[ v22 p710 ]
22:0710(81)NG
The decision of the Authority follows:
22 FLRA No. 81
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2094, AFL-CIO
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER
NEW YORK, NEW YORK
Agency
Case No. 0-NG-1006
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 nine Union proposals.
II. Procedural Issue
The Union's Petition for Review contained a proposal concerning the
staying of adverse personnel actions pending exhaustion of grievance and
appeal rights. However, the Union included no document purporting to be
an Agency head determination on that proposal, nor did the Agency
address that proposal in its Statement of Position. Consequently, the
referenced proposal is not appropriately before us for review. American
Federation of State, County, and Municipals Employees, AFL-CIO, Local
2910 and Library of Congress, 11 FLRA 632 n.1 (1983).
III. Union Proposal 1
The Union may recommend to Management 10 employees for EEO
Counselor positions. Management will select at least 2 of the
candidates as counselors. Whereby a counselor serves as a bridge
between the complainant and Management in the resolution of
problems rather than as a chosen representative of the employee,
and in order to avoid conflicts of interest, no Union Officer or
Shop Steward may be nominated.
A. Positions of the Parties /1/
The Agency contends that Union Proposal 1 is inconsistent with
management's rights, under section 7106(a)(2)(A) and (B) of the Statute,
"to assign" and to determine the personnel by which the Agency's
operations will be conducted. The Agency cites American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to
other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140
(D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
(1982) in support of its position.
The Union asserts that the proposal is not inconsistent with the
right to assign the workforce because the duties assigned to counselors
are not their primary function, but is only part time work.
B. Analysis
In requiring that equal employment opportunity counselors be selected
from among a list of Union nominess, Union Proposal 1 is to the same
effect as the disputed portion of Union Proposal XI which was found to
be outside the duty to bargain in Wright-Patterson Air Force Base, 2
FLRA 604, 622-3 (1980). Proposal XI required that half of the agency's
EEO Counselors be selected from a list of union nominees. We determined
that the proposal directly prescribed the assignment of certain duties
to particular employees and prevented the assignment of those duties to
other employees. Concluding that the disputed part of the proposal was
inconsistent with management's right to assign work, we noted that "EEOC
Counselors perform the duties associated with EEO counseling either as
their total work assignment or in addition to the other duties which are
regularly assigned to them and which comprise their appointed
positions."
C. Conclusion
For the same reasons stated in Wright-Patterson Air Force Base, we
find that Union Proposal 1 also requiring management to select from a
list of Union nominees, is outside the duty to bargain because it
interferes with management's right to assign work pursuant to section
7106(a)(2)(B) of the Statute. /2/ The fact that the proposal concerns
only part time duties does not alter this conclusion.
IV. Union Proposal 2
The Union will be allowed to have one observer on the Position
Management Committee. The observer will be designated by the
President, the observer will be notified when the Position
Management Committee meets.
A. Positions of the Parties
The Agency states that its Position Management Committee has
responsibility for reviewing and recommending approval prior to
implementation of all changes in organization involving work design,
occupational distribution, grade distribution, staffing requirements and
cost. The Agency asserts that, as the Committee is an integral part of
its decision-making process, Union participation in that process would
inhibit full and open deliberations and, thus, interfere with
management's rights under section 7106 of the Statute. In support, the
Agency cites National Federation of Federal Employees, Local 1431 and
Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA
988 (1982).
The Union notes that the Committee is a process whereby positions are
allocated to bargaining unit employees and contends that the process by
which "management engages in its right (is) negotiable."
B. Analysis
As described by the Agency, the Position Management Committee in this
case has responsibilities nearly identical to the committee of the same
name on which the union sought representation in VA Medical Center, East
Orange, 9 FLRA 988 (1982). There it was determined that the committee
was an integral part of the process by which management decides and acts
pursuant to rights reserved to it by the Statute. We held that union
representation on the committee "would thereby impair the flexibility
which Congress intended management officials to have under the Statute."
