42 FLRA 1186
42 FLRA No. 83
Case No. 0-AR-2004
U.S. DEPARTMENT OF THE ARMY, HEADQUARTERS, XVIII AIRBORNE CORPS, AND FORT BRAGG, FORT BRAGG, NORTH CAROLINA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770
(Union)
October 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator David A. Singer, Jr. filed by the Union under section 7122(
a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Agency filed an opposition to the Union's exceptions. /1/
A grievance was filed over the Agency's discipline of the grievant
for insubordination, refusal to perform assigned duties, and for being
absent without leave (AWOL). The Arbitrator mitigated the discipline
from a 10-day suspension to a 5-day suspension.
We conclude that the Union has failed to establish that the award is
deficient. Accordingly, we will deny the exceptions.
At the time of the events involved in the arbitration, the grievant
was employed by the Agency as a computer operator on the midnight to 8:
00 a.m. shift. On April 11, 1989, the grievant injured her knee while
off duty. The next day the grievant visited the emergency room at a
local hospital and received a medical certificate. She was instructed
to visit an orthopedic surgeon if her problem persisted after one week.
The medical certificate given to her on April 12, 1989, stated the
following restrictions: "No stooping, bending, or excessive walking for
one week." Award at 2.
The grievant returned to work on April 13, 1989, and presented her
medical certificate to the computer operations supervisor. During the
subsequent two weeks the grievant worked at various tasks. On April 21,
1989, the grievant made her first visit to the orthopedist. The
orthopedist issued her a medical certificate on April 21, 1989, and
another one on May 5, 1989. Both certificates stated the following
restrictions: "Sit-down work, non-weight bearing on leg." Id. The
certificates also noted that "(i)f limited work as indicated above is
not available, then (s)he should be considered unable to work." Id.
The events leading to the 10-day disciplinary suspension involved an
on-going dispute between the grievant and her supervisor as to what
duties she could perform based on the medical certificates she had
obtained after her knee injury. The Arbitrator made the following
findings on the events in dispute. On April 27, 1989, after the chief
of the data systems branch heard that the grievant had filed a grievance
against her supervisor, the chief requested that the grievant report to
her office. The request was delivered shortly ater the close of the
grievant's shift and the grievant adamantly declared herself off the
clock, on her own time, and not subject to the chief's commands. On
April 28, 1989, the grievant chose to leave the work site because of her
knee injury rather than work in the microfiche room. Instead of
attempting to resolve her problem with her work assignment, the grievant
declared herself to be on sick leave, left the work site, and returned
home. The Arbitrator found that the grievant did not request sick leave
and that she was not placed on sick leave by the Agency.
On May 2, 1989, during a telephone conversation between the grievant
and her supervisor, the grievant declared that she considered herself to
be on sick leave. The grievant informed the supervisor that she would
not return to work until the matter of her work assignment was resolved
in keeping with her medical limitations. The supervisor refused to
grant the leave and placed the grievant on AWOL status. On May 20,
1989, the grievant reported to work at the microfiche room, worked for
one hour, and then informed the supervisor that she could not continue.
The Arbitrator found that the grievant refused the supervisor's
suggestion to meet with the chief and that she again left the work site.
In an attempt to talk with the grievant, the Union representative and
the chief scheduled a meeting for the following Monday. Neither the
grievant nor the Union representative appeared for that meeting.
On July 9, 1989, the Agency issued a memorandum proposing a
suspension for 10 workdays for the following offenses, based on the
events outlined above: (1) insubordination and defiance of authority;
(2) refusing to perform assigned work; and (3) being AWOL. A grievance
over the disciplinaty action was filed. The grievance was not resolved
and was submitted to arbitration.
Before the Arbitrator, the Union argued that the grievant
legitimately took the option of "self relief" when she refused to
perform the duties that were outside the limitations of her medical
certificates. The Union contended that the grievant was in discomfort
and in danger of further knee damage. The Union claimed that the
grievant requested sick leave, which was denied. The Union further
contended that even though the grievant could have been assigned duties
within the limitations her physician prescribed, she was assigned tasks
that could not be done while seated and that were weight-bearing. The
Union further argued that the grievant was within her rights in refusing
the order to report to the chief'ss office when she was off the clock on
April 27, 1989, and that she was never insubordinate during the period
in question. The Union asserted that the grievant repeatedly attempted
to apprise her supervisor of her physical limitations, was not AWOL, and
had not refused to perform assigned work. The Union argued that the
grievant attempted to perform the assigned work, but was unable to do
so. The Union claimed that, therefore, the grievant was forced to place
herself on sick leave.
The Agency contended before the Arbitrator that it had complied with
the restrictions outlined in the grievant's medical certificates. It
argued that because the grievant's regular job as a computer operator
entailed excessive walking and lifting, it placed her in the microfiche
room where she could perform most of the duties required while seated.
The Agency contended that the grievant could execute the minimal
movements required in the microfiche room. The Agency asserts that the
grievant's behavior from April 27 through May 20, 1989, was entirely
unacceptable and that she deserved the 10-day suspension. The Agency
claimed that the grievant failed to request any kind of leave, and that
instead she had declared herself to be on sick leave and left the work
site without permission.
The Arbitrator framed the issue before him as "(w)as (the grievant)
improperly disciplined and if so, what is the appropriate remedy?" Award
at 1.
The Arbitrator found that the grievant could have continued to
perform microfiche room duties until she could communicate with her
supervisors about her situation. The Arbitrator found that the Agency
"clearly exerted no special effort to accomodate her." Id. at 28. He
also found, however, that all the duties at the work site required some
walking and weight-bearing activity and that the microfiche room was the
most appropriate place for the grievant to work. The Arbitrator found
that although the supervisor's poor judgment and ineffective
communications skillss served to "agitate" the grievant, the grievant
inappropriately refused the assigned duties. Id. He found that the
grievant elected to leave the work site, thereby placing herself in a
vulnerable position.
The Arbitrator found that the grievant "never actually requested sick
leave . . . (r)ather, she invoked self-help, declaring to supervision
that she considered herself on sick leave." Id. at 26. In sum, the
Arbitrator found that the grievant's behavior was insubordinate on
numerous occasions over the period, that she should not have engaged in
self-help, and that the Agency rightfully placed her in AWOL status. He
also concluded, however, that in view of the grievant's "unblemished
record and the supervisor(')s pathetic employee relations skills," the
discipline should be reduced. Id. at 30.
In mitigating the discipline imposed, the Arbitrator further found
that all the events during the period in question were related, and
therefore, could be viewed as one offense. The Arbitrator's award
required that: (1) the suspension be reduced to 5 days without pay;
(2) the grievant's record be amended to reflect a 5-day suspension; and
(3) the grievant be made whole in an amount equal to one-half of all
wages and benefits forfeited as a result of the 10-day suspension.
A. Union's Exceptions
The Union contends that the Arbitrator's decision is contrary to law,
rule and regulation. The Union argues that the Arbitrator's finding
that the Agency "exerted no special effort to accommodate her(,)" Award
at 28, indicates that the Arbitrator found that the grievant had a
"handicapping condition" that was not accommodated, as required by
Federal law. According to the Union, although the Arbitrator found the
"requisite conditions to support handicap discrimination" and despite
the directions contained in the grievant's medical certificates, the
Arbitrator nonetheless suggested that the grievant could have continued
to work. Exceptions at 1. The Union contends that this finding by the
Arbitrator is an error. In this regard, the Union states that Article
XXII, Section 7 of the parties' agreement provides that employees have
the right to appropriate relief in such situations. /2/ The Union also
argues that the Arbitrator's award was wrong under "statutory EEO law
and the EEO contract language" of the parties' agreement, Article VIII,
Section 1. Id. at 2.
The Union also contends that the Arbitrator failed to address the
AWOL imposed upon the grievant despite the parties' contract language in
Article XVI, Section 2 that "(e)mployees shall earn and be granted sick
leave in accordance with the applicable statutes and regulations."
Exceptions at 2. It argues that the Arbitrator erred in not awarding
the grievant sick leave during the period that her injury prevented her
from working. The Union claims that, under the applicable regulations,
because the Arbitrator "found that the conditions existed that . . .
would make (the) grievant unable to work . . . the (A)rbitrator, by
definition, had to find that (the) grievant was, in fact, on sick leave,
whether she came to work and left or remained home." Id. at 3.
The Union further contends that the Arbitrator had no basis in law
for sustaining the portion of the discipline imposed because of the
grievant's refusal to attend a meeting with her second-line supervisor
on April 27, 1989, when the grievant was off duty.
B. Agency's Opposition
The Agency contends that the Arbitrator's award is not contrary to
laws regarding handicap discrimination. The Agency disputes the Union's
characterization of the Arbitrator's award. It argues that at no point
in the Arbitrator's award did he find that the grievant is handicapped
within the meaning of the "Handicap Accommodation (sic) Act." Opposition
at 1. Rather, the Agency argues that the Arbitrator found only that
grievant was injured, and that neither that finding nor the use of the
word "accommodate" in the Arbitrator's award leads to a conclusion that
the grievant has the status of a protected person within the meaning of
that statute.
The Agency further disputes the Union's claim that the Arbitrator's
award is deficient because it fails to find that the imposition of AWOL
violated sick leave regulations. The Agency contends that 5 C.F.R.
Section 630.402 provides that an employee shall file a written
application for sick leave within agency-prescribed time limits, and it
notes that the Arbitrator found that the grievant never asked for sick
leave. The Agency further argues that the grievant did not establish
that she was incapable of performing her duties during the period for
which she was placed on AWOL. The Agency contends, therefore, that the
grievant cannot complain about not receiving what she failed to request
or to which she failed to establish an entitlement.
Finally, the Agency argues that the Arbitrator correctly sustained
the discipline imposed because the grievant failed to attend a meeting
with her supervisor. The Agency states that "it is the impact upon the
agency, not the time or location of the act, which makes the conduct
punishable." Id. at 2.
We conclude that the Union fails to establish that the Arbitrator's
award is contrary to law, rule or regulation, or that the award fails to
draw its essence from the collective bargaining agreement. Accordingly,
we will deny the exceptions.
We construe the Union's first exception that the Arbitrator erred "as
a matter of statutory EEO law and the EEO contract language" of the
parties' agreement as an assertion that the award is contrary to the
Rehabilitation Act of 1973, 29 U.S.C. Section 791 (Rehabilitation Act).
We conclude that the Union fails to establish that the award is contrary
to the Rehabilitation Act.
The Rehabilitation Act imposes a duty upon Federal agencies to make
reasonable accommodation to the limitations of their qualified
handicapped employees unless they can show that to do so would impose
undue hardship on their operations. See Rodgers v. Lehman, 869 F.2d
253, 258 (4th Cir. 1989). Although the Union suggests that the award is
deficient because the grievant had a handicapping condition that was not
accommodated, the Union provides no support for its assertion, and none
is apparent to us. Thus, the Union fails to establish that the grievant
is a "qualified handicapped person" entitled to the protection of the
Rehabilitation Act. 29 C.F.R. Section 1613.702(f).
Even assuming that the grievant is a qualified handicapped person,
the Union has not established that the Agency failed to make reasonable
accommodation to the grievant's known physical limitations. 29 C.F.R.
Section 1613.704. The Arbitrator specifically found that the grievant
could have performed the disputed work for a short time despite the
medical certificates' directions and that the "microfiche room was the
most appropriate place for the Grievant to work." Award at 28. Given
these findings, there is an insufficient basis for concluding that the
Arbitrator was making a determination within the terms of the
Rehabilitation Act when he stated that the Agency "clearly exerted no
special effort to accommodate (the grievant)." Id. Consequently, we do
not find that the award is contrary to the Rehabilitation Act. See U.
S. Department of the Air Force, Headquarters Oklahoma City Air Logistics
Center, Tinker Air Force Base, Oklahoma and American Federation of
Government Employees, Local 916, 40 FLRA 214, 219-20 (1991). In so
finding, we also conclude that the award is not contrary to Article
VIII, Section 1 of the parties' agreement, which prohibits
discrimination based on a "handicapping condition."
We also conclude that the Union fails to establish that the award is
contrary to 5 C.F.R. Section 630.402 and Article XVI, Section 2 of the
parties' agreement, which requires the Agency to grant sick leave in
accordance with applicable statutes and regulations. 5 C.F.R. Section
630.402 requires that "(a)n employee shall file a written application
for sick leave. . . ." The Arbitrator specifically found that the
grievant "never actually requested sick leave." Award at 26. As an
employee must request sick leave to be entitled to it, we conclude that
the Arbitrator's award was not deficient because it did not award the
grievant sick leave for the period of her injury. See generally U.S.
Department of Health and Human Services, Social Security Administration,
Kansas City, Missouri District and American Federation of Government
Employees, Local 1336, 39 FLRA 22, 25 (1991) (a grant of sick leave must
be based on a specific request). Rather, we find that the Union's
exception constitutes nothing more than disagreement with the
Arbitrator's evaluation of the evidence and findings and conclusions in
this regard and provides no basis for finding an award deficient. See
Department of the Army, 7th Infantry Division (Light), Fort Ord,
California and American Federation of Government Employees, Local 2082,
34 FLRA 916 (1990).
We construe the Union's claim that the award is contrary to various
provisions of the parties' collective bargaining agreement as an
allegation that the award fails to draw its essence from the agreement.
To demonstrate that an award fails to draw its essence from an
agreement, a party must show that the award: (1) cannot in any rational
way be derived from the agreement; or (2) is so unfounded in reason and
fact, and so unconnected with the wording and the purpose of the
agreement as to manifest an infidelity to the obligation of the
arbitrator; or (3) evidences a manifest disregard for the agreement;
or (4) does not represent a plausible interpretation of the agreement.
See, for example, American Federation of Government Employees, Local 51,
AFL-CIO and United States Mint, Department of the Treasury, 41 FLRA 48,
51 (1991).
The Union provides no basis to conclude that the award fails to draw
its essence from the agreement under any of these tests. As we
concluded above, the award is consistent with Article VIII, Section 1
and Article XVI, Section 2, which restate certain requirements of
Federal law and regulation. We further conclude that the Union fails to
establish that the award does not draw its essence from the agreement
under any of the established tests when it asserts that the grievant had
the right to appropriate relief, that is, to resort to self help, under
Article XXII, Section 7 of the parties' agreement. Rather, the Union's
exception constitutes nothing more than disagreement with the
Arbitrator's findings of fact and conclusion based thereon that the
grievant was capable of performing microfiche room duties for the short
period of time necessary to communicate her situation to higher
supervisory authority. Such a contention provides no basis for finding
the award deficient. See U.S. Department of the Air Force, Langley Air
Force Base, Hampton, Virginia and National Association of Government
Employees, Local R4-106, 41 FLRA 246 (1991). Accordingly, there is no
basis on which to conclude that the award fails to draw its essence from
the agreement.
Finally, we conclude that the Union fails to establish that the award
is deficient because the Arbitrator "apparently" sustained the portion
of the discipline imposed for the grievant's refusal to attend a meeting
after duty hours on April 27, 1989. Exceptions at 3. The Union
contends that there is no basis in law to support the Agency's
discipline of the grievant because of this incident. The Arbitrator
found that the grievant's behavior was insubordinate on numerous
occasions over the period in question, that she should not have engaged
in self-help, and that the Agency rightfully placed her in AWOL status.
In reviewing the appropriateness of the discipline imposed and
mitigating the discipline, the Arbitrator concluded that all the events
during the period in question were related and stated that he viewed the
entire series of events as one offense. Because the Arbitrator viewed
the entire series of events as one offense, it is not apparent how much,
if any, of the discipline sustained by the Arbitrator is directly
attributable to the April 27 incident. Therefore, we conclude that even
if the Arbitrator incorrectly determined that the Agency appropriately
could have imposed discipline based on the April 27 incident, the Union
has not established that the Arbitrator's outcome would be any different
had he concluded that the grievant should not have been disciplined for
that incident. Accordingly, we find that the Union has not demonstrated
that the Arbitrator's award is deficient in this regard.
In sum, we conclude that the Union has not demonstrated that the
Arbitrator's award is deficient on any grounds set forth in section
7122(a) of the Statute. Therefore, we will deny the Union's exceptions.
The Union's exceptions are denied.
(1) The Union filed a request for an extension of time to supplement
its exceptions. The Authority issued an Order finding that the Union's
request was deficient because it did not state the position of the other
party on the request for an extension, as required by the Authority's
Regulations. The Union was given an opportunity to cure the deficiency.
The Union filed its supplemental submission without curing the
deficiency. Accordingly, because the Union failed to abide by the
Order, we will not consider the Union's supplemental submission.
(2) Article XXII, Section 7 of the parties' agreement, entitled
"Occupational Health and Safety," provides:
SECTION 7. An employee will have the right to appropriate relief
from an assigned task because of a reasonable belief that, under
the circumstances the task poses an imminent risk of death or
serious bodily harm coupled with a reasonable belief that there is
insufficient time to seek effective redress through normal hazard
reporting and abatement procedures.
Award at 7.
42 FLRA 1181
42 FLRA NO. 82
Case No. 0-AR-2038
U.S. Department of Veterans Affairs, Medical Center, Fayetteville, North Carolina
(Agency)
American Federation of Government Employees, Local 2080
(Union)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Jack Clarke filed by the Agency pursuant to section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union filed
an opposition to the Agency's exceptions.
A grievance was filed concerning a written admonishment that was
given to the grievant for failing to return to his work station as
directed. The Arbitrator found that the grievant was engaged in
protected activity at the time of his absence and that the issuance of
the admonishment was not for just and sufficient cause. Consequently,
the Arbitrator sustained the grievance and directed the Agency to take
certain remedial actions.
For the following reasons, we conclude that the Agency has failed to
establish that the Arbitrator's award is deficient. Therefore, we will
deny the exceptions.
At the time of the incident that led to the issuance of the
admonishment, the grievant was serving as the Union vice president and
performing the duties of a ward clerk. In this latter capacity, the
grievant was assigned to a floating position, meaning that he was
assigned to a ward based on the need for clerk coverage.
On April 27, 1990, the grievant informed his supervisor that he would
be leaving the ward at 1:00 p.m. to prepare for a meeting with Agency
officials that was scheduled for 3:00 p.m. on that same day. After
speaking with the Assistant Chief of Medical Administrative Services,
the grievant's supervisor advised the grievant that it was necessary for
him to return to the ward at 3:00 p.m. The grievant also spoke with the
Assistant Chief and was advised of the same need to return at 3:00 p.m.
The grievant was, in fact, in a meeting with Agency officials, which
meeting commenced at about 3:00 p.m., and failed to return to the ward
as directed. On May 1, 1990, the grievant was issued a letter of
admonishment on the basis that his failure to return to work constituted
insubordination and had a direct adverse impact on patient care.
A grievance was filed challenging the admonishment. The grievance
was not resolved and was submitted to arbitration, where the parties
framed the issue as follows: "whether the written admonishment given
the Grievant was for just and sufficient cause." Award at 2.
The Arbitrator found that issuance of the admonishment was not for
just and sufficient cause. In reaching this result, he examined section
7102 of the Statute, and Authority decisions interpreting that section,
and found that "if the Grievant's refraining from returning to work at
approximately 3:00 p.m. on April 27, 1990 constituted insubordination,
that behavior was nonetheless protected by that statutory provision and
was therefore immunized from discipline." Id. at 21. The Arbitrator
further found no evidence that the grievant's conduct was disrespectful.
The Arbitrator also noted that in leaving and remaining away from the
work area, the grievant was acting in accordance with a past practice,
pursuant to which elected Union officials could attend meetings with
management if they merely advised their supervisors of such meetings.
However, the Arbitrator declined to pass on the scope of the past
practice.
Finally, the Arbitrator concluded that although the grievant's duties
as a ward clerk were important to the functioning of the Agency, there
was no evidence presented from which the Arbitrator could conclude that
the grievant's absence from the ward on April 27, 1990, significantly
and adversely affected patient care. The Arbitrator concluded that the
grievant's conduct "was not so flagrant or outrageous as to be removed
from the protection of 5 U.S.C. Section 7102." Id. at 22. Accordingly,
the Arbitrator sustained the grievance and directed the Agency to
rescind the written admonishment and to remove any reference to it from
the grievant's personnel files.
A. The Agency
The Agency excepts to the award on the basis that (1) it is contrary
to law, specifically section 7106(a)(2)(A) of the Statute, and (2) the
Arbitrator's conclusions and award are not supported by the evidence.
In support of its first exception, the Agency contends that the
grievant's failure to return to work as ordered was sufficiently
flagrant and outrageous to remove it from the protection of the Statute
and, therefore, the Agency was justified in imposing discipline on the
grievant under section 7106(a)(2)(A) of the Statute. The Agency argues
that although the Arbitrator rejected the applicability of Veterans
Administration Medical Center, Birmingham, Alabama and American
Federation of Government Employees, Local 2207, 35 FLRA 553 (1990) (VAMC
Birmingham) to the facts here, the situations are analogous. In VAMC
Birmingham, the Authority upheld an arbitrator's decision denying a
grievance imposing a suspension on the basis that the grievant's conduct
was insubordinate and outside the protection of section 7102 of the
Statute. The Agency contends, citing VAMC Birmingham, that although
certain conduct is protected under section 7102 of the Statute, an
agency may discipline an employee if such conduct exceeds the bounds of
protected activity. Here, the Agency asserts that the grievant's
conduct exceeded protected activity because: (1) the grievant's failure
to perform certain duties could adversely affect patient care; (2) the
grievant was repeatedly advised that other ward clerks would be absent
at the time the grievant left the ward, thus necessitating the
grievant's services; and (3) other Union officials were available on
the afternoon of April 27, 1990.
In support of its second exception, the Agency cites the portions of
the award in which the Arbitrator found no evidence to conclude that the
grievant's absence from the ward on April 27 significantly and adversely
affected patient care, that such absence created an emergency, or that
the conduct was so flagrant or outrageous to be removed from the
protection of section 7102 of the Statute. The Agency states that the
facts demonstrate that the grievant was counseled previously as to the
seriousness of leaving the workplace unattended and that on the specific
occasion involved in the grievance, both the supervisor and the
Assistant Chief of Medical Administrative Services advised the grievant
that his services were needed on the ward.
B. The Union
The Union argues that the Agency's exceptions provide no basis for
finding the award deficient. As to the Agency's first exception, the
Union states that the Arbitrator correctly found that the grievant was
engaged in protected activity. As to the Agency's second exception, the
Union maintains that the evidence and facts on which the Arbitrator
based his decision were sufficient to sustain his conclusion and award.
The Agency has not established that the award is deficient on any of
the grounds set forth in section 7122(a) of the Statute. The Agency has
failed to establish that the award is contrary to law, rule and
regulation, or that the award is deficient on other grounds similar to
those applied by Federal courts in private sector labor relations cases.
In both of its exceptions, the Agency is contesting the Arbitrator's
findings and evaluation of the evidence, as well as his reasoning and
conclusions. Such contentions do not constitute a basis for finding an
award deficient. More specifically, the Agency's first exception that
the award is contrary to section 7106(a)(2)(A) of the Statute lacks
merit. In sustaining the grievance and concluding that the issuance of
the written admonishment was not for just and sufficient cause, the
Arbitrator examined the Statute, the parties' agreement and their past
practice, as well as the grievant's duties as a ward clerk. In reaching
his conclusion, the Arbitrator found that the grievant's absence did not
adversely affect patient care. Further, while acknowledging that the
grievant failed to return to work as directed, the Arbitrator concluded
that such conduct was not so flagrant or outrageous as to be removed
from the protection of section 7102 of the Statute. We find that the
Arbitrator properly applied section 7102 under Authority precedent and
the Agency has not established otherwise. In arguing that the facts of
this case are more analogous to the facts of VAMC Birmingham than to a
different case cited by the Arbitrator, the Agency is simply disagreeing
with the Arbitrator's evaluation of the facts presented and the weight
to be accorded the evidence. As noted, such disagreement does not
provide sufficient grounds on which the Authority will find an award
deficient. See U.S. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland and American Federation of
Government Employees, Local 1923, 39 FLRA 430, 436 (1991).
Similarly as to its second exception, it is clear that the
Arbitrator's conclusions and award were based on all the evidence
presented. Specifically, the Arbitrator took into account the nature of
the grievant's work as well as various conversations concerning the need
for his services. The Agency has not established that the Arbitrator's
conclusions and award are not supported by the evidence.
Accordingly, we conclude that the Agency has not established that the
award is deficient. Therefore, we will deny the Agency's exceptions.
The Agency's exceptions are denied.
42 FLRA 1169
42 FLRA NO. 81
Case No. 0-NG-1892
National Federation of Federal Employees, Local 858
(Union)
U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri
(Agency)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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 two provisions of a negotiated agreement that were
disapproved by the Agency head under section 7114(c) of the Statute.
The Union did not file a response to the Agency's Statement of Position.
Provision 1 would limit the Agency's ability to place employees on
sick leave restriction where improper use of sick leave is suspected.
We find that the provision is nonnegotiable because it excessively
interferes with management's right to discipline employees under section
7106(a)(2)(A) of the Statute.
Provision 2 would require the Agency to submit certain forms
contained in the Agency's Merit Promotion file to the Union following
the completion of the selection process. We find that the provision is
nonnegotiable under section 7117(a)(1) of the Statute because it is
inconsistent with law.
Article 11.8 -- Leave Restriction
When there is a sound reason to believe an employee is
improperly using sick leave, the employee will be counseled and
provided an opportunity to correct the perceived problem. If a
problem exists and is not corrected based on the counseling, the
employee may be issued a letter of warning. The letter of warning
will not be placed in the Official Personnel Folder. This letter
will include the evidence supporting the basis for a determination
of improper leave use, what the employee must do to correct the
problem, and the nature of leave restriction which may result if
the problem is not corrected.
If after oral counseling and the letter of warning the problem
has not been corrected, the employee may be placed on leave
restriction. Such leave restriction will be fair, reasonable, and
equitably applied to all employees. The leave restriction will
explain the presentation of evidence in order to obtain the
approval of subsequent leave requests in that category, the type(
s) of acceptable evidence, and the consequences of not providing
such evidence. (Only the underscored portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency "does not dispute that it is a good management practice to
counsel an employee when leave abuse is suspected" and "agree(s) that a
letter of warning is not inappropriate in some circumstances." Agency's
Statement of Position at 3. The Agency contends, however, that
Provision 1 directly and excessively interferes with its right to
discipline employees under section 7106(a)(2)(A) of the Statute. The
Agency argues that the provision requires it to institute a 3-step
disciplinary process in those circumstances where employee sick leave
abuse is suspected. According to the Agency, if such abuse is
suspected, the provision would restrict the exercise of its right to
discipline employees by requiring it to "(1) counsel the employee, (2)
issue a warning letter, and (3) impose a leave restriction letter." Id.
The Agency argues that the provision "prevents management from
determining what, if any, discipline should be imposed upon an employee
in a given situation." Id. at 4. In support of its position, the Agency
cites Service and Hospital Employees International Union, Local 150 and
Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA
521 (1990) (VAMC, Milwaukee) and National Federation of Federal
Employees and Department of the Interior, Bureau of Land Management, 29
FLRA 1491, (1987) (Bureau of Land Management), enforced in part and
reversed in part as to other matters sub nom. Department of the
Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir.
1989).
2. Union
The Union contends that Provision 1 is "purely procedural in nature."
Petition for Review at 1. According to the Union, the provision
establishes "procedures by which (m)anagement exercises its rights,
while protecting the employee in the exercise of those rights." Id. The
Union claims that the provision does not directly or excessively
interfere with management's rights or prevent the Agency from exercising
its rights.
B. Analysis and Conclusions
We conclude that Provision 1 excessively interferes with management's
right to discipline employees under section 7106(a)(2)(A) of the Statute
and, therefore, that the provision does not constitute an appropriate
arrangement under section 7106(b)(3).
1. The Provision Directly Interferes with Management's Right to
Discipline Employees
Provision 1 establishes certain conditions that would limit
management's ability to place employees on sick leave restriction. The
provision would permit the Agency to place employees suspected of
improperly using sick leave on sick leave restriction only if the
employees are first provided with oral counseling and a letter of
warning.
Because the use of leave restrictions 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 restrictions directly
interfere with management's right to discipline employees under section
7106(a)(2)(A) of the Statute. 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).
Provision 1 requires the Agency to counsel and provide a letter of
warning to an employee suspected of improperly using sick leave before
placing that employee on sick leave restriction. Specifically, under
Provision 1, management would not be able to place an employee on sick
leave restriction based on the initial incidents giving rise to "a sound
reason to believe" that an employee is "improperly using sick leave(.)"
Instead, the provision substitutes counseling and a letter of warning
for the imposition of sick leave restriction for those incidents.
Because sick leave restriction is, as a practical matter, a precondition
of management's decision to impose discipline for improper use of sick
leave, Provision 1 would effectively preclude management from respoding
to the employee's improper use of sick leave through discipline until
management had counseled and provided a letter of warning to the
employee. See id., slip op. at 21-22 (because "the (a) gency would not
be able to place an employee in a restricted leave use category based on
previously approved leave, . . . management would be precluded from
responding to an employee's inappropriate use of leave through
discipline").
Consequently, consistent with Army Information Systems Command, we
find that Provision 1 directly interferes with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute. In
view of our determination that Provision 1 directly interferes with
management's right to discipline employees, we reject the Union's
argument that the provision is purely procedural. Provision 1 is
nonnegotiable, therefore, unless it is an appropriate arrangement within
the meaning of section 7106(b)(3).
2. The Provision Is Not an Appropriate Arrangement under Section
7106(b)(3)
The Union contends that Provision 1 does not excessively interfere
with management's rights. We interpret the Union's contention as an
argument that the provision constitutes an appropriate arrangement.
Therefore, we will consider whether the provision is negotiable under
section 7106(b)(3) of the Statute.
In order to determine whether a 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. See 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 proposal excessively interferes with the exercise
of a management right, we weigh the benefits conferred on employees by
the proposal against the burden imposed on the exercise of management's
rights. Id.
As to whether Provision 1 is an arrangement for employees adversely
affected by the exercise of a management right, we find that the
provision would benefit employees suspected of leave abuse by providing
those employees with counseling assistance and a warning instead of the
imposition of sick leave restriction as a prelude to disciplinary
action. The provision would protect employees where grounds exist for
imposing leave restriction, by precluding leave restriction unless and
until employees have received counseling and been warned. We find,
therefore, that Provision 1 constitutes an arrangement for employees
adversely affected by the exercise of a management right within the
meaning of section 7106(b)(3).
As to whether Provision 1 constitutes an appropriate arrangement, we
note that, under the provision, where incidents occur that give rise to
a "strong reason to believe" an employee is "improperly using sick
leave," management will counsel and warn the employee rather than place
the employee on sick leave restriction for those initial incidents. We
noted above that, by precluding management from placing an employee on
sick leave restriction, the provision effectively precludes disciplinary
action against the employee for certain suspected incidents of improper
use of sick leave. We find that, by thus precluding disciplinary action
for the initial incidents of suspected sick leave abuse, the burden
placed on management's ability to discipline employees by the provision
outweighs the benefit to employees under the provision. We find,
therefore, that the provision excessively interferes with management's
right to discipline employees. See, for example, 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) (provision requiring agency to caution employees prior to
imposing sick leave restriction found to excessively interfere with
management's right to discipline employees under section 7106(a)(2)(A)).
Consequently, we conclude that Provision 1 does not constitute an
appropriate arrangement under section 7106(b)(3) of the Statute and that
the provision is nonnegotiable.
Article 13.5(G) -- Merit Promotion, Evaluation of Candidates
The Promotion Certificate and AD-735's will be submitted to the
Exclusive Representative when the Merit Promotion Process has been
completed.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 2 is nonnegotiable because it is
inconsistent with the Privacy Act, 5 U.S.C. Section 552a(b). According
to the Agency, the issue presented by the provision concerns "the
privacy rights of individuals who applied for a position and either did
not make the best qualified list or, if they did make the list, were not
selected." Agency's Statement of Position at 6.
The Agency argues that Federal Personnel Manual (FPM) chapter 335,
subchapter 1-4, Requirement 5 and FPM Supplement 335-1, subchapter 5-2c
require management to ensure that employees' rights to privacy are
protected. The Agency states that, subject to an exemption permitting
disclosure to agency officials and employees who have a need for a
record in the performance of their duties, the Privacy Act prohibits the
disclosure of "any record which is contained in a system of records by
any means of communication to any person, or to another agency, except
pursuant to a written request by, or with the prior written consent of,
the individual to whom the record pertains." Id. at 6-7. According to
the Agency, therefore, the Privacy Act prohibits the disclosure of the
Promotion Certificate and Form AD-735.
The Agency also argues that the Union has confused the Privacy Act
with the Freedom of Information Act (FOIA), 5 U.S.C. Section 552. The
Agency notes that Exemption 6 to the FOIA exempts the disclosure of
personnel and medical files from the requirements of the FOIA where such
disclosure would constitute a clearly unwarranted invasion of personal
privacy.
Further, the Agency states that it "suggested to the (U)nion that
sanitization of the Promotion Certificate and Form AD-735 to protect the
privacy rights of nonselected individuals would remove any question of
negotiability." Id. at 7. The Agency notes that the Union did not
modify Provision 2. The Agency argues that the language of the
provision does not indicate that "the Union is willing to accept
sanitized documents." Id. In support of its position, the Agency relies
on National Federation of Federal Employees, Local 1745 and Veterans
Administration, 13 FLRA 543 (1983) (Veterans Administration), affirmed
sub nom. NFFE, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987).
2. Union
In its petition for review, the Union contends that Provision 2 is
consistent with law. The Union argues that disclosure of the requested
forms is permitted under Exemption 6 to the FOIA and, therefore, is not
prohibited from disclosure under the Privacy Act. The Union states that
"(t)he point of Exception 6 (FOIA) is that the Privacy Act never
prohibits a disclosure that is required by the FOIA." Petition for
Review at 2. The Union also points out that, in applying Exemption 6 of
the FOIA, courts "have held that the (u)nion's interest in obtaining
such information, outweighs the employees' privacy interest in
protecting the information." Id.
The Union also argues that the Promotion Certificate and Form AD-735:
(1) are available to the Union in accordance with section 7114(b)(4) of
the Statute; and (2) have been previously disclosed by the Agency at
the Union's oral request and pursuant to the Statute. The Union asserts
that the information is requested in order to protect unit employees'
rights under the parties' agreement "to fair consideration for positions
advertised through the Merit Promotion Plan(.)" Id.
B. Analysis and Conclusions
We conclude that Provision 2 is inconsistent with the Privacy Act
and, therefore, is nonnegotiable under section 7117(a)(1) of the
Statute.
Provision 2 requires the Agency to provide the Union with copies of
the Promotion Certificate (Form FCIC-473) and Form AD-735 when the merit
promotion process has been completed. The Agency claims, and the Union
does not dispute, that the Agency agreed to the disclosure of sanitized
copies of Forms FCIC-473 and AD-735. There is no indication in the
record that the Union is willing to accept sanitized copies of the
requested forms. Consequently, in the absence of evidence to the
contrary, we will interpret the provision as requiring unsanitized
copies of Forms FCIC-473 and AD-735.
Form AD-735 is used by a rating and ranking panel to evaluate the
qualifications of applicants for a merit promotion position. Form
AD-735 includes, among other things, the comments of the rating panel
members in arriving at an applicant's rating and the numerical rating
given to each applicant. At the completion of the merit promotion
process, the Agency compiles a master copy of Form AD-735 that
indicates: (1) the names and rating of each applicant for the position;
and (2) the names of those applicants who were found to be best
qualified for the position. The Promotion Certificate (Form FCIC-473)
is a listing of the best qualified applicants for a position. Form
FCIC-473 also indicates whether an applicant was selected for, not
selected for, or declined the position. Provision 2, therefore,
requires the Agency, following completion of the merit promotion
process, to provide the Union with unsanitized copies of forms listing
the names and relative ranking of all applicants for a promotion, the
rating for each applicant, and whether or not an applicant was selected
for the position.
The Privacy Act regulates the disclosure of any information contained
in an agency "record" within a "system of records" that is retrieved by
reference to an individual's name or some other personal identifier. 5
U.S.C. Section 552a(a)(4), (5) (1982). The Privacy Act defines "record"
as "any item, collection, or grouping of information about an individual
that is maintained by an agency . . . ." and "system of records" as "a
group of any records under the control of any agency from which
information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual(.)" 5 U.S.C. Section 552a(a)(5). See also National
Federation of Federal Employees, Local 1655 and U.S. Department of
Defense, Department of Military Affairs, Springfield, Illinois, 39 FLRA
1087, 1094-96 (1991) (Department of Military Affairs). Forms FCIC-473
and AD-735 are records within a "system of records" under the Privacy
Act. See Veterans Administration, 13 FLRA at 545-46.
With certain enumerated exceptions, the Privacy Act precludes an
agency from disclosing to any person or agency any record which it
maintains as a part of a system of records absent a request by, or the
written consent of, the person to whom the record pertains. Section
(b)(2) of the Privacy Act provides that the prohibition against
disclosure is not applicable if disclosure of the information would be
required under the FOIA. 5 U.S.C. Section 552a(b)(2). Exemption (b)(
6) of the FOIA provides that information contained in personnel files,
in addition to medical and other similar files, may be withheld if
disclosure of the information would constitute a "clearly unwarranted
invasion of personal privacy." 5 U.S.C. Section 552(b)(6). Therefore, if
the release of Forms FCIC-473 and AD-735 would not constitute a clearly
unwarranted invasion of personal privacy, disclosure of those forms to
the Union would not be barred by the Privacy Act.
The question, therefore, is whether disclosure of unsanitized copies
of Forms FCIC-473 and AD-735 would constitute a clearly unwarranted
invasion of privacy. In determining whether disclosure of the requested
forms, including the names of individuals not selected for a position,
would constitute a clearly unwarranted invasion of personal privacy, the
employee's right to privacy must be balanced against the public interest
in disclosure. See U.S. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth),
application for enforcement denied sub nom. FLRA v. U.S. Department of
the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No.
90-1949 (1st Cir. Oct. 1, 1990).
In applying the balancing test, we look to the public interest
embodied in the Statute. Id. at 525-35. The "public interest"
identified in the Statute is "the facilitation of the collective
bargaining process . . . ." Id. at 531. We conclude that there is a
strong public interest in the disclosure of the requested information.
The Union argues that the information is necessary in order to ensure
that the Agency adheres to the provisions of the parties' agreement,
thereby "protecting the bargaining unit employees' right to fair
consideration for positions advertised through the Merit Promotion
Plan(.)" Petition for Review at 2. Because the Union requested the
information for this purpose, we find that the disclosure of the names
and relative standings of all employees contained in the Forms FCIC-473
and AD-735 would serve a strong public interest. The disclosure of
information needed to ensure that the Agency complies with its
responsibilities in administering the selection process is a matter of
public concern. See, for example, Department of Commerce, National
Oceanic and Atmospheric Administration, National Weather Service, Silver
Spring, Maryland, 38 FLRA 120, 132 (1990), application for enforcement
filed sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Silver Spring, MD,
No. 91-1175 (D.C. Cir. Apr. 12, 1991) (disclosure of the names and duty
stations of unit employees receiving commendable or outstanding
performance ratings was found to serve an important public interest).
Even using only the public interest identified by the Supreme Court
in United States Department of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 773 (1989) (Reporters Committee),
and taking into account "the nature of the requested document and its
relationship to the basic purpose of the FOIA 'to open agency action to
the light of public scrutiny,'" Dunkelberger v. Department of Justice,
906 F.2d 779, 781 (D.C. Cir. 1990), quoting Reporters Committee, we find
that there is a clear public interest in the disclosure of the
information requested by the Union in this case. Disclosing copies of
forms listing the names and relative ranking of all applicants for a
promotion, the rating for each applicant, and whether or not an
applicant was selected for the position, would open to public scrutiny
the manner in which the Agency administers its selection process and
whether the Agency's selection process is administered in a fair and
evenhanded manner. See, for example, Department of the Air Force, Scott
Air Force Base, Illinois, 38 FLRA 410, 419 (1990), petition for review
filed sub nom. Department of the Air Force, Scott Air Force Base,
Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991) (disclosing the
nature of a disciplinary action taken against a supervisor for an
alleged assault on an employee found to concern the public interest in
the agency's compliance "with its responsibilities (for) administering
its disciplinary system in a fair and evenhanded manner.").
The information required by the proposal pertains to the decisions
the Agency makes and the actions the Agency takes in selecting among
candidates for a vacant position. Disclosure of that information would
open to "public scrutiny" what the Agency is "up to" in its hiring and
promotion practices. See Reporters Committee, 489 U.S. at 772-73.
Disclosure of the information would enable the public to assess, for
example, whether the Agency is hiring and promoting candidates for a
vacancy consistent with applicable law, regulation, and the collective
bargaining agreement.
Employees, however, have significant privacy interests in records
concerning their relative standing in the Agency's selection process.
In this regard, FPM chapter 335, subchapter 1-4, Requirement 5 and FPM
Supplement 335-1, subchapter S5-2.c. provide that an agency, in
administering its promotion system, must ensure the protection of an
individual's privacy rights and an employee's rating or score must not
be made known to anyone who does not have an official need to know an
individual's score.
Applying the balancing test to this case, we find that the personal
privacy interests of employees whose records are disclosed outweigh the
public interest in the blanket disclosure to the Union in its
representational capacity of unsanitized documents generated in the
promotion process. In Federal Employees Metal Trades Council and U.S.
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California,
38 FLRA 1410 (1990) (Mare Island Naval Shipyard), petition for review
filed sub nom. Federal Employees Metal Trades Council v. FLRA, No.
91-70168 (9th Cir. Mar. 5, 1991), the Authority found that "the public
interest in blanket, unsanitized disclosure of all proposed and final
disciplinary and adverse actions to the Union, without an expressed
particularized need for the information" constituted an unwarranted
invasion of personal privacy and did not outweigh "the employees' strong
privacy interests." Id. at 1425. The Authority found that the
information requested in Mare Island Naval Shipyard was prohibited from
disclosure under the Privacy Act. See also U.S. Department of Justice
and Immigration and Naturalization Service, 37 FLRA 1346, 1364 (1990)
(INS), petition for review filed sub nom. U.S. Department of Justice,
Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir.
Dec. 27, 1990) (provision requiring respondent to provide the union with
unsanitized copies of notices of proposed disciplinary actions, final
actions taken, and decisions on subsequent appeal constituted an
unwarranted invasion of personal privacy and, therefore, was prohibited
from disclosure under the Privacy Act).
Here, Provision 2 requires the blanket release of unsanitized
information concerning each applicant's individual rating, selection,
nonselection, and relative ranking in the Agency's selection process for
promotions. On balance, we find that the privacy interests of the
affected employees outweigh the public interest in the disclosure of
that information. Consequently, we conclude that the disclosure of
Forms FCIC-473 and AD-735 constitutes an unwarranted invasion of
personal privacy under Exemption 6 of the FOIA and that such disclosure
is prohibited under the Privacy Act. See Mare Island Naval Shipyard and
INS. Accordingly, we find that Provision 2 is inconsistent with law
and, therefore, is nonnegotiable under section 7117(a)(1) of the
Statute.
We emphasize that, under our decision, the Union is not foreclosed
from requesting specific information, including information that is
unsanitized and that concerns employees who have not designated the
Union as their representative, under section 7114(b)(4) of the Statute.
In the event that such a request were disputed, the Authority would then
balance the competing interests in determining whether disclosure of the
information is consistent with law. See Mare Island Naval Shipyard, 38
FLRA at 1425 (1991).
The Union's petition for review is dismissed.
42 FLRA 1166
42 FLRA NO. 80
Case No. 0-AR-2011
U.S. Department of Defense, Dependents Schools
(Agency)
Overseas Education Association
(Union)
October 25, 1991
The Agency has filed exceptions to the September 13, 1990, award of
Arbitrator Paul J. Fasser, Jr. pursuant to section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions. For the reasons stated below,
the Agency's exceptions are interlocutory and must be dismissed.
The Arbitrator found that the issue in this grievance involved two
complaints raised by the Union: (1) employees who transfer from one
geographical area to another were not being paid appropriate
transportation benefits; and (2) local hires who transfer outside a
commuting area, but within a geographical locality, were not being paid
appropriate transportation benefits.
The Arbitrator found that eligible employees, including local hires,
who request and are granted a transfer to another country or
geographical locality are entitled to full transportation benefits. The
Arbitrator made no findings as to whether local hires who transfer
outside a commuting area, but within a geographical locality, are
entitled to such benefits. The Arbitrator found that if the Agency is
denying otherwise eligible employees benefits, they should be
compensated in accordance with the Agency's Joint Transportation
Regulations. The Arbitrator further found that all teachers who are
otherwise eligible and engaged in the transfer program for the last
three years should have the opportunity to have their situation
reviewed. /*/
The Arbitrator noted that the Agency had refused to give the Union
certain necessary information the Union had requested prior to the
arbitration hearing. The Arbitrator found that this information might
have indicated whether certain entitlements had been "inconsistently and
variously applied(.)" Award at 14. He concluded that had the Agency
provided the information, which he determined the Agency was obligated
to provide, the information could have shown whether certain employees
were entitled to the claimed benefits and the proceedings "would most
likely have resulted in a resolution of the outstanding problems." Id.
Based on his finding that the record was insufficient to resolve the
employees' claims of improper denial of benefits, the Arbitrator
directed the Agency to supply the Union with certain information. The
Arbitrator then ordered the parties to meet "in an attempt to explore
any complaints and to correct any deficiencies." Id. at 15. The
Arbitrator specifically retained jurisdiction over the case for 60 days,
at which time the parties were directed to advise the Arbitrator whether
they had resolved all the outstanding issues and if not, to bring the
remaining issues to hearing. Accordingly, the Arbitrator continued the
hearing to decide "the merits of any outstanding complaints." Id.
The Agency filed exceptions contending, among other things, that the
award be set aside on the grounds that the Arbitrator "exceeded his
authority and the award does not draw its essence from the agreement."
Exceptions at 1.
The Agency's exceptions are interlocutory. An interlocutory appeal
concerns a ruling which is preliminary to final disposition of a matter.
The Authority "ordinarily will not consider interlocutory appeals." 5
C.F.R. Section 2429.11. In an arbitration case, this means that the
Authority ordinarily will not consider an appeal of an arbitrator's
ruling until the arbitrator has issued a final decision. See U.S.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and American Federation of Government Employees, SSA
General Committee, 34 FLRA 373, 375 (1990) and the cases cited therein.
In this case, it is clear that the Arbitrator has not rendered a
final award on this dispute. The Arbitrator specifically retained
jurisdiction over the case. Although the Arbitrator made some
dispositive findings, he did not determine whether local hires who
transferred within a geographical locality are entitled to
transportation benefits. He also did not determine the entitlements of
individual claimants. Rather, he directed the Agency to provide the
Union with certain necessary information and ordered the parties to meet
in an attempt to explore any complaints and to correct any deficiencies
based on that information and the findings he made in his interim award.
At the end of 60 days the hearing would be continued to decide the
merits of any outstanding complaints. At that point a final award could
be rendered. Thus, the Agency's exceptions are interlocutory and the
facts and circumstances do not warrant review of the exceptions at this
time. In addition, the Agency has not shown that there are
extraordinary circumstances to warrant a departure from our normal
practice. See U.S. Department of the Defense, Army and Air Force
Exchange Service and National Federation of Federal Employees, Local
977, 38 FLRA 587 (1990); Navy Public Works Center, San Diego,
California and National Association of Government Employees, Local
R12-35, 27 FLRA 407 (1987).
Accordingly, the Agency's exceptions are dismissed. This dismissal
is without prejudice to the timely filing of any exceptions with the
Authority after a final award is rendered by the Arbitrator.
For the Authority.
/s/ ALICIA N. COLUMNA
Alicia N. Columna
Director, Case Control Office
(*) The Arbitrator also made the following findings related to the
dispute: (1) the grievance was timely under the parties' agreement;
(2) a transfer under the Agency's transfer program is
management-generated; (3) the transferring teachers must be advised of
their status before they accept the transfer; and (4) the Union is not
entitled to attorney's fees under the Back Pay Act.
42 FLRA 1157
42 FLRA NO. 79
Case No. 0-NG-1910
American Federation of Government Employees, Local 1156
(Union)
U.S. Department of The Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania
(Agency)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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). The appeal concerns the negotiability
of one provision in a collective bargaining agreement negotiated by the
parties and disapproved in the course of Agency head review under
section 7114(c) of the Statute. The provision requires the Agency to
caution employees suspected of abusing sick leave prior to requiring the
submission of medical certificates. The Agency filed a statement of
position. The Union did not file a response to the Agency's statement
of position. For the following reasons, we find that the provision is
nonnegotiable.
Article 41, Section 2:
Where there is reason to believe the employee is abusing sick
leave, the Employer shall caution the employee, in writing, that
he/she has a questionable sick leave record and why the employee
is suspected of abusing or using excessive sick leave and the
improvement level desired. He/she shall also be advised that if
his record does not improve, a medical certificate will be
required for each future absence due to illness until the
employee's leave record improves to the specified level or the
employee shows that the leave is not excessive sick leave. If
this does not improve his leave record, the employee shall be
notified in writing, that all future requests for leave for
medical purposes must be supported by a medical certificate.
A. Agency
The Agency contends that the provision is nonnegotiable because it
directly interferes with its right to discipline employees under section
7106(a)(2)(A) of the Statute. The Agency asserts that provisions which
limit the right of an agency to determine and impose appropriate
disciplinary penalties are nonnegotiable. The Agency claims that the
provision requires management to "give the employee an improvement
period and if no improvement is shown, requires the employer to give the
employee a written notice that all future requests for sick leave must
be supported by a medical certificate." Statement at 2. Further, the
Agency claims that the provision "would prevent the employer from
placing an employee on leave restriction for leave abuse until after it
has cautioned the employee in writing." Petition, Enclosure 1.
The Agency relies on Service and Hospital Employees International
Union, Local 150 and Veterans Administration Medical Center, Milwaukee,
Wisconsin, 35 FLRA 521, 525-26 (1990) (VAMC, Milwaukee) to support its
contention that the provision directly interferes with its right to
discipline. In VAMC, Milwaukee, the Authority found that a provision
that required the agency to give oral and written counseling to an
employee prior to placing the employee on sick leave restriction
directly interfered with the agency's right to discipline. The Agency
argues that "(a)lthough the language (in the provision) may differ from
that in (VAMC, Milwaukee), the only actual difference is that the
instant provision requires the employee be counseled only once."
Statement at 2.
The Agency asserts that the provision in this case "is much more
restrictive" than the provision in VAMC, Milwaukee because it "does not
just impose conditions on the employer's decision to place an employee
on a letter requirement, it also conditions the employer's right to
require the employee to furnish a medical certificate in support of any
absence that is to be charged as sick leave." /1/ Id. The Agency
disputes the Union's contention that Article 41, section 10 of the
parties' collective bargaining agreement preserves the Agency's right to
request a medical certificate from an employee to support a request for
sick leave. /2/ The Agency argues that the Union's contention is
contrary to the "plain wording" of Article 41, section 10. Id. at 3.
Further, the Agency asserts that the provision establishes a progressive
discipline scheme for employees suspected of sick leave abuse. The
Agency notes that the Authority has held that proposals requiring
progressive discipline "impermissibly limit management's discretion to
determine appropriate discipline." Id.
Finally, the Agency contends that the provision is not an appropriate
arrangement for employees adversely affected by the exercise of a
management right. The Agency claims that the provision limits its
ability "to require employees to provide evidence that their use of sick
leave is consistent with law and regulations where management has a
reasonable basis to believe that prior sick leave use is inappropriate."
Id. at 4. The Agency states that "(w)hile there may be some benefit to
employees from relieving them of the requirement to provide medical
evidence prior to counseling by the (A)gency, the provision would have a
substantial impact on the right of the (A)gency to require such
documentation." Id. Further, the Agency asserts that, on balance,
without the provision, "(e)mployees would be free to grieve unwarranted
imposition of letters of requirement" and such grievances would be
subject to arbitration. Id.
B. Union
The Union contends that the provision is negotiable because it does
not interfere with a management right. However, the Union asserts that
if the provision does interfere with a management right, it should be
found to be an appropriate arrangement for employees adversely affected
by the exercise of a management right.
The Union asserts that the provision is distinguishable from the
provision found nonnegotiable by the Authority in VAMC, Milwaukee. The
Union contends that the "issuance of (a) Letter of Requirement for an
employee to support sick leave absences with medical certificates is not
a disciplinary action . . . ." Petition at 2. In support of this
contention, the Union cites Article 34, section 1.d of the parties'
agreement. The Union argues that, as the issuance of a letter
requirement is not a disciplinary action, it does not interfere with
management's right to discipline employees.
The Union also contends that the requirement of the provision that
the Agency "caution an employee before requiring a medical certificate
is based upon a mere suspicion of sick leave abuse and not proof of such
abuse." Id. Relying on Article 41, section 10 of the parties'
agreement, the Union argues that the burden of proof is on the Agency to
sustain a charge of sick leave abuse. The Union argues that Article 41,
section 10 preserves the Agency's right to request a medical certificate
when the Agency has evidence or a reasonable cause to believe an
employee "did not meet the legal criteria for sick leave use." Id.
A. The Provision Directly Interferes with the Agency's Right to
Discipline Employees under Section 7106(a)(2)(A) of the Statute
The provision would require the Agency to take several actions prior
to requiring an employee suspected of abusing or using excessive sick
leave to provide a supporting medical certificate for a sick leave
request or placing the employee on sick leave restriction. The first
sentence of the provision would require the Agency to give an employee
"suspected of abusing or using excessive sick leave" a written warning
providing the employee with the following information: (1) the fact
that the Agency believes the employee has a "questionable" sick leave
record; (2) the Agency's reasons for suspecting sick leave misuse or
abuse; and (3) the level of improvement that the Agency determines is
necessary to remove its suspicion. The second sentence of the provision
would require the Agency to inform an employee that the failure to
improve his or her sick leave record will result in a requirement that
all future requests for sick leave be supported by medical
certification. The final sentence of the provision requires the Agency
to give the employee written notice that he or she is required to
support all future sick leave requests with medical certification.
In sum, in situations where the Agency has reason to believe that an
employee is misusing or abusing sick leave, the provision requires the
Agency to first provide the employee with written notice that a medical
certificate may be required for each subsequent absence due to sick
leave and, second, to provide the employee with an opportunity to
improve. If no improvement is noted, the provision requires the Agency
to give the employee written notice that all future requests for sick
leave must be supported by a medical certificate. The effect of the
provision is to require the Agency to provide written notice 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
supporting medical certificates for all sick leave requests.
Because the use of leave restrictions 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. See 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).
Under the provision in this case, management could not require a
medical certificate for suspected misuse or abuse of sick leave unless
an employee had been given written notice and an opportunity to comply
with the Agency's stated level of improvement, regardless of the
circumstances prompting the notice. In other words, for the incidents
giving rise to a suspicion of sick leave abuse, the provision prevents
the Agency from taking any action other than written warnings and
substitutes these warnings for whatever form of sick leave restriction
the Agency may want to impose. Under the provision, management would
not be able to place an employee in a restricted leave category based on
the incidents of suspected sick leave misuse or abuse. Because sick
leave restriction is, as a practical matter, a precondition of
management's decision to impose discipline on an employee for misuse or
abuse of sick leave, the provision would effectively preclude management
from responding to the employee's improper use of sick leave through
discipline. See Army Information Systems Command, 42 FLRA No. 78
(1991), slip op. at 21-22 (Because "the (a)gency would not be able to
place an employee in a restricted leave use category based on previously
approved leave(,) . . . management would be precluded from responding to
an employee's inappropriate use of leave through discipline."). We
conclude, therefore, consistent with Army Information Systems Command,
that the provision directly interferes with management's right to
discipline under section 7106(a)(2)(A).
In finding that the provision directly interferes with management's
right to discipline, we note the Union's contention that the provision
does not interfere with this management right because the issuance of
the "Letter of Requirement" required by the provision does not
constitute disciplinary action under the parties' agreement. Petition
at 2. We reject this contention. Regardless of whether the parties'
agreement provides that a letter of requirement is not a disciplinary
action, the provision's requirement that the Agency issue written notice
prior to placing employees on sick leave restriction places a
substantive precondition on the Agency's ability to impose sick leave
restriction and, therefore, directly interferes with management's right
to discipline.
B. The Provision Is Not an Appropriate Arrangement under Section
7106(b)(3) of the Statute
Having determined that the provision directly interferes with
management's right to discipline employees under section 7106(a)(2)(A)
of the Statute, we next address the Union's contention that the
provision is nevertheless negotiable as an appropriate arrangement under
section 7106(b)(3) of the Statute. To determine whether a provision
constitutes an appropriate arrangement, we must decide whether a
provision is intended to be an arrangement for employees adversely
affected by the exercise of a management right, and whether the
provision is appropriate or inappropriate because it excessively
interferes with the exercise of a management right. National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).
We find that the provision constitutes an arrangement for employees
adversely affected by management's right to discipline employees because
it would protect employees who management believes are misusing or
abusing sick leave from being required to support their sick leave
requests with medical certificates or being placed on sick leave
restriction without first receiving written caution and an opportunity
to remove management's suspicion that sick leave is being misused or
abused.
Having concluded that the provision in dispute constitutes an
arrangement, we now consider whether it is an appropriate arrangement.
To determine whether the proposed arrangement contemplated by the
provision proposed is appropriate within the meaning of section 7106(
b)(3), as asserted by the Union, we must examine whether the negative
impact on management's right to discipline employees under section
7106(a)(2)(A) outweighs the benefits conferred by the provision on
employees. See American Federation of Government Employees, Local 2022
and U.S. Department of the Army, Headquarters, 101st Airborne Division,
Fort Campbell, Kentucky, 40 FLRA 371, 394 (1991); Kansas Army National
Guard, 21 FLRA at 33.
The Union states that the provision will benefit employees, in
instances where excessive sick leave usage or abuse is suspected but not
proven, by requiring management to caution employees before requiring
them to support a request for sick leave with a medical certificate.
The Agency asserts that this benefit would have a "substantial impact"
on the right of the Agency to require evidence to support requests for
sick leave because the provision "conditions the employer's right to
require the employee to furnish a medical certificate in support of any
absence that is to be charged as sick leave." Statement at 2, 4.
Although the provision relieves employees of the need to support sick
leave requests with medical certificates for the initial incidents of
suspected sick leave misuse or abuse, the provision would preclude the
Agency from placing employees on sick leave restriction based upon those
incidents. Because the provision would preclude management from
imposing sick leave restriction for the initial incidents of suspected
sick leave abuse, it would effectively preclude management from
disciplining employees in those instances. See Army Information Systems
Command, 42 FLRA No. 78 (1991), slip op. at 21-22. By thus precluding
management from disciplining employees in those instances, we find that
the burden imposed by the provision on management's right to discipline
outweighs the benefit to employees derived from the provision. On
balance, therefore, we conclude that the provision excessively
interferes with management's right to discipline under section
7106(a)(2)(A) of the Statute. Accordingly, we find that the provision
does not constitute a negotiable appropriate arrangement under section
7106(b)(3) of the Statute.
We conclude that the provision is outside the duty to bargain because
it excessively interferes with management's right to discipline
employees under section 7106(a)(2)(A) of the Statute. Accordingly, we
will dismiss the Union's petition for review. In view of our
determination, we find it is unnecessary to address the Agency's
additional arguments concerning the negotiability of the provision.
The Union's petition for review is dismissed.
(1) The parties do not specifically define the term "letter
requirement." It appears from the record, however, that the term refers
to the written notice to employees, required under the provision,
informing the employees that they will be required to support future
requests for sick leave with medical certificates.
(2) Article 41, section 10 and other relevant provisions of the
parties' agreement are found in the Appendix to this decision.
Sections 1. Disciplinary actions are defined as oral admonishments,
letters of admonishments, and adverse action used to correct employee
misconduct or infractions of the Employer's rules and regulations. They
do not include the following types of actions:
d. Letters of Warning, Caution or Requirement.
Section 10. Nothing in the proceeding section of this Article
precludes the Employer from requiring evidence from the employee (which
may be personal certification on an (Standard Form) 71 Application for
Leave form or a medical certificate at the employee's option) supporting
sick leave absences of three (3) consecutive workdays or less when the
Employer presents evidence to the employee, or explains the reasonable
cause to believe, that the employee did not meet the legal criteria for
sick leave use.
42 FLRA 1112
42 FLRA NO. 78
Case No. 0-NG-1723
National Federation of Federal Employees, Local 405
(Union)
U.S. Department of The Army, Army Information Systems Command, St.
Louis, Missouri
(Agency)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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) and involves 21
proposals. /1/
For the following reasons, we conclude that Proposal 4, which
requires the Agency to delay action to implement a contracting-out
decision until a final Agency decision has been reached on an appeal, is
negotiable. Proposal 6, which requires the Agency not to separate
employees until completion of negotiations over contracting out, is
negotiable. Proposal 7, which prohibits the Agency from assigning
employees to the supervision of non-Federal employees, is nonnegotiable
because it directly interferes with the Agency's right to assign work
under section 7106(a)(2)(B) of the Statute, and the Union has not
asserted that it is an appropriate arrangement under section 7106(b)(
3). Proposal 10, which concerns qualification requirements, is
dismissed because it is not sufficiently specific to provide a basis for
determining its negotiability.
Proposals 12, 13, 14, 16, and 17, which relate to granting leave, are
nonnegotiable because they directly interfere with the Agency's right to
assign work under section 7106(a)(2)(B), and the Union has not asserted
that they constitute appropriate arrangements. Proposal 19, which
provides for changing absence without leave (AWOL) to another type of
leave, if it is later determined that the absence was excusable, is
negotiable. Proposal 20, which provides that approved leave or leave
without pay will not be used as a basis for disciplining an employee is
nonnegotiable because it directly interferes with management's right to
discipline, and the Union has not asserted that it is intended as an
appropriate arrangement.
Proposal 21, which entitles employees who are permitted to continue a
temporary assignment beyond the termination date to retain any pay
received for such duties, is negotiable. Proposal 22, which reserves to
the Union the right to bargain on the subject of overtime, is
negotiable. Proposal 23, which requires the Agency not to assign
overtime when employees are unable to work for medical reasons,
justifiable emergencies, or unavoidable personal situations, is
negotiable. Proposal 24 is negotiable to the extent that it requires
the Agency to grant general schedule employees compensatory time off
instead of overtime. To the extent it concerns wage grade employees,
Proposal 24 is dismissed because there is no dispute between the parties
that wage grade employees are not entitled to compensatory time off.
Proposal 25, which mandates that quality step increases be effective on
the date the supervisor determines to make such an award, is dismissed
because it is not sufficiently specific for us to determine its
negotiability. Proposal 26, which requires that the criteria for awards
be the same as the criteria for performance ratings, is negotiable.
Proposal 27, which acknowledges that the Union may represent
employees and file complaints under EEO procedures, is negotiable.
Proposal 28, which requires the Agency to allocate Government quarters
to supervisors before employees when there are not enough quarters
available at a temporary duty site, is negotiable. Proposal 30, which
prohibits changes to performance standards during a rating period that
are based on an employee's ability to meet or exceed the requirements,
is nonnegotiable because it directly interferes with management's right
to direct employees and assign work under section 7106(a)(2)(A) and (B).
Proposal 32, which mandates that any presumptive rating will be at
least equal to the employee's last rating, is nonnegotiable because it
is inconsistent with a Government-wide regulation.
Article 11, Commercial Activities Program, Section 1
Action to implement any decision to contract out services will
be stayed pending a final agency decision on an appeal.
A. Positions of the Parties
The Agency argues that Proposal 4 contains "the identical
restriction" as Proposal 2, which was found nonnegotiable by the U.S.
Court of Appeals for the District of Columbia Circuit in Department of
the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 883 (D.C.
Cir. 1988) (IRS v. FLRA), rev'd and remanded as to other matters, 110 S.
Ct. 1623 (1990) (Treasury). Statement of Position at 5. The Agency
asserts that, like Proposal 2 in IRS v. FLRA, Proposal 4 would require
the Agency "to postpone implementing its decision to contract out
services when they are needed . . . ." Statement of Position at 5. The
Agency argues that this delay renders Proposal 4 nonnegotiable.
The Union argues that Proposal 4 "may be viewed as a procedure" under
section 7106(b)(2) of the Statute. Petition for Review at 2. In
addition, the Union argues that it "may also be viewed as an appropriate
arrangement" under section 7106(b)(3) because "OMB Circular A-76
requires appeals of this nature to be decided within thirty days(.)" Id.
Finally, the Union argues that the decision of the United States Court
of Appeals for the District of Columbia Circuit in Department of
Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir.
1989) (BLM v. FLRA) supports its position that Proposal 4 is negotiable.
B. Analysis and Conclusions
The Union asserts that Proposal 4 "is not tied to the expiration of
the grievance and arbitration procedure, which . . . can take years.
Instead, the proposal requires a delay of contracting out pending a
final Agency decision on the A-76 appeal." Reply Brief at 2. As the
Union's explanation of how Proposal 4 would apply is not inconsistent
with the plain wording of the proposal, we find that the appeal referred
to in the proposal encompasses only appeals under OMB Circular A-76 and
does not include appeals under the parties' negotiated grievance
procedure. /3/ That is, Proposal 4 requires that the Agency stay action
to implement any decision to contract out pending a final Agency
decision on an appeal under OMB Circular A-76. Consequently, contrary
to the Agency's argument, Proposal 4 does not contain the "identical
restriction" as Proposal 2 in IRS v. FLRA, which required management to
delay implementation of contracting-out decisions until the grievance
procedure was exhausted. Statement of Position at 5.
Similarly, there is no basis on which to conclude that Proposal 4 is
intended generally to require the Agency to comply with Circular A-76 in
making contracting-out determinations or to enable the Union to
challenge the Agency's compliance with the Circular through a negotiated
grievance procedure. Compare National Treasury Employees Union and U.S.
Department of the Treasury, Internal Revenue Service, 42 FLRA No. 31
(1991) (NTEU II) (Authority concluded on remand that Circular A-76
constitutes an "applicable law," within the meaning of section
7106(a)(2) of the Statute, and that a proposal enabling the union to
challenge alleged violations of the Circular through negotiated
grievance procedure did not directly interfere with the agency's right
to make determinations regarding contracting out). Proposal 4 is,
therefore, distinguishable from the proposal addressed by the Supreme
Court in Treasury and the Authority in NTEU II. Nevertheless, by
requiring the Agency to delay implementing determinations regarding
contracting out until the internal appeals procedure in Circular A-76
has been exhausted, Proposal 4 at least implicitly requires the Agency
to comply with that procedure in resolving appeals. The Agency does not
assert that the proposal is nonnegotiable on this basis. However,
consistent with NTEU II and for the reasons fully stated therein, we
conclude that, insofar as Proposal 4 requires the Agency to comply with
the internal appeals procedure in the Circular, it does not directly
interfere with the Agency's right to make determinations regarding
contracting out.
As noted previously, the Agency asserts that the proposal interferes
with the Agency's right to make determinations regarding contracting out
by delaying, in some situations, the implementation of its
determinations. However, it is not clear that the proposal directly
interferes with the Agency's right to contract out on this basis.
Compare U.S. Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414
(D.C. Cir. 1988) (proposal which required agency to delay implementation
of a new program for 6 months pending a study to determine program's
impact on bargaining unit employees held to directly interfere with
management's rights under 7106(a) and (b)(1)) with BLM v. FLRA, 873 F.2d
at 1511 (proposal requiring a 10-day delay in effecting disciplinary
suspensions held not to directly interfere with management's right to
assign work). Nevertheless, due to the circumstances of this case, and
consistent with the Union's argument that Proposal 4 is an appropriate
arrangement, we will assume such interference for the purposes of this
decision. We note that insofar as Proposal 4 directly interferes with
management's right to contract out, it does not constitute a negotiable
procedure under section 7106( b)(2) of the Statute. See, for example,
National Treasury Employees Union and U.S. Department of the Treasury,
Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 57 (1991)
(NTEU and Treasury), petition for review filed sub nom. U.S. Department
of the Treasury, Office of Chief Counsel, Internal Revenue Service v.
FLRA, No. 91-1316 (D.C. Cir. July 5, 1991).
In determining whether a proposal constitutes an appropriate
arrangement under section 7106(b)(3), we first determine whether the
proposal is intended as an arrangement for employees adversely affected
by the exercise of a management right. If the proposal is intended as
an arrangement, we examine whether the arrangement is appropriate
because it does not excessively interfere with the exercise of the
management right. National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas
Army National Guard).
The Union asserts that Proposal 4 "may be viewed" as an appropriate
arrangement. Petition for Review at 2. We note that a management
decision to contract out could result in employees being assigned to new
positions or laid off. It is clear, and undisputed, that either
consequence adversely affects bargaining unit employees. We note also
that OMB Circular A-76 defines "(a)dversely affected" Federal employees
as "employees identified for release from their competitive level by an
agency . . . as a direct result of a decision to convert a Government
commercial activity to contract performance." OMB Circular A-76 at I-18.
Consequently, we conclude that Proposal 4 is intended as an arrangement
to mitigate the adverse effects on unit employees of the exercise of
management's right to contract out.
We turn now to the issue of whether Proposal 4 excessively interferes
with management's right to contract out. To resolve this issue, we
balance the benefit to employees afforded by Proposal 4 against the
burden placed by the proposal on the exercise of management's right to
contract out. Kansas Army National Guard, 21 FLRA at 31-32.
Proposal 4 effectively requires that management delay the
implementation of any decision to contract out until A-76 appeal
procedures are complete. Implementation of contracting out may result
in the reassignment and/or lay off of employees. The possible loss of
employment, and the resulting disruption to employees' lives and those
of their families, that occurs as a result of a layoff is severe.
Similarly, reassignments may result in demotions and, at a minimum,
require that employees assume new duties. If, after instituting
reassignment or lay-off procedures, the Agency cancelled a
contracting-out plan as a result of an A-76 appeal, employees would have
suffered needless disruption. Consequently, staying action to implement
a contracting-out decision until there is a final Agency decision on an
A-76 appeal benefits employees by avoiding unnecessary disruption to
employees and their families.
On the other hand, Proposal 4 affects management's exercise of its
right to make determinations regarding contracting-out in some
situations by delaying implementation of such determinations. The delay
is not extensive, however. Under OMB Circular A-76, "(t)he appeals
procedure must . . . provide for a decision within 30 calendar days . .
. ." OMB Circular A-76 (Revised) at I-14 (Aug. 1983). Although the time
period in which to render a decision may be extended, such extension is
"to a maximum of 30 working days . . . (.)" Id. at I-15. Consequently,
including the 15 working days allowed for filing an appeal, the maximum
delay encompassed by Proposal 4 would be 45 working days. Further, the
proposal would not require the Agency to exhaust the entire appeal
period available under the Circular. Instead, the Agency would be free
under the proposal to decide an appeal in less time than allowed by the
Circular. Moreover, the possibility of reversal is implicit in the
right to appeal. As such, Proposal 4 could benefit the Agency by
avoiding disruption to its operations caused by instituting reassignment
and layoff procedures which later prove unnecessary as a result of a
successful A-76 appeal.
Weighing the benefits afforded to employees by the proposal against
the burden on the Agency of delaying implementation of a contracting-out
decision for a maximum of 45 working days, we find that the benefit to
employees is greater than the burden on management. In these
circumstances, we conclude that Proposal 4 does not excessively
interfere with management's right to contract out and is negotiable as
an appropriate arrangement under section 7106(b)(3) of the Statute.
Compare National Federation of Federal Employees, Local 1214 and
Department of the Army Health Services Command, Moncrief Army Community
Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188-90 (1991)
(proposal delaying implementation of new requirements for emergency
medical technician certification for 6 years excessively interfered with
management's rights to assign employees and work).
Article 11, Commercial Activities Program, Section 6
Employees will not be separated or displaced until the
completion of negotiations. This delay shall include any time
consumed in negotiability appeals.
A. Positions of the Parties
The Agency asserts that Proposal 6 interferes with its rights to
contract out, layoff and to determine the personnel by which agency
operations shall be conducted. According to the Agency, the proposal
would "prohibit management from removing employees from positions that
were contracted out until all negotiations have been completed,
including negotiability disputes." Statement of Position at 5. The
Agency claims that the proposal does not provide management with any
exceptions for "implementing its decision to separate or displace
employees for compelling need reasons or for overriding exigencies(,)"
as provided by Authority precedent. Id. at 6. In addition, the Agency
claims that by being required "to keep employees on the payroll, even
after it has been determined to contract out their positions . . . ,
management's permissive rights to determine the numbers(,) types, and
grades of employees assigned to a work project are violated." Id.
The Union states that Proposal 6 "relates both to a procedure and
appropriate arrangements for employees in the event of a contracting-out
action." Petition for Review at 2. The Union maintains that the
proposal calls for a preservation of the status quo pending the outcome
of negotiations and "should be read in the context of existing law,
which . . . allows an Agency to avoid this obligation in cases of
overriding need." Reply Brief at 2.
B. Analysis and Conclusions
The Union asserts that the intent of Proposal 6 is to preserve the
status quo, to the extent permitted by law, pending the outcome of
negotiations. Reply Brief at 2. The Union's statement is consistent
with the wording of the proposal. Therefore, for the purposes of this
decision, we conclude that Proposal 6 requires only that the Agency
fulfill its bargaining obligations, as appropriate under the Statute,
before separating or displacing employees.
The Authority has long held that proposals that require an agency to
maintain the status quo during the bargaining process are negotiable
procedures under section 7106(b)(2) of the Statute. In Moncrief, for
example, Proposal 6 required that the agency delay implementation of its
emergency medical technician certification program until the Authority
made negotiability determinations on any agency allegation of
nonnegotiability. 40 FLRA at 1202. Noting that the bargaining process
includes the resolution of negotiability procedures through the
Authority's procedures, we concluded that Proposal 6 in Moncrief
required the agency only to satisfy its bargaining obligations under the
Statute and that Proposal 6 was a negotiable procedure.
In this case, Proposal 6 prevents the Agency from separating or
displacing employees until the bargaining process, including any
negotiability appeals, is completed. Proposal 6 requires only that the
Agency satisfy its obligation to bargain with the Union under the
Statute before separating or displacing employees. Consequently,
consistent with our holding in Moncrief, we find that Proposal 6 is a
negotiable procedure under section 7106(b)(2) of the Statute. See also
National Weather Service Employees Organization and U.S. Department of
Commerce, National Oceanic and Atmospheric Administration, National
Weather Service, 37 FLRA at 392 (1990).
Article 11, Commercial Activities Program, Section 7
. . . no bargaining unit employee will be under the supervision
of a person who is not an employee of the Federal Government.
(The ellipsis appears in the original proposal.)
A. Positions of the Parties
The Agency contends that Proposal 7 violates its rights to assign
work and determine the personnel who will conduct the activity's
operations by restricting its ability "to require bargaining unit
employees to carry out tasks assigned to them by 'a person who is not an
employee of the Federal Government' and preclud(ing) the activity from
requiring non-Government employees to perform supervisory functions in
connection with the bargaining unit." Statement of Position at 7.
The Union contends that 5 U.S.C. Section 2105 /4/ "mandates that an
individual, in order to be a (F)ederal employee, be supervised by
another (F)ederal employee." Petition for Review at 2. In reply to the
Agency's assertion that the proposal interferes with management's right
to assign work, the Union asserts that this right is not "unbridled,"
but must be exercised "'in accordance with applicable laws'" under
section 7106 of the Statute. Reply Brief at 2.
B. Analysis and Conclusions
Proposal 7 prohibits the Agency from determining that individuals who
are not officers or employees of the Federal Government may supervise
bargaining unit employees. Provisions restricting an agency's ability
to require unit employees to carry out tasks assigned by individuals who
are not officers or employees of the Federal Government directly
interfere with the right to assign work under section 7106(a)(2)(B).
See American Federation of Government Employees, AFL-CIO, Local 1808 and
Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1250-51
(Provision 8) (1988) (Sierra Army Depot).
Because Proposal 7 would prohibit the Agency from assigning employees
to the supervision of non-Federal employees, we conclude, based on the
rationale set forth in Sierra Army Depot, that Proposal 7 directly
interferes with management's right to assign work under section
7106(a)(2)(B). In view of this disposition, we need not reach the
Agency's argument that Proposal 7 directly interferes with its right to
determine the personnel who will conduct the Agency's operations. In
the absence of a claim by the Union that Proposal 7 is an appropriate
arrangement under section 7106(b)(3) of the Statute, we find that the
proposal is nonnegotiable.
Furthermore, the Union's reliance on 5 U.S.C. Section 2105 is
misplaced. By its plain wording, 5 U.S.C. Section 2105 merely defines
"employee" for Title 5 coverage. Under that definition, an "employee"
is "subject to the supervision" of an individual who is "appointed in
the civil service." Contrary to the Union's argument, 5 U.S.C. Section
2105 does not mandate that Federal employees be supervised directly by
other Federal employees. Put differently, there is nothing in 5 U.S.C.
Section 2105 which precludes an employee from being under the direct
supervision of a contractor who is in turn working under the direction a
Federal employee. Accordingly, we reject the Union's assertion that
Proposal 7 "merely states what the law already requires." Petition for
Review at 2.
Article 12, Reduction in Force, Section 6a(4)(a)
The employer will waive qualification requirements . . .
(The ellipsis appears in the original proposal.)
A. Positions of the Parties
In support of its contention that Proposal 10 is nonnegotiable, the
Agency argues that the proposal "clearly provides that all qualification
requirements will be waived()" in a reduction-in-force (RIF). Statement
of Position at 8. The Agency asserts that the waiver requirement
prevents management, when "filling vacant positions in response to a
RIF(,)" from determining the qualifications needed by employees to fill
existing vacancies and, as such, violates management's rights to assign
employees under section 7106(a)(2)(A) and to select employees under
section 7106(a)(2)(C). Id. The Agency contends that as Proposal 10
"requires the waiving of . . . all qualifications(,)" it "must be found
nonnegotiable and to excessively interfere with management's rights to
assign and select employees." Id. at 9 (emphasis in original).
The Union contends that Proposal 10 "is not intended to compel the
waiving of qualification requirements in situations where it is not
already allowed by government-wide regulations." Petition for Review at
2.
B. Analysis and Conclusions
Proposal 10 addresses Agency waivers of qualification requirements.
However, the wording of the proposal is incomplete, and the
circumstances in which the proposal will operate are not explained.
Further, the parties provide different explanations of the Agency's
obligations under Proposal 10. We note particularly that it is unclear
to what extent, if any, management retains under Proposal 10 the right
to determine the qualifications necessary for a position. Compare
American Federation of Government Employees, Local 2024 and U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 249, 257 (1990) (proposal which required management
to minimize displacement during RIF by a temporary waiver of
qualification requirements for employees whose abilities allowed them to
become at least minimally qualified through training in a short period
was found negotiable as an appropriate arrangement) with American
Federation of Government Employees, AFL-CIO, Local 738 and Department of
the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth,
Kansas, 33 FLRA 380, 382-83 (1988) (proposal establishing procedure for
employee reassignment held to directly interfere with the right to
assign employees because it did not allow agency to determine
qualifications and skills of employees to perform work).
We conclude that Proposal 10 is not sufficiently specific to provide
a basis for determining its negotiability. The parties bear the burden
of creating a record on which the Authority can make a negotiability
determination. A party failing to meet its burden acts at its peril.
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d
886, 891 (D.C. Cir. 1982) (NFFE v. FLRA). On the record before us, we
are unable to assess the proposal's impact on management's rights.
Accordingly, the petition for review of Proposal 10 is dismissed. See
American Federation of Government Employees, Local 1857 and Sacramento
Air Logistics Center, McClellan Air Force Base, California, 34 FLRA 909,
914-15 (1990) (Sacramento Air Logistics Center).
Proposal 12:
Article 14, Leave and Absence, Section 1b, Annual Leave
Leave will be routinely granted by the supervisor. Management
will also accommodate employees (sic) request for advanced annual
leave whenever possible.
Proposal 13:
Article 14, Leave and Absence, Section 2b, Sick Leave
The use of sick leave will ordinarily be approved at the time
of request.
Proposal 14:
Article 14, Leave and Absence, Section 2c, Sick Leave
Sick leave will not ordinarily be denied unless there is a
factual basis to believe that the reason it is requested is false
or would be otherwise prohibited.
Proposal 16:
Article 14, Leave and Absences, Section 2f, Sick Leave
Management will ordinarily grant employee's request (sic)
advanced (sic) sick leave if medical documentation supports such a
need. The request and approval will be in accordance with
appropriate laws, regulations and this Agreement.
Proposal 17:
Article 14, Leave and Absence, Section 3b, Leave for Parental
and Family Responsibilities
. . . extended leave without pay for up to 26 weeks will be
granted whenever possible and when it results in fulfillment of
parental or family responsibilities or the improvement or
protection of an employee's health.
(The ellipsis appears in the original proposal.)
A. Positions of the Parties
The Agency contends that Proposals 12, 13, 14, 16, and 17 "limit the
(Agency's) authority to approve or deny leave and, thus, impinge on
management's right to assign work." Statement of Position at 11. In
support of its position, the Agency cites 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 (1984) (Proposal 4) (Kirtland). According
to the Agency, Kirtland held that "a proposal which would require an
agency to grant an employee's request for leave without regard to the
necessity for that employee's service during the period covered by the
request violates management's right . . . to assign work." Statement of
Position at 11. In addition, the Agency notes that proposals which
restrict an agency's "authority to approve or deny leave" are
nonnegotiable because they require that management consider reasons
other than the need for employees' services in determining whether to
grant leave. Id. at 11-12.
The Agency further argues that the Union's use of the words "whenever
possible," "routinely," and "ordinarily," does not give supervisors
discretion in granting or denying leave. Id. at 12. The Agency asserts
that, despite the qualifying language, the proposals would subject
management's leave and workload determinations "to review in an
arbitration proceeding" in violation of management's right to assign
work. Id.
The Union maintains that Proposals 12, 13, 14, and 16 "reserve to
(m)anagement the required amount of discretion . . . ." Petition for
Review at 3. The Union maintains that as Proposal 17 contains the words
"whenever possible," it gives the Agency the "freedom to determine
whether it is possible to grant the leave based on workload
requirements." Id. The Union also asserts that "(a)ll these proposals
deal with leave procedures." Id.
B. Analysis and Conclusions
1. Proposals 12 and 17
Proposals which place restrictions on an agency's right to determine
when annual leave may be used directly interfere with management's right
to assign work under section 7106(a)(2)(B) of the Statute. See, for
example, American Federation of Government Employees, Local 1513 and
U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak
Harbor, Washington, 41 FLRA 589, 600 (1991) (Provision 2) (provision
requiring that management grant certain annual leave requests held to
directly interfere with management's right to assign work); American
Federation of Government Employees, AFL-CIO, Local 1815 and Army
Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1177 (1987) (Fort
Rucker) (Provision 6) (provision requiring that management grant
employees a reasonable amount of annual leave or leave without pay in
case of death in the immediate family, held to directly interfere with
management's right to assign work).
The first sentence in Proposal 12 provides that employees' annual
leave requests "will be routinely granted . . . ." The sentence does not
provide for any exceptions to the requirement and would apply without
regard to the necessity for employees' services. The second sentence in
Proposal 12 requires that the Agency accommodate employees' requests
that annual leave be advanced before it is earned "whenever possible."
Proposal 17 requires that "whenever possible" management will grant
employees leave without pay (LWOP) for up to 26 weeks "when it results
in fulfillment of parental or family responsibilities or the improvement
or protection of an employee's health."
By requiring that management grant employees' requests to use annual
leave and LWOP, these proposals directly interfere with management's
right to determine when work will be performed. The qualifying language
"whenever possible" does not change the fact that management's
discretion to advance annual leave and to grant LWOP is restricted.
See, for example, National Treasury Employees Union and U.S. Department
of Health and Human Services, Social Security Administration, Office of
Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 353 (1991) (NTEU
and SSA); NTEU and Treasury, 39 FLRA at 50-51. Accordingly, we find
that Proposals 12 and 17 directly interfere with management's right to
assign work under section 7106(a)(2)(B) of the Statute. As these
proposals directly interfere with a management right, they do not
constitute negotiable procedures under section 7106(b)(2) of the
Statute. Id. at 57. In the absence of a claim by the Union that these
proposals are intended as appropriate arrangements under section 7106(
b)(3) of the Statute, we find Proposals 12 and 17 to be nonnegotiable.
2. Proposals 13, 14, and 16
Proposal 13 requires that the Agency "ordinarily" approve sick leave
at the time it is requested. Proposal 14 provides that sick leave will
not "ordinarily" be denied unless there is "a factual basis" for
believing "that the reason it is requested is false or would be
otherwise prohibited." Proposal 16 requires that management "ordinarily"
advance sick leave to an employee if the employee's request is supported
by medical documentation. In addition, Proposal 16 states that the
request and approval of advanced sick leave will be consistent with
appropriate laws, regulations, and the parties' agreement.
Proposals 13, 14, and 16 require that the Agency "ordinarily" approve
employees' requests for sick leave and advance sick leave before it is
earned. None of the proposals makes any exception for workload
requirements or the need for employees' services. As we noted above,
qualifying language such as "ordinarily" does not eliminate the
substantive limitations these proposals place on management's right to
assign work. See, for example, id. at 50-51.
By requiring that management "ordinarily" approve employees' requests
to use and be advanced sick leave, Proposals 13, 14, and 16 directly
interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute. Further, because these proposals directly
interfere with management's right to assign work, they do not constitute
negotiable procedures under section 7106(b)(2) of the Statute. NTEU and
Treasury at 57. In the absence of a claim by the Union that these
proposals are intended as appropriate arrangements under section
7106(b)(3) of the Statute, Proposals 13, 14, and 16 are nonnegotiable.
Compare National Association of Government Employees, SEIU, AFL-CIO, and
Veterans Administration, Veterans Administration Medical Center,
Department of Memorial Affairs, 40 FLRA 657, 678-80 (1991) (Provision 6)
(provision requiring agency to grant sick leave in accordance with
Government-wide regulations constituted an appropriate arrangement).
For the reasons discussed above, Proposals 12, 13, 14, 16, and 17 are
nonnegotiable.
Article 14, Leave and Absences, Section 8, Absence Without
Leave
. . . AWOL will be changed to appropriate leave if it is later
determined that the absence was excusable.
(The ellipsis appears in the original proposal.)
A. Positions of the Parties
The Agency maintains that Proposal 19 limits its discretion in
deciding whether to excuse employee absences which were recorded as
absent without leave (AWOL) and, consequently, directly interferes with
the Agency's right to assign work. The Agency argues that the proposal
does not permit management to make the determination that the leave is
to be excused, but requires management to convert the leave if "the
leave itself was 'excusable.'" Statement of Position at 12. The Agency
argues that Proposal 19 would require it to approve an employee's leave
"regardless of the employer's mission or the necessity for the
employee's presence, if the leave is 'excusable.'" Id.
The Union maintains that it is "(w)ell established case law shows
that management must be reasonable in charging an employee with AWOL."
Petition for Review at 3. Relying on Foster v. Dept. of Health and
Human Services, 18 M.S.P.R. 339 (1983), the Union asserts that an AWOL
charge automatically becomes unreasonable when an employee is able to
demonstrate that his absence was excusable. Id.
B. Analysis and Conclusions
Proposal 19 requires the Agency to convert AWOL to an appropriate
form of approved leave, if it is later determined that an employee's
absence was excusable. Nothing in the proposal supports the Agency's
conclusion that it will be precluded from determining whether AWOL was
"excusable." We read the wording "if it is later determined" as
preserving management's right to make the determination whether an
absence which resulted in an AWOL charge was excusable. Further,
nothing in the proposal prevents the Agency from considering the
Agency's mission and the necessity of the employee's services in
deciding whether an employee's absence was excusable.
We conclude that Proposal 19 does not restrict management's
discretion to approve or deny leave or to determine whether AWOL was
improperly charged. Accordingly, we conclude that Proposal 19 does not
directly interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute. No other basis for finding Proposal 19
nonnegotiable is argued or is apparent to us. Consequently, Proposal 19
is negotiable. Compare National Federation of Federal Employees, Local
15 and U.S. Army Armament Munitions and Chemical Command, Rock Island
Arsenal, Illinois, 19 FLRA 48, 50-51 (1985) (Proposal 2) (proposal
providing substantive criteria for management to apply in determining
whether employees should be charged with AWOL found to prevent the
agency from taking disciplinary action against employees based on AWOL
and, therefore, to directly interfere with management's right to
discipline employees under section 7106(a)(2)(A)).
Article 14, Leave and Absences, Section 9
Once leave or leave without pay has been approved, its use will
not be the basis for disciplinary actions or placing the employee
in a restricted leave use category, unless it is determined that
the employee misrepresented the need for leave.
