---

43 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-82

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVY EXCHANGE, NAVAL AIR STATION

JACKSONVILLE, FLORIDA

(Agency)

0-NG-1893

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 1, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on 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 six provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.⁽¹⁾

Provision 1 requires that when the Agency suspects sick leave abuse, the Agency must notify employees orally and in writing that all future sick leave requests must be supported by a doctor's certificate. Provision 1 is nonnegotiable because it directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Provision 2, Section 5, which provides that the employer should refrain from calling employees' physicians to verify the employees' illnesses, directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) but is an appropriate arrangement within the meaning of section 7106(b)(3). Provision 2, Section 11, which provides that the employer will not call employees to verify the employees' illnesses, directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3).

Provision 3, which provides that it is the policy of the employer, where possible, to promote from "within," is nonnegotiable because it directly interferes with management's right to select an individual to fill a vacant position from any appropriate source under section 7106(a)(2)(C) of the Statute.

Provision 4 provides that details will not normally exceed 3 months. Provision 4 is a negotiable appropriate arrangement.

Provision 5 provides that the employer is prohibited from bringing more than one charge against an employee for a single instance of misconduct. Provision 5 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Provision 6 allows intermittent and temporary nonappropriated fund employees to contest terminations for cause through the negotiated grievance procedure. Provision 6 is negotiable.

II. Provision 1

Article 12, Sick Leave, Section 5 ⁽²⁾

Doctor Certificates will be required in individual cases if the Employer has reason to believe the employee is abusing sick leave privileges. In such cases the employee shall be warned orally that, because of a questionable sick leave record, a doctor's certificate may be required for each subsequent absence due to sick leave. If improvement is not noted, he/she will be advised in writing that all future requests for sick leave must be supported by a doctor's certificate. The requirement for a doctor's certificate will be reviewed semiannually and will be rescinded in writing at such time as sufficient improvement in the employee's sick leave record warrants.

A. Positions of the Parties

1. The Agency

The Agency argues that "[b]y prohibiting the [A]gency from placing an employee on restriction for leave abuse," Provision 1 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Agency's Statement of Position at 1-2, citing Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521 (1990) (Provision 2) (VAMC, Milwaukee).

2. The Union

The Union argues that Provision 1 "sets forth a procedure for placing an employee on notice for requiring future requests for sick leave to be supported by a doctor's certificate." Union's Response at 1. The Union disputes the Agency's reliance on VAMC, Milwaukee and maintains that the provision does not directly interfere with management's right to discipline.

B. Analysis and Conclusions

We conclude that Provision 1 directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

In situations where the Agency has reason to believe that an employee is abusing sick leave, Provision 1 requires the Agency to first orally warn the employee that a doctor's certificate may be required for each subsequent absence due to sick leave. If no improvement is noted, the provision requires the Agency to then advise the employee in writing that all future requests for sick leave must be supported by a doctor's certificate. The effect of Provision 1 is to require the Agency to provide an oral and a written warning to an employee suspected of sick leave abuse before the Agency may put the employee on sick leave restriction and require the employee to provide a supporting medical certificate for sick leave requests.

Because the use of leave restriction is, in practical terms, a precondition of an agency's decision to discipline employees for suspected misuse or abuse of sick leave, provisions or proposals that preclude an agency from imposing sick leave restriction directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. American Federation of Government Employees, Local 1156 and U.S. Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania, 42 FLRA No. 79 (1991), slip op. at 5 (Navy Ships Parts Control Center) (provision requiring management to take several steps before placing an employee suspected of abusing sick leave on leave restriction directly interferes with management's right to discipline). See also National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA No. 78 (1991), slip op. at 21-22 (Army Information Systems Command) (proposal which would prohibit management from using approved leave to place an employee in a restricted leave use category directly interferes with management's right to discipline).