We therefore concluded that the proposal "would directly interfere with
management's rights under section 7106 of the Statute . . . ." While we
note that the disputed proposal in this case adverts only to a Union
"observer" on the committee, the presence of a Union designee would
nonetheless "prevent management officials from engaging in free and open
deliberations among themselves." 9 FLRA at 1002. Thus, contrary to the
Union's view, the proposal is not merely a procedure to be followed by
the Agency in exercising its reserved rights, but rather would inhibit
management in reaching decisions and in acting with respect to those
rights.
C. Conclusion
Consistent with our findings in VA Medical Center, East Orange, we
conclude that Union Proposal 2 in the present case is outside the duty
to bargain.
V. Union Proposal 3
1. Bargaining Unit employees will have use of the swimming
pool when the pool is not being used for patient therapy. The
Union will provide a qualified life guard to oversee the
bargaining unit employees, when using the pool.
2. Bargaining Unit employees will have use of the gym on the
17th floor. The Recreation Equipment on the 17th floor will be
available for the employees to use. It is understood that the gym
and equipment will not be available for use by bargaining unit
employees if they are being used by patients.
A. Positions of the Parties
The Agency contends that Union Proposal 3 does not concern matters
principally related to conditions of employment. The proposal would
require management to hire personnel to supervise employee use of the
facilities. In addition, the prime beneficiaries of the facilities,
hospital patients, would be unable to use them during the period set
aside for employee use.
The Union asserts that the proposal relates to working conditions
because access to the facilities would allow employees to relax during
lunch and break periods and thereby enhance the efficiency and
effectiveness of their work performance. Under the proposal, the Union
would provide volunteers to supervise use of the facilities and would
assume responsibility for security of the equipment.
B. Analysis
In view of the Union's offer of self-supervision of employee use of
the recreation facilities involved, we find that the Agency has not
sustained its argument that the proposal would require it to hire
additional employees to oversee the unit employees' use of such
facilities. In addition, since the proposal expressly provides that
employees would have access to the recreation facilities only if such
facilities are not being used by patients, patients would not be denied
access to such facilities.
It is well established however, that the duty to bargain under the
Statute extends only to "conditions of employment," as defined in
section 7103(a)(14) of the Statute. Parties are obligated to negotiate
concerning personnel policies, practices, and matters affecting working
conditions. Consequently, proposals concerning employee activities,
unrelated to assigned work, conducted while such employees are in a
non-duty status, such as employee use of agency recreational facilities
during non-duty time, have been held to be not within the bargaining
obligation because they do not meet the section 7103(a)(14) definition.
For example, see National Association of Government Employees, Local
R5-168 and Department of the Army, Headquarters 5th Infantry Division
and Fort Polk, Louisiana, 19 FLRA No. 75 (1985). In this case the Union
indicates that its proposal would grant employees access to the listed
facilities during lunch and breaks or when the employees are otherwise
in a non-duty status. Therefore, based on our holding in Fort Polk,
Union Proposal 3 does not concern conditions of employment of bargaining
unit employees. See also United States Air Force, 2750th Air Base Wing
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 16 FLRA 335 (1984).
C. Conclusion
Union Proposal 3 does not concern matters directly related to
conditions of employment affecting bargaining unit employees.
Therefore, it is not within the Agency's duty to bargain.
VI. Union Proposal 4
No employee will be forced to work overtime if he/she feels it
will effect (sic) his efficiency, health or emotional stability.
A. Positions of the Parties
The Agency contends that Union Proposal 4 violates its rights under
the statute "to determine the numbers, types and kinds of employees
required to carry out its mission" and "to assign."
The Union asserts that its proposal does not violate management's
right to assign the workforce. Rather, the Union contends that the
proposal "deals with a process whereby management engages in its rights"
and further, that "(o)vertime is voluntary" under the parties'
negotiated agreement.
