prescribes the number and duration of faculty and other meetings that employees may be required to attend after the work day. We conclude that the provision is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The first sentence of Provision 2 specifies the number of evening meetings that employees may be required to attend during the school year. The second sentence of Provision 2 states that employees who attend evening meetings shall be permitted to leave school thirty minutes prior to the end of the work day. We find that both sentences of Provision 2 are nonnegotiable because they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 3 requires the Activity to grant non-emergency leave, upon an employee's request, under prescribed conditions. Provision 4 states that family leave, normally not to exceed six months, will be granted employees. We conclude that these provisions are nonnegotiable because they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 5 provides that the Activity will reinstate employees to their former positions and duty stations when they return to work, unless their temporary disability exceeds thirty working days. We find that the provision is nonnegotiable because it directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

II. Background and Preliminary Matters

In its initial submissions to the Authority, the Union disputed the authority of the Army to disapprove the negotiated agreement and the timeliness of that disapproval. By Order dated December 14, 1990, the Authority directed the parties to submit a locally executed collective bargaining agreement, clearly showing the date of execution, and proof of service by mail or by personal delivery of the Agency's allegation of nonnegotiability. Both the Agency and the Union filed supplemental submissions, which we have considered.

The record in this case reveals that, following negotiations for a new collective bargaining agreement, the Activity and the Union entered into an agreement which they signed and dated on May 15, 1990. The signature page of the agreement provided space for the Superintendent of Fort Bragg Schools and the president of the Union to sign the agreement. This signature block identified the agreement as a "[t]entative [a]greement reached this the 15th day of May 1990, subject to ratification, execution and agency review." Attachment 6 to Union's Supplemental Submission at 24. The signature page also provided space for the Union to date the agreement to signify the Union's ratification of the agreement and space for the Fort Bragg School Board to date the agreement to signify the School Board's approval of the agreement. The signature page further provided space for the Commander of Fort Bragg to sign and date the agreement to signify that it had been "[r]eviewed and executed . . . ." Id. Finally, the signature page provided space for the Department of the Army to sign and date the agreement to signify "agency review." Id.

Additionally, the title page of the agreement contains a statement providing, in part, that the agreement would become "effective and binding" within 30 days after execution by the Post Commanding General. Id. at 1. There was a subsequent alteration of the title page to reflect that the agreement would become effective "'upon completion of post audit review or thirty (30) days after it is executed by the post Commanding General, whichever occurs sooner.'" Response at 3.

On September 12, 1990, the Acting Commander of Fort Bragg signed off on a memorandum submitted by the Superintendent of Fort Bragg Schools. Accompanying the memorandum were copies of the agreement that were "enclosed for execution by Post Commanding General." Enclosure 1 to Agency's Supplemental Submission at 1. Subsequently, by memorandum dated October 4, 1990, the Office of the Deputy Chief of Staff of Personnel, Department of the Army, notified the Union that, pursuant to section 7114(c) of the Statute, it disapproved various provisions of the agreement. Thereafter on October 19, 1990, the Union filed its petition for review.

The Union contends that the agreement was executed on May 15, 1990, and as there was no disapproval within 30 days thereafter, the agreement became binding on the parties on June 16, 1990. In this connection, the Union maintains that: (1) the Department of the Army did not have the authority under section 7114(c) of the Statute to disapprove the agreement; and (2) even assuming the Department of the Army was so authorized, its disapproval was not served on the Union within the 30-day period required by section 7114(c). For the reasons set forth below, we reject these contentions.

A. Agency Head Determination

The Union argues that the Department of Defense, and not the Department of the Army, has the authority to review and approve or disapprove negotiated agreements. In support of its position the Union cites 20 U.S.C. § 243, although it offers no further explanation.

In response, the Agency states that, under section 7114(c)(1) of the Statute, agency heads may delegate their authority to review locally negotiated collective bargaining agreements. The Agency maintains that, by regulation, the Department of Defense has delegated review authority to the Department of the Army which, in turn has delegated its authority to Headquarters, Department of the Army, Labor and Employee Relations Division.

The Agency further maintains that the Union's reliance on 20 U.S.C. § 243 is misplaced. The Agency asserts that 20 U.S.C. § 243 is not concerned with the delegation of authority of agency head review of negotiated agreements. Rather, the Agency states that the provisions contained therein are concerned with the "delegation by the Secretary of Education for the purpose of 'providing free public education,' through the use of another agency's facilities and services[,]" and with compliance with requests for information made by the Secretary of Education. Statement of Position at 1.