For the initial incidents giving rise to a suspicion of sick leave abuse, Provision 1 prevents the Agency from taking any action other than an oral and a written warning and substitutes these warnings for whatever form of sick leave restriction the Agency may want to impose. Because the provision requires the Agency to give an oral and a written warning instead of imposing sick leave restriction, we find that, as in Navy Ships Parts Control Center, the provision would effectively preclude management from responding to an employee's improper use of sick leave on certain occasions through discipline. Accordingly, we find that the provision directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

We note that our decision in Army Information Systems Command referred to Office of Personnel Management (OPM) guidance for determining the relationship between leave restriction and discipline, whereas the employees in this case work for a nonappropriated fund (NAF) instrumentality and, therefore, are not subject to those OPM regulations. However, this is not a substantive distinction because the practical effect of Provision 1 is that it precludes the Agency from imposing leave restriction as a prelude to discipline. Accordingly, the fact that employees in this case are NAF employees does not change our conclusion that Provision 1 directly interferes with the Agency's right to discipline.

The Union does not argue that Provision 1 is intended to be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, and the record is insufficient for the Authority to make a determination on that matter. See International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1530 (1991) (Proposal 16) (Bureau of Reclamation). Accordingly, we find that Provision 1 is nonnegotiable.

III. Provision 2

Article 12, Sick Leave, Section 5

It is agreed that official written notice of suspected abuse of sick leave will not be issued when the absences have been supported by acceptable doctor's certificates. The Employer should refrain from calling the physician/assistant regarding the reason for absence.

Article 12, Sick Leave, Section 11

After the Employer has been notified of an employee's illness, the Employer or supervisor or designee will not call the employee's residence for verification of illness.

(Only the underlined portions are in dispute.)

A. Positions of the Parties

1. The Agency

The Agency argues that the provision directly interferes with management's right to discipline employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it would prevent the Agency from obtaining "additional substantiation of an employee's incapacitation from duty[.]" Agency's Statement of Position at 2. The Agency also argues that the provision violates management's right to assign work because it "prevent[s] particular management officials from performing certain functions[.]" Id. at 3.

2. The Union

The Union asserts that the provision is intended "to protect employees and their physicians from undue harassment when the employee is absent due to illness" and "to protect employee privacy." Union's Petition for Review at 2. The Union argues that Section 5 of Article 12 "does not prevent the employer from obtaining additional substantiation of an employee's incapacitation" because the employer could obtain additional information "thr[ough] personal or written contact with the physician/assistant[.]" Union's Response at 2.

As to Section 11, the Union contends that it does not impose substantive limits on management's ability to conduct disciplinary investigations because "[t]he employer has means available such as medical certification to insure proper use of sick leave." Id. According to the Union, "harassing calling of sick employee's [sic] at home . . . is not a proper means" of conducting disciplinary investigations. Id.

B. Analysis and Conclusions

We find that Sections 5 and 11 of Provision 2 directly interfere with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. We also find that Section 5 of Provision 2 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, and that Section 11 is not an appropriate arrangement.

An employee's abuse of sick leave is subject to disciplinary action and can result in the removal of the employee. American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 30 FLRA 837, 843 (1987) (Bureau of Prisons) (Proposal 2). Management's right to discipline employees under section 7106(a)(2)(A) of the Statute includes the right to conduct investigations to determine whether discipline is justified. American Federation of Government Employees, Local 1164 and U.S. Department of Health and Human Services, Social Security Administration, Lynn, Massachusetts, 35 FLRA 1193, 1199 (1990). Further, provisions or proposals that limit an agency's use of an appropriate investigative technique to uncover conduct subject to disciplinary action directly interfere with management's right to discipline employees. Id.

Provision 2 prohibits the Agency from calling employees while they are on sick leave. Provision 2 also provides that the Agency "should refrain" from calling employees' physicians. In providing that management "should refrain" from calling employees' physicians, the provision imposes a general obligation on the Agency not to call and thereby establishes a substantive criterion governing the Agency's decision to call employees' physicians to determine whether sick leave is being abused.

We find that Provision 2 would limit the Agency's use of appropriate investigative techniques to uncover conduct which would subject an employee to disciplinary action. Provision 2 imposes substantive limitations on the Agency's ability to conduct disciplinary investigations and, therefore, directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See Bureau of Prisons, 30 FLRA at 843-44 (a proposal providing, in part, that the employer agreed to not routinely telephone employees on sick leave to check up on the employees' use of leave was found to directly interfere with management's right to discipline employees).