B. Analysis
The Agency provides no support whatever for its claim that Union
Proposal 4 concerns "numbers, types and kinds of employees." Thus, the
Agency's argument cannot be sustained.
This Proposal, however, would prevent the Agency from assigning
overtime work to employees who assert the grounds listed in the
proposal. In National Federation of Federal Employees, Council of
Consolidated Social Security Administration Locals and Social Security
Administration, 13 FLRA 422 (1983), we noted, in considering Union
Proposal 2, that the management right to assign work, pursuant to
section 7106(a)(2)(B) of the Statute, includes the right to determine
that certain work will be performed on overtime and that a proposal
limiting management's authority to assign overtime work is inconsistent
with the Statutory right to assign work. Thus, Union Proposal 4 is to
the same effect as the disputed proposal in American Federation of
Government Employees, AFL-CIO, Local 3631 and Environmental Protection
Agency, 11 FLRA 637 (1983). In that case the proposal sought to prevent
assigning employees to WANG terminals for more than three consecutive
months if the agency health and safety committee concluded that
assignment to such terminals in excess of three consecutive months
induced stress. Rejecting the union's argument that the proposal merely
constituted a procedure which concerned health and safety matters to be
followed in assigning work, we found that "the proposal would absolutely
prohibit management from assigning certain duties to employees beyond a
specified period of time if the circumstances described in the proposal
apply." Such a complete prohibition on the assignment of work "is
inconsistent with management's right under section 7106(a)(2)(B) of the
Statute to 'assign work' and is not within the duty to bargain."
This analysis is not altered by the Union's claim that under a
provision of the parties' agreement "(o)vertime is voluntary." Since
there is nothing in the record to indicate the existence of such a
provision, the Union's claim is totally unsupported.
C. Conclusion
Union Proposal 4 is not a "procedure," but rather is a substantive
infringement on the Agency's right to assign work. Therefore, based on
our findings in Social Security Administration and Environmental
Protection Agency, it is outside the duty to bargain.
VII. Union Proposal 5
The Medical Center will provide the use of vehicles to
representatives of the Union for official business (this does not
include internal Union business). Transportation will also be
provided to and from the subway along 23rd Street in the
non-daylight hours. If necessary Union representatives will be
given the opportunity to obtain Federal drivers license.
A. Positions of the Parties
It appears from the record that the Agency objects only to that part
of this proposal requiring it to furnish transportation to and from the
subway. In the Agency's view, that part of the proposal does not
concern a condition of employment.
The Union contends that the disputed part of the proposal is a
condition of employment. Citing the high incidence of crime committed
against unit employees, the Union states that the Agency-furnished
transportation "would provide a safer means of reaching the place of
employment."
B. Analysis
It is clear that the transportation contemplated would be provided to
employees to assist them in commuting between their homes and the work
site. Further, based on the reference in the proposal to "Federal
drivers license," such transportation would be provided in the form of a
Government motor vehicle.
Title 31 U.S.C. Section 1344 governs the use of Government-owned
passenger motor vehicles and provides that appropriations may be
expended for operation, maintenance and repair of passenger motor
vehicles that are used for "an official purpose." This section further
states, "An official purpose does not include transporting officers or
employees of the Government between their domiciles and places of
employment . . .," except in certain situations not relevant in this
case. In interpreting 31 U.S.C. Section 1344, the Comptroller General
has determined that, in the absence of other specific authorization, one
narrow exception to the general prohibition on use of Government
vehicles for commutation is authorized when the home-to-work
transportation of employees is incident to otherwise authorized use of
the vehicles involved. See 62 Comp. Gen. 438 (1983).
Thus, in American Federation of Government Employees, AFL-CIO, Local
2272 and Department of Justice, U.S. Marshals Service, District of
Columbia, 9 FLRA 1004 (1982), Union Proposal 10, which permitted an
employee already authorized to use a Government vehicle in traveling to
and from his home to arrange a carpool with other employees living in
the same general area, was found to be within the duty to bargain.