A. Positions of the Parties
The Agency argues that Proposal 20 "establishes specific criteria for
management's use in determining whether to discipline an employee for
leave abuse()" and, therefore, interferes with management's right to
discipline under section 7106(a)(2)(A) of the Statute. Statement of
Position at 15. According to the Agency, the Authority has found
proposals nonnegotiable which established specific criteria for
management to apply in imposing discipline. The Agency argues that the
restrictions in Proposal 20 prohibit management from issuing a leave
restriction letter if management has previously approved sick leave and,
in effect, requires that "an employee must take unapproved leave before
a sick leave restriction letter can be issued." Id.
The Union asserts only that Proposal 20 "is not intended to have any
different effect than the long-standing rule that an agency may not take
an action against an employee based upon the use of leave which has been
previously approved." Petition for Review at 3. In support, the Union
cites Williams v. Department of the Army, 24 M.S.P.R. 537 (1984)
(Williams).
B. Analysis and Conclusions
Proposals that prevent management from taking disciplinary action
against employees directly interfere with management's right to
discipline under section 7106(a)(2)(A) of the Statute. See 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)
(Robins AFB) petition for review filed sub nom. U.S. Department of the
Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990) (proposal
providing that employees would not receive disciplinary action for
failing to report to work timely when a security gate malfunctioned held
to directly interfere with the right to discipline employees).
Proposal 20 prevents the Agency from using approved leave, including
leave without pay (LWOP), as the basis for disciplinary actions or
placing an employee in "a restricted leave use category(.)" By
preventing management from basing disciplinary action on approved leave,
the first part of the proposal directly interferes with the Agency's
right to discipline employees. The remaining question is whether the
proposal's prohibition against using approved leave to place an employee
in a restricted leave use category also directly interferes with
management's right to discipline.
Initially, we note that Proposal 20 does not define "a restricted
leave use category(.)" The Agency asserts that the proposal "prohibits
the (Agency) from, after approving an employee's request for sick leave
every Monday for six months, issuing a leave restriction letter."
Statement of Position at 15. According to the Agency, "(a) leave
restriction letter imposes more stringent requirements on employees in
requesting and justifying sick leave usage." Id. Although the Agency
discusses only sick leave, Proposal 20 does not state, and the Union has
not asserted, that the proposal is limited to restrictions on the use of
sick leave. Accordingly, we find, for the purposes of this decision,
that a restricted leave use category means that management has limited
the situations in which it will approve an employee's requests to use
annual leave, sick leave, and LWOP.
The issue before us is whether restricting employees' use of leave
constitutes a disciplinary action within the meaning of section 7106(
a)(2)(A) of the Statute. For the following reasons, we find that
management's right to discipline includes placing an employee in a
restricted leave use category.
In granting sick leave, annual leave, and LWOP, the Office of
Personnel Management (OPM) has provided guidance to agencies in the FPM.
Granting sick leave is appropriate "when an employee is physically
incapacitated to do his job, or for related reasons." FPM chapter
630-11, subchapter 4 (Sept. 30, 1968). Related reasons include:
(1) Exposure to a contagious disease that would endanger the
health of coworkers;
(2) Presence of contagious disease in an employee's immediate
family which requires his personal care; (and)
(3) Dental, optical, or medical examination or treatment."
Id. Annual leave, according to OPM, is "a benefit" and employees may
use it for "rest and recreation" and "for personal and emergency
purposes." FPM chapter 630-3, subchapter 3-4 (Oct. 29, 1975).
Determining when annual leave is taken, however, is a supervisory
responsibility and the decision will "generally be made in the light of
the needs of the service rather than solely on the desires of the
employee." Id. The FPM provides that LWOP, "a temporary nonpay status,"
may be granted upon an employee's request. FPM chapter 630-27,
subchapter 12 (July 24, 1986). Generally, employees' requests for leave
are approved by agencies based on the reasons furnished by employees
without further inquiry. However, over a period of time an agency may,
after examining an employee's leave record, conclude that an employee
has consistently failed to obtain advance approval for leave, that an
employee's use of leave has resulted in the employee not being available
for duty as required, or that an employee's use of leave is inconsistent
with FPM requirements.
In FPM chapter 752, subchapter 3(b), OPM advises agencies on
appropriate action to correct an employee's use of leave. According to
OPM, the Agency should:
-- inform() the employee that his or her attendance record is
unsatisfactory and needs to be improved; and
-- warn() the employee that further sick leave will not be
approved without sufficient medical documentation and that annual
leave and leave without pay will be approved only if requested in
advance and the employee's services are not essential during the
period for which the leave is requested.
If the employee is then absent without prior approval or proper
medical documentation, OPM recommends that the agency record the
absence as AWOL, which may serve as a basis for adverse action.
FPM chapter 752, subchapter 3(b) (Dec. 31, 1980) (emphasis in original).
Although OPM recommends that employees' use of leave be restricted
before disciplinary action is taken, there is nothing in the regulations
which precludes agencies from disciplining employees based on approved
leave. However, the necessity of following OPM's advice is underscored
by the holding of the Merit Systems Protection Board (MSPB) that
approved leave is generally not a valid basis for removal. In the case
cited by the Union, Williams, 24 M.S.P.R. 537 (1984), an agency approved
annual leave requested by an employee despite the employee's failure to
schedule leave in advance. The agency argued that although it had
approved the improperly requested leave, it should not be barred from
relying on the employee's excessive use of leave to support its removal
of the employee. MSPB rejected this argument, reaffirming its holding
"that unsatisfactory attendance generally cannot constitute a valid
basis for removal when the agency has granted leave covering the
employee's absences." Id. at 541. See also Cook v. Department of the
Army, 18 M.S.P.R. 610 (1984); Watson v. U.S. Postal Service, 13 M.S.P.
R. 56 (1982).
Considering OPM's advice to agencies and MSPB's holding that approved
leave is generally not a basis for disciplinary action, leave
restrictions are, in practical terms, a precondition of an agency's
decision to discipline an employee based on the employee's use of leave.
Under Proposal 20, the Agency would not be able to place an employee in
a restricted leave use category based on previously approved leave.
Because the Agency generally also would not be able to take disciplinary
action based on approved leave, management would be precluded from
responding to an employee's inappropriate use of leave through
discipline.
Accordingly, Proposal 20 directly interferes with management's right
to discipline under section 7106(a)(2)(A) of the Statute. In the
absence of an assertion by the Union that Proposal 20 constitutes an
appropriate arrangement under section 7106(b)(3), we conclude that
Proposal 20 is nonnegotiable.
Article 15, Pay, Section 5b
Employees continuing to receive pay for temporary assignments
to a higher grade or duties will be entitled to the pay they
received for those duties after the (")not to exceed(") date if
administrative errors or delays fail to remove the employee from
these duties and the higher payments are not stopped, if the
employee continues to be assigned or allowed to perform those
duties.
A. Positions of the Parties
According to the Agency, Proposal 21 provides "that an administrative
error or delay in terminating a temporary promotion will result in the
continuation of the temporary promotion(,)" possibly beyond the 2-year
limitation on temporary promotions established by 5 C.F.R. Section
335.102(f)(1) and FPM chapter 335, subchapter 1-5. /5/ Statement of
Position at 16. Therefore, the Agency asserts that the proposal
violates Government-wide regulations and is nonnegotiable under section
7117(a)(1) of the Statute.
The Union argues that the proposal does not "unlawfully require the
extension of temporary promotions." Petition for Review at 3. Further,
the Union contends that Proposal 21 "protects employees against efforts
to recoup money erroneously paid to them on temporary promotions(.)" Id.
B. Analysis and Conclusions
We reject the Agency's argument that Proposal 21 would result in the
continuation of temporary promotions beyond the limits in 5 C.F.R.
Section 335.102(f)(1) and FPM chapter 335, subchapter 1-5. As plainly
worded, the proposal does not require that temporary promotions be
extended beyond 2 years or for any specific period of time.
Consequently, the Agency's reliance on Department of the Army, New
Cumberland Army Depot and American Federation of Government Employees,
Local 2004, 21 FLRA 968, 972 (1986) (New Cumberland Army Depot) is
misplaced. In New Cumberland Army Depot, the Authority found an
arbitration award deficient to the extent that it ordered a grievant
temporarily promoted retroactively for a period in excess of the 2-year
limit established by regulation. As noted, Proposal 21 includes no such
requirement. Accordingly, we find that Proposal 21 does not conflict
with 5 C.F.R. Section 335.102(f)(1) and FPM chapter 335, subchapter 1-5.
As the Agency offers no other arguments that the proposal is
nonnegotiable, and none are apparent to us, we conclude that Proposal 21
is negotiable.
Article 16, Overtime, Section 1
The Union will be afforded the opportunity to negotiate that
requirement as necessary.
A. Positions of the Parties
The Agency asserts that Proposal 22 interferes with management's
right to assign work by requiring the Agency to negotiate "over the
decision to assign overtime." Statement of Position at 17. The Agency
claims that the words "as necessary" allow the Union to be involved in
the assignment of work. The Agency also argues that the proposal is
"too vague" to permit the Authority to make a negotiability
determination. Id.
The Union maintains that the proposal "merely states that the Union
will be afforded the opportunity to negotiate concerning mandatory
overtime." Petition for Review at 3. The Union claims that the phrase
"as necessary" means that the Union is reserving its bargaining rights
on the subject of overtime "'in accordance with applicable law.'" Id.
B. Analysis and Conclusions
We reject the Agency's assertion that Proposal 22 is too vague to
permit the Authority to determine its negotiability. We find that the
word "requirement" in Proposal 22 refers to overtime, which is the
subject of Article 16. Our reading is consistent with the Union's
statement that it seeks to negotiate over mandatory overtime.
Accordingly, we find that Proposal 22 requires that the parties
negotiate over assignment of overtime work. Compare Sacramento Air
Logistics Center, 34 FLRA at 914-15 (proposal consisting of "(a)ny other
proposals deemed appropriate" found not sufficiently specific to provide
a basis for determining its negotiability).
The Union also asserts that it intends to negotiate overtime "'in
accordance with applicable law.'" Petition for Review at 3. As this
statement is consistent with the wording of Proposal 22, we adopt it for
the purposes of this decision. Read in this manner, Proposal 22
requires only that the Agency bargain concerning overtime to the extent
required by Statute. We have held that proposals which are merely
restatements of an agency's duty to bargain under the Statute are
negotiable. See, for example, International Federation of Professional
and Technical Engineers, Local 128 and U.S. Department of the Interior,
Bureau of Reclamation, 39 FLRA 1500, 1503-04 (1991) (Proposal 1)
(proposal requiring that management delay implementation of drug testing
until negotiations were satisfactorily resolved found to be no more than
a restatement of the agency's duty under the Statute and, therefore,
negotiable). Consequently, as Proposal 22 requires nothing more of the
Agency than is required by the Statute, we find Proposal 22 to be
negotiable.
Article 16, Overtime, Sections 3a and 3c
Employees shall not be required to work under the following
conditions:
a. When unable to work for medical reasons, continuing or
prolonged medical conditions will be certified in writing . . . .
c. If the employee has a justifiable emergency or unavoidable
personal situation.
A. Position of the Parties
The Agency claims that sections 3a and 3c conflict with management's
right to assign work, specifically the right to assign "work which is
performed on overtime." Statement of Position at 19. The Agency argues
that the Authority has found that proposals which prohibit an agency
from assigning work to employees on the basis of medical reasons were
nonnegotiable. Id. (citing American Federation of Government Employees,
AFL-CIO, Local 1409 and Department of the Army, U.S. Army Adjutant
General Publications Center, Baltimore, Maryland, 28 FLRA 109, 111-13
(1987)). The Agency also claims that Proposal 23 does not require that
the medical certification be provided by the "base medical authority"
and, therefore, it is not similar to proposals which the Authority has
found negotiable. Statement of Position at 17.
With regard to section 3c, the Agency asserts that the Authority has
held proposals nonnegotiable which require that an employee's leave
request be granted for a particular reason, without regard for the
necessity for the employee's services. Further, the Agency asserts that
section 3c "totally" bans overtime assignments if an employees has "a
justifiable emergency or unavoidable personal situation." Id.
The Union maintains that section 3a of the proposal covers those
instances when an employee "cannot work when he or she is unable to
work." Petition for Review at 4. The Union also adds that management
may require "medical documentation." Id. With regard to section 3c, the
Union claims that managerial decisions to grant leave must be reasonable
and that a refusal to excuse employees when a justifiable emergency or
an unavoidable personal situation arises would "be overturned in every
instance." Id. The Union also argues that, despite the Agency's claims
that sections 3a and 3c directly interfere with management's right to
assign work, the proposal does not "excessively interfere" with that
right. Reply Brief at 2.
B. Analysis and Conclusions
1. Proposal 23 Directly Interferes with the Right to Assign Work
The right to assign work encompasses the assignment of work which is
performed on overtime. American Federation of Government Employees,
National Border Patrol Council and U.S. Department of Justice,
Immigration and Naturalization Service, U.S. Border Patrol Western
Region, 39 FLRA 675, 690 (1991), petition for review filed sub nom. U.
S. Department of Justice, Immigration and Naturalization Service, U.S.
Border Patrol Western Region v. FLRA, No. 91-70259 (9th Cir. Apr. 12,
1991). Further, the Authority has held that proposals which limit
management's right to assign overtime work directly interfere with that
right. See, for example, American Federation of Government Employees,
AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station,
Concord, California, 32 FLRA 1023, 1042 (1988), rev'd mem. as to other
matters sub nom. Department of the Navy, Naval Weapons Station, Concord,
California, No. 88-7408 (9th Cir. Feb. 7, 1989) (provision providing
that employees not be required to work more than 12 hours in 1 day
except in unusual circumstances held to directly interfere with the
right to assign work). See also American Federation of Government
Employees, Local 2094, AFL-CIO and Veterans Administration Medical
Center, New York, New York, 22 FLRA 710, 715-16 (1986) (VA, New York)
(proposal held nonnegotiable which provided that no employee could or
would be forced to work overtime if such work would affect employee's
efficiency, health, or emotional stability).
Sections 3a and 3c, read in conjunction with the introductory wording
"(e)mployees shall not be required to work(,)" prevent the Agency from
assigning an employee overtime when the employee is "unable to work for
medical reasons" or has "a justifiable emergency or unavoidable personal
situation." By preventing management from assigning overtime in these
situations, sections 3a and 3c directly interfere with management's
right to assign work. Consequently, Proposal 23 is nonnegotiable unless
it constitutes an appropriate arrangement under section 7106(b)(3) of
the Statute.
2. Sections 3a and 3c of Proposal 23 Constitute Negotiable
Appropriate Arrangements
As we discussed in our analysis of Proposal 4, the Authority applies
the requirements in Kansas Army National Guard, 21 FLRA 24, 31-33, in
determining whether a proposal constitutes a negotiable appropriate
arrangement.
The Union argues that Proposal 23 is intended to excuse an employee
from working overtime when "certain compelling personal circumstances
are present." Petition for Review at 3. Section 3a, the Union asserts,
"seems only logical" because it would excuse an employee from work when
he or she is unable to work for medical reasons. Id. Section 3c is
intended, according to the Union, to relieve an employee from overtime
if the employee has a justifiable emergency or unavoidable personal
situation. Based on the Union's statements, we find that sections 3a
and 3c are intended to ameliorate the effect of management's right to
assign overtime and, therefore, they constitute arrangements within the
meaning of section 7106(b)(3) of the Statute.
Turning to the second requirement in Kansas Army National Guard, 21
FLRA at 33, we determine whether sections 3a and 3c excessively
interfere with management's right to assign work.
Section 3a would benefit employees by excusing them from overtime
work when they are unable to work for medical reasons. It is reasonably
foreseeable that if employees are ill or injured, section 3a would
contribute to employees' improved health and decrease the possibility
that they would aggravate injuries. Furthermore, because employees
would not be working when they are ill or injured, employees' work would
be less likely to be evaluated as unsatisfactory. Similarly, section 3c
would benefit employees who are unable to work overtime because of
personal reasons. This section lessens the possibility that employees
would be disciplined for their failure to report for duty when
situations occur that are unavoidable or beyond their control. Sections
3a and 3c, we conclude, would provide significant benefits to employees.
On the other hand, sections 3a and 3c would prevent the assignment of
overtime in certain circumstances. Section 3a restricts management's
right to assign overtime when employees are unable to work for medical
reasons. It is unclear from the wording of section 3a whether
management may require that all medical reasons be certified in writing
or whether certification is limited to "continuing or prolonged" medical
conditions. In this regard, the Union asserts that "(t)he proposal
itself allows (m)anagement to insist on medical documentation." Petition
for Review at 4. Consistent with the Union's assertion, which is not
limited to continuing or prolonged medical conditions, we find that,
under section 3a, management may require medical certification whenever
employees assert that they cannot work for medical reasons. It follows,
in our view, that management may refuse to excuse employees from
overtime assignments when such medical certification is not supplied or
does not demonstrate that, under the proposal, employees are "unable to
work for medical reasons."
The Agency's ability to require medical certification does not
eliminate the proposal's direct interference with the Agency's right to
assign work. Compare National Federation of Federal Employees, Local
2096 and U.S. Department of the Navy, Naval Facilities Engineering
Command, Western Division, 36 FLRA 834, 838-39 (1990) (Navy) ("proposals
. . . which require an agency to observe medical restrictions on work
assignments which are imposed by the agency's own medical authorities do
not directly interfere with the agency's right to assign work").
However, the Agency's ability to require the submission of, and review
of the sufficiency of, medical documentation mitigates the effect on the
Agency's right to assign work. Compare VA, New York, 22 FLRA at 715-16
(proposal prohibiting agency from requiring an employee to work overtime
if the employee "feels" it would affect "efficiency, health or emotional
stability" held to constitute a "complete prohibition" on right to
assign work).
With regard to section 3c, we reject the Agency's claim that it
"totally" bans overtime assignments if an employee has a justifiable
emergency or unavoidable personal situation. Statement of Position at
17. Nothing in section 3c prevents management from deciding whether an
emergency is justifiable or a personal situation is unavoidable.
Finally, we note the Union's argument: "What legitimate interest could
the Agency have in assigning work to an employee who is unable to work
for medical reasons, or who has a justifiable emergency or unavoidable
personal situation?" Reply Brief at 3.
On balance, we find that the significant benefits that employees
would gain from sections 3a and 3c outweigh the burden on management's
right to assign overtime work. In reaching this conclusion, we note,
particularly, that management retains the right to determine the
adequacy of the medical documentation and whether an employee has a
justifiable emergency or an unavoidable personal situation.
In finding that section 3a is an appropriate arrangement, we reject
the Agency's argument that section 3a is nonnegotiable because it does
not provide that medical certification will "be accomplished by the base
medical authority . . . ." Statement of Position at 19. In Navy, 36
FLRA at 839, we held that although proposals which require an agency to
observe medical restrictions independent of those imposed by its own
authorities directly interfere with management's right to assign work,
they may be considered as arrangements under section 7106(b)(3).
In summary, we find that Proposal 23, sections 3a and 3c do not
excessively interfere with the Agency's right to assign work and are
negotiable appropriate arrangements under section 7106(b)(3) of the
Statute.
Article 16, Overtime, Section 4
Compensation time may be granted instead of overtime pay to
both GS and WG employees at their request in accordance with
applicable law.
A. Positions of the Parties
The Agency asserts that the portion of the proposal which provides
for compensatory time off for wage grade (WG) employees is contrary to 5
C.F.R. Section 532.503 and FPM Supplement 532-1, subchapter 8-4b(10)
and, therefore, is nonnegotiable under section 7117(a)(1) of the
Statute. The Agency states that under 5 U.S.C. Section 5541(2)(xi), WG
employees are not entitled to compensatory time off that is available to
certain Federal employees under 5 U.S.C. Section 5543.
The Union notes that Proposal 24 includes the words "in accordance
with applicable law." According to the Union, "law is a limitation on
whatever other language is contained in the proposal." Petition for
Review at 4. In response to the Agency's argument, the Union concedes
that WG employees may not receive compensatory time in lieu of pay. The
Union concludes that "(i)t does not appear that the Agency and the Union
have any real dispute about this proposal." Reply Brief at 3.
B. Analysis and Conclusions
Proposal 24 requires the Agency to grant general schedule (GS) and WG
employees compensation, or compensatory, time off, at their request,
consistent with applicable law. The Agency states, and the Union
concedes, that applicable law prohibits the granting of compensatory
time off to WG employees. /6/ Consequently, to the extent that it
concerns WG employees, there is no dispute concerning the negotiability
of Proposal 24.
Proposal 24 also requires that compensatory time off be granted to GS
employees in lieu of overtime pay. Although the Agency asserts that
this portion of the proposal is nonnegotiable, the Agency does not
support its assertion. As no reason to find it nonnegotiable is
apparent to us, we find that Proposal 24 is negotiable to the extent
that it requires the Agency, in accordance with applicable law, to grant
GS employees compensatory time off in lieu of overtime pay. See
American Federation of Government Employees, Local 2022 and U.S.
Department of the Army, Headquarters, 101st Airborne Division, Fort
Campbell, Kentucky, 40 FLRA 371, 385, 389 (1991) petition for review
filed sub nom. U.S. Department of the Army, 101st Airborne Division Fort
Campbell, Kentucky v. FLRA, No. 91-1298 (D.C. Cir. June 24, 1991)
(noting that GS employees are entitled to either overtime compensation
or compensatory time off under 5 U.S.C. Sections 5542 and 5543).
Article 17, Awards and Bonuses, Section 3a
Quality Step Increases shall be effective at the earliest
possible date. Once the supervisor determines to make such award
and administrative errors or submission delays are encountered,
the effective date will be retroactive to the date of
determination.
A. Positions of the Parties
The Agency argues that Proposal 25 is contrary to the Back Pay Act, 5
U.S.C. Section 5596, because it would require retroactive quality step
increases (QSIs) without review and approval by authorized Agency
officials. According to the Agency, "back pay in promotion cases can
only be authorized if the administrative or clerical error is subsequent
to approval of the action by a properly authorized official." Statement
of Position at 20. The Agency also notes that Army Regulation 672-20
"provide(s) that the first line supervisor initiates the nomination of
an employee for a QSI while the approving official must be at least one
level above the level of the nominating official." Id.
The Union asserts that Proposal 25 is consistent with the Back Pay
Act and "merely restates 5 CFR 531.506." /7/ Petition for Review at 4.
B. Analysis and Conclusions
We reject the Agency's contention that the proposal would require
retroactive grants of QSIs without approval by properly authorized
Agency officials. Nothing in the plain wording of Proposal 25 prohibits
the Agency from exercising its right to approve, or disapprove,
supervisory recommendations for QSIs. Moreover, the Union acknowledges
that approval is necessary. In fact, the Union cites and relies on 5
C.F.R. Section 531.506, which references such approval. The Union also
cites and relies on a Comptroller General decision involving delay in
approving a supervisor's recommendation for a QSI. Comp. Gen. No.
B-192372 (Jan. 2, 1979) (unpublished). In that case, the Comptroller
General held that an approving official's improper failure to act on a
supervisory recommendation for a QSI constituted an unjustified or
unwarranted personnel action and, as such, warranted the grant of the
QSI retroactive to the date of supervisory recommendation.
Consistent with the plain wording of Proposal 25 and the Union's
arguments, we interpret the proposal as requiring that QSIs be granted
retroactive to the date of a supervisor's recommendation when the
Agency's action in approving and/or effecting a QSI results in
administrative errors or delays sufficient to constitute an unjustified
or unwarranted personnel action. The Agency's contention that the
proposal is nonnegotiable based on a conflict with the Back Pay Act is
based solely on its interpretation of the proposal as requiring
retroactive grants of QSIs without requisite approval. As the proposal
does not require such grants, and as no other basis for finding the
proposal nonnegotiable is argued or apparent to us, we conclude that
Proposal 25 is negotiable.
Article 17, Awards and Bonuses, Section 3c
The criteria for such awards will be the same as the criteria
for the rating. The cash award will be no less than 5% of the
employee(')s annual salary for an Exceptional rating and no less
than 3% for an employee receiving a cash award for a Highly
Successful rating.
(Only the underscored sentence is in dispute.)
A. Positions of the Parties
The Agency contends that Proposal 26 is inconsistent with 5 U.S.C.
Section 4302 and 5 C.F.R. Sections 430.203, 430.204 and 430.206(b).
According to the Agency, "both Statute and Government-wide regulations
require that performance ratings be based solely on performance
standards which permit the accurate evaluation of job performance."
Statement of Position at 22. The Agency asserts that "by proposing
mandatory cash awards tied to specific performance ratings," the Union
is "essentially proposing to include funding/budget as a factor in
deriving the performance rating . . . ." Id.
Alternatively, the Agency contends that the proposal violates 5 C.F.
R. Sections 430.503(c)(1) and (f) and Section 430.506(a). According to
the Agency, these regulations require agencies "to consider 'funds
availability' in its performance award decision-making process(.)" Id.
at 23. The Agency asserts that Proposal 26 conflicts with these
regulations "(b)y mandating performance awards in the event of certain
employee performance ratings(.)" Id. at 23-24.
Additionally, the Agency asserts that Proposal 26 is inconsistent
with 5 C.F.R. Section 430.503, "which requires an internal agency review
of the performance award decision-making process." Id. at 25. The
Agency argues that the proposal has "the unavoidable effect" of
requiring that performance awards be paid solely on the basis of
performance ratings, without conducting the mandatory internal agency
review which would consider whether appropriated funds are available to
support the award. Id. at 26.
The Union contends that Proposal 26 "says that the criteria for
performance awards will be the same as the criteria for the employee's
rating." Petition for Review at 4. Under 5 C.F.R. Section 430.502, the
Union asserts that a performance award is "a cash payment to an employee
'based on the employee's rating of record.'" Id. Because of that
definition, the Union contends that the Agency "has no choice but to
base a performance award on an employee's performance rating." Id.
B. Analysis and Conclusions
The Agency declared nonnegotiable only the first sentence of Proposal
26. See Attachment to petition for review (Agency's declaration of
nonnegotiability) at 6. Consistent with the Agency's assertion of
nonnegotiability, the Union filed its petition only as to that sentence.
Moreover, the Agency acknowledges in its statement of position that
only the first sentence is in dispute. Statement of Position at 21.
Accordingly, we will determine the negotiability of that sentence only.
/8/
We reject the Agency's contention that the Union proposes to include
funding considerations in the appraisal process contrary to 5 U.S.C.
Section 4302 and 5 C.F.R. Sections 430.203, 430.204, and 430.206(b).
The provisions cited by the Agency: (1) provide for the establishment
of an employee performance appraisal system (5 U.S.C. Section 4302);
(2) define "appraisal" as the act or process of evaluating the
performance of an employee against described performance standards (5
C.F.R. Section 430.203); (3) require that employees be appraised based
on a comparison of their performance with the performance standards
established for the appraisal period (5 C.F.R. Section 430.204); and
(4) provide that employees be appraised on each critical and
non-critical element of the performance plan(s) on which the employee
has had an opportunity to perform (5 C.F.R. Section 430.206(b)).
The disputed sentence in Proposal 26 provides only that the criteria
for granting awards will be the same as the criteria for determining
employee performance ratings. This sentence does not prevent management
from establishing performance criteria for use in appraising employees'
performance. Accordingly, we conclude that the disputed sentence in
Proposal 26 is not inconsistent with 5 U.S.C. Section 4302 and 5 C.F.R.
Sections 430.203, 430.204, and 430.206(b). We also reject the Agency's
contentions that the disputed sentence in Proposal 26 is contrary to 5
C.F.R. Section 430.503(c)(1), 5 C.F.R. Section 430.503( f), and 5 C.F.R.
Section 430.506(a). The regulations cited by the Agency: (1) require
agencies to establish procedures for the review and approval of
performance awards by an agency official who is at a higher level than
the official who made the initial decision and by an official with
responsibility for managing the performance awards budget (5 C.F.R.
Section 430.503(c)(1)); (2) encourage agencies, within existing
appropriated funds, to establish and administer performance awards
programs (5 C.F.R. Section 430.503(f)); and (3) require the head of
each agency, within existing appropriated funds, to establish a
performance awards program as a component of an agency's Performance
Management System (5 C.F.R. Section 430.506(a)). In short, these
regulations require an agency to establish a performance awards program
which includes procedures for reviewing performance awards so as to
ensure that the program is administered within existing appropriated
funds.
The disputed sentence in Proposal 26 does not mandate that the Agency
give performance awards. Moreover, if the Agency chooses to give
awards, Proposal 26 would not prevent the Agency from reviewing awards
for consistency with applicable budgetary limitations or from taking any
other action required by the cited regulations. We conclude, therefore,
that the disputed sentence in Proposal 26 is not contrary to the
requirements of 5 C.F.R. Sections 430.503(c)(1) and (f), and 430.506(a).
In summary, we find that the disputed sentence in Proposal 26 does not
conflict with the law and regulations cited by the Agency and, as no
other basis for finding it nonnegotiable is asserted or apparent to us,
it is negotiable.
Article 21, Equal Employment Opportunity, Section 3
The Employer acknowledges that the Union itself may be a
representative and may itself file a complaint under the statutory
EEO procedures on behalf of employees.
A. Positions of the Parties
The Agency asserts that Proposal 27 "is silent" on the need for the
Union to obtain an employee's consent before filing a complaint and,
therefore, violates 29 C.F.R. Section 1613.212(a). Statement of
Position at 26. According to the Agency, 29 C.F.R. Section 1613.212(a)
is a Government-wide regulation which permits a complaint to be filed by
an organization, but only with the aggrieved person's consent.
The Union contends that the Agency is relying on the Equal Employment
Opportunity Commission's (EEOC) "procedures for private sector
discrimination complaints." Petition for Review at 4. Proposal 27, the
Union claims, is consistent with "federal sector (equal employment
opportunity) procedures" contained in 29 C.F.R. Part 1613, which provide
that a union may "both file a complaint and represent a complainant."
Id.
B. Analysis and Conclusions
We disagree with the Agency's assertion that Proposal 27 permits the
Union to file a complaint without the aggrieved employee's consent.
Proposal 27 merely states that the Union "may be a representative and
may itself file a complaint . . . ." Nothing in Proposal 27 provides
that the Union may represent an employee or file a complaint without an
aggrieved employee's consent. Accordingly, we construe Proposal 27 as
providing that the Union may represent, and may file EEO complaints on
behalf of, consenting employees.
Read in this manner, Proposal 27 is consistent with 29 C.F.R.
Sections 1613.212(a) and 1613.214(b)(1). 29 C.F.R. Section 1613.212(a)
provides that "(a) complaint may also be filed by an organization for
the aggrieved person with that person's consent. 29 C.F.R. Section
1613.214(b)(1) provides that the complainant has the right during the
processing of a complaint, including the informal counseling stage, "to
be accompanied, represented, and advised by a representative of
complainant's choice." Because Proposal 27 does not enable the Union to
represent employees, or file complaints on their behalf, without the
employees' consent, we conclude that Proposal 27 does not conflict with
either regulation. Accordingly, we conclude that the proposal is
negotiable.
Article 25, Temporary Duty, Section 2c
When management or supervisory personnel are on the same or
similar missions at that site and there are not enough quarters
available to accommodate all individuals, employees will be
allocated quarters or lodging after the management individuals are
accommodated.
A. Position of the Parties
The Agency asserts that Proposal 28 "can, under certain
circumstances, have the same affect as Provision 4 in National
Federation of Federal Employees, Local 405 and U.S. Army Aviation
Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 612-15
(1988) (Army Aviation Systems Command), which the Authority found
nonnegotiable. Statement of Position at 27. The Agency also asserts
that Proposal 28 conflicts with Department of Defense Civilian Personnel
Joint Travel Regulation (JTR), Volume 2, Chapter 1055 which "has been
found by the Authority to have a compelling need." /9/ Id.
In addition, the Agency contends that Proposal 28 violates the
Agency's rights to assign employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute. The Agency argues that because
the proposal requires that supervisors "on the same or similar missions
at that site" be accommodated first, it would require the Agency to
assign all supervisors who are working on several teams at a given site
to Government quarters and the employees from those teams to other
lodgings. In these circumstances, the Agency argues, Proposal 28 would
prevent management from assigning a team of employees to the same
quarters. With a team "geographically disbursed," the Agency asserts
that "coordination of assignments after working hours would be
impossible." Id. at 28.
The Union claims that the proposal does not interfere with the
Agency's right to assign work because it deals with the assignment of
lodging accommodations which "employees use when they are not working."
Petition for Review at 4.
B. Analysis and Conclusions
When there are not enough Government quarters for all personnel on
the same or similar missions at a temporary duty station, Proposal 28
would require that the Agency allocate available Government quarters to
management personnel before accommodating unit employees. For the
following reasons, we find that this proposal is negotiable.
The Agency's reliance on the Authority's holding concerning Provision
4 in Army Aviation Systems Command is misplaced. Statement of Position
at 27. In Army Aviation Systems Command, Provision 4 required the
agency to assign bargaining unit employees to non-Government lodging if
management personnel on the same or a similar mission were assigned
non-Government lodging and to pay the cost of such lodging. The
Authority found that payment for non-Government lodging when adequate
Government housing was available, but not occupied was contrary to an
agency regulation, DOD Instruction, 4165.47.D.4.b. Further, the
Authority found that under the JTR, Volume 2, Chapter 1055, the quarters
portion of the per diem may not be paid in the absence of a statement of
nonavailability or nonutilization. Consequently, the Authority
concluded that Provision 4 conflicted with DOD Instruction 4165.47.D.4.b
and the JTR, Volume 2, Chapter 1055. Because the Authority found a
compelling need for these regulations, the Authority concluded that
Provision 4 was nonnegotiable under section 7117(a)(2) of the Statute.
Unlike Provision 4 in Army Aviation Systems Command, Proposal 28 does
not require the Agency to pay for the use of non-Government quarters in
a manner contrary to DOD Instruction 4165.47 or the JTR. Proposal 28
concerns only the allocation of Government quarters for personnel on the
same or similar missions at a temporary duty station when there are
insufficient Government quarters to accommodate all personnel. Put
simply, Proposal 28 merely establishes a priority for allocating housing
when there are not enough Government quarters available. Accordingly,
to the extent that the Agency is arguing that Proposal 28 is
nonnegotiable based on the Authority's holding in Army Aviation Systems
Command, we reject the Agency's argument.
The Agency also argues that Proposal 28 conflicts with the JTR
because management would be prevented from issuing a statement, under
the JTR, to one supervisor from a team that "utilization of Government
quarters would 'adversely affect the performance of the assigned
mission(.)'" Statement of Position at 28. As we read the JTR,
management is not required to issue such statements. Instead, the
statements are utilized to authorize payment of the quarters portion of
per diem if Government quarters are available and unused. Proposal 28,
does not, on its face, preclude the Agency from issuing a statement, or
statements, that the use of Government quarters would adversely affect
the performance of a mission or would be impracticable. Proposal 28
requires only that managers and supervisors be allocated Government
quarters before bargaining unit personnel are assigned. Nothing in
Proposal 28 prevents the Agency from issuing the statement described in
the JTR. Consequently, we reject the Agency's argument that Proposal 28
conflicts with the JTR.
We also reject the Agency's argument that Proposal 28 interferes with
management's rights to assign employees and work. Nothing in Proposal
28 concerns the assignment of personnel to positions or the assignment
of work duties and responsibilities. Rather, Proposal 28 concerns the
allocation of quarters to personnel at a temporary duty site. Moreover,
contrary to the Agency's assertion, Proposal 28 does not require that
teams be split up when quarters or lodging is assigned. Nothing in
Proposal 28 prevents the Agency from determining, consistent with the
JTR, that utilization of Government quarters by a team would adversely
affect the performance of the assigned mission by, for example,
hampering the assignment of duties beyond the regular work day.
Consequently, we find that Proposal 28 does not directly interfere with
management's rights to assign employees and work under section
7107(a)(2)(A) and (B) of the Statute, and is negotiable.
Article 000, Performance Management, Section 1a
Any changes to the performance standards during a rating period
will not be based on the ability of the employee to meet or exceed
the requirements.
A. Positions of the Parties
The Agency asserts that Proposal 30 "prohibits" management from
"modifying an employee's performance standards based on his or her
ability to meet or exceed these standards." Statement of Position at 29.
This prohibition, the Agency asserts, conflicts with 5 C.F.R. Section
430.206(d). /10/ Further, the Agency asserts that Proposal 30 directly
interferes with management's rights to direct employees and assign work
pursuant to section 7106(a)(2)(A) and (B) of the Statute and
The Union argues that Proposal 30 "prevent(s) Agency bad faith in the
revision of performance standards." Petition for Review at 5. The Union
contends that the proposal is designed to prevent supervisors from
revising "standards to ensure that the same (level of) performance by
the employee will result in a lower rating at the end of the appraisal
year." Id.
B. Analysis and Conclusions
We disagree with the Agency's assertion that Proposal 30 conflicts
with 5 C.F.R. Section 430.206(d). 5 C.F.R. Section 430.206(d) requires
that agencies establish procedures to ensure that only employees whose
performance exceeds "normal expectations" are rated above fully
successful and notes that "procedures" include "reviews of standards and
ratings for difficulty and strictness of application." Proposal 30 does
not prevent the Agency from conducting reviews of standards and ratings
or from complying with any other requirement in 5 C.F.R. Section
430.206(d). Rather, Proposal 30 only provides that changes in
performance standards will not be based on employees' ability to meet or
exceed the requirements. Consequently, we reject the Agency's argument
that Proposal 30 is nonnegotiable because it interferes with 5 C.F.R.
Section 430.206(d).
The Agency also asserts that Proposal 30 directly interferes with its
rights to direct employees and assign work under section 7106(a)( 2)(A)
and (B) of the Statute. We have held that proposals which restrict an
agency's right to determine the content of performance standards and
critical elements directly interfere with management's rights to direct
employees and to assign work under section 7106(a)(2)( A) and (B). See,
for example, National Treasury Employees Union and U. S. Department of
the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570,
580-81 (1991) (NTEU and Customs Service).
By prohibiting changes to performance standards based on employees'
abilities to meet or exceed those standards, Proposal 30 would impose a
substantive restriction on the Agency's ability to determine performance
standards. Consequently, Proposal 30 directly interferes with
management's rights to direct employees and assign work. See, for
example, id. at 581 (proposal requiring an agency to "take into account"
mitigating factors held to require management to modify its performance
expectations in light of the factors specified in the proposal and,
thereby, to directly interfere with management's rights to direct
employees and assign work); American Federation of Government
Employees, AFL-CIO, Department of Education Council of AFGE Locals and
Department of Education, 34 FLRA 1114, 1117-18 (1990) (proposal
requiring that agency's performance appraisal system be fair, equitable,
and job related found to directly interfere with management's rights to
direct employees and assign work).
Because Proposal 30 directly interferes with management's rights to
direct employees and assign work, it is nonnegotiable unless it
constitutes a negotiable appropriate arrangement under section 7106(b)(
3) of the Statute. As we discussed in our analysis of Proposals 4 and
23, the Authority applies the requirements in Kansas Army National
Guard, 21 FLRA 24, 31-33, in determining whether a proposal constitutes
a negotiable appropriate arrangement.
The Union asserts that Proposal 30 is "designed to avoid the
situation where an employee is performing at a 'met' or 'exceptional'
level, and the supervisor decides to revise the standards to ensure that
the same performance by the employee will result in a lower rating at
the end of the appraisal year." Petition for Review at 5. We construe
the Union's assertion as an argument that Proposal 30 is intended as an
arrangement under section 7106(b)(3) of the Statute to benefit employees
who are or would be adversely affected by the exercise of management's
right to determine performance standards and critical elements.
Having found that Proposal 30 is intended as an arrangement, we turn
to the second requirement in Kansas Army National Guard, 21 FLRA at 33,
and determine whether Proposal 30 excessively interferes with
management's right to direct employees and assign work. As the Union
asserts, Proposal 30 would benefit employees who might receive a lower
performance appraisal as a result of management's revision of
performance standards. Proposal 30 would ensure, according to the
Union, that employees would not receive a lower performance appraisal as
a result of "Agency bad faith in the revision of performance standards."
Petition for Review at 5.
On the other hand, Proposal 30 would prevent the Agency from revising
its performance standards. Contrary to the Union's interpretation of
the proposal, the proposal would not prohibit only "bad faith" revisions
in the performance standards. Instead, the proposal applies, by its
express and unambiguous terms, to "(a)ny changes to the performance
standards during a rating period . . . . " In this regard, we have no
basis on which to conclude that any changes based on an employee's
ability to meet or exceed existing standards would result from bad
faith. Instead, as the Agency argues, employees' ability to meet or
exceed existing standards may be an appropriate consideration in
determining whether such standards are accurate measures of satisfactory
performance.
Weighing the benefit to employees afforded by the proposal against
the effect of the proposal on the Agency's rights to assign work and
direct employees, we conclude that the burden on management is greater
than the benefit to employees. Consequently, we find that Proposal 30
does not constitute an appropriate arrangement under section 7106(b)(3)
of the Statute and is, therefore, nonnegotiable.
Article 000, Performance Management, Section 3c
Any presumptive rating, if required, will be, at the minimum,
equal to the employee's last rating.
A. Positions of the Parties
The Agency argues that Proposal 32 is nonnegotiable "to the extent
that it requires ratings different from fully successful." Statement of
Position at 31. According to the Agency, the requirement that a
presumptive rating be, at a minimum, equal to the employee's last rating
conflicts with 5 C.F.R. Section 351.504(c), which concerns
reduction-in-force procedures. /11/
The Union contends that the Agency's statement that Proposal 32
"conflicts with government-wide regulations" is "false." Petition for
Review at 5. The Union claims that the Agency's reliance on 5 C.F.R.
Section 351.504(c) is misplaced because that regulation "has nothing to
do with performance appraisals but rather talks about reinstatement
rights." Id.
B. Analysis and Conclusions
Proposal 32 requires that if a presumptive rating is required,
management will rate an employee, at a minimum, equal to the employee's
last rating. In Hawaii Federal Employees Metal Trades Council, AFL-CIO
and U.S. Department of the Navy, Pearl Harbor Naval Shipyard, Pearl
Harbor, Hawaii, 34 FLRA 873, 876 (1990) (Hawaii FEMTC), we considered a
similar proposal which provided that employees who could not be rated,
such as certain union officials, would receive a rating that reflected
the average of all personnel and was normally not less than fully
successful. The Authority found this proposal to be inconsistent with 5
C.F.R. Section 430.206(e) and, therefore, nonnegotiable. That
regulation is not relied on by the Agency. However, because Proposal 32
would have the same effect as the proposal in Hawaii FEMTC, we will
consider whether Proposal 32 is consistent with 5 C.F.R. Section
430.206(e).
As discussed more fully in Hawaii FEMTC, Part 430 requires that when
an agency cannot prepare a rating for an employee at the time specified
in the performance plan because the employee has not performed work in
an assigned position for the minimum appraisal period, the appraisal
period must be extended. 5 C.F.R. Section 430.205(b) requires that
"(a)gency appraisal systems shall establish a minimum appraisal period
of at least 90 days but not more than 120 days." 5 C.F.R. Section
430.206(e) provides that "the appraisal period shall be extended for the
amount of time necessary to meet the minimum appraisal period at which
time a rating of record shall be prepared . . . ." By requiring the
Agency to give employees who have not performed work in an assigned
position for at least 90 days a rating equal at a minimum to their last
rating, Proposal 32 is inconsistent with 5 C.F.R. Section 430.206(e)
and, therefore, is nonnegotiable under section 7117(a)(1) of the
Statute. In view of our conclusion, it is unnecessary to determine
whether Proposal 32 also conflicts with 5 C.F.R. Section 351.504(c).
The petition for review concerning Proposals 7, 10, 12, 13, 14, 16,
17, 20, 25, 30, and 32 is dismissed. Further, to the extent that it
concerns wage grade employees, Proposal 24 is dismissed.
The Agency must, upon request or as otherwise agreed to by the
parties, bargain on Proposals 4, 6, 19, 21, 22, 23, 26, 27, 28, and 24
to the extent it concerns general schedule employees. /12/
(1) The Agency has withdrawn its allegations that Proposals 1, 3, 5,
8, 9, 18, 29, and 31 are nonnegotiable. Statement of Position at 1, 4,
5, 7, 15, 29, and 31. The Agency also has withdrawn its allegation that
part of Proposal 23, Section 3b of Article 16, is nonnegotiable. Id. at
19. The Union has withdrawn Proposals 2, 11, 15, and 33. Reply Brief
at 1, 3. We will not consider further these proposals.
(2) The Union does not include the wording of the proposals in its
petition for review. The proposals are as stated in the Agency's
allegation of nonnegotiability, which the Union attached to its
petition.
(3) Circular A-76 provides, in relevant part, that:
1. Each agency shall establish an administrative appeals
procedure to resolve questions from directly affected parties
relating to (1) determinations resulting from cost comparisons
performed in compliance with this Circular and Part IV of the
Supplement and (2) justifications to convert to contract without a
cost comparison . . . .
OMB Circular A-76 (Revised) at I-14 (Aug. 1983).
(4) 5 U.S.C. Section 2105 provides, in relevant part, that for
purposes of title 5, the term "employee" means an individual who is:
(1) appointed in the civil service by one of the following
acting in an official capacity --
(D) an individual who is an employee under this section; . . .
and
(3) subject to the supervision of an individual named by
paragraph (1) of this subsection while engaged in the performance
of the duties of his position.
(5) 5 C.F.R. Section 335.102(f)(1) provides, in relevant part, that
an agency may:
Except as otherwise specifically authorized by OPM, temporarily
promote an employee to meet a temporary need for a definite period
of 1 year or less and extend such a promotion for a definite
period not to exceed 1 additional year.
FPM chapter 335, subchapter 1-5a requires, in relevant part, that:
Competitive procedures in agency promotion plans apply to all
promotions under Section 335.102 of the civil service regulations
and to the following actions.
(1) Temporary promotions. . . .
(2) Term promotions. . . .
(3) Selection for details for more than 120 days to a higher
grade position or to a position with known promotion potential. .
. .
(6) We note that 5 C.F.R. Section 551.531 has recently been revised
by the Office of Personnel Management to implement the Federal Employees
Pay Comparability Act of 1990, Pub. L. No. 101-509, 104 Stat. 1427
(1990). FPM Bulletin 551-25; 56 Fed. Reg. 20339 (1991). Under the
revised Bulletin, certain employees who are covered by the Fair Labor
Standards Act may now, upon request, earn compensatory time. The
authority to provide employees with compensatory time does not extend to
WG employees. See 56 Fed. Reg. at 20340.
(7) 5 C.F.R. Section 531.506 provides:
A determination to grant a quality step increase should be made as
soon as practicable after a rating of record is approved. The
quality step increase should be made effective as soon as possible
after it is approved.
(8) Therefore, we will not address the Agency's assertion that "(i)
fthe intent of the . . . proposal is to require the (Agency) to issue
cash awards . . . the proposal is nonnegotiable as violative of
Government-wide regulations." Statement of Position at 21. This
assertion relates to the second sentence of the proposal, which is not
before us. Compare National Association of Government Employees and U.
S. Department of Defense, National Guard Bureau, Connecticut Army and
Air National Guard, Hartford, Connecticut, 40 FLRA 33 (1991) (proposal
mandating performance award held nonnegotiable as inconsistent to 5 C.
F.R. Section 430.503(c)(1)).
(9) The JTR provides, in pertinent part:
C1055 USE OF GOVERNMENT QUARTERS
1. GENERAL. Although an employee may not be required to
utilize Government quarters, when adequate Government quarters are
available but not used, the payment of the quarters portion of the
per diem or actual expense allowances of any employee on temporary
duty away from his designated post of duty may not be made except
under the following conditions:
1. when the order issuing authority, either prior or
subsequent to the travel involved, issues a statement to the
effect that the utilization of Government quarters at the
temporary duty station or delay point would adversely affect the
performance of the assigned mission (this exception is not
applicable to personnel attending training courses at an
installation of the Uniformed Services); . . .
3. when the commanding officer (or designated representative)
responsible for Government quarters at the temporary duty or delay
point furnishes a statement to the effect that utilization of
Government quarters was impracticable . . . .
Department of Defense Civilian Personnel Joint Travel Regulation, Volume
2, Chapter 1055 at I-14.
(10) 5 C.F.R. Section 430.206(d) provides, in relevant part, that:
Forced distribution. . . . agencies must establish procedures,
such as reviews of standards and ratings for difficulty and
strictness of application, to ensure that only those employees
whose performance exceeds normal expectations are rated at levels
above "Fully Successful".
(11) 5 C.F.R. Section 351.504(c)(1) and (2) provides, in relevant
part, that:
(s)ervice credit for employees who do not have three actual annual
performance ratings of record during the 3-year period prior to
the date of issuance of specific reduction-in-force notices shall
be determined as follows:
(1) An employee who has not received an annual performance
rating of record shall receive credit for performance on the basis
of three assumed ratings of fully successful . . . .
(2) An employee who has received at least one but fewer than
three previous annual performance ratings of record shall receive
credit for performance on the basis of the actual rating(s)
received and of one, or two, assumed rating(s) of fully successful
. . . .
(12) In finding these proposals to be negotiable, we make no judgment
as to their merits.
42 FLRA 1109
42 FLRA NO. 77
Case No. 0-AR-2147
Department of Veterans Affairs, Waco, Texas
(Agency)
American Federation of Government Employees, Local 2571
(Union)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to an award of
Arbitrator A. Dale Allen filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exception.
The Arbitrator denied a grievance which asserted that the grievant
should have been selected for promotion to the position of GS-05 Senior
Development Clerk. For the following reasons, we conclude that the
Union's exception provides no basis for finding the award deficient.
Accordingly, we will deny the exception.
The grievant applied for a GS-5 Senior Development Clerk position.
When the grievant was not selected for the position, she submitted a
written request to the selecting official for the reason she was not
selected. The selecting official replied that the most qualified
candidate was selected but "he gave no specific reason for (the
grievant's) non-selection." Award at 3. Thereafter, the grievant filed
a grievance alleging that she was not selected "because of the non-job
related factors of age and her attempts to bring problems to the
attention of her supervisors." Id. at 4. When the grievance was not
resolved, it was submitted to arbitration.
The Arbitrator found that the testimony and documentary evidence
presented at the arbitration hearing did not support the grievant's
contentions that the Agency improperly failed to select her for the
disputed position. The Arbitrator determined that the Agency had
articulated "a legitimate, non-discriminatory reason for the
nonselection of the Grievant(.)" Id. at 17.
The Arbitrator stated that both the grievant and the selectee were
well qualified for the disputed position and the selectee's educational
background "ultimately became the 'tie-breaker'()" between them. Id. at
20. The Arbitrator also stated that "one would nearly have to conclude
that (the grievant) was the victim of a 'conspiracy' since several
people had a hand in making the promotion decision." Id. at 19. The
Arbitrator rejected, in this regard, the grievant's "speculat(ion) that
(the selecting official) might have been biased against her because she
had filed a prior grievance . . . ." Id. at 21.
In the Arbitrator's view, "(the grievant's) arguments failed to
adequately support her allegations." Id. at 18. Accordingly, the
Arbitrator denied the grievance.
The Union contends that the award is deficient because "it is not
based on the facts in this case." Exception at 1. Specifically, the
Union contends that the Arbitrator erred in four "critical factual
points(.)" Id. The Union argues that: (1) the Arbitrator's conclusion
that the selectee's educational background was the tie-breaker between
the selectee and the grievant is not supported by the record; (2) the
Arbitrator's finding that it was necessary for the Union to establish a
conspiracy between the Agency officials is erroneous; (3) the
Arbitrator improperly emphasized the Union's argument regarding bias
against the grievant for having filed a grievance; and (4) the
Arbitrator did not properly evaluate testimony regarding alleged age
discrimination. The Union maintains that "these factual errors led the
Arbitrator to rule in favor of VA and against the grievant." Id. at 4.
The Agency contends that the Union's exception should be denied
because the Union failed to: (1) cite authority for its arguments; and
(2) provide a copy of the award with its exceptions. The Agency also
contends that the Union's exception constitutes mere disagreement with
the Arbitrator's award and does not demonstrate that the award is
deficient.
We reject the Agency's argument that the exception should be denied
on procedural grounds. The Union's exception adequately sets forth the
basis on which the award is assertedly deficient, includes a copy of the
award, and otherwise complies with the Authority's Rules and
Regulations. On the merits, we conclude that the Union has not
established that the Arbitrator's award is deficient.
We construe the exception as a contention that the award is based on
nonfacts. We will find an award deficient on this ground if it is
demonstrated that a central fact underlying an award is clearly
erroneous, but for which a different result would have been reached by
the arbitrator. See, for example, U.S. Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland and
American Federation of Government Employees, Local 1923, 39 FLRA 430,
435 (1991).
The Arbitrator concluded, based on his evaluation of the evidence,
that the Union had not demonstrated that the grievant's nonselection was
improper, biased, or otherwise flawed. The Union disputes certain
arbitral findings but has not established that the findings were central
facts underlying the award or were clearly erroneous. Therefore, the
Union has not demonstrated that the award is based on nonfacts.
Instead, the exception constitutes mere disagreement with the
Arbitrator's findings of fact and evaluation of the evidence and
testimony and provides no basis for finding the award deficient. For
example, U.S. Department of the Air Force, Air Force Logistics Center,
McClellan Air Force Base, Sacramento, California and International
Federation of Professional and Technical Engineers, Local 330, 37 FLRA
1071, 1075 (1990).
The Union's exception is denied.
42 FLRA 1105
42 FLRA NO. 76
Case No. 0-AR-2138
U.S. Department of Health and Human Services, Social Security
Administration, Area II, Philadelphia Region
(Agency)
American Federation of Government Employees, Local 1923
(Union)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on a motion filed by the Agency
seeking reconsideration of an Authority Order dated August 23, 1991,
dismissing the Agency's exceptions to an arbitration award because the
exceptions did not include a proper statement of service. The Union
filed an opposition to the Agency's motion for reconsideration.
For the following reasons, we conclude that the Agency has not
established that extraordinary circumstances exist warranting
reconsideration of the Authority's Order. Accordingly, we will deny the
motion for reconsideration.
In accordance with the Authority's Rules and Regulations, any
document filed with the Authority must be served on "all counsel of
record or other designated representative(s) of parties(.)" 5 C.F.R.
Section 2429.27(a). Service must be made by certified mail or in
person. 5 C.F.R. Section 2429.27(b). A signed and dated statement of
service which shows that proper service has been made must be submitted
with all documents which are filed with the Authority. 5 C.F.R.
Section 2429.27(c).
By Order dated July 25, 1991, the Authority notified the Agency that
its exceptions were deficient because the statement of service did not
include: (1) the name and address of the Arbitrator; and (2) a
statement showing that the counsel of record or other designated Union
representative(s) had been properly served. The Agency was also
notified that failure to document proper service on all parties and to
provide the name and address of the Arbitrator not later than August 5,
1991, may result in the dismissal of the exceptions.
Noting that the Agency had not responded to the Authority's Order of
July 25, 1991, the Authority dismissed the Agency's exceptions by Order
dated August 23, 1991.
The Agency contends that, although its July 15, 1991, submission to
the Authority did not contain either the address of the Arbitrator or
the address of the Union's representative, actual service on the parties
was effected on that date. The Agency argues that both the Arbitrator's
address and the Union representative's address "are known to the
Authority and are contained in its computerized data base." Motion for
Reconsideration at 2. The Agency also asserts that the Authority,
utilizing its database, served the dismissal order by certified mail,
return receipt requested, on the Union representative.
The Agency further argues that it did not timely respond to the
Authority's Order requesting that deficiencies in the exceptions be
corrected because clerical misrouting in the Agency's internal mail
system prevented a timely response to the Order. The Agency states that
it "did not become aware of the Authority's Order . . . until . . .
August 23," at which time a response was prepared and delivered to the
Authority on August 27, 1991. Id. at 4.
According to the Agency, the need for proper documentation of service
on the parties is not in dispute. The Agency states, however, that
"surely documentation of service is of secondary importance to the
timely effectuation of service." Id. at 5.
The Union contends that, in accordance with the Authority's Rules and
Regulations, the Agency did not file proper exceptions to the
Arbitrator's award. The Union asserts that the Agency did not "properly
file exceptions or follow pr(e)scribed time limits to take corrective
action." Opposition at 3. The Union requests that the Authority dismiss
the Agency's motion for reconsideration.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish the existence of "extraordinary circumstances"
to request reconsideration of a final decision or order of the
Authority. We conclude that the Agency has failed to establish the
existence of extraordinary circumstances.
We note the Agency's argument that the Authority has, in its
computerized database, the address of the Arbitrator and information
sufficient to properly serve the Union's representative in this case.
However, section 2425.2(e) of the Authority's Rules and Regulations
requires that an exception be a "self-contained" document that includes
the "name and address of the arbitrator(.)" Accordingly, the Agency's
argument does not establish the existence of extraordinary
circumstances.
It is undisputed that the exceptions did not contain information
sufficient to document proper service on all parties. The Agency
concedes that "neither the exceptions nor (the Arbitrator's) award
state(s) the mailing address" of the Arbitrator. Motion for
Reconsideration at 2. The Agency also concedes that "the Authority
lacked on August 23 a piece of paper . . . documenting service to" the
Union's representative. Id. at 3-4. The Agency argues, however, that
"in the interest of justice, the Agency's clerical misrouting of the
Authority's July 25 Order requesting documentation of service should not
be used as a basis for dismissing these exceptions." Id. at 1-2.
In Department of the Army, Aberdeen Proving Ground and I.A.M. & A.
W., Aberdeen Lodge No. 2424, 34 FLRA 521, 523 (1990) (Aberdeen Proving
Ground), the Authority held that a delay originating in the agency's
internal mailing procedures did not establish extraordinary
circumstances sufficient to warrant Authority reconsideration of its
decision to dismiss the agency's exceptions as untimely filed.
Consistent with the decision in Aberdeen Proving Ground, the Agency's
clerical misrouting of the Authority's Order requiring the Agency to
document proper service on the parties and provide the name and address
of the Arbitrator does not establish extraordinary circumstances, within
the meaning of section 2429.17 of the Authority's Rules and Regulations,
sufficient to warrant reconsideration of the Authority's Order
dismissing the Agency's exceptions for failure to document proper
service on the parties.
The Agency's motion for reconsideration is denied.
42 FLRA 1098
42 FLRA NO. 75
Case No. 0-AR-2113
U.S. Department of The Treasury, Internal Revenue Service, Midwest
Region, Chicago, Illinois
(Agency)
National Treasury Employees Union
(Union)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator George R. Fleischli filed by the Agency under section 7122(
a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union filed an opposition to the Agency's exceptions.
The Arbitrator found that two Agency officials violated the
grievant's rights under the parties' collective bargaining agreement in
connection with an interview of the grievant by a police detective. The
Arbitrator directed the two officials to provide the grievant with
letters of apology.
For the following reasons, we conclude that the Agency fails to
establish that the award is deficient and we will deny the exceptions.
An inspector in the Agency's Inspection Division agreed to allow a
city detective to interview the grievant on Agency premises concerning a
police matter. The Agency inspector contacted the chief of the Agency's
Employee Relations (ER) Section to arrange the interview. The ER chief
asked the grievant's immediate supervisor to have the grievant report to
the ER Section for the police interview. The ER chief advised the
supervisor of the reason for the request, but asked her to indicate to
the grievant that the purpose was to discuss insurance matters. On her
arrival at the ER Section, the ER chief asked the grievant "a couple of
perfunctory questions about her insurance and then led her to a room
which the Agency had made available to a member of the (police), . . .
for the purpose of conducting an interview." Award at 2 (footnote
omitted). After questioning by the detective, the Agency inspector
interviewed the grievant to ascertain whether she had any knowledge of
certain illegal activity.
A grievance was filed over the Agency's conduct in connection with
the police interview. When the grievance was not resolved, it was
submitted to arbitration. As relevant here, the parties agreed that the
following two issues, as framed by the Arbitrator, were appropriate for
resolution:
Did the Agency violate the contract, . . . Article 5 in the
incident involving (the grievant) that occurred on January 29,
1990; and, if so, what is the appropriate remedy? /1/ Did the
Agency violate the contract, . . . Appendix 5-5, in the incident
involving (the grievant) that occurred on January 29, 1990; and,
if so, what is the appropriate remedy? /2/
Id. at 12 (footnotes added).
The Arbitrator found that the Agency inspector violated Article 5 of
the agreement by failing to advise the grievant of her right to Union
representation during the interview. The Arbitrator stated that the
inspector's interview with the grievant occurred in a "coercive
context," immediately following "a surprise felony investigation." Id.
at 36. The Arbitrator found that "(c)ommon sense would dictate that the
grievant should have been advised of her rights during a 'third party
witness' interview" if the inspector wanted to question the grievant
about illegal activity. Id.
The Arbitrator also found that the Agency's ER chief violated
Appendix 5-5 of the agreement by failing to timely inform the grievant
of the police interview. The Arbitrator found that, "accepting that
(the ER chief) was justified in employing a 'subterfuge' in conveying
the request that she come to his office for the reasons he gave, there
was no justification for his subsequent failure to candidly explain to
the grievant the real purpose of his request." Id. at 38. Accordingly,
the Arbitrator found that the grievant "was not treated with appropriate
courtesy and tact under the circumstances." Id.
The Arbitrator awarded the following remedies for the two violations
of the collective bargaining agreement:
A. The grievant should be sent a letter, over the signature of
(the Agency inspector), acknowledging that her rights were
violated . . . when he conducted the interview with her and
apologizing for that violation . . . .
B. The grievant should be sent a second letter, over the
signature of (the Agency ER chief), acknowledging that her right
to be treated with courtesy and tact was violated by his failure
to inform her in a timely and candid manner of the real purpose
for calling her to his office and apologizing for such violation
of her rights. . . .
Id. at 40-41.
A. Positions of the Parties
The Agency maintains that the Arbitrator exceeded his authority when
he provided a remedy for a matter that, according to the Agency, was not
an issue in arbitration. The Agency asserts that the Union argued only
that the city police detective denied the grievant's contractual right
to courteous and tactful treatment. According to the Agency, the Union
"did not request the (A)rbitrator to decide whether (the ER chief) had
to divulge the purpose of the Grievant's presence in ER immediately upon
her arrival." Agency's Exceptions at 5. In the Agency's view, the
Arbitrator "gratuitously and inappropriately" decided that the ER chief
had failed to treat the grievant with courtesy and tact. Id.
The Union maintains that the award is not deficient on any of the
grounds set forth in section 7122(a) of the Statute. According to the
Union, the issue of whether the grievant was treated with tact and
courtesy encompassed all incidents and persons involved with the
grievant's interview by the police detective.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority when, among other things,
the arbitrator resolves an issue not submitted to arbitration, or awards
relief to persons who are not encompassed within the grievance.
American Federation of Government Employees, Local 3258 and U.S.
Department of Housing and Urban Development, Boston, Massachusetts, 38
FLRA 600, 606 (1990) (HUD).
According to the Arbitrator, the parties "agreed" that one of the
issues before him was whether the Agency violated Appendix 5-5 of the
parties' agreement. Award at 12. Nothing in the award demonstrates
that this issue was to encompass actions by the city police detective
only. In resolving the issue, the Arbitrator found that the ER chief
violated the grievant's contractual right to courteous and tactful
treatment when he failed to inform the grievant of the real reason she
had been asked to report to his office. As the Arbitrator's finding is
directly responsive to the issue before him, there is no basis on which
to conclude that the Arbitrator exceeded his authority. The Agency's
exception constitutes mere disagreement with the Arbitrator's resolution
of the issue before him. As such, the exception provides no basis for
finding the award deficient. See HUD, 38 FLRA at 606.
A. Positions of the Parties
The Agency contends that, by requiring letters of apology, the
Arbitrator violated the collective bargaining agreement. The Agency
argues that Article 43, Section 4A18 of the agreement "prohibits an
arbitrator from imposing, 'on either the Employer or the Union any
limitation or obligation not specifically provided for'" in the
collective bargaining agreement. Agency's Exceptions at 5. The Agency
argues that awarding letters of apology is "beyond the authority granted
to the arbitrator . . . ." Id. at 6.
The Agency asserts that this case is distinguishable from U.S.
Department of Justice, U.S. Federal Bureau of Prisons, U.S.
Penitentiary, Lewisburg, Pennsylvania and American Federation of
Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA
1288 (1991) (Bureau of Prisons), petition for review filed sub nom. U.
S. Department of Justice, U.S. Federal Bureau of Prisons, U.S.
Penitentiary, Lewisburg, Pennsylvania v. FLRA, No. 91-1232 (D.C. Cir.
May 21, 1991), where the Authority upheld an arbitrator's award of a
letter of apology. The Agency argues that, unlike Bureau of Prisons,
the Agency officials involved in this case did not "flagrant(ly)
disregard" the parties' agreement and the Arbitrator did not find that
the officials acted with "vindictiveness or animosity . . . ."
Exceptions at 6.
The Union asserts that the Agency "has identified no express
prohibition in law or in the contract that prevents the Arbitrator from
ordering letters of apology to (the grievant)." Opposition at 6. In the
Union's view, the collective bargaining agreement "grants an arbitrator
broad, general authority to make an employee whole by issuing a final,
binding remedy, as long as the remedy complies with law." Id. at 7.
B. Analysis and Conclusions
We construe the Agency's exception as a contention that the award
fails to draw its essence from the parties' agreement and that the
Arbitrator exceeded his authority.
To demonstrate that an award fails to draw its essence from an
agreement, it must be shown that the award: (1) cannot in any rational
way be derived from the agreement; (2) is so unfounded in reason and
fact, and so unconnected with the wording and the purpose of the
agreement as to manifest an infidelity to the obligation of the
arbitrator; (3) evidences a manifest disregard for the agreement; or
(4) does not represent a plausible interpretation of the agreement.
See, for example, U.S. Department of Commerce, Patent and Trademark
Office and Patent Office Professional Association, 41 FLRA 1042, 1048
(1991). As noted previously, an arbitrator exceeds his/her authority
if, for example, the arbitrator resolves an issue not in dispute or
awards relief to persons not encompassed by a grievance.
As noted by the Union, Article 43, Section 4(A)(8) of the parties'
agreement provides arbitrators with "the authority to make an aggrieved
employee whole to the extent such remedy is not limited by law . . . ."
Enclosure 2 to Agency's Exceptions at 72. The Agency has not
established that this authority excludes written apologies. Moreover,
the Agency has not established that the award is irrational,
implausible, or unconnected to the wording or purpose of the collective
bargaining agreement, including Article 43, Section 4(A)(18).
Accordingly, the Agency has not established that the award fails to draw
its essence from the agreement.
In addition, the issues before the Arbitrator, as agreed to by the
parties, encompassed determinations as to an appropriate remedy for any
contractual violations. As the Arbitrator's remedies are responsive to
the issues before him, there is no basis on which to conclude that the
Arbitrator exceeded his authority.
Finally, we find unpersuasive the Agency's argument that the
Arbitrator exceeded his authority based on Bureau of Prisons. In Bureau
of Prisons, the Authority concluded that "(a)s the conduct of the
(a)gency and its officials was directly at issue . . . the (a) rbitrator
did not exceed his authority when he ordered the (a)gency to issue a
written apology to the grievant . . . ." 39 FLRA at 1296. We reach the
same conclusion here. Consequently, Bureau of Prisons provides no basis
for finding the award deficient.
As the Agency's exceptions provide no basis for finding the award
deficient, we will deny the exceptions.
The Agency's exceptions are denied.
(1) Article 5, Section 4(A) of the agreement provides, in pertinent
part:
A. Any employee who is the subject of a conduct investigation
or who reasonably believes that an interview with Internal
Security may result in disciplinary action has the right to
representation by a person designated by the Union as follows: .
. . .
2. Prior to beginning interviews with employees who are being
interviewed as third party witnesses, the employees will be
provided with IRS Form 9142(.) (See Appendix 5-4.)
Award at 8. IRS Form 9142 advises employees that they may request Union
representation at any time during a third party witness interview, if
they believe they may be subject to discipline because of their
statements.
(2) As relevant, Appendix 5-5 provides:
Based on contractual agreements between the (Union) and the
(Agency), all (Agency) bargaining unit employees have the
following rights:
-- To be treated with courtesy and tact . . . .
Award at 11.
42 FLRA 1059
42 FLRA No. 74
Case Nos. 1-CA-00107, 1-CA-00161
Department of Veterans Affairs, Washington, D.C., and Department of
Veterans Affairs Medical Center, Canandaigua, New York
(Respondent)
American Federation of Government Employees, AFL-CIO, Local 3306
(Charging Party/Union)
October 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the General Counsel and the Union to the attached
decision of the Administrative Law Judge. The Respondent filed an
opposition to the exceptions.
The complaint /1/ alleges that the Respondent violated section 7116(
a)(1), (2), and (4) of the Federal Service Labor-Management Relations
Statute (the Statute) by issuing notices of proposed discharge to two
registered nurses. The Judge concluded that the Respondent did not
violate the Statute and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations,
we have reviewed the rulings of the Judge made at the hearing and find
that no prejudicial error was committed. The rulings are affirmed.
After consideration of the entire record, we find, for the following
reasons, that the complaint must be remanded to the Judge.
A. Background
The American Federation of Government Employees, AFL-CIO (AFGE),
represents nationwide, consolidated bargaining units of professional and
nonprofessional employees of the Department of Veterans Affairs. The
Union is AFGE's agent for the purposes of representing employees at the
Medical Center in Canandaigua, New York.
The Respondent's published policies concerning abuse of patients in
Respondent's facilities define "patient abuse" as including "assault
upon or injury to a patient; teasing a patient; speaking harshly,
rudely or irritably to a patient, laughing at or ridiculing a patient;
and indifference." Judge's Decision at 4. The policies require all
employees to make prompt and accurate reports of alleged patient abuse
to their supervisors. A particular document, VA Form 10-2633, must be
filed if an employee witnesses patient abuse or receives a report of an
incident involving patient abuse. Specifically, a "professional
employee in charge at the time of the alleged abuse" must file the form
"by the end of the work shift" involved. Id. An employee who fails to
promptly report alleged patient abuse is subject to disciplinary action.
B. William Ward
William Ward, a registered nurse appointed pursuant to 38 U.S.C.
Section 4104, began employment with the Respondent in 1981. /2/ Ward
became a Union official in 1986 and, in October 1989, became the Union's
president. During the time period relevant here, Ward engaged in Union
activities, with the knowledge of the Respondent, on behalf of unit
employees. Among other things, Ward filed a grievance regarding certain
activities of the Head Nurse and requested, as a remedy, his
reassignment to another nursing unit. On April 11, 1989, the Chief
Nurse agreed to transfer Ward to another unit.
On April 12, 1989, the Head Nurse submitted three VA Forms 10-2633
regarding three instances of alleged patient abuse by Ward on March 31,
1989. The Head Nurse reported that she witnessed one of the incidents
and that the other two were reported to her on March 31. At the time of
the unfair labor practice hearing in this case, no disciplinary action
had been taken against the Head Nurse or others for failing to submit
the allegations of patient abuse earlier.
The Medical Center Director appointed an investigative team that
concluded that the three incidents constituted patient abuse and, on
July 25, 1989, the Chief Nurse recommended Ward's discharge. The
recommendation was forwarded to the Department of Veterans Affairs in
Washington, D.C. and, on September 25, 1989, Ward was issued a notice of
proposed discharge under 38 U.S.C. Section 4110. /3/ The notice advised
Ward of his right to request a hearing before a disciplinary board
appointed by the Chief Medical Director.
Pursuant to Ward's request, a disciplinary board hearing was held on
March 19-21, 1990. In responding to the charges of patient abuse, Ward
argued "that such charges were brought against him as retaliation for
his activity as an official of the Union." Id. at 10. Prior to the
notice of proposed discharge, Ward had never been disciplined by the
Respondent.
C. David Bellomo
David Bellomo, a registered nurse appointed pursuant to 38 U.S.C.
Section 4104, worked at the Canandaigua facility for 13 years. Bellomo
became an active Union representative in 1987. At times relevant here,
Bellomo engaged in various Union activities, with the knowledge of the
Respondent, on behalf of unit employees.
On June 16, 1989, a patient alleged that he had been abused by
Bellomo on June 10. The Medical Center Director appointed an
investigative team that issued a report finding that Bellomo's action
constituted patient abuse. On September 1, the Chief Nurse reviewed the
investigative team's report and recommended, with the Chief of Staff's
concurrence, that Bellomo's "'continued retention' be reviewed." Id. at
12. The Acting Medical Center Director forwarded a recommendation that
Bellomo be discharged to the Department of Veterans Affairs in
Washington, D.C. and, on December 6, 1989, Bellomo was issued a proposed
notice of discharge, pursuant to 38 U.S.C. Section 4110, for alleged
patient abuse on June 10. Bellomo requested a hearing before a
disciplinary board. The hearing was held on May 16-17, 1990.
The Judge concluded that "Respondent's proposals to discharge Ward
and Bellomo (were) not substantively reviewable" in an unfair labor
practice proceeding and recommended that the complaint be dismissed.
Judge's Decision at 2. The Judge also stated, however, that if "Ward
and Bellomo were deemed to be protected by the Statute, (he) would find
that Respondent's conduct violated the Statute." Id.
The Judge noted that the notices of proposed discharge were issued
pursuant to procedures promulgated under 38 U.S.C. Section 4110. Citing
the Authority's decision in U.S. Department of Veterans Affairs,
Veterans Administration Medical Center, San Francisco, California, 40
FLRA 290 (1991) (VA Medical Center), among others, the Judge stated that
such procedures are exclusive for resolving disputes regarding
discipline of professional employees for misconduct. The Judge stated
that an Authority finding that the Respondent violated section 7116(a)
of the Statute would "supersede, override, or otherwise modify the
provisions of 38 U.S.C. Section 4110." Judge's Decision at 19. Such a
result, according to the Judge, is "barred by 38 U.S.C. Section 4119."
/4/ Id.
The Judge also stated that the "law is somewhat unsettled in this
area(.)" Id. at 19. In particular, the Judge stated that the
Authority's decision in VA Medical Center addressed "final
determinations" whereas the instant case involved "proposed removals .
. . ." Id. (emphasis in original). Accordingly, the Judge considered
"the record . . . to avoid the possible necessity of a remand." Id.
Based on the record, the Judge concluded, as relevant here, that Ward
and Bellomo were engaged in activities protected by the Statute, that
these activities were known to the Respondent, and that "Union animus
motivated in some part the decision to propose their dismissal( s)." Id.
at 24. The Judge concluded further that even if the Respondent had
established legitimate justification for taking disciplinary actions
again Ward and Bellomo, the Respondent "failed to demonstrate by a
preponderance of the evidence that it would have proposed the same
action . . . in the absence of protected activity." Id. Based on the
Judge's examination of disciplinary actions proposed against other
registered nurses at the Canandaigua facility for alleged patient abuse,
the Judge concluded that "the alleged patient abuse of Ward and Bellomo
was not sufficiently distinguishable from that of other nurses to merit
the harsher discipline of proposed discharge." Id.
The Judge summarized his decision as follows:
(I)f this proceeding were not barred by the provisions of title 38
and the activities of Ward and Bellomo were deemed protected by
section 7102 of the Statute, I would conclude that the General
Counsel has established by a preponderance of the evidence that
the proposed discharges of Ward and Bellomo were motivated by
their protected activity. Further, even assuming that the
Respondent had legitimate justification for taking some form of
disciplinary action against Ward and Bellomo, I would conclude
that the Respondent has failed to demonstrate by a preponderance
of the evidence that it would have proposed the same action . . .
in the absence of protected activity. Accordingly, if these
circumstances had prevailed, violations of section 7116(a)(1),
(2), and (4) would have been found.
Id. at 26.
A. The General Counsel's Exceptions
The General Counsel excepts only to the Judge's "conclusion that the
Respondent's proposals to discharge two title 38 employees are not
substantively reviewable by the Authority in this proceeding." General
Counsel's Exceptions at 1. According to the General Counsel, the
Authority's decision in VA Medical Center establishes that professional
employees of the Department of Veterans Affairs are entitled to exercise
rights under section 7102 of the Statute and that a respondent's
unlawful interference with the exercise of such rights violates section
7116 of the Statute. The General Counsel argues that it must have an
opportunity to demonstrate that a respondent's asserted lawful reasons
for taking an action are unlawful. The General Counsel contends that it
established that "the lawful reasons asserted by Respondent are not the
real reasons why it proposed these discharges and that the real reason
was unlawful . . . ." Id. at 6 (emphasis omitted).
B. The Union's Exceptions
The Union excepts to the Judge's conclusion that the notices of
proposed discharge are not substantively reviewable in this proceeding.
According to the Union, the Respondent did not assert a lawful reason
for "the choice of the issuance of the proposals to removal (sic) as
opposed to a lesser penalty in conformity with what was done in other
cases of alleged patient abuse . . . ." Union's Exceptions at 3-4
(footnote omitted). The Union claims further that an Authority order
rescinding the proposed removals would not interfere with the
Respondent's authority under title 38 because such order would leave the
Respondent free to propose lesser discipline against Ward and Bellomo.
C. Respondent's Opposition
The Respodent argues that the Judge's dismissal of the complaint was
proper because the "merits" of the proposed discharges are "within VA's
exclusive authority." Respondent's Opposition at 7. The Respondent also
argues that the Authority should sustain only that portion of the
Judge's decision dismissing the complaint. According to the Respondent,
the Judge's alternative findings are "gratuitous and incompetent." Id.
The Respondent notes that, after disciplinary board hearings, Ward was
discharged and Bellomo was suspended. /5/
A. Analytical Framework
In VA Medical Center, the Authority established the framework for
resolving complaints alleging violations of section 7116(a)(2) of the
Statute in connection with a professional employee appointed to a
position in the Department of Veterans Affairs under the provisions of
title 38 of the United States Code. For reasons fully set forth in that
decision, the Authority concluded, as an initial matter, that as such an
employee "may exercise rights pursuant to section 7102 of the Statute,
and as interference with or discrimination based on the exercise of
those rights constitutes an unfair labor practice under section 7116(a)
of the Statute, the Authority has statutory jurisdiction" to resolve
complaints alleging violations of section 7116(a)(2) of the Statute. 40
FLRA at 297.
In VA Medical Center, the Authority noted that complaints alleging
violations of section 7116(a)(2) of the Statute are resolved on the
basis of the analytical framework set forth in Letterkenny Army Depot,
35 FLRA 113 (1990) (Letterkenny). Specifically, the General Counsel
must establish in such cases that an affected employee was engaged in
protected activity and that consideration of such activity was a
motivating factor in a respondent's treatment of the employee in
connection with the employee's conditions of employment. VA Medical
Center, 40 FLRA at 197 (citing Letterkenny, 35 FLRA at 118). If the
General Counsel makes this showing, a respondent may seek to establish,
by a preponderance of the evidence, the affirmative defense that there
was legitimate justification for its action and that the same action
would have been taken even if protected activity had not been
considered. Id. (citing Letterkenny, 35 FLRA at 123).
The Authority held, however, that it was unable to apply the
Letterkenny framework in VA Medical Center. The Authority noted, as
relevant here, that the authority of the Department of Veterans Affairs
to make determinations regarding professional misconduct or incompetence
under 38 U.S.C. Section 4110 is exclusive. The Authority concluded, for
the reasons set forth in VA Medical Center, that:
(T)he (Department of Veterans Affairs') exclusive authority to
determine working conditions and make decisions regarding
inaptitude, inefficien(cy), and misconduct under title 38 must be
observed. If as here, a respondent asserts a lawful reason for a
disputed action, and such assertion is consistent with action
taken pursuant to its exclusive authority under title 38 of the
United States Code and is final, the determination made pursuant
to that authority is not substantively reviewable in an unfair
labor practice proceeding.
40 FLRA at 302.
B. Application of the Analytical Framework
We find no reason to depart from our conclusion regarding the
Authority's jurisdiction in VA Medical Center. Accordingly, insofar as
the Judge's decision may be read as holding either that the Authority
lacks jurisdiction to resolve the complaint in this case /6/ or that
Ward and Bellomo were not entitled to exercise rights under section 7102
of the Statute, /7/ we reject those holdings.
We also find no reason, and none is urged, for applying a different
framework for resolving complaints alleging violations of section 7116(
a)(4) of the Statute, especially where, as here, such alleged violation
is based on the same conduct alleged to have violated section 7116(a)(
2). /8/ Accordingly, we conclude that, consistent with VA Medical
Center, a respondent's asserted lawful reason for taking action which is
alleged to violate section 7116(a)(2) or (a)(4) of the Statute is not
substantively reviewable in an unfair labor practice proceeding if that
asserted lawful reason is consistent with final action taken pursuant to
exclusive authority under title 38 of the United States Code.
Applying the framework set forth in VA Medical Center we conclude
that the complaint must be remanded to the Judge. We note two things at
the outset.
First, the Authority stated in VA Medical Center, that a respondent's
asserted lawful reason for taking a disputed action must be evaluated
"with due regard for the . . . exclusive authority to . . . make
decisions regarding inaptitude, inefficiency, and misconduct under title
38." 40 FLRA at 300. Based on this exclusive authority, the Authority
held that a respondent's asserted lawful reason for taking an action is
not substantively reviewable if "such assertion is consistent with
action taken . . . under title 38 . . . and is final(.)" Id. at 302.
The Authority did not elaborate on the meaning of "final" action in
VA Medical Center, which involved the separation of a probationary
employee following review of the employee's qualifications by a Nurse
Professional Standards Board under 38 U.S.C. Section 4106. /9/ We now
hold that "final" action, within the meaning of VA Medical Center,
encompasses a final administrative determination made pursuant to the
exercise of exclusive authority under title 38. That is, an action
taken under title 38 is final, for purposes of unfair labor practice
proceedings, at such time as that action is accorded administrative
finality under title 38 or regulations issued pursuant to title 38. We
find no reason, however, and none is asserted, for holding that any
subsequent judicial review of title 38 proceedings affects
administrative finality for our purposes. /10/
Second, the "due regard" for exclusive authority under title 38 would
be rendered meaningless, in our view, if we were to hold that a
respondent's asserted lawful reasons for taking a disputed action were
substantively reviewable in unfair labor practice proceedings provided
such review occurred during the pendency of, rather than after
conclusion of, title 38 proceedings. As such, the finality of
administrative action under title 38 is a prerequisite to adjudication
of complaints alleging violations of section 7116(a)(2) and (4). Put
simply, until such time as title 38 proceedings are administratively
final, it is impossible to determine whether action which allegedly is
unlawful under the Statute is, in fact, consistent with the exclusive
authority of the Department of Veterans Affairs under title 38.
Accordingly, insofar as the Judge's alternative findings regarding the
complaint are based on the fact that the complaint involved proposed,
rather than final, actions, we reject those findings. /11/
This case involves disciplinary proceedings under 38 U.S.C. Section
4110. Subsection (d) of that section provide that "(t)he decision of
the (Secretary) shall be final." See n.3. Subsection (e) provides that
although the Secretary's authority may be delegated to the Chief Medical
Director, "(a)ny person against whom disciplinary action is taken . . .
shall have the right to appeal such action to the (Secretary.)" Id.
Subsection (e) also provides that in the absence of an appeal, the Chief
Medical Director's decision "shall have the same force and effect as a
decision of the (Secretary)." Id. The record before us does not
disclose whether the Department of Veterans Affairs has issued
regulations under section 4110. It appears from the plain wording of
the section, however, that an action taken under 38 U.S.C. Section 4110
is accorded administrative finality when: (1) no appeal is taken from a
decision by the Chief Medical Director, or (2) a decision is rendered by
the Secretary, pursuant to an appeal of such decision. See also
Veterans Administration Medical Center, Northport, New York v. FLRA, 732
F.2d 1128, 1131 (2d Cir. 1984) (court stated that under section 4110,
"peer review boards hold hearings, determine facts, and recommend
disciplinary action to the Veteran's Administrator, whose decision is
final.").
Applying the foregoing, we are unable to determine from the record
before us whether the disputed proposed notices of discharge are
consistent with final determination made by the Department of Veterans
Affairs under title 38. It is undisputed that the complaint in this
case issued, and the unfair labor practice hearing occurred, at a time
when disciplinary proceedings under title 38 were pending. /12/
Consistent with the record developed at the unfair labor practice
hearing, the Judge's decision makes no reference to events subsequent to
the disciplinary board hearings.
The Respondent asserts, without elaboration, that subsequent to the
disciplinary board hearings, the Respondent "discharged nurse Ward and
suspended nurse Bellomo." Opposition at 2. These assertions are
undisputed. However, the Respondent further asserts that at the time
its opposition was filed, Ward had "appealed his discharge to the VA
Secretary(.)" Id. Although it is possible to infer from the
Respondent's opposition that no appeal was filed regarding suspension
and that, accordingly, that action is final, we are unwilling to make
that finding in the absence of further information in the record.
As we are unable, on the basis of this record, to resolve the
complaint, we will remand the complaint to the Judge. On remand, absent
settlement, the Judge must determine, consistent with this decision and
VA Medical Center, whether the disputed proposed discharges are
consistent with final action taken by the Respondent pursuant to its
exclusive authority under title 38. /13/ If the proposed discharges are
consistent with such final action, the complaint must be dismissed. If
the proposed discharges are not consistent with such final action, the
Judge must resolve the merits of the complaint.
The complaint is remanded to the Judge for further proceedings
consistent with this decision.
Case Nos. 1-CA-00107, 1-CA-00161
DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C. AND DEPARTMENT OF
VETERANS AFFAIRS MEDICAL CENTER, CANANDAIGUA, NEW YORK
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3306
Charging Party
James F. Mietlicki, Counsel for the Respondent
Martin R. Cohen, Counsel for the Charging Party
Peter F. Dow, Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER, Administrative Law Judge
The unfair labor practice complaint alleges that Respondent violated
section 7116(a)(1), (2) and (4) of the Federal Service Labor-Management
Relations Statute (the Statute), 5 U.S.C. Sections 7116(a)(1), (2) and
(4), by issuing proposed notices of discharge to Registered Nurse
William Ward, President of the Charging Party (Union), and Registered
Nurse David Bellomo, Vice President of the Union, because they were
involved in filing unfair labor practice charges against the Respondent
and because of their activities for and on behalf of the Union.
Respondent denies these allegations and asserts (1) that the proposed
notices of discharge were issued to Ward and Bellomo as part of
disciplinary proceedings initiated against them as nurses under 38
U.S.C. Section 4110; (2) these disciplinary proceedings are exclusive
under the provisions of 38 U.S.C. Section 4119 and bar action under
Title 5 which would effect this disciplinary process; (3) the issues
raised in the complaint have been, or may be, raised under the appeals
procedure of 38 U.S.C. Section 4110 and, therefore, may not be raised in
this proceeding by operation of 5 U.S.C. Section 7116(d); (4) the
Authority while having jurisdiction to examine the issue of causal
connection between the employees' nonbargaining union activity and the
disciplinary action is prohibited from reviewing the clinical and
professional judgment of activity management; and (5) the disciplinary
proposals against Ward and Bellomo would have been taken whether or not
such individuals engaged in Union activity under the Statute.
For the reasons discussed below, I find that Respondent's proposals
to discharge Ward and Bellomo are not substantively reviewable in this
proceeding. Therefore, it is recommended that the case be dismissed.
If, however, Ward and Bellomo were deemed to be protected by the
Statute, I would find that Respondent's conduct violated the Statute.
A hearing was held in Canandaigua, New York. The Respondent, Union,
and the General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. /14/ The
Respondent and General Counsel filed helpful briefs and the proposed
findings have been adopted where found supported by the record as a
whole. Based on the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions of law, and recommendations.
The Parties
The Respondent is an agency within the meaning of 5 U.S.C. Section
7103(a)(3), and the Union is a labor organization within the meaning of
5 U.S.C. Section 7103(a)(4).
At all times material herein, the American Federation of Government
Employees, AFL-CIO, has been and is now the certified exclusive
representative of separate nationwide consolidated units of professional
and nonprofessional employees employed by the Department of Veterans
Affairs which includes professional employees at the Department of
Veterans Affairs Medical Center in Canandaigua, New York.
At all times material herein, the Respondent has recognized the
Charging Party, Local 3306, as the agent and representative of the
American Federation of Government Employees, AFL-CIO, for the purpose of
representing bargaining unit employees at the Department of Veterans
Affairs Medical Center in Canandaigua, New York.
The Department of Medicine and Surgery Statute
In 1946 Congress established the Department of Medicine and Surgery
(DM&S) within the Veterans Administration, Ch. 658, 59 Stat. 652 (1945)
(codified as amended at 38 U.S.C. Section 4101 et seq. (1988)) (DM&S
statute). The DM&S was established "to provide a complete medical and
hospital service . . . for the medical care and treatment of veterans."