We note the Union's statement that the provision is intended "to protect employees and their physicians from undue harassment when the employee is absent due to illness" and "to protect employee privacy." Union's Petition for Review at 2. We view this statement as an assertion that the provision constitutes an appropriate arrangement. In order to determine whether a provision or proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

In determining whether a provision or proposal is an arrangement for employees adversely affected by the exercise of management's rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Id. at 31.

The Authority has previously held that while a proposal limiting the agency from telephoning employees who are absent on sick leave may constitute an arrangement, it was not appropriate because it excessively interfered with management's right to discipline employees. See Bureau of Prisons, 30 FLRA at 844.

The Union has offered nothing to support a conclusion that the portion of Provision 2 precluding the Agency from telephoning the residences of employees on sick leave warrants a different disposition than that reached in Bureau of Prisons. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Association of Government Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 534 (1991); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), affirming 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 (1981). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990) (Naval Underwater Systems Center). Accordingly, we find that the portion of Provision 2 precluding the Agency from telephoning the residences of employees on sick leave does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute and conclude, therefore, that Section 11 of Provision 2 is nonnegotiable.

In view of our conclusion that Section 11 of Provision 2 is nonnegotiable, it is unnecessary to address the Agency's contention that Section 11 directly interferes with management's right to assign work.

As we noted previously, the Union argues generally that Provision 2 is intended to "protect employee privacy." Union's Petition for Review at 2. With respect to Section 5 of Provision 2, which states that the Agency "should refrain" from calling physicians' offices, the Union argues that Section 5 "was intended to prevent an employee's physician from becoming angry with the employee (patient) because of multiple harassing calls received from employer representatives (supervisors)." Union's Response at 2. Section 5 of Provision 2 is intended to mitigate the adverse effects on employees when the employer telephones the employees' physicians to verify employees' illnesses and thereby intrudes upon the doctor-patient relationship. Accordingly, we find that Section 5 of Provision 2 is an arrangement.

We turn, then, to the question of whether the provision constitutes an appropriate arrangement or whether it excessively interferes with management's right to assign work. In order to determine whether the disputed language excessively interferes with the management right, we must determine whether the burden placed on the management right is disproportionate to the benefits to employees conferred by the proposal. See Kansas Army National Guard, 21 FLRA at 33.

Section 5 of the provision requires that management "should refrain" from telephoning the offices of employees' physicians regarding employees' illnesses or reasons for absences. As interpreted by the Union, Section 5 of Provision 2 "does not prevent the employer from obtaining additional substantiation of an employee's incapacitation" because the employer could obtain additional information "thr[ough] personal or written contact with the physician/assistant[.]" Union's Response at 2. Therefore, Section 5 does not preclude the Agency from requesting information from a physician about an employee's illness, but states only that the Agency "should refrain" from obtaining such information by telephone. Because Section 5 preserves the Agency's ability to acquire information about an employee's illness from the employee's physician, we find that the burden placed on management by merely requiring management to refrain from obtaining the information by telephone is minimal compared to the benefit accorded employees. Accordingly, we find that Section 5 of Provision 2 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

We note the Agency's argument that the provision violates management's right to assign work because it "prevent[s] particular management officials from performing certain functions[.]" Agency's Statement of Position at 3, citing American Federation of Government Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA 273 (1987) (Department of Labor) (Proposal 2). We reject this argument, however, because, unlike Department of Labor, Section 5 of the provision provides only that the employer should refrain from taking certain action and not that supervisors or other particular management officials should refrain from taking action.

IV. Provision 3

Article 31, Section 5

It is the policy of the Employer, where possible, to promote employees from within, based on the above criteria.

A. Positions of the Parties

1. The Agency

The Agency argues that Provision 3 directly interferes with management's right to select an individual to fill a vacant position from any appropriate source under section 7106(a)(2)(C) of the Statute. In this regard, the Agency contends that the provision improperly requires "management to promote from within if there were one qualified employee" because, in such a situation, "it would be 'possible' to promote from within." Agency's Statement of Position at 4. The Agency notes that including the phrase "where possible" does not change the nonnegotiability of the provision.