Specifically, we held that the proposal was consistent with the official
use only requirement "where transportation of employees in a Government
vehicle between their homes and place of employment is such that they
merely accompany another employee on an otherwise already authorized
trip for the transaction of official business, and the Agency determines
that the trip is in the Government's interest." See also American
Federation of Government Employees, AFL-CIO, Local 3525 and United
States Department of Justice, Board of Immigration Appeals, 10 FLRA 61
(1982) where a union proposal requiring an agency to provide shuttle bus
service between various work sites and permitting employees to ride the
buses as part of their travel to and from work was found to be within
the duty to bargain because it was also consistent with the statutory
requirements concerning the use of Government vehicles.
There is nothing in the record to indicate that the Government
vehicle required by Union Proposal 5 would be used for any official
purpose at the same time it is engaged in transporting employees to and
from the subway. Hence, it must be concluded that the vehicle would be
dedicated exclusively to assisting employees in commuting between home
and work; a purpose which is inconsistent with Federal law.
C. Conclusion
Union Proposal 5 violates the prohibition in 31 U.S.C. Section
1344(a) against the use of Government vehicles for transporting
employees between their domiciles and places of employment. Therefore,
pursuant to section 7117(a)(1) of the Statute, it is outside the duty to
bargain.
VIII. Union Proposal 6
The Medical Center will provide training to all bargaining unit
employees on the definition of reasonable accommodation for
handicapped employees. This training should include all the
aspects of how management can provide a reasonable accommodation
for handicapped employees.
A. Positions of the Parties
The Agency states that bargaining over Union Proposal 6 is barred by
the terms of the parties' master agreement. The Agency argues that the
proposal also violates its right to assign work under section
7106(a)(2)(B) of the Statute. The Agency further appears to contend
that the type of training proposed is inconsistent with the definition
of "training" contained in 5 U.S.C. Section 4101(4).
The Union asserts that the proposal is not inconsistent with the
master agreement, but rather "has to do with a process whereby
management engages in its EEO responsibilities."
B. Analysis
1. Duty to Bargain
When a union files a negotiability appeal under section 7105(a)(2)(E)
of the Statute, section 7117(c) entitles it to a decision on the
negotiability issues in dispute. To the extent there are factual issues
disputed by the parties in the circumstances of a case, such issues
should be resolved in other appropriate proceedings. 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 (1984). Hence, the
Agency argument that it is relieved of any duty to bargain on the
proposal by the master agreement is not relevant in the context of this
negotiability appeal.
2. Management Rights
Since both parties interpret this proposal as requiring formal
training sessions to be conducted during employees' duty hours, such
meaning will be adopted for the purpose of our analysis. It is well
established, under Authority precedent, that proposals requiring
management to provide formal training, or periodically to assign
employees to specific types of training programs, are outside the duty
to bargain. In National Federation of Federal Employees, Local 422 and
Department of Interior, Bureau of Indian Affairs, Colorado River Agency,
Parker, Arizona, 14 FLRA 48 (1984), we noted our consistent position
"that training assignments during duty hours are assignments of work,
covered by section 7106(a)(2)(B) . . . . As such, any proposal
addressing the substantive aspects of training is a direct interference
with management's right to assign work." Because Union Proposal 6, like
the proposals in Bureau of Indian Affairs, prescribes the content of
training and requires that such training be conducted during duty hours,
it is also not a procedure for implementing a training program, but is
likewise inconsistent with section 7106(a)(2)(B).
3. Violation of Law
The Agency's reliance on 5 U.S.C. Section 4101(4) is misplaced. The
definition contained in the referenced section does not cover the kind
of training proposed by the Union and does not render such training
illegal. That section of law concerns long-term professional and
technical training but does not expressly bar the type of training
proposed. Thus, the proposal is not inconsistent with 5 U.S.C. Section
4104(4).