The Authority previously has stated that agency heads have the discretion to delegate their authority to review and approve or disapprove locally negotiated collective bargaining agreements. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 30 (1991), aff'd in part and vacated and remanded in part as to other matters sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Apr. 14, 1991); 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, 70 (1987). Based on the record before us, including the regulations containing the delegations of review authority that were submitted by both the Agency and the Union, we conclude that the Army had the authority to review the negotiated agreement.

We also find, in agreement with the Agency, that the Union's reliance on 20 U.S.C. § 243 is misplaced. That provision is not concerned with the delegation of review authority under section 7114(c) of the Statute. Rather, it relates to the "[u]tilization of services and facilities of other Federal agencies" in providing free public education. 20 U.S.C. § 243 (1988).

B. Timeliness of the Agency Head Review

The Union contends that the Agency head disapproval was untimely. The Union asserts that the 30-day time period for disapproving the agreement began on May 15, 1990, the date on which it claims the agreement was executed by the parties at the local level, and that the October 4, 1990, disapproval was well beyond the 30-day time limit. Therefore, in the absence of a timely disapproval, the Union maintains that the agreement became binding on the parties by operation of section 7114(c) of the Statute.

In further support of its position, the Union asserts that the Activity's negotiator had the authority to bind the Activity when he signed the agreement on May 15, 1990. According to the Union, under Department of Defense and Department of the Army regulations, as well as section 7114(b)(2) of the Statute, the Activity's duly authorized negotiators had the authority to commit the Activity to a binding agreement. The Union also cites U.S. Patent and Trademark Office and Patent Office Professional Association, 18 FLRA 713 (1985) (U.S. Patent and Trademark Office) in support of its position.

The Union disputes the Agency's position that the agreement was executed on September 12, 1990, when the Acting Commander of Fort Bragg signed the agreement. The Union argues that the Agency unilaterally added this requirement to the title page of the agreement.

The Agency contends that the October 4, 1990, Agency head disapproval was timely. The Agency maintains that the 30-day review period did not commence until September 12, 1990, the date on which the Acting Commander of Fort Bragg signed the agreement. The Agency argues, in this regard, that it is "clear from the title page of the negotiated agreement . . . that the parties understood that the date of execution is the date the Commander signs the agreement - not when the negotiating teams signed." Agency's Supplemental Submission at 2. The Agency also explains that a subsequent amendment made to the title page was necessary in order to conform to the requirements of section 7114(c) of the Statute, and was a change to which "[b]oth parties agreed . . . ." Id. Furthermore, the Agency states that its regulations provide for negotiated agreements to be executed by the Commander and that this authority cannot be delegated. The Agency also states that the authority of its negotiators does not replace the authority of the Commander to execute agreements.

Under section 7114(c) of the Statute, an agreement between any agency and an exclusive representative "shall be subject" to approval by the head of the agency. The agency head is required to act within 30 days from the date that the agreement is executed. If the agency head does not approve or disapprove the agreement within the 30-day period, the agreement takes effect automatically on the thirty-first day. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 802 (1991) (Patent Office Professional Association). Where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties. Id. Of course, parties can agree to implement those portions of a local agreement that are not specifically disapproved by the agency head. U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 34 FLRA 98, 105 (1989).

The date of execution that triggers the time limits for agency head review under section 7114(c)(2) relates to the date on which no further action is necessary to finalize a complete agreement. Patent Office Professional Association, 41 FLRA at 803. The Authority has recognized that the date of execution normally is the date the local parties sign the agreement. However, in this case, there is evidence that the parties intended to have further action after the local negotiators signed the agreement. In this regard, the signature page of the agreement, which the Union and the Superintendent signed, identified the agreement as a "[t]entative [a]greement." Attachment 6 to Union's Supplemental Submission at 24. Also, there are signature blocks to denote ratification by the Union and acceptance by the Fort Bragg school board. Notably, another signature block provides for the Commander of Fort Bragg to sign and date the agreement indicating that that official had "[r]eviewed and executed" the agreement. Id. Therefore, from the plain language of the signature page of the agreement, it is evident that the parties intended for various actions to take place subsequent to the local negotiators signing off on the agreement.