38 U.S.C. Section 4104(a).
In enacting and amending the DM&S statute, Congress established an
extensive personnel system, independent of the civil service system, to
cover the professional medical employees at DM&S. /15/ Appointments to
positions in the DM&S are made "only after qualifications have been
established in accordance with regulations prescribed by the
Administrator, without regard to civil-service requirements." /16/ 38
U.S.C. Section 4106(a). Employees appointed to the DM&S must serve a
two year probationary period. 38 U.S.C. Section 4106(b). Promotions
for the professionals are based on the qualifications established by the
Administrator. 38 U.S.C. Section 4106(c).
The DM&S statute provides that the working conditions for these
professionals be established almost exclusively without regard to the
civil service laws of title 5. /17/ Section 4107 establishes the grade
and pay scales for these employees. Particularly relevant here, the
Administrator is directed to prescribe by regulation the conditions of
employment of the professional medical employees. 38 U.S.C. Section
4108(a). Internal disciplinary boards are to be established to handle
performance or misconduct problems. 38 U.S.C. Section 4110. Finally,
the agency has the authority to promulgate any remaining regulations
necessary for the administration of DM&S. 38 U.S.C. Section 4115. In
1980 an amendment was added to the DM&S statute which mandated that the
provisions of the DM&S statute will override any inconsistent provisions
of title 5 or other laws pertaining to the civil service system. 38
U.S.C. Section 4119.
The Respondent's Published Policy Concerning Patient Abuse
Respondent defines patient abuse as including assault upon or injury
to a patient; teasing a patient; speaking harshly, rudely or irritably
to a patient; laughing at or ridiculing a patient; and indifference.
A primary requirement of the Respondent's patient abuse policy is that
all employees, supervisors and managers must make prompt, timely and
accurate reports of alleged patient abuse to their superiors. The
Respondent's prompt reporting rule requires the professional employee in
charge at the time of the alleged abuse to make a written report (VA
Form 10-2633) of the incident by the end of the work shift. The reason
for this rule is (1) to insure prompt examination of the patient by a
physician for evidence of physical and/ or mental abuse; (2) to provide
for the prompt treatment of patients who have suffered physical and/or
mental abuse; and (3) to provide timely notice of the allegations to
the accused employee and provide an opportunity for that employee to
preserve evidence to defend against the charges.
The requirement for reporting patient abuse is not conditioned upon
whether an employee witnessing an incident wants to fill out a VA Form
10-2633. Rather, a report must be filed once an employee, supervisor or
manager either witnesses patient abuse or receives a report of an
incident involving abuse. The Respondent's policy provides for
disciplinary action whenever an employee, supervisor or manager fails to
promptly report alleged patient abuse.
Respondent's policy provides that the administrative penalty for
patient abuse is removal. A lesser disciplinary action may be imposed
only when the abuse is considered to be of a minor nature and is not a
repeated offense, or where there are mitigating or extenuating
circumstances. Intent to abuse a patient is not an element of patient
abuse and absence of intent is not a valid consideration in determining
whether patient abuse has occurred. The Respondent considers repeat
instances of patient abuse as a very important factor when applying its
policy. The Respondent has provided written guidance to its employees
concerning the nature of the mitigating or extenuating circumstances
which will serve to excuse an employee's application of force against a
patient. This guidance permits an employee to use reasonable force
directed at a patient only in instances involving an assaultive patient.
Reasonableness is determined from the circumstances including the
patient's age, physical size, condition, weight and health.
The Case of Registered Nurse William Ward
William Ward was at all times relevant employed by the Respondent in
the position of nurse at the Department of Veterans Affairs Medical
Center, Canandaigua, New York. He was appointed to such position for
the medical care of veterans pursuant to the provisions of 38 U.S.C.
Section 4104.
William Ward has worked as a registered nurse at the Respondent's
Canandaigua, New York facility since 1981. He has served as an official
of the Union since 1986, initially as Executive Vice President and since
October 1989 as President.
From November 1987 until April 1988 Ward was the acting head nurse on
ward 37-B. Ward agreed with Chief Nurse Gregory Skomra that he would
take a leave of absence from his Union office while serving as the
acting head nurse. In mid-March 1988 Skomra selected Barbara Jones,
R.N., for the permanent head nurse position. When Skomra told Ward of
Jones' selection, Skomra asked Ward what he was going to do about his
position with the Union. Ward replied that he planned to return to his
Union duties. Skomra asked whether Ward considered that to be in the
best interests of his career.
In early April 1988, just after Barbara Jones became head nurse on
37-B, Ward, on behalf of the Union, represented a registered nurse at a
meeting with Jones. At this meeting Jones counseled the nurse regarding
the performance of his duties during an incident which resulted in a
patient's death. Ward insisted during the meeting that Jones shared
responsibility for the incident.
On October 17, 1988 Ward filed a grievance on behalf of a registered
nurse, John Britton, and other nurses which challenged the assignment of
a new employee to a position vacancy instead of to a nurse with
seniority. When Chief Nurse Skomra failed to respond at the second
step, Ward moved the grievance to the third step where it was adjusted
by the Respondent's Center Director.
In August 1988, after some of the registered nurses had come to Ward
with questions pertaining to the application of the collective
bargaining agreement to seniority rights, overtime, and possible
disciplinary action, Jones told Ward that she resented his interference
with her supervisory authority. On another occasion in November 1988,
Jones overheard a nurse's conversation with Ward about the propriety of
a doctor's orders and whether the Union would support the nurse's
proposed action. Jones told Ward that she was getting tired of his
interfering with matters; that he was no longer the head nurse; that
he and the Union were not expert on everything; and it was about time
people found out for themselves that he was "not the Brittanica of
37-B."
On March 3, 1989 Ward served Jones with an unfair labor practice
charge. The charge alleged that Jones had bypassed the Union on
February 7, 1989 by bargaining directly with unit employees concerning a
change in the nurses' working hours. The charge was resolved at a
meeting between Ward, Skomra, and representatives of the personnel
office.
On March 8 and 9, 1989 Ward filed grievances on behalf of the staff
nurses on 37-B complaining of violations of the contract concerning
staffing shortages and security measures which allegedly led to a nurse
being injured. Jones told Ward during a first step grievance meeting
that he had overstepped his authority in telling a nurse which forms to
fill out after the incident; that she was sick of his interfering with
her authority; and this was the last time she was going to put up with
it. Ward replied that the nurse had asked him which forms to fill out,
but he was at this meeting only to discuss the grievance. Jones replied
that she did not want to talk about it. The grievance was moved to the
second step through Chief Nurse Skomra and was resolved there.
On March 22, 1989 Ward filed a grievance charging that Jones had
falsely accused him of inappropriate nursing documentation. Ward
requested reassignment to another psychiatric unit as a remedy. When
Jones failed to respond, Ward moved the grievance to the second step
where, on April 11, 1989 he and his Union representative, David Bellomo,
met with Skomra. Skomra wanted Jones present at this meeting, but
excluded her when Ward objected that she had not responded to his
grievance and should not be allowed to participate. Skomra proceeded to
adjust Ward's grievance by agreeing to transfer him off of 37-B. Ward
was advised later that day by telephone and by memorandum dated April 11
that his reassignment would be effective April 30, 1989. /18/
Application of Patient Abuse Policy To Ward
On April 12, 1989 Jones submitted three VA Forms 10-2633, "Report of
Special Incident Involving A Beneficiary," reporting on three instances
of alleged patient abuse by Ward which had occurred nearly two weeks
earlier on March 31, 1989. Jones reported that she witnessed one of the
incidents and the other two were reported to her earlier on March 31.
Jones was in charge of the ward. The allegations were:
1. Ward ordered a patient to strip, wash, and remake the bed
of a second patient which the first patient had soiled.
2. Ward repeatedly asked a patient if he wanted to fight and
told the patient a lot of other patients had hard feelings against
him and he would be put in ambulatory cuff and belts and other
patients could get even with him. The Respondent's diagnosis of
this patient was schizo chronic paranoid with a history of
assaultive behavior. He had been admitted for chronic psychosis
and at the time of this incident was in ambulatory cuff and belt
and was very agitated.
3. Ward allegedly told an agitated patient whom Ward and an
assistant had placed in ambulatory cuff and belt that he would not
be able to smoke or lie down and would be "on hold" all weekend.
This patient was 30 years old, diagnosed as schizo affective
disorder, multi substance abuse, with a history of swallowing
foreign objects.
Between March 31 1989 and April 12, 1989 Ward worked the same
schedule as Jones. They had daily contact at work and during that
entire period Ward performed all of his regular nursing duties on 37-B.
Skomra was also at work throughout this period. At no time in that
period did Jones or any other representative of the Respondent mention
anything to Ward concerning the allegations of patient abuse on March
31st. Jones' delay of 12 days in reporting the alleged abuse was
improper under the Respondent's patient abuse policy. Respondent has
taken no action to investigate or discipline Jones for the delay or
Chief Nurse Skomra for failing to investigate the delay.
As a result of these allegations, the Medical Center Director
appointed a 3-member Investigation Team to investigate the allegations.
The team submitted its report on July 7, 1989 finding that the alleged
acts constituted abuse.
On July 25, 1989 Chief Nurse Skomra recommended Ward's removal. Dr.
Tao Brondum, the Chief of Staff, and Gary W. Devansky, Acting Medical
Center Director, concurred with that recommendation. The Respondent was
well aware at that time of Ward's activities as an official of the
Union.
The recommendation to remove Ward was forwarded to Respondent Central
Office in Washington, D.C. The recommendation was adopted and on
September 25, 1989 the Respondent's Central Office issued a proposed
notice of discharge to Ward for the three instances of patient abuse on
March 31st.
The proposed notice of discharge advised Ward of his rights to submit
a written explanation and to request a hearing before a Disciplinary
Board appointed by the Chief Medical Director. The Disciplinary Board
would recommend to the Chief Medical Director whether the charges should
be sustained and the final action to be taken. The notice stated that
the Chief Medical Director would make the final decision.
The proposed notice of discharge of Ward was issued pursuant to
procedures promulgated by the Secretary of Veterans Affairs under
authority of 38 U.S.C. Section 4110, relative to appointment of
disciplinary boards to determine, upon notice and fair hearing, charges
of inaptitude, inefficiency, or misconduct of any person employed in a
position provided in paragraph (1) of 38 U.S.C. 4104.
Ward submitted a written request for a hearing before the
Disciplinary Board on October 4, 1989. On October 10, 1989 he also
submitted a written explanation. His statement included the position
that the credibility of the nursing assistants who reportedly witnessed
his alleged abuse should be doubted as he had, among other things,
reprimanded them earlier that morning when they neglected their duties.
The unfair labor practice charge relating to the issuance of the
proposed discharge of Ward was filed on December 26, 1989, with
amendments thereto filed on January 29, 1990 and February 7, 1990.
Effective December 31, 1989 the Respondent denied Ward's within grade
step increase because it had proposed his discharge for patient abuse.
Ward's Disciplinary Board hearing was held on March 19-21, 1990.
Ward submitted by way of defense to such charges documentary and
testimonial evidence concerning his activity in the pursuit of
grievances and unfair labor practice charges against management
officials of the Department of Veterans Affairs and argued that such
charges were brought against him as retaliation for his activity as an
official of the Union.
Prior to this incident, Ward had not been disciplined by the
Respondent for any reason.
The Case of Registered Nurse David Bellomo
David Bellomo was at all times relevant employed by the Respondent in
the position of nurse at the Department of Veterans Affairs Medical
Center, Canandaigua, New York. He was appointed to such position for
medical care of veterans pursuant to the provisions of paragraph (1) of
38 U.S.C. 4104.
Bellomo has worked for 13 years as a registered nurse at the
Respondent's Canandaigua facility. He has served as a Union official
for over four years and has been active in his role as a Union
representative since July 1987. In both his July 1987-July 1988 and
July 1988-July 1989 evaluations Bellomo's supervisor, Joyce Lasner, Head
Nurse, noted that he was an "active member of AFGE" and had requested
official time as appropriate to attend to Union needs away from the
unit.
During the period February 16, 1989 to April 17, 1989 Bellomo
processed grievances for two registered nurses who complained that they
had been counseled by their head nurse in an improper manner. The
grievance was resolved at the second step by Gregory Skomra, Chief,
Nursing Service.
During the period February 25, 1989 to April 17, 1989 Bellomo
processed a grievance for a registered nurse who complained that she was
forced to perform overtime in violation of the contract. In presenting
the grievance at step one the head nurse merely presented Bellomo with a
previously prepared denial as she had done on two other occasions. The
grievance was resolved at the second step by Mr. Skomra.
On June 10, 1989 Bellomo was working on an acute psychiatric ward
when as agitated schizo-paranoid patient struck Bellomo on the head
several times with his fist. The patient was highly volatile and had a
history of becoming easily agitated and assaulting staff members. At
the time of this incident the patient was: 41 years old, over 6 feet
tall, in good physical health, solidly build, with no physical
infirmities, very strong, and capable of inflicting serious injury on
himself and others. The nearest staff members who could have assisted
Bellomo were over 100 yards away, behind a series of locked doors.
Bellomo wrestled the patient to the floor and eventually subdued him by
holding one of the patient's hands between his legs. Bellomo and a
nursing assistant, who had just arrived, took the patient to his room in
this fashion. According to Bellomo, if, instead of subduing the
patient, Bellomo had evaded the patient's assault and gone off looking
for help, as suggested after the fact by Skomra, he would have exposed
the 50 year old female nursing assistant on duty to the full brunt of
the assault. Bellomo promptly reported the incident in accordance with
Respondent's regulations.
On June 16, 1989 the patient alleged that he had been abused by
Bellomo during the incident. As a result, the Medical Center Director
appointed a 3-member team to investigate the allegation.
On June 19, 1989 Bellomo was reassigned from direct patient care to
the nursing home care unit where he began working for Head Nurse
Elizabeth Maio. Shortly after this assignment, the Union, on June 30
and July 7, 1989, filed three grievances concerning Maio's actions.
Bellomo asked Ward to process the grievances. They concerned failure to
orient new nurses and failure to adhere to posted times for nurses as
provided by the contract. On July 7, 1989 Maio complained to Bellomo,
"My God, David, before you came over here I had no problems with the
Union. Since you've been here, I'm having nothing but problems."
The investigating team appointed by the Medical Center Director
submitted its report on July 14, 1989 finding that Bellomo's actions on
June 10, 1989 constituted patient abuse. The team recommended
unspecified disciplinary action.
Around the end of August, Bellomo's assignment was changed again. He
was transferred to ward 9-A where three of the five Union officials were
assigned by the Respondent.
On August 24, 1989 Bellomo initiated an unfair labor practice charge
alleging that Chief Nurse Skomra failed to meet with him as a designated
representative of the Union concerning the matter of another nurse who
was also reportedly assigned out of direct patient care. On August 29th
Bellomo met with Skomra to attempt resolution of his charge. Bellomo
complained that Skomra had not subjected (Nurse "D", infra.) to the same
sort of restrictions on patient contact as those imposed on him, after
she had abused a patient on May 28, 1989. Bellomo argued that those
restrictions placed him in a difficult position should an emergency
arise with a patient. Skomra responded, "We could put you off on a
non-duty status without pay."
On September 1, 1989 Chief Nurse Skomra reviewed the report of the
investigating team concerning Bellomo's alleged patient abuse and
recommended that Bellomo's "continued retention" be reviewed. Dr. Tao
Brondum, the Chief of Staff, concurred. On September 27, 1989 Gary W.
Devansky, Acting Medical Center Director, decided that Bellomo should be
removed from the service. The Respondent was well aware at the time
that Bellomo had been an active Union official. The recommendation to
remove Bellomo was forwarded to the Respondent's Central Office in
Washington, D.C.
On December 5, 1989 Bellomo personally served the Respondent's agents
at Canandaigua, including Skomra, Brondum and Acting Center Director
Devansky, with an unfair labor practice charge. The charge alleged that
the Respondent had changed working conditions by opening a previously
locked ward without negotiating with the Union on the impact and
implementation of the change.
On December 6, 1989 the Respondent Central Office in Washington, D.
C. issued a proposed notice of discharge to Bellomo for alleged patient
abuse on June 10, 1989. The notice alleged, in part, that Bellomo had
conducted himself "in an unprofessional manner in providing care to a
patient in that you used excessive force and an inappropriate technique
to subdue and restrain a patient."
The proposed notice of discharge advised Bellomo of his rights to,
within five days, submit a written explanation and/or to request a
hearing before a Disciplinary Board appointed by the Chief Medical
Director. The Disciplinary Board would recommend to the Chief Medical
Director whether the charges should be sustained and the final action to
be taken. The notice stated that the Chief Medical Director would make
the final decision.
The proposed notice of discharge of Bellomo was issued pursuant to
procedures promulgated by the Secretary of Veterans Affairs under
authority of 38 U.S.C. 4110, relative to appointment of disciplinary
boards to determine, upon notice and fair hearing, charges of
inaptitude, inefficiency, or misconduct of any person employed in a
position provided in paragraph (1) of 38 U.S.C. 4104.
Bellomo requested a hearing on the proposed removal in December 1989,
and a hearing was held on May 16 and 17, 1990.
The unfair labor practice charge alleging unfair labor practices in
the issuance of the proposed discharge of David Bellomo was filed in
Case No. 1-CA-00161 on February 7, 1990.
Respondent's History Of Applying Its Patient Abuse Policy To Other
Registered Nurses Employed At Its Canandaigua, New York Facility
The Case of Registered Nurse -- "A"
Patient Abuse Incident #1 -- In approximately May or June 1983, the
Respondent entrusted Nurse A with the care of a patient who was then in
his late fifties or early sixties. The patient had a tracheotomy, a
permanent breathing hole in his throat, as he could not breathe through
his mouth or nose. He was also diagnosed with a psychiatric illness,
and was very strong and easily agitated. As a result, he frequently had
to be physically restrained. At the time of this incident, the patient
was secured to a tray chair. Nurse A had just given the patient some
oral medication when the patient threw the remaining water in his cup
onto the floor. As a nursing assistant mopped the spilled water, Nurse
A yelled at the patient and struck a forceful, side-arm blow to the back
of his head with a hard, rubber-soled slipper. The blow was audible,
sounding like a "real hard slap." The nursing assistant made a written
report of Nurse A's abuse of this patient. The Respondent transferred
Nurse A to another ward, but there is no record of any disciplinary
action against her for patient abuse.
Patient Abuse Incident #2 -- The next recorded instance when Nurse A
abused a patient was on or about September 11, 1985. The patient was 58
years old and suffering from organic brain damage. The incident was
investigated by Dr. Brondum. The only competent eyewitness to Nurse A's
abuse was a licensed practical nurse (LPN) since the patient's mental
infirmity rendered him incapable of providing an account of what Nurse A
had done to him. The Respondent's record of this case of patient abuse
makes clear the following points: The LPN had a good view of the
incident. Nurse A failed to observe the necessary routine for getting
an elderly patient out of bed in the middle of the night to change
Attends (diapers) and bed linens. She struggled with the patient and
pushed or struck him in the area of his chest. The patient was bruised
and Nurse A had bits of his hair in her hand following the struggle.
Nurse A was frustrated and angry at the patient. She had prior training
in handling combative patients and should have known the correct manner
for dealing with this patient. She threatened the LPN with reprisal for
reporting her abuse of this patient.
Because of Nurse A's low frustration level and easily aroused anger,
Dr. Brondum and the other members of the Respondent Investigation Panel
recommended that she be referred to the Respondent employee assistance
program. Nurse A declined that assistance. The Respondent concluded
that Nurse A had indeed abused the patient and that she should be
disciplined. The report made no reference to the fact that she had
previously assaulted and abused a patient. She was transferred to still
another shift and received a written reprimand and additional training
on how to deal with difficult patients. A month after the reprimand was
issued, the Respondent's Center Director notified the Union in response
to a grievance by the nurse that it was being removed from her file
because, although the nurse was involved in a previous patient abuse
incident, she was currently performing satisfactorily and the reprimand
had served its purpose.
Patient Abuse Incident #3 -- Six months later Nurse A was accused for
a third time of abusing patients who were placed in her care by the
Respondent. This time, two co-workers reported to their head nurse on
July 22, 1986 that Nurse A had abused four patients. The head nurse did
not report this alleged patient abuse until October 3, 1986 when she
filed a VA Form 10-2633 and a Report of Contact outlining three of the
four incidents. The Respondent's Investigation Panel considered only
two of the four incidents. The Panel concluded in its report of October
31, 1986 that no evidence was found to support the co-workers
allegations; that no dates or times could be established.
Notwithstanding these conclusions, the Panel had evidence in the form
of memoranda from Nurse A's co-workers concerning their charges that she
had physically abused the four patients. One charge contains a detailed
description of her alleged abuse of a patient. The co-workers reported
that on June 7, 1986, at 6:30 p.m., in the day room on the North end of
ward 36-A, the patient had gotten out of control. Nurse A allegedly
twisted his arm behind his back, lowered him to the floor, choked him,
placed her hand over his mouth in an attempt to shut it and applied
excessive pressure to his jaw, forcing his head backwards. The more the
patient tried to scream, the tighter she allegedly gripped him. When an
aide appeared with a cuff and belt for the patient, Nurse A allegedly
quickly removed her hands from the patient's neck and jaw. The Panel
did not consider that allegation and the Respondent offered no
explanation for its failure to do so. The other charges included
allegations that Nurse A had slapped a patient when he wouldn't eat;
squeezed a patient's cheeks when he wouldn't take his medication; and
slapped a patient in the head and pushed him into walls for no apparent
reason. The Respondent noted some apparent "personality conflicts"
between Nurse A and the two co-workers and speculated that these
conflicts "could have attributed (sic)" to the critical way in which the
co-workers had observed her actions. It does not appear from the record
that the Panel took testimony from these two eye witnesses.
Dr. Brondum concurred in the recommendation that no action be taken
against Nurse A, and the Canandaigua Center Director reported to the
Respondent's Central Office in Washington, D.C. that the incident was
closed.
In a follow-up to the handling of these matters, the Respondent's
Central Office noted the deficiencies in Canandaigua's investigation,
including whether the staff were asked to testify or were interviewed.
The Central Office also recommended training be provided to the nursing
staff at Canandaigua regarding the Respondent's requirement for
immediate reporting of all allegations of patient abuse. Finally, the
Central Office demanded information on what actions had been taken
against the head nurse for failing to report the alleged abuse in a
timely manner. The record does not show any response from Canandaigua.
The Case of Registered Nurse -- "B"
On July 12, 1986 a nursing assistant reported that a patient on the
Respondent nursing home care unit had been treated roughly by employees.
The incident arose after a patient who was on a toilet stool bit the
nursing assistant who was attending him. The assistant left the patient
and went to the nurses' station where he reported the matter. Nurse B
returned with the assistant to the bathroom where the patient was still
on the stool. Nurse B grabbed the patient's chin and in a rough and
punitive manner forced his head back against the wall while at the same
time asking the patient why he'd bitten the assistant and was he going
to bite her? Nurse B then allowed the nursing assistant to roughly
transfer the patient to a chair where he was restrained with his pants
down and without Attends. The patient was returned in this condition to
his room where he was kept with the door closed for two hours. Nurse B
also failed to report the patient's allegation that the nursing
assistant had hurt him.
The Respondent Investigation Team concluded that Nurse B had abused
this patient and recommended she be disciplined. Chief of Staff Brondum
concurred with the recommendation to reprimand Nurse B. On September 3,
1986 the Respondent's Center Director concurred and recommended closing
the case.
On October 14, 1986 the Respondent's Central Office commented in a
memo to the Center Director at Canandaigua that Nurse B should have been
removed for abusing this patient, but the fact that disciplinary action
had already been taken precluded further action other than monitoring
her future behavior.
The Case of Registered Nurse "C"
On August 17, 1986 a 58 year old patient died as a result of "blood
loss into the intestine secondary to a laceration of the intestine due
to over distending a foley catheter balloon in attempting to remove the
foley catheter." Nurse C had burst a foley catheter balloon by over
filling it with water when it could not be removed in the usual way.
Dr. Brondum commented at the time that this particular procedure is safe
and acceptable when the balloon is in the urinary bladder or within the
stomach, but is hazardous and should not be used when the balloon is in
a confined space such as in the small bowel. The Investigation Team
concluded that Nurse C's action "was based on his previous experience
and O.D. instruction in two other instances. There was no intent to
harm the patient and he performed his duty in the usual manner
considered appropriate for his nursing position and experience." No
disciplinary action was recommended. According to the Respondent's
patient abuse policy, however, intent to cause injury to a patient is
not an element of patient abuse and the absence of intent is not a valid
foundation for a finding that abuse has not occurred.
The Case of Registered Nurse -- "D"
On May 28, 1989 Nurse D was providing care for a 75 year old
partially paralyzed patient. The patient had a history of being
non-cooperative when taking his medications, a not uncommon situation
among the Respondent's elderly, infirm patients. The Respondent expects
its registered nurses to react in a professional manner when confronted
with such behavior. On this occasion, as Nurse D gave the patient some
milk of magnesia, the patient spat it at her. Nurse D responded
angrily, throwing a milk shake in the patient's face. She did not
report the incident and did not complete the requisite VA Form 10-2633.
When Nurse D was confronted with this allegation of patient abuse she
denied it. Nevertheless, the Respondent found that the evidence
established she had thrown the milk shake on the patient and concluded
that her actions constituted patient abuse although an "instinctive
reflex action" and "without deliberate malice or intent to harm."
Chief Nurse Skomra, in recommending a one day suspension for Nurse D,
wrote, in part, "Based on the occurrence of this singular incident, the
nature of which I do not expect to reoccur, I recommend the return of
(Nurse D) to her full-duty responsibilities (following her suspension)."
Notwithstanding Skomra's characterization of Nurse D's patient abuse
as a "singular incident" the Respondent's investigation of her abuse of
this patient revealed that a week or two before the milk shake incident,
a co-worker had reported that Nurse D abused another patient. The
co-worker told her supervisor on May 15th or 16th that she saw Nurse D
repeatedly and forcefully shove a patient back into his seat when the
patient attempted to rise. When the co-worker made her initial report,
her supervisor asked if she "wished" to file a complaint. The co-worker
declined. The Respondent's policy makes it mandatory to report every
instance of patient abuse. Reporting abuse is not a matter that is left
to the discretion of an employee who may witness abuse. The Respondent
never investigated that earlier allegation and it did not consider it
when determining Nurse D's discipline for abusing the patient on May
28th. Moreover it did not discipline the personnel responsible for
failing to report the earlier incident.
On August 3, 1989 Skomra recommended Nurse D's suspension for one
day. Chief of Staff Brondum signed off on that recommendation. On
October 4, 1989 the Respondent's Central Office in Washington, D.C.
proposed to suspend Nurse D for five days for her action of throwing a
glass of liquid into a patient's face.
Chief Nurse Skomra testified that the actions of Mr. Bellomo,
particularly the hold applied on the patient and his actions in taking
the patient to the floor, demonstrated more of an intent to abuse than
did the acts of Nurse D, which was more of a reaction to the patient.
Skomra testified that the three separate incidents attributed to Mr.
Ward also demonstrated an intent to abuse the patients which warranted
the recommendation of removal.
No Other Removals
Nurses A, B, C, and D have never been officials of the Union. Other
than Ward and Bellomo, the Respondent has not proposed to fire any
registered nurse for patient abuse at its Canandaigua facility during at
least the past five years. Moreover, the Respondent has presented no
evidence that it has ever made such a proposal in the case of a
registered nurse to the date of the hearing.
Substantively Reviewable In This Proceeding.
The proposed notices of discharge to Ward and Bellomo were issued
pursuant to procedures promulgated by the Secretary of Veterans Affairs
under authority of 38 U.S.C. Section 4110, relative to the appointment
of disciplinary boards to determine, upon notice and fair hear, charges
of inaptitude, inefficiency, or misconduct. It is well established that
those procedures are the exclusive procedures available to title 38
professional medical employees for handling disputes regarding
discipline for alleged professional misconduct. Veterans Administration
Central Office, Washington, D.C. and Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota, 27 FLRA 835, 839 (1987)
(VA, Fargo), aff'd. sub nom. American Federation of Government Employees
v. FLRA, 850 F.2d 782 (D.C. Cir., 1988; U.S. Department of Veterans
Affairs, Veterans Affairs Medical Center, San Francisco, California, 40
FLRA No. 30 (1991) (VA San Francisco).
The General Counsel alleges that the proposed notices were issued in
violation of 5 U.S.C. Section 7116(a)(1), (2), and (4). Counsel for the
General Counsel urges, in part, that to remedy these violations,
pursuant to 5 U.S.C. Section 7118 the proposed notices of discharge
should be rescinded. However, 38 U.S.C. Section 4119, enacted in 1980,
provides that no provision of title 5 which is "inconsistent" with a
provision of title 38 "shall be considered to supersede, override or
otherwise modify" the title 38 provision unless title 5 specifically so
provides by specific reference to the title 38 provision. /19/ See
Veterans Administration, Washington, D.C. and Veterans Administration
Medical Center, Minneapolis, Minnesota, 15 FLRA 948, 951-2 (1984) (VA,
Minneapolis). There is nothing in the Federal Service Labor-Management
Relations Statute, enacted as section 701 of the Civil Service Reform
Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978) and codified in
title 5 along with other civil service and personnel laws, 5 U.S.C.
Sections 7101 et seq., which even refers to title 38, much less
specifically provides that the unfair labor practice provisions of the
Statute were intended to supersede, override, or otherwise modify the
provisions of the DM&S Statute. For the Authority to find a violation
of section 7116(a) of the Statute and order the Agency to rescind the
proposed notices of discharge pursuant to section 7118(a)(7)(D) would be
to apply the Statute so as to supersede, override, or otherwise modify
the provisions of 38 U.S.C. Section 4110. Such a result is barred by 38
U.S.C. Section 4119. Cf. VA, Fargo, 27 FLRA at 840; VA, Minneapolis,
15 FLRA at 952.
Since the law is somewhat unsettled in this area, and this case
involves proposed removals rather that the final determinations by the
agency addressed in VA San Francisco, the record as developed by the
parties will be considered further to avoid the possible necessity of a
remand.
Respondent contends that under section 7116(d) of the Statute the
charges at issue may not be raised in an unfair labor practice hearing.
Section 7116(d) of the Statute provides that "Issues which can properly
be raised under an appeals procedure may not be raised as unfair labor
practices prohibited under this section."
Respondent argues that both Ward and Bellomo requested hearings upon
the proposed notices of discharge before disciplinary boards established
pursuant to 38 U.S.C. Section 4110 "to determine charges of inaptitude,
inefficiency, or misconduct" and have proceeded through that process.
Ward submitted into evidence before the disciplinary board, as part of
his defense to such charges, documentary and testimonial evidence
concerning his activity in pursuit of grievances and unfair labor
practice charges against management officials and alleged that such
charges were brought against him as retaliation for such activity.
Respondent argues that Bellomo had the same opportunity.
As held above, the personnel system established by 38 U.S.C.
Sections 4104-4119 for DM&S professional employees is intended to
operate apart from the personnel system which is applicable to general
Federal civil service employees under title 5, /20/ and for that reason
may be beyond the reach of the unfair labor practices prohibited by the
Statute. However, there has been no showing that the issues involved in
the instant complaint "can properly be raised" under the appeals
procedure cited by Respondent and are separately barred by section
7116(d). The jurisdiction of Respondent's internal peer disciplinary
boards is limited to determining "charges of inaptitude, inefficiency,
or misconduct." Cf. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland and Wilkes-Barre Data
Operation Center, 17 FLRA 435, 443 (1985) (Applicant's handicap
discrimination complaint and limited right to appeal to the Merit
Systems Protection Board did not require dismissal of unfair labor
practice complaint pursuant to section 7116(d); Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA 629, 639 (1982) ("appeals
procedures" in section 7116(d) does not encompass an intra-agency appeal
to the head of an agency which does not provide for third-party review
of an agency action).
By The Statute
In Letterkenny Army Depot, 35 FLRA 113 (1990), the Authority set
forth various factors it deemed applicable in evaluating cases alleging
violations of section 7116(a)(2) and (1) of the Statute. After noting
that the General Counsel always has the burden of proving the
allegations of the complaint by a preponderance of the evidence, the
Authority stated that in all cases of alleged discrimination, the
General Counsel must establish that: (1) the employee against whom the
alleged discriminatory action was taken was engaged in protected
activity; and (2) such activity was a motivating factor in the agency's
treatment of the employee in connection with hiring, tenure, promotion,
or other conditions of employment. The Authority stated that if the
General Counsel fails to make the required prima facie showing, the case
ends without further inquiry. Id. at 118.
The General Counsel contends that the termination of Ward and Bellomo
was proposed because they engaged in activities protected by the
Statute. The activity of Ward allegedly protected under the Statute
includes his serving as a Union representative and filing three
grievances concerning nurses' working conditions, furnishing advice to
nurses concerning their rights under the agreement, being present on
behalf of the Union at the counseling of a nurse, and filing an unfair
labor practice charge regarding an alleged bypass of the Union when
management consulted only with nurses concerning a change in their
working hours. The alleged protected activity of Bellomo under the
Statute includes his serving as a Union representative and filing three
grievances regarding nurses' working conditions and two unfair labor
practice charges regarding management's alleged refusal to meet with the
Union regarding differences in the assignments of two nurses and a
change in working conditions by opening a locked ward. There is no
indication in the record that Ward or Bellomo represented any
nonprofessional employees.
In Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir.
1988), the court reversed the Authority's ruling that the VA is
obligated to bargain over conditions of employment for professional
medical employees of the Department of Medicine and Surgery (DM&S)
appointed under title 38 of the United States Code. The court stated
that under 38 U.S.C. Section 4108, the authority of the VA Administrator
"is exempt from all laws governing the terms and conditions of federal
employment except as otherwise explicitly provided in the DM&S
Statute(.)" Based on the court's decision in Colorado Nurses
Association, the Authority found that the VA has no obligation to
bargain over the conditions of employment of professional medical
employees of the DM&S which are within the discretion of the VA
Administrator under 38 U.S.C. Section 4108 and "may be determined
unilaterally by the Agency." Veterans Administration, Washington, D.C.,
33 FLRA 600, 602-03 (1988).
In U.S. Department of Veterans Affairs, Medical Center, Danville,
Illinois, 34 FLRA 131 (1990), aff'd. sub nom. American Federation of
Government Employees, Local 1963 v. FLRA, No. 90-2080 (C.D. Ill., Aug.
14, 1990), the Authority held that the parties' negotiations do not
constitute "collective bargaining" under the Statute, and any agreement
entered into as a result of those negotiations does not constitute a
"collective bargaining agreement" within the meaning of the Statute.
The Authority held, for the same reasons, that a grievance procedure
contained in an agreement resulting from the parties' negotiations does
not constitute a negotiated grievance procedure under section 7121 of
the Statute.
The Authority expanded on this holding in U.S. Department of Veterans
Affairs, Washington, D.C. and U.S. Department of Veterans Affairs,
Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 182
(1990), (VA, Fargo II) reversed sub nom. American Federation of
Government Employees, AFL-CIO, Local 3884 v. Federal Labor Relations
Authority, No. 90-1379 (8th Cir., April 16, 1991). The Authority held
that the VA did not violate the Statute by refusing to furnish the Union
with information pursuant to section 7114(b)(4) of the Statute which the
Union had requested in order to process a grievance. The Authority
stated, in part, as follows:
Because the parties' agreement results from an exercise of the
Administrator's discretion under 38 U.S.C. Section 4108(a) rather
than from collective bargaining under the Statute, it falls
outside the framework of rights and obligations established by the
Statute and is not covered by the Statute's mechanics for the
enforcement of those rights and obligations. A collective
bargaining relationship under the Statute does not exist between
the parties in this case. Consequently, the Union has no right
under the Statute to information for the processing of a grievance
under the parties' agreement and recourse to the Statute's unfair
labor practice procedures is not available for the enforcement of
the Union's claim to that information. Id. at 188.
Based on these decisions, it could be argued that the activity of
Ward and Bellomo of filing and processing grievances on behalf of
nurses, otherwise counseling and advising them of rights under the
parties' agreement, and filing unfair labor practices against the Agency
for failure to negotiate or meet with the Union concerning the nurses'
working conditions also was not activity protected by the Statute. It
could be argued, as the Authority held in VA, Fargo II, that the
parties' agreement "falls outside the framework of rights and
obligations established by the Statute and is not covered by the
Statute's mechanisms for the enforcement of those rights and
obligations."
However, the Authority in U.S. Department of Veterans Affairs, VA
Medical Center, San Francisco, California, 40 FLRA No. 30 (1991)
recently stated as follows:
In sum, we conclude that the Charging Party, and other
professional medical employees, are entitled to exercise rights
pursuant to section 7102 of the Statute, including the right to
form, join, or assist a labor organization without fear of penalty
or reprisal. Unlawful interference with such rights constitutes a
violation of section 7116(a)(1) and, in certain circumstances,
section 7116(a)(2) of the Statute. The Authority has, and will
exercise, statutory jurisdiction to resolve complaints alleging
such violations.
In resolving such complaints, however, the Agency's exclusive
authority to determine working conditions and make decisions
regarding inaptitude, inefficient, and misconduct under title 38
must be observed. If as here, a respondent asserts a lawful
reason for a disputed action, and such assertion is consistent
with action taken pursuant to its exclusive authority under title
38 of the United States Code and is final, the determination made
pursuant to that authority is not substantively reviewable in an
unfair labor practice proceeding. If, however, a respondent does
not make such assertion, the respondent will be found to have
violated the Statute. . . . / ( . . . /We express no view on what
remedies may be appropriate or permissible in such cases.)
Accordingly, it is concluded that the activities of Ward and Bellomo
were protected by the Statute. Cf. AFGE, Local 3884 v. FLRA, No.
90-1379 (8th Cir., April 16, 1991) (FLRA has jurisdiction over unfair
labor practices arising under collective bargaining agreements the VA
has voluntarily agreed to abide by.)
Title 38 And The Activities Of Ward And Bellomo Are
Protected By The Statute, Respondent Violated The
Statute.
Should the Authority determine that this proceeding is not barred by
the provisions of title 38 and the activities of Ward and Bellomo are
deemed to be activity protected by section 7102 of the Statute, the
record, as set forth in detail above, demonstrates that Ward and
Bellomo's activity was known to management. Some supervisors and
officials involved in reporting or recommending action concerning their
alleged patient abuse demonstrated anti-union animus toward them,
particularly Head Nurse Barbara Jones and Chief Nurse Skomra in the case
of Ward and Chief Nurse Skomra in the case of Bellomo. Where evidence
of improper motivation has been presented, the existence of a causal
relationship between such animus and the discharge can properly be
inferred by the fact finder. Pension Benefit Guaranty Corporation, 39
FLRA No. 80 (1991) (Pension Benefit) slip opinion at 26. Accordingly,
it is concluded that Union animus motivated in some part the decision to
propose their dismissal.
Even assuming that the Respondent established that it had a
legitimate justification for taking some form of disciplinary action
against Ward and Bellomo, the Respondent has failed to demonstrate by a
preponderance of the evidence that it would have proposed the same
action -- discharge of the employees -- in the absence of protected
activity. Pension Benefit, slip opinion at 27. Contrary to the
position of Respondent, the alleged patient abuse of Ward and Bellomo
was not sufficiently distinguishable from that of other nurses to merit
the harsher discipline of proposed discharge.
Respondent's announced policy is understandably directed at insuring
patients' safety and preserving their human dignity. This policy
provides severe disciplinary penalties for violating patients' rights or
for failing to report violations of the Respondent's published patient
abuse policy. The disciplinary penalties provided by this policy are
clear and unambiguous; patient abuse is punishable by removal unless
(a) it is of a minor nature and is not a repeat offense, of (b)
mitigating or extenuating circumstances are present. Under that policy
the only instance when use of force against a patient is condoned is to
repel the assault of a patient. Even then, the circumstances must be
examined to determine the reasonableness of a nurse's application of
force. However, as demonstrated by the facts in this case, the only
registered nurses to whom the Respondent has invoked its published
policy and proposed the maximum penalty of termination at Canandaigua
are Ward and Bellomo. Discipline, if imposed at all on other nurses,
who are not Union officials, has been minimal.
As set forth in detail above, Nurse A was transferred to another
ward, but not otherwise disciplined after striking a restrained patient
in the back of the head with a slipper in 1983. In 1985 she merely
received a transfer once again along with a written reprimand and
additional training after she was found to have bruised an elderly
patient during a struggle. Six months later Nurse A was accused for a
third time of patient abuse. Despite her record of prior abuse and
notwithstanding the existence of detailed eye witness accounts, the
Respondent recommended no disciplinary action citing lack of evidence.
Unlike its handling of Ward's case, the Respondent noted that the
co-workers' animosity towards Nurse A could have affected their
observations of these incidents.
Similarly, Nurse B was merely reprimanded in 1986 after having been
found to have abused a patient. Nurse B forced the patient's head back
against a wall and allowed a nursing assistant to roughly transfer the
patient to a chair where he was restrained with his pants down and
without Attends. He was kept in this condition in a closed room for two
hours. Nurse B had also failed to report the patients' allegation of
abuse by the nursing assistant.
Finally, in a case of patient abuse arising at the same time as
Ward's and Bellomo's, Nurse D angrily threw a milk shake in the face of
an elderly, partially paralyzed patient. The Respondent's investigation
disclosed that Nurse D's response was an "angry," "gut reaction", not
the "learned, educated reaction" the Respondents expects from its
registered nurses. In Bellomo's case the exact same description was
applied to his conduct in responding to and subduing the assault of a
young, virile, psychotic patient. Indeed, the Respondent relied heavily
upon the reflexive nature of Bellomo's response when it proposed to fire
him. Notwithstanding these identical policy considerations, the
Respondent proposed only a brief suspension of Nurse D and ignored
another allegation regarding Nurse D's abuse of a second patient.
Based on the foregoing, if this proceeding were not barred by the
provisions of title 38 and the activities of Ward and Bellomo were
deemed protected by section 7102 of the Statute, I would conclude that
the General Counsel has established by a preponderance of the evidence
that the proposed discharges of Ward and Bellomo were motivated by their
protected activity. Further, even assuming that the Respondent had a
legitimate justification for taking some form of disciplinary action
against Ward and Bellomo, I would conclude that the Respondent has
failed to demonstrate by a preponderance of the evidence that it would
have proposed the same action -- discharge of the employees -- in the
absence of protected activity. Accordingly, if these circumstances had
prevailed, violations of section 7116(a)(1), (2) and (4) would have been
found.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, April 25, 1991
/s/ GARVIN LEE OLIVER
GARVIN LEE OLIVER
Administrative Law Judge
(1) A single complaint issued consolidating separate charges.
(2) 38 U.S.C. Section 4104 provides, in pertinent part:
There shall be appointed by the Administrator . . . personnel
as the Administrator may find necessary . . . as follows:
(1) Physicians . . . nurses . . . and expanded-function dental
auxiliaries(.)
(3) 38 U.S.C. Section 4110 provides, in pertinent part:
Section 4110 Disciplinary boards
(a) The Chief Medical Director . . . shall from time to time
appoint boards to be known as disciplinary boards . . . to
determine, upon notice and fair hearing, charges of inaptitude,
inefficiency, or misconduct . . . .
(d) A disciplinary board . . . shall recommend . . . suitable
disciplinary action . . . which shall include . . . discharge from
the Department of Medicine and Surgery of such person. The
Administrator shall . . . approve . . . or disapprove such
recommendation. . . . The decision of the Administrator shall be
final.
(e) The Administrator . . . may delegate to the Chief Medical
Director the authority vested in the Administrator by subsection()
. . . (d) . . . . Any person against whom disciplinary action is
taken under authority delegated pursuant to this subsection shall
have the right to appeal such action to the Administrator, but in
the absence of such an appeal the decision of the Chief Medical
Director shall have the same force and effect as a decision of the
Administrator.
(4) 38 U.S.C. Section 4119 provides:
Notwithstanding any other provision of law, no provision of title
5 or any other law pertaining to the civil service system which is
inconsistent with any provision of this subchapter shall be
considered to supersede, override, or otherwise modify such
provision of this subchapter except to the extent that such
provision of title 5 or of such other law specifically provides,
by specific reference to a provision of this subchapter, for such
provision to be superseded, overridden, or otherwise modified.
(5) The record contains no details regarding Bellomo's suspension.
Although the Respondent notes that Ward appealed his discharge to the
Secretary of Veterans Affairs, the record does not disclose the results
of that appeal.
(6) Although it is not clear that the Judge dismissed the complaint
because of a finding that the Authority lacked jurisdiction, the
Respondent so interprets the decision. See Respondent's Opposition at 1
("VA urges the Authority . . . to sustain . . . that part of the ALJ's
ruling that the Authority lacks jurisdiction(.)").
(7) See Judge's Decision at 2 (Judge stated that he would find a
violation of the Statute "(i)f . . . Ward and Bellomo were deemed to be
protected by the Statute(.)").
(8) Section 7116(a)(2) provides that it is an unfair labor practice
for an agency "to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment(.)" Section 7116(a)(4)
makes it an unfair labor practice for an agency "to discipline or
otherwise discriminate against an employee because the employee has
filed a complaint, affidavit, or petition, or has given any information
or testimony under this chapter(.)"
(9) 38 U.S.C. Section 4106 provides, in relevant pert:
(a) Appointments of physicians, dentists, podiatrists,
optometrists, and nurses shall be made only after qualifications
have been satisfactorily established . . . .
(b) Such appointments . . . shall be for a probationary period
of two years and the record of each person serving under such
appointment . . . shall be reviewed from time to time by a board,
appointed in accordance with regulations of the Administrator, and
if said board shall find such person not fully qualified and
satisfactory such person shall be separated from the service.
(10) Compare Giordano v. Roudebush, 617 F.2d 511, 517 (8th Cir.
1980) ("The summary procedures of (38 U.S.C. Section) 4106 governing
probationary employees was obviously intended to provide review by a
peer committee and upon the Board's recommendation, summary discharge
without further review.") with Gilbert v. Johnson, 601 F.2d 761, 766
(5th Cir. 1979) (court stated that in reviewing action taken under 38
U.S.C. Section 4110, the "only question . . . is whether the
administrative record demonstrates that the (employee) had adequate
notice and opportunity to be heard and a decision in accord with the
charges made and whether the decision was arbitrary or capricious.").
(11) We do not hold that a complaint alleging a violation of section
7116(a)(2) or (a)(4) may not issue until the administrative conclusion
of title 38 proceedings. We hold only that such a complaint may not be
adjudicated until that time.
(12) The unfair labor practice hearing took place shortly after
Ward's and Bellomo's discipinary board hearings.
(13) In determining such consistency, we find no basis on which to
conclude, and none is urged for concluding, that mitigation of penalty,
standing alone, would demonstrate that the proposed discharges are
unlawful under the Statute.
(14) The General Counsel's unopposed motion to strike all references
and argument in the Respondent's post-hearing brief relating to the
alleged removal of "P.B." is granted. Nothing in the record relates to
this matter.
(15) Health care professionals covered under the personnel system
established include physicians, dentists, nurses, dental auxiliaries,
physical therapists, and pharmacists. See 38 U.S.C. Section 4104.
(16) The DM&S statute also provides for employment of additional
personnel, other than the professionals covered under the provisions of
the statute, who are necessary for the proper maintenance of DM&S.
These employees are covered under the provisions of the civil service
laws, rules and regulations. 38 U.S.C. Section 4111.
(17) The retirement benefits of these professionals are the only
aspect of their working conditions remaining under the civil service
system. 38 U.S.C. Section 4109.
(18) As noted, the record reflects that Ward was granted the
reassignment on April 11, 1989 as an adjustment of a grievance.
However, Skomra acknowledged that he testified at Ward's hearing before
the Nurse's Professional Disciplinary Board that the transfer was not
made at Ward's request (Tr. 52). Skomra testified that the transfer was
made only after he had received incident reports of Ward's alleged
patient abuse and then requested and reviewed reports from the staff
involved and met with the Chief of Staff. (Tr. 53-54). Skomra could
not recall receiving any reports of alleged patient abuse by Ward prior
to April 12, 1989 (Tr. 65) and the actual reports were dated and
reviewed between April 12-14, 1989 (Tr. 57; G.C. Ex. 8). Thus, the
record does not support the impact of Skomra's testimony before the
Board which was that the transfer was designed to remove Ward from
patient care in light of the alleged abuse (Tr. 65-66). As noted,
Ward's transfer was approved April 11, 1989.
(19) Section 4119. Relationship between this subchapter and other
provisions of law.
Notwithstanding any other provision of law, no provision of title 5
or any other law pertaining to the civil service system which is
inconsistent with any provision of this subchapter shall be considered
to supersede, override, or otherwise modify such provision of this
subchapter except to the extent that such provision of title 5 or of
such other law specifically provides, by specific reference to a
provision of this subchapter, for such provision to be superseded,
overridden, or otherwise modified.
(20) See U.S. Small Business Administration and Local 2532 of
National Council of Small Business Administration Locals of the American
Federation of Government Employees, AFL-CIO, 33 FLRA 28, 34-5 (1988).
42 FLRA 1034
42 FLRA NO. 73
Case No. 0-AR-2076
U.S. Department of The Treasury, Internal Revenue Service, Ogden,
Service Center, Ogden, Utah
(Agency)
National Treasury Employees Union, Chapter 67
(Union)
October 24, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator John Phillip Linn filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union filed
an opposition to the Agency's exceptions.
The Union filed a grievance alleging that the Agency violated the
parties' agreement by prohibiting the Union from holding fundraising
activities on Agency property. The Arbitrator sustained the grievance
and ordered the Agency to cease its ban on Union fundraising and to
permit the Union to engage in fundraising activities consistent with the
fundraising activities conducted by other employee organizations.
For the following reasons, we find that the Agency's exceptions
provide no basis for finding the award deficient. Accordingly, we will
deny the exceptions.
For the period from August 1988, through December 1989, the Union
planned to conduct at least two fundraising events per month on the
premises of the Agency's Ogden Service Center (OSC). During August
1988, the Union held a used book sale and a brownie sale on OSC's
premises. During a bake sale on OSC premises on September 6, 1988, the
Agency's Resources Management Division Chief informed the Union
president that there might be a problem with the Union's fundraising
activities because "it might violate the IRS Rules of Conduct."
Arbitrator's Award at 3. "Until that time, management had not
challenged the Union's fund raisers in any way." Id.
Thereafter, the Union did not conduct its next four proposed
fundraising events, but did advertise a raffle scheduled for November
1988. Sometime prior to Thanksgiving, the OSC Director met with the
Union president and steward "to tell them that he felt it was
'inappropriate' for the Union to be conducting fund raisers" and he
asked them to "hold off on any further fund raisers until he and (the
Union president) reached a decision on whether it was a prohibited
activity." Id.
By letter dated January 5, 1989, the Union president stated to the
OSC Director that she had found nothing prohibiting the Union from
conducting fundraising activities on Agency property when the Union
participants were on their own time. The Union president indicated that
such Union fundraising activity was being conducted at other Agency
service centers and that "until the problem was solved at the national
level, (the Union) would proceed with its sales activities as before."
Id. at 4. Following a meeting with the Union president, the OSC
Director stated in a letter to the Union president dated January 18,
1989 that "it was his position that it was inappropriate for (the Union)
to conduct fund raising activities on government property" and requested
that the Union "please refrain from conducting fund raising activities
on government property." Id.
In a letter to the OSC Director dated January 24, 1989, the Union
president stated that the OSC Director's January 18 letter was contrary
to "a long-standing practice of having fund raising sales at OSC" and
that "the Union's next bake sale would be held as scheduled on 2-8-89."
Id. By letter dated January 31, 1989, the OSC Director restated his
position and suggested that the Union:
might challenge his decision by filing a ULP (unfair labor
practice), and warned, "If you conduct a bake sale as you stated
in your letter, it will be considered an act of insubordination.
As such, appropriate disciplinary action may be taken against
anyone involved with the bake sale."
Id. The Union president responded to the letter, stating that the Union
"believed it was being subjected to disparate treatment" because the
Employees' Association (EA) and the Child Care Center regularly
conducted fundraising sales on Agency property. Id.
On February 15, 1989, the Union filed a grievance alleging that
management violated various provisions of the parties' contract and
section 7116(a)(1), (2), (3), and (5) of the Statute by refusing to
permit the Union to conduct fundraising activities on the Agency's
premises. The grievance requested that the Agency provide the Union
with the bylaws, regulations, financial status and financial reports,
and other documents governing the EA before a Step 1 grievance meeting
was to be held. As a remedy, the grievance requested removal of the
restraint of sales by the Union, posting of a cease and desist notice,
payment of money that the Union would have received had the sales been
allowed, an acknowledgment of public wrongdoing by the Agency, and any
other appropriate relief.
By memorandum delivered to the Union on February 22, 1989, the
Agency's Personnel Branch Chief provided the Union with pages from the
Treasury Department Personnel Management Manual (TPMM) regulation
concerning recreation associations and a copy of the EA bylaws. The
Personnel Chief "did not provide the requested EA financial status and
financial reports(,)" stating that he did "'not see the relevancy of the
financial status and financial reports of the Employee's Association in
relationship to (the Union) conducting fund raisers at Ogden Service
Center.'" Id. At the conclusion of his memorandum, the Personnel Chief
requested the Union president to "call to schedule a meeting on this
matter when you are ready to proceed." Id. at 5.
In a letter dated March 8, 1989, the Union's National Field
Representative explained to the Personnel Chief the relevance of the
financial status records and reports to the grievance in this case and
asked that the information be provided within 5 workdays from the
Agency's receipt of the letter "so that the grievance could be processed
as soon as possible." Id. By letter to the Union steward dated March
23, 1989, the Personnel Chief stated that "he still failed to see the
relevance of the financial reports in relationship to the grievance" and
asked the Union steward to "call to schedule a meeting on this matter."
Id. /1/ The Union steward understood that the Personnel Chief was
requesting that a Step 1 grievance meeting be scheduled. The Union
steward and the Personnel Chief "orally agreed to delay setting a date
for the Step 1 grievance meeting until (the Union president and the OSC
Director) had completed their discussions of the Union fund raisers."
Id.
During the correspondence between the Union president and the OSC
Director, the Union president indicated that all but one of the Agency's
service centers "have fund raising sales in their buildings." Id. The
Union president stated that it was "most peculiar that (the OSC
Director) would disallow such sales at OSC and consider such sales as
acts of insubordination." Id. Further, the Union president requested
the Agency to provide any case or other document which permits the
Agency to charge the Union with insubordination for conducting such
fundraising activities.
On March 31, 1989, the OSC Director responded to the Union's request
for supporting authority by stating that, in his view, the issue is not
whether other organizations can conduct fundraising activities on
Government property but whether the Union can legally conduct such
activities on Government property. The OSC Director concluded that "it
is (his) position that it is inappropriate for (the Union) to conduct
fund raising activities on (G)overnment property." Id.
By memorandum dated April 18, 1989, the Union steward requested that
the Personnel Chief schedule a meeting on the grievance and noted that,
under the parties' agreement, "the meeting at your level must be held
within seven days from this date." Id. The meeting was conducted on
April 27, 1989. During the meeting, the Personnel Chief raised the
issue of whether the grievance was prosecuted in a timely manner.
Following the meeting, the Personnel Chief issued the Agency's Step 1
response to the Union steward denying the grievance. The response
stated that the Agency: (1) "found no discrimination because other
organizations conducting fund raising activities at OSC were different
from (the Union)"; (2) could find no authority allowing the Union to
conduct fundraising activities on government property; and (3)
questioned whether the grievance was timely. Id. at 6.
The Step 2 meeting was conducted on May 23, 1989, and "there was no
discussion of untimely prosecution of the grievance." Id. Following the
Step 2 meeting, the Agency issued a response to the grievance "which in
no significant way differed from (the) Step 1 response." Id. The Step 3
meeting was held on June 14, 1989, and, after that meeting, the Agency
issued a response "in essentially the same language as had appeared in
the earlier responses." Id. The parties were unable to resolve the
grievance and the matter was submitted to arbitration.
The parties did not stipulate the issues before the Arbitrator. The
Arbitrator addressed the following issues: (1) whether the grievance
was timely filed; (2) whether the Agency violated section 7116(a)(1)
and (2) of the Statute; (3) whether the Agency violated section 7116(
a)(1) and (5) of the Statute; and (4) whether the Agency "was arbitrary
and capricious in disallowing (the Union) to hold fund raisers(.)"
Arbitrator's Award at 22.
A. Whether the Grievance Was Timely Filed
The Agency argued before the Arbitrator that the Union failed to
timely pursue the grievance when it did not file the grievance within
the 15-day deadline and again when the Union did not pursue the Step 1
grievance meeting within the 7-day period mandated by the parties'
agreement. The Agency maintained that measuring the date of the
grievance from either the time that the Union was first put on notice of
the OSC Director's policy against Union fundraising (October/ November
1988) or the time when the OSC Director wrote to the Union president to
"reiterate() his ban against (Union) fund raisers" (January 12 or 18,
1989), the grievance would be untimely. Moreover, the Agency argued
that there was no oral agreement between the parties to postpone the
Step 1 grievance meeting and that, therefore, the fact that the Union
scheduled the meeting 2 months after the grievance was filed showed that
the grievance was not pursued in a timely manner.
The Union argued that the February 15, 1989, grievance was timely
filed within 15 workdays from January 31, 1989, the date when the OSC
Director first threatened to charge participants in the Union's
fundraising activities with insubordination. The Union further argued
that the time for the Step 1 grievance meeting had been extended pending
the Agency's response to the Union's information request and again by
oral agreement between the Union steward and the Agency's Personnel
Chief. Further, the Union noted that "at no time did the Agency declare
the grievance null and void under (the parties' agreement), which was
the Agency's procedure in past cases in which management believed there
was a clear failure to timely process the grievance." Id. at 10.
The Arbitrator found that the grievance was timely filed. The
Arbitrator rejected the Agency's argument as to when the Union first
learned of the Agency's decision to prohibit Union fundraising
activities. According to the Arbitrator, it was not until the OSC
Director advised the Union that "his position constituted a decision
that was final in nature and would be the basis for imposition of
disciplinary action for insubordination if the Union conducted a fund
raising activity on OSC" that the OSC Director clearly expressed that
his position "had solidified to a decision that was to govern Union
conduct(.)" Id. at 11. At that point, the Arbitrator found that the
Union was "required to recognize that management was effecting a
decision that affected rights and benefits" of bargaining unit
employees. Id. As the Arbitrator found that the OSC Director did not
make his decision clear until January 31, 1989, and as the grievance was
filed on February 15, 1989, the Arbitrator concluded that the grievance
was filed in a timely manner.
As to the scheduling of the Step 1 grievance meeting, the Arbitrator
found that the parties regularly have extended the 7-day time limit
orally. The Arbitrator noted that the meeting was delayed because the
Union waited for the Agency to respond to the Union's information
request and because the Union steward and the Agency Personnel Chief
waited to see the results of the correspondence between the Union
president and the OSC Director. The Arbitrator further noted that
"there was never any suggestion that any extension be placed in writing,
and there was never any suggestion that the grievance would be null and
void for lack of timely prosecution." Id. at 12-13. In these
circumstances, the Arbitrator found that it was "plain by words and
actions that there was agreement between the parties to extend the time
for holding the Step 1 meeting" and that, therefore, the grievance was
properly before him. Id. at 12.
B. Whether the Agency Violated Section 7116(a)(1) and (2) of the
Statute
With respect to whether the Agency violated section 7116(a)(1) and
(2) of the Statute, the Union argued before the Arbitrator that the
Agency committed an independent section 7116(a)(1) violation by
restraining employees who wished to assist the Union with its
fundraising activities. Additionally, the Union argued that the Agency
violated section 7116(a)(1) and (2) by prohibiting the Union from
conducting fundraising activities while at the same time permitting
similar organizations, such as the EA and the Child Care Center, to
raise funds on Agency property. The Union alleged that the Agency
"denied the use of its facilities to the Union for fund raisers because
of (the Union's) status as a labor organization." Id. at 14. The Union
maintained that the discriminatory treatment has "effectively given the
Union inferior status in the eyes of unit employees, thereby
discouraging them from joining the Union(.)" Id. at 15.
The Agency argued before the Arbitrator that the Union did not
establish that the Agency violated any right under the Statute.
Addressing the Union's claim that the Agency improperly discriminated
against the Union, the Agency asserted that the Union did not show any
disparate treatment because it did not prove that the EA and the Union
are comparable entities. According to the Agency, the organizations are
distinguishable because the purpose of the EA and its related
organizations is to "engage in beneficial welfare activities for all IRS
employees" whereas the Union's purpose is to represent employees in
grievances, disciplinary actions, adverse actions, unfair labor practice
cases, and contract negotiations. Id. To support its position that an
agency may treat a union differently from other organizations with
respect to access to agency facilities, the Agency cited U.S. Department
of Housing and Urban Development, Region VIII, Denver, Colorado, Case
No. 7-CA-923 (1981), ALJ Decision Reports, No. 9 (April 30, 1982) (HUD).
The Arbitrator found that the Agency's conduct in denying the Union
and employees the use of Agency facilities for fundraising activities on
the employees' own time "constitute(d) both a (s)ection 7116(a)(1) and
(a)(2) ULP." Id. at 20.
The Arbitrator examined the functions and purposes of the Union and
the Employees' Association and its "offshoots." Id. at 18. The
Arbitrator found that the EA and other employee organizations "are
customarily, routinely and with great frequency permitted to use the
Agency's facilities for fund raising activities." Id. The Arbitrator
also found that, based on their public expenditures, the EA and other
employee organizations "do not have as their primary purpose the serving
of employees' recreational needs(.)" Id. Consequently, the Arbitrator
stated that he "does not find that the EA and its offshoot organizations
are entitled to special privileges" under the Agency's regulation on
recreation associations. Id.
As to the Union's functions and purposes, the Arbitrator noted that,
like the EA, the Union "is concerned with the general welfare of unit
employees, who make up the great majority of OSC employees." Id. at 19.
The Arbitrator found that "(t)here is a continuing need for (the Union)
to solicit by both direct and indirect means the assistance and
membership of unit employees." Id. The Arbitrator noted that the Union
seeks to "obtain and retain significant status in the minds of (u)nit
employees" by engaging in fundraising "that will assist it to show its
interest in all unit employees(.)" Id. Moreover, the Arbitrator noted
that fundraising enables the Union "to obtain supplies, equipment and
Union steward training to more effectively represent all unit members .
. . in (the) administration of the collective bargaining agreement" and
that such efforts "run() to everyone's benefit(.)" Id.
As "conditions of employment must be read broadly under the
Statute(,)" the Arbitrator concluded that the Agency discriminated
against those employees desiring to assist the Union by threatening them
with disciplinary action for insubordination, while at the same time
permitting other employees to assist the EA and its "offshoots." Id. at
20. According to the Arbitrator, the Union "is detrimentally affected .
. . when the Union is disallowed use of the Agency's facilities to
engage in fund raisers(.)" Id. at 19. Accordingly, the Arbitrator found
that the Agency violated section 7116(a)(1) and (2) of the Statute.
The Arbitrator rejected the Agency's reliance on HUD. The Arbitrator
noted that HUD was a decision of an administrative law judge which was
"without precedential significance." Id. at 17. The Arbitrator further
noted that the judge "neither reached nor decided the question" of
whether the "disparate denial of a union's request to use agency
facilities to raise funds" could violate the Statute. Id. at 18.
The Arbitrator also found that section 7116(a)(3) of the Statute did
not apply because the circumstances in this case "do not present a
situation in which there need be any concern for partial conduct by the
Agency as between labor organizations having equivalent status." Id. at
19. Therefore, the Arbitrator concluded that section 7116(a)(3) does
"not constitute an excuse for the Agency to avoid permitting (the Union)
from using its facilities to conduct fund raisers." Id.
C. Whether the Agency Violated Section 7116(a)(1) and (5) of the
Statute
The Union argued before the Arbitrator that the Agency violated
section 7116(a)(1) and (5) of the Statute when the Agency withdrew use
of its facilities for Union fundraising activities without providing
adequate notice to the Union and an opportunity to bargain. The Union
maintained that there was a "past practice of the Union's conducting
fund raisers over a four-year period before (the OSC Director's) 1-31-89
directive prohibiting such activity." Id. at 20. According to the
Union, management had knowledge of and acquiesced in those activities
because: (1) management participated in and communicated with the Union
about the Union's fundraising activities; (2) the OSC Chief of
Employee-Management Relations purchased a book at one of the Union's
book sales; and (3) the fundraising activities were announced over the
Agency's public address system and were conducted at the entrance to the
only cafeteria.
The Agency argued before the Arbitrator that the Union failed to
prove the existence of a past practice regarding Union fundraising
activities at OSC. The Agency asserted that the Union's evidence of
five fundraisers over a 5-year period was insufficient to establish a
practice over a lengthy period of time. The Agency further asserted
that the Union's alleged sales took place in the immediate area in which
the EA fundraisers were held and that it "would have been easy for
management to have confused (Union) sales with those sponsored by the
EA." Id. at 21.
The Arbitrator found that "there was no past practice of Union fund
raising which was knowingly acquiesced in by OSC management" and that,
therefore, the Union has not shown that the Agency violated section
7116(a)(1) and (5) of the Statute by unilaterally prohibiting the Union
from conducting fundraising activities on Agency property. The
Arbitrator found that the number of Union sales and length of time over
which they occurred was insufficient to establish a past practice. The
Arbitrator also found that there was no evidence that the management
official who purchased the book "knew that it was (a Union) book sale."
Id. at 22. Accordingly, the Arbitrator found that "the Union's evidence
does not meet its burden of proof regarding (the) establishment of a
past practice or condition of employment about which the Employer had a
duty to bargain." Id.
D. Whether the Agency's Action Was Arbitrary and Capricious
The Union argued before the Arbitrator that the Agency's action was
arbitrary and capricious. The Union asserted that the Agency "did not
articulate any competent evidence for its decision" and that it gave
"four flimsy, pretextual reasons for its disparate treatment of the
Union(.)" Id. The Union noted in particular the Agency's assertion that
allowing the Union to hold fundraising activities would unlawfully aid
the Union. The Union rejected this assertion and maintained that the
Agency "refused to recognize that denying the Union fund raising
opportunities that were provided to other employee groups and
individuals looked as though management 'opposed' the Union." Id. at 23.
Further, the Union noted that many of the Agency's other service
centers have permitted the Union to hold fundraising activities on their
premises and that "there is no evidence that an accusation of unlawful
'assistance' has ever been made against those service centers." Id.
The Agency contended before the Arbitrator that the Agency did not
act arbitrarily or capriciously in distinguishing between the functions
of the EA and those of the Union because the "distinction between the EA
and its offshoots and the Union constitute(s) a factual basis for
administering a rule regarding fund raisers on IRS premises." Id. at 24.
The Agency further contended that "(n)othing in the contract gives the
Union the right to conduct fund raising activities on the Employer's
premises" and that the Union was "unable to cite any law, regulation, or
case decision that authorized Union fund raisers on IRS property." Id.
The Arbitrator found that the Agency's refusal to allow the Union to
hold fundraising activities on OSC property while allowing other
employee organizations to do so was "based on personal predilection and
opinions rather than upon any explication of law, rule or regulation."
Id. The Arbitrator noted that the OSC Director expressed concern about
Union fundraising activities as a legal issue but decided to ban Union
fundraising and subject violators of his decision to discipline without
first seeking a legal opinion from the Agency's legal staff. According
to the Arbitrator, "(s)uch conduct appears arbitrary and capricious
because the situation required legal analysis, not mere personal
judgment." Id. at 25.
The Arbitrator also found that the Union was not limited to
collective bargaining to obtain the privilege of conducting fundraising
activities under the circumstances of this case. As "(n)o reason in
fact or law existed for treating the Union differently from the EA and
other (employee) organizations" with respect to fundraising activities
and as other Agency service centers permitted Union fundraising events
on Government premises, the Arbitrator concluded that the
"discriminatory treatment of the Union was arbitrary conduct and an
abuse of managerial discretion." Id.
E. The Remedy
Having found that the Agency violated section 7116(a)(1) and (2) of
the Statute and acted in an arbitrary and capricious manner, the
Arbitrator sustained the grievance. As a remedy, the Arbitrator ordered
the Agency to cease its ban on Union fundraising activities and to
permit the Union to engage in fundraising activities consistent with the
fundraising activity that is conducted by the other employee
organizations. However, the Arbitrator denied the Union's request for
money damages because he found that such damages were too speculative in
the circumstances of this case.
A. The Agency
The Agency contends that the Arbitrator's award is deficient because:
(1) Union fundraisers do not concern conditions of employment within
the meaning of the Statute and, therefore, the Arbitrator's finding that
the Agency violated section 7116(a)(1) and (2) of the Statute is
contrary to law; (2) the Arbitrator exceeded his authority in ruling
that the EA "is not entitled to facility privileges" under the Agency's
regulation covering recreation associations; and (3) the Arbitrator
misapplied the "arbitrary and capricious" standard of review. Agency's
Exceptions at 2.
With respect to the Agency's first exception, the Agency asserts that
the Union's fundraising activities do not concern collective bargaining
or conditions of employment and, therefore, fall outside of the scope of
section 7116(a)(1) of the Statute. In support of its position, the
Agency notes the Arbitrator's finding that "the Union's evidence does
not meet its burden of proof regarding (the) establishment of (a) past
practice or condition of employment about which the Employer had a duty
to bargain." Id. at 8 (emphasis omitted). Citing Department of the Air
Force, Scott Air Force Base, Illinois, 34 FLRA 1129 (1990) (Scott Air
Force Base), the Agency argues that the Union did not have a right under
section 7102 of the Statute to use Government property for fundraising
activities because section 7102 "does not per se grant the Union a right
to use the Agency's property." Agency's Exceptions at 14. Further, the
Agency maintains that "absent an entitlement to utilize Agency
facilities, either by contract or past practice, the Union could not
possibly prove a violation of 5 U.S.C. Section 7116(a)(1)" as section
7116(a)(1) violations are "integrally predicated on conditions of
employment." Id. at 9.
With respect to the Arbitrator's conclusion that the Agency violated
section 7116(a)(2) of the Statute, the Agency argues that "(t)here is no
evidence in the record" that the Agency discouraged membership in the
Union or that "any employee had ever refused to join the Union, or
terminated their Union membership, because of the Union's inability to
hold Union fund raisers on Government property." Id. at 9, 10 (emphasis
in original). According to the Agency, the Union did not present "a
scintilla of credible evidence" in this regard, and the "Arbitrator
based his (a)(2) finding on self-serving statements of Union
representatives(.)" Id. The Agency further claims that there was no
evidence that management ever advised employees at large that Union
fundraising activities were prohibited but that "to the extent that
employees were ever even aware of management's prohibition, it was
solely through (the Union)." Id. at 10.
Moreover, the Agency contends that even if the Union had established
that the Agency discouraged Union membership, the Union "failed to carry
its burden of pro(ving)" that such discouragement occurred in connection
with hiring, tenure, promotion or other conditions of employment within
the meaning of section 7116(a)(2) of the Statute. Id. at 11. The
Agency maintains that, as the record does not support the Arbitrator's
conclusion that the Agency discouraged Union membership in connection
with conditions of employment, the Authority should reverse the
Arbitrator's conclusion that the Agency violated section 7116(a)( 2).
With respect to the Agency's second exception, the Agency asserts
that the Arbitrator exceeded his authority when he "strip(ped) the
Employee(s') Association of its privileged status" and held that the EA
did not qualify for the special privileges afforded organizations under
the Agency's regulations. Id. at 14. The Agency contends that "only
the (Agency) is authorized to interpret its regulations and determine
what organizations, if any, qualify for the special privileges it
chooses to bestow therein." Id. at 22. Accordingly, the Agency contends
that the Arbitrator lacked the authority to conclude that whatever
benefits, such as use of facilities, are afforded to the EA must
likewise be afforded to the Union.
In view of the EA's bylaws and the testimony at the hearing, the
Agency argues that "the Union failed to carry (its) burden of proof"
that the EA and the Union are, "in fact, comparable or similar in terms
of membership, nature and scope." Id. at 16. Rather, the Agency argues
that this case presents "nearly identical facts" to Department of
Agriculture, Farmers Home Administration, Case No. 4-CA-60155 (1987),
ALJ Decision Reports, No. 68 (June 26, 1987), where an administrative
law judge found that the agency did not violate the Statute when it
denied the union access to the agency's internal mail system even though
the agency permitted its employees' association free access to the
system. Id. at 18.
The Agency notes that its regulations provide that an organization
must meet six requirements to obtain various privileges, including the
privilege of using Government facilities, and that the EA and its
offshoot organizations met these requirements. The Agency further notes
that its regulations state that employee recreation associations "are
not entitled to rights and privileges granted to employee organizations
under the provisions of TPMM, Chapter, 711, Labor-Management
Relations(.)" Id. at 20 (emphasis in original). Therefore, the Agency
maintains that Agency regulations distinguish between labor
organizations and employee recreational associations and that the
Arbitrator "totally disregarded this distinction in his finding of
disparate treatment." Id. at 20-21.
Moreover, the Agency challenges the Arbitrator's reliance on an
"isolated, unofficial half-page summary of Employee(s') Association
expenditures" to conclude that the EA spent less than twenty percent of
its funds for recreational activities and, therefore, did not meet the
requirement in the regulations that the organization have as its primary
purpose the serving of the recreational and social needs of employees.
Id. at 21. The Agency argues that the Arbitrator's conclusion "is not
supported by the record" and notes that the Arbitrator "made this
determination without access to or consideration of any official
Employees(') Association financial records or reports." Id. at 22 n.29.
With respect to the Agency's third exception, the Agency argues that
the Arbitrator misapplied the arbitrary and capricious standard when he
concluded that the OSC Director acted arbitrarily and capriciously in
prohibiting the Union from conducting fundraising activities on OSC
property. The Agency maintains that the "evidence does not support such
a conclusion in this case." Id. at 23. Further, the Agency contends
that the Arbitrator "misplaced the burden of proof" when he found that
the OSC Director "was in error because he did not provide a statute,
regulation or case decision . . . in support of his prohibition." Id. at
24. According to the Agency, "the burden here was on (the Union) to
prove some entitlement to utilize the Agency's premises for fund raising
purposes" and "(t)he Union never did." Id. at 27. The Agency notes that
management relied on HUD in formulating its position and states that
this reliance was "(w)rong -- maybe, but (was) not arbitrary and
capricious." Id. at 25.
Moreover, the Agency challenges the Arbitrator's reliance on
"irrelevant, surprise affidavit/declaration evidence from Union
officials at other (Agency) Centers which claimed longstanding practices
of Union fund raisers." Id. at 28. In any event, the Agency argues that
the Union's "proffered statements were rebutted . . . by management
witnesses." Id.
The Agency also disputes the Arbitrator's finding that the OSC
Director failed to articulate a basis for his position or made up his
reasons after the fact. According to the Agency, the Union and
management engaged in protracted discussions and correspondence on this
matter and, thus, "(t)he record totally refutes these allegations and
conclusions." Id. at 29. Finally, the Agency maintains that
management's actions cannot be considered as arbitrary and capricious
because management repeatedly asked the Union to provide legal support
for its position and the "record clearly shows (that) the first time the
Union ever provided any alleged legal precedent" to support its position
was in its Post-Hearing Brief to the Arbitrator. Id. at 32.
B. The Union
The Union asserts that the Arbitrator did not err in finding that the
Agency violated section 7116(a)(1) and (2) of the Statute and maintains
that the Agency is merely disagreeing with the Arbitrator's decision.
The Union disputes the Agency's contention that access to Agency
facilities does not constitute a condition of employment and argues that
the Agency "misreads the Arbitrator's award and interprets 'conditions
of employment' too narrowly." Union's Opposition at 6. The Union
maintains that when the Arbitrator found that there was no past practice
of permitting Union fundraising activities at Agency facilities, the
Arbitrator "did not reach the question of whether such facilities were a
condition of employment." Id. at 9. According to the Union, the
Arbitrator's finding that the evidence was insufficient to establish a
past practice or "condition of employment about which the Agency had a
duty to bargain should it change the practice" is a "distinct issue from
whether the Agency committed an independent (a)(1) and (a)(2)
violation." Id. (emphasis in original). In support of its position, the
Union notes that elsewhere in his decision, "the Arbitrator clearly
finds that facilities used for fund raisers is a condition of
employment(.)" Id.
The Union asserts that the Arbitrator properly found an independent
violation of section 7116(a)(1) of the Statute because "employees were
prohibited from assisting the labor organization by raising funds needed
for viability and visibility, in violation of their (s)ection 7102
rights." Id. at 13. The Union challenges the Agency's argument that the
Agency's actions did not discourage membership in the Union within the
meaning of section 7116(a)(2) of the Statute and rejects the Agency's
assertion that the Union needed to "produc(e) actual individuals who
failed to join the Union because of the Agency's prohibition against
fund raiser(s)." Id. at 11. Rather, the Union argues that the
Arbitrator properly found that the Union proved discrimination because
the "differing treatment was specifically premised on (the Union's)
status as a labor organization." Id. at 14, citing the Agency's
Post-Hearing Brief at 35. Further, the Union maintains that the
Arbitrator appropriately concluded that the discriminatory treatment
"had the effect of discouraging Union activity, including Union
membership(.)" Id. at 12-13.
With respect to the Agency's second exception, the Union argues that
the Arbitrator did not exceed his authority when he interpreted the
Agency's regulation on recreation associations. The Union notes that
the Agency specifically cited the regulation to support its argument
that "the Employees(') Association was entitled to superior treatment to
(the Union) in its use of Agency facilities." Id. at 17. Therefore, the
Union argues that "(h)aving made (the regulation) part of the record in
the arbitration, the Agency cannot now fault the Arbitrator for ruling
on it." Id.
The Union notes further that the Agency "appears to be arguing that
the award conflicts with the (Agency) regulation." Id. However, the
Union rejects this argument and asserts that "based on the evidence
before him, the Arbitrator properly determined that the cited regulation
did not require or authorize beneficial treatment of the (Employees')
Association." Id. at 18. The Union notes the Agency's claim that the
Arbitrator did not rely on official EA financial reports when he
concluded that the EA was not covered by the regulation. The Union
states that "the Arbitrator was forced to rely on the only document
provided to the Union on the EA's financial picture" because "repeated
requests . . . for more information on the EA's financial status were
denied by the Agency." Id.
With respect to the Agency's third exception, the Union argues that
the Arbitrator did not misapply the arbitrary and capricious standard of
review. The Union states that the "standard generally requires that an
Agency have some reasonable justifiable basis for its action." Id. at
19. The Union notes that "the arbitrary and capricious finding was not
based on the Agency's mere refusal to permit Union fund raising
activities but its complete inability to explain why fund raising by
others was simultaneously permitted." Id. at 25. The Union maintains
that the "factual record more than supports the Arbitrator's finding"
and asserts that the "Agency cannot refute the Arbitrator's
determination that its conduct was arbitrary and capricious by claiming
that it relied on irrelevant case law and incorrect (s)tatutory
citations." Id. at 20, 22.
For the following reasons, we find that the Agency's exceptions
provide no basis for finding the award deficient.
A. The Award Is Not Contrary to Law
1. Section 7116(a)(1) of the Statute
Section 7102 of the Statute provides that employees shall have the
right to form, join, or assist any labor organization freely and without
fear of penalty or reprisal. The right to assist a union under section
7102 includes the right to solicit membership on behalf of the union
during non-work time in non-work areas or in work areas where there is
no disruption of work. See U.S. Department of Justice, Immigration and
Naturalization Service, United States Border Patrol, San Diego Sector,
San Diego, California, 38 FLRA 701, 712 (1990), petition for review
filed as to other matters sub nom. Immigration and Naturalization
Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991); and General
Services Administration, 27 FLRA 643, 646 (1987). Management's
interference with this right violates section 7116(a)(1) of the Statute.
See Department of Commerce, Bureau of the Census, 26 FLRA 719, 728
(1987) (Bureau of the Census) (management violated the employee's
section 7102 right to solicit membership on behalf of the union by
preventing the employee from showing a union film during non-work time
in non-work areas); Department of Commerce, Bureau of the Census, 26
FLRA 311 (1987) (management violated the employees' right to solicit
membership on behalf of a union during non-work time in work areas where
there was no disruption of work).
The Arbitrator found that "(t)here is a continuing need for (the
Union) to solicit by both direct and indirect means the assistance and
membership of unit employees" and that the Union wished to engage in
fundraising to "obtain and retain significant status in the minds of
unit employees(.)" Arbitrator's Award at 19. The Arbitrator further
found that the Agency threatened to discipline employees who
participated in Union fundraising activities. As the Arbitrator found
that the Agency threatened to discipline employees who exercised their
section 7102 right to engage in solicitation activities for the Union,
we conclude that the Arbitrator's ruling that the Agency violated
section 7116(a)(1) of the Statute is not contrary to law. See Bureau of
Census.
Citing Scott Air Force Base, the Agency argues that the award is
contrary to law because the matter at issue is not protected by section
7102 of the Statute. In Scott Air Force Base, the Authority found that
the right of the union to advertise in the agency's newspaper was not a
protected right under section 7102 because providing the union with
access to agency-controlled newspapers "require(d) the agency to provide
the means for the communication" as opposed to the site of
communication. Scott Air Force Base, 34 FLRA at 1136. Moreover, the
Authority noted that "placing an advertisement in an agency-controlled
newspaper is analogous to posting material on agency property" and that
because a union does not have a statutory right to post material on an
agency's property, the "union d(id) not have a statutory right under
section 7102 to advertise in (the) agency's newspaper." Id.
Unlike the matter at issue in Scott Air Force Base, we find that the
Union's fundraising activity in this case is protected activity within
the meaning of section 7102 of the Statute. As we noted previously, the
Arbitrator found that the Union engaged in fundraising activities as a
means of soliciting the assistance and membership of unit employees.
Moreover, the record indicates that the Union's fundraising activities
were conducted during non-work time at the entrance to the cafeteria, a
non-work area. Therefore, we find that employees who participated in
the Union's fundraising activities were exercising their right under
section 7102 to solicit on behalf of the Union and we reject the
Agency's argument that the matter at issue in this case is not protected
by section 7102 of the Statute.
We also note the Agency's claim that the Arbitrator should not have
found that the Agency violated section 7116(a)(1) of the Statute because
the matter at issue in this case did not concern a condition of
employment. In support of its claim, the Agency relies on the
Arbitrator's finding that, with respect to whether the Agency violated
section 7116(a)(5) of the Statute, "the Union's evidence does not meet
its burden of proof regarding (the) establishment of (a) past practice
or condition of employment about which the Employer had a duty to
bargain." Agency's Exceptions at 8 (emphasis omitted). We find,
however, that the Agency misinterprets the Arbitrator's finding. In our
view, the Arbitrator's finding does not address whether Union
fundraising in this case was a condition of employment, but whether
there was a change in the Agency's practice regarding Union fundraising
that required the Agency to bargain. As the Arbitrator found that the
Union had not established that there was a change over which the Agency
had a duty to bargain, the Arbitrator concluded that the Agency did not
violate section 7116(a)(5) of the Statute by failing to bargain. /2/
Contrary to the Agency's assertion, the Arbitrator found that, with
respect to whether the Agency violated section 7116(a)(1), "conditions
of employment must be read broadly under the Statute" and that the
Union's fundraising activities in this case involved the section 7102
rights of employees to "solicit by both direct and indirect means the
assistance and membership of unit employees." Arbitrator's Award at 19,
20. As the Arbitrator found that the Union's fundraising involved
employees' rights under section 7102 of the Statute and as employees'
section 7102 rights concern conditions of employment, we reject the
Agency's assertion that the matter at issue in this case did not concern
a condition of employment.
2. Section 7116(a)(2) of the Statute
Section 7116(a)(2) of the Statute provides that it is an unfair labor
practice for an agency to encourage or discourage membership in a union
by discrimination in connection with hiring, tenure, promotion, or other
conditions of employment. The Authority has stated that the framework
in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) will be
applied to all cases of alleged discrimination under section 7116(a)(2).
In Letterkenny, we reaffirmed that, in unfair labor practice cases:
(i)n all cases of alleged discrimination, . . . the General
Counsel must establish that: (1) the employee against whom the
alleged discriminatory action was taken was engaged in protected
activity; and (2) such activity was a motivating factor in the
agency's treatment of the employee in connection with hiring,
tenure, promotion, or other conditions of employment.
Letterkenny, 35 FLRA at 118.
If the General Counsel makes the required prima facie showing, a
respondent may seek to rebut that showing by establishing, by a
preponderance of the evidence, the affirmative defense that: (1) there
was a legitimate justification for its action; and (2) the same action
would have been taken in the absence of protected activity. Id. at
122-23. This analysis, we noted, is consistent with the framework
applied in the private sector by the National Labor Relations Board.
Letterkenny, 35 FLRA at 122. See also National Treasury Employees Union
and U.S. Department of Health and Human Services, Family Support
Administration, 35 FLRA 501, 507 (1990) (Family Support Administration).
Although the Arbitrator did not specifically apply the Letterkenny
framework in making his determinations, we find that the Arbitrator's
determinations are consistent with the requirements of Letterkenny. As
to the first element noted in Letterkenny, the Arbitrator found that the
OSC Director's action in prohibiting employees from assisting the Union
in raising funds, while at the same time permitting employees to raise
funds for other employee organizations, constituted discriminatory
conduct which "detrimentally affected" and discouraged membership in the
Union. Arbitrator's Award at 19. The Arbitrator further found that
employees who participated in Union fundraising activities were engaged
in solicitation activity protected by section 7102 of the Statute. As
the Arbitrator found that employees who were subject to discriminatory
action were engaged in protected activity, we conclude that the
Arbitrator's findings satisfy the first element of Letterkenny.
As to the second element, the Arbitrator found that the reason that
the OSC Director prohibited employees from engaging in fundraising
activities in this case was that the fundraising was on behalf of the
Union. As we noted previously, the Union's fundraising activity is
protected activity within the meaning of section 7102 of the Statute.
Because the Arbitrator found that protected activity was the reason that
the OSC Director prohibited fundraising in this case, we conclude that
the Arbitrator's finding satisfies the second element in Letterkenny
that the protected activity was a motivating factor in the Agency's
treatment of the employees. Accordingly, the Arbitrator's findings
demonstrate that the Union presented a prima facie case of
discrimination.
With respect to whether there was a legitimate justification for the
Agency's action, the Agency presented no evidence or argument that it
would have taken the same action if the employees had not been raising
funds for the Union. Although the Agency argued that its regulation on
recreation associations justified treating the Union differently from
the other employee organizations, that argument was rejected by the
Arbitrator. Accordingly, we conclude that the Arbitrator's ruling that
the Agency violated section 7116(a)(2) of the Statute is not contrary to
law. See United States Department of Transportation, Federal Aviation
Administration, El Paso, Texas, 39 FLRA 1542 (1991); and Family Support
Administration.
The Agency argues that "(t)here is no evidence in the record" that
its action discouraged membership in the Union. Agency's Exceptions at
9. This argument provides no basis for finding the award deficient. An
arbitrator is not required to find that employees were actually
discouraged from joining a union in order to find that the agency
violated section 7116(a)(2) of the Statute. Rather, as noted above,
whether an agency's action violates section 7116(a)(2) of the Statute is
determined by application of the factors set forth in Letterkenny. We
concluded above that the Arbitrator's determinations in this case are
consistent with the requirements of Letterkenny. Accordingly, we reject
the Agency's argument.
We also reject the Agency's contention that the Union "failed to
carry its burden of pro(ving)" that any discouragement occurred in
connection with conditions of employment. Id. at 11. We noted in our
discussion of section 7116(a)(1) of the Statute that the Arbitrator
found that employees who participated in fundraising activities on
behalf of the Union were engaged in solicitation activity protected by
section 7102 of the Statute. Further, we noted above that employees'
access to OSC property for solicitation activities within the meaning of
section 7102 of the Statute is a matter that concerns conditions of
employment. As the employees' Union fundraising activity is a matter
that concerns conditions of employment, we reject the Agency's
contention to the contrary.
The Agency has failed to establish that the award is contrary to law.
Accordingly, we will deny the Agency's first exception.
B. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when, among other things,
the arbitrator resolves an issue not submitted to arbitration or awards
relief to persons who are not encompassed within the grievance. See U.
S. Department of Health and Human Services, Social Security
Administration, Region VI, Dallas, Texas and American Federation of
Government Employees, Local 1336, 40 FLRA 644, 649 (1991); and U.S.
Department of Veterans Affairs, Allen Park Veterans Administration
Medical Center, Allen Park, Michigan and American Federation of
Government Employees, Local 933, 40 FLRA 160, 168 (1991). In the
absence of a stipulation by the parties, arbitrators are accorded
substantial deference in the formulation of issues. For example, U.S.
Department of Transportation, Federal Aviation Administration, Chicago,
Illinois and National Air Traffic Controllers Association, 41 FLRA 1441,
1448 (1991) (Federal Aviation Administration).
One of the issues before the Arbitrator was whether the Agency
violated section 7116(a)(2) of the Statute by prohibiting the Union from
conducting fundraising activities on Agency property while at the same
time permitting other employee organizations to conduct such activities.