C. Conclusion
Union Proposal 6 does not violate 5 U.S.C. Section 4101(4), but
directly interferes with the right to assign work under section
7106(a)(2)(B) of the Statute. Consequently it is outside the duty to
bargain.
IX. Union Proposal 7
During the third quarter of an employee's work tour, the
employee will be eligible for release without charge to leave of
any kind in case of emergency or illness.
A. Positions of the Parties
The Agency contends that the proposal violates laws governing the
purpose and uses of annual and sick leave and also is inconsistent with
the right to determine the personnel by which Agency operations are
conducted under section 7106(a)(2)(B) of the Statute.
The Union contends that the proposal does not violate management
rights because discretion to grant or deny an employee's request remains
with the supervisor.
B. Analysis
Because the proposal does not mandate the granting of leave upon
request, we do not find it to be inconsistent with management rights.
However, the question remains as to whether the proposal is consistent
with law and regulation. More specifically, the issue to be addressed
is whether the Agency has the authority to grant administrative leave
upon the request of individual employees who are ill or have a personal
emergency.
Title 5 U.S.C., chapter 63 governs the accumulation of both annual
and sick leave and further authorizes agencies "to grant administrative
leave excusing an employee from work when it is in the public interest."
5 U.S.C. Section 6326(c). 5 U.S.C. Section 6311 states: "(t)he Office
of Personnel Management may prescribe regulations necessary for the
administration of this subchapter." Thus, the coverage of the relevant
OPM regulations is coextensive with that of chapter 63, covering most,
but not all, employees in the executive and judicial branches of
Government. The OPM regulations are, therefore, "Government-wide"
within the meaning of section 7117(a)(1) of the Statute. National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748, 754 (1980). Federal Personnel Manual
(FPM), Chapter 630, subchapter 11 governs excused absences and
prescribes when absences may be granted to individuals without loss of
pay or charge to leave. Subchapter 11-5.b provides:
Brief absences from duty of less than an hour and tardiness may
be excused when the reasons are justifiable to the supervisor.
When not justifiable, the absence must be made up or charged to an
appropriate leave account; in addition the absence may become the
basis for disciplinary action.
Although what constitutes a "justifiable" reason for such a grant is
not specified, FPM Supplement 990-2, Book 610, Appendix A-2 provides
that when employees are dismissed because of an emergency situation, the
emergency "must be general, rather than personal in scope and impact."
In this connection, it is pertinent to note that FPM Chapter 630,
subchapter 3-4.a(2) states that one of the purposes of annual leave is
to provide time off for "emergency purposes." Similarly, with regard to
illness, FPM Chapter 630, subchapter 4-2.a states that one of the
purposes of sick leave "is for use when an employee is physically
incapacitated to do his job . . . ." Thus, annual and sick leave are
intended to cover the circumstances described in Union Proposal 7 and
the governing regulations do not contemplate personal emergencies or
illness as justifiable grounds for granting administrative leave in lieu
of either annual or sick leave.
Union Proposal 7 is distinguishable from the proposals before us in
International Federation of Professional and Technical Engineers, Local
174, AFL-CIO and Long Beach Naval Shipyard, Long Beach, California, 7
FLRA 362 (1981). In that case, the proposals concerned the agency's
practice of curtailing its operations during the Christmas/New Year
holiday period. The proposal specifically sought to change the
requirement that employees not needed during that period (4-5 workdays)
take annual leave. Noting that pertinent regulations gave management
discretion to grant administrative leave when it decided to curtail
operations, we found the proposals to be within the duty to bargain.
Union Proposal 7 in this case does not concern absence from duty caused
by a managerial decision to close a facility temporarily. Rather, it
deals with absences sought by individual employees based on their
personal needs. Consequently, our decision in Long Beach Naval Shipyard
has no bearing on Union Proposal 7.
C. Conclusion
Union Proposal 7 is outside the duty to bargain under section
7117(a)(1) of the Statute because it is inconsistent with
Government-wide regulations.