Additionally, the title page of the agreement contains a statement referring to the agreement's execution by the Post Commander. Although the Union claims that this statement was unilaterally inserted by the Agency, and thereafter unilaterally modified, the Union states that the title page was "added by management to the [collective bargaining agreement] and signed by the parties on May 15, 1990 . . . ." Union Response at 3. Evidently, the Union concedes that the statement appeared on the title page when the agreement was signed on May 15, 1990. Under these circumstances, we find that the Union has failed to establish that May 15, 1990, was the date on which the agreement was executed. Instead, based on the evidence in the record, we find that the agreement was executed by the Commander on September 12, 1990.

The Union's reliance on Patent and Trademark Office, is misplaced. In that case, the Authority found that the parties had reached final agreement on a memorandum of agreement (MOU) when their respective chief negotiators initialled off on the document. The Authority further found that, in absence of any written disapproval of the MOU being served on the union within 30 days thereafter, the MOU became a binding agreement by operation of section 7114(c)(3) of the Statute. In contrast, the record in this case establishes that the Commanding General was the individual empowered to execute the agreement and, therefore, the 30-day review period commenced from that date. The Union's assertion that the local negotiators were authorized to commit the parties to a binding agreement does not compel a different result. Section 7114(b)(2) of the Statute requires parties to be represented at negotiations by duly authorized representatives and relates to the parties' obligation to negotiate in good faith. Section 7114(c) of the Statute, rather than section 7114(b)(2), relates to agency head review and provides the basis for assessing the timeliness of an agency head review action.

Finally, having found that the agreement was executed on September 12, 1990, we conclude that the agency head disapproval, dated October 4, 1990, occurred within the 30-day period set forth in section 7114(c) of the Statute. Therefore, the Agency head's disapproval is timely and the petition for review is properly before us.

III. Provisions 1 and 2 ⁽²⁾

Provision 1

Article 8, Section 2

In addition to the work day, an employee may be required to attend one faculty meeting per week for up to thirty (30) minutes past the work day and one other meeting per week for up to one hour past the work day.

Provision 2

Article 8, Section 3

In addition to the work day, an employee may be required to attend up to a maximum of three (3) evening meetings per school year. Employees who attend evening meetings shall be permitted to leave school thirty (30) minutes prior to the end of the work day.

A. Positions of the Parties

1. Agency

First, the Agency argues that the language of Provision 1 is inconsistent with the Union's stated intent. The Agency notes, contrary to the Union's assertion, that the provision "does not address compensation, or starting and stopping times for the performance of duties outside the regularly assigned duty day." Statement of Position at 4.

The Agency further contends that Provisions 1 and 2 are nonnegotiable because they interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to assign work under section 7106(a)(2)(B) of the Statute. In support, the Agency relies on Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 760-61 and 783-84 (1987) (Proposals 16 and 41) (Department of Defense Dependents Schools), enf'd as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, 911 F.2d 743 (D.C. Cir. 1990), in which the Authority held that proposals limiting an agency's right to assign work to that occurring during normal duty hours were outside the duty to bargain. The Agency argues that the provisions here are similar "in that management is prohibited from assigning duties for time periods other than those specifically permitted by the agreement." Statement of Position at 5.

2. Union

The Union states that the intent of Provision 1 is to "define the teacher's base duty work day and base duty work week covered by their base pay." Petition for Review at 2. The Union states that the intent of Provision 2 is to "define the amount of evening meetings that are to be included in the teacher's base work duty covered by their base pay . . ." and to define "the effect the requirement to attend an evening meeting has on the length of the normal duty day." Id. According to the Union, under both provisions, the Agency "retains the right to assign addition[al] duties outside the normal duty day, but must be prepared to pay additional monies for those required duties outside the contract duty day." Id.

The Union also disputes the Agency's argument regarding the Union's intent to negotiate compensation or starting and stopping times. The Union claims that bargaining over compensation was not possible because the Agency contended that such a matter was nonnegotiable. As a consequence, the Union asserts that, during negotiations, it took the position that "the employees would work beyond the duty day if directed by management and then grieve for appropriate relief." Response at 5. Additionally, the Union asserts that the provisions do not address starting and stopping times because that would be contrary to the Union's intent, which was simply to establish a duty day and not to limit management's right to assign work to a fixed schedule.

Finally, the Union maintains that the provisions extend the duty day beyond the 7 1/2-hour workday the parties have agreed to in an undisputed article of the agreement. The Union states that if the provisions are declared nonnegotiable, "the base duty day will be significantly shorter to the detriment of the Agency[.]" Id. (emphasis omitted).