The Agency argued before the Arbitrator that the other employee
organizations and the Union were not comparable entities and, therefore,
there was no disparate treatment in its prohibition against Union
fundraising activities. In support of this argument, the Agency noted
the differing functions of the organizations and the fact that the
fundraising activities of the Employees' Association "have been
specifically approved by the Director in accordance with applicable
rules and regulations." Agency's Post-Hearing Brief at 33.
To determine whether the Union was subject to disparate treatment in
violation of section 7116(a)(2) of the Statute, the Arbitrator analyzed
the relevant documents of record, including the Agency's regulation on
recreation associations (Arbitrator's Award, Joint Exhibit 11C-1). The
Arbitrator found that based on the information in the record on the EA's
public expenditures, the EA and the other employee organizations "do not
have as their primary purpose the serving of employees' recreational
needs" and, therefore, the Arbitrator stated that he "does not find that
the EA and its offshoot organizations are entitled to special
privileges" under the Agency's regulation on recreation associations.
Arbitrator's Award at 18.
We reject the Agency's contention that the Arbitrator exceeded his
authority when he found that the EA did not qualify for the special
privileges afforded employee recreation associations under the Agency's
applicable regulation. The Arbitrator's finding is directly responsive
to the issue of whether the Union and the other employee associations
were comparable entities and, thus, whether the differing treatment
received by the Union amounted to disparate treatment in violation of
section 7116(a)(2) of the Statute. We note the Agency's claim that
"only the (Agency) is authorized to interpret its regulations(.)"
Agency's Exceptions at 22. However, the Agency regulation interpreted
by the Arbitrator was part of the record submitted to the Arbitrator and
directly related to the issue before him. Therefore, as the
Arbitrator's discussion of the regulation is directly related to and
responsive to an issue framed by him in the absence of a stipulation, we
find that the Arbitrator did not exceed his authority. See Federal
Aviation Administration.
Absent circumstances not relevant in this case, an arbitration award
that conflicts with a governing agency rule or regulation will be found
deficient under section 7122(a)(1) of the Statute. U.S. Department of
the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky
and American Federation of Government Employees, Local 2022, 37 FLRA 186
(1990). To the extent that the Agency claims that the Arbitrator's
finding is contrary to the Agency's regulation, we find that the Agency
has not supported such a claim.
The Agency's regulation on recreation associations provides that
organizations must meet six requirements to obtain various privileges,
such as the use of Agency facilities. The first of these requirements
is that the organization "must have as its primary purpose the serving
of recreation and social needs of (Agency) employees." Arbitrator's
Award, Joint Exhibit 11C-1. The Arbitrator examined the record evidence
of the EA's financial status for 1988-89 and determined that the EA
spent less than twenty percent of its funds for recreational activities
and, therefore, did not meet the requirement in the regulation that the
organization serve to primarily benefit the employees' recreational and
social needs.
The Agency argues that the Arbitrator's conclusion "is not supported
by the record" and that the Arbitrator "made this determination without
access to or consideration of any official Employees(') Association
financial records or reports." Agency's Exceptions at 22 n.29. As we
noted previously, the Union requested copies of the EA's financial
reports from the Agency, but the Agency argued that the information was
not relevant to the grievance and refused to release more than a summary
report of the EA's financial status that was published in the Agency's
newsletter. The record contains only articles from the Agency's
newsletter summarizing the EA's financial expenditures for 1987-88 and
1988-89. Accordingly, the Arbitrator relied on the only information in
the record regarding the EA's financial status during the relevant time
frame. The Agency's contention that the Arbitrator's reliance on this
"unofficial" information was improper constitutes nothing more than
disagreement with the Arbitrator's findings of fact and evaluation of
the evidence in the record and provides no basis for finding the award
deficient. Id. at 21. See, for example, U.S. Department of the Air
Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force
Base, Oklahoma, 40 FLRA 88, 93 (1991) (Oklahoma City Air Logistics
Center).
We find that the Agency has not shown that the Arbitrator's
conclusion that an organization spending less than twenty percent of its
funds on recreational activities does not serve to primarily benefit the
employees' recreational needs is inconsistent with the plain wording of
the regulation or is otherwise impermissible. Therefore, we find that
the Agency has not shown that the Arbitrator's conclusion is contrary to
the Agency's regulation. See, for example, U.S. Department of Defense,
Dependent Schools and Overseas Education Association, 37 FLRA 226, 233
(1990), affirmed mem. sub nom. Mary E. Hartmann v. FLRA, No. 90-2699
(D.D.C. April 10, 1991). Having found that the Agency has not shown
that the award conflicts with the Agency's regulation, we need not
determine whether the regulation at issue in this case is a "governing"
Agency regulation.
Accordingly, we will deny the Agency's second exception.
C. The Arbitrator's Finding that the Agency's Conduct Was Arbitrary
and Capricious Is Not Deficient
The Arbitrator ruled that "(n)o reason in fact or law existed for
treating the Union differently from the EA and other (employee)
organizations" with respect to fundraising on Agency premises.
Arbitrator's Award at 25. The Arbitrator found that the Agency's
decision to ban Union fundraising and to subject violators of that
decision to discipline was "based on personal predilection and opinions
rather than upon any explication of law, rule or regulation." Id. at 24.
The Arbitrator concluded that the OSC Director's decision was arbitrary
and capricious because "the situation required legal analysis, not mere
personal judgment." Id. at 25.
The Agency argues that the Arbitrator improperly relied on
"irrelevant, surprise affidavit/declaration evidence from Union
officials at other (Agency) Centers" and that the "evidence does not
support" the Arbitrator's conclusion that the OSC Director acted
arbitrarily and capriciously. Agency's Exceptions at 23, 28. We find
that the Agency's argument constitutes disagreement with the
Arbitrator's findings of fact and evaluation of the evidence and
provides no basis for finding the award deficient. See, for example,
Oklahoma City Air Logistics Center.
The Agency further contends that the Arbitrator misapplied the
arbitrary and capricious standard and "misplaced the burden of proof"
because the burden was on the Union to provide legal support for its
position. Agency's Exceptions at 24. We reject the Agency's contention
that the Arbitrator's conclusion that the Agency's conduct was arbitrary
and capricious is deficient or that the Arbitrator misplaced the burden
of proof. Based on his evaluation of the evidence and testimony
presented by the parties, the Arbitrator concluded that there was no
legal or factual basis for the Agency's action. Contrary to the
Agency's assertion, the Arbitrator required the Union to legally support
its position that employees had the right to use the Agency's facilities
for Union fundraising activities. Once the Arbitrator determined that
the Union had legally supported its position, the Arbitrator then
evaluated the OSC Director's decision and found that the Director had
not attempted to justify his decision at the time it was made. As it
was clear that the Union's position was legally authorized and as "there
(wa)s no showing that (the OSC Director) even sought legal opinion from
the (Agency) legal staff before making a decision to ban Union fund
raisers(,)" the Arbitrator concluded that the OSC Director's decision
was arbitrary and capricious. Id. at 24-25.
The Agency has not established that the Arbitrator improperly
evaluated the OSC Director's decision in determining that the decision
was arbitrary and capricious. Rather, we find that the Agency is
challenging the Arbitrator's conclusion that there was no legal or
factual basis for the OSC Director's decision and that the Union had
supported its position. Such a challenge does not establish that the
Arbitrator incorrectly concluded that the Agency's conduct was arbitrary
and capricious, but constitutes mere disagreement with the Arbitrator's
evaluation of the evidence and conclusions. As such, it provides no
basis for finding the award deficient. See, for example, U.S.
Department of the Army, Army Aviation Center, Fort Rucker, Alabama and
American Federation of Government Employees, Local 1815, 40 FLRA 94, 98
(1991).
Accordingly, we will deny the Agency's third exception.
The Agency's exceptions are denied.
(1) On May 1, 1989, the Union filed an unfair labor practice charge
against the Agency alleging that the Agency violated section 7116(a)(
1), (5), and (8) of the Statute by refusing to furnish to the Union the
requested financial status and financial reports of the EA. The FLRA's
Acting Regional Director did not issue a complaint in the matter.
(2) No exceptions were filed to the Arbitrator's conclusion that the
Agency did not violate section 7116(a)(5) of the Statute.
42 FLRA 1019
42 FLRA NO. 72
Case No. 0-NG-1924
National Association of Government Employees, Local R7-72
(Union)
U.S. Department of The Army, Rock Island Arsenal, Rock Island,
Illinois
(Agency)
October 23, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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) concerning the negotiability of two
proposals.
Proposal 1, the first sentence, requires the Agency to give employees
the option of using annual leave or other paid leave in lieu of leave
without pay (LWOP) during a shutdown due to lack of production or to
promote production efficiency. The second sentence requires the Agency
to grant employees a day of administrative leave for each day the
employee takes LWOP, annual leave, or other leave during a shutdown.
The third sentence provides that if a shutdown lasts an odd number of
days, employees are required to take annual leave, other leave, or LWOP
for the odd day. For the following reasons, we find that Proposal 1 is
negotiable.
We find that Proposal 2, which precludes the Agency from requiring
employees to wear particular protective equipment when riding
motorcycles, is nonnegotiable because it directly and excessively
interferes with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.
In the event that the employer shuts down or cuts back operations
due to lack of production or to promote production efficiency, the
employer shall grant employees the option of using annual leave or
other paid leave in lieu of leave without pay during the period of
the shut down. The employer further agrees to grant employees one
day of administrative leave for each day the employee takes leave
without pay, annual leave or other leave during the shut down. If
the shut down lasts an odd number of days the employees will be
required to take annual leave, other leave, or leave without pay
for the extra day of the shut down.
A. Positions of the Parties
1. The Agency
The Agency contends that the first sentence of Proposal 1 directly
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute. The Agency asserts that the proposal denies it
the "discretion to determine the appropriate leave to grant employees."
Statement of Position at 3. Specifically, the Agency argues that
management would be prevented from "placing an employee in a leave
without pay status" during shutdowns or "requiring an employee to use
annual leave." Id. at 2-3, 4. The Agency also argues that the proposal
is inconsistent with 5 C.F.R. Section 630.401 by allowing employees to
"use sick leave for purposes other than those outlined" in the
regulation. Id. at 3.
The Agency argues that the second and third sentences "deprive()
management of its rights to require employees to take leave, and
prevents the closing of operations(,)" and, therefore, directly
interfere with management's rights to direct employees and assign work
under section 7106(a)(2)(A) and (B). Id. at 4. In support, the Agency
cites Department of the Navy, Naval Underwater Systems Center v. FLRA,
854 F.2d 1 (1st Cir. 1988) (Naval Underwater Systems Center). The
Agency also asserts that Proposal 1 requires management to grant
administrative leave "for purposes other than those provided" by the
Federal Personnel Manual (FPM) and, therefore, it is nonnegotiable
because it is inconsistent with a Government-wide regulation. Statement
of Position at 5.
Finally, the Agency asserts that Proposal 1 does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. The Agency argues that because the proposal is inconsistent
with a Government-wide regulation, 5 C.F.R. Section 630.401, and with
the FPM, section 7106(b)(3) is inapplicable. Further, the Agency
asserts that there is no adverse effect on employees because "(e)
mployees are aware of this pending closure during the entire year,
therefore, it is entirely within the employee's control to plan his or
her leave accordingly so the curtailment does not have an adverse
effect." Id.
2. The Union
The Union asserts that Proposal 1 is an appropriate arrangement for
"employees adversely affected by management's right to temporarily shut
down or curtail operations." Petition for Review at 1. The Union
contends that the employees "must take annual or other leave for the
length of the shut down." Id. Proposal 1, the Union asserts, would
enable employees to "receive administrative leave for each day of annual
or other leave that they used" during the shutdown. Id. The Union
argues that the proposal does not "prevent the (Agency) from
implementing a layoff," therefore, the Agency "would still save money in
utilities and other costs." Id. at 2.
B. Analysis and Conclusions
1. Preliminary Matter
The first sentence of Proposal 1 requires the Agency to give
employees the option of using annual leave or "other paid leave" in lieu
of LWOP during a shutdown due to lack of production or to promote
production efficiency. The second sentence requires the Agency to grant
employees a day of administrative leave for each day the employee takes
LWOP, annual leave, or "other leave" during the shutdown. The third
sentence of Proposal 1 provides that if a shutdown lasts an odd number
of days, employees are required to take annual leave, other leave, or
LWOP for the odd day.
The terms "other paid leave," as used in the first sentence of
Proposal 1, and "other leave," as used in the second and third sentences
of the proposal, are not defined in the proposal or by the Union in its
petition for review. The Agency interprets these terms as including
sick leave, compensatory leave, and administrative leave. See Agency
Allegation of Nonnegotiability at 6 (attached to Union's Petition for
Review).
Contrary to the Agency's assertion, we conclude that the terms "other
paid leave" and "other leave" do not include administrative leave. We
note two things. First, it is clear, that the terms "other paid leave"
and "other leave" are synonymous. The first sentence of the proposal
requires the Agency to grant employees the option, in certain
circumstances, of using annual or other paid leave in lieu of LWOP. The
second and third sentences require the Agency to grant administrative
leave for the LWOP, annual, or other leave the employees took pursuant
to the first sentence. When these sentences are read together, it is
plain that the "other leave" encompassed by the second and third
sentences is the "other paid leave" encompassed by the first.
Second, as the terms "other paid leave" and "other leave" are
synonymous, reading the term "other paid leave" as encompassing
administrative leave would mean that the second sentence would require
the Agency to grant administrative leave to compensate for
administrative leave already granted. There is no support in the record
for this interpretation of the proposal. Accordingly, we interpret the
terms "other paid leave" and "other leave" as excluding administrative
leave. Noting the absence of any assertion to the contrary by the
Union, however, we find, in agreement with the Agency, that the terms
"other paid leave" and "other leave" encompass sick leave and
compensatory leave.
2. The First Sentence of Proposal 1
The record reveals that the Agency curtails its operations "during
holiday periods, i.e., the day after Thanksgiving and the Christmas/New
Year period(.)" Statement of Position at 3. According to the Agency:
. . . some bargaining unit employees are not given the option of
taking leave. For example, the agency must provide essential
services such as fire protection, security, medical and other
support services for tenant activities and personnel on the
installation whose operations are not curtailed.
Id. The first sentence of Proposal 1 applies only to those employees
who are not assigned to work during a shutdown and who are placed on
LWOP. The sentence requires the Agency to grant these employees the
option of using annual leave or other paid leave (sick leave or
compensatory leave) instead of LWOP. For the following reasons, we find
that this sentence is negotiable.
We note, at the outset, that the Agency makes no argument that
providing employees with the option of using compensatory leave,
pursuant to the first sentence of Proposal 1, is nonnegotiable.
Therefore, we will not address such leave further. We reject, however,
the Agency's assertion that by permitting employees to use "other paid
leave," the first sentence of Proposal 1 is inconsistent with 5 C.F.R.
Section 630.401, a Government-wide regulation which sets forth the
situations in which it is appropriate for an agency to grant sick leave.
/1/ We find nothing in the first sentence of Proposal 1 that requires
the Agency to grant sick leave in circumstances other than those
described in 5 C.F.R. Section 630.401. Accordingly, there is no basis
for concluding that the first sentence of Proposal 1 is inconsistent
with 5 C.F.R. Section 630.401.
The Agency also asserts that the first sentence of Proposal 1
"precludes the (A)gency from placing an employee in a leave without pay
status during the period of the shutdown." Statement of Position at 2-3.
As we understand this assertion, the Agency is arguing that agencies
may require employees to take LWOP in a curtailment or shutdown of
operations. However, the Agency cites no authority, and none is
apparent to us, to support this argument. Contrary to the Agency's
assertion, we note that the FPM defines LWOP as a "temporary nonpay
status and absence from duty granted upon an employee's request." FPM
chapter 630-27, subchapter 12-1, a. (July 24, 1986) (emphasis added).
Further, the FPM provides that when agencies curtail operations, they
"may allow employees to use LWOP, if requested, to cover the period."
FPM chapter 610-10, subchapter 3-6, c. (June 30, 1969) (emphasis
added). Accordingly, we reject the Agency's argument that it can
require employees to take LWOP when it curtails or shuts down its
operations.
We also reject the Agency's argument that the first sentence of
Proposal 1 directly interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. Nothing in the first
sentence of Proposal 1 concerns the Agency's decisions to assign, or not
to assign, work to employees during a shutdown. The proposal begins
with "(i)n the event that the employer shuts down or cuts back
operations." By its plain wording, the first sentence of Proposal 1
takes effect after management has decided to curtail or shutdown
operations. Put differently, the first sentence of the proposal
concerns only the leave status of employees who are not assigned to work
during a shutdown. Because management has already decided to not make
work assignments before the first sentence of Proposal 1 takes effect,
we find that the first sentence does not directly interfere with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
Finally, we note the Agency's argument that the first sentence of
Proposal 1 is nonnegotiable because it denies management "discretion to
determine the appropriate leave to grant employees." Statement of
Position at 3. We have already addressed, and rejected, the Agency's
argument that the first sentence would require the Agency to grant sick
leave in a manner inconsistent with its obligations under applicable
regulations. Moreover, as noted, the Agency makes no arguments
regarding the use of compensatory time. To the extent that the Agency
is arguing that it has the right to require employees to take annual
leave during a shutdown, we disagree.
Initially, we note that the Authority generally finds that proposals
which place restrictions on an agency's right to determine when annual
leave may be used directly interfere with management's right to assign
work under section 7106(a)(2)(B) of the Statute. 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) (Naval Air Station) and cases cited therein.
Such cases have arisen in the context of normal, ongoing agency
operations, however. As discussed above, the first sentence of Proposal
1 addresses a situation where the Agency has decided to temporarily
curtail its operations and has decided further to assign, or not assign,
work to certain employees during the curtailment. The first sentence of
Proposal 1 addresses only the leave status of employees to whom the
Agency has decided not to assign work. Consequently, as discussed
above, the requirement that the Agency give employees the option of
using annual leave does not interfere with management's right to assign
work under the Statute.
We also note that the FPM allows agencies discretion to determine the
status of employees if "(g)roup dismissal" is necessary "to better
utilize funds or resources." FPM chapter 610-10, subchapter 3-6, c.
(June 30, 1969). The FPM provides that:
agencies may detail employees to other duties; require employees
to schedule annual leave for use during the non-duty period; or
furlough employees if lack of work or funds is involved . . . .
Agencies may allow employees to use LWOP, if requested, to cover
the period."
Id. Consistent with this provision, agencies have discretion to decide
among these leave options to better utilize funds or resources or, if
there is a lack of work or funds, to choose to furlough employees within
the meaning of 5 U.S.C. Section 7511. Where an agency has discretion
over a matter affecting conditions of employment, the agency is
obligated under the Statute to exercise that discretion through
bargaining unless the governing law or regulation specifically limits
the exercise of discretion to the agency or the proposal or provision is
otherwise nonnegotiable. American Federation of Government Employees,
AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison,
32 FLRA 990, 1060 (1988). See also 54 Comp. Gen. 503, 506 (1974)
("agency head . . . may relinquish discretion with regard to scheduling
annual leave of employees . . . through the negotiation of collective
bargaining agreements"). Accordingly, we reject the Agency's argument
that where it has initiated a shutdown of operations, it has the right
to determine the appropriate leave to grant employees.
In conclusion, we find that the first sentence of Proposal 1 is not
inconsistent with 5 C.F.R. Section 630.401 and does not directly
interfere with management's right to assign work under section 7106(a)(
2)(B). Accordingly, in the absence of any other arguments by the
Agency, we conclude that the first sentence of Proposal 1 is negotiable.
3. The Second and Third Sentences of Proposal 1 Do Not Excessively
Interfere with Management's Right to Assign Work
The Agency argues that the second and third sentences of Proposal 1
require management "to grant administrative leave to employees during a
shut down" and, therefore, "deprive() management of its rights to
require employees to take leave, and prevents the closing of
operations." Statement of Position at 4. According to the Agency, these
sentences directly interfere with management's rights to direct
employees under section 7106(a)(2)(A) and to assign work under section
7106(a)(2)(B).
First, we find that nothing in Proposal 1 precludes management from
curtailing its operations or shutting down. By its plain wording, "(i)
n the event that the employer shuts down or cuts back operations(,)" the
proposal takes effect after management has initiated a shutdown, or
curtailment, of operations. Consequently, we find the Agency's citation
to International Association of Machinists and Aerospace Workers Union
and Department of the Treasury, Bureau of Engraving and Printing, 33
FLRA 711, 722 (1988) (Bureau of Engraving and Printing) inapposite. The
Authority found that the disputed proposal in Bureau of Engraving and
Printing would have enabled employees to "thwart the (a)gency's decision
temporarily to curtail its operations . . . ." Id. at 723. In
contrast, the first sentence of Proposal 1 requires only that management
give employees the option of taking annual leave or other paid leave
(sick leave or compensatory leave) during a shutdown. It does not, as
we noted above, prevent the Agency, in any manner, from curtailing its
operations. Therefore, contrary to the Agency's assertion, Proposal 1
is distinguishable from the disputed proposal in Bureau of Engraving and
Printing.
Second, we reject the Agency's assertion that the second and third
sentences require management to grant administrative leave during a
shutdown. As we read these sentences, they concern administrative leave
to be granted and used after the Agency resumes operations. Compare
American Federation of Government Employees, National Veterans
Administration Council and U.S. Department of Veterans Affairs,
Washington, D.C., 41 FLRA 73, 79-81 (1991) (proposal requiring
retroactive grant of administrative leave equal to time lost during a
furlough when appropriated funds became available held consistent with
Anti-Deficiency Act and not to interfere with agency's right to lay off
employees). Therefore, the Agency's citation of Naval Underwater
Systems Center is misplaced. Naval Underwater Systems Center concerned
the negotiability of a proposal providing that during the period of a
shutdown, furloughs of employees would be "the last resort when
administrative leave cannot be given due to budgetary constraints." 854
F.2d at 3. As the second and third sentences of Proposal 2 clearly are
distinguishable from the disputed proposal in Naval Underwater Systems
Center, we will not address that decision further.
The Agency also contends that the proposal would require it to grant
employees administrative leave for "purposes other than those provided
by the FPM(.)" Statement of Position at 5. The Agency has not cited an
FPM provision, and we are not aware of any provision, which precludes
granting administrative leave in the circumstances described in the
second sentence of Proposal 1. As such, we reject this argument. See
National Treasury Employees Union and Department of the Treasury, Bureau
of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1126 (1991), petition
for review filed sub nom. Department of the Treasury, Bureau of Alcohol,
Tobacco, and Firearms v. FLRA, No. 91-1493 (D.C. Cir., Oct. 8, 1991)
(Authority rejected agency argument that provision granting
administrative leave for employees to attend certain employee assistance
treatment and counseling sessions was inconsistent with applicable FPM
provisions).
However, by requiring the Agency to grant employees administrative
leave after resumption of operations, the second sentence would preclude
the Agency from assigning work to employees during the period of that
administrative leave. For example, if an employee took 4 days of annual
leave during a Christmas shutdown, the Agency would be obligated to
approve 4 days of administrative leave for that employee at an
unspecified time after the shutdown and, consequently, would be unable
to assign any duties to the employee on those 4 days. By precluding the
assignment of work to employees, the second sentence directly interferes
with management's right to assign work under section 7106(a)(2)(B) of
the Statute and is nonnegotiable unless it constitutes an appropriate
arrangement within the meaning of section 7106(b)(3). See Naval Air
Station, 41 FLRA at 599-601.
The third sentence provides that if a shutdown lasts an odd number of
days, employees would be required to use annual leave, other leave, or
LWOP for the extra day that the Agency is shut down. Put differently,
the Agency would not be required to grant administrative leave for the
odd day. For example, if a shutdown extended 5 days, the Agency would
be required to grant only 4 days of administrative leave. The third
sentence of the proposal is not applicable unless the second sentence
takes effect. That is, the third sentence relates only to the number of
days of administrative leave the Agency would be required by the second
sentence to grant to employees. We conclude, therefore, that both
sentences are nonnegotiable unless they constitute an appropriate
arrangement.
In determining whether a proposal is an appropriate arrangement under
section 7106(b)(3), we first determine whether the proposal is intended
to be an arrangement for employees adversely affected by the exercise of
a management right. If the proposal is intended to be an arrangement,
we next examine whether the arrangement is appropriate because it does
not excessively interfere with the exercise of the management right.
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA 24, 31 (1986) (Kansas Army National Guard).
The Union asserts that employees are adversely affected by the
Agency's decision to curtail its operations and its requirement that
employees use their earned leave during the shutdown. Proposal 1, the
Union argues, is intended to ameliorate this adverse effect by enabling
employees to receive administrative leave for the days of paid leave or
LWOP they took during the shutdown. We conclude, based on the Union's
statement, that the second and third sentences of Proposal 1 are
intended as an appropriate arrangement to mitigate the adverse affects
of management's decision to curtail operations.
We turn now to the issue of whether the second and third sentences of
Proposal 1 excessively interfere with management's right to assign work.
To resolve this issue, we balance the benefit to employees afforded by
these sentences against the burden on the exercise of management's
right. Kansas Army National Guard, 21 FLRA at 31-32.
Employees would benefit from the second sentence by receiving
administrative leave for those days of annual leave, other leave, or
LWOP which they were required to take during a shutdown. In effect,
this sentence would provide employees paid time off to compensate them
for the paid leave or LWOP they took during a shutdown.
We note, in this regard, that the second sentence is silent as to the
scheduling of the administrative leave. Therefore, in the absence of an
assertion to the contrary, we conclude that the second sentence would
not limit the Agency's right to grant or deny leave on the particular
days requested by employees. In other words, the second sentence would
enable employees to request administrative leave at times of their
choosing, subject to the Agency's right to deny the request based on
workload considerations, thereby mitigating the employees' previous use
of annual, sick, compensatory leave or LWOP at times chosen by the
Agency. As such, by providing affected employees both with days off,
with pay but without charge to leave, and with the opportunity to use
that administrative leave at times most useful and convenient to them,
the second sentence would provide employees with a significant benefit.
Next, we find that the second sentence does not excessively interfere
with the exercise of management's rights. That is, the benefits
accruing to employees under the second sentence outweigh the minimal
burden imposed on the Agency.
The second sentence only applies after the Agency resumes its
operations at the end of a temporary curtailment. In other words, the
second sentence does not affect the Agency's decision to curtail its
operations for any reason. We recognize that permitting employees to
use administrative leave after the Agency resumes operations at the end
of a temporary shutdown may have cost implications. The Agency has
failed to specify what those costs entail. Therefore, we are unable to
assess what weight that would have on our balancing. We do note,
however, that the amount of administrative leave that potentially could
be taken is not without limits. Only those employees who were not
assigned work during the period of a temporary shutdown but who used
annual, sick, compensatory leave or LWOP during the shutdown would be
eligible to request administrative leave. Further, the length of the
shutdown is within the Agency's control. Finally, nothing in the second
sentence precludes the Agency from denying an employee's request for
administrative leave based on workload requirement existing at the time
of the request.
In conclusion, balancing the benefit that administrative leave would
afford employees against the limited burden on management, we find that
the second and third sentences do not excessively interfere with
management's right to assign work under section 7106(a)(2)(B). See
National Federation of Federal Employees, Local 2119 and U.S.
Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42
FLRA No. 70 (1991) (proposal requiring an agency to place employees on
administrative leave during a temporary shutdown found not to
excessively interfere with the exercise of management's rights).
Therefore, the second and third sentences are negotiable appropriate
arrangements under section 7106(b)(3) of the Statute.
Employees who ride motorcycles on the Rock Island Arsenal shall
wear long pants, boots, gloves (full or half fingered), and eye
protection unless the motorcycle is equipped with a windshield.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 2 interferes with its right to
determine its internal security practices under section 7106(a)(1) of
the Statute because the proposal would preclude the Agency from
requiring motorcyclists to wear protective equipment other than the
items identified in the proposal. The Agency claims that the Union is
attempting to preclude the Agency from requiring that motorcyclists wear
a helmet as required by Army Regulation 385-55, Appendix B. According
to the Agency, Proposal 2 "precludes the (A)gency from abiding by its
plan to 'prevent accidents and thereby to safeguard its personnel and
property.'" Statement of Position at 7.
The Agency asserts that Proposal 2 is not an appropriate arrangement
because the Union has failed to show how the exercise of management's
right to determine its internal security practices adversely affects
employees. The Agency also argues that it is not clear how the "lesser
safety standard" in the proposal benefits employees. Id.
2. The Union
The Union states that its proposal responds to the Agency's
requirement that motorcyclists wear "long trousers, full fingered
gloves, eye protection, helmet and high visibility garments." Petition
for Review at 2. The Union asserts that, under its proposal,
motorcyclists would "only be required to wear gloves, long trousers, eye
protection and boots." Id. The Union contends that Proposal 2 is an
"appropriate arrangement for those affected by management's decision to
require riders to wear safety equipment." Id. The Union maintains that
Proposal 2 does not prohibit the Agency from requiring safety equipment.
Rather, the Union argues that "the specific type of equipment" that is
required "is negotiable." Id.
B. Analysis and Conclusions
1. Proposal 2 Directly Interferes with Management's Right to
Determine Its Internal Security Practices
An agency's right to determine its internal security practices under
section 7106(a)(1) includes the right to determine policies which are
part of its plan to secure or safeguard its personnel and physical
property. This right extends to agency decisions that certain kinds of
clothing and/or equipment are necessary for motorcycle operations on
agency property. See, for example, American Federation of Government
Employees, Local 1482 and U.S. Department of the Navy, United States
Marine Corps Logistics Base, Barstow, California, 40 FLRA 12, 15-16
(1991) (Marine Corps Logistics Base); International Brotherhood of
Teamsters, Truck Drivers, Warehousemen & Helpers of Jacksonville, Local
Union 512 and Department of the Navy, Consolidated Civilian Personnel,
Jacksonville, Florida, 32 FLRA 1200, 1204 (1988) (Consolidated Civilian
Personnel).
The Agency states that the requirement in its regulations that
motorcyclists wear certain protective equipment is designed to further
its goal of safeguarding its personnel and property. Consistent with
the Agency's statement and the cases cited previously, we find that the
Agency has established a link between its goal of safeguarding personnel
and property and its requirement that motorcyclists wear particular
safety equipment. Accordingly, we find that the Agency's right to
determine its internal security practices includes the right to
determine the equipment and clothing necessary to protect motorcyclists
on Agency installations and while on Agency business off the
installation. See, for example, Marine Corps Logistics Base, 40 FLRA at
16; Consolidated Civilian Personnel, 32 FLRA at 1205.
The Union asserts that its proposal would limit protective equipment
to "gloves, long trousers, eye protection and boots." Petition for
Review at 2. As the Union explains its proposal, helmets would not be
required protective equipment. The Union's statement is consistent with
Proposal 2 and, consequently, we adopt it for purposes of this decision.
Accordingly, by precluding the Agency from adopting different
requirements for motorcyclists' protective equipment, Proposal 2
directly interferes with the Agency's right to determine what practices
are necessary to safeguard its personnel and property. Therefore, the
proposal directly interferes with management's right under section
7106(a)(1) to determine its internal security practices.
2. Proposal 2 Is Not an Appropriate Arrangement
Although Proposal 2 directly interferes with the Agency's right to
determine its internal security practices, it is negotiable if it is an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. As noted previously, in determining whether a proposal is an
appropriate arrangement under section 7106(b)(3), we first determine
whether the proposal is intended to be an arrangement for employees
adversely affected by the exercise of a management right. If the
proposal is intended to be an arrangement, we next examine whether the
arrangement is appropriate because it does not excessively interfere
with the exercise of the management right. Kansas Army National Guard
21 FLRA at 31.
Here, the Union asserts, without further explanation, that Proposal 2
is "an appropriate arrangement for those affected by management's
decision to require riders to wear safety equipment." Petition for
Review at 2. Although the Union has not explained how employees are
adversely affected by the Agency's requirements for particular
protective equipment or how the proposal would mitigate such adverse
effects, it is reasonably foreseeable that employees who do not possess
the equipment necessary to comply with the Agency's requirements would
incur personal expenses in order to purchase that equipment. See
National Association of Government Employees, SEIU, Local R7-51 and
Department of the Navy, Navy Public Works Center, Great Lakes, Illinois,
30 FLRA 415 (1987) (Navy, Great Lakes) (where union asserted that
employees were adversely affected by additional costs necessary to
comply with agency's requirement that motorcyclists wear a full face
shield, the Authority found that the union's proposal, providing options
to the shield, was intended as an appropriate arrangement). Proposal 2
would benefit employees by reducing or eliminating employees' need to
expend personal funds to comply with the Agency's requirements. We
conclude, therefore, that Proposal 2 is intended as an appropriate
arrangement to mitigate the adverse effects of the Agency's decision to
require certain motorcycle safety equipment.
In Navy, Great Lakes, the Authority concluded that the disputed
proposal excessively interfered with exercise of the agency's right to
determine its internal security practices. 30 FLRA at 418-20. We reach
the same conclusion here. Although the Union asserts that Proposal 2
constitutes an appropriate arrangement, it makes no arguments in support
of its assertions. The Union does not, for example, specify how many
employees are affected by the Agency's safety requirements or how many
of these employees would be required to purchase safety equipment. Put
simply, the Union's argument that Proposal 2 constitutes an appropriate
arrangement is unsupported. As such, we conclude that, by prohibiting
the Agency from adopting certain requirements for motorcyclists'
protective equipment, Proposal 2 excessively interferes with the
Agency's right to determine its internal security practices and is
nonnegotiable.
The Agency shall upon request, or as otherwise agreed to by the
parties, negotiate over Proposal 1. /2/ The petition for review as to
Proposal 2 is dismissed.
(1) 5 C.F.R. Section 630.401 provides:
An agency shall grant sick leave to an employee when the employee:
(a) Receives medical, dental, or optical examination or
treatment;
(b) Is incapacitated for the performance of duties by sickness,
injury, or pregnancy and confinement;
(c) Is required to give care and attendance to a member of his
immediate family who is afflicted with a contagious disease; or
(d) Would jeopardize the health of others by his presence at
his post of duty because of exposure to a contagious disease.
(2) In finding the Proposal 1 to be negotiable, we make no judgment
as to its merits.
42 FLRA 1002
42 FLRA NO. 71
Case No. 3-CA-10066
U.S. Department of Housing and Urban Development
(Respondent)
American Federation of Government Employees, Local 476, AFL-CIO
(Charging Party/Union)
October 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the
Respondent. /1/ No opposition was filed to the Respondent's exceptions.
The complaint alleged and the Judge found that the Respondent
violated section 7116(a)(1), (5), and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) when the Respondent
failed and refused to provide to the Union certain data, including a
crediting plan, requested regarding the merit staffing file for the
vacancy announcement for the position of Financial Operations Analyst
0159, and when it failed to make a timely reply to the Union's requests.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm those rulings. Upon consideration of the Judge's
decision, the exceptions, and the entire record, we adopt the Judge's
findings, conclusions and recommended Order. /2/ See U.S. Department of
Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery,
Pennsylvania, 40 FLRA 449 (1991) (the Authority found that the agency
committed an unfair labor practice by refusing to release a copy of a
specific crediting plan to the union for a potential grievance),
petition for review filed sub nom. U.S. Department of Justice, Bureau of
Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v.
FLRA, No. 91-1293 (D.C. Cir. June 21, 1991).
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
U.S. Department of Housing and Urban Development shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of
Government Employees, Local 476, AFL-CIO, the exclusive
representative of its unit employees at its Headquarters in
Washington, D.C., the data requested by the Union in its letters
dated April 12, 1990 and April 30, 1990.
(b) Failing or refusing to make a timely reply to requests for
information from the American Federation of Government Employees,
Local 476, AFL-CIO, which reply is necessary for full and proper
discussion, understanding and negotiation of subjects within the
scope of collective bargaining.
(c) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Statute:
(a) Upon request, furnish the American Federation of Government
Employees, Local 476, AFL-CIO, copies of the data requested by the
Union in letters dated April 12, 1990 and April 30, 1990.
(b) Post at its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Director
of the Employee Classification Division, Washington, D.C. and
shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, of the Washington
Region, Federal Labor Relations Authority, 1111 -- 18th Street,
NW, 7th Floor, Washington, DC 20033-0758, in writing, within 30
days from the date of this Order, as to what steps have been taken
to comply.
WE WILL NOT fail or refuse to furnish the American Federation of
Government Employees, Local 476, AFL-CIO, the exclusive representative
of our unit employees at our Headquarters in Washington, D.C., the data
requested by the Union in letters dated April 12, 1990 and April 30,
1990.
WE WILL NOT fail or refuse to make a timely reply to requests for
information from the American Federation of Government Employees, Local
476, AFL-CIO, which reply is necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of collective
bargaining.
WE WILL NOT in any like or related manner, interfere with, restrain
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish the American Federation of Government
Employees, Local 476, AFL-CIO, copies of the data requested by the Union
in its letters dated April 12, 1990 and April 30, 1990.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Washington
Region, whose address is: 1111 -- 18th Street, NW, 7th Floor,
Washington, DC 20033-0758, and whose telephone number is: (202)
653-8500.
Case No. 3-CA-10066
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 476, AFL-CIO
Charging Party
Anthony DeMarko, Esq., For the Respondent
Ana de la Torre, Esq., For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on January 31,
1991 by the Regional Director for the Washington Region, Federal Labor
Relations Authority, a hearing was held before the undersigned on April
9, 1991 at Washington, DC.
This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. section 7101, et seq. (herein called the Statute). It
is based on an amended charge filed on January 30, 1991 by the American
Federation of Government Employees, Local 476, AFL-CIO (herein called
the Union) against U.S. Department of Housing and Urban Development
(herein called the Respondent).
The Complaint alleged, in substance, that on April 12 and April 30,
1990 the Union requested Respondent to furnish it with a copy of the
merit staffing file for vacancy announcement 00-MSD-89-0159z; that
Respondent since April 30, 1990 has refused to furnish such information;
that Respondent has refused to comply with section 7114( b)(4) of the
Statute -- all in violation of section 7116(a)(1), (5), and (8) thereof.
/3/
Respondent's Answer, dated February 14, 1991 admits the request for
the information as alleged. It denies that (a) the information is
reasonably available; (b) it is necessary for full and proper
discussion, understanding and negotiation of subjects within the scope
of collective bargaining; (c) the information is not prohibited from
disclosure by law. The Answer further denied that it refused to furnish
the requested information as well as the commission of any unfair labor
practices. /4/
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs were filed on May 9, 1991 which have
been duly considered.
Upon the entire record, from my observation of the witnesses and
their demeanor, and from all of the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
1. At all times material herein the American Federation of
Government Employees, AFL-CIO (AFGE) has been the exclusive
representative of a nationwide consolidated appropriate unit of
Respondent's employees.
2. At all times material herein the Union herein has been the
designated agent of AFGE to represent the unit employees at Respondent's
Headquarters office in Washington, DC.
3. At all times material herein Respondent and AFGE have been
parties to a collective bargaining agreement covering the unit employees
at Respondent's Headquarters. Article 22, "Grievance Procedures," sets
forth time limits for the filing of grievances. It provides, in
substance, that if either party has a grievance over a matter covered by
the procedure, that party shall notify the other party, within 30 days
of becoming aware thereof.
4. A Vacancy Announcement for the position of Financial Operations
Analyst 0159 was issued by Respondent on July 18, 1989. The
Announcement was closed on September 18, 1989 and a selection was made
in December 1989.
5. During 1990 several employees approached Barbara Davidson,
President of the Union, regarding their non-selection for that position.
One employee who was not on the best qualified list told Davidson that
she should be on the list since she had the same experience and ratings
as others who were on the list.
6. Prior to April 12, 1990, /5/ Davidson spoke to Beverly Swilley,
who was personnel management specialist in the Office of Personnel and
Training. She told Swilley that an employee wanted to know why she
didn't make the best qualified list and was a potential grievant.
Davidson stated she wanted to review the merit staffing files -- the
171s of some of the best qualified employees on the merit promotion list
-- and look at them with her constituent. Swilley informed her
supervisor, Pam Avise, about Davidson's request and the supervisor
notified Theodore Ford, Acting Director of Employee Classification
Division.
7. After the matter was discussed among the management officials,
Swilley informed Davidson that the latter could look at the files but
not the employee or any applicant.
8. Several days before April 12, Davidson called Ford and repeated
her request to review the applications and ratings of the applicants.
She wanted to bring another individual (a constituent) with her and so
advised Ford. The latter stated that the Union representative could
compare the individual's application with the rating criteria, but not
go into other applicant's rating -- other than the cut off score -- with
the individual being present. /6/ Ford testified that the Union would
be permitted, as always, to review the files unsanitized as long as they
don't want copies; it can review the total merit staffing case file as
long as the individual is not present.
9. The record reflects that merit staffing is the process which
brings to the department both status and non-status candidates by
recruitment and under competitive service regulations.
10. Under date of April 12 Davidson wrote Ford requesting a copy of
all information in the merit staffing file /7/ for vacancy announcement
0159. She stated that the request included the SF-171s of all
applicants, and those with HUD status and those from the OPM register.
It also included:
"all correspondence with applicants, all notes, the scoring
sheets, the crediting plan, the names of the panel members and
which members scored which applicants, any correspondence related
to the determination to interview only best qualified candidates
with HUD status at the GS-7 level, all candidates who were
interviewed and notes from the interviews, etc."
Davidson added that the information should be provided no later than 10
days after the request is received; that several employees have
potential grievances and data is needed to decide whether to file such
grievances.
11. Since no response was received from Ford to the April 12 memo,
Davidson sent another memo to Ford on April 30, which referred to the
Union's earlier request for all information contained in the merit
staffing file for vacancy announcement 0159. Davidson repeated the
Union's request in accordance with section 7114(b)(4) of the Statute.
12. Under date of November 6 Respondent replied to the Union's
request for information. /8/ With respect to the crediting plan, the
Union was advised in the memo that a blanket disclosure of such plan was
not required by law or FPM Supplement 335-1, Subchapter 556. Respondent
stated it would give consideration to a request if made in conjunction
with a specific grievance in which the Union is the representative.
With regard to the request for the merit staffing file relating to
vacancy announcement 0159, Respondent repeated its willingness to
provide limited access thereto; that until a grievance is filed no
determination could be made as to whether the circumstances justify
disclosure.
13. No grievance was filed concerning an employee's failure to be in
the best qualified list or with respect to other non-selection of a
particular employee for the position in vacancy announcement 0159.
Respondent resists any attempt by the Union to obtain the crediting
plan pertaining to the vacancy announcement involved herein. It
contends that such release is prohibited by the Federal Personnel Manual
Supplement 335-1, which requires that it be shown the release would not
create any unfair advantage to some candidates or compromise the utility
of the selection process. Moreover, no grievance was filed, or could
have been under the contract, and thus it cannot be determined whether a
disclosure is justified. Otherwise, providing the plan would be a
blanket disclosure.
With respect to the other data sought by the Union, Respondent
asserts that it offered to allow the Union representative to review it
by herself and have a personnel specialist explain how the particular
employee failed compared to those who made the list. Her failure to
accept the offer amounts to a waiver of the right to the data. Further,
Respondent contends the information was not shown to be necessary since
no grievance was filed or could be filed under the contract. Moreover,
it is insisted the request was burdensome to management since it
consisted of 300 applications relating to the vacancy announcement, and
assembling the data would entail one or more employees working several
weeks on the matter.
Under section 7114(b)(4) of the Statute an agency's duty to negotiate
in good faith requires that it furnish a union, upon request, with data
that (1) is normally maintained by the agency in the regular course of
business; (2) is reasonably available and necessary for discussion,
understanding and negotiation of subjects within the scope of collective
bargaining; and (3) does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors relating to
collective bargaining. /9/ It is also well established that the
exclusive representative is entitled to information that is necessary to
enable it to carry out effectively its representational functions,
including information to assist it in the investigation, evaluation and
processing of a grievance. See Department of Health and Human Services,
Social Security Administration, et al., 39 FLRA 298, and cases cited
therein.
The Authority has addressed the question as to whether an agency is
obliged to turn over a crediting plan to a union in connection with its
duty to bargain. In National Treasury Employees Union and Department of
the Treasury, U.S. Customs Service, 23 FLRA No. 681, the issue involved
the negotiability of a proposal to furnish a crediting plan. The
proposal was found to be outside the duty to bargain since its
disclosure was required without regard to whether a release of the
crediting plan would undermine the fairness and validity of the
selection process. The Authority found that such release under FPM
Supplement 335-1 is authorized where it would not create any unfair
advantage to some candidates or compromise the utility of the selection
process.
Whether or not the release of a crediting plan would create such an
advantage, or compromise the selection process, depends on the
circumstances of a particular case. In adapting such approach, the
Authority held in Department of the Army, Headquarters, XVIII Airborne
Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407, that such
disclosure would not be contrary to the FPM requirements. The requests
were limited to two specific selection actions and did not require
disclosure of all crediting plans. Further, the selection action which
was involved had been substantially completed.
In the case at hand I conclude that release of the crediting plan
would not, as was true in the Fort Bragg case, supra, compromise the
selection process nor redound to the advantage of candidates for
selection. The Union herein sought only the plan relating to the
particular vacancy announcement 0159 and did not seek disclosure of all
crediting plans. Further, the selection was made for the vacancy prior
to the request for the crediting plan. Thus, I do not believe its
disclosure would result in an unfair advantage to prospective
candidates. Nor do I believe that release of this crediting plan
relating to the said vacancy announcement will destroy the integrity of
the Agency's selection process. /10/ See also, American Federation of
Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command,
U.S. Army Test Measurement and Diagnostic Equipment Support Group, et
al., 27 FLRA 69, 75-76.
It is also contended by Respondent that there was no obligation to
furnish the crediting plan inasmuch as no grievance was filed, and none
could be filed under the applicable contractual provision. This
contention is rejected. The Authority has repeatedly held that there is
no requirement that the information requested under section 7114(b)( 4)
be used in a grievance. Department of Health and Human Services, Social
Security Administration, supra; U.S. Department of Justice, Immigration
and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310.
Respondent's assertion that the grievance was nongrievable does not
relieve it of the duty to furnish information under the Statute.
Department of the Army, Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina, 34 FLRA 461; Internal Revenue
Service, National Office, 21 FLRA 646.
With respect to the remaining data, Respondent questions the
necessity therefor. It posits this contention on the assertion that the
request was too broad and burdensome since only one individual, who
complained, was involved. Further, it maintains that the willingness to
let the Union look at the staffing file, without the presence of the
individual, fulfilled its obligation under the Statute.
The Union herein sought the merit staffing file in order to determine
whether the employee had a justifiable complaint that she should have
been placed on the best qualified list for the vacant financial
operations analyst position. I am satisfied that such information, as
requested, was necessary for the Union to make that determination. Only
by comparing the scoring sheets and notes, and reviewing the crediting
plan plus other correspondence in the file, could the Union properly
evaluate the employee's claims of disparate treatment. Further, the
Respondent did not challenge the relevance of the data requested when
Davidson first asked to review the file. Contrariwise, the agency was
willing to allow her to look at it, albeit without the presence of the
individual, and no objection was interposed that the information was not
necessary for the Union to fulfill its representational functions.
Moreover, such data is akin to the information sought by the Union --
the promotion file with the crediting plan -- in the Fort Bragg, case,
84 FLRA 461, which the Authority found was necessary and relevant
concerning an employee's nonselection for a position. While it is true
that Respondent offered to let the Union review the file, this did not
satisfy its duty under the Statute. Allowing a union to look at
information, which it is entitled to, does not discharge an agency's
duty to furnish such data. U.S. Department of the Navy, Puget Sound
Naval Shipyard, Bremerton, Washington, 38 FLRA 3. Apart from its right
to review the file without the limitation imposed by Respondent, the
Union was entitled to a copy of the data in the file which it requested.
Internal Revenue Service, Washington, D.C., 32 FLRA 920. /11/
In its brief Respondent maintains that providing the data requested
would be a burdensome task. However, the record lends no support for
this contention. No testimony was adduced, nor was any evidence
submitted, which would establish that an onerous burden would be imposed
upon the Agency to furnish the information. Since the extent of the
alleged burden is not clearly established in the record, and was not
raised at the hearing as an issue, I conclude Respondent has not shown
that the information was available only through excessive means. See
U.S. Department of Justice, Immigration and Naturalization Service,
Border Patrol, El Paso, Texas, supra.
It is the General Counsel's contention that Respondent's failure to
timely respond to the Union's requests of April 12 and April 30
constituted a violation of its duty to bargain. I agree. The Authority
has held that failing and refusing to reply to a union's request for
data under section 7114(b)(4) is violative of section 7116( a)(1), (5),
and (8). U.S. Naval Supply Center, San Diego, California, 26 FLRA 324.
Respondent avers that it has complied with that requirement by
advising Union representative Davidson, after the initial request to
review the merit staffing file, that she could look at it without the
constituent. Further the Agency points to the reply which it sent on
November 6 to the two requests made in April by the Union.
As to management's initial response, it dealt solely with the right
of the Union to examine part of the file alone. At that time the Union
had not made a request for copies of the various items which it felt
were necessary in order to adequately represent the employee re her
nonselection on the best qualified list. The formal requests made on
April 12 and April 30 sought copies of the specific items mentioned.
Respondent's reply was not made until November 6, which followed the
filing of the unfair labor practice charge filed on October 29. I do
not view the response by Respondent six months after the Union's written
requests to be timely. Moreover, such response was not forthcoming
until after the charge was filed herein. Thus, I conclude Respondent
failed to make a timely reply to such requests for data. Therefore,
Respondent was not in compliance with section 7114(b)(4), and its
failure was violative of the Statute. /12/
In sum, I conclude Respondent violated sections 7116(a)(1), (5), and
(8) by: (a) failing and refusing to furnish the data requested by the
Union in its April 12 and April 30, 1990 memos to management; (b)
failing to make a timely reply to such requests by the Union to furnish
copies of the data specified therein. Accordingly, it is recommended
that the Authority issue the following Order. /13/
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the U.S. Department of Housing and Urban
Development, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of
Government Employees, Local 476, AFL-CIO, the exclusive
representative of its unit employees at its Headquarters in
Washington, DC, the data requested by the Union in its letters
dated April 12, 1990 and April 30, 1990.
(b) Failing or refusing to make a timely reply to requests for
information from the American Federation of Government Employees,
Local 476, AFL-CIO, which reply is necessary for full and proper
discussion, understanding and negotiation of subjects within the
scope of collective bargaining.
(c) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Statute:
(a) Upon request, furnish the American Federation of Government
Employees, Local 476, AFL-CIO, copies of the data requested by the
Union in letters dated April 12, 1990 and April 30, 1990.
(b) Post at its facilities, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Director
of the Employee Classification Division, Washington, DC and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, of the Washington
Region, Federal Labor Relations Authority, 1111 -- 18th Street,
NW, 7th Floor, Washington, DC 20033-0758, in writing, within 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
Issued, June 19, 1991, Washington, DC
/s/ WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
(1) The Respondent submitted a request to file exceptions out of
time. The Judge's decision was served on the Respondent by mail on June
19, 1991. Exceptions to a decision of an Administrative Law Judge must
be filed with the Authority within 25 days after service of the
decision. Pursuant to section 2429.22 of the Authority's Rules and
Regulations, when service has been made by mail, 5 days are added to the
prescribed period for filing certain documents, including exceptions to
a Judge's decision. Accordingly, the Respondent's exceptions, which
were filed on July 18, 1991, were timely filed and its request is denied
as moot.
(2) Before the Judge, the Respondent argued that because the Union
failed to avail itself of the Respondent's offer to allow a Union
representative to review the applications and related documents, other
than the crediting plan, the Union waived its right to those documents.
In its exceptions, the Respondent contends that the Judge failed to
address this argument. The Judge found, and we agree, that the
Respondent's offer to allow the Union to review the documents did not
satisfy the Respondent's duty under the Statute to furnish such data to
the Union. Accordingly, the Union's failure to avail itself of the
Respondent's offer could not constitute a waiver of the Union's
statutory right to be furnished the data by the Respondent because the
offer itself did not satisfy the Respondent's duty under the Statute to
furnish such data to the Union.
(3) At the hearing the undersigned granted General Counsel's Motion
to Amend the Complaint by adding paragraph 17(a) as follows: "Since
April 30, 1990 Respondent has failed to respond to the Union's
information request described in paragraph 11."
(4) Respondent also amended its Answer at the hearing to deny the
amendment to the Complaint, paragraph 17(a), as heretofore described.
(5) Unless otherwise indicated, all dates hereinafter mentioned occur
in 1990.
(6) While Davidson testified she told Ford of her request to also see
the crediting plan, Ford stated that the Union representative did not
mention the plan. In view of the later written request for the
crediting plan and the ultimate determination, I do not find it
necessary to resolve this conflict in testimonies.
(7) The merit staffing file includes the crediting plan.
(8) Ford testified that his failure to reply earlier to the April 12
and April 30 requests was due to an oversight on his part based on "a
lot going on."
(9) Respondent does not dispute that the data is normally maintained
in the regular course of business. Nor does it claim that the
information constituted guidance, advice, counsel or training for
management officials relating to collective bargaining.
(10) While Respondent claims the Union did not request or mention the
crediting plan initially, it did ask for the merit staffing file which
included the plan. Moreover, it specifically asked for the crediting
plan in its written requests of April 12 and 30.
(11) Respondent argues that it could not furnish any of the requested
data until a grievance was filed. Since it asserts none could be timely
filed, the data need not be supplied. As indicated in the cases
heretofore cited, this argument has no validity. The Authority's
decisions are clear that filing a grievance is not a condition precedent
to obtaining information from an agency, nor is grievability
determination a necessary element of its obligation to provide data.
(12) See Army and Air Force Exchange Service, McClellan Base
Exchange, McClellan Air Force Base, California, 35 FLRA 764, (failure to
reply to a bargaining request for over four months did not meet the
agency's obligation to bargain).
(13) Respondent urges that, assuming arguendo a violation is found to
have occurred, the remedy be limited to a cease and desist order. It is
contended the matter is moot since no grievance was filed. As stated,
the Authority has held there is no requirement that the data sought be
used in a grievance. Further, whether a grievance may be filed under
the contract, if the issue arises, will be determined by the arbitrator
if the matter reaches arbitration. Thus, I find no basis for limiting
the order as sought by Respondent, and I conclude such limitation would
not effectuate the purposes and policies of the Statute.
WE WILL NOT fail or refuse to furnish the American Federation of
Government Employees, Local 476, AFL-CIO, the exclusive representative
of our unit employees at its Headquarters in Washington, DC, the data
requested by the Union's in letters dated April 12, 1990 and April 30,
1990.
WE WILL NOT fail or refuse to make a timely reply to requests for
information from the American Federation of Government Employees, Local
476, AFL-CIO, which reply is necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of collective
bargaining.
WE WILL NOT in any like or related manner, interfere with, restrain
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request, furnish the American Federation of Government
Employees, Local 476, AFL-CIO, copies of the data requested by the Union
in its letters dated April 12, 1990 and April 30, 1990.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Washington
Region, whose address is: 1111 -- 18th Street, NW, 7th Floor,
Washington, DC 20033-0758, and whose telephone number is: (202)
653-8500.
42 FLRA 993
42 FLRA NO. 70
Case No. 0-NG-1953
National Federation of Federal Employees, Local 2119
(Union)
U.S. Department of the Army, Rock Island Arsenal, Rock Island,
Illinois
(Agency)
October 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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 one proposal that would require the Agency to place
employees affected by a holiday shutdown of the Agency's operations in
November-December 1991 on administrative leave, rather than on annual
leave. We find that the proposal is negotiable.
Affected employees shall be placed on administrative leave without
charge to annual leave for the periods of shutdown.
1. Agency
The Agency argues that the proposal interferes with management's
rights to direct, assign and lay off employees under section 7106(a)(
2)(A) of the Statute and with the right to assign work under section
7106(a)(2)(B) of the Statute. The Agency explains that the Union's
proposal arose out of impact and implementation bargaining concerning
the proposed 1991 holiday shutdown and the Agency's proposal that
employees take annual leave during that period. The Agency states that
on previous holiday shutdowns, employees were required to take annual
leave or leave without pay. The Agency argues that the Union's proposal
would prevent the Agency from placing employees in a leave without pay
or annual leave status. The Agency also explains that the reasons
supporting the holiday shutdown are threefold: (1) savings in energy
costs would be realized by not having to heat manufacturing and office
buildings; (2) the Agency would have to adjust its manufacturing
operations to provide meaningful work, which is not always possible, to
those employees who are not on annual leave -- in contrast, productivity
would be enhanced and the Agency made more competitive if the use of
annual leave were shifted to the time when a majority of employees use
leave; and (3) in light of anticipated budget reductions and
reductions-in-force, there is a concern with long-term job preservation.
More specifically in support of its declaration that the proposal is
nonnegotiable, the Agency contends that the proposal would remove all
discretion from management in determining whether to grant leave and the
type of leave to grant. The Agency asserts that the Authority has found
that proposals restricting management's discretion concerning the
granting of leave, as the proposal does here, interfere with the right
to assign work under section 7106(a)(2)(B) of the Statute. In support
of this position, the Agency relies on 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 (1984) (Proposal 4) (Department of the Air Force).
The Agency further argues that the proposal's requirement to grant
administrative leave to employees during the shutdown would prevent the
Agency from closing its operations, thereby interfering with
management's right to assign work, as well as with management's rights
to direct and lay off employees under section 7106(a)(2)(A) of the
Statute. For these propositions, the Agency cites Department of the
Navy, Naval Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir.
1988) (Department of the Navy); Federal Employees Metal Trades Council
of Charleston, AFL-CIO and Charleston Naval Shipyard, Charleston, South
Carolina, 33 FLRA 618 (1988) (Charleston Naval Shipyard). The Agency
also argues that the proposal is similar to one found nonnegotiable in
International Association of Machinists and Aerospace Workers Union and
Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA
711 (1988) (Proposal 5) (Bureau of Engraving and Printing), in which the
Authority found that a proposal that would prevent management from
requiring that annual leave be taken when agency operations are
curtailed could allow employees to thwart the decision to curtail
operations by refusing to take annual leave, thereby interfering with
the agency's rights to assign employees and assign work.
2. Union
The Union disputes the Agency's reasons for the shutdown.
Essentially, the Union argues that: (1) monetary savings alone do not
bar negotiations over the proposal; (2) forcing employees to take
annual leave or placing employees in a leave without pay status "causes
an employee to expend their (sic) earning at the behest of the agency/
employer for a Traditional Holiday Period that may not be of their
choosing or compatible with their religious beliefs(,)" Union Response
at 5; and (3) the Agency's concern for preserving jobs "finds no
support of a compelling need or a violation of a management right . . .
." Id. at 6.
With respect to the Agency's contention that the proposal is
nonnegotiable, the Union maintains that the proposal does not deny
management the right to assign work, determine when work will be
performed, or determine who will perform work. The Union states that
the proposal, which concerns the use of administrative leave rather than
annual leave, "only affects the status of those employees management has
determined to be off work." Id. at 7. In this manner, the Union asserts
that the proposal differs from proposals which have been found
nonnegotiable by the Authority and which would have required management
to grant annual leave based on employees' requests. The Union states
that under its proposal, management will determine which personnel will
be off work as well as which employees are required to work.
The Union also disputes the Agency's contention that the proposal
interferes with the right to lay off employees. The Union states that
the Agency has not proposed or decided to lay off employee during the
period of the holiday shutdown and that "the basis for the shutdown does
not meet requirements for the laying off of or the furloughing of
employees." Id. at 11.
The Union also contends that "5 CFR, Sub-part C, Administrative
Dismissals of Daily, Hourly, and Piecework Employees and (Federal
Personnel Manual (FPM)) Supplement 990-2, Book 610, Subchapter S3-2 . .
." authorize administrative dismissal in the circumstances of this case.
Union Response at 9. The Union states that the Authority consistently
has held that agencies have discretion to grant administrative leave for
brief periods and, further, that the use of administrative leave is
negotiable. Also, with regard to the use of annual leave, the Union
states that annual leave is an entitlement of employees as specified in
FPM Supplement 990-2, Book 630, which employees have an absolute right
to take, subject to management's discretion to establish the time
periods within which leave may be taken. The Union states that nothing
in the cited FPM provision "permits management to direct or require
employees to take annual leave." Id. at 13.
The duty to bargain under section 7117 of the Statute extends to any
matter that is not inconsistent with law, rule or regulation. We find
that the Agency has not established that the proposal is outside the
duty to bargain. Rather, we find that the proposal, which authorizes
the use of administrative leave during the period of a holiday shutdown,
is negotiable.
The Authority recently has addressed the availability of
administrative leave for various activities. In American Federation of
Government Employees, Local 2022 and U.S. Department of the Army,
Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA
371, 380 (1991), we noted that FPM chapter 630, subchapter 11-1, defines
administrative leave as "'an absence from duty administratively
authorized without loss of pay and without charge to leave.'" We then
found that a proposal requiring the agency to grant employees 40 hours
of administrative leave to attend scout functions was nonnegotiable
because it directly interfered with the agency's right to assign work.
Subsequently, in National Treasury Employees Union and Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106 (1991)
(Department of the Treasury), petition for review filed sub nom.
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v.
FLRA, No. 91-1493 (D.C. Cir. Oct. 8, 1991), we found that a proposal
authorizing the use of administrative leave for employees who
participate in counseling and/or treatment sessions constituted a
negotiable appropriate arrangement. In the latter case, we addressed
more specifically the requirements of the FPM pertaining to
administrative leave. Department of the Treasury at 1126. We found
that the head of an agency has discretion, which is subject to
negotiations, to grant administrative leave to employees of the agency
in certain situations for brief periods of time. We also noted the
Authority's previous determination in National Federation of Federal
Employees and U.S. Department of the Interior, U.S. Geological Survey,
Eastern Mapping Agency, 21 FLRA 1105, 1114 (1986) (Eastern Mapping
Agency), finding negotiable a provision that provided administrative
leave or excused absence for short periods of agency closure due to
circumstances beyond the agency's control.
In addition to Eastern Mapping Agency, the Authority previously has
addressed and found negotiable proposals concerning the use of
administrative leave or excused absence for periods of temporary
curtailment of agency operations. See, for example, Overseas Education
Association and Department of Defense Dependents Schools, 29 FLRA 485,
494-95 (1987), enf'd as to other matters by en banc order sub nom.
Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C.
Cir. June 22, 1990) (no reduction in employees' pay where operations
curtailed because of adverse weather conditions or other situations
barring the conduct of regular classroom activities); National
Association of Government Employees, Local R14-62 and U.S. Army Dugway
Proving Ground, Dugway, Utah, 26 FLRA 59 (1987) (employees affected by
holiday closure placed on administrative leave without charge to annual
leave).
The proposal here would require the Agency to place employees
affected by the holiday shutdown on administrative leave, without charge
to annual leave. As noted, agencies have discretion, subject to
negotiations, to grant employees administrative leave for brief periods
of time. In this case, the amount of time for which administrative
leave would be authorized consists of 40 hours and would include the day
after Thanksgiving and December 23, 24, 26 and 27. Petition for Review
at 1. /1/ In our view, the use of administrative leave for this brief
period of time is within the Agency's discretion and, therefore,
negotiable under the requirements of the FPM. We note, in this regard,
the absence of any contention by the Agency that such negotiations are
precluded by the FPM.
We further find that the proposal does not directly interfere with
the management rights alleged by the Agency. However, even if there was
a direct interference, we would find the proposal negotiable as an
appropriate arrangement under section 7106(b)(3) of the Statute.
First, we reject the contention that the proposal interferes with the
right to assign work by removing the discretion to determine whether to
grant leave and the appropriate leave to grant. We agree with the Union
that the proposal concerns the status of employees whom the Agency has
determined to place on leave. Thus, the Agency has already decided that
employees will be on leave by virtue of its decision to temporarily
curtail operations. As to a determination concerning the type of leave
that will be authorized, we have found that the use of administrative
leave is a matter that is subject to negotiations. The Agency's
reliance on Department of the Air Force is inapposite. In that case,
the proposal would have required the agency to grant annual leave as
long as the employee's need was clearly documented. The Authority found
that the proposal interfered with section 7106(a)(2)(B) by removing
management's discretion to deny leave. In this case, the Agency has
already decided to place employees on leave. There is nothing in the
proposal that would prevent the Agency from placing employees on leave
for the period of the holiday shutdown.
We also reject the Agency's contentions that the proposal interferes
with the rights to direct, assign and lay off employees under section
7106(a)(2)(A). Again, nothing in the proposal would interfere with the
Agency's decision to have a holiday shutdown or prevent the Agency from
closing its operations. In this manner, the proposal is distinguishable
from Bureau of Engraving and Printing in which the application of the
proposal was such that an employee or a group of employees could thwart
the agency's decision to curtail its operations by refusing to take
annual leave. There is nothing in either the proposal itself or the
Union's explanation as to the manner in which the proposal is intended
to operate that would indicate such a result. Moreover, unlike the
proposal in Bureau of Engraving and Printing, which was silent
concerning the availability of administrative leave, the proposal here
is designed to permit the use of administrative rather than annual leave
for the period of the temporary shutdown. Additionally, as the proposal
here would not require the Agency to assign work to employees during the
period of the shutdown, the proposal is distinguishable from Charleston
Naval Shipyard, 33 FLRA 618-19, which required management to "attempt to
provide available work first to employees not having annual leave to
their credit(,)" during periods of shutdown or reduced operations.
Finally, the Agency's reliance on Department of the Navy is
misplaced. Unlike the agency in that case, there is every indication
that the Agency intended to maintain employees in a paid leave status,
as evidenced by the Agency's statement that it "proposed that employees
would take annual leave during the period of the shutdown." Statement of
Position at 2. The Union's proposal merely requires that administrative
leave be negotiated as an alternative to annual leave for the period of
the holiday shutdown.
We further conclude, however, that even if the proposal were found to
directly interfere with the exercise of management's rights, the
proposal would constitute a negotiable appropriate arrangement. In
determining whether a proposal constitutes an appropriate arrangement
under section 7106(b)(3) of the Statute, it is first necessary to
determine whether the proposal is intended to be an arrangement for
employees adversely affected by the exercise of a management right. If
the proposal is intended to be an arrangement, the Authority next
examines whether the arrangement is appropriate because it does not
excessively interfere with the exercise of the management right.
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA 24, 31-33 (1986).
In disputing the Agency's reasons for the holiday shutdown, the Union
explains that requiring employees to take annual leave or be placed in a
leave without pay status causes employees to use their leave in a manner
that is not compatible with their needs. As such, we view the Union's
proposal as an arrangement for employees adversely affected by the
Agency's decision to conduct a holiday shutdown.
Next, we find that the proposal does not excessively interfere with
the exercise of management's rights. We find that the benefits accruing
to employees under the proposal outweigh the minimal burden imposed on
the Agency. As noted by the Union, the Agency's plan to require
employees to take annual leave or to place them in a leave without pay
status may be incompatible with the needs of employees. Under the
proposal, employees would be able to preserve their annual leave and use
that leave, subject to applicable legal and regulatory requirements,
when the leave is most appropriate and beneficial to them. While the
use of administrative leave by employees during the period of the
shutdown would enable those employees to preserve their annual leave for
use at some future date, the Agency has not argued that such a result
would impair the Agency's operations in any way.
In terms of the effect of the proposal on the exercise of
management's rights, we note that the Agency has already decided that it
is beneficial to temporarily curtail its operations. The Agency has not
argued that the cost of placing employees on administrative leave as
opposed to annual leave would impose a significant burden. We note that
the amount of administrative leave that would be taken is not without
limits but, instead, is limited to the brief period of 5 days per
employee. Although this use of administrative leave essentially would
represent a savings to employees of an equivalent number of days of
annual leave, which is then available for employees' use, the Agency has
not established that the proposal would result in a substantial number
of workdays lost or the manner in which it would presently impair the
Agency's operations. Additionally, even though employees would preserve
several days of annual leave, management would still retain the right to
grant or deny leave requests based on workload requirements.
Finally, the Agency has suggested that there is a concern for
long-term job preservation. While it is entirely appropriate for the
Agency to take such matters into consideration, such a long-term effect,
when faced with the application of the Union's proposal to the Agency's
proposed 1991 holiday shutdown, is purely speculative. Moreover, in
finding that the proposal is within the duty to bargain, we are not
passing on the relative merits of the proposal but are simply directing
the parties to negotiate. The parties are free, of course, to bargain
to impasse. Any arguments concerning the relative merits of the
proposal are more appropriately made in a proceeding before the Federal
Service Impasses Panel. See National Treasury Employees Union, Chapter
83 and Department of the Treasury, Internal Revenue Service, 35 FLRA
398, 414 (1990).
The Agency must bargain, upon request or as otherwise agreed to by
the parties, over the proposal. /2/
(1) The Union indicates, in its petition for review, that the Agency
originally proposed a partial shutdown of 56 hours but that following
negotiations, the Agency agreed to limit the shutdown to 40 hours.
(2) In finding the proposal to be within the duty to bargain, we make
no judgment as to its merits.
42 FLRA 964
42 FLRA NO. 69
Case No. 0-NG-1153 (28 FLRA 24 (1987))
National Treasury Employees Union
(Union)
U.S. Department of Agriculture, Food and Nutrition Service, Western
Region
(Agency)
October 21, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This case concerns nine provisions of a collective bargaining
agreement that were disapproved by the Agency head under section 7114(
c) of the Federal Service Labor-Management Relations Statute (the
Statute). The Authority initially dismissed the petition for review in
this case holding that the Agency head was not empowered to review the
provisions in dispute because they were directed to be included in the
parties' agreement as a result of interest arbitration. /1/
The Authority's decision was vacated and remanded by the United
States Court of Appeals for the Ninth Circuit in Department of
Agriculture, Food and Nutrition Service, Western Region v. FLRA, 895 F.
2d 1239 (9th Cir. 1990) (FNS, Western Region). In remanding the case,
the Court directed the Authority to determine the proper disposition of
this case under a rationale that does not conflict with the holding in
Department of Defense Dependents Schools v. FLRA, 852 F.2d 779 (4th Cir.
1988) (DODDS). FNS, Western Region, 895 F.2d at 1240. In DODDS, the
U.S. Court of Appeals for the Fourth Circuit had rejected the
Authority's position that section 7114(c) of the Statute does not
empower agency heads to review provisions that are directed to be
included in an agreement as the result of an interest arbitration award.
In U.S. Department of Justice and Immigration and Naturalization
Service and American Federation of Government Employees, National Border
Patrol Council, 37 FLRA 1346 (1990) (INS), petition for review filed as
to other matters sub nom. U.S. Department of Justice, Immigration and
Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990),
we announced that we would no longer adhere to the Authority's previous
interpretation of section 7114(c). Rather, we stated that we would find
that where the Federal Service Impasses Panel (the Panel) directs
parties to interest arbitration under section 7119( b)(1) of the
Statute, the agency head retains the right under section 7114(c) to
review any provisions imposed. INS at 1358.
In U.S. Department of the Interior, Bureau of Reclamation, Lower
Colorado Region, Yuma, Arizona and National Federation of Federal
Employees, Local 1487, 41 FLRA 3 (1991) (Bureau of Reclamation), we held
that where parties voluntarily enter into interest arbitration pursuant
to section 7119(b)(2) of the Statute, the appropriate mechanism for
challenging resulting arbitration awards is through the filing of
exceptions under section 7122 of the Statute. 41 FLRA at 8-9. Thus, if
both parties agree to arbitration under section 7119(b)( 2), the
resulting arbitration award is not subject to agency head review under
section 7114(c) of the Statute. See Panama Canal Commission v. FLRA,
867 F.2d 905 (5th Cir. 1989).
In reaching our conclusion in Bureau of Reclamation, we stated:
Section 7119(b)(1) and (2) is "decidedly in the disjunctive,"
however. In particular, although section 7119(b)(2) refers to the
parties' agreement to adopt procedures for binding arbitration,
interest arbitration resulting from a request for Panel assistance
under section 7119(b)(1) is "nonvoluntary(.)" As such, arbitration
resulting from requests under section 7119(b)( 1) does not
constitute "binding arbitration agreed upon by the parties and
subject to review under Section 7122." (Citations omitted.)
41 FLRA at 7.
In Patent Office Professional Association and U.S. Department of
Commerce, Patent and Trademark Office, 41 FLRA 795, 798-99 (1991) (PTO),
we further addressed the issue of agency head review of an interest
arbitrator's award that resulted from a request for Panel assistance
under section 7119(b)(1). We held that it made no difference whether
the parties are compelled to refer their dispute to an interest
arbitrator pursuant to final action of the Panel or enter into interest
arbitration pursuant to a recommendation of the Panel. Id. We stated
that the determinative factor for distinguishing voluntary interest
arbitration from nonvoluntary interest arbitration is whether the
parties have clearly signified their desire to enter into binding
arbitration by utilizing the process available to them for that purpose
that is provided in section 7119(b)(2) of the Statute. Id. We stated
that we would not construe an impasse submitted to the Panel under
section 7119(b)(1) of the Statute as constituting an agreement for
binding arbitration. Therefore, any interest arbitration award
resulting from that process would be subject to agency head review under
section 7114(c) of the Statute.
In this case, the parties' impasse was submitted to the Panel under
section 7119(b)(1) of the Statute. See Department of Agriculture, Food
and Nutrition Service, Western Region v. FLRA, 879 F.2d 655, 657 (9th
Cir. 1989). Consequently, based on our decision in PTO, the provisions
of the interest arbitrator's award that resulted were subject to Agency
head review under section 7114(c).
Having concluded that the Union's petition is appropriately before
us, we turn to the provisions themselves. For the reasons that follow,
we conclude that Provision 1, which concerns acceptable level of
competence, is not inconsistent with an agency regulation for which a
compelling need exists, as claimed by the Agency, and is negotiable.
Provision 2, which concerns travel and per diem costs for Union
representatives, concerns a condition of employment that is within the
discretion of the Agency and is negotiable.
Sentence 1 of Provision 3, which concerns characteristics that
performance standards must possess, directly interferes with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute and is nonnegotiable. Sentence 2
of Provision 3, which allows for employee participation in the
establishment of performance standards, does not directly interfere with
management's rights to identify performance standards and critical
elements as claimed by the Agency, and is negotiable. Provision 4,
which provides a procedure for employees to bring disputes concerning
their performance elements and standards to a reviewing official within
the Agency, does not interfere with management's rights as claimed by
the Agency and is negotiable.
With the exception of subsection 3, Provision 5 prescribes
substantive criteria with which the content of performance elements must
comply and, consequently, directly interferes with management's rights
to direct employees and assign work under section 7106(a)(2)(A) and (B)
of the Statute. That portion of the provision is nonnegotiable.
Subsection 3, however, does not directly interfere with management's
rights to direct employees and assign work and is negotiable.
Provision 6, which prescribes substantive criteria with which the
content of critical elements must comply, directly interferes with
management's rights to direct employees and to assign work and is
nonnegotiable. The disputed portion of Provision 7, which prescribes
substantive criteria with which the content of performance standards
must comply, directly interferes with management's rights to direct
employees and to assign work and is nonnegotiable.
The disputed portion of Provision 8, which establishes constructive
knowledge as the point at which Agency responsibility for taking
disciplinary action begins, does not directly interfere with
management's right to take disciplinary action as claimed by the Agency
and is negotiable. The disputed portion of Provision 9, which would
include the substance of critical elements and performance standards
within the scope of the negotiated grievance procedure once they are
applied, is negotiable.
Article 1, Definitions -- Acceptable Level of Competence
ACCEPTABLE LEVEL OF COMPETENCE (ALC) -- "A term of art described
within the Federal Personnel Manual, the Code of Federal
Regulations, and the US Code (Title V) and relating specifically
to that level of performance of an employee necessary to the award
of a within-grade salary increase. Arrangements for determining
and applying ALC regarding individual employee's performance and
salary increases are contained within this contract."
(Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the disputed language is nonnegotiable
because it is inconsistent with an Agency regulation for which a
compelling need exists. The Agency asserts that the inconsistency
results from the fact that the disputed language fails to "contain
reference to the Department Personnel Manual (DPM), specifically, DPM
Chapter 531, Subchapter 4-9c(.)" /2/ Agency statement of position at 2.
According to the Agency, under 5 U.S.C. Section 5335(a) and implementing
Office of Personnel Management (OPM) regulations that govern acceptable
level of competence, agencies are resposible for identifying the level
of performance that constitutes an acceptable level of competence. The
Agency asserts that because DPM chapter 531, subchapter 4-9c(1) does so,
it is "essential for implementation of the law and OPM's regulation, and
the agency had a mandate to issue such regulation." Id. at 3.
Therefore, the Agency argues that it meets the Authority's criteria for
determining compelling need that are set out at 5 C.F.R. Section
2424.11.
The Union states that the disputed language was proposed by the
Agency and accepted by the interest arbitrator. Additionally, the Union
states that Article 19, section 3, of the parties' agreement "adopts
verbatim" the language that the Agency claims that it has a compelling
need to include in Article 1. /3/ Union reply brief at 8-9.
The Union contends that the law and regulations "only grant the
Agency the power to determine certain standards of performance" and do
not mandate how the standards will be defined. Id. at 7. Consequently,
the Union asserts that the Agency's regulation does not implement, in a
nondiscretionary manner, a statutory mandate, which the Union contends
would be necessary to meet the Authority's compelling need standard.
B. Analysis and Conclusions
To establish that negotiations over a proposal are barred based on
compelling need for an agency-wide regulation, an agency must: (1)
identify a specific agency-wide regulation; (2) show that there is a
conflict between its regulation and the provision; and (3) demonstrate
that its regulation is supported by a compelling need with reference to
the standards set forth in section 2424.11 of the Authority's
regulations. For example, National Treasury Employees Union and
Department of the Treasury, Office of Chief Counsel, Internal Revenue
Service, 40 FLRA 849, 856 (1991).
Here the Agency identifies DPM chapter 531, subchapter 4-9c(1), as
the Agency regulation with which Provision 1 allegedly conflicts. We do
not agree that there is a conflict between the cited regulation and the
disputed language of Provision 1. The disputed language sets forth only
a generalized definition of the concept "acceptable level of
competence." It does not, either by its terms or under the Union's
statement of intent, prescribe or set forth the level of performance
that is necessary to achieve an acceptable level of competence, which is
the function of DPM chapter 531, subchapter 4-9c(1). In view of the
fact that the disputed language of Provision 1 does not encompass the
matter that is addressed by DPM chapter 531, subchapter 4-9c(1), we
perceive no conflict between the two. Additionally, we do not find any
basis for concluding that because the disputed language does not
specifically reference the DPM, the Agency is prevented from conforming
to the provisions of DPM chapter 531, subchapter 4-9c(1). Indeed, as
the Union points out, the interest arbitrator's award contains language
(Article 19, section 3) for inclusion in the contract that mirrors the
DPM provision concerning the level of performance that constitutes an
acceptable level of competence. Thus, the contract as a whole expressly
reflects, rather than conflicts with, the cited DPM provision.
Consequently, we reject the Agency's assertion that there is a
conflict between Provision 1 and the cited provision of the DPM. In
view of this conclusion, we do not address whether that portion of the
DPM meets the Authority's criteria for establishing compelling need.
Based on the foregoing, we conclude that Provision 1 is negotiable.
Article 9 Section 1(D) Official Time
(D) Ordinary and customary travel and per diem costs incurred
by UNION representatives, who are Agency employees in connection
with the activities set out in Section 1(B) of this Article will
be approved.
A. Positions of the Parties
The Agency argues that payment of travel and per diem expenses is
governed by the Travel Expense Act, 5 U.S.C. Section 5702, and,
consequently, that such payments are not a condition of employment.
Citing 46 Comp. Gen. 21, the Agency further contends that such payments
can be made only as unilateral decisions by agencies. Additionally, the
Agency argues that no entitlement to travel and per diem payments
accompanies a grant of official time, citing Bureau of Alcohol, Tobacco
and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF). The Agency contends
that footnote 17 in BATF, which suggests that unions may negotiate for
travel and per diem payments, is merely dictum and need not be followed.
The Agency states that to the extent footnote 17 states that the
payment of travel and per diem expenses may be made upon a determination
that they serve the convenience of the Agency or are otherwise in the
primary interest of the government, Provision 2 is still outside the
duty to bargain because a blanket certification cannot be made that
payment of travel and per diem is in the primary interest of the
Government.
The Union argues that under the Travel Expense Act the Agency has the
discretion to pay travel and per diem expenses where travel is construed
as official business. The Union asserts that where, under applicable
law and regulation, an agency has discretion concerning a condition of
employment, such discretion is subject to negotiation. In disagreement
with the Agency, the Union contends that the payment of travel and per
diem expenses is a condition of employment within the meaning of section
7103(a)(14) of the Statute. The Union asserts that Provision 2
constitutes the result of negotiation over the Agency's exercise of its
discretion concerning a condition of employment and is negotiable.
B. Analysis and Conclusions
While this case was pending, the Authority issued National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 21
FLRA 6 (1986), affirmed sub nom. Department of Treasury, U.S. Customs
Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (Customs Service). In
that decision the Authority found negotiable a proposal that an agency
pay the travel expenses incurred by employees while using official time
available under the parties' agreement. In so concluding, the Authority
rejected the argument, which the Agency makes here, that the proposal
did not concern conditions of employment because travel and per diem are
governed by the Travel Expense Act. 21 FLRA at 7-8. The Authority
concluded that under the Travel Expense Act and the Federal Travel
Regulations, 41 C.F.R. Section 301-1.1 et seq., payment of travel and
per diem expenses that are incurred in the conduct of labor-management
relations activity may be made where such is determined to be in the
primary interest of the Government. 21 FLRA at 8-12.
The Authority has held that when this determination has been made,
otherwise proper travel and per diem expenses may be paid from agency
funds. For example, National Joint Council of Food Inspection Locals,
AFGE, AFL-CIO and Food Safety and Inspection Service, U.S. Department of
Agriculture, 23 FLRA 10 (1986) (Food Safety and Inspection Service).
Contrary to the Agency's argument here, nothing in the authorities that
govern the payment of such expenses, i.e., the Travel Expense Act and
the Federal Travel Regulations, requires that this determination be made
only by management and only on a case-by-case basis. For example, id.
at 14. Rather, this determination may be made at the bargaining table.
For example, Customs Service, 836 F.2d at 1385-86.
The Agency here makes no argument that travel flowing from the
particular types of activities and circumstances set forth in section
1(B) of Article 9 could not meet the required standard of "primary
interest of the Government." Additionally, nothing in the provision
itself or the parties' arguments suggests that this provision would
foreclose case-by-case determinations as to the appropriateness of
particular travel and expenses that are proper under law and governing
regulations. See, for example, Food Safety and Inspection Service, 23
FLRA at 14-15.
Based on the foregoing, we conclude that Provision 2 is within the
duty to bargain. See also National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 31 FLRA 856
(1988); U.S. Department of Agriculture, Food and Nutrition Service,
Midwest Region and National Treasury Employees Union, 30 FLRA 477
(1987).
Article 14, Performance Appraisal Section 2(A)
(A) The EMPLOYER is ultimately responsible for the development
of realistic, objective, and consistent performance standards and
the subsequent appraisal of performance against these standards.
The identification of performance elements and the establishment
of performance standards and the documentation of accomplishments
should be a joint planning and communication process between
UNION, the employee and his/her supervisor.
A. Positions of the Parties
The Agency argues that the first sentence of Provision 3 would
restrict the content of performance standards and would subject that
content to arbitral review. Consequently, the Agency asserts that the
first sentence interferes with management's rights to assign work and
direct employees under section 7106 of the Statute.
As to the second sentence, the Agency contends that although the
Union states that that sentence is not intended to require negotiation
on the content of performance standards, the Union does not state what
is contemplated by the "joint planning and communication process"
prescribed by the provision. The Agency asserts that "joint planning"
connotes a mutual effort to identify the content of performance
standards and critical elements. While the Agency concedes that
employees have a right to participate in the establishment of
performance standards, it contends that the Agency retains the right to
identify performance standards and critical elements and that the second
sentence interferes with that right.
In conjunction with this provision, the Union requests that should
the Authority find any of the language nonnegotiable, "that it do so
with particularity identifying which sentences or clauses are
non-negotiable." /4/ Union reply brief at 18 n.9.
The Union disputes the Agency's claim that this provision is
nonnegotiable. As to the first sentence, the Union contends that it
specifically acknowledges the Agency's right to identify performance
standards and elements as well as to appraise employees against those
standards and elements. The Union describes the first sentence as
merely establishing a general, nonquantitative standard by which the
application of performance standards established by management may
subsequently be evaluated in a grievance filed by an employee who
believes that he or she has been adversely affected by the application
of the standards.
As to the second sentence, the Union denies that it would subject the
content of critical elements to collective bargaining. According to the
Union, the second sentence seeks only to provide for employee
participation in the establishment of performance standards as is
contemplated by 5 U.S.C. Section 4302(a)(2) and does not prevent the
Agency from establishing elements and standards. The Union contends
that this portion of the provision is virtually identical to the first
sentence of Union Proposal 1 in National Federation of Federal
Employees, Local 1430 and Department of the Navy, Northern Division, U.
S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984), which the
Authority held was negotiable.
B. Analysis and Conclusions
Management's rights to direct employees and to assign work under
section 7106(a)(2)(A) and (B) of the Statute encompass the authority to
identify critical elements of performance and to establish performance
standards. For example, National Federation of Federal Employees, Local
2096 and U.S. Department of the Navy, Naval Facilities Engineering
Command, Western Division, 36 FLRA 834, 845 (1990) (NAFEC, Western
Division), and cases cited therein. Proposals that restrict an agency's
authority to determine the content of performance standards and critical
elements directly interfere with management's rights to direct employees
and to assign work. For example, NAFEC, Western Division at 845;
American Federation of Government Employees, Local 3172 and U.S.
Department of Health and Human Services, Social Security Administration,
Vallejo District Office, 35 FLRA 1276, 1280-81 (1990) SSA, Vallejo
District Office.
On the other hand, proposals governing only the application of
performance standards and critical elements do not conflict with
management's rights to direct employees and to assign work. See, for
example, NAFEC, Western Division at 846. Accordingly, the task in
deciding the negotiability of the first sentence of this provision "'is
primarily one of determining, based on the record, whether (it)
concern(s) substantive matters, such as the content of performance
standards and critical elements, or whether (it) concern(s) the
application of those standards and elements and other nonsubstantive
matters such as procedures.'" Id. at 846 (quoting Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA 384, 387 (1987)).
Notwithstanding the Union's claim that the first sentence of this
provision acknowledges the Agency's right to determine the content of
performance standards and to appraise employees against those standards,
this sentence as written establishes characteristics that the standards
must possess. Thus, by specifying that the standards be "realistic,
objective, and consistent," this sentence places a substantive
limitation on management's authority to determine the content of
performance standards. As we recently stated in National Association of
Government Employees, SEIU, AFL-CIO and Veterans Administration,
Veterans Administration Medical Center, Department of Memorial Affairs,
40 FLRA 657, 683 (1991) (Department of Memorial Affairs):
Proposals that establish general criteria restricting the range of
management action pursuant to a right under section 7106 of the
Statute constitute a substantive limitation on the exercise of
that right. Proposals establishing substantive criteria governing
the exercise of a management right directly interfere with that
right and are nonnegotiable.
The proposal at issue in that decision required the agency to
distribute work "equitably." We noted that terms such as "equitable" or
"equitably" had been found in previous Authority decisions to have
varying substantive effects. Id. at 684. We concluded that terms such
as "equitable" or "equitably," when used in proposals that govern the
exercise of a management right, constitute substantive restrictions on
the exercise of that right and that we would no longer follow previous
decisions to the extent that those decisions held that the use of such
terms do not constitute a substantive limitation. Id.
Insofar as the first sentence of this provision requires that
performance standards possess specified characteristics, it would have
the same effect as Provision 2 in National Treasury Employees Union and
U.S. Department of Health and Human Services, Social Security
Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39
FLRA 346 (1991) (OHA, Baltimore), which we concluded was nonnegotiable.
In that decision we rejected a union assertion, similar to that which
the Union makes here, that the provision concerned only the application
of performance standards. Among other precedent, we cited a decision of
the U.S. Court of Appeals for the Eight Circuit that stated, in relevant
part:
To allow the Union to negotiate over the meaning of such a broad
and subjective term as "fair," for example, would effectively open
the door to bargaining over any aspect of performance standards.
Contradicting their expressed wish to affect only the application
of performance standards, the Union is attempting to gain a
foothold in territory that is management's exclusively, i. e.,
fashioning the content of performance standards.
American Federation of Government Employees, Locals 3748 and 3365 v.
FLRA, 797 F.2d 612, 618 (8th Cir. 1986).
Sentence 1 of Provision 3 is not limited to the application of
performance standards. Rather, it restricts the Agency's authority to
determine the content of the standards. By specifying characteristics
that performance standards must possess, the first sentence of Provision
3 directly interferes with management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute.