X. Union Proposal 8
If employee tours are scheduled for more than 5 consecutive
days, the Medical Center will make every effort to insure that the
employees will receive three (3) consecutive days off.
A. Positions of the Parties
The Agency, states that it is a medical facility providing around the
clock care to veterans and asserts that the proposal is integrally
related to, and consequently determinative of, the numbers, types and
grades of employees assigned to a work project or tour of duty. Hence,
the Agency claims the proposal is negotiable only at its election in
accordance with section 7106(b)(1) of the Statute. In support the
Agency cites American Federaion of Government Employees, Local 3669,
AFL-CIO and Veterans Administration Medical Center, Minneapolis,
Minnesota, 2 FLRA 641 (1980).
The Union contends that its proposal is a procedure to be observed by
management in exercising its rights under section 7106(b)(1).
B. Analysis
When a proposal sought to be bargained does not "explicitly" relate
to the numbers, types and grades of employees assigned to a tour of duty
or organizational subdivision, it is incumbent upon an agency to support
an allegation that section 7106(b)(1) applies to that proposal. In
National Treasury Employees Union, Chapter 66 and Internal Revenue
Service, Kansas City Service Center, 1 FLRA 927 (1979) the disputed
proposal did not, on its face, relate to "numbers, types and grades,"
nor was the agency able to support its assertion that a direct or
integral relationship existed. The proposal was therefore found to be
within the duty to bargain.
As with the proposal in Kansas City Service Center, a reading of
Union Proposal 8 does not reveal any direct or integral relationship to
numbers, types and grades of employees assigned to a tour of duty or
organizational subdivision. The Agency appears to argue that Union
Proposal 8 relates to these section 7106(b)(1) matters in the same
manner as the disputed proposal in VA Medical Center, Minneapolis. In
that case, the agency clearly established that the proposal applied to
nurses with highly specialized medical skills and knowledges and that
the proposal's requirement that the nurses be guaranteed every other
weekend off would necessitate the hiring of additional nurses with the
requisite skills to provide adequate around-the-clock medical care to
the hospital's patients. The Agency having established the necessary
connection, we found the proposal to be within the scope of section
7106(b)(1) and to be not within the duty to bargain.
While it is noted that the activity in this case is also a hospital,
the Agency nonetheless fails to establish the necessary connection
between Union Proposal 8 and the numbers, types and grades of employees.
The Agency merely asserts that such a nexus exists without establishing
that the employees covered by the proposal possess highly specialized
skills such as those in VA Medical Center, Minneapolis that would not be
available to the hospital's patients under the terms of the proposal.
The record in this case is in fact silent concerning the types of
occupations and skills within the bargaining unit. The Agency has,
therefore, failed to meet its burden of demonstrating a "direct or
integral relationship" between the proposal and 7106(b)(1) of the
Statute as required by the Kansas City Service Center decision.
C. Conclusion
The Agency has not established, nor is it otherwise apparent, that
Union Proposal 8 imposes any limitation on its ability to determine the
numbers, types or grades of employees assigned to a work project or tour
of duty. Consequently, the proposal is within the duty to bargain.
XI. Union Proposal 9
The employer and the Union jointly recognize alcoholism as a
treatable illness and drug abuse as a treatable health problem.
Therefore, the employer will not institute disciplinary action
against an alcoholic or drug abuser until he/she is given every
opportunity to overcome his/her alcoholism or drug abuse.
Membership of the VA Medical Center Committee established to
implement this program will include five Union representatives.
The Union representatives will be designated as Substance Abuse
Counselors for the Union. They will be given official time to
conduct substance abuse program and to counsel bargaining unit
employees. Any employee participation in the program should
remain confidential. Medical records, if any, will be protected.
No medical records will be released without the employee's
consent. Substance Abuse Coordinators should be given beepers in
order to cope successfully with emergencies due to the abundance
to (sic) substance abuse problems.