B. Analysis and Conclusions

1. Provision 1 and the First Sentence of Provision 2 Directly Interfere with Management's Right to Assign Work Under Section 7106(a)(2)(B)

The plain wording of Provision 1 states that an employee may be required to attend one faculty meeting per week for up to thirty minutes past the workday and one other meeting per week for up to one hour past the workday. Although the provision does not specify that such meetings are the only ones that may be scheduled during the week, it is clear, from the Union's expressed intent to define the base work day and work week, that the provision is intended to limit the number of weekly meetings. Additionally, the plain wording of the first sentence of Provision 2 states that an employee may be required to attend up to a maximum of three evening meetings per school year. Stated otherwise, these provisions establish the frequency with which the Agency could require employees to attend meetings at the end of the work day and in the evening.

The Union claims that Provisions 1 and 2 are intended to preserve the Agency's right to assign duties outside the normal duty day. However, the Union's stated intent is inconsistent with the plain wording of the provisions, which contain restrictions on employee attendance at meetings outside the normal duty day. Where there is an inconsistency between the language of a proposal and its stated intent, we will not base a negotiability determination on the union's intent. Rather, we will base our determination on the language of the proposal. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990) (Portsmouth Naval Shipyard).

Provision 1 and the first sentence of Provision 2 are substantively similar to proposals previously found nonnegotiable by the Authority that either would have required management to assign work to teachers during their duty day or would have prevented the assignment of work outside the duty day. See for example, Overseas Education Association and U.S. Department of Defense Dependents Schools, FPO, Seattle, 42 FLRA 197, 201-02 (1991) (DODDS, Seattle) (holding open house during school day), petition for review denied sub nom. Overseas Education Association, Inc. v. FLRA, No. 91-4166 (2d Cir. Apr. 3, 1992); Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA 936, 937-38 (1987), enf'd by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, 911 F.2d 743 (D.C. Cir. 1990) (requirement that teachers be assigned to Student Activity Fund Councils during the duty day interfered with right to assign work); Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878, 883-84 (1985) (proposal prohibiting attendance at afterhour PTO/PTA meetings). The Authority found that such proposals were nonnegotiable because they directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute.

We reach the same conclusions here. While these provisions do not totally preclude management from assigning duties to employees outside the duty day, the limitations imposed by the provisions constitute substantive restrictions on management's right to assign work. Thus, management would be prevented from assigning more than the prescribed number of meetings per week, for more than a prescribed duration, and would also be prevented from assigning more than a given number of meetings per year. Because of these restrictions on the right of the Activity to assign work, we conclude that Provision 1 and the first sentence of Provision 2 directly interfere with the exercise of that management right.

2. The Second Sentence of Provision 2 Directly Interferes with Management's Right to Assign Work Under Section 7106(a)(2)(B)

The second sentence of Provision 2 states that employees who attend evening meetings shall be allowed to leave school thirty minutes prior to the end of the day. Stated otherwise, the second sentence of Provision 2 would reduce the instructional day by one-half hour whenever evening meetings are held.

It is well established that the right to assign work under section 7106(a)(2)(B) includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990). See also Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 257, 257-60 (1987), in which the Authority found nonnegotiable a proposal that limited the assignment of instructional duties on specified days to one-half of the duty day. The second sentence of Provision 2 is to the same effect as the proposal in that case in that it would limit the assignment of duties during the instructional day on the days that employees attend evening meetings. Accordingly, we find that the second sentence of Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also DODDS, Seattle, 42 FLRA at 204-06 (proposal that would require dismissal of students for one-half day in order to free teachers from instructional duties so that they could prepare for open house program found to directly and excessively interfere with the right to assign work).

In sum, we conclude that Provisions 1 and 2 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable. As the Union has not argued that Provisions 1 and 2 constitute appropriate arrangements under section 7106(b)(3) of the Statute, we need not address the applicability of that section. Also, in view of our conclusion, we need not address the Agency's additional contention that the provisions interfere with the right to assign employees.

IV. Provisions 3 and 4

Provision 3

Article 11, Section 11a

Non-emergency leave shall be granted without divulgence of reason, upon request of the employee when made at least two (2) days in advance of the date(s) desired and such leave is not a day before or a day after a holiday or scheduled vacation days, except in emergencies.

Provision 4

Article 11, Section 13c

Family leave, normally not to exceed six (6) months, will be granted employees.