The Union describes this portion of the provision as applying in the
context of a grievance being filed by an employee who believes that he
or she has been adversely affected by the application of a performance
standard. While this argument suggests the issue of whether this
portion of the provision constitutes an appropriate arrangement that is
negotiable under section 7106(b)(3) of the Statute, no further support
is provided for such a conclusion. We realize that most of the
pleadings in this case were submitted prior to the issuance of the
Authority's decision in National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG),
in which the Authority set forth the analytical framework that it would
rely on to determine whether proposals constitute appropriate
arrangements negotiable under section 7106(b)(3) of the Statute.
Nevertheless, if it wished to do so, the Union could have requested to
supplement its submissions after this case was remanded from the court
to update and amplify its position with respect to the applicability of
section 7106(b)(3) to this portion of the provision. In this regard, we
note that the Agency made a request, which we granted, to file a
supplemental submission after the court's remand in this case.
Here, the record does not permit a determination on whether the first
sentence of this provision constitutes an appropriate arrangement within
the meaning of section 7106(b)(3). It is well established that parties
bear the burden of creating a record upon which the Authority can make a
negotiability determination. For example, National Federation of
Federal Employees, Local 2050 and U.S. Environmental Protection Agency,
35 FLRA 706, 711-12 (1990); National Federation of Federal Employees,
Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g 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).
Based on the foregoing, we conclude that sentence 1 of Provision 3 is
nonnegotiable.
Turning to sentence 2, we note that the Union expressly states that
this portion of the provision is not intended to require negotiation
over the content of performance standards. As this interpretation is
consistent with the wording of the provision, we adopt it for purposes
of this decision. Sentence 2 would have the same effect as Provision 1
in National Federation of Federal Employees and Department of the
Interior, Bureau of Land Management, 29 FLRA 1491 (1987) (BLM), reversed
as to other matters sub nom. Department of Interior, Bureau of Land
Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). Provision 1 in BLM
provided that the development of performance standards and the
identification of critical elements would be a "joint effort" between
the employee and the supervisor. In concluding that Provision 1 was
negotiable, the Authority noted that it is well established that 5 U.S.
C. Section 4302(a)(2) encourages employee participation in establishing
performance standards. The Authority further held that the manner in
which an agency meets the requirement of 5 U.S.C. Section 4302(a)(2) is
negotiable to the extent that it does not prevent the agency from
establishing performance standards and critical elements under section
7106(a)(2)(A) and (B). Id. at 1492.
The second sentence of Provision 3 in this case merely allows for
employee participation in the formulation of performance standards
without requiring negotiation over the content of those standards.
Therefore it is negotiable. Compare id. at 1491-92 (provision
specifying that the development of performance standards would be a
joint effort between the employee and supervisor is negotiable) and
National Federation of Federal Employees, Local 1430 and Department of
the Navy, Northern Division, U.S. Naval Base, Philadelphia,
Pennsylvania, 15 FLRA 45 (1984) (Proposal 1, which requires that the
identification of performance element and the establishment of
performance standards be a joint planning communication process between
the employee, steward and supervisor, is negotiable) with National
Association of Government Employees, Local R1-144, Federal Union of
Scientists and Engineers and U.S. Department of the Navy, Naval
Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456 (1990),
remanded as to other matters without decision sub nom. U.S. Department
of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v.
FLRA, No. 91-1045 (D.C. Cir. July 23, 1991) (sentence two of Proposal 4
is nonnegotiable because it would have the effect of allowing employees
to negotiate over the content of performance standards).
Article 14, Performance Appraisal Section 2(G)
(G) Employees may bring disputes concerning performance
elements and/or performance standards to the attention of the
reviewing official. The reviewing official may exercise authority
to change the disputed performance element and/or standard after
discussion with the rating official. The employee may seek the
assistance of the UNION in making this presentation. Official
time for preparation and presentation shall be provided to the
employee and the representative. The UNION will be provided with
all documentation necessary to properly fulfill its
representational duty.
A. Positions of the Parties
The Agency contends that rather than establishing a mechanism for
resolution of disputes over the application of performance standards
this provision establishes a procedure for questioning the content of
the standard. The Agency asserts that because this provision addresses
only the content of elements and standards, it infringes on management's
rights to direct employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute.
The Union disputes the Agency's contention that this provision
infringes on management's rights. The Union describes this provision as
constituting a procedure for employee participation regarding
performance standards and elements. The Union states that this
provision recognizes that the reviewing official may change an element
or standard and does not provide for negotiation over the content of the
standards or elements. The Union emphasizes that under this provision
the ultimate determination as to the content of the performance
standards and elements remains with the Agency.
B. Analysis and Conclusions
Provision 4 provides a negotiable procedure for employees to bring
disputes concerning their performance elements and standards to a
reviewing official within the Agency. See National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769, 780 (1980), affirmed as to other matters sub nom. NTEU v. FLRA, 691
F.2d 553 (D.C. Cir. 1982). As written and as explained by the Union,
this provision would not require negotiation over the content of the
elements and standards. Rather, this provision would operate as a
mechanism for review of elements and standards within the Agency.
Further, the determination as to the content of those elements and
standards would remain with the Agency. Based on the record, we find
that nothing in this provision would interfere with the Agency's
management rights to establish performance elements and standards.
Provision 4 only provides a procedure by which employees may bring
disputes concerning their performance elements and standards to a
reviewing official within the Agency. In this regard this provision is
similar to the second sentence of Provision 3, above, which we found was
negotiable because it merely provides for employee participation in the
formulation of performance standards without requiring negotiation over
the content of the standards. Based on the foregoing, we conclude that
Provision 4 is negotiable. See also National Treasury Employees Union
and U.S. Department of Agriculture, Food and Nutrition Service, Midwest
Region, 25 FLRA 1067 (1987) (Proposal 3) (FNS, Midwest Region), affirmed
as to other matters sub nom. National Treasury Employees Union v. FLRA,
848 F.2d 1273 (D.C. Cir. 1988).
Article, 14, Performance Appraisal Section 3(A)
(A) Performance elements will be applied with due regard for
the following:
(1) They will identify only work activities under the control
of the employees.
(2) Employees in like positions, which are those with like
position descriptions in the same work unit, will ordinarily have
like elements. The EMPLOYER will explain any differences and
justify them if the question is raised by the concerned employee
or the UNION.
(3) They will be consistent with the duties and
responsibilities contained in the employee's position description.
(4) They will be consistent with the grade level of the
position.
(5) They will be performance-related rather than trait-related.
(6) To the extent practicable, they will not be overlapping and
will cover distinct work responsibilities, i.e., they will be
defined as including only one identifiable, independent task,
duty, responsibility, function, performance objective, or
performance dimension.
A. Positions of the Parties
The Agency asserts that the six subsections of this provision speak
directly to, and would restrict the content of, critical and noncritical
performance elements. Consequently, the Agency contends that this
provision infringes on management's rights to direct employees and
assign work and is nonnegotiable.
The Union asserts that the Agency's argument overlooks the prefatory
language of the proposal, which, it contends, limits the provision to
the application of performance elements. The Union contends that the
six subsections "are simply factors which should be considered in
judging the application of performance elements." Union reply brief at
26. According to the Union, "(n)one of them purport to prescribe what a
particular performance standard or critical element shall or shall not
be." Id. The Union contends that they simply provide for a general,
nonquantitative standard to measure the application of critical
elements, and, therefore, are negotiable.
B. Analysis and Conclusions
As we discussed earlier, proposals that restrict an agency's
authority to determine the content of performance standards and critical
elements directly interfere with management's rights to direct employees
and assign work. For example, NAFEC, Western Division, 36 FLRA at 845;
SSA, Vallejo District Office, 35 FLRA at 1280-81. On the other hand,
proposals relating only to the application of performance standards and
critical elements do not conflict with management's rights to direct
employees and assign work. For example, NAFEC, Western Division, 36
FLRA at 846.
Here, the prefatory language of Provision 5 suggests that the
provision is limited to the application of performance elements.
Notwithstanding the prefatory language, however, each of the
subsections, except (3) expressly prescribe substantive criteria with
which the content of performance elements must comply. While the
specified criteria do not dictate the precise content of the elements,
they do in fact restrict the range of action management may take in
establishing the content of performance elements. Although the preface
to the provision speaks in terms of application, that does not change
the fact that the actual criteria that follow apply to the content of
the performance elements. That is, in order for the performance
elements to comply with the specified criteria upon application, the
content of the performance elements necessarily would have to conform to
the standards and characteristics prescribed in the provision.
We conclude that because Provision 5, with the exception of
subsection 3, specifies substantive criteria that govern the content of
performance elements, those portions of the provision directly interfere
with management's rights to direct employees and assign work. See, for
example, OHA, Baltimore, 39 FLRA at 350-54; National Treasury Employees
Union v. FLRA, 767 F.2d 1315, 1317 (9th Cir. 1985) (NTEU v. FLRA) (the
court held that to specify any substantive criterion for the
establishment of critical elements, "however reasonable," is to invade
management's "exclusive statutory preserve."). Compare American
Federation of Government Employees, AFL-CIO, Department of Education
Council of AFGE Locals and Department of Education, 34 FLRA 1114, 1117
(1990) (a proposal requiring only that performance standards be
established in accordance with applicable law, including 5 U.S.C.
Section 4302(b), is negotiable).
Turning to subsection 3, the Authority has previously found that
proposals that only require consistency between position descriptions
and performance elements, like subsection 3, do not restrict an agency's
choice of performance elements. For example, FNS, Midwest Region, 25
FLRA at 1071-74, affirmed as to other matters sub nom. National
Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988). The
Authority has found that under such proposals an agency can achieve the
required consistency by amending the position description and that the
right of an agency to direct employees and assign work through
establishing performance elements and standards remains unaffected,
subject to the procedural requirement that the position description
involved must accurately reflect the work assigned. Id. Such proposals
are negotiable procedures under section 7106(b)(2). Id. For the
reasons expressed in conjunction with Proposal 4 in FNS, Midwest Region,
we conclude that subsection 3 of Provision 5 is negotiable. /5/
The remainder of Provision 5 is nonnegotiable because it directly
interferes with management's rights to direct employees and assign work.
In reaching this conclusion, we note that, as with the first sentence
of Provision 3, the record does not contain sufficient information to
allow a determination of whether any of these subsections would
constitute an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute. Therefore, we do not address that issue.
Article 14, Performance Appraisal Section 3(B)
(B) When performance elements have been identified,
distinctions will be made between those elements which are
critical and those which are noncritical. Critical elements will
be applied with due regard for the following:
(1) They will be regular and recurring parts of the employee's
job.
(2) They will constitute primary responsibilities of employees.
(3) They will be those components which constitute a
significant amount of the employee's time.
(4) They will be directly related to mission accomplishment.
(5) They will be those components on which unacceptable
performance will have serious consequences to accomplishing the
work.
A. Positions of the Parties
The Agency argues that this provision is similar to Provision 5 in
that it specifies criteria by which the content of critical elements are
to be judged. The Agency asserts that this provision, like Provision 5,
interferes with management's rights to direct employees and assign work
and is nonnegotiable.
The Union states that this provision is intended to be directed at
the "application only of performance elements." Union petition at 5.
According to the Union, the subparts of Provision 6 prescribe general,
nonquantitative standards by which management's application of critical
elements and performance standards may subsequently be evaluated in a
grievance by an employee who believes that he or she has been adversely
effected. The Union states that the standards set forth do not purport
to determine what the specific content of a given critical element will
be but "come into play simply upon the application to a given employee."
Union reply brief at 30. The Union asserts that, under this provision,
an arbitrator reviewing a grievance would be asked only to judge whether
the application of the critical elements complied with the contractual
standard.
B. Analysis and Conclusions
As with Provision 5, we reject the Union's assertion that the
prefatory language of this provision serves to limit this provision to
the application of critical elements. Rather, we find that, as written,
each subsection prescribes a substantive criterion that governs the
content of critical elements. The Union's assertion that this provision
does not govern the establishment of critical elements because the
prescribed standards only "come into play" when the critical elements
have been applied is unpersuasive. As we noted in conjunction with
Provision 5, in order for the critical elements to comply with the
prescribed standards at the point of application, they must have been
brought into compliance with those standards when they were established.
In any event, what is critical is not the point at which the Agency
will be held accountable for complying with the prescribed standards but
whether the prescribed standards place conditions on the content of the
critical elements. See, for example, NTEU v. FLRA, 767 F.2d 1315,
1317-18 ("Each proposal conditions the content of standards consigned to
management discretion and, as a result, is beyond the duty to
bargain.").
Because each subsection of Provision 6 contains criteria that address
the content of critical elements and would restrict the range of Agency
action in establishing the content of critical elements, we conclude
that Provision 6, like Provision 5, directly interferes with
management's rights to direct employees and assign work. /6/ The Union
describes this provision as applying only in the context of an employee
who has been adversely affected by the application of critical elements.
However, the record that has been established in conjunction with this
provision, like that concerning Provision 3, does not contain sufficient
information to allow a determination as to whether any of these
subsections constitute an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. Based on the foregoing, we conclude
that Provision 6 is nonnegotiable.
Article 14, Performance Appraisal, Section 3(C)
(C) Performance standards will be applied with due regard for
the following:
(1) They will clearly state how well or how accurate (quality),
how soon or when (timeliness), how many or how much (quantity),
and in what manner they are to be performed.
(2) They will be objective and will identify levels that can be
observed, measured, or verified on fact.
(3) They will be clearly and simply stated so as to minimize
any error or misunderstanding in interpretation or application.
(4) They will ensure accurate evaluation of job performance to
the greatest extent practicable, and they will actually measure
what they purport to measure.
(5) They will be observable and measurable and reasonable and
realistic. They will identify levels that can be reasonably
attained and exceeded.
(6) Employees in like positions, which are those in like
position descriptions in the same work unit, will ordinarily have
like standards. The EMPLOYER will explain any differences and
justify them if the question is raised by the concerned employee
or the UNION.
(7) They will be written so as to clearly distinguish among the
various levels of performance.
(8) The EMPLOYER shall not create any pre-established
distribution of expected level of performance (such as the
requirement to rate on a bell curve) that interfere with appraisal
of actual performance against standards.
(Only the underlined portions are in dispute.)
A. Positions of the Parties
The Agency contends that the disputed language of this provision
addresses the content of performance standards rather than being limited
to application and is nonnegotiable. In this regard, the Agency claims
that the disputed language clearly prescribes limits on the content of
the performance standards and, therefore, interferes with management's
right to direct employees and assign work.
The Union argues that the Agency ignores the prefatory language of
the provision, which, according to the Union, limits the applicability
of this provision to the application of performance standards. The
Union contends that the prefatory language renders this provision almost
identical to proposals that the Authority previously found was
negotiable. Specifically, the Union cites American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 3 FLRA 784 (1980) (Proposal 5); American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation Chicago Region, Illinois, 7 FLRA 217
(1981) (Proposal 2); and American Federation of State, County and
Municipal Employees, AFL-CIO, Locals 2477 and 2910 and Library of
Congress, 17 FLRA 786 (1985) (Proposal 1). The Union states that the
factors listed in the disputed portion of the provision "only come into
effect in relation to their application." Union reply brief at 31. The
Union contends that because this provision is restricted to the
application of performance standards the disputed portion is within the
duty to bargain.
B. Analysis and Conclusions
Notwithstanding the reference to application that appears in the
prefatory portion of this provision and the Union's claim that the
disputed portions of this provision only come into effect in relation to
the application of performance standards, we conclude that the disputed
portions, as written, concern the content of performance standards.
Subsection 2 states, "(t)hey will be objective." Subsection 5 states,
"(t)hey will be observable and measurable and reasonable and realistic."
It is clear that the "they" to which those portions refer are the
performance standards themselves and that the reference to application
establishes the point at which "they" will be judged for compliance with
the criteria specified in the provision.
As we have stated in conjunction with Provisions 5 and 6, proposals
that specify substantive criteria with which the content of performance
standards and critical elements must conform directly interfere with
management's rights to direct employees and assign work. As we noted in
our discussion of Provision 6, what is critical is not the point at
which the Agency will be held accountable for complying with prescribed
criteria but whether the prescribed criteria place conditions on the
content of performance standards and critical elements. In our view
"objective," "observable," "measurable," "reasonable," and "realistic"
all constitute substantive criteria. Although these terms may be
general in nature, they establish characteristics that performance
standards must possess and, consequently, "(condition) the content of
standards consigned to management "discretion(.)" NTEU v. FLRA, 767 F.
2d at 1318.
The Authority has consistently held that general criteria governing
the determination of the content of a performance standard of critical
element directly interfere with management's rights to direct employees
and assign work. See, for example, OHA, Baltimore, 39 FLRA at 350-54;
Patent Office Professional Association and Patent and Trademark Office,
Department of Commerce, 25 FLRA 384, 386 (1987), aff'd as to other
matters mem. sub nom. Patent Office Professional Association v. FLRA,
No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).
As we have found that the disputed portions of this provision specify
substantive criteria governing the determination of the content of
performance standards, we conclude that the disputed portions directly
interfere with management's rights to direct employees and assign work.
As was the case with Provisions 5 and 6, the record established in
conjunction with this provision is insufficient to allow a determination
as to whether any of the disputed portions of the provision constitute
an appropriate arrangement within the meaning of section 7106(b)(3) of
the Statute. Based on the foregoing, we conclude that the disputed
portions of Provision 7 are not within the duty to bargain.
Article 48, Adverse Actions Section 1(D)(3)
(D)(3) Investigation in proposing of disciplinary actions shall
be handled in an expeditious manner after management has become
aware of or should have become aware of the alleged
misconduct/performance. (Only the underlined portion is in
dispute.)
A. Position of the Parties
The Agency agrees that it has the obligation to timely investigate
allegations of misconduct, of which it is aware and, if appropriate, to
timely propose disciplinary action. However, the Agency contends that
there are instances when management does not become aware of misconduct
until long after the event even though it might be construed that
managers should have been aware of the misconduct. The Agency argues
that, in such instances, the disputed language would prevent it from
taking appropriate disciplinary action. The Agency asserts that the
disputed portion of this provision is analogous to proposals that the
Authority previously has found are nonnegotiable because they directly
interfere with management's right to take disciplinary action under
section 7106(a)(2)(A) of the Statute. Specifically, the Agency cites
National Treasury Employees Union and Internal Revenue Service, 6 FLRA
522 (1981) (Proposal 1) (IRS) and American Federation of Government
Employees, Local 1812, AFL-CIO and United States Information Agency, 16
FLRA 308 (1984) (Provision 2) (USIA), in which the Authority found
nonnegotiable proposals that would prevent an agency from taking
disciplinary measures against an employee as long as the employee was
participating in a rehabilitation program.
The Union denies that the disputed language would prevent the Agency
from taking disciplinary action. The Union contends that the disputed
language is purely procedural in nature and would only establish a
standard of responsibility for the Agency in taking disciplinary
actions. That is, the Agency would be responsible for acting when it
can be said to have "constructive knowledge" of any employee misconduct
and cannot ignore circumstances occurring under its control. Union
reply brief at 37. The Union points out that the Agency does not
dispute that portion of the provision that addresses the Agency's
responsibility to act based on actual knowledge and argues that the only
difference between that aspect of the provision and the disputed portion
is the type of notice, i.e., actual or constructive, that would give
rise to the Agency's responsibility to act.
The Union contends that the disputed language merely provides
employees who are adversely affected by the exercise of management's
right to take disciplinary action with an additional procedural
safeguard, but does not prescribe any particular remedy in the event
that the contractual standard is violated. Rather, according to the
Union, the ultimate question for the arbitrator would be whether the
Agency's action promotes the efficiency of the service.
The Union maintains that the decisions cited by the Agency are
inapposite. The Union states that the proposals in those cases provided
a means for employees to avoid disciplinary action whereas the disputed
language in this provision does not provide such a means. In any event,
the Union contends that the disputed language does not excessively
interfere with the exercise of a management right.
B. Analysis and Conclusions
Proposals that immunize an employee from disciplinary action have
been held to directly interfere with management's right to take
disciplinary action. For example, International Organization of
Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal
Commission, 32 FLRA 269, 274-76 (1988); USIA; IRS. Proposals
establishing a time limit on management's ability to initiate
disciplinary or adverse actions against employees also have been held to
directly interfere with management's right under section 7106(a)(2)( A)
of the Statute to discipline employees because such proposals establish
a contractual "statute of limitations" that prevents management from
disciplining employees after the time limit has expired. For example,
American Federation of Government Employees, AFL-CIO, Local 3732 and
U.S. Department of Transportation, United States Merchant Marine
Academy, Kings Point, New York, 39 FLRA 187 (1991) (Provisions 3 and 8).
Further, proposals requiring an agency to commence disciplinary
investigations or actions normally within a specified time period have
been held nonnegotiable because they similarly establish a contractual
"statute of limitations." For example, id.
The disputed portion of this provision does not establish a "statute
of limitations" with respect to taking disciplinary action. Unlike a
"statute of limitations," it does not establish a time limit within
which the Agency must act or forfeit its right to act. Rather, all it
does is establish the starting point from which the Agency will be held
accountable for taking disciplinary action. When read in conjunction
with the requirement that disciplinary actions be handled "in an
expeditious manner," the disputed language could be viewed as one of the
components of a standard for judging the timeliness of the Agency's
action. However, the Agency does not assert that the imposition of the
standard of "expeditious" is inconsistent with its management right to
take disciplinary action. Nor do we have any basis for concluding that
it is. See National Federation of Federal Employees, Local 1853 and U.
S. Attorney's Office, Eastern District of New York, Brooklyn, New York,
29 FLRA 94 (1987) (Provision 1) (U.S. Attorney's Office) (provision that
disciplinary and adverse actions be initiated within a reasonable period
of time held to be negotiable). In any event, the disputed portion of
this provision does not establish any time constraints that would
prevent the Agency from taking disciplinary action.
Nor does the disputed language immunize employees from discipline.
While it may provide a basis for a defense to a disciplinary action on
the procedural grounds of untimeliness, it does not prohibit action from
being taken or otherwise shield an employee from having disciplinary
action instituted against him or her. Thus, it is distinguishable from
the proposals in those decisions cited by the Agency that would shield
employees from disciplinary action while they are participating in
rehabilitation programs.
Based on the foregoing, we reject the Agency's claim that the
disputed portion of Provision 8 interferes with its right to take
disciplinary action. We conclude that it is within the duty to bargain.
Article 51, Grievance Procedure Section (4)(1)(J)
Section 4
(1) This procedure shall be the exclusive procedure for
resolving all grievances, but does not cover: * * *
(J) The substance of critical elements and performance
standards except where applied (e.g., performance appraisal,
within-grade denial, unacceptable performance actions, etc.).
(Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that this provision would subject the content of
critical elements or performance standards to arbitral review if an
employee is adversely affected by their application. Citing, among
others, the Authority's decision in American Federation of Government
Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint
Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70
(1981) (Proposal 4) (St. Lawrence Seaway), aff'd sub nom. American
Federation of Government Employees, AFL-CIO, Local 1968 v. FLRA, 691 F.
2d 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926 (1983), the Agency
asserts performance standards and critical elements are nongrievable and
nonarbitrable and that this provision infringes on management's rights
under section 7106 of the Statute and is, consequently, nonnegotiable.
The Union argues that under the Authority's precedent, such as St.
Lawrence Seaway, language providing for employees adversely affected by
the application of critical elements and standards to grieve that
application "relative to general nonquantitative standards" is within
the duty to bargain. The Union contends that this provision
specifically provides that the employee's ability to grieve a matter
concerning performance standards and critical elements arises only when
someone has been adversely affected. The Union states that "(t)o the
extent that the arbitrator would be concerned with the contents of a
given critical element and standard, he would . . . evaluate them only
in relationship to applicable contractual standards, i.e., as provided
under Article 14." Union reply brief at 35.
B. Analysis and Conclusions
We note that while this case was pending the Authority announced that
it would no longer follow St. Lawrence Seaway to the extent that it
precluded the arbitrability of all grievances that concerned the
establishment and identification of performance standards and elements.
See Newark Air Force Station and American Federation of Government
Employees, Local 2221, 30 FLRA 616 (1987) (Newark Air Force Station).
For reasons expressed fully in Newark Air Force Station, the Authority
held that an arbitrator could examine performance standards and elements
upon their establishment to determine whether, among other things, they
comply with legal requirements.
The modification of St. Lawrence Seaway in Newark Air Force Station
had no effect on the consistent Authority position that grievances
challenging the application of established standards and elements to an
individual employee are grievable and arbitrable. Social Security
Administration and American Federation of Government Employees, AFL-CIO,
30 FLRA 1156, 1158-60 (1988) (SSA). Thus, prior to Newark Air Force
Station, although grievances concerning the establishment of standards
and elements were not grievable and arbitrable, grievances challenging
the application of established standards and elements were grievable and
arbitrable. The Authority emphasized that in grievances concerning
application, review by the arbitrator would not affect management's
determinations as to the content of the standards and elements. Rather,
an arbitrator would determine only whether the application of the
standards and elements to the employees complied with applicable law,
regulation, and the parties' collective bargaining agreement. For
example, SSA, 30 FLRA at 1159.
Provision 9 only recognizes that, once applied, the substance of
critical elements and standards is a proper subject for coverage by the
parties' negotiated grievance procedure. This is consistent with the
Authority's decisions in cases such as SSA. See also National Treasury
Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 566-68
(1988), enforced in part and reversed in part as to other matters sub
nom. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir.
1990). The provision itself is silent as to the standards by which
grievances concerning this subject matter will be reviewed. The Union
states that under the provision the arbitrator could evaluate the
contents of a given critical element and performance standard only in
relationship to the applicable "contractual standards" that are provided
in Article 14 of the parties' agreement. Union reply brief at 35.
Insofar as the "contractual standards" that are contained in Article
14 and that are at issue in this case are concerned, we note that we
have upheld the Agency head's disapproval of those provisions that
directly interfere with management's rights. Also, the Agency cites
nothing, and nothing is otherwise apparent to us, that would support a
conclusion that Provision 9 would authorize an arbitrator to enforce
external limitations on the Agency's exercise of its management's rights
beyond those that the Statute permits arbitrators to enforce. /7/ Thus,
there is no basis in the record of this case on which to conclude that
Provision 9, either by its language or intent, would authorize an
arbitrator to intrude impermissibly on management's rights.
Based on the foregoing, we conclude that Provision 9 is within the
duty to bargain.
The Agency shall rescind its disapproval of Provisions 1; 2; 3,
sentence 2; 4; 5, subsection 3; 8; and 9. /8/ The Union's petition
for review is dismissed as to Provisions 3, sentence 1; 5, all
subsections other than 3; 6; and 7.
(1) Provision 9 was not included in the interest arbitrator's award,
but had been proposed by the Union and agreed to by the Agency.
Subsequently, it was disapproved by the Agency head along with the other
provisions in dispute that had been included in the arbitrator's award.
(2) DPM 531, Subchapter 4-9c(1), on which the Agency relies,
provides:
"(1) Acceptable level of competence defined.
(a) For employees covered under the Department's Performance
Appraisal Plan (DPM 430). An employee is regarded as having
reached an acceptable level of competence when the employee's
demonstrated work performance in all critical elements meets or
exceeds standards established at the acceptable (3.0) level and
when the employee's composite rating is 3.0 or greater.
(3) Article 19, section 3, as set forth in the interest arbitrator's
award, provides:
Section 3
An employee is regarded as having reached an acceptable level
of competence when the employee's demonstrated work performance in
all critical elements meets or exceeds standards established at
the acceptable (3.0) level, and when the employee's composite
rating is 3.0 or greater.
Petition for review, Attachment 1 at 34.
(4) We grant the Union's request to the limited extent that we will
rule separately on those portions that: (1) as submitted, are able to
stand independently from the rest of the proposal; and (2) have been
specifically addressed by the parties or are substantially identical to
proposals addressed in existing Authority precedent.
(5) Using phrasing similar to that contained in subsection 3,
subsection 4 requires that performance elements be consistent with the
grade level of the position. However, grade level is fundamentally
different from the contents of a position description and, consequently,
changing a grade level is not merely procedural in nature as is amending
a position description. "Grade level" can entail matters such as
position classification. See, for example, Social Security
Administration and American Federation of Government Employees, Local
1923, AFL-CIO, 31 FLRA 933 (1988). It can also involve management's
right to determine its organization under section 7106(a)(1). See, for
example, American Federation of Government Employees, Local 32, AFL-CIO
and Office of Personnel Management, 26 FLRA 452, 455-57 (1987). Also,
there are regulatory requirements that govern an employee's eligibility
for promotion to a different grade level and that could put significant
limitations on an agency's ability to change an employee's grade level.
See, for example, 5 C.F.R. Sections 300.601-300.605 (time-in-grade
restrictions); 5 C.F.R. Section 335.104 (eligibility for career ladder
promotion).
(6) In reaching this conclusion, we note that the first sentence of
Provision 6 appears to serve only as a preface for the remainder of the
provision. In this regard, the Union has given no indication that this
sentence is intended to stand independently of the remainder of the
provision and it does not appear to us that it does. Consequently, we
treat it as an integral part of the provision as a whole rather than a
separate and independent component.
(7) Recently the Supreme Court issued a decision that held that the
Statute does not empower unions to enforce all external limitations on
management rights, but only limitations contained in "applicable laws."
Department of the Treasury, Internal Revenue Service v. FLRA, 110 S.
Ct. 1623, 1628 (1990). In response to the Court's decision, the
Authority issued National Treasury Employees Union and U.S. Department
of the Treasury, Internal Revenue Service, 42 FLRA No. 31 (1991) (NTEU
and IRS). In NTEU and IRS, we held that the term "applicable laws"
includes rules, regulations and agency pronouncements having the force
and effect of law. 42 FLRA No. 31, slip op. at 12.
(8) In finding that these provisions are within the duty to bargain,
we make no judgment as to their merits.
42 FLRA 938
42 FLRA NO. 68
Case No. 0-NG-1629
American Federation of Government Employees, AFL-CIO, Local 53
(Union)
U.S. Department of the Navy, Navy Material Transportation Office,
Norfolk, Virginia
(Agency)
October 21, 1991
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority based upon a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns the
negotiability of five provisions of a contract that were agreed to
locally by the Union and the Naval Material Transportation Office,
Norfolk, Virginia (the Activity) and were disapproved by the Agency
under section 7114(c) of the Statute. /1/
During the pendency of this appeal, the United States Supreme Court
issued its decision in Department of the Treasury, Internal Revenue
Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA). In the decision,
the Court addressed, among other things, the relationship among the
management rights enumerated in section 7106(a) of the Statute, other
sections of the Statute, and other provisions of law outside of the
Statute. With respect to two provisions in dispute -- Provisions 4 and
5 -- the parties raise questions concerning the interrelationship of
certain statutory and regulatory provisions, including those concerning
the exercise of management's rights. In light of the Court's decision
and the issues in dispute, the Authority, by order dated June 20, 1990,
directed the parties to file supplemental briefs addressing the effect,
if any, of the Court's decision on the issues raised by Provisions 4 and
5. The Agency and the Union filed supplemental briefs.
Provision 2 would require that employees called back to work outside
of their regularly scheduled hours of duty be excused upon completion of
the job that they were called in to perform. We find that Provision 2
is nonnegotiable because it excessively interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute.
Provision 3 would require management to make every effort to keep
employees who have no annual leave on duty to perform work during
periods of temporary shutdown or reduced operations. We find that
Provision 3 constitutes a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute.
Provision 4 would require management to keep details to the shortest
practicable time limits. We find that: (1) to the extent that
Provision 4 concerns regulations having the force and effect of law, the
provision does not directly interfere with management's right to assign
employees under section 7106(a)(2)(A) of the Statute; and (2) to the
extent that Provision 4 requires compliance with regulations not having
the force and effect of law, the provision is negotiable as an
appropriate arrangement.
Provision 5 would require management to select the minimum discipline
which can reasonably be expected to achieve the proper disciplinary
objective. We find that Provision 5 is nonnegotiable because it
excessively interferes with management's right to discipline employees
under section 7106(a)(2)(A) of the Statute.
Finally, Provision 6 would preclude management from bringing more
than one charge against an employee for a single instance of misconduct
unless "unrelated" offenses were involved. We find that Provision 6
does not interfere with management's right to discipline employees under
section 7106(a)(2)(A) of the Statute and that it is negotiable.
Article 10, Section 8
Section 8. Employees called in to work outside of their regular
shift hours shall be compensated for a minimum of two hours in
accordance with the provisions of this Article regardless of
whether the employee is required to work the entire two hours. In
addition thereto, any employee called in to work outside his
regular shift hours shall be promptly excused upon completion of
the job which he was called in to perform. It is understood that
any employee that is called in before his scheduled starting time,
and works straight on to his scheduled quitting time, is entitled
only to that amount which would be payable at the regular overtime
rate.
(Only the underlined sentence is in dispute.)
A. Positions of the Parties
The Agency contends that the disputed portion of Provision 2 is
nonnegotiable because it directly interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute. According to
the Agency, Provision 2 is like Provision 3 in American Federation of
Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine
Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany,
Georgia, 29 FLRA 1587 (1987) (Marine Corps Logistics Base), which the
Authority held to be nonnegotiable under section 7106(a)(2)(B) of the
Statute.
The Agency also states that although the Union contends that any
provision found to be nonnegotiable should be considered an appropriate
arrangement, the Union "has not addressed any of the factors as required
by the Authority in National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army
National Guard)." Statement at 7.
The Union contends that the disputed portion of Provision 2 means
that "employees who perform unscheduled work will be allowed to leave
work after the job they were called in to perform has been completed."
Response at 4. According to the Union, under the provision "the
definition of 'job' is left to management." Id. The Union states that
the effect of Provision 2 is "qualitatively different" from Provision 3
in Marine Corps Logistics Base because: (1) management's determination
of what constitutes the "job" the employee was recalled to perform
allows it to assign other work to the employee before and after
completion of the 2-hour call back period; and (2) the provision in
Marine Corps Logistics Base would have prevented management from
determining that the "task" an employee had been called in to perform
had not been completed. Id. at 4 and 5.
The Union also contends that the disputed portion of Provision 2 is
an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
We conclude that Provision 2 is nonnegotiable because it excessively
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute.
Provision 2 would require that employees called back to work outside
of their regularly scheduled hours of duty be excused upon completion of
the job that they were called in to perform. Even assuming as the Union
states, that Provision 2 would allow management to define the content of
the "job" the employee is recalled to perform, the provision interferes
with management's right to assign work. If management calls an employee
in to perform a particular job, it is axiomatic that management must
define the job at the time the employee is called. The provision does
not provide for an employee to be excused after the completion of "any"
job. Rather, the provision requires that an employee be excused after
completing "the job which he was called in to perform." (Emphasis
added.) The wording of the provision indicates that after employees
finish the tasks they were called back to perform, they would be allowed
to leave and management would be precluded from assigning them any work
other than the tasks they were called in to perform. The provision is
not worded so as to permit management to assign additional duties to an
employee whom it has recalled to work.
Interpreted in this manner, the disputed portion of Provision 2 has
the same effect as the portion of Provision 3 that was found
nonnegotiable in Marine Corps Logistics Base. That provision limited
the agency's right to assign work on "call back" to those duties that
were related to the task for which the employee was called back to work.
The Authority held that the provision directly interfered with
management's right to assign work under section 7106(a)(2)(B) of the
Statute. Consistent with Marine Corps Logistics Base, we find that the
disputed portion of Provision 2 directly interferes with management's
right to assign work under section 7106(a)(2)(B) because it precludes
management from assigning additional duties to employees who have been
recalled to work.
We next address the Union's contention that the provision constitutes
a negotiable appropriate arrangement. In Marine Corps Logistics Base,
the Authority found that while Provision 3, which limited the agency's
right to assign work in circumstances where the agency called employees
who were off duty back to perform work, constituted an arrangement, the
provision was not appropriate because it excessively interfered with
management's right to assign work. The Authority found that the
provision would absolutely prohibit the agency from requiring employees
to perform additional tasks -- other than the specific one(s) for which
they had been called back -- without regard to the agency's need. The
Authority found that the burden imposed by the provision on the agency's
right to assign work was disproportionate to the benefit which the
provision would afford employees by requiring their release upon
completion of the task for which they were called back.
Balancing the burden on the agency's ability to exercise its right to
assign work and to perform its mission effectively against the extent to
which employees would be benefited by the provision, the Authority found
that the provision excessively interfered with management's right to
assign work. Therefore, the Authority concluded that the provision did
not constitute a negotiable appropriate arrangement under section
7106(b)(3) of the Statute.
In this case, the Union offers nothing to support a conclusion that a
disposition different than that reached in Marine Corps Logistics Base
is warranted. It is well established that the parties bear the burden
of creating a record upon which the Authority can make a decision. See
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d
886, 891 (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.
See, 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). Consequently, we find
no basis in the record for concluding that the provision is negotiable
as an appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we conclude that the disputed portion of Provision 2 is
nonnegotiable.
Article 11, Section 3
Section 3. During any period of shutdown of activities or reduced
operations for vacation purposes, every effort will be made to
provide work for employees not having annual leave to their
credit. If work cannot be provided for such employees, the
Activity agrees to advance annual leave or grant leave without pay
to the legal limit to such eligible employees to cover the period
of shutdown.
(Only the underlined sentence is in dispute.)
A. Positions of the Parties
Relying on Federal Employees Metal Trades Council of Charleston,
AFL-CIO and Charleston Naval Shipyard, Charleston, South Carolina, 33
FLRA 618 (1988) (Charleston Naval Shipyard), the Agency claims that the
disputed portion of Provision 3 is nonnegotiable because it violates
management's rights to assign employees, lay off employees, and assign
work under section 7106(a)(2)(A) and (B) of the Statute. The Agency
contends that the disputed portion of the provision would require it to
keep employees who have no annual leave on duty during periods of
temporary shutdown or reduced operations, regardless of management's
decision as to whether work should be performed and regardless of
whether there is a need for the employees' services. The Agency also
asserts that the provision would require management to assign work to
employees who may not possess the qualifications needed to perform the
work.
The Union contends that Provision 3 "merely requires the Agency to
attempt to continue to utilize, for work identified by the Agency, those
employees who would otherwise be unpaid due to lack of annual leave."
Response at 6. The Union argues that Provision 3 does not preclude
management from determining "that there is no alternative work it wants
performed during a shutdown or reduction of activities" or "that it does
not need the services of employees." Id.
The Union contends that the Agency misinterprets the provision "as
not allowing the Agency to determine which employees possess the
qualifications needed to perform certain work the Agency determines
necessary." Id. According to the Union, because Provision 3 does not
contain specific terms regarding qualifications, the provision "leaves
unaffected . . . management('s) right to determine which employees are
qualified to perform work." Id.
The Union also contends that the disputed portion of Provision 3 is
an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
For the following reasons, we find that Provision 3 directly
interferes with management's rights to assign employees under section
7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). However,
we further find that the provision constitutes a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute. In reaching these
results, we find it unnecessary to determine whether the provision also
directly interferes with management's right to lay off employees. Even
if it does, the provision nevertheless would constitute an appropriate
arrangement under section 7106(b)(3) of the Statute. See Tidewater
Virginia Federal Employees Metal Trades Council and U.S. Department of
the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 42 FLRA No. 57,
slip op. at 9 (1991) (Norfolk Naval Shipyard).
to Assign Work under Section 7106(a)(2)(B) of the
Statute
The disputed portion of Provision 3 requires that, during periods of
a shutdown or reduced operations, management will make "every effort" to
provide work to employees who have no annual leave. The Union explains
that Provision 3 merely requires the Agency "to attempt" to use
employees who have no annual leave to perform work that the Agency
determines could be done. Response at 6. We find that Provision 3, as
worded and explained by the Union, directly interferes with management's
rights to assign employees under section 7106(a)(2)(A) and to assign
work under section 7106(a)(2)(B) of the Statute.
Although Provision 3 would only require management to make "every
effort" to provide work for employees who have no annual leave, the
addition of such qualifying language does not remove the substantive
limitation placed by the provision on the exercise of management's
rights to assign employees and assign work. See, for example, National
Treasury Employees Union and U.S. Department of the Treasury, Office of
Chief Counsel, Internal Revenue Service, 39 FLRA 27, 38 (1991), decision
on reconsideration, 40 FLRA 849 (1991) (Internal Revenue Service),
petition for review filed sub nom. U.S. Department of the Treasury,
Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139
(D.C. Cir. Mar. 25, 1991) (provision requiring agency to make "a
reasonable effort" to find work for an employee held to directly
interfere with management's right under section 7106(a) of the Statute).
Compare 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) (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).
Provision 3 obligates management to make "every effort" to provide
work for employees who have no annual leave. The Union's explanation,
that the proposal merely requires the Agency to attempt to use employees
who have no annual leave to perform work that the Agency determines
could be done, is consistent with the wording of the proposal and we
adopt that interpretation for purposes of this decision. Nevertheless,
interpreted in this manner, the proposal directly interferes with
management's right to assign work. Under the provision, where
management determines, in good faith, that there is work that could be
done, the provision would obligate management to assign that work and,
therefore, would directly interfere with management's right to assign
work under section 7106(a)(2)(B). See, for example, Federal Employees
Metal Trades Council and U.S. Department of the Navy, Charleston Naval
Shipyard, Charleston, South Carolina, 36 FLRA 401, 405 (1990) (proposal
requiring management in specific circumstances to assign available work
to an employee who chose to work during the Christmas curtailment period
directly interfered with management's right to assign work under section
7106(a)(2)(B) of the Statute).
We further find that Provision 3 would not require the Agency, should
management determine that there is work that could be performed, to
assign the work to employees without leave if those employees are not
qualified to perform that work. As worded, the provision contains no
such requirement. Further, the Union explains that Provision 3 "leaves
unaffected . . . management('s) right to determine which employees are
qualified to perform work." Response at 6. Because the Agency has
provided no reason, other than a bare claim, to contradict the Union's
explanation of the provision, we adopt the Union's interpretation for
purposes of this decision. Consequently, we conclude that Provision 3
would not require the Agency to assign work to unit employees without
annual leave who are not qualified to perform the work. See Norfolk
Naval Shipyard, 42 FLRA No. 57, slip op. at 11.
to Assign Employees under Section 7106(a)(2)(A) of the
Statute
The Agency claims that Provision 3 conflicts with management's right
to assign employees. The right to assign employees under section 7106(
a)(2)(A) encompasses the right to make assignments of employees to
positions in the Agency. See American Federation of Government
Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force,
Warner Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990).
Provision 3 would require management to make every effort to provide
work for employees who do not have annual leave. The Agency claims that
the provision would require management to assign employees to positions.
The wording of the provision is consistent with an interpretation that
management would be required to make every effort to provide work to
employees by reassigning or detailing them to positions where there is
work that could be done. Moreover, the Union does not claim that the
proposal would not have that effect.
Consequently, in the absence of an assertion or any evidence
demonstrating that Provision 3 does not contemplate the assignment of
employees without leave to positions where there is work that could be
performed, we will adopt that interpretation for purposes of this
decision. Because Provision 3 would obligate management to make every
effort to provide work to employees by detailing them to positions where
there is work that could be performed, we find that the provision
directly interferes with management's right to assign employees under
section 7106(a)(2)(A) of the Statute. See Norfolk Naval Shipyard, 42
FLRA No. 57, slip op. at 10.
under Section 7106(b)(3) of the Statute
Because Provision 3 directly interferes with management's rights to
assign employees and to assign work, it is negotiable only if it is an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. To determine whether Provision 3 constitutes an appropriate
arrangement, we must decide whether the provision 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. Kansas Army
National Guard.
The Union asserts that Provision 3 constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute. The Union asserts
that Provision 3 "merely requires the Agency to attempt to utilize . .
. employees who would otherwise be unpaid due to lack of annual leave."
Response at 6. We conclude that Provision 3 is intended by the Union as
an arrangement for employees adversely affected by the Agency's exercise
of its right to reduce or shutdown its operations.
Having concluded that Provision 3 is an arrangement, we now consider
whether it is appropriate within the meaning of section 7106(b)(3) of
the Statute. To determine whether a proposal is an appropriate
arrangement because it does not excessively interfere with the exercise
of a management right, we weigh "the competing practical needs of
employees and managers" to determine whether the benefit to employees
afforded by the proposal outweighs the burden placed by the proposal on
the exercise of the management right or rights involved. Kansas Army
National Guard, 21 FLRA at 31-32. The question, therefore, is whether
the burden imposed on the exercise of management's rights by Provision 3
is excessive when weighed against the benefit the provision affords
employees.
We find that the burden placed on the Agency by Provision 3 is not
significant. While Provision 3 would obligate management to provide
work for employees if it determines that there is work that could be
performed, the judgment as to the availability of work that could be
performed and the qualifications of employees needed to perform the work
is reserved to management. Similarly, although the provision would
require the Agency to make "every effort" to provide work for employees
not having annual leave during reduced operations or a shutdown, the
provision does not impose an absolute requirement that employees without
leave be assigned work. Thus, the burden imposed by Provision 3 on
management's rights is not significant.
On the other hand, by requiring that the Agency make every effort to
provide work for employees lacking annual leave during reduced
operations or a shutdown, Provision 3 affords a benefit to employees.
As noted above, the Union asserts that employees would be adversely
affected if the Agency decides to require employees to take leave during
a reduction or shutdown of its operations. If the Agency decides to
reduce or shut down its operations, employees who lack annual leave
would be adversely affected because they would not receive compensation.
The provision ensures employees that management will at least make
efforts to provide them with work before requiring them to take leave
without pay and, thus, preserves the possibility that some employee or
employees would not need to take leave without pay.
We conclude that, on balance, the benefit to employees outweighs the
burden placed on the Agency. Consequently, we find that Provision 3
does not excessively interfere with management's rights and is a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute. See Norfolk Naval Shipyard, 42 FLRA No. 57, slip op. at 10-11.
See also Internal Revenue Service, 39 FLRA at 40 (provision requiring
an agency to make "a reasonable effort" to find work for an employee
found to constitute a negotiable appropriate arrangement under section
7106(b)(3) of the Statute). Compare American Federation of Government
Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 23 FLRA 193,
196 (1986) (Authority interpreted a proposal requiring an agency to
"make every conceivable attempt to assign employees to available work"
if they declined to take annual leave or leave without pay during a
partial closing as totally eliminating the agency's discretion to
exercise its rights under section 7106(a)(2) and concluded that the
proposal excessively interfered with those rights).
Accordingly, we conclude that Provision 3 directly interferes with
management's right to assign employees under section 7106(a)(2)(A) and
to assign work under section 7106(a)(2)(B), but constitutes a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute.
Article 11, Section 1
Section 1. The Activity agrees that details of employees will be
kept within the shortest practicable time limits as required by
this Agreement, applicable regulations and the latest Office of
Personnel Management Instructions.
A. Positions of the Parties
1. Agency
The Agency claims that Provision 4 is nonnegotiable because it
interferes with management's right to assign employees under section
7106(a)(2)(A) of the Statute. The Agency argues that the provision
would interfere with management's right to decide when a detail "should
begin and end, that is, its duration(.)" Statement at 3.
In its supplemental brief, the Agency asserts that the Supreme
Court's decision in IRS v. FLRA "should have no effect" on Provision 4.
Agency's Supplemental Brief (Agency Brief) at 2. The Agency contends
that in IRS v. FLRA, the Court held that "some, but not all, rules and
regulations may be considered 'laws' and, consequently, may be enforced
in grievance and arbitration procedures." Id. at 3. The Agency states
that Provision 4 does not raise this issue.
The Agency contends that Provision 4 "would incorporate into a
collective bargaining agreement requirements contained in '(a)
regulation(),'" that is, Federal Personnel Manual (FPM) Chapter 300-20,
Subchapter 8-5. Id. The Agency contends that the provision contains
"limitations on the . . . exercise of management's rights which are . .
. contained in th(is) regulation()." Id. at 4. Thus, according to the
Agency, "the issue here is not arbitral enforcement of external
limitations on the exercise of . . . management('s) rights as was the
case in (IRS v. FLRA), but rather whether such limitations may be made
contractual(ly)." Id. (emphasis in original). Citing National
Federation of Federal Employee, Local 1167 and Department of the Air
Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
Force Base, Florida, 6 FLRA 574 (1981), (Homestead Air Force Base)
affirmed sub nom. National Federation of Federal Employees, Local 1167
v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), the Agency states that the
Authority has held that regulatory provisions which limit the exercise
of a management right may not be incorporated into parties' agreements.
In the Agency's view, the Authority's holding in this regard "should not
be affected" by the Court's decision in IRS v. FLRA because the Court's
decision pertains to whether external rules and regulations limiting
management's rights may be enforced as "laws" in arbitration proceedings
and not whether the existence of such regulations renders proposals that
otherwise directly interfere with management's rights negotiable.
Agency Brief at 4-5.
The Agency further asserts that even if the Authority should find
that the Court's decision affects Provision 4, the regulation at issue
is not a "law within the meaning of section 7106(a) of the Statute." Id.
at 7. Citing Homestead Air Force Base, 6 FLRA 574 and National Treasury
Employees Union and Department of the Treasury, Financial Management
Service, 29 FLRA 422 (1987) (Provision 4) (Financial Management
Service), the Agency contends that the Authority has taken a "narrow
view of which rules and regulations may be considered laws pursuant to
section 7106(a)." Agency Brief at 8. The Agency contends that in
"Homestead Air Force Base and Financial Management Service, . . . the
Authority did not find either Office of Management and Budget Circular
A-76 . . . or Office of Personnel Management (OPM) Regulations
concerning performance appraisal(s) . . . to be laws for the purposes of
section 7106(a)." Id. (emphasis in original). The Agency states that
the Authority "was correct to take a restrictive view of what may be
considered a law for the purposes of section 7106(a)." Id. In the
Agency's view, "Congress intended for the word law in section 7106(a) to
have a limited meaning." Id. at 9. The Agency further states that "(i)t
is unnecessary to establish the outer limits of Congressional intent in
this case . . . because it should be clear that . . . the (regulation)
in issue here could (not) have been within the contemplation of the
drafters of section 7106(a)." Id.
The Agency further contends that the FPM is issued by OPM for the
information of other Federal agencies. The Agency states that the FPM
is not issued pursuant to OPM's statutory regulatory authority or
published in the Federal Register. According to the Agency, "(r)
egulations issued pursuant to OPM's statutory regulatory (a)uthority are
published in the Federal Register and codified at title 5 of the Code of
Federal Regulations." Id.
2. Union
The Union claims that Provision 4 only requires management to "follow
applicable authorities in conducting details of employees without
limiting the Agency's ability to decide when or for how long to
detail(.)" Response at 7. The Union contends that the provision
requires management to comply with "regulations and instructions as the
Agency would otherwise be required to follow, absent a contractual
obligation." Id. at 9.
The Union also contends that the disputed portion of Provision 4 is
an appropriate arrangement under section 7106(b)(3) of the Statute.
In its supplemental brief, the Union asserts that Provision 4 "would
require keeping details' duration to 'the shortest practical time limits
as required by this Agreement, applicable regulations, and the latest
(OPM) Instructions." Union's Supplemental Brief (Union's Brief) at 1
(emphasis in original). The Union states that the provision "contains
no other contractual specifications relating to details and none in
other parts of the executed agreement were disapproved." Id. The Union
contends that under these circumstances, "the record supports its
argument that Provision 4 requires only such specific actions as are
extrinsically required of the Agency, and is, therefore, negotiable
under Authority precedent." Id.
According to the Union, "(a) first distinction between Provision 4
and the proposal involved in (IRS v. FLRA) is that the instant dispute
does not involve a specific external authority," and "(s)econdly, the
external authorities to which the (p)rovision refers are outside (the
Statute)." Id. (emphasis in original). Thus, according to the Union,
"the Court's analysis distinguishing 'applicable laws' from 'any law,
rule, or regulation' . . . supports a conclusion of negotiability" with
respect to Provision 4. Id. The Union states that the "'applicable
laws' limiting the (Agency's) Section 7106(a) rights as to details are
not contained in (the Statute), so there is no basis or need to consider
whether one section of (the Statute) 'trumps,' or is superfluous in
relation to another section." Id.
B. Analysis and Conclusions
For the reasons discussed below, we find that Provision 4 is
negotiable.
Provision 4 would require management to restrict details to "the
shortest practicable time limits" as required by the parties' contract,
applicable regulations and the latest OPM Instructions. The Union
explains that Provision 4 requires management to follow the latest OPM
instructions and other applicable regulations when detailing employees
to positions. The Union further explains that the provision requires
"only such specific actions as are extrinsically required of the
Agency." Union Brief at 1. In our view, the Union's explanation is
consistent with the wording of the provision and we find, therefore,
that the effect of the proposal is to require management to limit the
length of details as prescribed by the latest applicable regulations and
OPM instructions. The provision would not require management to comply
with regulations or instructions that are eliminated during the term of
the agreement.
Proposals that limit the duration of a detail or temporary assignment
directly interfere with management's right to assign employees under
section 7106(a)(2)(A) of the Statute. See International Association of
Machinists and Aerospace Workers Union and Department of the Treasury,
Bureau of Engraving and Printing, 33 FLRA 711, 732-33 (1988); 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, 510-14 (1987). Prior to the Court's decision in IRS v.
FLRA, proposals requiring management to exercise its rights under
section 7106(a)(2) of the Statute in accordance with applicable
regulations were found to be within the duty to bargain because such
proposals only contractually recognized external limitations on
management's rights. See, for example, American Federation of
Government Employees, AFL-CIO, Local 2052 and Department of Justice,
Bureau of Prisons, Federal Correctional Institution, Petersburg,
Virginia, 31 FLRA 529, 533 (1988) (Department of Justice, Bureau of
Prisons), and the cases cited therein, rev'd as to other matters sub
nom. Department of Justice, Bureau of Prisons, Federal Correctional
Institution, Petersburg, Virginia v. FLRA, No. 88-3997 (4th Cir. July
5, 1988).
Recently, however, in National Treasury Employees Union and U.S.
Department of the Treasury, Internal Revenue Service, 42 FLRA No. 31
(1991) (IRS), the Authority reexamined its position on external
limitations on management rights in light of the holding of the U.S.
Supreme Court in IRS v. FLRA. With respect to management's rights under
the Statute, the Court held that the Statute "does not empower unions to
enforce all 'external limitations' on management rights, but only
limitations contained in 'applicable laws.'" IRS v. FLRA, 110 S. Ct. at
1628. In IRS, we held that, insofar as management rights under section
7106(a)(2) are concerned, proposals that require compliance with
applicable laws do not interfere with the exercise of such rights.
Compare American Federation of Government Employees, AFL-CIO, Department
of Education Council of AFGE Locals and U.S. Department of Education, 38
FLRA 1068, 1075-76 (1990) (Department of Education), request for
reconsideration denied, 39 FLRA 1241 (1991) petition for review filed
sub nom. United States Department of Education v. FLRA, No. 91-1219
(D.C. Cir. May 10, 1991) (proposals requiring management to exercise its
rights under section 7106(a)(1) of the Statute in accordance with
applicable laws directly interfere with the exercise of such rights).
We also held, for reasons discussed fully in IRS, that the term
"applicable laws" in section 7106(a)(2) includes, among other things,
provisions in the United States Code as well as rules and regulations
having "the force and effect of law." IRS, 42 FLRA No. 31, slip op. at
14-15. As relevant here, we held that agency regulations must have
certain substantive and procedural characteristics in order to
constitute regulations having the force and effect of law.
Specifically, agency regulations have the force and effect of law, so as
to constitute "applicable laws," if they: (1) are issued pursuant to an
explicit or implicit delegation of legislative authority by Congress;
(2) affect individual rights and obligations; and (3) are promulgated
in accordance with applicable procedural requirements. Id., slip op. at
16-17.
Provision 4 would require management to contractually recognize
external limitations on its exercise of a management right. Because the
provision concerns contractual recognition of external limitations on
management's right, we find that the Court's decision in IRS v. FLRA and
our decision in IRS are applicable.
The Union contends that Provision 4 would restrict details to the
"shortest practicable time limits" as required by the parties' contract,
applicable regulations and the latest OPM instructions. According to
the Union, "Provision 4 . . . does not involve a specific external
authority." Union's Brief at 1. The Agency, on the other hand, contends
that the provision concerns requirements contained in FPM Chapter
300-20, subchapter 8-5. The wording of the provision refers to
"Agreement, applicable regulations" and "(OPM) Instructions." Because
the wording of the provision does not specifically identify the OPM
instructions involved and because the Union has not provided information
as to which OPM instructions are intended, we are unable to determine
the extent to which the provision limits the Agency's exercise of its
management's rights under section 7106(a)(2). That is, we are unable to
determine whether, consistent with IRS, Provision 4 requires compliance
only with regulations having the force and effect of law.
However, based on IRS, to the extent that the term "OPM instructions"
refers to properly promulgated agency regulations that are issued
pursuant to statutory authority and affect individual rights and
obligations, such instructions have the "force and effect of law" and,
thus, constitute applicable laws under section 7106(a)(2) of the
Statute. Such instructions constitute enforceable external limitations
on the Agency's exercise of its rights under section 7106(a)(2).
Therefore, to the extent that it concerns such instructions, Provision 4
is negotiable because it would only require the Agency to comply with
enforceable external limitations.
Further, to the extent that Provision 4 requires details in
compliance with Government-wide regulations not having the force and
effect of law, we find, for the reasons discussed below, that it is a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute. Provision 4 has the same effect as Provision 6 in National
Association of Government Employees, SEIU, AFL-CIO and Veterans
Administration, Veterans Administration Medical Center, Department of
Memorial Affairs, 40 FLRA 657 (1991) (Veterans Administration). In
Veterans Administration, we were presented with the question of whether
Provision 6, which required management to exercise its right to assign
work under section 7106(a)(2)(B) of the Statute in accordance with
applicable Government-wide regulations, was negotiable as an appropriate
arrangement under section 7106(b)(3) of the Statute.
Noting Department of Education, we concluded in Veterans
Administration that proposals requiring "management to exercise its
rights under section 7106(a)(2) in accordance with Government-wide
regulations are negotiable as appropriate arrangements under section
7106(b)(3) of the Statute even if Government-wide regulations do not
constitute 'applicable law' within the meaning of section 7106(a)(2) of
the Statute." 40 FLRA at 681. Relying on the reasoning in Department of
Education, we found that the provision in Veterans Administration, which
concerned applicable Government-wide regulations pertaining to sick
leave, constituted a negotiable appropriate arrangement under section
7106(b)(3) of the Statute even if the regulations did not constitute
"applicable law" under 7106(a)(2) of the Statute.
We find that the reasoning of Department of Education and Veterans
Administration is applicable to Provision 4 because the issues involved
are similar to those presented in those cases. To ignore those cases in
our consideration of Provision 4 would lead to conflicting and anomalous
results on similar provisions. See, for example, American Federation of
Government Employees, AFL-CIO, Local 3457 and U.S. Department of the
Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA
1276, 1278 (1991), petition for review filed sub nom. U.S. Department of
the Interior, Minerals Management Service, New Orleans, Louisiana, No.
91-1218 (D.C. Cir. May 10, 1991).
We find that Provision 4 is intended as an arrangement for employees
who are adversely affected by management's decision to assign employees.
The provision provides a mechanism to ensure Agency compliance with
applicable regulations when assigning employees, that is, detailing
employees to positions. The provision mitigates the adverse effects on
employees of being deprived of the protections afforded by applicable
regulations.
We also find that the provision is an appropriate arrangement because
it does not excessively interfere with management's right to assign
employees under section 7106(a)(2)(A) of the Statute. Provision 4 would
require the Agency to comply with the latest applicable regulations and
OPM instructions limiting the duration of a detail. The provision would
benefit employees by providing them with some assurance that the
duration of an assignment to a detail would be consistent with
regulations. Employees would have assurance that they would not be
deprived of rights and protections afforded to them by Government-wide
regulations concerning details. On the other hand, the provision, as
mentioned, would merely require the Agency to comply with applicable
regulations when assigning employees to details.
"(T)he existence of applicable laws, rules and regulations already
serves to limit agency action and indicates that an agency's interest in
being able to act without regard to those provisions and without
challenge to the legality of its actions, such as in arbitration
procedures, is negligible." Department of Education, 38 FLRA at 1078.
We find, therefore, that the provision does not excessively interfere
with management's right to assign employees. See Veterans
Administration, 40 FLRA at 681-682; Department of Education, 38 FLRA at
1078. Accordingly, we conclude that Provision 4, to the extent that it
concerns Government-wide regulations not having the force and effect of
law, constitutes a negotiable appropriate arrangement under section
7106(b)(3) of the Statute.
Based on the above, we find that Provision 4 is negotiable.
Article 23, Section 1
Section 1. The Activity agrees that it is the policy of the Navy
to impose the minimum penalty that can reasonably be expected to
correct the offending employees and maintain discipline and morale
among other employees. Any such disciplinary action must be for
just cause and shall be subject to the grievance and arbitration
procedures as provided in this Agreement. Such disciplinary
action is defined as letters of reprimand or more serious penalty.
(Only the underlined sentence is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that the disputed portion of Provision 5 is
outside the duty to bargain because it directly interferes with
management's right to discipline under section 7106(a)(2)(A) of the
Statute. The Agency argues that the disputed portion of the provision
would interfere with management's discretion to determine what
discipline should be imposed for a particular offense by restricting its
action to the minimum penalty.
The Agency claims that the disputed portion of the provision is "not
DON (Department of the Navy) policy, but is described as 'guidance' in a
DON instruction." Agency's Statement at 5. The Agency asserts that this
"instruction is being cancelled in a few weeks and being replaced with
an instruction that does not contain any similar language." Id. The
Agency further argues that even if management established a limitation
on management's right to discipline by issuing the instruction, that
fact would not make the matter negotiable under the Statute.
In its supplemental brief, the Agency's position as to the
applicability of the Court's decision in IRS v. FLRA is the same as
discussed in Section IV.A.1, except that the Agency contends that
Provision 5 concerns a regulation of the Department of the Navy rather
than the FPM. Additionally, the Agency asserts that even if IRS v.
FLRA is applicable to this case, the Navy regulation involved, Office of
Civilian Instruction (OCPM) 12752.1, does not constitute law within the
meaning of section 7106(a) of the Statute. The Agency contends that
OCPM 1252.1 is "issued for the internal direction of Department of Navy
personnel." Agency Brief at 9. The Agency asserts that it is "not
issued pursuant to any general, statutory regulatory authority and is
not published in the Federal Register." Id. The Agency further states
that "OCPM Instruction 12752.1 . . . has since been revised to delete
the policy referred by the union" in its position. Id. at 4.
2. Union
The Union contends that the disputed portion of Provision 5 only
"restates" Navy policy. Union's Response at 10. The Union states that
"it is the intent of the provision . . . that so long as the policy is
the policy of the Navy, it will be followed because that is the parties'
agreement in Article 2, Section 1." Id. The Union also asserts that
even if the Agency deleted the policy from its regulation, the Agency
could still exercise its "discretion to continue the current (policy),
and to have it embodied in a collective bargaining agreement." Id. at
12.
The Union also contends that the disputed portion of Provision 5 is
an appropriate arrangement under section 7106(b)(3) of the Statute.
In its supplemental brief, the Union contends that the "gravamen of
Provision 5 is to restate current Department of Navy policy in regard to
(the) severity of discipline penalties." Union Brief at 2. The Union
contends that as "long as the (Agency) continues (the) policy,
(management) would (be required to) follow it under Provision 5." Id.
According to the Union, the "published (Agency) policy is the external
authority governing severity of discipline." Id.
As to the applicability of the Court's decision in IRS v. NTEU, the
Union raises arguments similar to those expressed in section IV.A.2
above.
B. Analysis and Conclusions
We find that the disputed portion of Provision 5 is nonnegotiable for
the reasons discussed below.
First, we note the Union's explanation that Provision 5 only
incorporates existing Agency policy concerning the severity of
disciplinary penalties. We also note the Agency's claim that its
instruction has been revised to delete the policy referred to by the
Union. The Union does not dispute the Agency's claim. Therefore, we
will interpret the provision as not incorporating Agency policy
concerning the severity of disciplinary penalties. Interpreted in this
manner, rather than requiring compliance with an Agency regulation,
Provision 5 would contractually limit management's choice of
disciplinary action to "the minimum penalty that can reasonably be
expected to correct the offending employees and maintain discipline and
morale among employees." Consequently, it is unnecessary to address the
effect of the Agency's regulation as well as the Court's decision in IRS
v. FLRA on the negotiability of the provision.
Proposals that restrict the discipline which management may impose
for a given offense to the minimum necessary to effectuate the purposes
of the discipline directly interfere with management's right to
discipline employees under section 7106(a)(2)(A) because they limit
management's discretion to select the appropriate penalty. See American
Federation of Government Employees, AFL-CIO, Local 1931 and Department
of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023
(1988) (Provision 19) (Naval Weapons Station, Concord, California),
rev'd as to other matters sub nom. Department of the Navy, Naval Weapons
Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. 1989); and
International Plate Printers, Die Stampers and Engravers Union of North
America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision
22, subsection a) (Bureau of Engraving and Printing, Washington, D.C.).
The disputed portion of Provision 5 would limit management's choice of
disciplinary action to the minimum penalty that can reasonably be
expected to correct the offending employees and maintain discipline and
morale among employees. Therefore, consistent with Naval Weapons
Station, Concord, California and Bureau of Engraving and Printing,
Washington, D.C., we conclude that the disputed portion of Provision 5
directly interferes with management's right to discipline employees
under section 7106(a)(2)(A) of the Statute.
We reject the Union's claim that the disputed portion of the
provision constitutes an appropriate arrangement. While the Authority
has found that proposals restricting management's discretion in
disciplining an employee to selecting the minimum discipline necessary
to correct an offending employee constitute arrangements within the
meaning of section 7106(b)(3), the Authority has concluded that such
arrangements are not appropriate because they excessively interfere with
management's right to discipline. See Naval Weapons Station, Concord,
California, 32 FLRA at 1046.
The Union provides nothing in this case that would support a
disposition of Provision 5 that would be different from the disposition
reached in Naval Weapons Station, Concord, California. The Union has
not met its burden of creating a record on which the Authority can make
a negotiability determination. National Association of Government
Employees and U.S. Department of Veterans Affairs, Medical Center,
Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 534 (1991).
Consequently, consistent with Naval Weapons Station, Concord,
California, we conclude that Provision 5 excessively interferes with
management's right to discipline employees under section 7106(a)(2)(A).
Therefore, we find that Provision 5 does not constitute an appropriate
arrangement under section 7106(b)(3) of the Statute. Accordingly, we
find that Provision 5 is nonnegotiable.
Article 23, Section 3
Section 3. It is agreed and understood that employees may be
formally disciplined by being reprimanded in writing, suspended
from duty, reduced in compensation, or removed from employment.
The Activity agrees that letters of reprimand will be removed from
the employee's Official Personnel Folder and destroyed within two
years of the date that the letter is issued. The preferment of
more than one charge for a single instance of misconduct is
prohibited, except when the instance involves two or more
unrelated offenses.
A. Positions of the Parties
The Agency contends that the disputed portion of Provision 6 is
nonnegotiable because it interferes with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute. The
Agency states:
The effect of this provision would be to bar management from fully
exercising its right to discipline. For example, wording of this
nature arguably 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 union could plausibly contend that these are
related offenses.
Statement at 6. The Agency argues 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.
The Union contends that the disputed portion of Provision 6 means
that "the employer will not discipline an employee for the same conduct
more than once; however, 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." Response at 13. The Union argues that the wording
of the provision, as explained by its statement of intent, demonstrates
that the provision does not "require the Agency to choose from among
multiple offenses." Id. The Union asserts that the provision permits
the Agency "to bring a charge for each offense alleged to have
occurred." Id. The Union states:
In the Agency's hypothetical example, assuming the Agency has
effectively prohibited the use of controlled substances and the
sale of controlled substances (two offenses), the disputed
language has permitted and would permit the employer to specify
charges against an employee for each offense, sale and use. Thus,
"unrelated" has been construed by the parties to mean "separate."
Id. at 13-14.
The Union also contends that the disputed portion of Provision 6 is
an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
We find, for the reasons expressed below, that Provision 6 does not
interfere with management's right to discipline employees under section
7106(a)(2)(A) of the Statute.
Provision 6 concerns formal disciplinary actions taken against
employees, such as written reprimands, suspensions, reductions in pay,
and removals. The disputed portion of Provision 6 concerns that aspect
of management's decision to institute formal discipline against an
employee wherein management determines the charges of misconduct which
it will bring against the employee. The provision would preclude
management, when making that determination, from bringing more than one
charge for a single instance of employee misconduct, unless unrelated
offenses were involved.
Under Part 752 of 5 C.F.R., which covers all the formal actions
mentioned in the provision except written reprimands, agencies are
required to provide an employee with an advance written notice stating
the specific reasons for the proposed action. See 5 C.F.R. Sections
752.101 and 752.301. The Merit Systems Protection Board (MSPB) has held
that "an agency's advance notice of charges is analogous to an
indictment," the purpose of which "is to apprise the accused party of
the charges being brought against him or her." Copeland v. Community
Services Administration, 6 MSPR 280 (1981). The MSPB has also held that
the case against an employee "must be judged on the charge brought, and
the Board cannot adjudicate on the basis of other charges that might
have been, but in fact were not made." Johnston v. Government Printing
Office, 5 MSPR 354 (1981) (citation omitted). Consequently, in order
for management to discipline an employee for more than one offense, the
employee must be charged with more than one offense.
The disputed portion of Provision 6 would permit management to bring
only one charge against an employee for a single instance of misconduct
unless unrelated offenses are involved. Provision 6 does not define the
phrase "unrelated offenses." However, according to the Union, for the
last 5 years "'unrelated' has been construed by the parties (under their
prior contract) to mean 'separate'" offenses. Union's Response at
13-14. The Union states that the disputed term is not intended "to
conflict with the Agency's filing separate charges for separate
offenses," and would permit the Agency to file "separate charges against
an employee for each (drug) offense" cited in the Agency's hypothetical.
Response at 13 and 16. Based on the Union's explanation, which is
consistent with the terms of the provision, we interpret "unrelated"
offenses to mean separate offenses.
Defined in this manner, the disputed portion of the provision would
not prevent management from charging an employee with multiple offenses.
Rather, the provision would prohibit management only from charging an
employee more than once for the same offense. The provision would
preclude the Agency from bringing multiple charges against the employee
for the same offense, as in Southers v. Veterans Administration, 813
F.2d 1223 (Fed. Cir. 1987). In that case, the agency brought 19
separate charges of false testimony against an employee based upon 19
separate instances in which the agency, during an investigative
interview, repeated and rephrased the same question to the employee.
The MSPB upheld the agency's discipline on all the charges brought
against the employee. The Federal Circuit reversed the MSPB as to 18 of
the charges of false testimony on the ground that those charges were
duplicative in nature and that only one charge of false testimony should
have been brought against the employee.
Based on the above, we conclude that Provision 6 would operate only
to prevent the Agency, as in the Southers case, from bringing multiple
charges against an employee for the same offense. The provision would
not preclude management from bringing separate charges for separate
offenses. The provision, therefore, would not interfere with
management's right to discipline employees under section 7106(a)(2)(A),
and is within the duty to bargain.
The petition for review as to Provisions 2 and 5 is dismissed. The
Agency must rescind its disapproval of Provisions 3, 4 and 6. /2/
(1) The Agency has withdrawn its allegation of nonnegotiability with
respect to Provision 1. Agency's Statement of Position (Statement) at
2. The Union has withdrawn its appeal as to Provision 7. Union's
Response to the Agency's Statement of Position (Response) at 2-3.
Accordingly, we will not consider these provisions. Further, the Union
referred in its petition for review to a provision designated as Article
30. The Union asserted that this provision was not disapproved by the
Agency and, therefore, is not before the Authority on review. In its
statement, the Agency nowhere contests the negotiability of Article 30.
In these circumstances, we will not consider Article 30 in this
decision.
(2) In finding Provisions 3, 4 and 6 to be negotiable, we make no
judgment as to their merits.
42 FLRA 935
42 FLRA NO. 67
AFGE, National Border Patrol Council and U.S. Department of Justice,
Immigration and Naturalization Service, Case No. 0-NG-1942 (Decided
October 18, 1991)
NEGOTIABILITY DETERMINATION
PROPOSAL CONCERNING STATUS QUO
ALLEGATION OF NONNEGOTIABILITY
MATTER IN DISPUTE
The petition for review in this case concerned two proposals relating
to an Agency decision to make successful completion of a Driver's
Training course a mandatory requirement for graduation from the Border
Patrol Academy. The Union withdrew Proposal 1 from the petition and
filed a separate petition as to it. That petition was dismissed by the
Authority because there was no dispute between the parties as to whether
the proposal was consistent with law, rule, or regulation.
Proposal 2 concerned maintenance of the status quo in the manner of
calculating and applying driver training course scores to the successful
completion of the Border Patrol Academy. The Authority dismissed the
Union's petition as to Proposal 2.
The Authority noted that it will consider a petition for review of a
negotiability issue only where the parties are in dispute over whether a
proposal is inconsistent with law, rule, or regulation. The Authority
concluded, after reviewing the record, that the Agency did not allege
any specific proposal to be nonnegotiable. The Authority further noted
that the Agency acknowledged that proposals requiring an agency to
maintain the status quo during bargaining are negotiable. Therefore,
the petition for review was dismissed as to Proposal 2.
Case No. 0-NG-1942
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL
(Union)
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE
(Agency)
The Union has filed a petition for review of negotiability issues in
the above-captioned case. The petition encompasses two proposals
relating to an Agency decision to make successful completion of a
Driver's Training course a mandatory requirement for graduation from the
Border Patrol Academy. As relevant here, Proposal 2 concerns
maintenance of the status quo in the manner of calculating and applying
driver training course scores to the successful completion of the Border
Patrol Academy. /1/ For the following reasons, the Union's petition as
to Proposal 2 must be dismissed.
The Authority will consider a petition for review of a negotiability
issue only where the parties are in dispute over whether a proposal is
inconsistent with law, rule, or regulation. For example, National
Association of Government Employees, Local R1-109 and U.S. Department of
Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928,
931 (1990) (Newington). Where the conditions for review of
negotiability issues are met, a union is entitled to a decision as to
whether a proposal is negotiable under the Statute. See American
Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.
2d 627, 631 (D.C. Cir. 1983).
In this case, the Agency asserts that it has not alleged Proposal 2
to be nonnegotiable. The Union disagrees, relying on an Agency letter
dated March 5, 1991, wherein the Agency asserted that "(t)he assigned
driving instruction . . . is an assignment of work and an exercise of .
. . internal security authority under 5 USC 7106." Exhibit 8 to Petition
for Review.
An examination of the Agency's March 5 letter reveals that the Agency
did not allege any specific proposal to be nonnegotiable. It is
unclear, in this regard, whether the Union had, in fact, offered
specific proposals to the Agency at the time of the March 5 letter.
Even assuming that it had, however, the Union did not request an
allegation of nonnegotiability until April 24, 1991. In its response to
the request, the Agency asserted only that it had no duty to bargain
over the proposal and that in the absence of such duty, "any question of
nonnegotiability would be moot." Exhibit 11 to petition for review. /2/
The Agency confirms, in this regard, that "it has never asserted that
either of the proposals . . . in this case are nonnegotiable." Statement
of Position at 6. Moreover, the Agency acknowledges that proposals
requiring an agency to maintain the status quo during bargaining are
negotiable. Id. at 10.
There is no dispute before the Authority as to whether Proposal 2 is
inconsistent with law, rule or regulation. Accordingly, the Union's
petition for review is dismissed without prejudice to the Union's right
to file an appeal if the conditions for review are met and the Union
chooses to file such an appeal. See Newington, 38 FLRA at 931 (as
agency's allegation that a proposal was moot did not constitute an
allegation of nonnegotiability, petition for review was dismissed as to
that proposal). To the extent that the parties remain in dispute over
whether the Agency has a duty to bargain over the proposal, the dispute
should be resolved in other appropriate proceedings. /3/ See id.
For the Authority.
Alicia N. Columna
Director, Case Control Office
(1) The Union withdrew Proposal 1 from the petition and filed a
separate petition as to it. That petition (0-NG-1967) was dismissed by
the Authority because there was no dispute between the parties as to
whether the proposal was consistent with law, rule, or regulation.
American Federation of Government Employees, National Border Patrol
Council and U.S. Department of Justice, Immigration and Naturalization
Service, 42 FLRA No. 58 (1991). Accordingly, only Proposal 2 remains in
dispute in this case.
(2) The Agency noted that the Union had withdrawn an unfair labor
practice charge alleging that the Agency failed to fulfill its
obligation to bargain before implementing, as a mandatory requirement
for graduation from the Border Patrol Academy, the completion of a
driver's training course.
(3) The Authority expresses no view on what, if any, proceedings are
available to the Union at this time.
42 FLRA 931
42 FLRA NO. 66
U.S. Department of the Air Force, Scott Air Force Base, Illinois and
NAGE, Local R7-23 (Cohen, Arbitrator), Case No. 0-AR-2160 (Decided
October 18, 1991)
7122(a)
ARBITRATION EXCEPTION
AWARD ON REMAND
SPECIFIC FINDINGS
This case concerns an exeption to an award on remand. In the
original award the Arbitrator found that the grievance was not grievable
under Agency regulation. The Union filed exceptions to the Arbitrator's
award, and the Authority concluded that it was unable to determine
whether the award was deficient because the record was insufficient. In
the Arbitrator's award on remand, the Arbitrator ruled that the
grievance was not grievable under the parties' collective bargaining
agreement. The Union filed an exception.
The Authority concluded that the Union failed to establish that the
award was deficient. The Authority found that the Union's exception
constituted mere disagreement with the Arbitrator's findings and
conclusion. The Authority further noted that it has repeatedly rejected
contentions that an arbitrator is obligated to set forth specific
findings.
Case No. 0-AR-2160 (40 FLRA 421 (1991))
U.S. DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS
(Agency)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to an award on
remand of Arbitrator Gerald Cohen. In his original award, /*/ the
Arbitrator found that the grievance was not grievable under Agency
regulation. The Union filed exceptions to the Arbitrator's award, and
we concluded that we were unable to determine whether the award was
deficient because the record was insufficient. Accordingly, we remanded
the case to the parties for resubmission to the Arbitrator. In his award
on remand, the Arbitrator ruled that the grievance was not grievable
under the parties' collective bargaining agreement.
The Union has filed an exception to the award on remand under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Agency did not file an opposition to the Union's exception.
We conclude that the Union fails to establish that the award is
deficient. Accordingly, we will deny the exception.
The parties had entered into a settlement agreement of an earlier
grievance filed by the grievant over his performance rating for the
appraisal period ending June 30, 1989. Under the settlement agreement
the grievant's performance rating was raised to excellent. When the
grievant failed to receive a cash award for this rating, he filed
another grievance. The grievant claimed that he was entitled to an
award because 29 other employees in his section, who were in the same
job classification as the grievant and who were rated excellent or
better, received cash awards. The grievance was not resolved and was
submitted to arbitration.
The Arbitrator ruled that the grievance was not grievable. He found
that under Air Force Regulation (AFR) 40-452, the nonreceipt of a cash
award could not be grieved under the negotiated grievance procedure.
The Union filed exceptions contending that the Arbitrator's
determination that the grievance was not grievable was deficient.
We noted that under our decision in U.S. Department of the Army, Fort
Campbell District, Third Region, Fort Campbell, Kentucky and American
Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) (Ft.
Campbell), collective bargaining agreements, rather than agency
regulations, govern the disposition of matters to which they both apply
when there is a conflict between the agreement provision and the
regulatory provision. However, we found in 40 FLRA 421 that the record
was insufficient for us to determine whether the Arbitrator had found
the grievance was not grievable consistent with Ft. Campbell. In 40
FLRA 421, we held that the Arbitrator did not determine whether the
portion of the parties' collective bargaining agreement addressing the
scope of the negotiated grievance procedure superseded the provision of
AFR 40-452. Accordingly, we remanded the case for resubmission to the
Arbitrator so that the Arbitrator could make the necessary findings
concerning grievability consistent with Ft. Campbell.
The Arbitrator noted that on March 8, 1987, the parties entered into
an agreement stating that the nonreceipt of a cash award was not
grievable unless the failure to grant an award was based on an unlawful
practice. The Arbitrator found that by entering into this agreement,
the parties had amended their collective bargaining agreement to add
this exclusion to the scope of the negotiated grievance procedure. On
remand, the Union claimed before the Arbitrator that the grievance was
grievable because the grievant's nonreceipt of a cash award was based on
an unlawful practice. From this claim, the Arbitrator inferred that the
Union's position was "that since 29 other people were awarded the same
type of a cash award, the refusal to give Grievant the same award is
discriminatory." Award on Remand at 7.
In the Arbitrator's view, the term "unlawful practice" means a
practice that violates a specific law. As an example, the Arbitrator
stated that it would have been an unlawful practice to fail to grant the
grievant a cash award because of his age, race, religion, sex, or
physical condition. The Arbitrator noted that the Union did not allege
that the Agency's failure to grant an award to the grievant "was based
on his age, race, sex, religion, or anything of that nature. The
inference was that it was a discriminatory denial simply because he was
denied an award that 29 other people got." Id. The Arbitrator rejected
the Union's claim. He found that the failure to grant an award to the
grievant was not discriminatory "in the sense that it violates a law."
Id. Because the Arbitrator found that the failure of the Agency to
grant the grievant an award was not based on an unlawful practice, the
Arbitrator ruled that the grievance was not grievable or arbitrable
under the parties' collective bargaining agreement.
The Union contends that the award is contrary to law. The Union
notes that the Arbitrator ruled that an unlawful practice means a
practice that violates a specific law. The Union argues that,
therefore, the award is deficient in that the Arbitrator did not decide
whether the failure to grant the grievant a cash award violated section
7116(a)(4) of the Statute because it constituted discrimination against
the grievant for filing a grievance over his performance rating.
We conclude that the Union fails to establish that the award is
contrary to law.
The Arbitrator specifically found that the failure to grant an award
to the grievant was not discriminatory "in the sense that it violates a
law." Award on Remand at 7. Consequently, we find that the Union's
exception constitutes mere disagreement with this finding and conclusion
of the Arbitrator and provides no basis for finding the award deficient.
See National Association of Government Employees, Local R5-66 and U.S.
Department of Veterans Affairs Medical Center, Memphis, Tennessee, 40
FLRA 504, 509 (1991) (VA Medical Center, Memphis, Tennessee).
Furthermore, we reject the Union's exception insofar as it is based
on an argument that, in the circumstances of this case, the Arbitrator
was obligated to set forth specific findings or a rational more
extensive than he did to support his decision. We have repeatedly
rejected contentions that an arbitrator was obligated to set forth
findings and a rationale more specific than the Arbitrator in this case
provided. In support, we have cited the decision in Wissman v. Social
Security Administration, 848 F.2d 176 (Fed. Cir. 1988), in which the
court indicated that there is no general statutory obligation that an
arbitrator set forth specific findings. For example, VA Medical Center,
Memphis, Tennessee, 40 FLRA at 509-10. We find this principle
especially compelling in this case where the record fails to demonstrate
that the Union claimed before the Arbitrator that the failure to grant
an award to the grievant was based on unlawful discrimination against
the grievant because he had filed a grievance over his performance
rating. Accordingly, we will deny the exception.
The Union's exception is denied.
(*) Exceptions to the original award were docketed as Case No.
0-AR-2026.
42 FLRA 927
42 FLRA NO. 65
U.S. Department of the Army, Corpus Christi Army Depot, Corpus
Christi, Texas and AFGE, Local 2142 (Helburn, Arbitrator), Case No.
0-AR-2156 (Decided October 17, 1991)
7122(a)
7121(c)(5)
ARBITRATION EXCEPTION
CLASSIFICATION
EVIDENCE
In this case, the Agency downgraded the classification of certain
positions. After new position descriptions were approved, the original
classification was reinstated. The Union filed a grievance claiming
that employees were due backpay for the period of the downgrade. The
Arbitrator denied the grievance.
The Authority concluded that the Union failed to establish that the
award was deficient, and denied the exception. The Authority noted that
the Union's contentions that all the evidence was not reviewed and that
testimony clearly established an unjustified or unwarranted personnel
action constituted disagreement with the Arbitrator's findings of fact
and his evaluation of the evidence and testimony and an attempt to
relitigate the merits of the case before the Authority.
Case No. 0-AR-2156
U.S. DEPARTMENT OF THE ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS
CHRISTI, TEXAS
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2142
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to an award of
Arbitrator I. B. Helburn filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the exception.
The Agency downgraded the classification of certain positions. After
new position descriptions were approved, the original classification was
reinstated. The Union filed a grievance claiming that employees were
due backpay for the period of the downgrade. The Arbitrator denied the
grievance.
We conclude that the Union fails to establish that the award is
deficient. Accordingly, we will deny the exception.
In 1988, the headquarters of the Agency informed the Agency that the
positions held by 26 WD-6 aircraft mechanics did not meet the criteria
for the WD pay system and would have to be converted to the general
schedule. In order to minimize the adverse impact on employees, the
Agency converted the positions to GS-9 (a grade of lesser pay than WD-6)
for 1 day. The Agency then reorganized so that 14 former temporary WD-6
positions were reclassified as WG-11 positions (a grade of more pay than
GS-9, but less pay than WD-6). The Union filed a grievance on behalf of
all 26 WD-6 employees. After a number of employees withdrew from the
grievance, the grievance covered the 14 employees in the temporary WD-6
positions that were reclassified. On April 4, 1989, the Union requested
arbitration.
In June 1989, the parties entered into a settlement agreement of the
grievance. The Agency essentially agreed to approve new position
descriptions for these positions and convert them to the WD
classification, and the Union agreed to withdraw its grievance. In July
1989, the headquarters of the Agency ordered that the conversion of
these positions be held in abeyance. On October 4, 1989, the Union took
steps to pursue the grievance to arbitration. Later in October, the
headquarters of the Agency authorized the Agency to proceed with the
conversion of the positions on a temporary basis. In January 1990, the
headquarters authorized the Agency to make the conversion to WD-6
permanent. Nonetheless, the Union continued to claim that the
settlement agreement had not been properly implemented and that
employees were due backpay. The matter was not resolved and was
submitted to arbitration.
The Arbitrator first rejected the Agency's claim that the grievance
was precluded by section 7121(c)(5) of the Statute because the grievance
concerned classification of a position. The Arbitrator noted that
section 7121(c)(5) does not preclude grievances over classification when
the classification has resulted in the reduction in grade or pay of an
employee. Consequently, the Arbitrator ruled that the grievance was not
precluded by the Statute because the grievants had suffered a reduction
in pay within the meaning of section 7121(c)( 5).
On the merits, the Arbitrator denied the grievance. He found that
the Union had failed to meet its burden of proof. He stated that the
Union failed to provide evidence that would allow him to make an
informed judgment about whether the skills of the grievants and the work
they performed were consistent with the requirements of the WD
classification. Moreover, he found that the order of the headquarters
of the Agency to reclassify the WD-6 positions was consistent with
applicable law, regulations, and the parties' collective bargaining
agreement. Accordingly, he ruled that there was no unjustified or
unwarranted personnel action and that, therefore, no backpay or other
remedy was warranted.
The Union contends that the award is deficient because "all evidence
was not reviewed" and because "witnesses (sic) testimony clearly stated
the reasons for the unwarranted and unjustified personnel action."
Exception at 1. The Union asserts that a witness testified that the
downgrading was based on false and misleading information. The Union
further asserts that all union witnesses and several agency witnesses
testified that the WD-6 position descriptions and the duties being
performed by the grievants never changed. Consequently, the Union
claims that, contrary to the finding of the Arbitrator, the Agency
committed an unjustified and unwarranted personnel action that entitled
the grievants to backpay.
The Agency contends that the Union's exception constitutes nothing
more than disagreement with the Arbitrator's findings of fact and
provides no basis for finding the award deficient.
We will find an arbitration award deficient under section 7122(a) of
the Statute if the award is contrary to any law, rule, or regulation or
on other grounds similar to those applied by Federal courts in private
sector labor relations cases. American Federation of Government
Employees, Local 987 and U.S. Department of the Air Force, Warner Robins
Air Logistics Center, Robins Air Force, Base, Georgia, 41 FLRA 1409
(1991).
In this case, we conclude that the Union's exception provides no
basis for finding the award deficient under section 7122(a) of the
Statute. In our view, the Union's contentions that all the evidence was
not reviewed and that testimony clearly established an unjustified or
unwarranted personnel action constitute nothing more than disagreement
with the Arbitrator's findings of fact and his evaluation of the
evidence and testimony and an attempt to relitigate the merits of the
case before the Authority. As such, the exception provides no basis for
finding the award deficient under the Statute. See National Gallery of
Art and American Federation of Government Employees, Local 1831, 39 FLRA
226, 235 (1991).