A. Positions of the Parties
The Agency contends that it is not obligated to bargain over the
proposal because of its conflict with provisions of the parties' master
agreement. The Agency also argues the proposal is inconsistent with
management's right to discipline employees pursuant to section
7106(a)(2)(A) of the Statute and cites in support National Treasury
Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Union
Proposal 1). The Agency further asserts that the portion of the
proposal permitting the Union to designate five Substance Abuse
Counselors violates management's right "to assign" and to determine the
personnel by which Agency operations will be conducted pursuant to
section 7106(a)(2)(A) and (B) of the Statute.
The Union contends that the Counselors it would designate would
represent the Union. According to the Union, substance abuse is a
condition of employment. In the Union's view Union representatives are
entitled to official time to represent and counsel employees on
alcoholism and substance abuse. The designated Counselors would be more
accessible to both managers and employees if provided with beepers by
the Agency.
B. Analysis
The Authority will address only the negotiability issues involved in
a case. Wurtsmith Air Force Base, 14 FLRA 302 (1984). Thus, the
Agency's argument that it has no duty to bargain in the circumstances of
this case is not relevant in the context of this negotiability appeal.
We previously held in Internal Revenue Service, 1 FLRA 522 (1981)
that a proposal, prohibiting the agency from disciplining an employee as
long as the employee was an active participant in a recognized
alcohol/drug abuse program and requiring a stay of discipline if the
employee entered such a program, to be inconsistent with management's
right to discipline under section 7106(a)(2)(A). Further, in American
Federation of Government Employees, Local 1812, AFL-CIO and United
States Information Agency, 16 FLRA 308 (1984), we held to be
nonnegotiable a provision in that case preventing management from
disciplining for substandard performance an employee experiencing
personal problems if the employee was participating in a formal
counseling program and progressing toward an acceptable performance
level. Noting that pursuant to the provision "an employee would
completely avoid disciplinary action for his or her conduct or
unacceptable work performance by remaining a participant in the program
and making progress, however slight," we found that the provision
directly affected management's right to discipline employees under
section 7106(a)(2)(A) of the Statute. Similarly, as this proposal
effectively would enable employees to avoid discipline indefinitely by
continuing in any program, the object of which is to treat alcoholism or
drug abuse, it would for the reasons more fully stated in Internal
Revenue Service and USIA, 16 FLRA 308 (1984) also prevent the Agency
from exercising its right to discipline.
In addition, Union Proposal 9 permits the Union to select five
members of the committee concerned with alcoholism and drug abuse,
prescribes the five members' titles and grants them official time to
carry out their functions. As with Equal Employment Opportunity
Counselors, counselors in Alcohol and Drug Abuse Programs perform work
assigned to them by their employer as part of a program established by
that employer. /3/ The designation of specific employees to perform
alcohol and drug counseling is, in reality, a decision to assign
specified duties. Allowing a union to make such designations is outside
the duty to bargain. Air Force Logistics Command, 2 FLRA 604 (1980).
C. Conclusion
The disputed portions of Union Proposal 9 interfere with management's
rights to discipline employees pursuant to section 7106(a)(2)(A) of the
Statute and to assign work under section 7106(a)(2)(B). Consequently,
those segments are outside the duty to bargain.
XII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review, as it relates
to Union Proposals 1 through 7 and 9, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 8.
/4/
Issued, Washington, D.C., July 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union's positions with respect to all nine proposals are
drawn from its petition for review because no reply brief was filed in
this case.
(2) In view of our conclusion concerning Union Proposal 1 and the
long-standing precedent embodied in the cited case, we find it
unnecessary to address the Agency's further contention that its right to
determine the personnel by which its operations are to be conducted is
also violated.
(3) Agencies are required to establish such programs by the
following: 42 U.S.C. Section 290dd-1 and ee-1 and 5 CFR Section 792.105
(1986).
(4) In finding Union Proposal 8 to be within the duty to bargain, the
Authority makes no judgment as to its merits.