Further, the Agency contends that, despite the Union's statement to the contrary, the provision places a substantive limitation on the Agency's right to select employees from any appropriate source. The Agency argues that Provision 3 is distinguishable from a similar proposal found to be negotiable in American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128 (1990) (Proposal 2) (Naval Weapons Station) because Provision 3 "would prevent the [A]gency from simultaneously processing or considering employees from other appropriate sources." Id. at 7.

2. The Union

The Union argues that the provision is intended to apply the criteria set forth in the parties' agreement to the promotion of employees and states that "[e]mphasis is placed on promotion of employees, where possible." Union's Petition for Review at 2-3. However, in its Response to the Agency's Statement of Position, the Union states that the words "where possible, to promote employees from within, based on the above criteria" are intended to "emphasiz[e] the criteria for promotion [set forth in the parties' agreement] and not the preference of employee's [sic] over other sources of recruitment." Id.

The Union further argues that the provision does not directly interfere with management's right to select from any appropriate source and that "[t]he provision does not prohibit the activity from expanding the area of consideration." Union's Response at 3.

B. Analysis and Conclusions

We find that Provision 3 directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute.

Provisions or proposals that require management to fill vacancies from a single source directly interfere with management's right to select from any appropriate source. See International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 357 (1988) (Provisions 3 and 4) (U.S. Army Engineer District) (provisions requiring the agency to fill vacancies from internal candidates in classifications where a surplus of employees existed were found to conflict with management's right in filling vacancies to select from any appropriate source).

Provision 3 states that it is management's policy "where possible" to promote employees from "within." In the absence of a statement by the Union to the contrary, we will interpret Provision 3 to apply to the promotion of employees from within the bargaining unit.

In its statement of intent with respect to Provision 3, the Union states that "[e]mphasis is placed on promotion of employees, where possible." Union's Petition for Review at 2-3. This statement is consistent with the plain wording of the provision. Accordingly, we will interpret the provision based on the Union's statement in its petition for review and not on the Union's contradictory claim in its response that the provision is not intended to emphasize the preference of employees over other sources of recruitment.

Provision 3 limits management in the selection of a candidate for promotion from outside of the bargaining unit to situations where, among other things, it is not "possible" to promote from within the unit. As did the provisions in U.S. Army Engineer District, Provision 3 in this case limits the sources from which management will make selections for promotion in the circumstances described in the provision, that is, "where [it is] possible" to select from within the unit. Because the provision limits management in the selection of a candidate for promotion from outside the unit to situations where it is not "possible" to promote from within, and thereby dictates, in some situations, the source for selection, the provision directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. Compare Naval Weapons Station, 35 FLRA at 1131-34 (Proposal 2) (proposal requiring agency to "make every effort" to promote bargaining unit employees did not directly interfere with management's right under section 7106(a) because the proposal itself expressly limited the meaning of the phrase "every effort" to those efforts consistent with statutes, Executive Orders, or other superior authority).

We note the Union's claim that "[t]he provision does not prohibit the [Agency] from expanding the area of consideration." Union's Response at 3. The Union's claim that the provision does not prohibit the Agency from expanding the area of consideration ignores the fact that, as worded, the provision governs the decision to promote, not the decision as to whom to consider for promotion. As the provision limits the Agency in selecting candidates, it is irrelevant that the provision does not explicitly prohibit the Agency from expanding the area of consideration.

The Union does not argue that Provision 3 is intended to be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See Bureau of Reclamation. Accordingly, we find that Provision 3 is nonnegotiable.