Accordingly, we will deny the Union's exception.
The Union's exception is denied.
42 FLRA 902
42 FLRA NO. 64
U.S. Department of the Interior, Bureau of Reclamation, Great Plains
Region and International Brotherhood of Electrical Workers, Local 1759
(Bardwell, Arbitrator), Case No. 0-AR-1921 (Decided October 17, 1991)
7122(a)
704(c)
7121(c)(5)
7106(a)(2)(B)
5 U.S.C. Section 5596
ARBITRATION EXCEPTION
PREVAILING RATES AND PRACTICES
CLASSIFICATION
RIGHT TO ASSIGN WORK
ESSENCE
ARBITRATOR EXCEEDED AUTHORITY
BACK PAY ACT
BACKPAY TO THE UNION
PUNITIVE AWARD
LATITUDE TO FASHION REMEDIES
The grievance alleged that the Agency violated the parties' agreement
by unilaterally eliminating a Wage Board (WB) Warehouseman position in
the collective bargaining unit represented by the Union and assigning
the duties of the WB position to a General Schedule (GS) Supply Clerk
position outside the bargaining unit. The Arbitrator sustained the
grievance and ordered the Agency to begin negotiations with the Union in
accordance with the agreement. The Arbitrator also awarded backpay to a
retired WB employee because the Arbitrator found that the employee
prematurely retired from is WB Warehouseman position because of the
Agency's unwarranted action. Also, as an additional remedy, the
Arbitrator awarded backpay to the Union.
The Authority rejected the Agency's argument that the award was
deficient because it failed to draw its essence from the agreement.
The Authority concluded that the Arbitrator's award requiring the
Agency to bargain under section 704(a) concerning the change in the WB
position was not deficient. The Authority noted that under section
704(a), in order for a term or condition of employment or other
employment benefit to be negotiable, it must have been the subject of
negotiations in accordance with prevailing rates and practices prior to
August 19, 1972.
The Authority also found that the Agency's argument that the award
was inconsistent with section 7121(c)(5) of the Statute provided no
basis for finding the award deficient. The Authority noted that the
Arbitrator specifically rejected the Agency's argument that this
grievance was excluded from the grievance procedure under section 8.4(
E) and concluded that the grievance was arbitrable. The Authority noted
that Section 8.4(E) of the parties' agreement, restated the terms of
section 7121(c)(5) which excludes from the negotiated grievance
procedure a grievance concerning the classification of any position
which did not result in the reduction in pay of an employee.
The Authority further noted that even if the Agency had alleged or
shown that section 8.4(E) was not negotiated consistent with section 704
of the CSRA, and even if section 8.4(E) as interpreted by the Arbitrator
was inconsistent with section 7121(c)(5) of the Statute, it was
nonetheless enforceable under section 704 of the CSRA because collective
bargaining agreement provisions that were negotiated consistent with
section 704 are enforceable in arbitration despite any inconsistency
with the Statute.
In addition, the Authority concluded that the Agency failed to
establish that the Arbitrator exceeded his authority by awarding backpay
to the retired WB Warehouseman. The Authority noted that arbitrators
have great latitude in fashioning remedies. In this case, the Authority
found that the Arbitrator fashioned a remedy that included a former
bargaining unit employee because the Arbitrator found that the retired
WB Warehouseman was harmed by the Agency's violation of the agreement.
Thus, the Authority found that the Arbitrator's award of a remedy to the
retired WB Warehouseman was directly responsive to the issue stipulated
by the parties, and concluded that the Arbitrator acted within his
authority.
Furthermore, the Authority concluded that the award of backpay to the
retired WB warehouseman was consistent with the Back Pay Act. However,
the Authority concluded that the backpay award to the Union was contrary
to the Back Pay Act. The Authority noted that the purpose of the Back
Pay Act is to put an employee who was the victim of an unjustified or
unwarranted personnel actions in the same position as he or she would
have been had the erroneous action not occurred. Because the Union is
not an "employee," within the meaning of the Back Pay Act, it is not
entitled to an award of backpay. Therefore, the Authority concluded
that the Arbitrator's award of backpay to the Union was contrary to the
Back Pay Act, and modified the award.
Lastly, the Authority concluded that the Arbitrator's award was not
punitive. The Authority noted that merely characterizing a remedy as
punitive did not establish an independent basis for finding an award
deficient.
Case No. 0-AR-1921
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, GREAT PLAINS
REGION
(Agency)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1759
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator George E. Bardwell filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. /1/ The Union
filed an opposition to the Agency's exceptions. Also, the U.S.
Department of Energy (Energy) and the U.S. Information Agency, Voice of
America (VOA) each filed briefs as amicus curiae, which have been
accepted as part of the record.
The grievance alleged that the Agency violated the parties'
collective bargaining agreement by unilaterally eliminating a Wage Board
(WB) Warehouseman position in the collective bargaining unit represented
by the Union and assigning the duties of the WB position to a General
Schedule (GS) Supply Clerk position outside the bargaining unit. The
Arbitrator sustained the grievance and ordered the Agency to begin
negotiations with the Union in accordance with the agreement "to return
the activities of the WB Warehouseman to . . . the bargaining unit."
Award at 34. The Arbitrator also awarded backpay to a retired WB
employee because the Arbitrator found that the employee prematurely
retired from his WB Warehouseman position because of the Agency's
unwarranted action. Also, as an additional remedy, the Arbitrator
awarded backpay to the Union.
For the folowing reasons, we find that the Arbitrator's award of
backpay to the Union is contrary to the Back Pay Act, 5 U.S.C. Section
5596(b)(2). Therefore, the award will be modified consistent with our
decision. We will dismiss the remainder of the Agency's exceptions.
The parties in this case negotiate the terms and conditions of
employment of unit employees, including wages and premium pay
provisions, in accordance with section 704 of the CSRA, codified at 5
U.S.C. Section 5343 (Amendments) (1988 ed.) and section 9(b) of the
Prevailing Rate Systems Act (PRSA), codified at 5 U.S.C. Section 5343
(Amendments, note) (1988 ed.).
After investigating the Agency's organization and work processes, an
Agency task force recommended that certain positions in the Agency's
central supply warehouse be eliminated. Subsequently, the Agency
advised the employee assigned to a GS supply clerk position and the
employee assigned to a WB Warehouseman position that their positions in
the central supply warehouse were to be abolished by the end of 1987.
Sometime prior to December 1987, the Agency determined that it would
"withhold implementation" of its decision to abolish the positions in
the central supply warehouse. Award at 4. However, the Agency did not
inform the affected employees of its decision. The employee assigned to
the WB Warehouseman position retired on December 3, 1987, without
knowledge that the Agency no longer planned to abolish his position.
Following the WB employee's retirement, the Agency initiated
procedures to reclassify the GS supply clerk position and the WB
Warehouseman position in the central supply warehouse. The Agency wrote
a new position description for the supply clerk position which included
all of the duties of the WB Warehouseman and abolished the WB
Warehouseman position. Meanwhile, the employee assigned to the GS
supply clerk position "opted for medical retirement." Id. at 5. After
reviewing and finalizing the new position description for the
reclassified supply clerk position, the Agency issued a vacancy
announcement and filled the position.
The Union filed a grievance alleging that the Agency "has
unilaterally taken away a WB position and replaced it with a GS
position." Award at 6. The Union requested that the position be
returned to the WB unit. The parties agreed to submit the grievance to
arbitration and stipulated all but one of the issues before the
Arbitrator.
The threshold issue, as stipulated by the parties, was: "Is the
grievance filed by (the Union) . . . grievable and arbitrable under the
General Labor Agreement between the parties?" Id. at 2. The parties
were unable to agree upon the second issue. Therefore, the Arbitrator
framed that issue as: "Did the Agency violate the General Labor
Agreement when it included the duties of the WB Warehouseman into the
position of GS Supply Clerk . . . without negotiating such changes with
the Union?" Id. at 13. The parties stipulated the third issues as
follows: "Has the Agency's action violated the General Labor
Agreement?" Id. at 2. The fourth issue, as stipulated by the parties,
was: "If the answer to issue No. 3 above is in the affirmative, what
shall the remedy be?" Id.
The Arbitrator determined that the grievance was grievable and
arbitrable. The Arbitrator rejected the Agency's claim that the subject
matter was excluded from the grievance procedure under Article VIII,
Section 8.4(E) of the parties' agreement, /2/ which specifically
excluded from the grievance procedure any claimed violation relating to
"(t)he classification of any position which does not result in the
reduction-in-grade or pay of an employee." Id. at 7. The Arbitrator
found that the exemption in section 8.4(E) was "inoperable" because when
the Agency reclassified the supply clerk position, the pay of a
bargaining unit employee was reduced as contemplated by Section 8.4(E).
The Arbitrator stated that "(f)or all intents and purposes, (the Agency)
eliminated a classification in the central supply warehouse which (the
employee) had relied upon for his livelihood. The pay of (the employee)
was not merely reduced . . .; it was, in fact, eliminated along with the
position." Award at 11. The Arbitrator also found that the subject of
the grievance was the unilateral removal of work from a bargaining unit
position and that the Agency's claim that its action was a
"classification" action was "tautological." Id.
On the merits, the Arbitrator found that "(n)egotiation of the
Warehouseman's classification in the collective bargaining agreements
between the parties for at least the past dozen years . . . is a tacit
understanding between the parties that duties and functions of the
Warehouseman position will be performed by members of the bargaining
unit." Id. at 24-25. The Arbitrator stated that by "flout(ing) these
classifications and shut(ing) them aside . . . the Agency . . .
repudiate(s) and scorn(s) the very existence of the General Labor
Agreement itself." Id. at 25. The Arbitrator found that Article V,
Section 5.5 of the parties' agreement "binds both parties to continue
the rates of pay and working conditions set out in the Agreement until
such time as changes are negotiated by the parties." Id. at 26 (emphasis
in original).
The Arbitrator rejected the Agency's argument that the term "working
conditions" in Article V, Section 5.5 cannot be interpreted to include
matters concerning classifications. Relying on Sections 1.1 and 6.1 of
the parties' Supplementary Labor Agreement No. 1, the Arbitrator found
that the terms "working conditions" and "conditions of employment" in
the parties' General Labor Agreement "apply to every labor
classification in the Agreement(,) each having a unique profile of
duties painstakingly negotiated by the parties." Id. at 27. The
Arbitrator stated:
(T)he only reasonable interpretation of Section 5.5 in the Basic
Agreement is that the parties agreed to continue the "working
conditions" . . . in effect at the time the Agreement was executed
until otherwise changed by negotiation. Surely this means that
work customarily performed by bargaining unit employees in the
warehouse will not be transferred outside the domain of the
bargaining unit without negotiation with the Union.
Id. at 28. The Arbitrator also cited section 5.1 of the parties' Basic
Agreement, providing that working conditions shall be determined by
negotiation, and section 8.1 of the Basic Agreement, which requires the
Agency to exercise its management rights in accordance with the
provisions of the parties' General Labor Agreement. Because the
Arbitrator found that the parties' agreement precluded the Agency from
unilaterally changing the duties of bargaining unit employees, the
Arbitrator concluded that "(t)he Agency did violate the General Labor
Agreement when it included the duties of WB Warehouseman in the position
of GS Supply Clerk . . . without negotiating such changes with the
Union." Id. at 29-30.
Finally, the Arbitrator discussed the appropriate remedy for the
Agency's violation of the parties' collective bargaining agreements.
The Arbitrator determined that the WB Warehouseman position should be
returned to the bargaining unit. The Arbitrator stated that because of
the changing needs of the Agency, "(t)he parties must be given the
opportunity and flexibility to hammer out accommodations" concerning the
changes in the WB position. Id. at 31. Therefore, the Arbitrator
ordered that "negotiations toward this end begin immediately in
accordance with Article V of the Basic Agreement." Id. at 32.
The Arbitrator also found that an award of backpay was appropriate.
The Arbitrator found that the Agency "benefitted monetarily by
improperly eliminating the WB Warehouseman position and assigning the
duties of the position to GS supply personnel during the period,
December 4, 1987 to December 3, 1988, and then to the disputed GS Supply
Clerk from December 4, 1988, to January 17, 1990." Id. The Arbitrator
rejected the Union's request that the employee assigned to the GS Supply
Clerk position be awarded backpay in an amount equal to the difference
between the wages the employee received in the GS position and the wages
he would have received as a WB Warehouseman. However, the Arbitrator
found that it was appropriate to order backpay to the WB employee "who
was advised to take 'early' retirement because of the Agency's premature
and improper actions relating to the elimination of the WB Warehouseman
position." Id. at 32. The Arbitrator stated:
Back pay is awarded to (the retired employee) for the period
December 4, 1988, to January 17, 1990 or to the date of his
compulsory retirement at age 70, whichever comes earlier, equal to
the difference in pay received as a WB Warehouseman for this
period. In the event (the employee's) compulsory retirement date
is earlier than January 17, 1990, the Union is entitled to receive
the difference in pay for the period from (the employee's)
compulsory retirement date to January 17, 1990, calculated in the
manner prescribed above.
Id. at 33. The Arbitrator also stated that "(s)ince the Union has not
complained about the Agency's assignment of WB Warehouseman's duties
during the period December 4, 1987 to December 3, 1988, no monetary
award is appropriate for this period." Id.
A. Positions of the Parties
1. Agency
The Agency contends that the award is contrary to law insofar as the
Arbitrator found that the Agency violated the parties' collective
bargaining agreement and ordered bargaining over the termination of the
WB Warehouseman position. The Agency argues that the award is contrary
to section 7121(c)(5) of the Statute because the Arbitrator determined
that matters excluded from the grievance procedure under that provision
are grievable and arbitrable under the parties' agreement. The Agency
states that section 8.4.E of the parties' General Labor Agreement
incorporates section 7121(c)(5) of the Statute into the agreement. The
Agency asserts that by incorporating section 7121(c)(5), the parties
excluded from their negotiated grievance and arbitration procedure "any
matter relating to the 'classification of any position which does not
result in the reduction-in-grade or pay of any employee(.)'" Exceptions
at 3 and 11.
The Agency maintains that the grievance in this case concerns the
Agency's classification of the duties of a vacant WB Warehouseman's
position with certain duties of a general schedule Supply Clerk, and
establishing that position as a GS Supply Clerk. The Agency asserts
that "(s)ince the Warehouseman position had been vacant, and the Supply
Clerk position was newly establised, the classification did not result
in the reduction in grade or pay of any existing employee." Id. The
Agency argues, therefore, that the grievance is excluded from the
parties' negotiated grievance procedure and that the Arbitrator violated
section 7121(c)(5) of the Statute by determining that the grievance was
arbitrable.
The Agency also argues that the award is contrary to section 7103(
a)(14)(B) of the Statute because the Arbitrator "failed to take into
account Federal law by determining that section 5.5 of the agreement,
providing for negotiations on the broad generic term 'working
conditions'(,) automatically meant any and all matters that affect
working conditions of Federal employees with no exceptions." Id. at 23.
/3/ The Agency states that in the Federal sector, the term "working
conditions" or "conditions of employment" is defined in section 7103(
a)(14) of the Statute and that "not all 'working conditions' are subject
to bargaining in the Federal sector as they usually are in the private
sector." Id. at 23. The Agency asserts that the Arbitrator failed to
take into account the definition of "working conditions" in section
7103(a)(14) and other exceptions to "conditions of employment" in
section 7106 and 7117(a)(1) and (2) of the Statute when he determined
that section 5.5 of the parties' agreement (providing for negotiations
on the "working conditions" of unit employees) "automatically meant any
and all matters that affect the working conditions of Federal employees
with no exceptions. Specifically, the Arbitrator read into this generic
term 'working conditions', the Union's 'ownership' of unit work and a
restriction on management's right to assign work . . . outside the
bargaining unit." Id.
The Agency contends that the award is "deficient as a matter of law
because it violates a broad range of management rights." Id. at 16.
According to the Agency, the Arbitrator failed to apply Federal statutes
and case law to the grievance and inappropriately relied on "the
Arbitrator's own views of private sector labor management concepts (e.g.
Union's ownership of work)" and on private sector arbitration cases.
Id. at 17. The Agency states that "(a)ccording to the provisions which
the Arbitrator determined were assumed or implied in the contract, the
Agency could not assign work customarily performed by any member of the
bargaining unit to an employee or position outside the bargaining unit
without first bargaining with the Union." Id. at 18.
Specifically, the Agency argues that the award is contrary to
management's right to assign work under section 7106(a)(2)(B) of the
Statute. The Agency asserts that "since the (A)rbitrator's award
restricts the assignment of duties to a particular position . . . , and
directs the (A)gency to restore duties to a particular position, the
(A)rbitrator is substituting his judgment for that of management . . .
, thereby making the award deficient as contrary to management's right
to assignn work pursuant to section 7106(a)(2)(B)." Id. at 28 (citation
omitted).
The Agency argues that "in the Federal sector, restrictions on
management's ability to assign work or to restructure positions to meet
the Agency's operational needs cannot be implied from the mere listing
of job titles or the mere fact that there is a General Labor Agreement."
Id. The Agency asserts that the Authority's decisions provide ample
support for the Agency's position that management has no duty to bargain
on the transfer of the Warehouseman's duties to a non-unit position, or
its decision to abolish or fill the Warehousman's position. The Agency
argues that, under section 7106 of the Statute, management has the
"unilateral right" to take those actions. Id. at 22. The Agency states
that "management rights are provided by law . . . . If management were
required to negotiate on any of its actions with respect to the
Warehouseman's position, this would be inconsistent with the exercise of
. . . management's rights under 5 U.S.C. Section 7106(.)" Id.
The Agency states that "(s)ection 704 does not help the Union
because, under the facts of this case, it has not been shown that the
specific subject of the grievance had been negotiated prior to August
19, 1972." Id. at 24 (emphasis in original). The Agency maintains that
the evidence in the record does not show that the parties negotiated a
written agreement concerning the specific subjects of the Union's
grievance, that is, "transfer of duties out of the bargaining unit,
classification of position according to law and (Office of Personnel
Management) standards, or the assignment of specific duties to the
Warehouseman position." Id. at 34. The Agency argues that "(s)ince the
subject matter of the Union's grievance or the requirements of the
Arbitrator's Award had not been the subject of negotiation prior to
August 19, 1972, there is no duty to bargain on these matters under
section 704." Id.
The Agency also claims that issues as to the WB employee's retirement
and the assignment of the WB Warehousman's duties to other GS employees
in the warehouse were not part of the grievance before the Arbitrator.
The Agency states that "neither (the WB employee) or (sic) the Union saw
fit to complain about matters relating to (the employee's) retirement,
or the assigning of the Warehousman's duties to the remaining GS
warehouse employees. Therefore, any matters concerning (the WB
employee's) retirement are irrelevant to the issues of this case(.)" Id.
at 12-13.
2. Union
The Union states that "the law which the Agency claims the award
violates is the various management rights provisions of the CSRA. The
management rights limitations in the CSRA do not control or impact the
contract or the Arbitrator's interpretation of that contract for these
Section 704 employees(.)" Opposition at 20. The Union maintains that
Article 8, section 8.1 of the parties' collective bargaining agreement
sets forth the parties' agreement concerning those rights explicitly
reserved to management. The Union asserts that "(a)t no place in this
provision does the Agency explicitly reserve or preserve any right to
assign, classify or determine 'work', 'jobs', or 'positions' within the
bargaining unit, as opposed to 'employees.'" Id. at 21. The Union also
asserts that section 8.1 of the parties' agreement does not support the
Agency's position that it has reserved any special rights or status with
respect to work assignments or working conditions in the bargaining
unit. The Union states that the Agency "has not reserved . . . the
right to ignore the . . . provisions in the contract which reserve
certain work for certain job classifications, limit the assignment of
work by management, and establish working conditions for the bargaining
unit." Id. The Union maintains that "in (s)ection 8.1 the parties have
expressly agreed that any management powers reserved in the provision
may only be exercised by the Agency 'in accordance with the provisions
of this Basic Agreement.'" Id. at 22 (emphasis in original).
The Union states that under section 704 of the CSRA, Federal agencies
must negotiate on all terms and conditions of employment, employee
benefits, and pay practices for the employees who are covered by section
9(b) of the PRSA, and are now covered by section 704, concerning any
subject that was the subject of negotiation or agreement by the parties
prior to August 19, 1972, despite any provision to the contrary in the
CSRA. The Union maintains that "the contract provisions which were at
issue here and the subject matters disputed in this grievance . . . have
clear predecessors which were negotiated by the parties and included in
the 1954 and 1955 contracts between the parties." Opposition at 8. The
Union states that "(f)or over thirty years the parties have clearly
negotiated and agreed upon labor classifications and the positions of
employees to be established within the bargaining unit." Id. The Union
asserts:
Since the parties have historically negotiated working conditions
limiting assignment of work and the establishment of positions and
job classifications within the unit, as well as the grievance and
arbitration of disputes, and have put such provisions into their
various contracts well prior to 1972, it is obvious that the
Arbitrator had complete authority under (s)ection 704 to resolve
this dispute . . . solely based upon consideration of the
provisions, terms, language, and intentions set forth in the
parties' contract.
Id. at 10.
The Union maintains that the Arbitrator's conclusion that the
grievance was arbitrable under Article 8 of the parties' agreement was
reached "by interpreting the terms, language and provisions of the
contract and applying such interpretation to the facts as he found them
in the matter." Id. at 16. The Union also maintains that the
Arbitrator's determination that the Agency violated the parties'
collective bargaining agreement is based on the Arbitrator's findings of
facts, his interpretation of the provisions of the parties' agreement,
and the evidence presented in the arbitration proceeding. The Union
states that "(t)he mere fact that (the Arbitrator's) interpretation or
application of the agreement is not what the Agency would like it to be
is not sufficient for the Authority to overturn his award." Id. at 20.
3. Amici
Energy disagrees with the Arbitrator's finding that the parties'
Supplementary Labor Agreement No. 2 provides evidence that the parties
negotiated over the assignment of work to the job classifications listed
in the agreement. Energy asserts that "the language of Supplemental
Agreement No. 2 cannot establish that the designation of job duties or
work assignment . . . was a subject of bargaining prior to the passage
of the (CSRA) and discussed in (s)ection 704 of the act." Brief for the
Department of Energy as Amicus Curiae (Energy's Brief) at 6. Energy
argues that section 8.1 of the Basic Labor Agreement, which requires
management to exercise its rights in accordance with the General Labor
Agreement, "may not limit by fiat management's other authorities and
responsibilities to accomplish other aspects of its agency mission." Id.
Energy asserts that "(a)ssignment of work or conditions of work are not
discussed in Section 8.1 and were presumably not subjects of bargaining
prior to August 19, 1978." Id. /4/ Energy states that "(s)ection 7106
rights, which are essential contributing components to the capability of
management to accomplish its mission, must be the singular reference
source for resolving disputes concerning management's right to assign
work and direct its employees absent explicit directives authorized by
higher authority (e. g. written agreements authorized under Section
704)." Id.
Energy disagrees with the Arbitrator's interpretation of the term
"working conditions" in Article V, Section 5.1 of the parties'
agreement. Energy states that "(t)he rationale applied by the (A)
rbitrator is that the actual work done is an integral component of the
'working conditions' under which an employee performs his duties. The
(A)rbitrator concludes that 'working conditions' apply to the job duties
of a position(.)" Id. at 4. Energy asserts that "such a concept is not
supported by the language of (Article V, Section 5.1) . . . (which)
must infer (sic) that working conditions are activities that impact on
the way and how an individual employee functions on the job." Id.
Energy argues that "(s)ince the (A)gency took job duties from a vacant
position it did not violate the contract because the action did not
involve the working conditions of any employee covered by the
agreement." Id.
The Voice of America states that "(t)he major issue in this case for
the VOA is the arbitrator's adoption of the private sector doctrine of
'ownership of work.' It is the VOA's position that the adoption of this
doctrine in the Federal sector is clearly contrary to (section 7106(a)
of the Staute)." VOA's Brief as Amicus Curiae (VOA's Brief) at 1-2.
B. Analysis and Conclusions
The Agency contends that the Arbitrator's award is contrary to the
parties' agreement. We conclude that the Agency's argument does not
demonstrate that the Arbitrator's award is deficient because it fails to
draw its essence from the parties' agreement. The Agency also contends
that the Arbitrator's award is contrary to law. We conclude that the
Agency has failed to establish that the award is deficient because it is
inconsistent with sections 7103(a)(14)(B), 7106, and 7121(c)(5) of the
Statute. Therefore, we deny the Agency's exceptions that the award is
deficient on these bases.
1. The Agency Has Not Established that the Award Is Deficient
Because It Fails to Draw Its Essence from the Parties' Agreement
The Agency argues that the Arbitrator misinterpreted the term
"working conditions" in the parties' agreement. The Agency states that
the Arbitrator interpreted the agreement "as requiring the Agency to
bargain on the transfer of the duties customarily performed by the
Warehouseman to a position outside the bargaining unit." Exceptions at
5. The Agency asserts that "(t)he Arbitrator's ruling is not based on
any specific contract requirement but, rather, on a very general one
referring only to 'working conditions.'" Id.
We construe the Agency's argument as a contention that the award
fails to draw its essence from the parties' collective bargaining
agreement. In order to demonstrate that an award fails to draw its
essence from an agreement, a party must show that the award: (1) cannot
in any rational way be derived from the agreement; or (2) is so
unfounded in reason and fact, and so unconnected with the wording and
the purpose of the agreement as to manifest an infidelity to the
obligation of the arbitrator; or (3) evidences a manifest disregard for
the agreement; or (4) does not represent a plausible interpretation of
the agreement. See U.S. Department of the Justice, Federal Bureau of
Prisons, Terre Haute, Indiana and American Federation of Government
Employees, 41 FLRA 237, 242 (1991).
The Agency has not demonstrated that the award is deficient under any
of these tests. The Arbitrator interpreted and applied the provisions
of the parties' collective bargaining agreement to find that the Agency
violated the agreement by failing to bargain over the elimination of the
WB Warehouseman position, which concerned the working conditions of
bargaining unit employees under Article V, sections 5.1 and 5.5 of the
parties' agreement. The Agency provides no basis on which to conclude
that the Arbitrator's interpretation of the parties' agreement is
implausible, irrational, or unconnected to the wording of the agreement.
The Agency's argument in this regard constitutes nothing more than
disagreement with the Arbitrator's interpretation and application of the
parties' collective bargaining agreement, and his reasoning and
conclusions. See U.S. Department of the Treasury, U.S. Customs Service,
Region IV, Miami District and National Treasury Employees Union, Chapter
137, 41 FLRA 394, 399 (1991).
2. The Arbitrator's Award Requiring the Agency to Bargain under
Section 704(a) Concerning the Change in the WB Position Is Not Deficient
In U.S. Department of Interior, Bureau of Reclamation, Lower Colorado
Dams Project Office, Parker and Davis Dams and International Brotherhood
of Electrical Workers, Local 640, 41 FLRA 119 (1991) (Lower Colorado
Dams Project Office), request for reconsideration denied 42 FLRA 76
(1991), we discussed the meaning of section 704 and the bargaining
obligations of parties who negotiate their terms and conditions of
employment in accordance with section 704. We found that under section
704(a), in order for a term or condition of employment or other
employment benefit to be negotiable, it must have been the subject of
negotiations in accordance with prevailing rates and practices prior to
August 19, 1972.
The Agency argues that the award is deficient because the record does
not show that the parties negotiated, prior to August 19, 1972, a
written agreement that included an item that was specifically referred
to in the parties' agreements as "transfer of duties out of the
bargaining unit, classification of position according to law and (Office
of Personnel Management) standards, or the assignment of specific duties
to the Warehouseman position." Exceptions at 34. As stated above, an
agency's duty to bargain under section 704 extends to matters that were
subject to negotiation prior to August 19, 1972. Contrary to the
Agency, we find that the record in this case demonstrates that matters
pertaining to the duties of the WB Warehouseman position were subject to
negotiations prior to August 19, 1972, and supports the Arbitrator's
conclusion that the Agency was required to bargain under section 704 on
the change in the WB Warehouseman position.
The Arbitrator determined that "negotiation of the Warehouseman
classification in the collective bargaining agreements between the
parties for at least the past dozen years is a tacit understanding
between the parties that duties and functions of the Warehouseman
position will be performed by members of the bargaining unit." Award at
25. The Arbitrator also determined that the parties' agreement "binds
both parties to continue the rates of pay and working conditions set out
in the Agreement until such time as changes are negotiated by the
parties." Id. at 26 (emphasis in original).
The provisions of the current agreement concerning the Warehouseman
classification cited by the Arbitrator have predecessors in the parties'
1960 General Labor Agreement. Union Attachment No. 1 (1960 General
Labor Agreement) at 6. Further, the parties' 1954 and 1955 collective
bargaining agreements support the Arbitrator's conclusion that the
parties negotiated concerning the duties assigned to WB unit employees.
Union Attachment No. 2 (1954 General Agreement) at 16-17 and 29-33;
Union Attachment No. 3 (1955 General Agreement) at 7-8 and 25-28. We
conclude, based on the record in this case, that the provisions of the
parties' agreement that relate to the duties of WB unit employees
concern matters that were subject to negotiation prior to August 19,
1972.
Consequently, because the changes in the WB Warehouseman position
related to the working conditions of unit employees which had been the
subject of negotiations between the parties prior to August 19, 1972, we
find that the record supports the Arbitrator's determination that the
Agency is obligated to bargain with the Union concerning the changes in
that position. Accordingly, we conclude that the Agency has failed to
establish that the award is deficient because the subject matter of the
Union's grievance, and the subject matter over which the Agency is
required to bargain under the Arbitrator's award, had not been the
subject of negotiation between the parties prior to August 19, 1972.
3. The Statute Does Not Provide a Basis for Finding the Award
Deficient
"The plain meaning of (section 704(a)) is that it exempts provisions
of specified collective bargaining agreements from the limitations on
the scope of bargaining set forth in the Statute, including the
management rights provisions of section 7106." Columbia Power Trades
Council and United States Department of Energy, Bonneville Power
Administration, 22 FLRA 998, 1005 (1986) (Bonneville Power
Administration). See also U.S. Department of the Interior, Bureau of
Reclamation, Lower Colorado Region, Yuma, Arizona and National
Federation of Federal Employees, 41 FLRA 3, 12-15 (1991) (Lower Colorado
Region, Yuma, Arizona). Further, section 704(b) specifically provides
for the negotiation of the pay and pay practices of prevailing rate
employees without regard to any provision of chapter 71 of title 5 (the
Statute) "to the extent that any such provision is inconsistent with
(section 704)." Thus, parties who negotiate under section 704 may agree
to contract provisions concerning terms and conditions of employment and
pay and pay practices, where those terms and conditions of employment
and pay practices had been negotiated prior to August 19, 1972,
notwithstanding the fact that such provisions might otherwise conflict
with the Statute.
Because section 704 preserves the parties' right to negotiate on
certain matters that might otherwise be in conflict with the Statute, a
provision in a collective bargaining agreement that was negotiated
consistent with section 704 is enforceable in arbitration despite any
inconsistency with the Statute. Id. As we found above, the Agency has
not demonstrated that the provisions of the agreement enforced by the
Arbitrator were not negotiated consistent with section 704.
Consequently, we conclude that the award is enforceable notwithstanding
the provisions of the Statute.
In particular, we find that the subsections of the Statute cited by
the Agency do not render the award deficient. Under secton 704 of the
CSRA, the provision of the collective bargaining agreement requiring the
Agency to negotiate changes in "working conditions," including matters
relating to changes in job classification, is enforceable in arbitration
despite any inconsistency with the Statute. We conclude, therefore,
that the Agency's contention that the award is inconsistent with section
7103(a)(14)(B) of the Statute provides no basis for finding the award
deficient. See id.
We also find that the Agency's argument that the award is
inconsistent with section 7121(c)(5) of the Statute provides no basis
for finding the award deficient. Section 8.4(E) of the parties'
agreement excludes from a negotiated grievance procedure a grievance
concerning the classification of any position which does not result in
the reduction in pay of an employee. Section 8.4(E) of the parties'
agreement restates the terms of section 7121(c)(5) of the Statute. The
Arbitrator found that as a result of the Agency's reclassification of
the GS supply clerk position, the pay of a bargaining unit employee "was
not merely reduced as contemplated by Section 8.4(E); it was, in fact,
eliminated(.)" Award at 11. Based on his interpretation of the parties'
agreement and his examination of the facts in this case, the Arbitrator
concluded that the exemption in section 8.4(E) did not preclude the
Union's grievance. The Arbitrator specifically rejected the Agency's
argument that this grievance was excluded from the grievance procedure
under section 8.4(E) and concluded that the grievance was arbitrable.
The Arbitrator's award is based on his interpretation of section
8.4(E) of the parties' agreement. The Agency has not alleged or shown
that section 8.4(E) was not negotiated consistent with section 704 of
the CSRA. Even if section 8.4(E) as interpreted by the Arbitrator is
inconsistent with section 7121(c)(5) of the Statute, it is nonetheless
enforceable under section 704 of the CSRA because, as we stated above,
collective bargaining agreement provisions that were negotiated
consistent with section 704 are enforceable in arbitration despite any
inconsistency with the Statute. See Lower Colorado Region, Yuma
Arizona, 41 FLRA at 12-15; Bonneville Power Administration, 22 FLRA at
1005. Therefore, the Agency's argument as to section 7121(c)(5) of the
Statute provides no basis for finding the award deficient.
For the same reason, we reject the arguments of the Agency and the
amici that the award is deficient because the Arbitrator enforced the
provision of the parties' collective bargaining agreement requiring the
Agency to negotiate changes in "working conditions" in a manner that
directly interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute. As we stated above, a provision in a
collective bargaining agreement that was negotiated consistent with
section 704 is enforceable in arbitration despite any inconsistency with
the Statute, including the management rights provisions of section 7106.
See National Federation of Federal Employees, Local 1418 and United
States Information Agency, Voice of America, 37 FLRA 1385, 1402-03
(1990).
A. Positions of the Parties
1. Agency
The Agency contends that the award of backpay is deficient because
the Arbitrator exceeded his authority by awarding backpay to a retired
employee and to the Union. The Agency states that the Union: (1) never
requested backpay on behalf of the retired former incumbent of the WB
Warehouseman position; (2) did not file a grievance on the retired
employee's behalf; and (3) did not present an issue to the Arbitrator
that the former WB employee "was forced to take 'early' retirement
because of the Agency's premature and improper actions relating to
elimination of the WB Warehouseman position(.)" Id. at 36-37. The
Agency asserts that an award may be found deficient as in excess of an
arbitrator's authority when the arbitrator resolves an issue not
submitted, or awards relief to persons who did not file grievances on
their own behalf or who did not have the union file grievances for them.
The Agency argues that the Arbitrator exceeded his authority by
awarding the retired employee backpay where that employee did not file a
grievance and the Union did not file a grievance on his behalf.
The Agency also argues that the Arbitrator's backpay award to the
retired WB Warehouseman and the Union is not authorized by the Back Pay
Act and "is so arbitrary, capricious and unreasonable that it is
tantamount to punitive damages against the Agency, for which there is no
basis in law." Id. at 38. The Agency states that "(i)t is axiomatic
that the Union would not be eligible for an award of back pay under the
Back Pay Act because it obviously is not an 'employee' of an (a)gency of
the Government." Id. at 39. The Agency maintains that "there is no
legal basis upon which the Arbitrator's back pay award to the Union may
be justified." Id. The Agency also argues that the Arbitrator failed to
make the "'but for' finding which is required under the Back Pay Act.
Therefore, the back pay award to (the retired WB Warehouseman) or to the
Union must be reversed as inconsistent with law." Id.
2. Union
The Union argues that the Agency is attempting to relitigate the
merits of the arbitration before the Authority "simply because it
disagrees with the Arbitrator's reasoning and conclusions, or his
interpretation and application of the Agreement." Opposition at 22. The
Union asserts that the Agency has not demonstrated that the award
violates any law or is deficient on any other ground that warrants the
conclusion that it should be overturned.
B. Analysis and Conclusions
1. The Arbitrator Did Not Exceed His Authority
The Agency has failed to establish that the Arbitrator exceeded his
authority by awarding backpay to the retired WB Warehouseman because "no
grievance was filed by (the retired WB employee) or by the Union on his
behalf." Exceptions at 38.
The Agency claims that issues as to the WB employee's retirement and
the assignment of the WB Warehouseman's duties to other GS employees
were not part of the grievance before the Arbitrator. We interpret the
Agency's claim as an assertion that the Arbitrator exceeded his
authority. An arbitrator exceeds his or her authority when, among other
things, the arbitrator resolves an issue not submitted or awards relief
to persons who are not encompassed within the grievance. See U. S.
Department of the Treasury, Internal Revenue Service, Brookhaven Service
Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176,
1188 (1990) (IRS, Brookhaven); and U.S. Department of the Air Force,
Oklahoma City Air Logistics Center, Tinker Air Force Base and American
Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990).
One of the issues stipulated by the parties was: If the Agency's
action violated the General Labor Agreement, "what shall the remedy be?"
Award at 2. Thus, the appropriate remedy for the Agency's violation of
the parties' collective bargaining agreement was directly at issue in
this case. See Award at 32. The Arbitrator fashioned a remedy that
included a former bargaining unit employee because the Arbitrator found
that the retired WB Warehouseman was harmed by the Agency's violation of
the agreement. According to the Arbitrator, the Warehouseman's
employment with the Agency was terminated a direct result of the
Agency's violation of the parties' agreement.
The Arbitrator's remedy in this case was designed to correct the
harmful effect on the former bargaining unit employee of the Agency's
violation of the collective bargaining agreement. Arbitrators have
great latitude in fashioning remedies. U.S. Department of the Treasury,
Internal Revenue Service, Philadelphia Service Center, Philadelphia,
Pennsylvania and National Treasury Employees Union, Chapter 71, 41 FLRA
710, 724 (1991). The Arbitrator's award of a remedy to the retired WB
Warehouseman is directly responsive to the issue stipulated by the
parties. Therefore, the Arbitrator acted within his authority when he
included the retired WB Warehouseman in his award. See U.S. Department
of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary,
Lewisburg, Pennsylvania and American Federation of Government Employees,
Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1295-96 (1991)
(U.S. Penitentiary, Lewisburg, Pennsylvania).
2. The Award of Backpay to the Retired WB Warehouseman Is Consistent
with the Back Pay Act
A backpay award under the Back Pay Act requires determinations that:
(1) an employee was affected by an unjustified or unwarranted personnel
action, (2) the action resulted in a withdrawal or reduction in the pay,
allowances, or differentials of the employee, and (3) the withdrawal or
reduction would not have occurred but for the unjustified action. U.S.
Department of the Air Force, Aerospace Guidance and Metrology Center,
Newark Air Force Base, Ohio and American Federation of Government
Employees, Local 2221, 41 FLRA 550, 557-58 (1991). In
refusal-to-bargain cases, the causal nexus required by the Back Pay Act
is established when the Authority finds that an agency's action that
gave rise to the violation resulted in a withdrawal or reduction in the
pay, allowances or differentials of employees. Department of Justice,
U.S. Immigration and Naturalization Service, U.S. Border Patrol, El
Paso, Texas, 39 FLRA 1325, 1333 (1991) (U.S. Border Patrol, El Paso,
Texas). The Authority will sustain an arbitration award ordering a
backpay remedy where it is clear that the violation resulted in a loss
of some pay, allowances or differentials. See, for example, U.S.
Department of the Treasury, Customs Service, New Orleans, Louisiana and
National Treasury Employees Union, Chapter 168, 38 FLRA 163, 174-76
(1990).
The Arbitrator determined that the Agency violated the parties'
collective bargaining agreement when it eliminated the WB Warehouseman
position and assigned the duties of that position to the GS Supply Clerk
position without bargaining with the Union. The Arbitrator found that
the unit employee assigned to the WB Warehouseman position "was advised
to take 'early' retirement because of the Agency's premature and
improper actions relating to the elimination of the WB Warehouseman
position." Award at 32. The Arbitrator also found that "(f)or all
intents and purposes, (the Agency) eliminated a classification in the
central supply warehouse which (the employee) had relied upon for his
livelihood. The pay of (the employee was not merely reduced . . .; it
was, in fact, eliminated along with the position." Award at 11. The
Arbitrator awarded backpay to the retired WB Warehouseman "for the
period December 4, 1988, to January 17, 1990 or to the date of his
compulsory retirement at age 70, whichever occurs earlier, equal to the
difference in pay received by (the GS employee who was assigned the WB
Warehouseman duties) and the amount (that employee) would have received
as a WB Warehouseman for this period." Id. at 33.
The Agency asserts that because the retired WB employee was not
coerced or forced to retire, he is not entitled to backpay. In support
of its position, the Agency cites, among other cases, Bland v. Veterans
Administration, 31 M.S.P.R. 592 (1986) and Rayfield v. U.S. Department
of Agriculture, 26 M.S.P.R. 243 (1985). In each of those cases, the
Merit Systems Protection Board (MSPB) held that an employee was not
entitled to backpay and other remedies in circumstances where it was
determined that the employee's retirement was voluntary and was not the
result of agency coercion.
We find that the cases cited by the Agency do not demonstrate that
the Arbitrator's award of backpay is contrary to law. In reviewing the
right of a retired employee to backpay, the focus is on the
voluntariness of the employee's retirement. If that choice was freely
made, the employee has no right after that event to further employment
(and rights associated with that employment) by the Federal Government.
See Arneson v. Heckler, 879 F.2d 393, 396 (8th Cir. 1989) (Heckler). To
determine whether a resignation or retirement is voluntary, a court
examines the surrounding circumstances to assess whether the employee
exercised free choice. Tannehill II v. United States, 18 Cl. Ct. 296,
300 (1989); Scharf v. Department of the Air Force, 710 F.2d 1572, 1574
(Fed. Cir. 1983) (Scharf). An action is not voluntary if "'it is
produced by government conduct which is wrongful.'" Heckler, 879 F.2d at
396 (citing Roskos v. United States, 549 F.2d 1386, 1389-90 (Ct. Cl.
1977)). See also Scharf, 710 F.2d at 1574 (resignation will be held
involuntary if obtained by agency misrepresentation or deception);
Tiffany v. Department of Treasury 48 M.S.P.R. 334, 337 (1991) (a
retirement is involuntary if the agency made misleading statements upon
which the employee reasonably relied to his or her detriment).
In this case, the Arbitrator found that the WB employee was never
informed of the Agency's decision not to implement its plan to abolish
his position. The Arbitrator cited the WB employee's testimony that had
been informed of the Agency's decision not to abolish his position, he
would not have retired. See Award at 4. The Arbitrator found that the
employee retired because he believed that his position was being
abolished. The Arbitrator concluded that the WB employee "was advised
(by the Agency) to take 'early' retirement because of the Agency's
premature and improper actions relating to the elimination of the WB
Warehouseman position." Award at 32. The Arbitrator determined,
therefore, that there was a direct causal connection between the WB
employee's retirement and the Agency's improper actions. Having
determined that the employee's retirement resulted from the Agency's
improper actions, the Arbitrator could award backpay to the employee.
See Heckler, 879 F.2d at 396. Therefore, we conclude that the Agency
has not demonstrated that the Arbitrator's award of backpay is improper
on the basis that the employee voluntarily retired.
Moreover, the Arbitrator made the required findings under the Back
Pay Act to support an award of backpay. By finding that the Agency
violated the parties' collective bargaining agreement when it eliminated
the WB position without bargaining with the Union, the Arbitrator found
that the Agency committed an unjustified and unwarranted personnel
action for purposes of the Back Pay Act. Further, the causal nexus
required by the Back Pay Act was established when the Arbitrator found
that the employee was advised to take and took early retirement because
of the Agency's improper actions and that the Agency's action resulted
in the elimination of the WB employee's pay. See, for example, Panama
Canal Commission and International Association of Firefighters, Local
13, 41 FLRA 284, 291-92 (1991). It is proper to order a backpay remedy
where it is clear that the violation resulted in a loss of some pay,
allowances or differentials. U.S. Border Patrol, El Paso, Texas, 39 FLRA
at 1333. Accordingly, we conclude that the Arbitrator's remedy of
backpay for the retired WB Warehouseman is authorized by the Back Pay
Act.
3. The Backpay Award to the Union Is Contrary to the Back Pay Act
As part of his award, the Arbitrator stated: "In the event (the
employee's) compulsory retirement date is earlier than January 17, 1990,
the Union is entitled to receive the difference in pay for the period
from (the employee's) compulsory retirement date to January 17, 1990,
calculated in the manner prescribed above." Award at 33. We find that
the award of backpay to the Union is contrary to the Back Pay Act.
The purpose of the Back Pay Act is to put an employee who was the
victim of an unjustified or unwarranted personnel actions in the same
position as he or she would have been had the erroneous action not
occurred. Wells v. Federal Aviation Administration, 755 F.2d 804 (11th
Cir. 1985). Because the Union is not an "employee," within the meaning
of the Back Pay Act, it is not entitled to an award of backpay.
Therefore, the portion of the award granting backpay to the Union is set
aside.
4. The Arbitrator's Award Is Not Punitive
The Agency states that the backpay award "is so arbitrary, capricious
and unreasonable that it is tantamount to punitive damages against the
Agency, for which there is no basis in law." Exceptions at 38. We
interpret the Agency's argument as a contention that the award is
contrary to law because the Arbitrator issued a "punitive" remedy.
However, the Agency does not define what it means by a "punitive"
remedy. Merely characterizing a remedy as "punitive" does not establish
an independent basis for finding an award deficient. U.S. Penitentiary,
Lewisburg, Pennsylvania, 39 FLRA at 1295-96.
The Summary of Awards is modified to provide:
4. The retired WB employee is awarded backpay from December 4,
1988 to January 17, 1990, or to the date of the retired WB
employee's compulsory retirement at age 70, whichever occurs
earlier in an amount equal to the difference in pay received by
the GS employee assigned to the newly classified GS Supply Clerk
position in the Agency's central supply warehouse and the amount
the GS Supply Clerk would have received as a WB Warehouseman for
this period.
The portion of the award granting the Union backpay is set aside.
(1) The Agency filed a supplemental submission pursuant to sections
2429.5 and 2429.26 of the Authority's regulations noting the decision of
the United States Court of Appeals for the Tenth Circuit in United
States Department of the Interior, Bureau of Reclamation, Rio Grande
Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project v.
FLRA) and presenting additional arguments. We find no circumstances
warranting our consideration of the Agency's unsolicited supplemental
submission in this case. However, we are cognizant of the case cited by
the Agency and, where appropriate, we will address that decision in our
analysis of the Agency's exceptions.
(2) The relevant portions of the parties' General Labor Agreement and
Supplementary Labor Agreement No. 1 are set forth in the Appendix to
this decision.
(3) Section 7103(a)(14)(B) provides:
"conditions of employment" means personnel policies, practices,
and matters, whether established by rule, regulation, or
otherwise, affecting working conditions, except that such term
does not include policies practices, and matters --
(B) relating to the classification of any position(.)
(4) We construe Energy's reference to August 19, 1978 as a reference
to August 19, 1972, which is the date set forth in section 704 of the
CSRA that is relevant in determining the subject matters that are
negotiable under section 704.
Relevant portions of the parties' General Labor Agreement and
Supplementary Labor Agreement No. 1 provide as follows:
SECTION 5.1 -- The rates of pay and working conditions affecting the
employees covered by this agreement shall be determined through the
process of collective bargaining between the Union and the (U.S.
Department of the Interior, Bureau of Reclamation, Great Plains Region
(Region)). . . . .
SECTION 5.2 -- Prior to such negotiations the Region and the Union
shall set up a joint fact-finding committee and appropriate
sub-committees for the purpose of establishing any relevant facts
bearing on the determinations of rates of pay, such as job
classifications, conditions of employment, rates of pay established by
collective bargaining for work of a similar nature performed under
similar circumstances prevailing in the various geographic areas in
which the Region operates.
SECTION 5.5 -- Rates of pay and working conditions in effect at the
time of execution of this Agreement shall continue in effect until
changed or modified in the manner herein provided.
SECTION 8.4 -- The following matters are specifically excluded from
this procedure. Any claimed violation relating to:
E. The classification of any position which does not result in
the reduction-in-grade or pay of an employee.
SECTION 1 -- APPOINTMENT, TENURE AND SECURITY
SECTION 1.1 -- The objective of the Region is to provide permanent
and continuous employment for hourly employees consistent, of course,
with statutory and budgetary limitations and the Region's labor
requirement. Where and whenever possible, these employees will receive
appointments of the type which will afford greatest job security.
SECTION 6 -- CONDITIONS OF EMPLOYMENT
SECTION 6.1 -- The services to be performed by the employees covered
by the basic labor agreement pertain to the operation and maintenance of
an essential public utility engaged in the delivery of power and water.
Therefore, in the interest of maintaining continuity of services
rendered the public, employees may be required to perform work outside
of their classifications, but not to the extent that qualified trainees
and apprentices are held up on their rating as operators and journeymen.
. . . .
SECTION 6.5 -- The Region recognizes the desirability of making work
assignments consistent with the classification normally considered
applicable to work and every reasonable effort will be made to make such
arrangement. (Amended 5/26/89)
42 FLRA 890
42 FLRA NO. 63
U.S. Small Business Administration, Washington, D.C. and AFGE, Local
2106 (Youngblood, Arbitrator), Case No. 0-AR-2106 (Decided October 17,
1991)
7122(a)
7131(d)
ARBITRATION EXCEPTION
EVIDENCE NOT PRESENTED AT THE HEARING
FAIR HEARING
ARBITRATOR BIASED
ARBITRATOR EXCEEDED AUTHORITY
AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT
AWARD BASED ON A NONFACT
OFFICIAL TIME
The Arbitrator found that the grievant's 8-day suspension for
insubordination was for just cause and denied the grievance. The
Arbitrator also found that the Agency had not improperly denied the
grievant official time. The Authority concluded that the Union had not
demonstrated that the award was deficient, and it denied the Union's
exceptions.
As a preliminary matter, the Authority concluded that it would not
consider three exhibits included with the Union's exceptions because two
of the three exhibits were not in existence at the time of the
arbitration hearing and there was no indication in the record that the
third was presented to the Arbitrator. The Authority noted that
arbitration awards are not subject to review on the basis of evidence in
existence at the time of the arbitration, but not presented to the
arbitrator, or evidence that comes into existence after the arbitration.
The Authority rejected the Union's argument that the Arbitrator
failed to conduct a fair hearing. The Authority noted that the Union
had not established that the Arbitrator refused to hear pertinent and
material evidence or otherwise failed to conduct a fair hearing. The
Authority also rejected the argument that the Arbitrator was biased.
In addition, the Authority rejected the Union's contention that the
Arbitrator exceeded his authority because the Union did not contend that
the Arbitrator either resolved an issue not before him or granted relief
to anyone not a party to the grievance. However, the Authority
construed the Union's second exception as encompassing an allegation
that the award failed to draw its essence from the agreement. In this
regard, the Authority concluded that the Union did not establish that
the award failed to draw its essence from the agreement. The Authority
also rejected the argument that the award was based on a nonfact.
The Authority also rejected the Union's assertion that the award was
contrary to section 7131(d) of the Statute. The Authority noted that
section 7131(d) of the Statute does not guarantee or provide official
time. Instead, under section 7131(d), parties may negotiate amounts of
official time that are reasonable, necessary, and in the public
interest.
Case No. 0-AR-2106
U.S SMALL BUSINESS ADMINISTRATION, WASHINGTON, D.C.
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator James T. Youngblood filed by the Union under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Agency
filed an opposition to the Union's exceptions.
The Arbitrator found that the grievant's 8-day suspension for
insubordination was for just cause and denied the grievance. The
Arbitrator also found that the Agency had not improperly denied the
grievant official time.
For the following reasons, we conclude that the Union has not
demonstrated that the award is deficient. Accordingly, the Union's
exceptions will be denied.
The grievant, a writer-editor in the Agency's Office of Public
Communications, is responsible for writing articles concerning the
Agency's functions and accomplishments.
The grievant requested and was denied a byline on an article he
prepared for outside publication. The grievant responded to the denial
of his request in a letter to his second-level supervisor.
Subsequently, citing certain statements made by the grievant in that
letter, the second-level supervisor proposed a 14-day suspension of the
grievant for: (1) "knowingly making false statements which are
slanderous and defamatory about other employees and officials . . .";
and (2) "insubordination . . . ." Awaard at 8.
The grievant was advised that he had 7 calendar days to respond,
orally and/or in writing, to the proposed suspension and that he would
be granted up to 4 hours of official time to prepare his response(s).
The grievant requested a 3-day extension of time and 16 more hours of
official time. The deciding official granted the requested extension of
time but denied the additional official time. The grievant then
requested an additional 2-week extension of time as well as an
additional 40 hours of official time. The deciding official allowed the
grievant 1 additional day and 2 additional hours of official time. The
grievant presented oral and written responses.
In the Agency's decision letter, the deciding official informed the
grievant that the record did not support the charge that the grievant
knowingly made false statements. However, the deciding official
sustained the charge of insubordination. The suspension was reduced to
8 calendar days.
A grievance was filed "alleging that the '(e)mployee was harassed and
improperly suspended from duty and pay. In addition, grievant was
improperly denied official time and forced to use his own time to
respond to the proposed suspension.'" Id. at 9 (quoting grievance). As
remedies, the grievant sought, among other things, recission of the
suspension, backpay with interest, and compensation for the personal
time spent preparing the oral and written responses. When the grievance
was not resolved, it was submitted to arbitration.
The parties did not stipulate the issues to be resolved by the
Arbitrator. The Union presented the following issues:
1. Did the (Agency) carry its burden of demonstrating just and
sufficient cause for (the grievant's) suspension . . . ?
2. Was (the grievant's) . . . memorandum excusable . . . ?
3. Was the suspension enforced on (the grievant) impermissibly
tainted by extraneous factors . . . and inconsistent with the
Master Agreement?
4. Did the (Agency) violate the procedural mandates of the
Master Agreement . . . ?
5. Did the (Agency) deny (the grievant) sufficient official
time to prepare his response to the proposed suspension and
prepare for the arbitration (h)earing . . . ?
6. Are (the grievant and the Union) entitled to attorney's
fees . . . ?
Id. at 9-10.
The Agency framed the issues as follows:
1. Whether the Agency's suspension of the grievant for eight
calendar (five paid days) . . . was for just cause, and if so,
whether the penalty was appropriate.
2. Whether the Agency acted properly when it granted grievant
six hours of official time to work on his response to the proposed
suspension . . . .
Id. at 10.
Before the Arbitrator, the Union argued that the grievant's
suspension violated Article 38, Section 1(b) of the parties' collective
bargaining agreement because the suspension was not issued for just
cause. /1/ The Union asserted that the grievant's letter did not
constitute insubordination and that the definition of insubordination
contained in Agency Standard Operating Procedure 37 35 2 (SOP 2) did not
apply because it had not been negotiated with the Union. /2/ In
addition, the Union asserted that the definition of insubordination in
the SOP conflicted with Article 40 of the parties' agreement, entitled
"Grievance Procedure," which, according to the Union, "encourages
informal discipline." Award at 11. The Union argued that even if the
grievant had been insubordinate, the Agency violated certain procedural
requirements in the parties' agreement and, due to mitigating
circumstances, the 8-day suspension was excessive. Finally, the Union
argued that the Agency violated Article 11, Section 2.2 of the parties'
agreement by denying the grievant's requests for additional official
time. /3/
The Arbitrator upheld the 8-day suspension. The Arbitrator first
examined the disputed statements in the grievant's letter. In the
Arbitrator's view, "(i)t would be very difficult to read the
(grievant's) letter and conclude that (the grievant) meant anything
other than disrespect and insolence towards (the second-level
supervisor)." Award at 11. Accordingly, noting that SOP 2 defined
insubordination as including disrespect and insolence, the Arbitrator
concluded that the grievant "was guilty of insobordination, as defined,
unless such a finding (was) foreclosed for other reasons." Id.
Next, the Arbitrator found that SOP 2 was enforceable. The
Arbitrator noted that SOP 2 predated the effective date of the parties'
agreement and stated that, as such, it was not "subject to the current
contract." Id. at 11. /4/ Moreover, the Arbitrator held that even if
SOP 2 were subject to bargaining under the agreement, the record before
him did not indicate "that the Agency was remiss in giving notice, it
simply indicates the absence of bargaining for whatever reason." Id.
Finally, the Arbitrator found no conflict between SOP 2 and Article 40
of the parties' agreement. According to the Arbitrator, Article 40 had
"absolutely nothing to do with punishment or discipline by the Agency
except that punishment or discipline might cause the filing of a
grievance." Id.
The Arbitrator also rejected the Union's assertions that the
grievant's letter was excusable because, among other things, it was made
in response to unfair accusations by the grievant's supervisor. The
Arbitrator stated that even if the grievant had been unjustly accused of
wrongdoing, his insubordination was subject to discipline. Moreover,
the Arbitrator concluded that the 8-day suspension was appropriate. The
Arbitrator found, in this regard, "no mitigating circumstances." Id. at
13. The Arbitrator also found that the Agency did not violate
procedural requirements set forth in the parties' agreement in proposing
and effecting the suspension.
Finally, the Arbitrator determined that the grievant had not been
improperly denied official time. The Arbitrator found no contractual
requirement that the Agency grant the grievant the official time he
requested. The Arbitrator noted, in addition, that the Agency had
granted the grievant more time than required under an Agency SOP.
As his award, the Arbitrator denied the grievance and the grievant's
request for monetary compensation covering the denial of official time.
The Arbitrator also determined that an award of attorney's fees was
inappropriate in light of his decision and award.
The Agency moves to strike three exhibits included with the Union's
exceptions on the basis that the exhibits were not presented to the
Arbitrator. The Agency notes that two of the three exhibits came into
existence after the arbitration hearing.
Arbitration awards are not subject to review on the basis of evidence
in existence at the time of the arbitration, but not presented to the
arbitrator, or evidence that comes into existence after the arbitration.
See National Weather Service Employees Organization and U.S. Department
of Commerce, National Oceanic and Atmosperic Administration, National
Weather Service, 38 FLRA 369, 383 (1990). Two of the three disputed
exhibits were not in existence at the time of the arbitration hearing
and there is no indication in the record that the third was presented to
the Arbitrator. Therefore, the three exhibits will not be considered
here.
A. Positions of the Parties
The Union contends that the Arbitrator "failed to conduct a fair
hearing." Exceptions at 4. The Union asserts that the Arbitrator
"exhibited bias" by: (1) interrupting the grievant's attorney's
presentation of the grievant's case; (2) "favoring" testimony by Agency
witnesses; and (3) "entertaining . . . Agency . . . overtures to him."
Id. at 4-5. The Union also cites as bias the Arbitrator's refusal to
hear certain Union arguments relating to Agency actions taken after the
grievant's suspension.
The Agency contends that the Union has not demonstrated that the
Arbitrator failed to conduct a fair hearing and, with respect to the
Union's assertion regarding Agency actions taken after the disputed
suspension, asserts that such actions were not encompassed by the
grievance.
B. Analysis and Conclusions
We reject the Union's argument that the Arbitrator failed to conduct
a fair hearing. The Authority will find an arbitration award deficient
if it is established that the arbitrator failed to conduct a fair
hearing by, for example, refusing to hear pertinent and material
evidence. See, for example, U.S. Department of Justice, Federal Bureau
of Prisons, Federal Prison Camp, Allenwood, Pennsylvania and American
Federation of Government Employees, Council of Prison Locals, Local 148,
35 FLRA 827, 829 (1990). However, an arbitrator has considerable
latitutde in the conduct of a hearing, and the fact that an arbitrator
conducted a hearing in a manner that a party finds objectionable does
not, standing alone, provide a basis for finding an award deficient.
See, for example, U.S. Department of Transportation, Federal Aviation
Administration, Springfield, Illinois and National Air Traffic
Controllers Association, 39 FLRA 1036, 1042 (1991).
The Union has not established that the Arbitrator refused to hear
pertinent and material evidence or otherwise failed to conduct a fair
hearing. In particular, there is nothing in the record before us to
indicate that the Arbitrator acted improperly so as to deny the Union an
opportunity adequately to present its case or prevent it from submitting
pertinent and material evidence. Rather, the Union simply disagrees
with the manner in which the Arbitrator conducted the hearing. Such
disagreement provides no basis for finding the award deficient. See,
for example, Department of Health and Human Services, Social Security
Administration, Birmingham, Alabama and American Federation of
Government Employees, Local 2206, 35 FLRA 830, 834 (1990).
Similarly, the Union has not demonstrated that the Arbitrator was
biased. To demonstrate arbitral bias, it must be shown, for example,
that an award was procured b improper means, that there was partiality
or corruption on the part of the arbitrator, or that the arbitrator
engaged in misconduct that prejudiced the rights of a party. See, for
example, Antilles Consolidated Education Association, OEA/NEA and U.S.
Department of Defense, Antilles Consolidated School System, 38 FLRA 341,
352 (1990). The Union has not shown that the award is deficient under
any of these tests. Rather, the Union's contentions constitute mere
disagreement with the Arbitrator's findings and conclusions and provide
no basis for finding the award deficient. See U.S. Department of Health
and Human Services, Social Security Administration, Office of Hearings
and Appeals and American Federation of Government Employees, Local 3615,
39 FLRA 407, 415 (1991).
With regard to the Union's contention that the Arbitrator improperly
excluded testimon concerning Agency actions subsequent to the
suspension, there is no indication that the issues before the Arbitrator
encompassed such actions. The award indicates that the parties did not
stipulate the issues to be resolved. Moreover, neither party's
statement of the issues to be addressed encompassed Agency actions
subsequent to the suspension. Accordingly, the Union has not
demonstrated that the award is deficient because the Arbitrator excluded
testimony regarding such actions.
A. Positions of the Parties
The Union argues that the Arbitrator exceeded his authority when he
relied on SOP 2 in sustaining the grievant's suspension. According to
the Union, the Arbitrator could not rely on that SOP because it was not
bargained with the Union.
The Union also contends that the Arbitrator exceeded his authority by
failing to grant the grievant official time to prepare his response to
the proposed suspension and to prepare for the arbitration hearing. The
Union asserts that the parties' agreement provides whatever official
time is authorized by section 7131(d) of the Statute, including official
time for employees. According to the Union, the Arbitrator's failure to
find that the agreement required the Agency to grant the grievant's
requests for official time "evidences a manifest disregard of the
agreement." Exceptions at 17 (footnote omitted).
The Agency maintains that the Union has failed to establish that the
award does not draw its essence from the collective bargaining
agreement.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority when, among other things,
the arbitrator resolves an issue not submitted to arbitration, or awards
relief to persons who are not encompassed within the grievance.
American Federation of Government Employees, Local 3258 and U.S.
Department of Housing and Urban Development, Boston, Massachusetts, 38
FLRA 600, 606 (1990). As the Union does not contend that the Arbitrator
either resolved an issue not before him or granted relief to anyone not
a party to the grievance, we reject the Union's contention that the
Arbitrator exceeded his authority.
We will, however, construe the Union's second exception as
encompassing an allegation that the award fails to draw its essence from
the collective bargaining agreement. To demonstrate that an award is
deficient on this ground, it must be shown that the award: (1) cannot
in any rational way be derived from the agreement; (2) is so unfounded
in reason and fact, and so unconnected with the wording and the purpose
of the agreement as to manifest an infidelity to the obligation of the
arbitrator; (3) evidences a manifest disregard for the agreement; or
(4) does not represent a plausible interpretation of the agreement.
See, for example, U.S. Department of Commerce, Patent and Trademark
Office and Patent Office Professional Association, 41 FLRA 1042, 1048
(1991).
The Union has not demonstrated that the award is deficient under any
of these criteria. The Arbitrator concluded that as SOP 2 was issued
prior to the effective date of the parties' collective bargaining
agreement, it was not subject to the agreement. Further, he found that
the SOP did not conflict with the agreement. With respect to official
time, he found that the agreement did not authorize the official time
sought by the grievant. The Union has not shown that the Arbitrator's
conclusions concerning SOP 2 or his interpretation of the portions of
the parties' agreement regarding official time are irrational,
implausible, or unconnected to the wording and purpose of the agreement.
As such, the Union has not established that the award fails to draw its
essence from the agreement.
A. Positions of the Parties
The Union contends that the award is deficient because the Arbitrator
made two errors which "represent gross mistakes of fact but for which a
different result would have been reached." Exceptions at 17-18. The
Union identifies the two mistakes of fact as: (1) the Arbitrator's
finding that SOP 2 was not subject to bargaining under the parties'
agreement; and (2) the Arbitrator's conclusion that the parties'
agreement does not encompass official time for employees.
The Agency contends that the Union has not established that the award
is based on nonfacts. The Agency maintains that the facts identified by
the Union "are actually conclusions as to what the contact requires."
Opposition at 6.
B. Analysis and Conclusions
We will find an award deficient under the Statute because it is based
on a nonfact if the central fact underlying the award is clearly
erroneous, but for which a different result would have been reached by
the arbitrator. U.S. Department of Defense Dependents Schools,
Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861,
867 (1990). The Union has not established that the award in this case
is based on a nonfact.
The Arbitrator found that there was no obligation under the
collective bargaining agreement to negotiate over SOP 2 because it
predated the agreement. The Union does not contend that this finding is
erroneous. Instead, the Union disputes the Arbitrator's finding that
bargaining over the SOP was not required under the agreement. As such,
the Union's argument addresses the Arbitrator's conclusion, not a fact.
Similarly, the Arbitrator's finding that the agreement does not
authorize official time for the grievant does not constitue a fact.
This finding is based on the Arbitrator's interpretation and application
of the agreement. As the disputed conclusions by the Arbitrator are not
facts, the Union has failed to demonstrate that the award is deficient
because it is based on nonfacts. See U.S. Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland and
American Federation of Government Employees, Local 1923, 39 FLRA 430,
435-36 (1991).
A. Positions of the Parties
The Union contends that "(t)he Arbitrator's denial of official time
to the grievant to pursue his case denies the Union and the grievant
equal protection of the law, since this violates (s)ection 7131(d)(2) of
the Statute and gives (the Agency) an unfair advantage with respect to
the Union when 'binding arbitration' is being pursued." Exceptions at 22
(emphasis in original). The Union further argues that:
it is inherently unconstitutional to give one party, the Agency,
unlimited official time to propose and prosecute disciplinary and
adverse actions against employees, and then to deny unit employees
official time to adequately defend against the charges and prepare
for any hearings that may result. . . .
Id. at 23 (emphasis in original).
The Union also argues that the Arbitrator's reliance on SOP 2
conflicts with the Agency's obligation under the Statute to bargain in
good faith with the Union. In the Union's view, the Arbitrators
reliance on SOP 2 "constitutes or encourages unfair labor practices . .
. in violation of (s)ection 7116(a)(1) and (5) of the Statute, since the
Arbitrator's Award attempts to excuse the Agency for failing or refusing
to consult or negotiate in good faith with the Union as required by the
Statute." Id. at 25. In addition, the Union argues that the
Arbitrator's refusal to grant the grievant official time violates
various employee rights, including those contained in section 7102 of
the Statute.
The Agency asserts that the Union incorrectly construes section
7131(d) of the Statute as authorizing official time to carry out all
representational activities. According to the Agency, section 7131(d)
"allows the parties to negotiate amounts of official time that are
reasonable, necessary, and in the public interest." Opposition at 7.
The Agency maintains that the parties negotiated an agreement concerning
official time and the Arbitrator applied it.
B. Analysis and Conclusions
We reject the Union's assertion that the award is contrary to the
Statute. Section 7131(d) of the Statute does not guarantee or provide
official time. Instead, under section 7131(d), parties may negotiate
amounts of official time that are reasonable, necessary, and in the
public interest. See U.S. Department of the Navy, Naval Mine Warefare
Engineering Activity, Yorktown, Virginia and National Association of
Government Employees, Local R4-97, 39 FLRA 1207, 1213 (1991).
In this case, the parties negotiated an agreement encompassing
official time. The Arbitrator, based on his interpretation and
application of the agreement, concluded that the Agency did not violate
the agreement by denying the grievant's requests for more official time.
The Union fails to establish that the Arbitrator's award enforcing his
interpretation of the agreement is contrary to section 7131(d) of the
Statute. Accordingly, this Union exception provides no basis for
finding the award deficient.
The Union's contention that the award conflicts with the U.S.
Constitution is based on its arguement that the award conflicts with
section 7131(d) of the Statute. In view of our finding that the Union
has not demonstrated that the award conflicts with section 7131(d), we
will not address further the Union's contention that the award is
unconstitutional.
The Union's exceptions are denied.
(1) Article 38, Section 1(b) provides, in pertinent part:
No bargaining unit employee will be the subject of a disciplinary
action except for just and sufficient cause. Disciplinary action
shall be appropriate to the offense. . . .
Exhibit 3 to Exceptions at 70.
(2) SOP 2 defines insubordination as "Deliberate refusal to comply
with authorized instructions issued by the supervisor; disrespect;
insolence; and like behavior." Exhibit 9 to Exceptions at 18.
(3) Article 11, Section 2.2 provides as follow:
Representational Activities. The Employer agrees that Union
representatives shall be authorized such official time as is
reasonable and necessary for Union representation functions. Such
activities shall include, but not be limited to:
(2) preparing grievances and appeals of unit
employees(.) Exhibit 3 to Exceptions at 13 (emphasis in original).
(4) The Arbitrator referred also to SOP 35 37 1 (SOP 1), which,
according to the Arbitrator, also became effective prior to the
effective date of the parties' agreement. Although the Arbitrator
referred to an "SOP on discipline" in connection with official time,
Award at 16, it is unclear whether that reference encompassed SOP 1.
Moreover, the record before us does not disclose the content of SOP 1 or
how it related to the grievance. Accordingly, in all instances where
the Arbitrator or the parties refer to the SOPs, we will refer to SOP 2.
42 FLRA 886
42 FLRA NO. 62
United States Air Force Base, Oklahoma City Air Logistics Center,
Tinker Air Force Base, Oklahoma and AFGE, Local 916 (Cipolla,
Arbitrator), Case No. 0-AR-210 (Decided October 17, 1991)
7122(a)
5 C.F.R. Section 335.102(f)(1) and FPM chapter 335, subchapter 1-5a
ARBITRATION EXCEPTION
TEMPORARY PROMOTIONS
AWARD MODIFIED
GOVERNMENT-WIDE REGULATIONS
The grievant, a WG-8 employee, filed a grievance claiming that he
should have been promoted to the WG-9 level. When the grievance was not
resolved, it was submitted to arbitration. The Arbitrator directed the
Agency to provide the grievant a retroactive temporary promotion, with
backpay, for a period in which the grievant performed work of a
higher-graded position.
The Authority concluded that, insofar as the award encompassed a
retroactive temporary promotion for more than 2 years, it was contrary
to 5 C.F.R. Section 335.102(f)(1) and FPM chapter 335, subchapter 1-5a
which places an effective limit of 2 years on the duration of a
temporary promotion. However, the Authority noted that these regulatory
provisions permit agencies to temporarily promote an employee for more
than 2 years with the formal approval of the Office of Personnel
Management (OPM). The Authority modified the award to comply with those
regulations, and denied the Agency's other exceptions.
Case No. 0-AR-2100
UNITED STATES AIR FORCE, OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER
AIR FORCE BASE, OKLAHOMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Thomas A. Cipolla. The Arbitrator directed the Agency to
provide the grievant a retroactive temporary promotion, with backpay,
for a period in which the grievant performed work of a higher-graded
position.
The Agency filed exceptions to the award under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union did not
file an opposition to the Agency's exceptions.
For the following reasons, we conclude that, insofar as the award
encompasses a retroactive temporary promotion for more than 2 years, it
is contrary to Government-wide regulations. We will modify the award to
comply with those regulations. We will deny the Agency's other
exceptions.
The grievant, a WG-8 employee, filed a grievance claiming that he
should have been promoted to the WG-9 level. When the grievance was not
resolved, it was submitted to arbitration. As relevant here, the
Arbitrator framed the issue as follows: "(H)as the Agency violated the
Master Labor Agreement in denying the Grievant's promotion from a WG-8
to a WG-9?" Award at 5.
The Arbitrator concluded that the grievant was not wrongfully denied
a permanent, competitive promotion to WG-9. The Arbitrator found,
however, that the grievant "was temporarily assigned the grade(-)
controlling duties of a WG-9" employee from February 1987 to February
1990. Id. at 25. The Arbitrator concluded that the Agency's failure to
temporarily promote the grievant violated the parties' collective
bargaining agreement and resulted in an unjustified or unwarranted
personnel action. The Arbitrator stated that "(b)ut for the Agency's
failure to temporarily promote and pay the (g)rievant, the (g)rievant
would have been . . . paid a WG-9 level salary." Id. The Arbitrator
sustained the grievance, in part, and ordered the Agency to make the
grievant whole for the loss of WG-9 pay from March 29, 1987 to February
2, 1990.
A. Position of the Agency
The Agency "concedes" that the grievant "is entitled to a retroactive
noncompetitive temporary promotion" in this case. Exceptions at 4. The
Agency argues, however, that, insofar as the Arbitrator ordered a
temporary promotion in excess of 120 days, the award conflicts with
Federal Personnel Manual (FPM) chapter 335, subchapter 1-5a(1), which
requires agencies to use competitive procedures to effect temporary
promotions over 120 days. The Agency asserts that because it did not
use such procedures, the grievant may not be temporarily promoted for
more than 120 days.
As its second exception, the Agency argues that, if the Authority
agrees that competitive procedures were both required and used to effect
the grievant's temporary promotion, the award is contrary to, among
other things, the Back Pay Act and the Agency's right to make selections
for appointments under section 7106 of the Statute.
B. Analysis and Conclusions
FPM chapter 335, subchapter 1-5a(1) provides, in pertinent part:
Competitive inservice procedures must be used for temporary
promotions over 120 days in higher graded positions (prior service
under all details to higher graded positions or temporary
promotions is included whether competitive or noncompetitive
during the preceding 12 months).
It is clear and undisputed that the Agency did not select the
grievant for a temporary promotion pursuant to competitive procedures.
Indeed, it was the Agency's failure to promote the grievant that
resulted in the grievance in this case. However, it is also clear and
undisputed that the Agency assigned the grievant the grade-controlling
duties of a higher-graded position. Based on such assignment, the
Arbitrator concluded that the Agency violated the parties' collective
bargaining agreement by failing to temporarily promote the grievant.
The Agency argues, in effect, that its failure to act in accordance
with the FPM excuses the actions it took in violation of the parties'
agreement. We reject this argument as unfounded. Where parties to a
collective bargaining agreement provide for the temporary promotion of
employees assigned to perform the work of higher-graded positions, an
arbitrator may order temporary promotions, with backpay, in accordance
with that agreement. See U.S. Department of the Interior, Bureau of
Reclamation, Lower Colorado Dams Project Office, Boulder City, Nevada
and American Federation of Government Employees, Local No. 1978, 40 FLRA
1169, 1174 (1991). Consequently, and without addressing whether the
Agency violated the FPM provision in this case, we conclude that the
Agency's exception regarding the FPM provides no basis for finding the
award deficient. The Agency's second exception is based solely on its
argument regarding the FPM provision. As such, it is unnecessary to
address the second exception further.
A. Position of the Agency
The Agency contends that, to the extent the Arbitrator ordered the
Agency to temporarily promote the grievant for a period of time in
excess of 2 years, the award is contary to 5 C.F.R. Section 335.102(f)(
1) and FPM chapter 335, subchapter 1-5a(1).
B. Analysis and Conclusions
An award of a temporary promotion must comply with civil service law
and regulation. U.S. Department of the Air Force, Oklahoma City Air
Logistics Center, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, 42 FLRA No. 45, slip op.
at 5 (1991) (Tinker AFB). In this regard, 5 C.F.R. Section 335.102(f)(
1) and FPM chapter 335, subchapter 1-5a "place an effective limit of 2
years on the duration of a temporary promotion." Id. However, these
regulatory provisions permit agencies to temporarily promote an employee
for more than 2 years with the formal approval of the Office of
Personnel Management (OPM). Id.
The Arbitrator directed the Agency to provide the grievant a
retroactive temporary promotion for a period of time in excess of 2
years. Therefore, we will modify the award to order the Agency to grant
the grievant a temporary promotion, with backpay, for the 2-year period
beginning on March 29, 1989, and to request authorization from OPM to
grant the grievant a temporary promotion, with backpay, for the
remaining period of time encompassed by the award.
The Agency's first and second exceptions are denied. The
Arbitrator's award is modified to read as follows:
The grievance is sustained in part. The grievant shall be made
whole for his loss of WG-9 pay for a 2-year period beginning on
March 29, 1987. The Agency shall request the Office of Personnel
Management to formally authorize the Agency to grant the grievant
a retroactive temporary promotion, with backpay, from the end of
the 2-year period to February 2, 1990.
42 FLRA 877
42 FLRA NO. 61
Dept. of Defense, National Guard Bureau, Alexandria, VA and Illinois
Army National Guard, Springfield, Illinois and NFFE 1655, Case No.
5-CA-00253 (Decided October 15, 1991)
7116(a)(1) and (5)
UNFAIR LABOR PRACTICE
REFUSAL TO BARGAIN
ALLEGATION OF NONNEGOTIABILITY
UNIFORM ALLOWANCE
5 U.S.C. 5901
NATIONAL DEFENSE AUTHORIZATION ACT FOR FY 1990 and 1991
The complaint alleged that the Illinois National Guard violated
7116(a)(1) and (5) by refusing to bargain over proposals concerning the
subject of uniform allowance. The complaint further alleged that the
National Guard Bureau violated 7116(a)(1) by directing the Illinois
National Guard not to bargain with the Union over the subject of uniform
allowances.
The Authority found that the refusal to bargain was based on the
contention that the proposal was nonnegotiable under existing law and
regulation. There was no allegation of unilateral change in conditions
of employment. The Authority concluded that as the case involves only
Respondent's allegation of nonnegotiability, the case must be processed
under the negotiability procedures of the Authority's rules.
Accordingly, the complaint was dismissed.
Case No. 5-CA-00253
U.S. DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, ALEXANDRIA,
VIRGINIA AND ILLINOIS ARMY NATIONAL GUARD, SPRINGFIELD, ILLINOIS
(Respondents)
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1655
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armedariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists. The General Counsel and the Respondent
filed briefs with the Authority.
The complaint alleges that the Respondent Illinois Army National
Guard (Illinois Guard) violated section 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute (the Statute) by
refusing to bargain with the Union over proposals concerning the subject
of uniform allowance. The complaint further alleges that the Respondent
National Guard Bureau (National Guard) violated section 7116(a)(1) of
the Statute by directing the Illinois Guard not to bargain with the
Union over the subject of uniform allowance. For the reasons stated
below, we find that the complaint must be dismissed.
The Union is the exclusive representative of a unit of employees of
Respondent Illinois Guard. Respondent National Guard advises Respondent
Illinois Guard "on matters such as labor relations and such advice is
regularly followed." Stipulation at 2.
Respondent Illinois Guard requires unit employees to wear a uniform
during duty hours. Unit employees who are enlisted soldiers receive
uniforms free of charge. Unit employees who are officers receive a
one-time allotment of $400 to purchase uniforms. Approximately 8 to 10
unit employees are officers.
Prior to January 1, 1990, employees of the Federal Government who
were required to wear uniforms such as those worn by the unit employees
in this case were authorized, pursuant to 5 U.S.C. Section 5901, an
allowance, not to exceed $125 per year, for the purchase of uniforms.
/1/ Effective January 1, 1990, the National Defense Authorization Act
for Fiscal Years 1990 and 1991 (NDAA), Public Law 101-189 (November 29,
1989), amended title 10 of the United States Code by adding section
1593, which provides for certain uniform allowances for civilian
employees of the Department of Defense. /2/
On December 12, 1989, the Union requested Respondent Illinois Guard
to negotiate over uniform allowances and submitted the following
proposal:
1. This article will affect all civilian officers and warrant
officers who presently purchase their own uniforms, and are
members of the bargaining unit. The Employer will provide the
following:
2. Each civilian employee who is required . . . to wear a
prescribed uniform in the performance of official duties will be
paid an allowance.
3. In lieu of providing an allowance, each civilian employee
will be provided all uniform( )s required in the performance of
official duties.
4. The amount of allowance paid, and the cost of uniforms
provided to civilian employee will not exceed four-hundred dollars
($400.00) per year.
5. This article will take effect on January 1, 1990.
Exhibit 2 to Stipulation.
By letter dated December 2, 1989, Respondent Illinois Guard informed
the Union that it needed to consult with Respondent National Guard
before responding to the Union's request. On December 10, 1989,
Respondent National Guard advised Respondent Illinois Guard that "the
entire subject of the increase in the maximum allowance for uniforms was
non-negotiable." Stipulation at 5, para. 15. On January 2, 1990,
Respondent Illinois Guard advised the Union, by telephone, that it
"would not negotiate with the Union" over provisions in the NDAA based
on Respondent National Guard's advice and, on January 3, Respondent
Illinois Guard confirmed, in writing, that Respondent National Guard
"has advised . . . (that) the provisions of the (NDAA) are
non-negotiable." Exhibit 4 to Stipulation.
By letter dated January 15, 1990, the Union again requested
negotiations and submitted the following revised proposal:
1. This article will affect all civilian officers and warrant
officers who presently purchase their own uniforms, and are
members of the bargaining unit. The Employer will provide the
following:
2. Each civilian employee who is required . . . to wear a
prescribed uniform in the performance of official duties will be
paid an allowance as described below or will be provided with the
prescribed uniform.
3. The amount of allowance paid, if applicable, will be four
hundred dollars ($400) per year.
4. This article will take effect on January 1, 1990.
Exhibit 5 to Stipulation. The Union stated that the "substantive
change" in the new proposal was the requirement that the "allowance be
$400.00 since this amount is within the Employer's discretion . . . ."
Id. The Union requested a written allegation of nonnegotiability if
Respondent Illinois Guard was "still of the belief that our proposal is
not negotiable(.)" Id. at 2.
By letter dated January 24, 1990, Respondent Illinois Guard responded
that "under existing law (the Union's) proposal is not bargainable."
Exhibit 6 to Stipulation. Subsequently, the Union filed the unfair
labor practice charge which led to the complaint in this case. /3/
A. General Counsel
The General Counsel argues, based on Internal Revenue Service, 29
FLRA 162 (1987) (IRS), that Respondent Illinois Guard violated section
7116(a)(1) and (5) of the Statute by refusing to bargain over the issue
of uniform allowance. The General Counsel asserts that "(t)here is no
evidence here of any waiver or of any contractual provisions dealing
with the issue of uniform allowances." General Counsel's Brief at 7.
Therefore, the General Counsel argues that Respondent Illinois Guard was
obligated to bargain "over any negotiable proposals concerning uniform
allowances." Id. The General Counsel contends, in this regard, that the
Respondents' position was "that the entire subject matter was
non-negotiable, not that the specific proposals submitted by the Union
were non-negotiable." Id. at 8 (emphasis in original; citations
omitted). According to the General Counsel:
. . . 10 U.S.C. Section 1593 grants the agency discretion to
pay employees a uniform allowance or provide them with uniforms.
Thus, to the extent that the Respondents have discretion to pay
allowances or provide uniforms, they must bargain over these
issues. Once again, whether or not the specific proposals offered
by the Union were negotiable is irrelevant. Regardless of whether
or not the Union's proposals fell within the Respondents' area of
discretion, the Respondents' flat refusal to bargain over anything
related to uniforms or uniform allowances precluded good faith
bargaining over the subject.
Id. at 12.
Finally, the General Counsel contends that Respondent National Guard
violated section 7116(a)(1) of the Statute when it directed Respondent
Illinois Guard to unlawfully refuse to bargain with the Union, and
thereby interfered with the bargaining relationship between the Union
and Respondent Illinois Guard.
B. Respondents
The Respondents contend that "the (U)nion proposal is not bargainable
since the employer has no authority nor discretion under (5 U.S.C.
Section) 5901 to pay a civilian clothing allowance for wearing the
military uniform." Respondents' Brief at 1. According to the
Respondents, the disputed allegation of nonnegotiability was made in
good faith and was not inconsistent with FLRA precedent or judicial
decisions.
In Decision on Petition for Amendment of Rules, 23 FLRA 405, 407-08
(1986), the Authority stated the following with respect to unfair labor
practice complaints involving allegations of nonnegotiability:
Sections 2423.5 and 2424.5 of the Authority's Rules and
Regulations provide, in pertinent part, that where a labor
organization files an unfair labor practice charge which involves
a negotiability issue and also files a petition for review of the
same negotiability issue, it is required to choose which procedure
to pursue first. Cases which involve only an agency's allegation
that the duty to bargain in good faith does not extend to the
matter proposed to be bargained, and which do not involve alleged
unilateral changes in conditions of employment, must be processed
exclusively under the negotiability procedures in part 2424 of the
Authority's Rules and Regulations. . . .
Unfair labor practice remedies are available in appropriate
refusal to bargain situations, such as (1) where the refusal to
negotiate is accompanied by unilateral changes in conditions of
employment; and (2) where an agency refuses to bargain over a
proposal substantially identical to one which the Authority has
previously determined to be negotiable under the Statute.
(Footnote and citations omitted.) The Authority's construction of the
Statute and its regulations was affirmed by the U.S. Court of Appeals
for the District of Columbia Circuit. National Labor Relations Board
Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987). See also Montana Air
Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990) (Montana ACT)
(court concluded, without addressing the validity of sections 2423.5 and
2424.5 of the Authority's regulations, that agency head's disapproval of
contractual provision under section 7114(c) of the Statute constituted a
contemplated change in conditions of employment within the meaning of
those regulations).
There is no argument by the General Counsel that this case involves a
contemplated change in conditions of employment. Similarly, there is no
allegation that the Respondents refused to bargain over proposals that
are substantially similar to proposals previous held negotiable by the
Authority. In fact, as noted previously, the General Counsel argues
that the question of the negotiability of the Union's proposals is
irrelevant. Instead, according to the General Counsel, this case is
controlled by the Authority's decision in IRS because "the Respondents'
flat refusal to bargain over anything related to uniforms or uniform
allowances precluded good faith bargaining over the subject." General
Counsel's Brief at 12.
We reject the General Counsel's contention. The record before us
establishes only that the Respondents refused to bargain over the
Union's proposals because, in the Respondents' view, the proposals were
nonnegotiable. We note, in this regard, that Respondent National Guard
advised Respondent Illinois Guard that "the entire subject" of the
NDAA's increase in uniform allowances was "non-negotiable." Stipulation
at 5, para. 15. Respondent National Guard's argument could be
interpreted as encompassing an allegation that, apart from issues
concerning the consistency of the Union's proposals with law, it was not
obligated to bargain over the proposals. However, Respondent Illinois
Guard's responses to the Union's proposals confirm that its refusal to
bargain over the proposal was based solely on the alleged
nonnegotiability of the proposals. In its response to the first Union
proposal, Respondent Illinois Guard stated that, according to Respondent
National Guard, "the provisions of (the NDAA) are non-negotiable."
Exhibit 4 to Stipulation. In its response to the second proposal,
Respondent Illinois Guard clarified its position:
The intent of your proposal is very clear in that you are
asking the agency to provide $400.00 for each civilian officer and
warrant officer who are members of the bargaining unit and must
purchase their own uniforms. The prescribed uniform would be worn
in the performance of their official duties.
(It) is the agency's position that under existing law your
proposal is not bargainable.
Exhibit 6 to Stipulation.
It is clear from Respondent Illinois Guard's response that the
Respondents took the position that the Union's proposals were
nonnegotiable because they believed that the proposals were inconsistent
with law. Moreover, there is no evidence or argument that the
Respondents' position was based on anything other than the reasons given
in the responses. That is, there is no argument that Respondent
Illinois Guard asserted that, apart from questions of negotiability, it
had no obligation to bargain over the Union's proposals because, for
example, the Union had no right to initiate mid-term bargaining or the
Union had waived such right.
We find that, based on advice from Respondent National Guard,
Respondent Illinois Guard declared nonnegotiable the Union's proposals
concerning uniform allowances and that Respondent Illinois Guard's
refusal to bargain over the proposals was based on that allegation. As
such, this case is clearly distinguisable from IRS. In IRS, the agency
"did not raise any negotiability arguments as a basis for its refusal to
bargain on the Union's proposals." IRS, 29 FLRA at 168 n.5. Instead, in
IRS, the agency refused to bargain over the union's proposals on the
ground that management had no obligation to bargain over union-initiated
mid-term proposals.
Based on the foregoing, we conclude that this case involves only the
Respondents' allegation that the Union's proposals are nonnegotiable.
As there is no contention that the case involves an actual or
contemplated change in conditions of employment or a refusal to bargain
over a proposal substantially similar to one previously held negotiable
by the Authority, this case must be processed exclusively under the
negotiability procedure in part 2424 of the Authority's Rules and
Regulations. Accordingly, we will dismiss the complaint. In so doing,
we express no view on whether the Union's proposals are negotiable.