A. Positions of the Parties

1. Agency

The Agency asserts that the Union's statement of intent regarding each of the provisions is inconsistent with the wording of the provisions. The Agency explains that, notwithstanding the Union's assertions to the contrary, the language of the provisions clearly mandates that leave be granted. The Agency argues that because the provisions require that employees be released from duty without consideration of mission requirements or staffing considerations, the provisions interfere with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to assign work under section 7106(a)(2)(B) of the Statute. In support of its position, the Agency cites American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 250-53, (1990) (Portsmouth) (proposal requiring agency to grant leave under prescribed circumstances, unless employee's absence would prohibit accomplishment of critical job found to directly and excessively interfere with right to assign work); Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 523-25 (1990) (provision restricting agency's right to rescind approved leave except in extreme emergencies found to be outside duty to bargain under section 7106(a)(2)(B) of the Statute).

2. Union

With respect to Provision 3, the Union explains that employees are entitled to 3 days of administrative/personal leave per year that can be accumulated, but that cannot be taken in increments of more than 9 days per year. The Union states that the intent of Provision 3 is to provide for an objective procedure for granting administrative/personal leave and to preserve management's right to reject requests for such leave. Additionally, the Union states that the intent of Provision 4 is to define the amount of family leave that may be granted and that management retains final authority to reject such requests. For purposes of the provision, the Union states that "[f]amily leave refers to the time a teacher may need to be away from work due to pregnancy, miscarriage, abortion, childbirth and/or recovery." Petition for Review at 3. The Union further states that under "the Equal Opportunity Act of 1972, female employees shall not be penalized in their condition of employment[,]" and that the use of family leave for these purposes is to be treated as any other disability. Id.

In response to the Agency's statement of position, the Union argues that use of the words, "'shall be granted . . . upon request'" in Provision 3 was not intended to operate as a mandate to the Agency. Response at 5. The Union states that a similar provision was contained in the parties' previous collective bargaining agreement and that the parties understood that management retained the final authority to reject requests for administrative/personal leave.

The Union asserts that Provision 4 also is the same as a provision in the parties' previous agreement that had been interpreted to allow management to deny family leave requests based on "'consideration of operating exigencies, staffing requirements and related mission objectives.'" Id. at 7. Finally, the Union maintains that Provision 4 is similar to Section 9 of Proposal 28 regarding family leave that was held negotiable in Fort Bragg Association of Educators, NEA and Department of the Army Fort Bragg Schools, 30 FLRA 508, 525-26, 552, 556-57 (1987) (concurrence in separate opinions) (Department of the Army, Fort Bragg Schools).

B. Analysis and Conclusions

For the following reasons we find that Provisions 3 and 4 are outside the duty to bargain because they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 3 states that [n]on-emergency leave shall be granted" and Provision 4 states that "[f]amily leave . . . will be granted." The Union argues that the provisions are not intended to prevent management from disapproving the leave that is the subject of the respective provisions. However, we find that the Union's stated intent is not consistent with the plain wording of the provisions, which requires management to grant the requested leave. As we stated in connection with Provisions 1 and 2, where there is an inconsistency between the language of a provision and its stated intent, we will base our determination on the language of the provision. Portsmouth Naval Shipyard, 35 FLRA at 35. The Union's assertions that the same provisions were contained in an earlier agreement and that the parties had an understanding as to the intent of the provisions does not warrant a different result. Whatever past interpretations the parties may have given to the provisions does not alter the plain language of Provisions 3 and 4 that, as noted, requires the granting of leave.

The Authority consistently has held that proposals which place restrictions on an agency's right to deny leave requests are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute because such proposals prevent management from taking into account workload requirements and the need for employee's services. See American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 597-601 (1991) (Provision 2) (provision that would prevent agency from disapproving leave requests or rescinding previously approved annual leave requests when such action would result in forfeiture of annual leave found to directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute); Portsmouth, 37 FLRA at 250-52 (proposal that would permit management to deny annual leave only where the absence of the particular employee would prohibit the agency from accomplishing a critical job found to impose a substantive criterion on management's ability to assign work in violation of section 7106(a)(2)(B)); American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984) (portion of proposal that would require agency to grant annual leave as long as employee's need was clearly documented removes management's discretion to deny leave and violates section 7106(a)(2)(B)). As Provisions 3 and 4 would require management to grant non-emergency leave and family leave, the provisions restrict management's right to disapprove such leave. Therefore, the provisions directly interfere with management's right to assign work under 7106(a)(2)(B) of the Statute.