V. Provision 4

Article 32, Details and Temporary Promotions, Section 2

Selections of employees for detail assignments will be made on a fair and impartial basis. The selecting official shall be responsible for informing the employee of the detail assignment, reasons for the assignment, duties to be performed, estimated duration, and for establishing controls to ensure that details are recorded and timely terminated. No detail should be made to avoid the filling of an otherwise necessary job on a permanent basis. The detail procedures should be used only for temporary need to the Employer and will not normally exceed a maximum of three (3) months to that position.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

1. The Agency

The Agency argues that Provision 4 directly interferes with management's right to assign employees under section 7106(a)(2)(A) by "restrict[ing] the duration of a detail, under normal circumstances, to three months." Agency's Statement of Position at 7. According to the Agency, "[i]nherent in the right of management to assign employees is the right to decide when such an assignment should begin and end . . . so that the work involved will be accomplished." Id. The Agency notes that, under Authority precedent, the use of the word "normally" does not make the provision negotiable because "the use of that word 'normally' establishes a standard and would obligate management to justify any deviation from the established standard." Id. at 8, citing National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 429 (1988) (Proposal 22, Section 9), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. order Sept. 27, 1988).

2. The Union

The Union argues that the intent of the provision is to "emphasize the temporary nature of a detail not to restrict the duration of a detail." Union's Response at 3-4. According to the Union, the provision "does not limit details to three (3) months, but sets three (3) months as normally the maximum." Id. at 3. The Union claims that reading the provision in the context of the other portions of the Article "clarifies its purpose of assuring fairness and adherence to Merit System Principles[.]" Id. at 4.

B. Analysis and Conclusions

We find that Provision 4 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. We further find that Provision 4 constitutes an appropriate arrangement within the meaning of section 7106(b)(3).

Provisions or proposals which limit the length of assignments, including details, directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 732 (1988) (Proposal 10); 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, 512 (1987) (Provision 5, Sections 2, 3, 4, and 6) (Fort Bragg Dependent Schools).

Provision 4 states that details will not "normally" exceed 3 months. Rather than preserving management's right to assign employees, the term "normally" restricts the exercise of that right by establishing a criterion limiting the range of alternatives from which management can choose when assigning employees to details. Therefore, the term "normally" constitutes a substantive limitation on the Agency's right to assign employees because it establishes a substantive standard governing management's decision to assign employees to details. See National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986), affirming 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); and National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 671 (1991) (Provision 4).

Accordingly, we find that Provision 4 directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute. See Fort Bragg Dependent Schools (Provision 5, Sections 2, 3, 4, and 6) (a provision providing that the employer could detail employees to higher-graded, lower-graded, or unestablished positions for specified periods of time was found to directly interfere with management's right to assign employees).

We note the Union's claim that the provision is intended to "assur[e] fairness and adherence to Merit System Principles[.]" Union's Response at 4. We interpret the Union's claim as an argument that the provision constitutes an appropriate arrangement for employees adversely affected by the exercise of management's right to assign employees. Therefore, we will consider whether the provision is negotiable under section 7106(b)(3) of the Statute.

As we noted previously, in determining whether a provision or proposal is an arrangement for employees adversely affected by the exercise of management's rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Kansas Army National Guard, 21 FLRA at 31.

We find that Provision 4 is intended to be an arrangement for employees who are adversely affected by management's decision to assign employees. As noted by the Union, the provision is intended to "assur[e] fairness" and is intended to be read in context with other portions of Article 32, Section 2 whose purpose is to ensure that "the detail procedure shall not become a device to afford certain individuals an undue opportunity to gain qualifying experience and [that] no detail . . . be made to avoid the fil[l]ing of an otherwise necessary job on a permanent basis[.]" Union's Response at 4. As the provision is intended to mitigate the adverse effects on employees when details are used unfairly, we find that it is distinguishable from Fort Bragg Dependent Schools (Provision 5, Sections 2, 3, 4, and 6), where the Authority found that a provision was not an arrangement because the length of a detail was not shown to adversely affect employees.

We turn, then, to the question of whether Provision 4 constitutes an appropriate arrangement or whether it excessively interferes with management's right to assign work. As noted by the Union, Provision 4 does not completely preclude management from assigning employees to a detail for longer than 3 months, but provides that "normally," management may not assign employees to a detail for longer than 3 months. The Union defines "normally" as "usually" or "as a rule." Union's Response at 3.

The Union states that the 3-month limit established by the provision is intended to ensure "fairness" by limiting management's ability to use details to provide selected employees with the advantage of qualifying experience. The provision ensures that benefit by "usually" barring details longer than 3 months.