The complaint is dismissed.
(1) 5 U.S.C. Section 5901 provides, in pertinent part:
Section 5901. Uniform allowances
There is authorized to be appropriated annually to each agency
of the Government of the United States, . . . an amount not to
exceed $125 multiplied by the number of employees of the agency
who are required by regulation or statute to wear a prescribed
uniform in the performance of official duties and who are not
being furnished with the uniform. The head of the agency
concerned, out of funds made available by the appropriation, shall
--
(1) furnish to each of these employees a uniform at a cost not
to exceed $125 a year; or
(2) pay to each of these employees an allowance for a uniform
not to exceed $125 a year.
(2) 10 U.S.C. Section 1593 provides, in pertinent part:
Section 1593. Uniform allowance: civilian employees
(a) Allowance Authorized. -- (1) The Secretary of Defense may
pay an allowance to each civilian employee of the Department of
Defense who is required . . . to wear a prescribed uniform in the
performance of official duties.
(2) In lieu providing an allowance . . . the Secretary may
provide a uniform to a civilian employee . . . .
(b) Amount of Allowance. -- Notwithstanding section 5901(a) of
title 5, the amount of an allowance paid, and the cost of uniforms
provided . . . may not exceed $400 per year.
(3) The Union also filed a negotiability appeal under section 2424.1
of the Authority's Rules and Regulations and, pursuant to section 2424.5
of the regulations, elected to pursue the unfair labor practice charge
first. Accordingly, the negotiability appeal has been held in abeyance
pending disposition of the complaint in this case.
42 FLRA 867
42 FLRA NO. 60
Naval Resale and Services Support Office, Field Support Office
Jacksonville, Jacksonville, Florida and NAGE, Local R5-82, Case No.
4-CA-10526 (Decided October 11, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to furnish the names and home
addresses of bargaining unit employees represented by the Union.
Case No. 4-CA-10526
NAVAL RESALE AND SERVICES SUPPORT OFFICE, FIELD SUPPORT OFFICE
JACKSONVILLE, JACKSONVILLE, FLORIDA
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-82
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding finding that the Respondent violated section
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to furnish the
Charging Party with the names and home addresses of bargaining unit
employees represented by the Chargin Party. The Judge grated the
General Counsel's motion for summary judgment and recommended that the
Respondent be ordered to take appropriate remedial action. The
Respondent filed exceptions to the Judge's decision. The General
Counsel did not file an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge and find that no prejudicial error was committed. The rulings are
hereby affirmed. Upon consideration of the Judge's decision, the
exceptions, and the entire record, we adopt the Judge's findings,
conclusions and recommended Order for the reasons fully set forth in U.
S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement
denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Aug. 13,
1991) (FLRA v. Portsmouth Naval Shipyard). /*/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Naval Resale and Services Support Office, Field Support
Office Jacksonville, Jacksonville, Florida, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National
Association of Government Employees, Local R5-82, the exclusive
representative of certain of its employees, the names and home
addresses of all employees in the bargaining unit it represents.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Furnish the National Association of Government Employees,
Local R5-82, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Association of Government Employees,
Local R5-82, are located, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Commanding
Officer and shall be posted in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted, an shall be maintained for 60 consecutive days
thereafter. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Atlanta Region, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order as to what steps have been taken to comply.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R5-82, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Association of Government Employees,
Local R5-82, the exclusive representative of certain of our employees,
the names and home addresses of all employees in the bargaining unit it
represents.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Atlanta Regional Office, Federal Labor Relations Authority,
whose address is: 1371 Peachtree Street, NE., Suite 122, Atlanta, GA
30367, and whose telephone number is: (404) 347-2324.
Case No. 4-CA-10526
NAVY RESALE AND SERVICES, SUPPORT OFFICE, FIELD SUPPORT OFFICE
JACKSONVILLE, JACKSONVILLE, FLORIDA
Respondent
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-82
Charging Party
Richard R. Giacolone For the Respondent
Linda J. Norwood, Esquire For the General Counsel
Before: BURTON S. STERNBURG, Administrative Law Judge
The unfair labor practice complaint, which issued on June 13, 1991,
alleged that the Navy Resale and Services Support Office, Field Support
Office Jacksonville, Jacksonville, Florida (hereinafter called
Respondent), violated Sections 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. Section 7101, et
seq., (hereinafter called the Statute), by refusing to furnish the
National Association of Government Employees, Local R5-82, (hereinafter
called the Union), the exclusive representative of certain of
Respondent's employees, the names and home addresses of bargaining unit
employees represented by the Union.
Respondent's Answer to the Complaint, which was duly served on July
2, 1991, admitted as to the Complaint, (a) the jurisdictional
allegation; (b) that on March 27, 1991 the Union, as exclusive
representative of an appropriate unit of Respondent's employees
requested Respondent to furnish it with the names and home addresses of
the bargaining unit employees represented by the Union; (c) that on
April 12, 1991 Respondent refused to furnish the requested information
to the Union; (d) that the names and home addresses of the unit
employees are normally maintained by the Respondent in the regular
course of business; (e) that the names and home addresses are
reasonably available; and (f) that the requested names and home
addresses do not constitute guidance, advice, counsel, or training
provided for management officials or supervisors, relating to collective
bargaining.
Respondent's Answer did deny (a) that the requested names and home
addresses were necessary for full and proper discussion, understanding
and negotiation of subjects within the scope of bargaining, and (b) that
the information was not prohibited from disclosure by law.
On July 10, 1991, Counsel for the General Counsel filed a Motion for
Summary Judgment which was transferred by the Regional Director, Region
IV, Federal Labor Relations Authority, to the Chief Administrative Law
Judge, pursuant to Section 2422.22(b)(1) of the Federal Labor Relations
Authority's Rules and Regulations. Subsequently the matter was assigned
to the undersigned for disposition pursuant to Section 2423.19(k) and
Section 2423.22(b)(3) of the Authority's Rules and Regulations.
Respondent on July 22, 1991 served a "Motion to Dismiss General
Counsel's Motion for Summary Judgment" and a "Memorandum in Support" of
the motion. In its Memorandum in Support of its Motion Respondent did
not take issue with the material facts set forth in the Complaint, but
rather requested, in essence, that the General Counsel's Motion be
denied as a matter of law. In support of its position, Respondent
relied primarily on the Circuit Court's decision in FLRA v. Dep't of the
Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989),
cert. denied 110 S. Ct. 863 (1990) (Dep't of the Treasury), wherein the
Court of Appeals for the District of Columbia Circuit, citing the
Supreme Court's decision in United States Dep't of Justice v. Reporters
Committee for Freedom of the Press, 109 S. Ct. 1468 (1989) (Reports
Committee), held that the Privacy Act prohibited disclosure of
employees' names and home addresses to the employees' exclusive
representative. Additionally, Respondent contends that the release of
the employees' names and home addresses could reasonably be expected to
endanger the life or physical safety of the employees. Finally, the
Respondent adopted the position of the Justice Department set forth in
its petition for review of the Authority's decision in Portsmouth Naval
Shipyard, 37 FLRA 515. /1/
The Union is the exclusive representative of a unit of employees
appropriate for collective bargaining with Respondent. On March 27,
1991 the Union, by Carolyn Chester, Acting President, requested the
names and home addresses of bargaining unit employees. On April 12,
1991, the Respondent denied the Union's request for the home addresses
of unit employees.
The names and home addresses of bargaining unit employees are
normally maintained by Respondent in the regular course of business, are
reasonably available, and do not constitute guidance, advice, counsel or
training for management officials or supervisors relating to collective
bargaining.
Although denied by Respondent, I find, based particularly upon the
Authority's decision in Portsmouth Naval Shipyard, supra, that the names
and home addresses are "necessary" since the ability to communicate with
employees in the most effective manner has a direct beneficial effect on
the bargaining process, and that disclosure of the names and home
addresses is not prohibited by law.
The decision in this case is controlled for the most part by the
Authority's decision in Portsmouth Naval Shipyard, supra, wherein the
Authority found that the release of bargaining unit employees' names and
home addresses is "necessary" within the meaning of the Statute and is
not "prohibited by law." The Authority further concluded in Portsmouth
Naval Shipyard, supra, that it would not apply the approach of the D.C.
Circuit in Dep't of the Treasury, supra, because, among other things,
the D.C. Circuit did not harmonize the Federal Service Labor-Management
Relations Statute, the Freedom of Information Act, and the Privacy Act.
Although the Authority's petition for enforcement of its order in
Portsmouth Naval Shipyard, supra, has been denied by the 1st Circuit,
there has been no showing that the Authority has deviated from its
original holding in the matter. Accordingly, I am under an obligation
to continue to follow the Authority's interpretation of the law.
With rspect to Respondent's contention that the disclosure of the
names and home addresses could reasonably be expected to endanger the
life or physical safety of the employees, I find that such contention,
which is unsupported by any evidence, to be nothing more than mere
speculation. "Mere speculation that information might be misused in the
future does not equate with a clear and present danger." Dep't of the
Navy, U.S. Naval Ordnance Station, Louisville, Kentucky, 33 FLRA 3, 5;
Dep't of Energy and Dep't of Energy, Pittsburgh Energy Technology
Center, 33 FLRA 249, 251.
The Union's request for the names and home addresses of unit
employees satisfies the requirements of Section 7114(b)(4) of the
Statute. Therefore, Respondent was required to provide the data
requested by the Union, and the refusal to do so violated Sections
7116(a)(1), (5) and (8) of the Statute.
Based upon the foregoing findings and conclusions, the General
Counsel's Motion for Summary Judgment is hereby granted and it is
recommended that the Authority issue the following Order.
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that Navy Resale and Services Support Office, Field
Support Office Jacksonville, Jacksonville, Florida, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of National Association
of Government Employees, Local R5-82, the exclusive representative
of certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute.
(a) Furnish National Association of Government Employees, Local
R5-82, the exclusive representative of certain of its employees,
the names and home addresses of all employees in the bargaining
unit it represents.
(b) Post at its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Atlanta Regional
Office, Federal Labor Relations Authority, 1371 Peachtree Street,
NE, Suite 122, Atlanta, GA 30367, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, DC, August 30, 1991
BURTON S. STERNBURG
Administrative Law Judge
(*) We note that, in FLRA v. Portsmouth Naval Shipyard, the U.S.
Court of Appeals for the First Circuit denied the Authority's petition
for enforcement of Portsmouth Naval Shipyard. Subsequently, in FLRA v.
U.S. Department of the Navy, Navy Ships Parts Control Center, et al.,
Nos. 90-3690, 90-3724 (3d Cir. Sept. 13, 1991), a divided Court of
Appeals for the Third Circuit denied the Authority's petition for
enforcement of U.S. Department of the Navy, Navy Ships Parts Control
Center and Navy Fleet Material Support Office and NAVSEA Logistics
Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), in
which the Authority relied on Portsmouth Naval Shipyard. We
respectfully disagree with these courts' decisions and adhere to our
decisions in Portsmouth Naval Shipyard.
(1) Full citation is as follows:
U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 37 FLRA 515, 532, application for
enforcement filed sub nom, FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949
(1st Cir. Oct 1); enf. denied, August 13, 1991.
WE WILL NOT refuse to furnish, upon request of National Association
of Government Employees, Local R5-82, the exclusive representative of
certain of our employees, the names and home addresses of all employees
in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish National Association of Government Employees, Local
R5-82, the exclusive representative of certain of our employees, the
names and home addresses of all employees in the bargaining unit it
represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Atlanta
Regional Office, whose address is: 1371 Peachtree Street, NE, Suite
122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
42 FLRA 860
42 FLRA NO. 59
Dept. of the Navy, Naval Public Works Center, San Diego, California
and NAGE, Local R12-35, Case No. 98-CA-10375 (Decided October 11, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the Union with the names
and home addresses of bargaining unit employees represented by the
Union.
Case No. 98-CA-10375
U.S. DEPARTMENT OF THE NAVY, NAVAL PUBLIC WORKS CENTER, SAN DIEGO,
CALIFORNIA
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-35, SEIU,
AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the reasons stated below, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of employees
employed by the Respondent. By memorandum dated May 21, 1991, the Union
requested the Respondent to provide the Union with the names and home
addresses of bargaining unit employees in accordance with a provision of
the parties' collective bargaining agreement. By memorandum of the same
date, the Respondent refused to provide the Union with the names and
home adresses of unit employees because "compliance with (the parties'
agreement) would be in violation of recent case law." Stipulation,
Exhibit 1(e).
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available, and do not
constitute guidance, advice, counsel or training provided for management
officials or supervisors relating to collective bargaining, within the
meaning of section 7114(b)(4) of the Statute.
A. The Respondent
The Respondent disagrees with the Authority's decision in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement denied sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Aug. 13, 1991) (FLRA v. Portsmouth Naval Shipyard). In that case,
we reaffirmed the Authority's decision in Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home),
and concluded that a union is entitled, under section 7114(b)(4) of the
Statute, to the names and home addresses of bargaining unit employees.
The Respondent asserts that the Authority should apply the reasoning of
the court in FLRA v. U.S. Department of the Treasury, Financial
Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S.
Ct. 863 (1990), to find that the Respondent was not required to supply
the Union with the requested information.
The Respondent contends that the disclosure of employees' home
addresses is prohibited by the Privacy Act, 5 U.S.C. Section 522a, and
the Freedom of Information Act, 5 U.S.C. Section 552. The Respondent
argues, in this regard, that the requested information has not been
established to be necessary, within the meaning of section 7114(b)(4) of
the Statute, for the discharge of the Union's representational
responsibilities.
Finally, the Respondent asserts that "(t)he system of records that
will be used to supply the union with the requested information is a
Navy system . . . not an OPM system . . . ." Respondent's Brief at 1.
According to the Respondent, the "routine use disclosure provisions of
the applicable Navy system of records . . . precludes ( ) the disclosure
of employee home addresses to unions, especially if there are
alternative means of communications available to the labor
organizations." Id. The Respondent incorporated in, and attached to,
its statement a brief filed by the U.S. Department of Justice in the U.
S. Court of Appeals for the First Circuit in Portsmouth Naval Shipyard,
wherein the Department of Justice argues that (1) employee home
addresses may not be disclosed from official personnel files pursuant to
the routine use notice published by the Office of Personnel Management
(OPM), and (2) the OPM routine use notice does not apply to "the
Department of the Navy's payroll system of records, which would probably
be the most accurate source of employees' current home addresses."
Attachment to Respondent's Brief at 44 n.38.
B. The General Counsel
The General Counsel contends that this case is controlled by the
Authority's decisions in Portsmouth Naval Shipyard and Farmers Home.
Noting that the Respondent agrees that the information requested by the
Union constitutes data within the meaning of section 7114(b)(4) of the
Statute, is normally maintained by the Respondent in the regular course
of business, is reasonably available, and does not constitute guidance,
advice, counsel or training provided for management officials or
supervisors relating to collective bargaining, the General Counsel
asserts that the Respondent's failure and refusal to provide the names
and home addresses of bargaining unit employees to the Union constitutes
a refusal to comply with section 7114(b)(4) and is an unfair labor
practice under section 7116(a)(1), (5) and (8) of the Statute.
In Portmouth Naval Shipyard, we reaffirmed Farmers Home and concluded
that the release of the names and home addresses of bargaining unit
employees to their exclusive representatives is not prohibited by law,
is necessary for unions to fulfill their duties under the Statute, and
meets all of the other requirements established by section 7114(b)(4) of
the Statute. We also determined that the release of the information is
generally required without regard to whether alternative means of
communication are available. We find that resolution of this case does
not require consideration of whether alternative means of communication
are available to the Union.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available to the Respondent, and does not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors relating to collective bargaining. Accordingly, based on
the Authority's decision in Portsmouth Naval Shipyard, we conclude that
the Respondent violated section 7116(a)(1), (5), and (8) of the Statute
by failing to furnish the Union with the names and home addresses of
unit employees represented by the Union.
We note that, in FLRA v. Portsmouth Naval Shipyard, the United States
Court of Appeals for the First Circuit denied the Authority's petition
for enforcement of Portsmouth Naval Shipyard. Subsequently, in FLRA v.
U.S. Department of the Navy, Navy Ships Parts Control Center, et al.,
Nos. 90-3690, 90-3724 (3d Cir. Sept. 13, 1991), a divided Court of
Appeals for the Third Circuit denied the Authority's petition for
enforcement of U.S. Department of the Navy, Navy Ships Parts Control
Center and Navy Fleet Material Support Office and NAVSEA Logistics
Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), in
which the Authority relied on Portsmouth Naval Shipyard. We
respectfully disagree with these courts' decisions and adhere to our
decision in Portsmouth Naval Shipyard.
We also note, in this regard, the Respondent's argument that OPM's
routine use notice does not apply to the "system of records thatt will
be used to supply the union with the requested information . . . ."
Respondent's Brief at 1. The Respondent does not specify the system of
records to which it refers. Read in light of the Department of Justice
brief attached to, and incorporated in, the Respondent's brief, however,
we construe the Respondent's argument to be that the requested
information would be supplied from the Respondent's payroll records
because official personnel files, which are subject to the OPM's routine
use notice, are not the most accurate source of current home addresses.
This argument is not relevant to our resolution of this case. There
is no basis on which to conclude that the Union specifically requested
the Respondent to provide the home addresses from its payroll records or
from any other specific system of records. Moreover, the Respondent
does not dispute that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject to OPM's routine use notice. See U.S. Naval
Ordnance Station, 40 FLRA 348, 350-51 (1991), application for
enforcement filed sub nom. FLRA v. U.S. Naval Ordnance Station, No.
91-2519 (4th Cir. Apr. 24, 1991).
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of the Navy, Naval Public Works Center, San
Diego, California shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National
Association of Government Employees, Local R12-35, SEIU, AFL-CIO,
the exclusive representative of certain of its employees, the
names and home addresses of all employees in the bargaining unit
it represents.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of the
rights assured them by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Furnish the National Association of Government Employees,
Local R12-35, SEIU, AFL-CIO, the exclusive representative of
certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Association of Government Employees,
Local R12-35, SEIU, AFL-CIO are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Comander and shall be posted in conspicuous places, including
all bulletin boards and other places where notices to employees
are customarily posted, and shall be maintained for 60 consecutive
days thereafer. Resonable steps shall be taken to ensure that
such nnotices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, San Francisco Regional
Office, Federal Labor Relations Authority, in writing, within 30
days from the date of this Order as to what steps have been taken
to comply.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R12-35, SEIU, AFL-CIO, the
exclusive representative of certain of our employees, the names and home
addresses of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Association of Government Employees,
Local R12-35, SEIU, AFL-CIO, the exclusive representative of certain of
our employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, California 94103 and whose telephone number is: (415)
744-4000.
42 FLRA 857
42 FLRA NO. 58
AFGE, National Border Patrol Council and Dept. of Justice,
Immigration and Naturalization Service, Case No. 0-NG-1967 (Decided
October 11, 1991)
NEGOTIABILITY CASE
PROCEDURAL DISMISSAL
ABSENCE OF ALLEGATION OF NONNEGOTIABILITY
WITHDRAWN ALLEGATION
The petition for review was dismissed in the circumstance that the
Agency did not take the position the proposal was inconsistent with law,
rule or regulation. Rather, the Agency claimed only that as there was
no ongoing bargaining, it had no obligation to bargain over ground
rules.
Case No. 0-NG-1967
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL
(Union)
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE
(Agency)
The Union has filed a petition for review of a negotiability issue in
the above-captioned case which involves a "ground rule proposal
concerning the site at which negotiations over changes in conditions of
employment proposed by the Agency would be conducted." Petition for
Review at 1. The Agency has filed a statement of position and the Union
has filed a response. For the reasons set out below, the Union's
petition must be dismissed.
The Agency asserts that it "does not now, and never has, taken the
position that the Union's proposal as to the locus of bargaining 'is
inconsistent with law, rule or regulation,' . . . ." Statement of
Position at 2. Moreover, the Agency states that "(e)ven if, . . . the
Union could have demonstrated that at some time in the past the (Agency)
had declared that this specific proposal was 'inconsistent with law,
rule or regulation,' the (Agency) . . . withdraws any such declaration."
Id. at 3. Rather, the Agency claims that, in its response to the
Union's request for a declaration of nonnegotiability, it stated only
that as "there was no ongoing bargaining, (over the claimed change in
conditions of employment) it had no obligation to bargain on ground
rules . . . (concerning) where the bargaining would take place." Id. at
5. Consequently, the Agency concludes that as it has not determined
that the Union's proposal is inconsistent with law, rule or regulation,
the Authority should dismiss the Union's petition for review.
The Union disputes the Agency's claim that the Agency did not declare
the Union's proposal nonnegotiable. According to the Union, the record
establishes that "the Agency clearly alleged that all aspects of the
Union's proposals were nonnegotiable." Response at 4 (emphasis in
original). The Union claims, therefore, that the Agency's allegation of
nonnegotiability concerning substantive matters "is necessarily an
allegation that the duty to bargaindid not extend to the Union's ground
rule proposal." Id. at 4. The Union argues further, that
notwithstanding the Agency's withdrawal of its allegation of
nonnegotiability "the instant appeal should not be dismissed, as the
time for filing an unfair labor practice charge over the initial refusal
to bargain has lapsed." Id. at 5. Although the Union states that "it
was not prejudiced in the instant circumstance, as an unfair labor
practice charge was filed in a timely manner(,)" the Union contends that
dismissing its appeal would encourage "agencies to submit frivolous
claims of nonnegotiability with the intent of withdrawing such claims
after the expiration of the time limit for filing unfair labor practice
charges over the concurrent failure to bargain." Id. (footnote
omitted). The Union claims that as a rsult, unions would be forced "to
file unfair labor practice charges in all instances as a protective
measure, needlessly burdening the system and all involved parties." Id.
(emphasis in original). /*/ Consequently, the Union requests the
Authority to find that the Union's proposal is negotiable.
The Authority will consider a petition for review of a negotiability
issue uner section 7117 of the Federal Serice Labor-Management Relations
Statute and part 2424 of the Authority's Rules and Regulations only when
the parties are in dispute as to whether a union proposal is
inconsistent with law, rule or regulation. In this case, the Agency has
withdrawn any allegation of nonnegotiability it may have made concerning
the Union's proposal.
There is no dispute before the Authority as to whether the Union's
proposal is inconsistent with law, rule or regulation. Accordingly, the
Union's petition for review is dismissed without prejudice to the
Union's right to file an appeal if the conditions governing review are
met and the Union chooses to file such an appeal. See Federal
Professional Nurses Association, Local 2707 and U.S. Department of
Health and Human Services, Federal Employees Occupational Health, Region
III, 34 FLRA 71 (1989).
For the Authority.
Alicia N. Columna
Director, Case Control Office
(*) The Authority's Rules and REgulations provide that a union may
file an unfair labor practice charge concurrent with a petition for
review of a negotiability issue. The Union, however, must choose which
procedure to pursue first. 5 C.F.R. Sections 2423.5, 2424.5.
42 FLRA 845
42 FLRA NO. 57
Tidewater Virginia Federal Employee Metal Trades Council and Dept.
of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, Case No.
0-NG-1821 (Decided October 10, 1991)
7105(a)(2)(E)
7106(a)(2)(A)
7106(b)(3)
NEGOTIABILITY DETERMINATION
APPRENTICES IN JOURNEYWORKER POSITION
RIGHT TO ASSIGN
FORCED ANNUAL LEAVE
APPROPRIATE ARRANGEMENTS
PROCEDURAL ISSUE
On an initial procedural issue, the Agency contended that the
petition was not timely filed in that it should have been filed within
15 days of when the Agency head advised local management that certain
provisions of the agreement had to be revised or deleted. The Authority
rejected this contention, noting that in the instant case, the parties
agreed that they would first submit their agreement to the Agency head
for review, then renegotiate any provisions disapproved. The
declaration of nonnegotiability of these subsequently made proposals
constituted the allegation for the purposes of allowing the Union to
file the petition.
Proposal 1, in pertinent part, provides that apprentices will be
placed in the appropriate journeyworker position following graduation
from their apprenticeship. The Authority concluded that to the extent
that the proposal does not involve career ladder promotions, the
proposal directly interferes with management's right to assign work by
requiring the Agency to place employees in journeyworker positions,
thereby assigning employees the duties of journeyworkers. Additionally,
though not specifically alleged, the proposal also interferes with
management's right to assign employees under 7106(a)(2)(A).
Accordingly, the proposal was nonnegotiable.
Proposal 2 provides that the Agency will attempt to place employees
subject to forced annual leave into other areas of need within the
Shipyard. The Authority found that the proposal directly interfered
with the right to assign employees under 7106(a)(2)(A) and to assign
work under 7106(a)(2)(B), but that it constituted a negotiable
appropriate arrangement under 7106(b)(3).
Case No. 0-NG-1821
TIDEWATER VIRGINIA FEDERAL EMPLOYEES, METAL TRADES COUNCIL
(Union)
U.S. DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority based 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 two proposals.
Proposal 1 states that apprentices will be placed in the appropriate
journeyworker position following satisfactory completion of their
apprenticeship. We conclude that Proposal 1 is nonnegotiable because it
directly interferes with management's rights to assign employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute.
Proposal 2 provides that the Agency will attempt to place employees
subject to forced annual leave into other areas of need within the
shipyard. We find that the proposal is a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.
On October 12, 1989, the parties entered into a Memorandum of
Agreement (MOA), in which they agreed to extend their existing
collective bargaining agreement for a three-year term. The MOA also
provided, as relevant here, that: (1) the extension of the agreement
would be subject to review under section 7114(c) of the Statute; (2)
all provisions disapproved following the section 7114(c) review would be
subject to negotiations between the parties; (3) any subsequently
agreed-upon provisions would be subject to section 7114(c) review; and
(4) all provisions not resolved through negotiations would be subject to
a negotiability appeal or proceedings before the Federal Service
Impasses Panel.
On November 13, 1989, the Agency head advised local management that
certain provisions of the agreement, including the two provisions here
in dispute, had to be revised or deleted. /1/ On November 17, 1989, the
parties executed the extension of their existing agreement. On December
15, 1989, the Agency head disapproved several provisions of the
agreement, including the two in dispute. Subsequently, on January 23,
1990, the Union submitted two revised proposals that were declared
nonnegotiable by the Agency by letter dated April 10, 1990. In its
letter, the Agency referenced the fact that as of February 20, 1990, the
parties had reached agreement on all items that had been disapproved by
the Agency head on December 15, 1989, except for the two disputed
provisions. The Agency also responded to the Union's revised proposals
by declaring them nonnegotiable. Subsequently, on April 21, 1990, the
Union filed the instant petition for review.
The Agency contends that the Union's petition for review should be
dismissed because it was not timely filed. The Agency argues that the
petition for review concerns proposals that are not substantively
changed from the provisions that had been disapproved by the Agency head
on December 15, 1989. Accordingly, the Agency argues that to be timely
filed, the petition had to be filed within the 15-day time limit
prescribed in section 2424.3 of the Authority's Rules and Regulations,
commencing from the December 15, 1989, disapproval. The Agency contends
that as the petition for review was dated April 21, 1990, it was filed
untimely. In support of its position, the Agency cites National
Federation of Federal Employees, Local 1505 and Department of the
Interior, National Park Service, Roosevelt-Vanderbilt National
Historical Site, Hyde Park, New York, 7 FLRA 608 (1982) (National Park
Service), and other Authority decisions which hold that an agency head's
disapproval of a provision in a locally negotiated agreement pursuant to
a review under section 7114(c) of the Statute is an allegation of
nonnegotiability for purposes of appeal to the Authority. Additionally,
the Agency cites American Federation of Government Employees, AFL-CIO,
Local 1786 and U.S. Marine Corps, Marine Corps Development and Education
Command Quantico, Virginia, 26 FLRA 184 (1987), and other decisions
which hold that when a petition is filed concerning an agency's
allegation of nonnegotiability which is only a restatement of a prior
allegation, and no changes in the substance or language of the proposal
have been effectuated during the period between allegations, the
petition seeks review of the earlier allegation and must be dismissed if
not otherwise timely and properly filed.
In its petition for review, the Union states that pursuant to the
provision of the MOA authorizing negotiations of disapproved provisions,
the parties resolved all issues except for the two disputed provisions.
The Union adds that the Agency served its disapproval of the Union's
revised proposals on April 10, 1990 and, further, that the disputed
proposals are before the Authority in accordance with the provision in
the MOA authorizing the use of a negotiability appeal for any unresolved
matters.
We find that the petition was timely filed and, therefore, that it is
properly before us. Under the Authority's Rules and Regulations, a
petition for review of negotiability issues must be filed with the
Authority within 15 days after service on a union of an agency's
allegation of nonnegotiability. 5 C.F.R. Section 2424.3. If the
allegation is served by mail, 5 days are added to the 15-day period for
filing the petition for review. 5 C.F.R. Section 2429.22. The record
here indicates that the Union was served with the Agency's allegation of
nonnegotiability on April 10, 1990. The Union's petition for review had
to be filed with the national office of the Authority by April 30, 1990
in order to be considered timely filed. The petition was in fact filed
with the Authority on April 24, 1990. Consequently, the petition was
timely filed. In so finding, we reject the Agency's claim that the
Union was required to file the petition within 15 days of the Agency
head's December 15, 1989 disapproval.
We note, as did the Agency, the well established principle that an
agency head's disapproval of provisions in a locally executed agreement
constitutes an allegation of nonnegotiability for purposes of appeal to
the Authority. See, for example, National Federation of Federal
Employees, Local 284 and U.S. Department of Defense, Naval Air
Engineering Center, Lakehurst, New Jersey, 39 FLRA 973 (1991);
reconsideration denied, 39 FLRA 1537 (1991) (Naval Air Engineering
Center) and National Park Service, 7 FLRA 608. Furthermore, it is also
well established that where a petition for review concerns a dispute as
to a proposal that is not substantively changed from a provision that
previously had been disapproved by an agency head under section 7114(
c), the effect of the petition is to seek review of the previous
disapproval. Naval Air Engineering Center.
In the instant case, however, the parties agreed that they would
first submit their extended agreement to the Agency head for review,
then renegotiate any provisions disapproved by the Agency head.
Additionally, the parties agreed that any outstanding negotiability
disputes would be resolved through the negotiability appeals process.
Thus, the parties agreed that the Agency head's disapproval of various
agreement provisions would lead to renegotiation of the disapproved
provisions, rather than the filing of a petition for review. Thus,
while it is apparent from a review of the record that the Union's
revised proposals are similar to the provisions that were disapproved by
the Agency head, we find that the Agency's December 15, 1989,
disapproval did not constitue an allegation of nonnegotiability for
purposes of starting the time limit in which an appeal could be filed
with the Authority because the parties agreed to renegotiate any
disapproved provisions and resort to the negotiability appeals process
to resolve outstanding disputes. We find that the revised proposals,
which are somewhat different from the disapproved provisions, arose out
of the renegotiation process that, as noted, resulted in agreement on
other previously disapproved provisions. It was the failure to reach
agreement on the two revised proposals that led to the Agency's April
10, 1990, declaration of nonnegotiability, which constituted the
allegation for purposes of allowing the Union to file its petition for
review. Accordingly, the petition was timely filed and is properly
before us for a determination on the merits.
Upon satisfactory completion of scheduled academic and shop training,
apprentices shall be issued a certificate indicating successful
completion of their apprenticeship. In addition thereto, apprentices
will be placed in the appropriate journeyworker position following
graduation from their apprenticeship. (Only the underlined portion is
in dispute.)
A. Positions of the Parties
1. Agency
The Agency did not address the merits of this proposal in its
statement of position. In its declaration of nonnegotiability, however,
the Agency asserted that the proposal interferes with management's
rights to assign work under section 7106(a)(2)(B) of the Statute and to
select or promote under section 7106(a)(2)(C) of the Statute. The
Agency contends that the proposal "mandate(s) the selection and
placement of employees into certain positions without regard to
overriding conditions such as budget and workload limitations." Petition
for Review, Attachment C.
2. Union
The Union asserts that the apprentice program is designed to develop
highly skilled journeyworkers and that upon successful completion of the
apprenticeship, employees are promoted in accordance with a Department
of the Navy regulation. The Union also argues that the placement of
apprentices into journeyworker positions meets the definition of
"'career ladder promotion'" as defined in Federal Personnel Manual
(FPM), chapter 335, subchapter 1-5.c(1)(a). The Union contends that the
proposal concerns a ministerial act, implementing the Agency's decision
to select employees for an appointment to the apprentice program with
the intent of preparing the employee for noncompetitive promotion to the
journeyworker level. The Union cites National Federation of Federal
Employees, Local 2052 and Department of the Interior, Bureau of Land
Management, Boise District Office, 30 FLRA 797 (1987), and other
decisions in which the Authority found that a career ladder promotion is
merely a ministerial act implementing an earlier decision by an agency
to place employees in career ladder positions with the intention of
preparing the employees for successful noncompetitive promotions when
the requisite conditions have been met.
B. Analysis and Conclusions
For the following reasons, we find that the proposal is
nonnegotiable.
The Union states that the proposal pertains to a career ladder
promotion as defined in the FPM. We disagree. Previously, we have
noted that the term "career ladder" has a specialized meaning within the
Federal sector. National Treasury Employees Union and U.S. Department
of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39
FLRA 27 (1991), petition for review filed sub nom. U.S. Department of
the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA,
No. 91-1139 (D.C. Cir. Mar. 25, 1991). In that case, we stated that a
career ladder involves periodic promotions to a target grade level in a
particular occupation, when an employee meets established time-in-grade
and performance level requirements. More specifically, we stated that
FPM chapter 335, subchapter 1-5.c(1)(a), which constitues a
Government-wide regulation and on which the Union now relies, defines
career ladder advancement "as a promotion 'without current competition
when at an earlier stage an employee was selected from a civil service
register or under competitive promotion procedures for an assignment
intended to prepare the employee for the position being filled (the
intent must be made a matter of record and career ladders must be
documented in the promotion plan) (.)'" Id. at 63.
There is no evidence in the record before us that the apprentice
program constitutes a career ladder. In negotiability matters, it is
well established that the parties bear the burden of creating a record
upon which the Authority can make a negotiability determination. A
party failing to meet its burden acts at its peril. National Federation
of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir.
1982); American Federation of Government Employees, Local 2022 and U.S.
Department of the Army, Headquarters, 101st Airborne Division, Fort
Campbell, Kentucky, 40 FLRA 371, 383 (1991), petition for review filed
as to other matters sub nom. U.S. Department of the Army, 101st
Airborne Division, Fort Campbell, Kentucky v. FLRA, No. 91-1298 (D.C.
Cir. June 24, 1991). The Union states that the apprentice program is
designed to develop journeyworkers and cites a Department of the Navy
regulation concerning the apprentice program. A review of that
regulation, however, fails to establish that the apprentice program
constitutes a career ladder in accordance with FPM chapter 335.
Instead, the regulation states, in pertinent part, that "(a)pprentices
are eligible to advance through promotion to the next wage rate of the
special pay plan upon successful completion of the training requirements
of each 26-week period of training. . . ." Petition for Review,
Attachment 2. The regulation further states that "(a)ctivities are
responsible for placement of apprentices in journeyworker positions
following graduation from their apprenticeship." Id. We do not view
such statements as demonstrating that the apprentice program was
designed as a career ladder in accordance with the requirements of FPM
chapter 335, subchapter 1-5.c( 1)(a), and the Union has not established
otherwise. Consequently, we reject the Union's contention that the
proposal involves a ministerial act implementing the Agency's intention
to prepare employees for noncompetitive promotion, and we find
inapposite the Authority's decisions to that effect.
To the extent that the proposal does not involve career ladder
promotions, the proposal directly interferes with management's right to
assign work by requiring the Agency to place employees in journeyworker
positions, thereby assigning employees the duties of journeyworkers.
Additionally, though not specifically alleged, the proposal also
interferes with management's right to assign employees under section
7106(a)(2)(A) of the Statute. The Authority consistently has held that
proposals which require an agency to assign an employee to a position or
to assign work to an employee directly interfere with management's
rights to assign employees and assign work. 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, 37-38 (1990). In finding that Proposal 1
directly interferes with management's rights to assign employees and
assign work, we need not address the Agency's additional contentions.
Before requiring forced leave in a shop, the Employer will discuss
with the Council the reasons for the distribution of forced leave.
Attempts will be made by the Employer to place the employees in other
areas of need within the Shipyard. Other naval shipyards will be called
to determine whether they have need for the services of employees faced
with such leave and are able to take them on a loan in order to reduce
the impact on the employees' accumulated leave. (Only the underlined
portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 2 is nonnegotiable because it
interferes with managment's rights to assign and lay off employees under
section 7106(a)(2)(A) of the Statute and with management's right to
assign work under section 7106(a)(2)(B) of the Statute. The Agency
states that under the proposal it would be required to retain on duty
employees who have no annual leave, without regard to periods of
temporary shutdown or curtailment of operations, and regardless of the
need for the employees' services. The Agency adds that, in such
circumstances, it could be forced to forego its decision to cease
operations temporarily or to retain excess employees on duty. In
support of its position, the Agency cites Federal Employees Metal Trades
Council of Charleston, AFL-CIO and Charleston Naval Shipyard,
Charleston, South Carolina, 33 FLRA 618 (1988) (Charleston Naval
Shipyard).
The Agency further contends that the proposal is not an appropriate
arrangement under section 7106(b)(3) of the Statute because it would
excessively interfere with management's rights to assign work and lay
off employees. The Agency adds that the Authority has found that
proposals requiring an agency "to attempt" to take actions involving the
exercise of management's rights excessively interfere with those rights,
and urges the Authority to find the same here. For this proposition,
the Agency cites American Federation of Government Employees, Local 2185
and Tooele Army Depot, Tooele Utah, 23 FLRA 193 (1986) (Proposal 1)
(Tooele Army Depot).
2. Union
The Union argues that the Agency has misconstrued the proposal. The
Union states that the proposal is intended to apply to employees who
would be adversly affected by management's exercise of its right to
require employees to take annual leave when their services are not
needed for short periods of time. Therefore, the Union contends that
Proposal 2 is an appropriate arrangement under section 7106(b)(3) of the
Statute. The Union further states that the Agency is free to determine
the areas in which there is a shortage of personnel to perform work and,
further, that nothing in the proposal prevents the Agency from
determining whether the affected employees are qualified to perform the
available work. Finally, the Union notes that the language of the
proposal has been in the parties' collective bargaining agreement for
approximately thirteen years and it has not caused any hardship or undue
burden on the Agency.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 2 directly
interferes with management's rights to assign employees under section
7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). However,
we further find that the proposal constitutes a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute. In reaching these
results, we find it unnecessary to determine whether the proposal also
directly interferes with management's right to lay off employees. Even
if it does, we would find the proposal to be a negotiable appropriate
arrangement on the same basis as set forth below.
The disputed portion of Proposal 2 would require the Agency to
attempt to place employees subject to forced leave into other areas of
need within the shipyard. As such, the proposal is comparable to the
provision at issue in Charleston Naval Shipyard, 33 FLRA at 618-19,
which required management to "attempt to provide available work first to
employees not having annual leave to their credit(,)" during periods of
shutdown or reduced operations. The Authority found that the provision
interfered with management's rights to assign and lay off employees and
to assign work. The Authority found that the provision would apply
regardless of management's decision concerning whether work should be
performed during those periods and regardless of the need for the
employees' services, thereby requiring management to forego its decision
to temporarily cease operations. In reaching its decision, the
Authority relied on its earlier decision in Tooele Army Depot, in which
a proposal requiring the agency to make every conceivable attempt to
assign employees to available work if they declined to take annual leave
or leave without pay during partial closings of the activity during
certain holiday periods was found to interfere with management's rights
to assign employees under section 7106(a)(2)(A) and to assign work under
section 7106(a)(2)(B) of the Statute. 23 FLRA at 195.
We reach the same conclusions here concerning managment's rights to
assign employees and assign work. Although the proposal does not
specifically refer to a curtailment of operations or closing of the
employer's facility, the effect of the proposal, as explained by the
Agency, is to require it to maintain employees on duty without regard to
periods of temporary shutdown or curtailment of operations. While the
Union contests the Agency's interpretation of the proposal, the Union
acknowledges that the proposal would operate when employees' services
are not needed for short periods of time, which we view as applying to
periods of temporary shutdown or curtailment. During these periods, the
proposal would require the Agency to retain on duty employees who might
be surplus under the Agency's plan of reduced operations and to assign
duties to those employees. Consequently, and for the reasons more fully
set forth in Charleston Naval Shipyard, we find that the proposal
interferes with the Agency's rights to assign employees under section
7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). See also
Federal Employees Metal Trades Council of Charleston and U.S. Department
of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36
FLRA 401 (1990) (proposal requiring agency to assign available work to
employees choosing to work during period of temporary curtailment of
operations directly interfered with the agency's right to assign work).
However, we further find that the proposal constiutes a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute. In
determining whether a proposal constitues an appropriate arrangement
under section 7106(b)(3) of the Statute, it is first necessary to
determine whether the proposal is intended as an arrangement for
employees adversely affected by the exercise of a management right. If
the proposal is intended as an arrangement, the Authority next examines
whether the arrangement is appropriate because it does not excessively
interfere with the exercise of the management right. National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24, 31-33 (1986).
The Union asserts that Proposal 2 is intended to mitigate the adverse
effects of requiring employees to take annual leave when their services
are not needed. As such, we conclude that the proposal is intended as
an arrangement for employees adversely affected by the exercise of
management's rights to assign employees and assign work.
We further conclude, on balance, that the proposal would not
excessively interfere with the exercise of those rights because the
burden imposed on the Agency's exercise of its rights is outweighed by
the significant benefits that would inure to employees. The disputed
portion of the proposal simply requires that attempts will be made to
place employees. Although we have found that proposals requiring an
agency to take every reasonable effort or to attempt certain actions
involving management rights directly interfere with the exercise of
those rights, such decisions do not preclude a finding that the
proposals may constitute negotiable appropriate arrangements. In
Overseas Education Association and Department of Defense Dependents
Schools, 39 FLRA 153 (1991), for example, we found that although
proposals requiring the agency to make every reasonable effort to
provide preparation time during the workday for various activities
interfered with the right to assign work, they constituted negotiable
appropriate arrangements because the requirements were not unconditional
and permitted exceptions to the right to assign work. Here, as noted,
the proposal simply requires the Agency to attempt to place employees
and does not impose an absolute requirement on the Agency to do so. For
this reason, our finding that the proposal constitutes a negotiable
appropriate arrangement differs from the Authority's determination in
Tooele Army Depot, in which the proposal was found to excessively
interfere with management's rights because it would have totally
eliminated the agency's discretion to exercise its reserved rights.
Additionally, in finding that Proposal 2 does not excessively
interfere with management's rights, we note that the last sentence of
the proposal, which would require the Agency to contact other shipyards
for placement purposes, was not declared nonnegotiable and the Agency
did not contradict the Union's assertion that the proposal, which has
been in effect for some time, has not caused any hardship or undue
burden.
In contrast to the minimal burden imposed on the Agency's exercise of
its rights, we find that the proposal affords significant benefits to
the employees. Employees who are not required to use leave when their
services are not needed would be able to preserve their leave and to use
such leave, within applicable legal and regulatory requirements, when
the leave was most appropriate and beneficial to the employees.
Additionally, under the proposal, employees would be able to continue to
perform work only where the Agency has determined that there is work
available and the employees are qualified to perform such work.
Consequently, we find that Proposal 2 constitutes a negotiable
appropriate arrangement.
The Agency must bargain, upon request or as otherwise agreed to by
the parties, over Proposal 2. /2/ We dismiss the petition as to
Proposal 1.
(1) The record indicates that the disapproved provisions were
contained in the existing agreement.
(2) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.
42 FLRA 834
42 FLRA NO. 56
Dept. of Justice, Immigration and Naturalization Service, Border
Patrol, El Paso, Texas and AFGE, National Border Patrol Council, Case
No. 6-CA-70451 (36 FLRA 41) (Decided October 10, 1991)
7116(a)(1) and (8)
7114(a)(2)(B)
UNFAIR LABOR PRACTICE
COURT REMAND
UNION REPRESENTATION AT EXAMINATION
DISCIPLINARY ACTION
The case was before the Authority on remand from Court of Apeals for
the 5th Circuit. The Authority had found that the Responent violated
the Statute by interfering with, restraining, or coercing a unit
employee in the exercise of his right to have union representation at an
examination in connection with an investigation which the employee
reasonably believed might result in disciplinary action against him, and
in which he requested representation. The court agreed with the holding
that the employee's waiver of his right to representation had been
coerced, but concluded that that finding was not in itself conclusive
that an unfair labor practice was committed. The court held that the
Authority had not ruled on whether the employee's continued
participation in the interview was voluntary, as required by 7114(a)(
2)(B). Accordingly, the court remanded the case to the Authority for a
determination of whether the employee's continued participation in the
interview was voluntary.
The Authority concluded on the remanded issue that the employee's
decision to participate in the interview was not voluntary. The
Authority noted in this regard that the Respondent offered the employee
the option of continuing to participate in the interview without
representation, or having no interview. The Authority found that even
though the Respondent offered the choice, the predictable effect of the
conduct that was found to be coercive was to pressure the employee into
waiving his right under 7114(a)(2)(B) to terminate the interview.
Case No. 6-CA-70451 (36 FLRA 41 (1990))
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE,
BORDER PATROL, EL PASO, TEXAS
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the 5th Circuit in Department of
Justice, Immigration and Naturalization Service v. FLRA, 939 F.2d 1170
(5th Cir. 1991). In the proceedings before the Authority, the complaint
alleged that the Respondent violated section 7116(a)(1) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by
failing and refusing to comply with section 7114(a)(2)(B) of the
Statute. The Authority found that the Respondent violated the Statute
by interfering with, restraining, or coercing a unit employee in the
exercise of his right to have union representation at an examination in
connection with an investigation which the employee reasonably believed
might result in disciplinary action against him, and in which he
requested representation. Department of Justice, Immigration and
Naturalization Service, Border Patrol, El Paso, Texas, 36 FLRA 41
(1990).
The Respondent petitioned for review of the Authority's decision.
The Authority filed a cross application for enforcement. The court
granted the petition for review. The court agreed with the Authority's
holding that the employee's waiver of his right to representation had
been coerced, but concluded that that finding was not in itself
conclusive that an unfair labor practice was committed. The court held
that the Authority had not ruled on whether the employee's continued
participation in the interview was voluntary, as required by section
7114(a)(2)(B) of the Statute. Accordingly, the court remanded the case
to the Authority for a determination of whether the employee's continued
participation in the interview was voluntary.
We conclude that the employee's continued participation was coerced
and, therefore, that it was not voluntary. Accordingly, we find that
the Respondent violated the Statute.
A. Background
In April 1987, the Respondent's Office of Professional Responsibility
(OPR) conducted a criminal investigation concerning a complaint filed by
the Mexican government alleging that United States border patrol agents
were involved in a building burning incident on the Mexican side of the
border near El Paso, Texas. OPR, as part of the investigation,
interviewed border patrol agents who were considered suspects or
potential witnesses.
OPR interviewed border patrol agent Jose Cruz, who had been on duty
during the night of the fire and was considered a suspect. The Union's
president, Arcadio Neira, accompanied Cruz to the interview as his Union
representative. OPR's Regional Director Lawrence Granelli and two other
special agents were present when Cruz and his representative arrived for
the interview. The parties stipulated that Cruz initially requested
Union representation at the interview and that Cruz reasonably believed
that the interview might result in some type of disciplinary action
against him. Granelli replied to Cruz' request, telling Cruz that if he
wanted a representative, he was entitled to one and that they would do
the interview with the representative present. He then explained the
nature of the investigation, stating that the interview was criminal
rather than administrative in nature and that Cruz was considered a
suspect. Granelli informed Cruz that he and his Union representative
would not have any kind of privileged communication with respect to the
criminal proceedings. He explained to Cruz that his representative
could be subject to subpoena and/or an interview by OPR, to subpoena by
a grand jury, or to subpoena at trial. Cruz was informed that he was
not under arrest, that he would not be arrested at the interview, and
that he was free to depart at any time to seek legal counsel or obtain
advice from his Union representative. When Cruz and his Union
representative protested that Cruz was entitled to a Union
representative, Granelli reiterated the distinction between a criminal
and an administrative proceeding and stressed the absence of an
attorney-client privilege. Granelli also advised Cruz that, as a
Federal officer, he was expected to cooperate with the investigation,
without infringing on any of his rights, and that it was his decision as
to whether he would submit to the interview. Granelli explained that he
could pick and choose what he wanted to answer and could terminate the
interview at any time.
Cruz ageed to be interviewed without the presence of his Union
representative, and his Union representative left the room with Granelli
and waited outside. Cruz was questioned by the two special agents
regarding the building incident. Near the end of the interview, Cruz
was apprised of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), and asked about statements attributed to him by others. Shortly
thereafter, Cruz refused to answer any further questions and left the
room.
B. Administrative Law Judge's Decision
The Judge found that the OPR agents did not expressly deny Cruz Union
representation. According to the Judge, Cruz was advised that Union
representation would be allowed if he desired and that it was his
decision whether to submit to or terminate the interview. However, the
Judge found that the record reflected that Cruz withdrew his request for
Union representation after the OPR agent repeatedly presented him with
reasons why Union representation would not be to his or his
representative's advantage.
The Judge held that an employer has one of three options when an
employee requests union representation: (1) grant the request; (2)
discontinue the examination; or (3) offer the employee the option of
continuing the examination without representation or having no
examination at all. The Judge stated that when employees are given such
a choice, their continued presence must be viewed as voluntary.
The Judge found that the OPR agents did not offer Cruz the option of
continuing the interview without his Union representative or having no
interview at all. Instead, the Judge found that Granelli proceeded to
repeatedly present reasons why Union representation was not to Cruz' or
his representative's advantage and thereby secured Cruz' waiver of the
right. The Judge found that Granelli's statement conveyed the erroneous
impression that Cruz was not entitled to his full statutory right to a
Union representative at the examination because the interview was in
connection with a criminal investigation.
Therefore, the Judge concluded that: (a) Cruz' waiver was not made
knowingly and voluntarily; (b) he properly invoked his right to Union
representation and did not waive that right; (c) the Respondent
interfered with, restrained, or coerced the employee in the exercise by
the employee of the right to a union representative under section 7114(
a)(2)(B) in violation of section 7116(a)(1); (d) the Respondent thereby
constructively denied Cruz' request for a Union representative to which
he was entitled pursuant to section 7114(a)(2)(B); and (e) by such acts
the Respondent failed to comply with section 7114(a)(2)(B) of the
Statute in violation of section 7116(a)(1) and (8) of the Statute, as
alleged.
C. Authority's Decision in 36 FLRA 41
On review of the record and the Judge's decision, the Authority found
that the manner, nature, and repetition of Granelli's statements to Cruz
intimidated Cruz to give up his expressed desire for, and right to,
Union representation. 36 FLRA at 51. The Authority found that in the
atmosphere engendered before the OPR interview, the Respondent's
statements precluded Cruz from making an uncoerced decision as to
whether to have his Union representative present at the interview. Id.
at 50. Accordingly, the Authority found that the repeated statements by
Granelli interfered with, restrained, and coerced Cruz in the exercise
of his right to a Union representative, pursuant to section
7114(a)(2)(B) of the Statute regardless of whether Granelli's statements
were true. The Authority found it unnecessary to address the Judge's
statement about the employer's three options.
D. Court's Decision
The Respondent petitioned for review of the Authority's decision in
the U.S. Court of Appeals for the 5th Circuit. The Authority filed a
cross application for enforcement. The court granted the petition for
review, denying enforcement, vacating the decision and order, and
remanding the case to the Authority for further findings. The court
found that substantial evidence supported the Authority's holding that
Granelli's statements were sufficiently coercive to cause a reasonable
person in Cruz' position to waive his request for union representation.
The court found that this coercion could establish a constructive denial
of the option of an interview with union representation.
The court found, however, that it does not follow that this coercion
by Granelli constituted an unfair labor practice. The court held that
under the Authority's construction of section 7114(a)(2)(B), an employer
faced with a request for union representation may offer the employee the
option of participating in the interview without representation or
having no interview at all. The court found that the facts established
that the Respondent offered Cruz the option of participating with
representation, while noting the potential disadvantage of doing so,
participating without representation, or having no interview. The court
held that to the extent the Judge concluded on the present record that
Cruz was not offered the right to have no interview, his finding was
unsupported and incorrect.
The court held that although the Authority had determined that the
Respondent coerced Cruz to rescind his request for representation, it
did not consider whether the Judge's conclusions were proper.
Significantly, according to the court, the Authority did not decide
whether Cruz voluntarily decided to participate in the interview after
he had been coerced to withdraw his request that his Union
representative be present. The court held that "(b)y itself, a
constructive denial of a request for union representation does not
invalidate an employer's offer of this option." 939 F.2d at 1175. The
court found that the record on appeal did not contain a determination of
whether Cruz voluntarily participated in this interview and that such a
determination was critical to the final resoution of the petition for
review. Accordingly, the court remanded the proceeding to the Authority
so that the Authority could consider whether Cruz' decision to
participate in the interview was voluntary.
On consideration of the court's decision, and based on the findings
of the court and on the record as a whole, we conclude that Cruz'
decision to participate in the interview was not voluntary.
As the court stated, under Authority and court precedent, when an
employee is required by an agency to submit to an interview, which the
employee reasonably believes could result in disciplinary action, the
employee has the right to request union representation at that
interview. When a valid employee request has been made, the agency is
permitted one of three options: (1) grant the request; (2) discontinue
the interview; or (3) offer the employee the choice between continuing
the interview without representation or having no interview at all. See
Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1077 (1990).
In our previous decision we found, and the court agreed, that
Granelli constructively denied Cruz' request for Union representation by
coercively repeating statements that it would not be in the best
interests of Cruz or his representative if the representative
accompanied Cruz at the interview. On remand, we conclude, consistent
with the court's decision, that the Respondent offered Cruz the option
of continuing to participate in the interview without representation, or
having no interview. We further find, in reviwing the record, however,
that even though the Respondent offered Cruz such a choice, the
predictable effect of the conduct that was found to be coercive in 36
FLRA 41, combined with Granelli's continued emphasis on the criminal
nature of the proceeding, Transcript at 82, 97, was to pressure Cruz
into waiving his right under section 7114(a)(2)(B) of the Statute to
terminate the interview. Thus, taking into consideration all the
circumstances of this case, we conclude that the Respondent's actions in
effectively dissuading Cruz from remaining firm in his request for Union
representation also affected Cruz' judgment regarding his continued
participation in the interview and that, by the totality of its conduct,
the Respondent precluded Cruz from making an uncoerced decision as to
whether he should permit the interview to take place without the
presence of his representative.
We find it significant that Granelli presented Cruz with the decision
as to whether he wished to proceed without representation at the same
time as Granelli made the statements found by the Authority and the
court to consitute improper pressure on Cruz to surrender his right to
such representation. We conclude that the coercive effect of those
statements permeated the entire discussion between the Respondent's
representatives and Cruz. It is important to paint the complete
picture, insofar as we know it. In the office of OPR, the investigative
arm of his employer, Cruz was confronted by three OPR agents. One of
those agents, who informed Cruz that he might be accused of criminal
misconduct, coerced him into relinquishing his right to Union
representation. At the same time, the agent assured Cruz that he was
free to leave at any time.
It is against this backdrop that we view Granelli's statement to Cruz
that the questioning would be part of a criminal investigation and that
"as a Federal officer, he was expected to cooperate with the
investigation(.)" 36 FLRA at 43. As was the case with Granelli's other
statements to Cruz, the Respondent appeared to grant Cruz a right that
the Respondent simultaneously pressured him into abandoning. Thus,
although Granelli, and later the other OPR agents, informed Cruz that he
could terminate the interview, it was also made clear to him that he had
a duty to "cooperate." By repeatedly underscoring the criminal nature of
the investigation and stressing the importance of Cruz' cooperation in
that investigation, Granelli implicitly sent the message that the rights
protected by the Statute are somehow weakened in the presence of
allegations of criminal misconduct. We agree with the National Labor
Relations Board that such a result would be "repugnant." United States
Postal Service, 241 NLRB 141 (1979). See Department of the Treasury,
Internal Revenue Service, Jacksonville District and Department of the
Treasury, Internal Revenue Service, Southeast Regional Office of
Inspection, 23 FLRA 876, 878 (1986) ("Congress intended section
7114(a)(2)(B) to apply to all examinations in connection with all
investigations, not just to examinations of employees in connection with
non-criminal matters." Emphasis in original.) We will not infer the
waiver of such an important statutory right in these circumstances. See
Southwestern Bell Telephone Co., 227 NLRB 1223 (1977).
Moreover, the Respondent may have given Cruz a false sense of
security by telling him that he could leave the interview room to
consult with his Union representative when such consultations could not
have provided him with the full measure of protection that section
7114(a)(2)(B) was meant to safeguard. The Authority has long held that
for the right to representation to be meaningful, the representative
must have complete freedom to assist, and consult with, the employee.
U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297,
306 (1981). Finally, we note that although Cruz ultimately decided to
terminate the interview, he did so only after hearing his Miranda rights
and learning of statements that could implicate him in the incident
under investigation. Based on the timing of Cruz' actions, we conclude
that it was a fear of criminal prosecution, and not a reasoned,
uncoerced exercise of his rights under section 7114(a)(2)(B), that
caused Cruz to stop answering questions.
Accordingly, we conclude that Cruz' decision to participate in the
interview was not voluntary and that the Respondent violated section
7116(a)(1) and (8) of the Statute by interfering with, restraining, and
coercing an employee in the exercise of his rights under section 7114(
a)(2)(B).
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we order that the Department of
Justice, Immigration and Naturalization Service, Border Patrol, El Paso,
Texas, shall:
1. Cease and desist from:
(a) Discouraging or intimidating any employee from exercising
rights under section 7114(a)(2)(B) of the Statute during an
examination in connection with an investigation if the employee
reasonably believes that the examination might result in
disciplinary action against the employee and the employee requests
union representation.
(b) Requiring any bargaining unit employee of the Department of
Justice, Immigration and Naturalization Service, Border Patrol, to
take part in an examination in connection with an investigation
without affording the employee the rights guaranteed by section
7114(a)(2)(B) of the Statute when union representation has been
requested by the employee and the employee reasonably believes
that the examination might result in disciplinary action against
him or her.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of the rights
assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Establish that no discipline to Jose Cruz has occurred as a
result of the investigative interview that occurred in April 1987
with regard to the burned building and that the information from
the investigative interview will not be relied on so as to
adversely affect Mr. Cruz in the future; and that nothing has
been retained in Mr. Cruz' personnel records as a result of the
interview that could adversely affect him. If this cannot be
shown, repeat the examination of Mr. Cruz at which he was denied
his right to union representation, if requested by the American
Federation of Government Employees, National Border Patrol
Council, and Mr. Cruz. In repeating the examination, afford Mr.
Cruz his statutory right to union representation. After repeating
the examination, reconsider any disciplinary action taken against
Mr. Cruz and/or the retention in Mr. Cruz' personnel records of
information obtained during the April 1987 interview. On
reconsideration of the disciplinary action, as appropriate, make
Mr. Cruz whole for any losses suffered to the extent consistent
with the decision upon reconsideration and, if relevant, afford
him whatever grievance and appeal rights are due under any
relevant collective bargaining agreement, law or regulation.
(b) Post at its facilities, copies of the attached Notice on
forms furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the District
Director, Department of Justice, Immigration and Naturalization
Service, Border Patrol, El Paso, Texas, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that these Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Dallas Regional Office,
Federal Labor Relations Authority, in writing, within 30 days from
the date of this Order, as to what steps have been taken to
comply.
(*) Although the court noted that no disciplinary action was taken
against Cruz based on the fire incident, we find there is still no
indication in the record before us as to whether any adverse effects
flowed from the investigation that are remediable under United States
Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431
(1990). Therefore, we will continue to provide the Respondent an
opportunity to show that no discipline to Cruz has occurred or will
occur in the future based on information obtained from the unlawful
investigative interview and that nothing has been retained in Cruz'
personnel records as a result of the interview that could adversely
effect him. 36 FLRA at 53-4.
WE WILL NOT discourage or intimidate any employee from exercising
rights under section 7114(a)(2)(B) of the Federal Service
Labor-Management Relations Statute (the Statute) during an examination
in connection with an investigation if the employee reasonably believes
that the examination might result in disciplnary action against the
employee and the employee requests such representation.
WE WILL NOT require any bargaining unit employee of the Department of
Justice, Immigration and Naturalization Service, Border Patrol, to take
part in an examination in connection with an investigation without
affording the employee the rights guaranteed by section 7114(a)(2)(B) of
the Statute when union representation has been requested by the employee
and the employee reasonably believes that the examination might result
in disciplinary action against him or her.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL establish that no discipline to Jose Cruz has occurred as a
result of the investigative interview that occurred in April 1987 with
regard to a burned building and that the information from the
investigative interview will not be relied on so as to adversely affect
Mr. Cruz in the future; and that nothing has been retained in Mr.
Cruz' personnel records as a result of the interview that could
adversely affect him. If this cannot be shown, we will, on the request
of the American Federation of Government Employees, National Border
Patrol Council, and Mr. Cruz, repeat the examination of Mr. Cruz at
which he was denied his right to union representation. In repeating the
examination, we will afford Mr. Cruz his statutory right to union
representation. After repeating the examination, we will reconsider any
disciplinary action taken against Mr. Cruz and/or the retention in Mr.
Cruz' personnel records of information obtained during the April 1987
interview.
WE WILL, as appropriate, make Mr. Cruz whole for any losses suffered
to the extent consistent with the decision upon reconsideration and we
will afford him whatever grievance and appeal rights are due under any
relevant collective bargaining agreement, law or regulation.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Dallas Regional
Office, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas,
75202 and whose telephone number is: (214) 767-4996.
42 FLRA 820
42 FLRA NO. 55
U.S. Department of the Interior, Bureau of Reclamation, Missouri
Basin Region and International Brotherhood of Electrical Workers, Local
1759 (Linn, Arbitrator), Case No. 0-AR-1889 (Decided October 10, 1991)
7122(a)
704 of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. Section
5343
ARBITRATION EXCEPTION
PREMIUM PAY
PREVAILING PAY PRACTICES
SUPPLEMENTAL AWARD
The grievance in this case alleged that the Agency violated the
parties' collective bargaining agreement by unilaterally terminating 25
percent Sunday premium pay without bargaining on the issue. The
Arbitrator issued an intial award in which he deferred a decision on the
grievance pending the issuance of a decision in a case before the United
States Court of Appeals for the Tenth Circuit.
However, pursuant to the Union's unopposed request for a final award,
the Arbitrator issued a supplemental award in which he held that the
Agency's termination of Sunday premium pay, without bargaining on the
issue, was improper under section 704 of the Civil Service Reform Act of
1978 (CSRA), codified at 5 U.S.C. Section 5343 (Amendments). The
Arbitrator ordered the Agency to reinstate the 25 percent Sunday premium
pay. The Arbitrator retained jurisdiction to resolve any disputes
concerning the implementation of the award.
The Authority held that the Agency failed to establish that the award
was deficient and denied the exceptions. The Authority noted that in
Lower Colorado Dams Project Office, 41 FLRA 119, it held that parties
that properly negotiate an agreement concerning pay and pay practices
under section 704 are bound by the terms of that agreement for the life
of the agreement. The Authority added that its decision in Lower
Colorado Dams Project Office established that, under section 704,
current prevailing practices have no effect on an existing contract
provision for the life of the parties' contract.
Therefore, the Authority concluded that the Arbitrator's award was
consistent with law because it concerned a matter about which the
parties had bargained prior to August 19, 1972.
Case No. 0-AR-1889
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, MISSOURI
BASIN REGION
(Agency)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1759
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to a supplemental
award of Arbitrator John Phillip Linn filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union filed an opposition to the Agency's exception. /1/
The grievance alleged that the Agency violated the parties'
collective bargaining agreement by unilaterally terminating 25 percent
Sunday premium pay without bargaining on the issue. The Arbitrator
issued an initial award in which he deferred a decision on the grievance
pending the issuance of a decision in a case before the United States
Court of Appeals for the Tenth Circuit. However, pursuant to the
Union's unopposed request for a final award, the Arbitrator issued a
supplemental award in which he held that the Agency's termination of
Sunday premium pay, without bargaining on the issue, was improper under
secion 704 of the Civil Service Reform Act of 1978 (CSRA), codified at 5
U.S.C. Section 5343 (Amendments). The Arbitrator ordered the Agency to
reinstate the 25 percent Sunday premium pay. The Arbitrator retained
jurisdiction to resolve any disputes concerning the implementation of
the award.
For the following reasons, we find that the Agency has failed to
establish that the award is deficient. Therefore, we will deny the
exceptions.
The employees involved in this case negotiate their wages and premium
pay provisions in accordance with section 704 of the CSRA and section
9(b) of the Prevailing Rate Systems Act (PRSA), codified at 5 U.S.C.
Section 5343 (Amendments, note).
The current General Labor Agreement (Agreement) between the parties
was originally executed in 1960. Pursuant to Article V of the
Agreement, changes in the Agreement may be negotiated on an annual
basis. The parties' Supplementary Labor Agreement No. 2 contains a
provision for Sunday premium pay. /2/
On February 17, 1987, the Agency notified the Union of its intention
to negotiate wages and premium pay and of its desire to discontinue pay
practices established by Supplementary Labor Agreement No. 2 that are
"non-prevailing." Initial Award at 3. Prior to beginning formal
negotiations on wages and premium pay, the parties established a joint
factfinding committee "to gather relevant pay and premium data to be
used by the Negotiating Committee in determining prevailing rates of pay
and other prevailing pay practices." Id. At a meeting on March 31,
1987, the parties agreed that none of the representatives was able to
locate area companies that paid Sunday premium pay.
On June 11, 1987, the Agency notified the Union of its decision to
unilaterally terminate Sunday premium pay effective July 5, 1987. The
Agency also informed the Union that it could request impact and
implementation bargaining.
The Union filed a grievance alleging that the Agency's unilateral
termination of Sunday premium pay constituted a breach of the parties'
collective bargaining agreement. The Agency denied the grievance on the
ground that "Sunday premium pay was illegal and had to be discontinued
because it was not based upon 'prevailing industry practice' as required
by (s)ection 704." Id. at 4. The parties agreed to submit the matter to
arbitration on a joint statement of stipulated facts with exhibits and
without a hearing.
In his initial award, the Arbitrator stated that the Union's claims
"appear coverd within the language of Section 8.2" of the Agreement.
/3/ Id. at 12. Based on the Agreement, the Arbitrator found that the
grievance was grievable and arbitrable. On the merits, the Arbitrator
found that the issues in the case "are a matter of interpretation of law
that appears unsettled." Id. at 18. The Arbitrator cited Department of
the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, No.
87-2483 (reported at 908 F.2d 570 (10th Cir. 1990)) (Rio Grande Project
v. FLRA), which was pending before the United States Court of Appeals
for the Tenth Circuit at the time of the arbitration proceeding. The
Arbitrator stated that "(a)lthough the Arbitrator has the authority to
interpret and apply the law as well as the collective (bargaining)
agreement, the Arbitrator believes the exercise of that authority at
this time would serve no useful function( )" because "the pending
decision of the court will most likely resolve the subject dispute."
Initial Award at 18. The Arbitrator remanded the grievance to the
parties for reconsideration in view of an expected decision in Rio
Grande Project v. FLRA. He retained jurisdiction "to resolve any
disputes that may remain under the issues submitted to (the
Arbitrator.)" Id. at 18.
Upon receipt of the initial award, the Union advised the Arbitrator
that the award "failed to comply with the contractual provision that the
Arbitrator render a final and binding decision on the stipulated issues
submitted to him." Supplemental Award at 1. The Agency did not respond
to the award or to the Union's submission to the Arbitrator. The
Arbitrator stated that he "assumed that the Agency share(d) the Union's
view that the Arbitrator is obligated to render a final Award, rather
than remand the two issues to the parties." Id. The Arbitrator
concluded that "(c)onsequently, this Supplemental Opinion and Award is
rendered pursuant to the Arbitrator's obligation under the parties'
General Labor Agreement." Id.
In his supplemental award, the Arbitrator held that the Agency's
"unilateral termination of Sunday premium pay, without bargaining on the
issue, was improper under section 704(.)" Id. at 4. The Arbitrator
rejected the Agency's argument that section 9(b) of the PRSA and section
704 of the CSRA "cover( ) only those specific pay and pay practices that
were included in the parties' collective contract as of August (19),
1972(,)" which is the date set forth in section 704 of the CSRA. Id. at
2 (emphasis in original). The Arbitrator also rejected the Agency's
contention that Sunday premium pay was illegal and could not be paid "in
the absence of a prevailing practice of Sunday premium pay in the
private sector of the local area(.)" Id. The Arbitrator found that the
decision of the United States Court of Appeals for the Ninth Circuit in
United States Department of the Interior, Bureau of Indian Affairs,
Yakima Agency and Wapato Irrigation Project v. FLRA, 887 F.2d 172 (9th
Cir. 1989) (Bureau of Indian Affairs v. FLRA) "does not convincingly
establish that the FLRA erroneously interpreted (section 704 of the
CSRA)." Supplemental Award a 4. In this regard, the Arbitrator stated
that his review of the relevant provisions of law and their legislative
history satisfied him "that deference to the Authority's interpretation
of the law is most appropriate." Id.
As a remedy for the Agency's improper unilateral termination of
Sunday premium pay, the Arbitrator ordered the Agency "to reinstate the
25% Sunday premium pay differential to all bargaining unit employees who
performed non-overtime work on Sunday after the discontinuance of such
Sunday premium pay differential." Id. He retained jurisdiction "to
resolve any and all disputes that arise in the implementation of this
award." Id.
A. Agency's Exceptions
The Agency contends that the Arbitrator's supplemental award is
deficient because it is contrary to section 704 of the CSRA. The Agency
maintains that the Arbitrator's conclusion "that the Agency acted
improperly under section 704 in terminating Sunday premium pay without
bargaining with the Union" is contrary to law. Exceptions at 7.
The Agency states that in United States Information Agency, Voice of
America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA v. FLRA), "the
(c)ourt held that, under section 704(b), a pay practice must be a
current practice in the industry in order to be negotiable." Id. at 5.
The Agency notes that under the court's decision in USIA v. FLRA, it is
the Authority's role to decide whether a practice is negotiable because
it is in accordance with prevailing rates and pay practices. However,
the Agency contends that becaue the parties in the instant case agreed
that Sunday premium pay is not a prevailing industry practice, "the
Agency was justified in unilaterally terminating this pay practice
without bargaining with the Union." Exceptions at 7. The Agency
maintains that the Arbitrator's conclusion that the Agency was not
justified in terminating Sunday premium pay is contrary to the court's
decision in USIA v. FLRA. The Agency argues that "the Arbitrator's
interpretation of section 704 is contrary to its plain meaning because
the plain mandatory language of section 704 requires that pay and pay
practices 'shall' be negotiated in accordance with prevailing pay and
pay practices." Id. at 8 (emphasis in original).
The Agency argues that the background and legislative history of
section 704 show that Congress intended bargaining under section 704 to
include only pay practices previously negotiated which are prevailing in
the local private sector of the Agency's operations. The Agency asserts
that "(t)he legislative history of section 704 clearly shows that the
prevailing practice requirement was included in (section 704 of the
CSRA) to enable the Departments of Interior and Energy to compete in the
private labor market by following private labor practices in the local
area." Id. at 14. The Agency states that "even if payment of Sunday
premium pay had been a past practice or included in the agreement, such
payment is not valid under section 704 if it is not based upon
prevailing industry practices." Id. at 17. The Agency argues that
"(s)ince the parties agreed it is not prevailing, Sunday premium pay is
illegal under section 704 and was properly discontinued by the Agency."
Id. (citation omitted). The Agency also argues that "(t)he legislative
history of section 704 provides ample evidence that the term,
'prevailing pay and pay practices' refers only to those practices that
are prevailing in the 'private sector of the economy' and not to the pay
practices of other (F)ederal employees by virtue of their statutory
entitlement." Id.
Finally, the Agency contends that the Arbitrator erred in rejecting
the position of the U.S. Court of Appeals for the Ninth Circuit in
Bureau of Indian Affairs v. FLRA, 887 F.2d at 176, "that the critical
factor under section 704 was the kind of wages that were the subject of
previous bargaining and not the fact that wages generally had been
negotiated." Exceptions at 19. The Agency argues that the Ninth
Circuit's decision in Bureau of Indian Affairs v. FLRA is relevant to
this case because "there are no facts in the stipulation to show that
Sunday premium pay was the specific subject of negotiation prior to
August 19, 1972." Id.
B. Union's Opposition
The Union contends that the Agency's exceptions constitute nothing
more than disagreement with the Arbitrator's reasoning and conclusions
and, therefore, do not constitute a basis for setting aside the
Arbitrator's award. The Union asserts that "the Arbitrator's
interpretation of Section 704 does not render its language 'devoid of
meaning,' but appropriately gives this language full force and effect."
Opposition at 2.
The Union argues that section 704 of the CSRA "does not sanction the
unilateral termination of a long-standing contractual pay practice." Id.
The Union asserts that "(t)he unilateral termination of an acknowledged
long-standing contractual pay practice contravenes Congress' primary
purpose of preserving existing collective bargaining relationships
through enactment of Section 704." Id. at 8-9 (citations omitted). The
Union states that the Agency's argument concerning prevailing practice
"ignores the most important language of Section 704, i.e., that 'pay and
pay practices . . . shall be negotiated in accordance with prevailing
rates and practices . . . .' The entire emphasis of this statutory
provision is the requirement that pay and pay practices for 'negotiated
rate' employees continue to be negotiated." Id. at 9 (emphasis in
original, citation omitted).
With regard to the role of the joint fact-finding committee in
negotiating wages, the Union states:
As the parties stipulated, "negotiated rate" employees' wages are
not "unilaterally set by (the Agency) after a survey of prevailing
rates," but are "negotiated after considering prevailing rate
surveys performed in accordance with Article V of the Labor
Agreement." Section 5.2 of Article V provides that a "joint
fact-finding committee" shall establish "relevant facts bearing on
the determinations of rates of pay," and that "consideration shall
be given by the (Agency) and the Union in their negotiation to any
facts so established."
Id. (emphasis in original, citations omitted). The Union argues that
the parties' agreement requires only that consideration be given to data
collected by the fact-finding committee "and does not mandate that
negotiated pay practices strictly conform to such information
collected." Id.
The Union asserts that the only way the parties can eliminate the
contractual Sunday premium pay differential is through collective
bargaining. The Union argues that the absence of a Sunday premium pay
practice in the local area "does not negate the Agency's duty to bargain
on this issue and certainly cannot be used to justify a blatant
violation of the parties' Labor Agreement." Id. at 13. The Union states
that in the absence of agreement provisions setting forth the Agency's
duty to bargain on the subject of Sunday premium pay, "(a)t the very
least, (5 U.S.C. Section 5544(a) and Section 5546(a)) establish payment
of a Sunday premium differential as a 'prevailing practice' among all
Section 9(b) employees and, thus, justify the continuation of this
practice unless properly eliminated through collective bargaining
negotiations pursuant to Section 704." Id. at 14.
The Union disputes the Agency's argument that Sunday premium pay is
nonnegotiable because "there are no specific facts in the stipulation to
show that Sunday premium pay was the specific subject of negotiation
prior to August 19, 1972." Exceptions at 19. The Union maintains that
Sunday premium pay is protected by section 704, even if the stipulated
facts do not establish that Sunday premium pay was specifically
negotiated prior to August 19, 1972. The Union states that the parties
have a "long-standing practice 'since at least 1960' of negotiating pay
and pay practices." Id. at 17. The Union asserts that "this
long-standing subject of negotiation" cannot be interpreted "so narrowly
as to exclude" Sunday premium pay. Id. at 18.
The Union argues that Sunday premium pay is negotiable for section
704 employees so that those employees can maintain equity with other
employees who receive Sunday premium pay. The Union contends that the
Ninth Circuit's decision in Bureau of Indian Affairs v. FLRA is not
applicable to this case because the Authority adopted that decision only
as the law of the case in National Federation of Federal Employees,
Local 341 and U.S. Department of Interior, Bureau of Indian Affairs,
Yakima Agency and Wapato Irrigation Project, 35 FLRA 262 (1990). The
Union maintains that the Agency's contention that the award is contrary
to law constitutes mere disagreement with the Arbitrator's conclusion
that the Agency's unilateral termination of Sunday premium pay violated
the collective bargaining agreement.
For the following reasons, we find that the Agency has failed to show
that the Arbitrator's award is contrary to law. Accordingly, the
Agency's exceptions will be denied.
In U.S. Department of Interior, Bureau of Reclamation, Lower Colorado
Dams Project Office, Parker and Davis Dams and International Brotherhood
of Electrical Workers, Local 640, 41 FLRA 119 (1991) (Lower Colorado
Dams Project Office I), we held that parties that properly negotiate an
agreement concerning pay and pay practices under section 704 are bound
by the terms of that agreement for the life of the agreement. We also
concluded, contrary to the agency's position, that the current
prevailing practices had no effect on the existing contract provision
for the life of the parties' contract, but would have to be considered
when the parties negotiated new pay and pay practice provisions.
We clarified our conclusion in Lower Colorado Dams Project Office I
in our decision denying reconsideration of that decision. U.S.
Department of Interior, Bureau of Reclamation, Lower Colorado Dams
Project Office, Parker and Davis Dams and International Brotherhood of
Electrical Workers, Local 640, 42 FLRA 76 (1991) (Lower Colorado Dams
Project Office II) (order denying motion for reconsideration). We
explained that, in Lower Colorado Dams Project Office I, we enforced a
lawful agreement concerning pay and pay practices which was negotiated
by the parties in accordance with section 704. Because the parties had
negotiated a lawful agreement concerning pay and pay practices, the
parties were bound by the terms of their agreement for as long as the
agreement remained in effect. We also explained that our conclusion in
that case is distinguishable from our decision in U.S. Department of
Interior, Colorado River Storage Project and International Brotherhood
of Electrical Workers, Local 2159, 36 FLRA 283 (1990) (Colorado River
Storage Project), where we held that the agency could terminate a pay
practice under section 704. We stated that, in Colorado River Storage
Project, the record demonstrated that the pay practice provision in the
collective bargaining agreement enforced by the arbitrator was not
established in accordance with section 704 and that the provision was,
therefore, void ab initio and unenforceable.
Our decision in Lower Colorado Dams Project Office I established
that, under section 704, current prevailing practices have no effect on
an existing contract provision for the life of the parties' contract.
That decision also established two general rules with regard to the
termination of agreement provisions negotiated under section 704 during
the life of the agreement: (1) if parties properly negotiate an
agreement concerning pay and pay practices under section 704, they are
bound by the terms of that agreement for the life of the agreement; and
(2) where it is demonstrated that a pay or pay practice provision of a
collective bargaining agreement was not negotiated and agreed to, at the
outset, in accordance with section 704, the provision is contrary to
section 704 and, therefore, is unenforceable.
A. The Arbitrator's Award Is Consistent with Law Because It Concerns
a Matter About Which the Parties Had Bargained Prior to August 19, 1972
The Agency contends that because "there are no facts in the
stipulation to show that Sunday premium pay was the specific subject of
negotiation prior to August 19, 1972(,)" Sunday premium pay is not
currently negotiable under section 704. Exceptions at 19. For this
reason, the Agency claims that the award is deficient. We find that the
Agency has not established that Sunday premium pay is a matter about
which the parties had not bargained prior to August 19, 1972.
Therefore, we reject the Agency's claim that the award is deficient.
The parties did not stipulate that Sunday premium pay was negotiated
between the parties prior to August 19, 1972. The parties did
stipulate, however, that the Agency and the Union "have enjoyed a
long-standing collective bargaining relationship since at least 1960,
when the current General Labor Agreement . . . between the parties was
originally executed." Attachment A to Union's Opposition at 1. Article
V, Section 5.1 of the parties' General Labor Agreement provides that
"(t)he rates of pay . . . affecting employees covered by this agreement
shall be determined through the process of collective bargaining between
the Union and the (Agency)." Exhibit A to Union's Opposition at 5. In
addition, the parties stipulated that the Supplementary Labor Agreement
No. 2, which was negotiated in accordance with Article V of the parties'
General Labor Agreement, contains a provision providing for Sunday
premium pay. See Attachment A to Union's Opposition at 2. See also
Exhibit B to Union's Opposition at 1.
The parties also stipulated that "the Arbitrator may not consider any
facts other than those contained in (the) Stipulation(.)" Attachment A
to Union's Opposition at 3. The parties further stipulated that "the
only issues presented to the Arbitrator for resolution are" the three
issues listed in the parties' joint stipulation. Id. at 3-4. Whether
the parties negotiated concerning Sunday premium pay prior to August 19,
1972, was not addressed in the stipulated facts and was not one of the
issues stipulated by the parties before the Arbitrator. Because the
parties specifically precluded the Arbitrator from considering facts not
in the parties' stipulation and limited the Arbitrator's jurisdiction to
the issues stipulated by the parties, the Arbitrator's award is not
deficient on the basis that it does not address the issue of whether the
parties negotiated about Sunday premium pay prior to August 19, 1972.
Moreover, the Agency has failed to demonstrate that the subject of
Sunday premium pay was not negotiated by the parties prior to August 19,
1972. In fact, the Agency does not even assert that the parties did not
negotiate Sunday premium pay prior to August 19, 1972. Rather, the
Agency argues only that "there are no facts in the stipulation to show
that Sunday premium pay was the specific subject of negotiation prior to
August 19, 1972." Exceptions at 19. Without further evidence in the
record, the mere absence of a stipulation by the parties that Sunday
premium pay was negotiated prior to August 19, 1972, does not establish
that, in fact, Sunday premium pay was not so negotiated. The Agency has
presented no evidence establishing that the subject matter of the
grievance was not the subject of negotiations between the parties prior
to that date. Consequently, the Agency's reliance on the decision of
the Ninth Circuit in Bureau of Indian Affairs does not provide a basis
for concluding that the award is deficient. Moreover, because the
Agency has not demonstrated that the subject matter of the grievance was
not the subject of negotiations between the parties prior to August 19,
1972, the decision of the Tenth Circuit in Rio Grande Project v. FLRA,
908 F.2d 570 (10th Cir. 1990), does not provide a basis for concluding
that the award is deficient.
Consequently, we conclude that the Agency has not demonstrated that
the Arbitrator's award is deficient under section 704 because it
concerns a matter about which the parties had not bargained prior to
August 19, 1972.
B. The Arbitrator's Award Is Not Deficient under Section 704(b)
An agency is justified under section 704(b) in terminating an
existing pay provision if it can show that the pay practice in question
was not the current practice in the industry at the time the existing
agreement was negotiated. Lower Colorado Dams Project Office II. In
presenting this case to the Arbitrator, the parties made the following
stipulation concerning the payment of Sunday premium pay at local area
companies:
Prior to the beginning of formal negotiations (for a new
agreement) in 1987, a Joint Factfinding Committee was established
to gather relevant pay and premium data to be used by the
Negotiating Committee in determining prevailing rates of pay and
other prevailing pay practices. At a March 31, 1987 meeting
between management and Union representatives of this Committee it
was agreed that none of the representatives were able to locate
area companies that paid Sunday premium pay.
Exceptions, Attachment A, Joint Statement of Stipulated Facts
(Stipulation) at 3. Based on the data gathered by the Factfinding
Committee, the Agency determined that Sunday premium pay is not a
prevailing practice and unilaterally terminated the payment of Sunday
premium pay under the existing agreement. The Arbitrator concluded that
the Agency's termination of Sunday premium pay, without bargaining, on
the basis that the practice was not a prevailing industry practice in
the local area companies, was "improper under provisions of section
704." Supplemental Award at 2. We find that the Arbitrator's conclusion
is not contrary to law.
The parties' stipulation that none of their representatives were able
to locate area companies that paid Sunday premium pay does not relieve
the Agency of its obligation to pay Sunday premium pay in accordance
with the parties' collective bargaining agreement. The stipulation
concerns the prevailing practices at the point at which the parties were
negotiating for a new agreement. The stipulation does not concern the
practices at the point at which the parties were negotiating the
existing agreement. "Although the current prevailing practices are
relevant to determine whether parties 'shall' negotiate pay and pay
practices under section 704(b), they have no effect on the pay and pay
practice provisions of an existing collective bargaining agreement." 41
FLRA at 129 (emphasis in original). Once the parties have negotiated a
lawful agreement -- providing that Sunday premium pay would be paid
under the existing agreement until a new agreement was reached -- the
parties are bound by the terms of that agreement. Thus, the Agency's
obligation to pay Sunday premium pay under the existing agreement was
not affected by the findings of the factfinding committee concerning
current industry practices in area companies at the time of negotiations
for a new agreement.
The Agency has not demonstrated that the pay practice in question was
not a practice in the industry at the time the existing agreement was
negotiated. The information in the parties' stipulation and the record
concerning industry practices addresses only current industry practices
and does not concern the practices at the point at which the parties
were negotiating the existing agreement. Consequently, we find that
neither the parties' stipulation nor the record as a whole demonstrates
that the Sunday premium pay provision in the parties' agreement was not
established in accordance with section 704 and, therefore, is void ab
initio and unenforceable. Compare Colorado River Storage Project, 36
FLRA 283 (1990).
Because it has not been established that the Sunday premium pay
provision in the parties' existing agreement is unenforceable, the
Agency is required to continue Sunday premium pay under that agreement
until the parties have completed their negotiations concerning the
payment of Sunday premium pay under the new agreement. We agree with
the Arbitrator that the Agency was not justified in unilaterally
terminating Sunday premium pay under the existing agreement before it
completed bargaining over the subject as required under the parties'
collective bargaining agreement. Therefore, we deny the Agency's
exception that the Arbitrator's conclusion in that regard is contrary to
law.
The Agency's exceptions are denied.
(1) The Agency and the Union filed supplemental submissions pursuant
to 5 C.F.R. Section 2429.26 of the Authority's regulations presenting
additional arguments concerning several decisions that were issued by
the United States Courts of Appeals and the Authority during the
pendency of this case. We find no circumstances warranting our
consideration of the parties' unsolicited supplemental submissions in
this case. However, we are cognizant of the case law cited by the
parties and, where appropriate, we will address those decisions in our
analysis of the Agency's exceptions.
(2) The provision in Supplementary Labor Agreement No. 2 is set forth
in the Appendix to this decision.
(3) Section 8.2 of the parties' Basic Agreement is set forth in the
Appendix to this decision.
The Sunday premium pay provision in Supplementary Labor Agreement No.
2 provides:
SECTION 2 -- PREMIUM PAY
SECTION 2.1 -- Employees who have a regular tour of duty which
included any of those hours falling between midnight Saturday and
midnight Sunday shall be paid for each hour of regularly scheduled
work, not to exceed eight hours, at the basic hourly rate of
compensation plus premium pay equal to 25 percent of the basic
hourly rate.
Initial Award at 8. See also Exceptions, Exhibit B at 3.
Section 8.2 of the parties' Basic Agreement provides, in relevant
part:
A grievance means any complaint:
C. By any bargaining unit employee, the Union, or the (Agency)
concerning:
1. The application, interpretation, working conditions, or a
claim of breach of this Agreement(.)
Initial Award at 7. See also Exceptions, Exhibit A at 8.
42 FLRA 813
42 FLRA NO. 54
U.S. Department of Housing and Urban Development and American
Federation of Government Employees, Local 476 (Ross, Arbitrator), Case
No. 0-AR-2092 (Decided October 10, 1991)
7122(a)
7121(d)
ARBITRATION EXCEPTION
GRIEVANCE PROCEDURE
STATUTORY APPEALS PROCEDURE
EEO COMPLAINT
FAIR HEARING
The grievant in this case filed a formal equal employment opportunity
(EEO) complaint alleging sex discrimination, after his request for a
reduction in his workweek was denied. Later, the grievant again
resubmitted his request for a 3-day workweek, and the Agency again
denied the request. The grievant filed a grievance with respect to that
denial. The Agency rejected the grievance on the ground that the matter
was being resolved through a statutory EEOC procedure.
The Arbitrator found that the grievance was not arbitrable under
section 7121(d) of the Statute. The Authority denied the Union's
exceptions after concluding that the Union did not demonstrate that the
award was deficient.
The Authority noted that for a grievance to be precluded by section
7121(d), two conditions must be met: (1) the matter which is the
subject of the grievance must be the same matter which was the subject
of the action initiated under the statutory procedure; and (2) such
matter must have been earlier raised by the employee timely initiating
an action under the statutory procedure.
The Authority noted that in 23 FLRA 564 it concluded that the term
"matter" in section 7121(d) refers not to the issue or claim of
prohibited discrimination, but, rather, to the suspension action. In
this case, the Authority agreed with the Arbitrator that the EEO
complaint and the grievance concerned the same "matter," within the
meaning of section 7121(d).