We find that Provision 4 is distinguishable from the proposal in Department of the Army, Fort Bragg Schools relied on by the Union. That proposal provided, in relevant part, that, in accordance with the Equal Opportunity Act of 1972, female employees would not be penalized in their condition of employment because they require time away from work caused by or contributed to by pregnancy, miscarriage, abortion, childbirth, and/or recovery. The Authority determined that the proposal was negotiable because it left management with the discretion to grant or deny leave based on workload considerations. 30 FLRA at 556-57 (former Chairman Calhoun concurring in Order, 30 FLRA at 552). In contrast, the plain language of the provision here would require management to grant leave unconditionally and would prevent management from exercising its discretion to disapprove leave requests.

Based on the foregoing, we conclude that Provisions 3 and 4 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable. In view of this conclusion, it is unnecessary to address the Agency's additional contention that the provisions interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Finally, as the Union has not argued that Provisions 3 and 4 constitute appropriate arrangements under section 7106(b)(3) of the Statute, we need not address the applicability of that section.

V. Provision 5

Article 11, Section 13e

Reinstatement to one's former position and duty station will be made upon the employee's return to work, except when the period of temporary disability exceeds thirty (30) working days.

A. Positions of the Parties

1. Agency

The Agency contends that the provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it prohibits "the consideration of operating exigencies, staffing requirements, and related mission objectives." Statement of Position at 7. More specifically, the Agency asserts that, like various proposals in National Treasury Employees Union, Chapter 22 and Department of the Treasury, Internal Revenue Service, 29 FLRA 348, 350-51 (1987) (PPS Proposal 3 and PRP Proposal 2), Provision 5 would require that management place employees in particular positions and assign particular duties. The Agency argues that it would be prevented from assigning duties other than those performed by employees prior to the period of their disability.

2. Union

The Union states that Provision 5 pertains to the use of family leave set forth in Provision 4. The Union explains that Provision 5 is intended to define "how a teacher returns to work to their position after the disability has terminated[,]" and reflects an understanding that "the Agency will allow the teacher to return to his/her former position if at all possible." Petition for Review at 3, Response at 7. As with Provision 4, the Union asserts that Provision 5 is the same as a provision in the parties' previous agreement that had been interpreted to allow management to deny reinstatement of employees on family leave for less than 30 days to their former positions based on "'operating exigencies, staffing requirements and related mission objectives.'" Response at 7.

B. Analysis and Conclusions

We find that Provision 5 is nonnegotiable.

Provision 5 states that, except when the period of temporary disability exceeds thirty days, reinstatement to one's former position and duty station "will be made" upon an employee's return to work. Although the Union states that the provision is the same as a provision in the parties' previous agreement that had been interpreted to allow management to deny employees reinstatement to their former positions, and explains that the provision simply allows employees to return to their former positions if at all possible, the Union's explanation is not consistent with the plain wording of the provision. As with the other provisions, we will base our determination on the language of the provision.

Provision 5 is virtually identical to a proposal that the Authority found was nonnegotiable in 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, 523-25 (1987). In that case, the Authority determined that the proposal directly and excessively interfered with management's right to assign employees to positions under section 7106(a)(2)(A) of the Statute. In reaching its decision, the Authority relied on Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA 934, 939 (1987), in which a proposal requiring the agency to assign a teacher to his or her original position when that teacher returned from sabbatical leave was found to interfere with management's right to assign employees. The Authority found that the proposal would have prevented management from assigning the returning employee to any other available position or from permanently assigning any other employee to the position left for reasons of sabbatical leave.

Consistent with these decisions, we find that Provision 5 interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute and is nonnegotiable. See also American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 895-99 (1991) (Member Talkin dissenting as to other matters) (portion of proposal that would have required agency to return employee to position originally held following successful rehabilitation found to directly and excessively interfere with management's right to assign employees under section 7106(a)(2)(A)).

In view of our conclusion that the proposal is nonnegotiable, it is unnecessary to address the Agency's contention that the provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

VI. Order

The petition for review is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The petition for review referred to a number of other provisions on which the Agency had commented in its allegation of nonnegotiability. The Agency claims, in its statement of position, that those provisions are not properly before the Authority because they were not declared nonnegotiable. The Union's response contains no further reference to those provisions and we will not address them further.

2. In its petition for review, the Union stated that it intended to file an unfair labor practice charge with respect to these two provisions. There is no evidence in the record as to whether such a charge was filed. In any event, the Union also stated that it was electing to proceed with the negotiability appeal first. See section 2424.5 of the Authority's Rules and Regulations.

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