The provision benefits employees in those circumstances where the work of a detail would extend beyond 3 months by ensuring that, in normal circumstances, another qualified employee would be assigned to the detail and would thereby gain the experience of performing that work. Further, the provision does not preclude the Agency in all situations from extending details beyond 3 months, but permits the Agency to extend details in unusual circumstances. We find that the benefit to employees outweighs the burden placed on management's ability to extend details beyond 3 months. Accordingly, we conclude that Provision 4 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

VI. Provision 5

Article 33, Discipline/Adverse Actions, Section 8

The preferment of more than one charge for a single instance of misconduct is prohibited, except when the instance involves two (2) or more unrelated offenses.

A. Positions of the Parties

1. The Agency

The Agency contends that Provision 5 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute because the provision "would preclude management from preferring more than a single charge in a given instance of employee misconduct." Agency's Statement of Position at 9. The Agency maintains that the provision would deprive management of the "full scope of its authority to discipline by the requirement to seek discipline for only a single infraction despite the presence of related infractions for which discipline could be imposed." Id. at 10. For example, the Agency contends that the provision "would prevent an agency from charging an employee both with: (1) on-duty sale of cocaine; and (2) on-duty use of cocaine, since the [U]nion could plausibly contend that these are related offenses." Id. at 9.

2. The Union

The Union argues that the "intent of the provision is to prevent an employee from being charged with several offenses/violations for a single instance of misconduct." Union's Petition for Review at 3. The Union notes the Agency's cocaine example, but contends that the example is "ridiculous" because "sale and on-duty use of cocaine are clearly unrelated offenses." Union's Response at 4. The Union contends that in a situation where an employee sold cocaine once, the provision "would prevent the Agency from charging the employee" with sale of cocaine in violation of: (1) Agency regulation; (2) state law; and (3) federal law, for that single instance of misconduct. Id. According to the Union, a "single charge for a single instance of misconduct is appropriate and maintains management's right to discipline." Id.

B. Analysis and Conclusions

Provisions or proposals that prevent management from bringing a disciplinary action directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 206 (1990), petition for review filed as to other matters sub nom. United States Department of the Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990); and American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 19-20 (1987) (Provision 12) (U.S. Department of Justice). Further, provisions or proposals that restrict management's discretion to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline employees. American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1214 (1990) (Proposal 2); and National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966, 969-70 (1987).

Provision 5 prevents the Agency from bringing more than one charge against an employee for one instance of misconduct. By allowing the Agency to bring only one charge against an employee in the described circumstances, the provision prevents the Agency from taking disciplinary action in situations where it deems more than one charge is necessary and restricts the Agency's ability to impose or seek the imposition of a specific penalty. Accordingly, we find that Provision 5 directly interferes with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. See U.S. Department of Justice (a provision prohibiting management from instituting a disciplinary action that encompassed a charge that had previously been withdrawn was inconsistent with management's right to discipline employees).

Provision 5 is distinguishable from an identically worded provision which we recently found negotiable in American Federation of Government Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material Transportation Office, Norfolk, Virginia, 42 FLRA No. 68 (1991) (Provision 6) (Navy Material Transportation Office). The union in Navy Material Transportation Office stated that under the provision, "if an alleged act constitutes violation of more than one applicable stricture on the employee's conduct, then the provision permits the employer to cite such violations as charges in a disciplinary action." Navy Material Transportation Office, slip op. at 24. Based on the union's statement of intent, the Authority found that the provision at issue in Navy Material Transportation Office did not directly interfere with management's right to discipline employees because, consistent with Southers v. Veterans Administration, 813 F.2d 1223 (Fed. Cir. 1987), the provision only prevented management from bringing more than one charge of the same violation against the employee based on the same conduct.

Unlike Navy Material Transportation Office, the Union in this case specifically states that Provision 5 is intended to "prevent the Agency from charging the employee" for a single instance of misconduct with a violation of: (1) Agency regulation; (2) state law; and (3) Federal law. Union's Response at 4. The Union does not argue or assert that the provision is intended, even in part, to prevent management from bringing more than one charge of the same violation against the employee based on the same conduct. Therefore, if an employee's alleged act of misconduct constitutes a "violation of more than one applicable stricture on the employee's conduct[,]" the Agency would not be permitted to "cite such violations as charges in a disciplinary action." Navy Material Transportation Office, slip op. at 24. We find that Provision 5 prohibits the Agency from bringing more than one charge of any violation based on the same conduct. Therefore, Provision 5 prohibits the Agency from charging an employee for conduct that violated more than one law, rule, or regulation. We find that the prohibition in Provision 5 is different from the intended effect of the provision in Navy Material Transportation Office. Unlike the provision in Navy Material Transportation Office, Provision 5 in this case does not merely reflect existing legal restrictions, but prevents management from bringing appropriate disciplinary action against an employee.

Accordingly, we conclude that Provision 5 directly interferes with the Agency's right to discipline employees. See American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 42 FLRA 567, 577 n.6 (1991) (where the Authority's determination on a proposal identical to a proposal in another case was different because the union's statement of intent made it clear that the proposal was intended to be implemented in a different manner).

We note the Union's argument that the "intent of the provision is to prevent an employee from being charged with several offenses/violations for a single instance of misconduct." Union's Petition for Review at 3. Applying the principles set forth in Kansas Army National Guard, we find that Provision 5 is an arrangement for employees adversely affected by management's right to discipline employees because employees are adversely affected when they are subject to multiple disciplinary charges for a single offense.

We turn, then, to the question of whether Provision 5 constitutes an appropriate arrangement or whether it excessively interferes with management's right to discipline employees. In order to determine whether the disputed language excessively interferes with the management right, we must determine whether the burden placed on the management right is disproportionate to the benefits to employees conferred by the proposal. See Kansas Army National Guard, 21 FLRA at 33.

Provision 5 benefits employees by preventing management from instituting multiple disciplinary charges against them for a single instance of misconduct. However, this benefit is outweighed by a substantial infringement on management's right. As the burden placed on the management right is disproportionate to the benefit to employees, we conclude that Provision 5 excessively interferes with management's right to discipline employees and is not an appropriate arrangement within the meaning of section 7106(b)(3). See National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1520 (1987) (Provision 16, section (d)), petition for review denied in part and enforced in part as to other matters sub nom. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (1989).

Accordingly, Provision 5 is nonnegotiable.

VII. Provision 6

Article 34, Grievance Procedure, Section 3.j

The following matters are specifically excluded from consideration under the Negotiated Grievance Procedure:

j. Termination of Temporary and Intermittent Employees, except for cause.

A. Positions of the Parties

1. The Agency

The Agency contends that providing temporary nonappropriated fund employees with access to grievance and arbitration procedures directly interferes with management's right to layoff and remove employees under section 7106(a)(2)(A) of the Statute. The Agency also contends that the provision is contrary to regulations that "allow the termination of temporary employees at any time without providing any justification for the action." Agency's Statement of Position at 12. Further, the Agency argues that the provision improperly "provide[s] temporary employees an avenue of review not available to probationary employees." Id., citing Service Employees' International Union, Local 556, AFL-CIO and Department of the Navy, Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA 801, 803-05 (1987) (Marine Corps Exchange).

2. The Union

The Union contends that the provision does not interfere with management's rights but "provides due process for temporary and intermittent employees that are terminated for cause." Union's Response at 5. Citing Marine Corps Exchange, 26 FLRA at 806-07, and National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 788 (1985) (Kansas City District), the Union argues that the Authority has previously found provisions incorporating terminations of temporary and intermittent employees within the scope of the grievance procedure to be negotiable.

B. Analysis and Conclusions

For the following reasons, we find that Provision 6 is negotiable.

The employees in the bargaining unit work for a nonappropriated fund instrumentality. Unlike employees in the competitive or excepted service, NAF employees are under another personnel system pursuant to 5 U.S.C. § 2105(c). With exceptions not relevant here, NAF employees are not covered by laws which apply to employees within the general Federal Service, including laws dealing with removals and other adverse actions in 5 U.S.C. §§ 7501-7513. Army and Air Force Exchange Service and American Federation of Government Employees, Region Council 236, 33 FLRA 815, 817-18 (1988). Rather, procedural protections for removals or other adverse actions affecting NAF employees are established by regulation of the agency employing them.

Provision 6 allows intermittent and temporary employees to contest terminations for cause through the negotiated grievance procedure. The Agency makes no claim, and it is not otherwise apparent, that the portion of Provision 6 providing intermittent employees access to the grievance procedure to contest terminations for cause is inconsistent with law, Government-wide rule or regulation, or an agency regulation for which a compelling need exists. Moreover, with respect to intermittent employees, the Union argues that the provision is consistent with the Authority's decision in Marine Corps Exchange, where the Authority found that the portion of a provision allowing intermittent NAF employees to grieve terminations was negotiable. The parties bear the burden of creating a record upon which the Authority can make a decision. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d at 891. A party failing to meet this burden acts at its peril. Naval Underwater Systems Center. Accordingly, consistent with Marine Corps Exchange, we find that the portion of Provision 6 allowing intermittent employees to grieve terminations for cause is negotiable.

With respect to temporary employees, the Agency argues that the provision directly interferes with management's right to layoff and remove employees under section 7106(a)(2)(A) of the Statute and is contrary to regulations that "allow the termination of temporary employees at any time without providing any justification for the action." Agency's Statement of Position at 12. In support of its arguments, the Agency cites Marine Corps Exchange, in which the Authority found that the portion of a proposal allowing probationary NAF employees to grieve terminations for cause was nonnegotiable. In that case, the Authority noted that, under the agency's regulations, probationary employees were subject to summary termination. The Authority concluded, therefore, that a provision allowing probationary employees to grieve terminations was contrary to management's right to hire under section 7106(a)(2)(A) of the Statute.

Unlike Marine Corps Exchange, the Agency in this case has not provided a copy of or a citation to the regulations dealing with the termination of its employees. As we noted previously, procedural protections for removals or other adverse actions affecting NAF employees are established by regulation of the agency employing them. Therefore, the fact that the Authority may find that certain NAF employees working for one nonappropriated fund instrumentality may be summarily terminated does not mean that the Authority will reach the same result with employees of another nonappropriated fund instrumentality. Accordingly, the Agency's reliance on Marine Corps Exchange is misplaced.

Further, as NAF employees are not covered by the statutory provisions prescribing removals or other adverse actions for employees in the competitive or excepted service, we will not apply the Authority's previous decisions in American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, Headquarters, U.S. Marine Corps, Washington, D.C., 39 FLRA 839 (1991); and Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1991) (Provision 4), finding that provisions or proposals allowing temporary employees to contest adverse actions, including removals, through the negotiated grievance procedure violated the Civil Service Reform Act of 1978.

We conclude that the Agency has not established that the portion of the provision allowing temporary employees to grieve terminations for cause directly interferes with management's right to hire, layoff, and remove employees under section 7106(a)(2)(A) of the Statute or is otherwise inconsistent with law, regulation, or an Agency regulation for which a compelling need exists. Therefore, we find that the portion of Provision 6 applying to temporary employees is negotiable as well. See Fort Bragg Dependent Schools, 28 FLRA at 530-31 (Provision 13) (a provision subjecting the terminations of employees to the negotiated grievance procedure was found to be negotiable where the agency did not establish that the provision was inconsistent with applicable agency regulations).

VIII. Order

The Agency must rescind its disapproval of Provisions 4 and 6 and Section 5 of Provision 2.⁽³⁾ The Union's petition for review as to Provisions 1, 3, 5, and Section 11 of Provision 2 is dismissed.

---

---

---

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

1. The Agency withdrew its allegation of nonnegotiability with respect to Article 9, Overtime, Section 2. Accordingly, that provision is not before the Authority.

2. Consistent with the way the parties addressed the matter, the remainder of Article 12, Section 5 is discussed as part of Provision 2.

3. In finding that Provisions 4 and 6 and Section 5 of Provision 2 are negotiable, we make no judgment as to their merits.

---