The Authority construed the Union's assertion that the Arbitrator
denied the Union the opportunity to set out its complete argument as a
contention that the Arbitrator failed to conduct a fair hearing. The
Authority concluded that the Union has not established that the
Arbitrator failed to conduct a fair hearing by issuing his decision
before the Union filed a final reply brief. The Authority noted that
there was no assertion that the Arbitrator agreed to withhold issuance
of an award until receipt of a Union response. In addition, the
Authority noted that during the 9 days which elapsed before the
Arbitrator issued his decision, the Union neither filed a response to
the Agency's final brief nor notified the Agency or the Arbitrator that
it intended to file a response.
Case No. 0-AR-2092
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 476
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Jerome H. Ross filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions. /1/
The Arbitrator found that the grievance was not arbitrable under
section 7121(d) of the Statute. For the following reasons, we conclude
that the Union has not demonstrated that the award is deficient.
Accordingly, the Union's exceptions will be denied.
The grievant, a GS-14 employee working 32 hours per week, requested a
reduction in his workweek from 4 days to 3 days. The Agency denied the
request, and in July 1989 the grievant filed a formal equal employment
opportunity (EEO) complaint alleging that the denial was based on sex
discrimination.
In July 1990, the grievant resubmitted his request for a 3-day
workweek, and the Agency again denied the request. The grievant filed a
grievance with respect to that denial. The Agency rejected the
grievance on the ground that the matter was "'currently being resolved
through a statutory EEOC procedure.'" Award at 1. The grievance was
then submitted to arbitration. The Arbitrator stated that the issue was
whether the grievant's proposed "(w)orkweek change" was arbitrable. Id.
Applying section 7121(d) of the Statute, the Arbitrator determined
that the grievance was not arbitrable because the grievant filed a
formal EEO discrimination complaint on the same matter before filing the
grievance. /2/ In reaching his decision, the Arbitrator relied on the
Authority's definition of "matter," as used in section 7121(d), in U.S.
Department of Justice, United States Marshals Service and International
Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564 (1986)
(Marshals Service). The Arbitrator found that "the Union's argument
that a discrimination claim is not at issue in the grievance is not
relevant, because the test under section 7121(d) is matter or action
based, as opposed to issue oriented. Under the applicable test, the
essence or substance of the Agency's action was the denial of the
grievant's request for a reduced workweek." Award at 4-5 (footnote
omitted).
The Arbitrator also rejected the Union's argument that because the
grievant's office hired two additional staff members during the year
between the grievant's two requests for a 3-day workweek, the requests
"resulted in two wholly separate personnel actions(.)" Id. at 3. The
Arbitrator stated that "based on the Agency's representations in its
reply brief . . . the additional two staff (members did) not constitute
a substantial change which warrants a review for the purpose of
determining whether a new matter has been raised in the grievance." Id.
at 5 n.
The Union asserts that the Arbitrator erred in concluding that the
grievance was not arbitrable under section 7121(d) of the Statute. The
Union asserts that section 7121(d) "is only relevant if the matter in
question is a personnel practice prohibited by 5 U.S.C. Section 2302(
b)(1)(.)" /3/ Exceptions at 1. According to the Union, the
discrimination claim raised in the EEO complaint was "a different matter
from the contract claims brought under the grievance(.)" Id. at 8.
In addition, the Union argues that the EEO complaint and the
grievance involve different matters because the two actions resulted
from separate requests by the grievant that were denied by different
individuals. The Union also notes that two staff members were added to
the grievant's office and that some of the grievant's duties were
assigned to one of those employees. The Union argues that the
Arbitrator should not have accepted the Agency's "vague assertion" in
its response to the Union's reply brief that the addition of two staff
members did not affect the application of section 7121(d) of the Statute
in this case. Id. at 14.
Finally, the Union asserts that it "agreed to give Management the
opportunity to respond to the Union's Reply Brief, on the condition that
the Union could in turn have an opportunity to file one last brief(.)"
Id. at 15. The Union claims that the Arbitrator issued his decision
"prematurely," violating "basic fairness and due process . . . ." Id.
The Agency asserts that the Arbitrator correctly determined that the
grievance is not arbitrable under section 7121(d) of the Statute. In
addition, the Agency disputes the Union's claim that the Arbitrator
unfairly denied the Union an opportunity to file a final brief.
Although the Agency acknowledges that it agreed to give the Union an
opportunity to submit a final brief, it contends "that a reasonable
amount of time had passed" before the issuance of the Arbitrator's
decision. Opposition at 4.
For the following reasons, we conclude that the Union has failed to
establish that the Arbitrator's award is deficient.
A. Section 7121(d) of the Statute
The Statute provides in section 7121(d) that when an employee
affected by a prohibited personnel practice under 5 U.S.C. Section
2302(b)(1), such as an allegation of discrimination, has raised the
matter under a statutory procedure, the employee may not file a written
grievance under the negotiated grievance procedure concerning the same
matter. For a grievance to be precluded by section 7121(d), two
conditions must be met: (1) the matter which is the subject of the
grievance must be the same matter which was the subject of the action
initiated under the statutory procedure; and (2) such matter must have
been earlier raised by the employee timely initiating an action under
the statutory procedure. See American Federation of Government
Employees, Local 1760 and U.S. Department of Health and Human Services,
Social Security Administration, Office of Hearings and Appeals, Region
II, 36 FLRA 212, 215 (1990).
The Authority defined "matter," for purposes of section 7121(d), in
Marshals Service, where the Authority found that an EEO complaint filed
over a proposed suspension barred a later grievance over the final
decision suspending the grievant. The Authority concluded that the term
"matter" in section 7121(d) refers "not to the issue or claim of
prohibited discrimination, but, rather, to the suspension action." 23
FLRA at 567. See also U.S. Department of Justice, Immigration and
Naturalization Service, El Paso, Texas and American Federation of
Government Employees, National Border Patrol Council, Local 1929, 40
FLRA 43 51-55 (1991). Compare American Federation of Government
Employees, Local 3230, AFL-CIO and Equal Employment Opportunity
Commission, 22 FLRA 448, 450 (1986) (Authority concluded that section
7121(d) did not bar resolution of grievance concerning suspension action
where earlier-filed EEO complaint did not mention the suspension and did
not request any relief concerning the suspension).
Here, the Arbitrator found, and we agree, that the EEO complaint and
the grievance concerned the same "matter," within the meaning of section
7121(d). Both the EEO complaint and the grievance resulted from the
Agency's denials of requests by the grievant that his weekly work
schedule be reduced from 4 days to 3. In addition, almost identical
remedies were requested by the grievant in the complaint and the
grievance. /4/ As such, we reject the Union's assertion that section
7121(d) is inapplicable because the grievance did not allege unlawful
discrimination and did not involve a prohibited personnel practice.
Under Marshals Service, section 7121(d) bars a grievance concerning a
personnel action, or matter, if the matter was central to a EEO
complaint raised by the grievant in an earlier filed EEO complaint.
Similarly, we conclude that the Union has not demonstrated that the
award conflicts with section 7121(d) because the EEO complaint and the
grievance resulted from decisions by two different Agency officials, at
different times, after circumstances in the grievant's office had
changed. With respect to the first point, the Union cites no authority,
and none is apparent to us, for the proposition that, in situations
where an employee initiates two requests for Agency action, section
7121(d) does not apply unless the same Agency official acts on both
requests. With respect to the latter two points, we agree with the
Union that, in cases involving denials of two employee requests, it is
relevant to examine the factual circumstances surrounding the requests
and denials, including their timing, in determining whether they involve
the same "matter," within the meaning of section 7121(d). In this case,
however, the Union has not demonstrated that the lapse of time between
the grievant's two requests, coupled with the addition of two staff
members to the grievant's office, compels a conclusion that the
Arbitrator erred in concluding that the EEO complaint and the grievance
concerned the same matter.
In sum, the Union has not demonstrated that the award conflicts with
section 7121(d). Accordingly, this exception provides no basis for
finding the award deficient.
B. Fair Hearing
The Union asserts that, by issuing his decision before the Union
filed a final brief, the Arbitrator denied the Union the "opportunity to
set out its complete argument." Exceptions at 15. We construe the
assertion as a contention that the Arbitrator failed to conduct a fair
hearing.
The Authority will find an award deficient when it is established
that the arbitrator failed to conduct a fair hearing by, for example,
refusing to consider pertinent and material evidence. See, for example,
U.S. Department of the Air Force, Hill Air Force Base, Utah and American
Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991)
(arbitrator's acknowledged failure to consider the union's position
constituted failure to conduct a fair hearing). However, an arbitrator
has considerable latitude in the conduct of a hearing. See, for
example, Commander, Carswell Air Force Base, Texas and American
Federation of Government Employees, Local 1364, 31 FLRA 620, 629-30
(1988) (Carswell Air Force Base) (arbitrator's refusal to delay hearing
did not deny union a fair hearing).
We conclude that the Union has not established that the Arbitrator
failed to conduct a fair hearing by issuing his decision before the
Union filed a final reply brief. Although it is undisputed that the
Union was to have an opportunity to respond to the Agency's final brief,
no date was established for submission of a Union response. Moreover,
there is no assertion that the Arbitrator agreed to withhold issuance of
an award until receipt of a Union response. After the Agency filed its
brief on March 25, 1991, 9 days elapsed before the Arbitrator issued his
decision. During this 9-day period the Union neither filed a response
to the Agency's final brief no notified the Agency or the Arbitrator
that it intended to file a response. In these circumstances, we
conclude that the Union was not denied an opportunity to file a final
response and, by issuing the award before receipt of a response, the
Arbitrator did not deny the Union a fair hearing. See, for example,
Carswell Air Force Base, 31 FLRA at 629-30.
The Union's exceptions are denied.
(1) The Union also filed a response to the Agency's opposition. As
the Authority's regulations do not provide for the filing of a response
to an opposition, the response has not been considered. See U.S.
Department of the Army, Reserve Personnel Center, St. Louis, Missouri
and American Federation of Government Employees, Local 900, 39 FLRA 402
(1991).
(2) Section 7121(d) of the Statute provides in pertinent part:
(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also falls
under the coverage of the negotiated grievance procedure may raise
the matter under a statutory procedure or the negotiated
procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter
under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the
applicable statutory procedure or timely files a grievance in
writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first . . . .
(3) 5 U.S.C. Section 2302(b) provides:
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not, with
respect to such authority --
(1) discriminate for or against any employee or applicant for
employment --
(A) on the basis of race, color, religion, sex, or national
origin, as prohibited under section 717 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and 15
of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
631, 633a);
(C) on the basis of sex, as prohibited under section 6(d) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as prohibited under
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791);
or
(E) on the basis of marital status or political affiliation, as
prohibited under any law, rule, or regulation(.)
(4) In the EEO complaint, the grievant requested "(c)hange in work
week from 4 days . . . to 3 days, and possibly recompense for having had
to work more time than desired since September 1987." Attachment B( 2)
to Union's Exceptions. In the grievance, the grievant requested as a
remedy "a prospective reduction to a 3 day per week schedule, and a 2
day per week schedule to compensate for any weeks in which the improper
decision stands." Attachment B(3) to Union's Exceptions.
42 FLRA 804
42 FLRA NO. 53
U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth,
Virginia and Tidewater Virginia Federal Employees Metal Trades Council
(Singer, Arbitrator), Case No. 0-AR-2091 (Decided October 9, 1991)
7122(a)
5 C.F.R. Section 610.121
FPM Supp. 990-2 chapter 610-5
ARBITRATION EXCEPTION
FAILS TO DRAW ITS ESSENCE
NONFACT
BASIC WORK WEEK
The Union filed a grievance contesting the Agency's decision to
change the workweek of certain employees so that they worked staggered
shifts that extended over a weekend. The work schedule change was made
in order to accomplish an asbestos removal project. The Arbitrator
concluded that the Agency did not violate the parties' collective
bargaining agreement when it made the change and he denied the
grievance. The Authority denied the Union's exceptions.
The Authority concluded that the Union failed to establish that the
Arbitrator's award was contrary to 5 C.F.R. Section 610.121. The
Authority noted that the Union's contentions constituted mere
disagreement with the Arbitrator's interpretation and application of the
parties' collective bargaining agreement and with his conclusion that
the Agency acted within its authority.
The Authority also rejected the Union's contentions that the award
failed to draw its essence from the agreement, and that it was based on
a nonfact.
Case No. 0-AR-2091
U.S. DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA
(Agency)
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator David A. Singer, Jr. filed by the Union under section 7122(
a) of the Federal Service Labor-Management Relations Statute (the
Statue) and part 2425 of the Authority's Rules and Regulations. The
Agency did not file an opposition.
The Union filed a grievance contesting the Agency's decision to
change the workweek of certain employees so that they worked staggered
shifts that extended over a weekend. The work schedule change was made
in order to accomplish an asbestos removal project. The Arbitrator
concluded that the Agency did not violate the parties' collective
bargaining agreement when it made the change and he denied the
grievance. For the following reasons, we deny the Union's exceptions.
The employees involved in this matter were assigned to Shop 7 in the
public works department of the Shipyard. In order to perform an
asbestos removal project over a weekend, the Agency placed the employees
on staggered shifts for a 2-week period. As a result of the change in
schedule, the employees took their days off during the week and worked
12-hour shifts on Saturday and Sunday, February 10 and 11, 1990. The
employees were paid for 8 hours of regular time and 4 hours of overtime
on those days.
The Union filed a grievance alleging that the change in shifts was
contrary to the parties' collective bargaining agreement and that the
employees were entitled to 12 hours of overtime for the weekend shifts
and to administrative leave for the days that they were off during the
week. The grievance was not resolved and was submitted to arbitration
on the following issue:
Were the provisions of the agreement and governing regulations
violated by the changing of the employees' regular workweek hours
for the replacement of asbestos ceiling tiles in building 414, on
February 10 and 11, 199(0)? If so, what is the appropriate
remedy?
Award at 1.
The Union maintained before the Arbitrator that the Agency scheduled
the staggered shifts in an attempt to avoid the payment of overtime and
argued that it would have been possible to accomplish the asbestos
removal without changing the employees' basic workweek. The Union
contended that the Agency violated Article 15 of the collective
bargaining agreement because there was no showing that costs would have
been substantially increased without the change in schedules and there
was no showing that the Agency's operations would have been seriously
handicapped. /*/ The Union asked the Arbitrator to award overtime pay
for all the affected employees for all the hours worked on February 10
and 11, 1990, and to award the employees administrative leave for the
weekdays that they were required to take off.
The Agency maintained that it had used the most logical and
economical means to accomplish the asbestos removal project and that it
had notified the Union well in advance of the schedule change. The
Agency asserted that the possibility of unforeseen difficulties in the
asbestos removal project contributed to the need for additional work and
for overtime and that management could not have accomplished the project
otherwise without relocating other employees performing production
duties. The Agency estimated that it saved approximately $4,500 by
using the staggered shift schedule.
The Arbitrator rejected the Union's contention that the staggered
shift schedule was improper because it was a personal inconvenience to
employees. He noted that although changes in work schedules always
create some personal inconvenience for employees, the employees in this
case were advised well in advance of the schedule changes and had an
opportunity to prepare for the changes. The Arbitrator also rejected
the Union's contention that the issue in this case was controlled by
three prior arbitration awards.
The Arbitrator examined the Agency's action in the context of Article
15 of the parties' agreement and noted that Article 15 allowed
"scheduling latitude" to the Agency. Id. at 13. He found that the
Agency had given the Union advance notice, as required by section 1 of
Article 15, that the staggered shift would be implemented. He then
ruled that the Agency did not violate any regulation concerning the
establishment of basic workweeks when it required the staggered shifts.
Consequently, the Arbitrator found that the Agency had not violated
Article 15, section 2.
In response to the Union's argument that the Agency would not have
been seriously handicapped if the work schedule had not been changed,
the Arbitrator stated that "the staggered schedule did serve to avoid
disruption of regular shipyard activity" and noted that the project of
asbestos removal was "unpredictable." Id. at 14. The Arbitrator stated
that the employees involved in the schedule change "were not seriously
adversely impacted by the staggered shift" and that the Agency "may not
have been seriously handicapped had the staggered shift not been
adopted, but there would have been considerable disruption at the
workplace." Id. at 15 (emphasis deleted).
The Arbitrator rejected the Union's argument that the Agency's costs
would not have increased significantly by using overtime for the
asbestos removal project and found that the Agency's attempt to save
money within the public works department was appropriate. He stated
that the Union had failed to persuade him that the Agency "had
established a history of tampering with work schedules in order to avoid
payment of legitimate overtime costs." Id. at 16. The Arbitrator ruled
that the Agency "appropriately adopted a staggered schedule, with(in)
the provisions of Article 15, section 10, in order to reduce overtime
costs." Id. He noted that the 16 employees affected "experienced little
monetary penalty as a result of the staggered shift(,)" and denied the
grievance. Id. at 17.
A. Position of the Union
The Union asserts that the Arbitrator's award is contrary to 5 C.F.
R. Section 610.121 and Federal Personnel Manual (FPM) Supplement 990-2,
chapter 610-5, which provide for a basic workweek scheduled on 5 days,
Monday through Friday, and for 2 consecutive days off outside the
workweek. The Union claims that the Arbitrator violated those
regulatory provisions because the provisions do not address "staggered
shifts" and because the Arbitrator found that it was not possible to
give some of the affected employees 2 consecutive days off because of
"job constraints." Exceptions at 1. The Union maintains that the
Arbitrator's statements concerning the amount of disruption caused by
the change in schedules and management's inability to provide
consecutive days off "are a total repudiation of Article 15, section 10
of the negotiated agreement" and of the regulatory provisions
incorporated in the agreement. Id. at 2.
The Union asserts that the Arbitrator changed the applicable
regulations by finding that the change in schedules was necessary in
order to minimize costs to the Agency and that an increase of costs for
the public works department would increase the costs of the Agency. The
Union argues that the grievance does not concern the costs of the public
works department, but "was filed to prove that the Agency's costs would
not have been substantially increased should the grievant( s) have been
paid the overtime in lieu of implementing the staggered workweek." Id.
The Union also maintains that the award is contrary to the parties'
agreement because the Arbitrator has improperly "modified the terms of
laws, rules, and regulations, not to mention the language of the
negotiated agreement." Id.
B. Analysis and Conclusions
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on the bases alleged in its exception.
Under 5 U.S.C. Section 6101, an agency is required to schedule tours of
duty not less than 7 days in advance except when the head of an agency
determines that the agency would be seriously handicapped in carrying
out its functions or that costs would be substantially increased. The
provisions of 5 U.S.C. Section 6101 are implemented by 5 C.F.R. Section
610.121. Under 5 U.S.C. Section 6101, as implemented by 5 C.F.R.
Section 610.121, an agency is required to establish as a basic workweek
employee work schedules which include Monday through Friday, when
possible, with 2 consecutive days off. The requirement to schedule a
workweek of Monday through Friday, whenever possible, with Saturday and
Sunday off, is subject to two exceptions. An agency may make changes in
work schedules when that agency determines that adherence to the
existing workweek would: (1) substantially increase costs; or (2)
seriously handicap the agency in carrying out its functions. See
National Association of Government Employees, SEIU, AFL-CIO and Veterans
Administration, Veterans Administration Medical Center, Department of
Memorial Affairs, 40 FLRA 657, 660-62 (1991).
The Arbitrator considered the Agency's actions concerning the change
of work schedules in light of Article 15 of the agreement, which
incorporates the provisions of 5 C.F.R. Section 610.121, and concluded
that the Agency did not violate those provisions. The Arbitrator found
that the Agency's action prevented disruption of work and reduced costs.
We find nothing in the Arbitrator's award that is contrary to 5 C.F.R.
Section 610.121. The Union's contentions constitute mere disagreement
with the Arbitrator's interpretation and application of the parties'
collective bargaining agreement and with his conclusion that the Agency
acted within its authority. That disagreement provides no basis for
finding the award deficient. See, for example, U.S. Department of
Health and Human Services, Social Security Administration and American
Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150
(1990).
A. Position of the Union
The Union contends that the award is deficient because it fails to
draw its essence from the parties' collective bargaining agreement. The
Union repeats its contention that the Arbitrator improperly modified the
agreement by his statements concerning the change in work schedules.
The Union asserts that it was possible to maintain the same basic
workweek and to perform the asbestos removal project on the weekend
without seriously handicapping the Agency. The Union also maintains
that the Arbitrator erroneously categorized the public works department,
rather than the shipyard, as the Agency and that he erroneously found
that saving money in the public works department would help avoid
substantial increases in the Agency's overall budget.
B. Analysis and Conclusions
To demonstrate that an award fails to draw its essence from an
agreement, a party must show that the award: (1) cannot in any rational
way be derived from the agreement; or (2) is so unfounded in reason in
fact, and so unconnected with the wording and the purpose of the
agreement as to manifest an infidelity to the obligation of the
arbitrator; or (3) evidences a manifest disregard for the agreement;
or (4) does not represent a plausible interpretation of the agreement.
For example, American Federation of Government Employees, Local 51,
AFL-CIO and United States Mint, Department of the Treasury, 41 FLRA 48,
51 (1991).
The Union has not demonstrated that the award fails to draw its
essence from the parties' agreement under any of these tests. The
Arbitrator interpreted Article 15 of the parties' collective bargaining
agreement and rejected the Union's allegations that the Agency violated
the agreement by changing the schedule to provide staggered shifts.
Nothing in the Arbitrator's interpretation of the agreement provisions
is irrational or implausible or otherwise deficient under the tests set
forth above. Accordingly, there is no basis on which to conclude that
the award fails to draw its essence from the agreement.
A. Position of the Union
The Union contends that the award is deficient because it is based on
nonfacts. The Union asserts that the Arbitrator erred in stating that
"(t)he Union accepts the fact that staggered shifts may appropriately be
scheduled in order to curtail expenses when job requirements were known
in advance." Exceptions at 3. The Union maintains that the Arbitrator's
statement is based on a nonfact because the Union had contended that
"the Agency did manipulate the work schedule solely to avoid the payment
of overtime." Id. The Union also refers to the Arbitrator's statement
that the Agency "may not" have been seriously handicapped by performing
the asbestos removal on overtime. Id. at 4. The Union asserts that the
Arbitrator's statement shows that he did find a violation of 5 C.F.R.
Section 610.121(a), which requires that the Agency "must be seriously
handicapped to properly change the basic workweek of its employees to
accomplish its mission." Id. Therefore, the Union argues, the
Arbitrator's ruling that no regulation had been violated was based on a
nonfact. The Union also maintains that the Arbitrator did not address
the proper issue, which was whether the Agency manipulated the work
schedule in order to avoid paying overtime.
The Union further contends that the Arbitrator relied on a nonfact
when he ruled that the employees did not experience a significant
monetary penalty when they were not paid overtime for performing the
asbestos removal work. The Union asserts that the loss of "$1,065.00
split between sixteen employees . . . is definitely a big monetary
penalty(.)" Id.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is based
on a nonfact. In order for an award to be found deficient because it is
based on a nonfact, the appealing party must demonstrate that the
central fact underlying the award is clearly erroneous, but for which a
different result would have been reached. For example, U. S.
Department of the Air Force, Griffiss Air Force Base, Rome, New York and
American Federation of Government Employees, Local 2612, 39 FLRA 889,
893 (1991).
In this case, the Union fails to demonstrate that the Arbitrator
relied on a clearly erroneous central fact in making his award. The
Arbitrator addressed the issue that was stipulated by the parties --
whether the Agency violated the agreement and governing regulations by
changing the employees' regular workweek hours on the days in question.
As we have noted previously, the Arbitrator applied the parties'
agreement and the incorporated regulations and found that the Agency's
changing of the work schedule was consistent with both the agreement and
the regulations. The Union's third exception constitutes mere
disagreement with the Arbitrator's overall findings and conclusions and
is an attempt to relitigate the merits of the grievance. Such
disagreement provides no basis for finding the award deficient. See,
for example, U.S. Department of Defense, Dependents Schools,
Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861,
867 (1990) (claim that arbitrator's conclusions were not supported by
evidence did not concern a central fact and constituted mere
disagreement with the arbitrator's conclusions). Accordingly, we find
that the Union's exception provides no basis for finding the award
deficient as based on a nonfact.
The Union's exceptions are denied.
(*) Relevant provisions of Article 15 are set forth in the Appendix
to this decision.
Article 15 of the parties' collective bargaining agreeement provides
in relevant part:
Section 1. When the Employer knows in advance of an Administrative
workweek that the specific days and/or hours of the day actually
required of an employee in that Administrative workweek will differ from
those required in the current Administrative workweek, he or she shall
reschedule the employee's regularly scheduled Administrative workweek to
correspond with those specific days and hours. The Employer shall
inform the employee, as soon as practical, and he or she will record the
change on the employee's time card or other Agency document for
recording work.
NOTE: The intent of the phrase "as soon as practical" is to give the
employee affected by changes as much notice as the Employer can after
knowledge of the change necessary in work schedule in order to lessen
the adverse impact and allow employees for use of their nonwork time.
Section 2. The basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible. It is agreed and understood that, when
necessary, the Employer may establish basic workweeks of other than
Monday through Friday in accordance with regulations. Changes in
shifts, will be in accordance with FPM 610, CPI 610, and 5 CFR Part 610.
. . . .
Section 10. Except when the Employer determines that the Agency
would be seriously handicapped in carrying out its functions or that
costs would be substantially increased, work schedules will be
maintained as stable as practical.
42 FLRA 795
42 FLRA NO. 52
Dept. of the Navy, Naval Aviation Depot, Marine Corps Air Station,
Cherry Point, North Carolina and Int. Assoc. of Machinists and Aerospace
Workers, Local 2297 (Mills, Arbitrator), Case No. 0-AR-2043 (Decided
October 8, 1991)
7122(a)
7121(c)(5)
ARBITRATION AWARD
DUTIES OF HIGHER GRADED POSITION
CLASSIFICATION OF A POSITION
The Arbitrator sustained a grievance claiming that the grievant had
performed the duties of higher-graded positions without being properly
compensated. The Arbitrator found that the grievant was assigned the
duties of higher-graded positions and was entitled under the agreement
to have been compensated at the level of those positions. He remanded
the matter of determining the amount of backpay due back to the parties,
but retained jurisdiction to determine the amount if the parties were
unable to agree.
The Authority rejected the Agency's contention that the award was
contrary to section 7121(c)(5) and to Federal law that requires that
employees be detailed to a higher-graded position before they may
receive pay of that position. The Authority noted that section 7121(
c)(5) precludes any grievance concerning the classification of a
position which does not result in the reduction of grade or pay of any
employee. The Authority has uniformly held that grievances over whether
a grievant was entitled under an agreement to have been compensated at a
higher rate of pay by reason of having temporarily performed the duties
of a higher-graded position do not concern the classification of any
position within the meaning of 7121(c)(5). Accordingly, the exceptions
were denied.
Case No. 0-AR-2043
U.S. DEPARTMENT OF THE NAVY, NAVAL AVIATION DEPOT, MARINE CORPS AIR
STATION, CHERRY POINT, NORTH CAROLINA
(Agency)
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
2297
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator William H. Mills filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.
The grievant filed a grievance claiming that he had performed the
duties of higher-graded positions without being properly compensated.
The Arbitrator sustained the grievance. He found that the grievant was
assigned the duties of higher-graded positions and was entitled under
the parties' collective bargaining agreement to have been compensated at
the level of those positions. He remanded the matter of determining the
amount of backpay due the grievant back to the parties, but retained
jurisdiction to determine the amount if the parties were unable to
agree.
We conclude that the Agency's exceptions provide no basis for finding
the award deficient. Accordingly, we will deny the exceptions.
The grievant is employed by the Agency as a WG-8 pneudraulic systems
worker. Prior to September 11, 1988, he was employed as a WG-8 aircraft
engine repairer. The grievant filed a grievance claiming that he had
performed the work of higher-graded positions without being properly
compensated. The grievance was not resolved and was submitted to
arbitration.
At the beginning of the arbitration hearing, the Agency moved to
dismiss the grievance because it was not arbitrable. The Arbitrator
denied the motion and the matter proceeded to hearing on the merits.
The grievant testified before the Arbitrator that in April 1987, he
began performing the work of the WG-9, WG-10, and WG-11 mechanic
positions and that he performed such work continuously and on a regular
basis until December 7, 1989. The individual who had been the
grievant's supervisor since October 1989, acknowledged that during the
time he supervised the grievant, the grievant was assigned duties of the
WG-10 mechanic position for certain periods of time, but asserted that
not all of the work performed by the grievant during this time was at
the WG-10 level. The Arbitrator noted that the grievant's position
description and the position descriptions for the positions of
pneudraulic systems mechanic, WG-9, and pneudraulic systems mechanic,
WG-10, were received in evidence. The Arbitrator explained that the
basic differences in the grievant's position and the higher-graded
positions were the sophistication of the work performed, the skill and
knowledge required to perform it, and the stated expectations for
performing work independently and with less supervision. The Arbitrator
also stated that the higher-graded positions specified certain equipment
that persons occupying those positions are expected to work on and test
for performance.
Beginning in January 1990, a classification audit of the grievant's
position was conducted. The audit report found that the grievant
performed work on the type of equipment mentioned in the WG-10 mechanic
position description and that he performed some of the duties of the
WG-9 mechanic position. However, the audit report concluded that the
grievant's position did not qualify for a higher-level classification
because the grievant did not spend a sufficient amount of time
performing the duties of the higher-graded positions and did not perform
the full range of duties of the higher-graded positions. The
classification specialist who supervised the audit testified that, from
her review of the audit, the grievant performed a significant amount of
the duties of the higher-graded positions. She was of the opinion that
except for the decision of the Comptroller General in Cassandra G.
McPeak and Wayne E. Dabney, 69 Comp. Gen. 93 (1989) (McPeak), the
grievant should have been compensated for the performance of the duties
of the higher-graded positions. The Arbitrator also noted that the
Agency, in its final decision on the grievance, conceded that the
grievant performed the duties of higher-graded positions on a regular
and recurring basis over a significant period of time, but concluded
that compensation was precluded by the decision in McPeak.
Before the Arbitrator, the Union contended that the Agency's failure
to compensate the grievant for the performance of the duties of
higher-graded positions violated Article 18, Section 3 of the parties'
collective bargaining agreement, which provides as follows:
The Employer agrees that to the extent possible, efforts will
be made to assign work within the proper rating of employees as
defined by established Office of Personnel Management standards;
and in this regard, will compensate employees on the basis of the
highest level of duties assigned as a substantial portion of the
job assignment continuously for a representative period of time;
provided it can reasonably be determined that such assignments
meet the criteria for compensation as outlined in appropriate
classified job descriptions, Job Grading Standards, or
regulations. When assigning higher level duties to unit
employees, the employees will be compensated for higher level
duties as outlined in this section and other provisions of this
agreement. It is further agreed that where it can reasonably be
determined in advance that employees in the Unit will be required
to perform a majority of their duties above the level of their
rating for periods in excess of thirty (30) days, that qualified
and eligible employees will be selected and temporarily promoted
to the higher level positions not to exceed 120 days. If an
assignment to higher level duties exceeds 120 days, consideration
will be given to either affecting a permanent promotion or
temporarily promoting another employee to the higher level
position. It is further agreed that the Union shall have the
right to meet with the Employer to discuss any alleged inequities
in connection therewith.
This Section is not to interfere with the rights of the
Employer as set forth in 5 U.S.C. Section 7106.
Award at 9-10.
The Arbitrator stated that the critical issue was whether the
quantity of work of the higher-graded positions performed by the
grievant entitled him to the pay of these positions under Article 18,
Section 3, particularly the provision that the duties of the
higher-graded position be "assigned as a substantial portion of the job
assignment continuously for a representative period of time(.)" The
Arbitrator determined that the duties of the higher-graded mechanic
positions were assigned to the grievant as a substantial portion of hiw
work and that he had performed the duties of the higher-graded positions
for a representative period of time. Consequently, the Arbitrator held
that under Article 18, Section 3, the grievant was entitled to have been
paid at the level of the higher-graded mechanic positions and that the
Agency violated this provision by failing to compensate him at the
higher grade levels.
The Arbitrator rejected the Agency's claim that compensation at the
higher grade levels was precluded by the decision in McPeak because the
grievant was never detailed to the higher-graded mechanic positions.
The Arbitrator ruled that the Federal Personnel Manual (FPM) does not
require any particular formality in the assignment of a different set of
job duties in order to constitute a detail. Finding that the grievant
was assigned the duties of the higher-graded positions for a legitimate
management purpose, the Arbitrator concluded that the grievant had been
detailed within the meaning of the FPM and that, therefore, the decision
in McPeak was not controlling. The Arbitrator also rejected the
Agency's contention that a formal detail was required because the
parties' agreement contained no such requirement. In the Arbitrator's
view, to add such a requirement of formality would negate the clear
language of the agreement. Accordingly, the Arbitrator sustained the
grievance.
While the Arbitrator was certain that the grievant had performed the
duties of higher-graded positions for which he was entitled to be
compensated, the Arbitrator stated that he was unable to decide on the
basis of the evidence before him the specific periods of time for which
backpay was due or the amount of backpay that was due. Accordingly, the
Arbitrator directed that "the parties confer on this matter, consult all
pertinent records, and endeavor to agree on the correct amount of back
pay, and report the result of their conference to the Arbitrator." Award
at 17. The Arbitrator retained jurisdiction to conduct a further
hearing and fix the amount of backpay in the event that the parties were
unable to agree.
A. The Agency
The Agency contends that the award is contrary to section 7121(c)(5)
of the Statute and to Federal law that requires that employees be
detailed to a higher-graded position before they may receive the pay of
that position.
The Agency argues that the award is deficient because it concerns the
classification of a position within the meaning of section 7121(c)( 5).
The Agency states that whether an arbitrator has made a classification
decision hinges on whether the arbitrator analyzed and identified
positions or merely determined whether an employee was performing the
duties of positions already classified by management. The Agency
maintains that the positions at issue in this case are prevailing rate
positions known as "mixed jobs." Exceptions at 3-4. The Agency explains
that whether work is regular and recurring is a factor in determining
the grade level of mixed jobs. The Agency argues that in determining
that the duties of a higher-graded position constituted a substantial
portion of the grievant's job assignment and that the grievant performed
the duties continuously for a representative period of time, the
Arbitrator made precisely the inquiry that management must make when
classifying mixed jobs. Thus, the Agency asserts that the award
intrudes into the area of classification and is inconsistent with the
Statute.
The Agency argues that the Arbitrator did not enforce a contractual
requirement to promote employees to higher-graded positions as permitted
by decisions of the Authority. The Agency claims that the Arbitrator
resolved a classification question, just as the arbitrator did in Social
Security Administration and American Federation of Government Employees,
Local 1923, AFL-CIO, 31 FLRA 933 (1988) (SSA), because the Arbitrator
decided that the positions to which the grievant was assigned were
properly classified at higher-grade levels than the grievant's official
job. The Agency asserts that this deficiency is not avoided by the
Arbitrator's reliance on the testimony of the classification specialist
or the final decision of the Agency on the grievance. The Agency claims
that neither the testimony nor the decision identify any higher-graded
position classified by management. The Agency asserts that the award
rests on the conclusion that the grievant performed "higher level
duties" and is, consequently, deficient by failing to conclude that the
grievant performed in a higher-graded job classified by agency
management. Exceptions at 9 (emphasis in original).
The Agency also contends that the award is deficient because there
was no detail to a higher-graded position as required by the Comptroller
General's decision in McPeak. The Agency argues that under FPM chapter
300, subchapter 8-3, an employee, who continues to perform the duties of
the position to which permanently assigned while also performing the
duties of another position, generally is not considered to on detail.
The Agency alleges that the grievant continued to perform the duties of
his position and that the Arbitrator did not determine otherwise. Thus,
the Agency asserts that the grievant was not detailed and the award is
precluded by McPeak. The Agency maintains that this case is
distinguishable from the Authority's decision in U.S. Department of the
Navy, Long Beach Naval Shipyard, Long Beach, California and
International Federation of Professional and Technical Engineers, Local
174, 37 FLRA 1111 (1990) (Long Beach Naval Shipyard), because in that
case the arbitrator had found that the grievant performed the duties of
a GS-11 position and under the parties' collective bargaining agreement
was entitled to a temporary promotion. The Agency argues that, in
contrast, the Arbitrator never identified a higher-level job or position
classified by management that was performed by the grievant and that,
therefore, the award is unenforceable.
B. The Union
The Union contends that the award does not concern the classification
of a position under section 7121(c)(5). The Union asserts that the
award is clearly based on the testimony presented as it applied to the
classified position descriptions submitted in evidence. The Union
argues that the Arbitrator properly awarded the grievant backpay for
performing work classified by the Agency at a higher grade level, just
as was awarded by the arbitrator in Lexington-Blue Grass Army Depot and
International Association of Machinists and Aerospace Workers, Local
859, 32 FLRA 256 (1988). The Union claims that it made it clear that it
was not bringing a classification appeal. The Union also claims that
the Agency's argument that the grievant had to be detailed before he was
entitled to the higher pay is contrary to the parties' agreement. In
the Union's view, the Agency's exceptions constitute nothing more than
disagreement with the Arbitrator's findings of fact, reasoning and
conclusions, and interpretation and application of the parties'
collective bargaining agreement and provide no basis for finding the
award deficient.
We conclude that the Agency fails to establish that the award is
deficient, as alleged.
We conclude that no basis is provided for finding that the award is
contrary to section 7121(c)(5) of the Statute. Section 7121(c)(5)
precludes any grievances concerning "the classification of any position
which does not result in the reduction in grade or pay of an employee."
The Authority has uniformly and repeatedly held that grievances over
whether a grievant was entitled under a collective bargaining agreement
to have been compensated at a higher rate of pay by reason of having
temporarily performed the duties of a higher-graded position do not
concern the classification of any position within the meaning of section
7121(c)(5). American Federation of Government Employees, Local 1923 and
U.S. Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 38 FLRA 89 (1990) (and cases cited
in the decision) (SSA, Baltimore); American Federation of Government
Employees, Local 987 and U.S. Department of the Air Force, Warner Robins
Air Logistice Center, Robins Air Force Base, Georgia, 37 FLRA 386 (1990)
(and cases cited in the decision) (Robins AFB); U.S. Department of
Justice, Immigration and Naturalization Service and National Immigration
and Naturalization Service Council, American Federation of Government
Employees, Local 2805, 15 FLRA 862 (1984) (INS); Georgia Air National
Guard, 165th Tactical Airlift Group, Savannah, Georgia and Georgia
Association of Civilian Technicians, 15 FLRA 442 (1984) (Georgia Air
National Guard).
The Authority has viewed the meaning of "classification" under
section 7121(c)(5) in the context of 5 C.F.R. chapter 511.
Classification of a position is defined in 5 C.F.R. Section 511.101(c)
as "the analysis and identification of a position and placing it in a
class under the position-classification plan established by OPM (Office
of Personnel Management) under chapter 51 of title 5, United States
Code." As emphasized by the Union, the grievance did not claim that the
grievant's position should be reclassified because he performed the
duties of a higher-graded position. The grievant merely requested
compensation at the higher rates of pay for the time during which he
performed the duties of the WG-9, WG-10, and WG-11 mechanic positions.
The Arbitrator did not reclassify the grievant at a higher grade.
Instead, the Arbitrator merely interpreted the position descriptions and
duties of the WG-9, WG-10, WG-11 positions as previously established and
classified by management. The question resolved by the Arbitrator was
whether the grievant was entitled to compensation at a higher rate of
pay when he performed substantial amounts of duties of the higher-graded
positions.
The Authority had refused to find that such a grievance concerns the
classification of any position within the meaning of section 7121(c)(5)
of the Statute. SSA, Baltimore (and cases cited in the decision);
Robins AFB (and cases cited in the decision); INS; Georgia Air
National Guard. In this case, positions at the WG-9, WG-10, and WG-11
grade levels were established and classified by management and were
specifically examined and considered by the Arbitrator. We are not
persuaded that the fact that these positions are prevailing rate "mixed
jobs" or that the Arbitrator frequently discussed duties rather than
positions distinguishes this case from the long line of Authority cases
pertaining to the temporary assignment of duties of a higher-graded
position. Therefore, contrary to the claim of the Agency, this case is
unlike SSA, 31 FLRA 933. See U.S. Department of the Air Force, Warner
Robins Air Force Logistics Center, Robins Air Force Base, Georgia and
American Federation of Government Employees, Local 987, 37 FLRA 155,
159-60 (1990). Accordingly, we will deny this exception.
We also conclude that the Agency provides no basis for finding that
the award is contrary to the Comptroller General's decision in McPeak.
As we noted in Long Beach Naval Shipyard, 37 FLRA at 1119, the decision
in McPeak confirms the general rule that an employee is only entitled to
the salary of the position to which the employee was actually appointed.
However, the Comptroller General acknowledged an exception "where the
parties to a collective bargaining agreement agree to make temporary
promotions mandatory for details to higher grade positions, thereby
establishing a nondiscretionary agency policy which would provide a
basis for backpay." 69 Comp. Gen. at 94. The Comptroller General
concluded that the affected employees in McPeak were not entitled to
retroactive temporary promotions because "there (was) no evidence of a
detail of the employees to the higher-graded position. Instead, it
appear(ed) that over a period of several years they either assumed or
were assigned some duties which were associated with the higher-graded
position." Id.
In contrast, in this case, as in Long Beach Naval Shipyard, the
Arbitrator specifically found that "the Grievant was detailed within the
meaning of that term as defined in the Federal Personnel Manual." Award
at 16. Accordingly, we find that the award is fully consistent with
McPeak and, contrary to the claim of the Agency, is indistinguishable
from Long Beach Naval Shipyard. As the Arbitrator found that
management's assignment of higher-graded duties to the grievant for a
legitimate management purpose constituted a detail, we reject the
Agency's claim that this finding is contrary to FPM chapter 300,
subchapter 8-3. We refuse to find the Arbitrator's determination
deficient based on an FPM provision which merely advises that when
employees continue to perform the duties of their positions, while also
performing the duties of another position, they "generally (are) not
considered to be on a detail." See U.S. Department of Veterans Affairs
Medical Center, Allen Park, Michigan and American Federation of
Government Employees, Local 933, 38 FLRA 688, 696 (1990) (Authority
concluded that based on the determinations of the arbitrator, the award
was consistent with the FPM and denied the agency's exception).
Accordingly, we will deny the exception.
The Agency's exceptions are denied. /*/
/*/ In Denying the exceptions, we anticipate that the parties, as
ordered by the Arbitrator, will now endeavor to agree on the amount of
backpay. We remind the parties, and advise the Arbitrator, of the
limitations on temporary promotions set forth in 5 C.F.R. Section
335.102 and FPM chapter 335, subchapter 1-5. We recommend that the
parties and the
42 FLRA 787
42 FLRA NO. 51
AFGE, Local 1867 and Dept. of the Air Force, United States Air Force
Academy, Colorado Springs, Colorado, Case No. 0-NG-1915 (Decided October
4, 1991)
7105(a)(2)(E)
7106(b)(3)
7106(b)(2)
NEGOTIABILITY DETERMINATION
COMPENSATION
5 U.S.C. 5544
FAIR LABOR STANDARDS ACT
APPROPRIATE ARRANGEMENTS
NEGOTIABLE PROCEDURES
The proposal provided, "Union's Proposal LG/CE Standby/Recall Issue."
"Management will compensate employees up to 25% of annual salary, to
include back pay, for year November 1989 to present time." The Authority
interpreted the proposal as applying only to events that would have
already transpired at the point at which it is executed. That is, it is
written solely in terms that limit it to retroactive application.
Finding that what is involved here is a dispute over whether employees
meet the conditions for entitlement to compensation for "on-call" duty
already completed, the Authority concluded that this type of claim is
not appropriate for resolution as a negotiability issue, but rather,
should be resolved in other appropriate proceedings, for example, the
grievance procedure. Accordingly, the petition for review was
dismissed.
Case No. 0-NG-1915
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1867
(Union)
DEPARTMENT OF THE AIR FORCE, UNITED STATES AIR FORCE ACADEMY,
COLORADO SPRINGS, COLORADO
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority based 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 proposal seeks
overtime compensation for specified employees. For the reasons that
follow, we conclude that the proposal does not present an issue that is
appropriate for resolution in the context of a negotiability appeal.
Union's Proposal LG/CE Standby/Recall Issue
Management will compensate employees up to 25% of annual salary, to
include back pay, for year November 1989 to present time.
This proposal concerns two of the mission-support organizations at
the Agency: (1) Civil Engineering (CE), which is responsible for the
physical maintenance of the buildings on the Agency's property; and (2)
Logistics (LG), which is responsible for all surface transportation
activities. The employment complement of the two organizations consists
of both military and civilian personnel. This proposal applies to
civilian employees who are prevailing rate employees and who are
nonexempt from the Fair Labor Standards Act, as amended (FLSA).
Prior to November 1989 only military personnel had been responsible
for performing emergency repair work on a standby or on-call basis /1/
during off-duty hours. In November 1989, the Agency implemented a
requirement that civilian employees in CE be available to perform
emergency repair work during off-duty hours. More recently, the Agency
announced its intention to institute a similar practice with respect to
LG employees. However, the practice has not yet been implemented within
LG.
A. The Agency
The Agency contends that the purpose of the proposal is to obtain
compensation for CE employees for time spent in an on-call status. The
Agency asserts that by claiming that compensation is due, the Union is
charging that the Agency has acted contrary to the statutory provisions
that govern overtime compensation for the subject employees;
specifically, it cites 5 U.S.C. Section 5544 and the FLSA. Accordingly,
the Agency contends that the proposal constitutes a grievance and is not
a matter that is subject to negotiations. As such, the Agency argues
that the issue should be resolved in an appropriate proceeding and that
the negotiability appeal should be dismissed.
The Agency also contends that the proposal is inconsistent with law
and Government-wide regulation. In addition to 5 U.S.C. Section 5544
and the FLSA, the Agency cites as a governing authority the Office of
Personnel Management (OPM) regulations that implement the FLSA, which
are found at 5 C.F.R. Part 551. The Agency asserts that the
restrictions placed on the activities of employees while in on-call
status are not sufficient to meet the legal and regulatory requirements
for overtime compensation. Specifically, the Agency claims that CE
employees in on-call status merely have to leave a telephone number
where they can be reached during non-duty hours or carry an electronic
beeper. The Agency also states that it allows for volunteers and
permits exceptions based on personal needs occurring at the time.
Consequently, the Agency asserts that overtime compensation under the
circumstances involved would be inconsistent with 5 U.S.C. Section 5544
and 5 C.F.R. Section 551.431. The Agency further contends that the
proposal is inconsistent with 5 U.S.C. Section 5544 and 5 C.F.R.
Section 551.512 because it would establish the rate of overtime
compensation at up to 25 percent of annual salary, while those governing
authorities establish that rate at one and one-half times an employee's
basic hourly rate.
The Agency contends that the proposal cannot be construed to be a
procedure or an appropriate arrangement within the meaning of section
7106(b)(2) and (3) of the Statute because the proposal does not address
any management rights and the Union has failed to demonstrate that it
constitutes such a procedure or an arrangement.
B. The Union
In its petition, the Union explains the proposal is intended to
require the Agency to compensate employees of its CE and LG components
"for time spent in a standby status for the period covered by the
proposal." Petition at 2. It states that "'present time' refers to any
point at which a final decision on the proposal's negotiability and
substance is reached." Id.
The Union requests that the Authority bifurcate its decision and
address the two groups of employees to which it applies, i.e., the CE
group and the LG group, separately. The Union also requests that the
Authority base its decision on the record that has been created by the
parties. Specifically, the Union states that inasmuch as the Agency
does not argue that the disputed proposal directly interferes with a
management right under section 7106 of the Statute, it is unnecessary to
determine whether the proposal constitutes an appropriate arrangement.
Additionally, the Union requests that, should the Authority determine
that portions, but not all, of the proposal are negotiable, the
Authority "sever such portions . . . as can stand alone for purposes of
negotiability." Union reply brief at 8.
The Union contends that burdens and restrictions placed on employees
who are "on-call" are far more stringent than those portrayed by the
Agency. According to the Union, the Agency requires employees to make
themselves available to respond to after-hours calls from the Agency and
requires them to report to the Agency within 1 hour after notification.
The Union contends that the Agency also requires that employees remain
within hearing distance of their telephone when "on-call." The Union
states that the Agency requires employees who have no home telephone to
provide the telephone number of a neighbor who can relay messages. The
Union states that although the Agency offers the use of a "beeper," such
devices are useless for some employees because of mountainous terrain.
Acknowledging that differences exist between its account of the
circumstances surrounding the "on-call" policy and that of the Agency,
the Union asserts that the Agency is "soft-pedaling the stringency of
the changed policy" and that the Agency's characterization "is designed
to defeat entitlement to overtime pay" and lacks "credibility." Id. at
6-7.
The Union disputes the Agency's contention that the proposal
conflicts with law and regulation. The Union states that while the
proposal does not "expressly address either Title 5 or the FLSA," it
"implicitly intends that the Agency will take such actions as it
lawfully is able to take, within its discretion, to accomplish the
compensation required by the proposal." Id. at 9. Thus, the Union
states "despite the brevity of the proposal, AFGE's intent is that the
proposal be administered in accordance with all relevant provisions of
law and (G)overnment-wide regulations, regardless of whether or not the
criteria such law and regulation establish are expressly identified in
the proposal." Id. at 9-10.
The Union states that the employees who are subject to this proposal
would have their overtime entitlement computed under whichever overtime
authority, title 5 or FLSA, provides the greatest entitlement. /2/ As
to title 5, the Union claims that the relevant implementing regulations
are 5 C.F.R. Sections 550.141-550.144. /3/ The Union contends that
under these regulations, the Agency has the discretion to arrange the
circumstances surrounding the employee's assignment to "on-call" duty so
that the employee could meet any regulatory requirements for
compensation that they do not already meet. As to FLSA, the Union
contends that based on the requirements and restrictions that the Agency
places on employees who are "on-call" that limit their freedom of
movement, the employees meet requirements established by OPM for
entitlement to overtime compensation.
The Union asserts that the fact that the matter that is the subject
of the proposal may be grieved does not relieve the Agency of its
obligation to bargain over the proposal. The Union argues that its
petition meets the conditions for review of a negotiability issue
because it concerns an issue of whether its proposal is consistent with
law and Government-wide regulation.
Initially, we address the interpretation of the proposal. This
proposal, as written, states that certain employees are entitled to
overtime compensation for time spent in "on-call" status for the period
of "November 1989 to present time." The only definition of "present
time" that the Union provides is "any point at which a final decision on
the proposal's negotiability and substance is reached." Petition at 2.
As written, the proposal would not have a prospective effect but,
rather, addresses compensation only for activity occurring from November
1989 to the point at which a final decision is reached on the
negotiability and substance of the proposal. Thus, the proposal by its
terms applies only to events that would have already transpired at the
point at which it is executed.
The fact that the heading of the proposal contains a reference to LG
employees does not warrant a different interpretation. At the time the
proposal was made, the Agency had announced its intention to extend the
"on-call" policy to the LG employees; however, the Agency states that
it has refrained from implementing that policy with respect to the LG
employees. While this heading could, in the context of these
circumstances, be read to suggest that a prospective application is
intended, this does not overcome the fact that the proposal itself is
written solely in terms that limit it to retroactive application.
In its reply brief the Union interprets the proposal as including the
implicit recognition that the Agency may take whatever steps are within
its discretion to ensure that the employees meet the legal and
regulatory requirements for overtime compensation. The proposal itself
contains no language that sets forth or even alludes to the particular
measures that the Union has in mind. Rather, the proposal as written is
limited to setting forth a requirement that employees be compensated,
without conditioning that compensation on any legal or regulatory
prerequisites. Significantly, however, under governing legal and
regulatory authorities, entitlement to overtime compensation for waiting
periods is dependent on the facts and circumstances involved in each
case. See, for example, Skidmore v. Swift & Co., 323 U.S. 134 (1944);
Bowman v. United States, 7 Cl. Ct. 302 (1985); 5 C.F. R. Section
551.431; FPM Letter 551-14. As we stated above, the proposal is
written solely in terms that limit it to retroactive application.
Adopting the Union's interpretation would mean that if employees have
not met the conditions for entitlement to compensation based on the
facts and circumstances of their "on-call" duty, compensation would be
permitted only if the Agency could change past events. Of course, it
cannot do this. In other words, attaching the Union's interpretation to
a proposal that is limited to a retroactive effect would make no sense.
Therefore, we reject the Union's interpretation as inconsistent with the
proposal as written. See, for example, National Association of
Agricultural Employees and U.S. Department of Agriculture, Western
Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991) (we
do not base a negotiability determination on a statement of intent that
is inconsistent with a proposal's plain wording).
Although presented by the Union as a proposal for bargaining, the
proposal is, in essence, a claim for overtime compensation for events
that have already occurred. Under the governing legal and regulatory
authorities, in this case 5 U.S.C. Section 5544 and 5 C.F.R. Part 551,
if employees meet the conditions for eligibility for compensation they
are entitled to payment. That entitlement is dependent on whether the
employee meets the governing legal and regulatory conditions for
compensation.
Based on the record in this case, what is involved here is a dispute
over whether employees meet the conditions for entitlement to
compensation for "on-call" duty already completed. /4/ This type of
claim is not appropriate for resolution as a negotiability issue, but
rather, should be resolved in other appropriate proceedings, for
example, the parties' negotiated grievance procedure. /5/
This proposal is distinguishable from proposals that
seek to influence the circumstances involved in employees' assignments
so that they will meet the conditions for entitlement to compensation.
For example, American Federation of Government Employees, Council of
Marine Corps Locals (C-240) and U.S. Department of the Navy, United
States Marine Corps, Washington, D.C., 39 FLRA 773 (1991), petition for
review filed sub nom. United States Department of the Navy, United
States Marine Corps, Washington, D.C. v. FLRA, No. 91-1182 (D.C. Cir.
Apr. 18, 1991) (negotiable proposal, as worded, provided only that
employees "will not be required to carry . . . 'beepers' unless they are
in a duty and pay status" and did not address compensation for events
that had already transpired). It is also distinguishable from proposals
that merely ensure that employees will be compensated if a proper
determination has been made in an appropriate proceeding that they are
indeed entitled to compensation. For example, National Association of
Government Employees, Local R1-109 and U.S. Department of Veterans
Affairs Medical Center, Newington, Connecticut, 38 FLRA 928, 931-33
(1990) (negotiable proposal that employees receive backpay was
conditioned on a determination made in the context of the parties'
negotiated grievance procedure that employees were entitled to backpay).
We also conclude that the circumstances involved in this case are
distinguishable from those addressed in American Federation of
Government Employees v. FLRA, 715 F.2d 627 (1983). In that case, as
pointed out by the court, the petition involved raised a negotiability
issue in addition to separable factual issues. 715 F.2d at 630 and n.
5. Thus, the court vacated the Authority's decision, which held that
the existence of factual disputes required that the entire dispute be
processed through procedures other than the negotiability review
procedures. Here, the issue raised is not a negotiability issue, but
concerns only a claim that employees are entitled to compensation for
overtime for "on-call" duty that has already transpired. Consequently,
this proposal, as written, does not involve a matter that is properly
resolved through the negotiability procedures. See, for example,
International Federation of Professional and Technical Engineers, Local
11 and Mare Island Naval Shipyard, Vallejo, California, 32 FLRA 380, 383
(1988) (questions concerning interpretation of provisions in the
parties' collective bargaining agreement are not properly resolved
through negotiability procedures, but rather, should be resolved in
other appropriate proceedings); American Federation of Government
Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 775
(1987) (the unit status of employees is not a matter that is properly
resolved through the negotiability procedures).
To the extent that our decision in National Association of Government
Employees, Local R1-109 and U.S. Department of Veterans Affairs,
Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA
513 (1990), suggests that we will rule, in the context of negotiability
procedures, on claims that employees are entitled to overtime
compensation for work already performed, it will no longer be followed.
The petition for review is dismissed.
(1) The parties lack a consensus as to whether the waiting periods
involved in this case should be characterized as "standby" or "on-call."
In view of the result reached in this case, we make no determination as
to the correct characterization of the waiting periods involved.
However, purely for the sake of convenience in this decision we will
refer to the waiting periods as "on-call."
(2) We note that this dual entitlement has been eliminated by the
Federal Employees Pay Comparability Act of 1990. Section 529 of Pub.
L. No. 101-509. Effective May 4, 1991, overtime pay for employees who
are covered by FLSA is computed and paid only under the FLSA. See 56
Fed. Reg. 20339 (1991).
(3) The Union concedes that the employees to whom this proposal
applies are "wage grade" or prevailing rate employees. Id. at 2. The
regulations set forth at 5 C.F.R. Sections 5550.141-550.144 do not apply
to prevailing rate employees. 5 C.F.R. Section 550.101(b)(4). Thus,
the Union's reliance on these regulations is misplaced.
(4) We make no judgment as to whether, based on the facts as
presented by the Union, the employees would be entitled to overtime pay.
(5) See Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), cert.
denied 111 S. Ct. 46 (1990) (where overtime pay disputes are not
excluded from a negotiated grievance procedure, employees covered by
that procedure are precluded from maintaining suit in Federal court for
overtime pay under the FLSA).
42 FLRA 775
42 FLRA NO. 50
Dept. of Defense, Headquarters, XVIII Airborne Corps and Fort Bragg,
Fort Bragg, North Carolina and AFGE, Local 1770 (Jewett, Arbitrator),
Case No. 0-AR-1916 (Decided October 4, 1991)
7122(a)
ARBITRATION EXCEPTIONS
CONTRARY TO THE STATUTE
INTERFERING WITH AND RESTRAINING RIGHT OF EMPLOYEES
OSHA REGULATIONS
FAILS TO DRAW ESSENCE FROM AGREEMENT
PREMISED ON IRRELEVANT OR UNAVAILABLE EVIDENCE
BASED ON CONTRADICTORY FINDINGS AND ANALYSIS
The Arbitrator determined that the Agency did not violate the
agreement, pertinent law or Government-wide regulation by denying the
grievant official time to accompany Occupational Safety and Health
Administration (OSHA) inspectors on inspection of the Agency's premises.
The Union's first exception is that the award is contrary to the
Statute by interfering with and restraining the rights of employees to
act for a labor organization in a representative capacity, arguing that
OSHA regulations entitle the union representative to accompany the
inspectors. The Union also contends that the award violates Executive
Order 12196, which require agencies to establish procedures to ensure
employee participation in OSHA programs and 29 C.F.R. 1960. The
Authority concluded that the exceptions fail to establish that the award
is deficient in that it is not shown that the award is inconsistent with
the Statute, law or regulation.
The Authority also rejected the second exception, wherein the Union
contended that the award is deficient because: (1) it fails to draw its
essence from the agreement; (2) it is premised on irrelevant or
unavailable evidence; and (3) it is base on contradictory findings and
analysis. In the Authority's view, such claims merely express
disagreement with the Arbitrator's interpretation and evaluation of the
evidence.
Case No. 0-AR-1916
U.S. DEPARTMENT OF DEFENSE HEADQUARTERS, XVIII AIRBORNE CORPS AND
FORT BRAGG, FORT BRAGG, NORTH CAROLINA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Mathew W. Jewett. The Arbitrator determined that the Agency
did not violate the parties' collective bargaining agreement, pertinent
law or Government-wide regulation by denying the grievant official time
to accompany Occupational Safety and Health Administration (OSHA)
inspectors on inspections of the Agency's premises. Accordingly, the
Arbitrator denied the grievance.
The Union filed exceptions to the Arbitrator's award under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Agency did not file an opposition to the Union's exceptions.
For the reasons discussed below, we conclude that the Union has
failed to establish that the award is deficient under section 7122(a) of
the Statute. Accordingly, we will deny the Union's exceptions.
The grievance in this matter arose when the Agency denied the
grievant, a Union steward, 32 hours of official time for the purpose of
accompanying safety and health inspectors from OSHA (inspectors) on
inspections of the Agency's work site. The inspections were conducted
pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C.
Section 668 et seq., Executive Order 12196, and 29 C.F.R. Sections
1960.1-1960.90, which delineate the Federal Employee Occupational Safety
and Health Program. /*/ When the parties were unable to resolve this
dispute, the matter was submitted to arbitration.
After finding that the parties were unable to agree on the issue, the
Arbitrator formulated the issue as follows:
Did the denial of 32 hours of official time to Union steward (the
grievant) to accompany OSHA inspectors during the period 20
through 23 September 1988 violate Articles II and XXII of the
Contract Agreement, 29 CFR 1960 or Executive Order 12196? If so,
what is the remedy?
Award at 2.
According to the Arbitrator, the inspectors conducted their
inspections of the Agency's work site during the period September 13-23,
1988. While the safety inspections were being conducted, the grievant
requested official time for the purpose of accompanying the inspectors.
During the week of September 12, 1988, the grievant received the
official time she had requested. For the week of September 19, 1988,
the grievant requested 40 hours of official time, but was granted only 8
hours and denied the remaining 32 hours. The grievant was on official
time on September 19, worked 8 hours on September 20 and was on sick
leave September 21-23.
The Arbitrator found that in denying a portion of the official time
requested by the grievant, the Agency also informed the Union that "it
was free to select another representative( )" to accompany the
inspector. Id. at 3. The Arbitrator found, however, that the Union did
not select another representative in the grievant's absence.
The Arbitrator then examined the pertinent provisions of law and
regulation and found that the regulatory and statutory sources for the
inspection program "do not specify that the (Union's) representative
must be the same one for the entire period of the inspection." Id. at 6.
Rather, the Arbitrator found that OSHA regulations specify that
different union representatives, as well as employer representatives,
may accompany inspectors during the various phases of the inspections.
The Arbitrator also noted that the parties' collective bargaining
agreement was silent with regard to the designation of a representative.
He stated that the agreement provides only that "(t)he Union will be
permitted to have a representative accompany agency Safety (i)nspectors
during their inspections . . . ." Id. Finally, the Arbitrator noted
that the grievant "'had no safety training'" and concluded that the
Union's insistence on the grievant as its representative to accompany
the inspectors is "a moot point." Id. at 7.
The Arbitrator then observed that the parties had previously
litigated the issue of official time in a proceeding before the Federal
Service Impasses Panel (Panel). Department of the Army, Headquarters,
XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and
Local 1770, American Federation of Government Employees, AFL-CIO, 88
FSIP 37 (Feb. 25, 1988) (Fort Bragg). The Arbitrator first took note of
the Panel's finding that the parties could agree to "cap the total
amount of official time available to Union representatives." Award at 7.
The Arbitrator then found, as to the dispute before him, that "Union
testimony confirmed that the Agreement between these two parties
provides 'stewards were given up to 10 hours in a two-week period(,)'"
for representational purposes. Award at 8. The Arbitrator rejected the
Union's contention that the grievant had the "right to remain with the
inspectors for the entire time of their visit because she had been the
(Union's) selected representative." Id. The Arbitrator found that this
was an erroneous interpretation of the agreement and failed to take
account of the fact that the grievant's work group faced an "unusually
heavy load . . ." at the time of the inspections because it was the
"'end-of-year close-out of all of (the Agency's) records(.)'" Id.
The Arbitrator determined that the grievant was not "the proper
choice . . ." as the Union's representative to accompany the OSHA
inspectors for the entire time of the inspection, essentially for two
reason. Id. at 9. First, the Arbitrator found that, as a Union
steward, the grievant was limited by the parties' agreement to 10 hours
of official time for each bi-weekly period. Second, the Arbitrator
found that the grievant did not have "any unusual qualification . . ."
as a safety representative. Id. Finally, the Arbitrator determined
that due to the unusually heavy load that the grievant's work group was
faced with at the time, the Union's demand that the grievant be the
representative failed to take into account Article III of the parties'
collective bargaining agreement, under which management has the right to
direct employees and, thus, to require the grievant's presence at the
work site.
Consequently, based on his interpretation of applicable law, the
Panel decision, the parties' agreement, and the practices between the
parties, the Arbitrator found that the grievant's use of official time
was properly restricted. The Arbitrator found that the grievant's
selection to accompany the OSHA inspectors did not entitle her to
"unlimited time away from the job." Id. Accordingly, as his award, the
Arbitrator concluded the following:
The denial of 32 hours of official time to Union steward (the
grievant) to accompany OSHA inspectors during the period 20
through 23 September 1988 did not violate Articles II and XXII of
the Contract Agreement, 29 CFR 1960 or Executive Order 12196. The
grievance is, therefore, denied.
Id. at 10.
A. The Union's Position
In support of its first exception, the Union asserts that the award
is contrary to sections 7102(1) and 7116(a)(1) of the Statute by
interfering with and restraining the right of employees to act for a
labor organization in a representative capacity. The Union argues that
OSHA regulations entitle the union representative to accompany OSHA
inspectors "without any arbitrary Official Time cap." Exceptions at 4.
The Union also argues that the award contravenes sections 1-201(f)
and (i) and 1-701 of Executive Order 12196. According to the Union,
these provisions require the head of the Agency to establish procedures
to ensure that employee participation in the OSHA program is not
restrained or interfered with, and that employee representatives may
accompany inspectors on safety inspections of agency work places on
official time.
The Union also contends that the award is contrary to 29 C.F.R.
Sections 1960.1(d) and (e), 1960.10(d), and 1960.27(a). The Union
asserts that these regulations "require specific unrestricted
opportunity for employee participation( )" in the OSHA program that
precludes the imposition of "an arbitrary cap by the Employer or an
arbitrary cap as imposed by the (Panel) . . . ." Id. at 4 (emphasis in
original). The Union also notes that these regulations are designed to
be consistent with the Statute, which authorizes the Union to designate
an employee representative to accompany OSHA inspectors and to negotiate
limits on the use of official time, which has not occurred here.
Finally, the Union asserts that the purpose of having an employee
representative accompany inspectors is to apprise the representative of
any existing or potentially unsafe or unhealthy working conditions and
that the Arbitrator was mistaken in concluding that there was a
requirement that its representative should "acquire any level of
expertise prior to serving in that capacity." Id. at 5 (emphasis in
original).
B. Analysis and Conclusions
We conclude that the Union's exception fails to establish that the
award is deficient. Essentially, the Union argues that it has the right
to designate the representative who will accompany safety inspectors and
that Executive Order 12196 and OSHA regulations allow an unlimited
amount of official time for this purpose. The Union argues that in
denying the grievance, the Arbitrator failed properly to apply law,
including the Statute, and regulation. The Union's position cannot be
sustained
First, the Arbitrator found that the Union's right to designate its
representative was not denied. With regard to the availability of an
unlimited amount of official time, the Arbitrator found that the parties
had agreed to limit the amount of time available to each Union steward
to 10 hours per 2-week period for the performance of representational
duties. Notwithstanding the agreed-upon limitation, however, the
Arbitrator found that the Union was free to designate another
representative to accompany the inspectors. In making these findings,
the Arbitrator examined the relevant statutory and regulatory provisions
governing OSHA safety inspections and found that they permitted the
designation of different representatives during the inspection process.
The Arbitrator also examined the parties' collective bargaining
agreement and found that it did not require a specific representative.
It was on the basis of the Arbitrator's examination and application of
these authorities that the grievance was denied.
The Union has failed to establish that the award is inconsistent with
the Statute, law, or regulation. As noted, the Arbitrator examined
relevant law and regulation in assessing the Union's claim that the
grievant was entitled to an unlimited amount of official time to
accompany inspectors. Nothing contained in the Union's arguments in
support of its exception demonstrates that the Arbitrator misapplied the
relevant authorities. Rather, the Union is expressing disagreement with
the Arbitrator's reasoning and conclusions and is attempting to
relitigate the merits of the dispute. This exception does not
constitute a basis on which to find the award deficient. See, for
example, U.S. Department of the Air Force, Headquarters, Oklahoma City
Air Logistics Center, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, 40 FLRA 88 (1991).
A. The Union's Position
In its second exception, the Union argues that the award is deficient
on other grounds similar to those applied by Federal courts in private
sector labor-management relations cases. Specifically, the Union
contends that the award is deficient because: (1) it fails to draw its
essence from the parties' agreement; (2) it is premised on irrelevant
or unavailable evidence; and (3) it is based on contradictory findings
and analysis.
In support of its argument that the award fails to draw its essence
from the agreement, the Union simply states that the Arbitrator ignored
Article II, Section 1 of the agreement, which provides that all matters
covered by the parties' agreement are governed by existing or future
laws and regulations of appropriate authorities, namely, Government-wide
regulations. As we understand the Union's argument, the Arbitrator
failed to "read into" the collective bargaining agreement the unlimited
availability of official time set forth in OSHA regulations.
B. Analysis and Conclusions
We conclude that the award is not deficient on grounds similar to
those applied by Federal courts in private sector labor-management
relations. First, we address the Union's contention that the award
fails to draw its essence from the parties' agreement. In order for an
award to be found deficient on this basis, the party making the
allegation must demonstrate that the award: (1) cannot in any rational
way be deprived from the agreement; or (2) is so unfounded in reason
and fact, and so unconnected with the wording and the purpose of the
agreement, as to manifest an infidelity to the obligation of the
arbitrator; or (3) evidences a manifest disregard for the agreement;
or (4) does not represent a plausible interpretation of the agreement.
See, for example, U.S. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland and American Federation of
Government Employees, Local 1336, 37 FLRA 766, 771 (1990) (Social
Security Administration).
Here, the Arbitrator was presented with the pertinent provisions of
the parties' collective bargaining agreement and the regulatory and
statutory provisions regarding the use of official time by union
representatives while accompanying inspectors. The Arbitrator found
that the parties had agreed to limit the amount of time available to
union stewards for representational purposes and, on this basis, found
that the restrictions imposed on the grievant's use of official time did
not violate the collective bargaining agreement. There is no basis on
which to conclude that the arbitrator's interpretation is irrational,
unfounded in reason and fact, manifestly disregards the agreement or is
implausible. Accordingly, we find that the award did not fail to draw
its essence from the agreement.
The Union's second contention in support of this exception, that
irrelevant or unavailable evidence was used, relates to the Arbitrator's
examination of the Panel's decision in Fort Bragg. The Union states
that "(t)he important issue when reviewing the Impasse Decision is the
impact of the Decision on Government(-)wide Regulation and Presidential
Order." Exceptions at 6. The Union also advances several arguments
concerning the merits of the Panel decision. The Arbitrator looked to
the decision in Fort Bragg to find that the parties could place a cap on
the amount of official time that would be available for representational
purposes. The Arbitrator then reached the independent finding, based on
the Union's testimony, that the parties had in fact agreed to
limitations on the amount of official time available for use by
stewards. We find that the Union is merely disagreeing with the
Arbitrator's examination and evaluation of the evidence. Such a
contention does not provide a basis for finding an award deficient. See
Social Security Administration, 37 FLRA at 774. Additionally, to the
extent the Union is attempting to argue the merits of the Panel
decision, such arguments are not properly before the Authority in this
proceeding.
Finally, the Union's contention that the award is deficient because
it is based on findings of fact and analysis that "are contradictory and
non-supportive of the Award(,)" Exceptions at 6, is premised on the
following points: (1) the Arbitrator's finding that the Union chose not
to designate another representative after the grievant was denied
official time when, in fact, the Union designated other representatives
for parts of the inspection; (2) the Arbitrator's finding that the
grievant was denied 32 hours of official time and his statement that her
right to official time had not been denied; and (3) the Arbitrator's
agreement with the Union that regulations establish the Union's right to
choose a representative and the Arbitrator's subsequent finding that the
collective bargaining agreement does not reference a specific
representative.
We interpret the first point as a contention that the award is based
on nonfact. To demonstrate that an award is based on a nonfact, the
party making such a claim must demonstrate that the central fact
underlying the award is clearly erroneous, but for which a different
result would have been reached. American Federation of Government
Employees, Local 1568 and U.S. Department of Housing and Urban
Development, 34 FLRA 630, 633 (1990). The Union's contention fails to
establish that the central fact underlying the Arbitrator's award is
clearly erroneous, but for which a different result would have been
reached. The Arbitrator's statement that the Union did not choose
another representative, even if clearly erroneous, was not central to
his finding that the Agency's restriction on the amount of official time
available to the grievant did not violate the parties' collective
bargaining agreement.
As to the other statement made by the Arbitrator that the Union
claims are contradictory and not supported by the award, we find that
the Union is merely disagreeing with the Arbitrator's interpretation and
evaluation of the evidence. Specifically, we find that the Arbitrator's
statement that the grievant was denied 32 hours of official time and his
statement that the right to official time was not denied are not
contradictory. In the first of these statements, the Arbitrator
obviously was referencing the amount of time requested by the grievant
that was in excess of the time the parties agreed would be available for
use by the steward. This is not inconsistent with the second statement,
which reflected the Arbitrator's finding that under the relevant
authorities, the Union had the right to designate different
representatives to accompany inspectors. It was this latter right that
the Arbitrator found was not denied.
The additional statements that are alleged to be contradictory and
not supported by the award relate to the Arbitrator's finding that the
Union had a right to designate its representative to accompany
inspectors and his finding that there was no right to designate a
specific representative. We find that these statements are not
inconsistent. The Arbitrator found that the relevant statutory and
regulatory authorities did not specify the particular representative who
would accompany inspectors, not that the Union was prevented from
designating a particular representative. Rather, consistent with those
authorities, the Arbitrator found that the Union could designate its
representative.
As we stated above, the Union's claims merely express disagreement
with the Arbitrator's interpretation and evaluation of the evidence.
The Union's exception provides no basis for finding the award deficient.
The Union's exceptions are denied.
(*) The pertinent sections of Executive Order No. 12196 and the Code
of Federal Regulations are set forth in an Appendix to this decision.
1-2. Heads of Agencies.
1-201. The head of each agency shall:
(a) Furnish to employees places and conditions of employment
that are free from recognized hazards that are causing or are
likely to cause death or serious physical harm.
(f) Establish procedures to assure that no employee is subject
to restraint, interference, coercion, discrimination or reprisal
for filing a report of an unsafe or unhealthy working condition,
or other participation in agency occupational safety and health
program activities.
(i) Assure that employee representatives accompany inspections
of agency workplaces.
1-7. General Provisions.
1-701. Employees shall be authorized official time to participate in
the activities provided for by this order.
Section 1960.1 Purpose and scope.
(d) Section19 of the (Occupational Safety and Health Act) Act
and the Executive Order (12196) require specific opportunities for
employee participation in the operation of agency safety and
health programs. The manner of fulfilling these requirements is
set forth in part in these program elements. These requirements
are separate from but consistent with the Federal Service Labor
Management Relations Statute (5 U.S.C. 71) and regulations dealing
with labor-management relations within the Federal Government.
(e) Executive Order 12196 and these basic program elements
apply to all agencies of the Executive Branch. They apply to all
Federal employees. They apply to all working conditions of
Federal employees except those involving uniquely military
equipment, systems, and operations.
Section 1960.10 Employee responsibilities and rights.
(d) Employees shall be authorized official time to participate
in the activities provided for in section 19 of the Act, Executive
Order 12196, this part, and the agency occupational safety and
health program.
Section 1960.27 Representatives of officials in charge and
representatives of employees.
(a) Safety and health inspectors shall be in charge of
inspections and may interview any employee in private if the
inspector deems it necessary. A representative of the official in
charge of a workplace and a representative of employees shall be
given an opportunity to accompany Safety and Health Inspectors
during the physical inspection of any workplace, both to aid the
inspection and to provide such representatives with more detailed
knowledge of any existing or potential unsafe or unhealthful
working conditions. The representative of employees shall be
selected by the employees. Additional representatives of the
official in charge and additional representatives of employees may
accompany the Safety and Health Inspectors if it is determined by
the inspector that such additional representatives will further
aid the inspection. Different representatives of the employer and
employees may be allowed to accompany the Inspector during each
different phase of an inspection.
42 FLRA 730
42 FLRA NO. 49
NAGE, Federal Union of Scientists and Engineers, Local R1-144 and U.
S. Department of the Navy, Naval Underwater Systems Center, Newport,
Rhode Island, Case No. 0-NG-1796 (Decided September 30, 1991)
7105(a)(2)(E)
7106(a)(2)(A)
7106(a)(2)(C)
7106(a)(1)
41 C.F.R. Section 301-2.3(e)
7106(b)(3)
NEGOTIABILITY DETERMINATION
DRUG TESTING
MANAGEMENT'S RIGHT TO ASSIGN EMPLOYEES
MANAGEMENT'S RIGHT TO SELECT EMPLOYEES
MANAGEMENT'S RIGHT TO DETERMINE INTERNAL SECURITY PRACTICES
CONDITIONS OF EMPLOYMENT
HHS GUIDELINES
GOVERNMENT-WIDE REGULATION
APPROPRIATE ARRANGEMENTS
This case concerns the negotiability of eleven proposals regarding
drug testing.
Proposal 1 would permit employees who believed that their
constitutional rights were being violated to refuse to enter or remain
in testing designated positions (TDPs) and required management to
provide those employees with an opportunity to transfer from TDPs to
non-TDPs. The Authority found that the proposal was nonnegotiable
because it excessively interfered with management's rights to assign
employees under section 7106(a)(2)(A) and to select candidates from any
appropriate source to fill a vacant position under section 7106(a)(2)(
C) of the Statute.
Proposal 2 required that the Agency, at the request of employees who
believed that their constitutional rights were being violated by the
imposition of the Agency's drug testing program, to reduce the security
clearances of those employees to a level just below the level of the
TDPs to which they had been assigned. The Authority concluded that
Proposal 2 excessively interfered with management's rights to assign
employees to positions under section 7106(a)(2)(A) and to fill positions
by selecting candidates from any appropriate source under section
7106(a)(2)(C) of the Statute and, therefore, it was found nonnegotiable.
Proposal 3 provided that if an employee had been randomly tested,
that employee's name would be removed from the group of employees
subject to random testing for 1 year or until the pool of employees in
TDPs was exhausted. The Authority found that the proposal was
nonnegotiable because it directly interfered with management's right to
determine its internal security practices under section 7106(a)(1) of
the Statute.
Proposal 4 applied to contract employees who worked with Agency
employees in TDPs and who performed the same or similar work as the
employees in TDPs. The proposal required such contract employees to be
subjected to drug testing procedures similar to those used by the
Agency. The Authority found that Proposal 4 did not concern a condition
of employment and, therefore, was found nonnegotiable.
The first sentence of Proposal 5 provided that if an employee being
tested was not able to provide a sample during the shift, the employee
would not be required to remain after the shift to provide a sample.
The Authority found that the first sentence of Proposal 5 was
inconsistent with the final Mandatory Guidelines for Federal Workplace
Drug Testing issued by the Department of Health and Human Services
(HHS), 53 Fed. Reg. 11979-89 (1988) (final Guidelines), which are
Government-wide regulations. Therefore, the first sentence of Proposal
5 is nonnegotiable under section 7117(a)(1) of the Statute.
The second sentence of Proposal 5 provided that employees being
tested should not be denied their normal lunch routine. The Authority
found that the second sentence of Proposal 5 was negotiable.
The first sentence of Proposal 6 allowed employees a choice of
overtime or compensatory time if they were kept beyond scheduled work
hours. The Authority found that this sentence was negotiable under
section 7117(a)(1) of the Statute because it was consistent with
applicable Government-wide regulations.
The second sentence of Proposal 6 required the Agency to provide
transportation for employees from work to home if drug tests required
them to remain beyond their scheduled work hours. The Authority found
that this sentence conflicted with 41 C.F.R. Section 301-2.3(e), a
Government-wide regulation and, therefore, was found nonnegotiable under
section 7117(a)(1) of the Statute.
The third sentence of Proposal 6 provided that employees undergoing
non-random drug testing should not be denied their normal lunch routine.
This sentence was found negotiable.
Proposal 7 provided that an employee may wash all containers and lids
used in the collection process of the employee's urine sample. Proposal
7 was found inconsistent with the final Guidelines and, therefore, was
nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 8 precluded management from frisking or searching employees
as a part of the specimen collection process. Proposal 8 was found
negotiable as an appropriate arrangement under section 7106(b)(3) of the
Statute.
Proposal 9 required the Agency to assign only official observers to
observe the collection process. The Authority found that Proposal 9 was
negotiable.
Proposals 10 and 11 required the Agency to provide training in the
drug testing program to Union representatives and to unit employees.
The Authority concluded that Proposals 10 and 11 were negotiable.
Case No. 0-NG-1796
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, FEDERAL UNION OF
SCIENTISTS AND ENGINEERS, LOCAL R1-144
(Union)
U.S. DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEM CENTER, NEWPORT,
RHODE ISLAND
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
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
eleven proposals regarding drug testing.
Proposal 1 permits employees who believe that their constitutional
rights are being violated to refuse to enter or remain in testing
designated positions (TDPs) and requires management to provide those
employees with an opportunity to transfer from TDPs to non-TDPs. We
find that the proposal is nonnegotiable because it excessively
interferes with management's rights to assign employees under section
7106(a)(2)(A) and to select candidates from any appropriate source to
fill a vacant position under section 7106(a)(2)(C) of the Statute.
Proposal 2 requires the Agency, at the request of employees who
believe that their constitutional rights are being violated by the
imposition of the Agency's drug testing program, to reduce the security
clearances of those employees to a level just below the level of the
TDPs to which they have been assigned. Proposal 2 excessively
interferes with management's rights to assign employees to positions
under section 7106(a)(2)(A) and to fill positions by selecting
candidates from any appropriate source under section 7106(a)(2)(C) of
the Statute and, therefore, is nonnegotiable.
Proposal 3 provides that if an employee has been randomly tested,
that employee's name would be removed from the group of employees
subject to random testing for 1 year or until the pool of employees in
TDPs is exhausted. We find that the proposal is nonnegotiable because
it directly interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
Proposal 4 applies to contract employees who work with Agency
employees in TDPs and who perform the same or similar work as the
employees in TDPs. The proposal requires such contract employees to be
subjected to drug testing procedures similar to those used by the
Agency. We find that Proposal 4 does not concern a condition of
employment and, therefore, is nonnegotiable.
The first sentence of Proposal 5 provides that if an employee being
tested is not able to provide a sample during the shift, the employee
will not be required to remain after the shift to provide a sample. We
find that the first sentence of Proposal 5 is inconsistent with the
final Mandatory Guidelines for Federal Workplace Drug Testing issued by
the Department of Health and Human Services (HHS), 53 Fed. Reg.
11979-89 (1988) (final Guidelines), which are Government-wide
regulations. Therefore, the first sentence of Proposal 5 is
nonnegotiable under section 7117(a)(1) of the Statute.
The second sentence of Proposal 5 provides that employees being
tested shall not be denied their normal lunch routine. We find that the
second sentence of Proposal 5 is negotiable.
The first sentence of Proposal 6 allows employees a choice of
overtime or compensatory time if they are kept beyond scheduled work
hours. We find that this sentence is negotiable under section 7117(a)(
1) of the Statute because it is consistent with applicable
Government-wide regulations.
The second sentence of Proposal 6 requires the Agency to provide
transportation for employees from work to home if drug tests require
them to remain beyond their scheduled work hours. This sentence
conflicts with 41 C.F.R. Section 301-2.3(e), a Government-wide
regulation and, therefore, is nonnegotiable under section 7117(a)(1) of
the Statute.
The third sentence of Proposal 6 provides that employees undergoing
non-random drug testing shall not be denied their normal lunch routine.
This sentence is negotiable.
Proposal 7 provides that an employee may wash all containers and lids
used in the collection process of the employee's urine sample. Proposal
7 is inconsistent with the final Guidelines and, therefore, is
nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 8 precludes management from frisking or searching employees
as a part of the specimen collection process. Proposal 8 is negotiable
as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 9 requires the Agency to assign only official observers to
observe the collection process. We find that Proposal 9 is negotiable.
Proposals 10 and 11 require the Agency to provide training in the
drug testing program to Union representatives and to unit employees. We
conclude that Proposals 10 and 11 are negotiable.
Employees who believe their constitutional rights are being violated
may refuse to enter/remain in positions designated as Testing Designated
Positions (TDP's). Such employee will be provided an opportunity to
transfer to equivalent non-TDP positions.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 1 as requiring management to reassign
employees who object to drug testing to positions that do not require
drug testing. The Agency contends that the proposal directly interferes
with management's rights to assign employees under section 7106(a)(A)
and to select employees for appointment to positions under section
7106(a)(2)(C) of the Statute. The Agency also contends that the
proposal is not an appropriate arrangement under section 7106(b)(3) of
the Statute. The Agency relies on National Federation of Federal
Employees, Local 178 and U.S. Army, Aberdeen Proving Ground,
Installation Support Activity, 31 FLRA 226 (1988) (Aberdeen I) and
National Federation of Federal Employees, Local 2058 and U.S. Army,
Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 241
(1988) (Aberdeen II) in support of its contentions.
2. Union
The Union explains that Proposal 1 is intended "to ensure that drug
testing be performed in compliance with relevant statutory and
constitutional law." Union Response at 1. The Union contends that
proposals requiring that selection of employees for drug testing be made
in accordance with law are negotiable. The Union explains that the
proposal would allow employees to transfer from a TDP to a non-testing
designated position as a remedy for a constitutional violation. The
Union claims that the proposed remedy constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute.
The Union states that the portion of the proposal that conditions a
reassignment on employees' "belief" that their constitutional rights
have been violated is the result of "poor draftsmanship." Id. at 1-2.
The Union contends that the intent of the proposal is to require a
transfer "only if the employee files an actual claim with the
appropriate authority or court alleging that a constitutional violation
does exist." Id. at 3. The Union states that the proposal would
establish a "contractual Temporary Restraining Order Procedure(.)" Id.
B. Analysis and Conclusions
Proposal 1 permits employees to refuse to enter or remain in TDPs and
requires management to provide those employees with an opportunity to
transfer from TDPs to non-TDPs when those employees "believe" that their
constitutional rights are being violated. By its terms, the proposal
conditions the right of an employee to transfer on the employee's belief
as to a constitutional violation of his or her rights, not on the fact
that an employee filed a complaint in court or with another appropriate
authority alleging a constitutional violation. Consequently, the
Union's explanation of the proposal is inconsistent with the plain
wording of that proposal. We will not adopt an explanation of a
proposal that is inconsistent with the plain wording of that proposal.
See National Association of Government Employees, Local R14-5 and Pueblo
Depot Activity, Pueblo, Colorado, 31 FLRA 62, 67 (1988) (Pueblo Depot
Activity). We interpret Proposal 1, therefore, as allowing employees to
refuse to enter or remain in TDPs and requiring management to provide
employees who refuse to be in TDPs an opportunity to transfer to
non-TDPs when those employees believe that their constitutional rights
are being violated as a result of the fact that they are subject to drug
testing. Interpreted in this manner, we find that the proposal is
nonnegotiable.
Proposals that require management, when an employee objects to drug
testing, to grant the request of that employee for reassignment to a
position that does not involve drug testing directly interfere with
management's rights to assign employees under section 7106(a)(2)(A) and
to select from any appropriate source to fill a vacant position under
section 7106(a)(2)(C) of the Statute. See Aberdeen I, 31 FLRA at
231-33; Aberdeen II, 31 FLRA at 247-48. Proposal 1 is substantively
similar to the proposals in Aberdeen I and Aberdeen II.
Proposal 1 requires management to grant employees an "opportunity" to
transfer to equivalent non-TDPs when they object to entering or
remaining in a TDP. By use of the term "opportunity," we interpret
Proposal 1 to mean that if the position offered was acceptable to the
employee, management would be required, as in Aberdeen I and Aberdeen
II, to reassign the employee to that position. Consequently, consistent
with Aberdeen I and Aberdeen II, we find that, by requiring a
reassignment, Proposal 1 directly interferes with management's rights to
assign employees to positions under section 7106(a)(2)(A) and to select
candidates from any appropriate source to fill vacant positions under
section 7106(a)(2)(C) of the Statute.
As Proposal 1 directly interferes with management's right to assign
employees to positions under section 7106(a)(2)(A) and to select
candidates from any appropriate source to fill vacant positions under
section 7106(a)(2)(C), it is nonnegotiable unless, as claimed by the
Union, it constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. To determine whether the proposal
constitutes an appropriate arrangement we must determine whether the
proposal is: (1) intended to be an arrangement for employees who are
adversely affected by the exercise of a management right; and (2)
appropriate because it does not excessively interfere with the exercise
of a management right. See National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24
(1986) (Kansas Army National Guard).
The proposals in Aberdeen I and Aberdeen II required management to
grant employee requests for lateral reassignment to positions that were
not subject to drug testing. The Authority determined that those
proposals did not constitute arrangements for employees adversely
affected by the exercise of a management right within the meaning of
section 7106(b)(3) because the event that triggered the agency's
obligations under the proposals was not the imposition of drug testing,
but the employees' objections to being tested. Upon further
consideration, we conclude that the Authority's determinations that the
proposals in Aberdeen I and Aberdeen II did not constitute arrangements
were based on a misreading of the meaning and effect of the proposals in
those cases. We will no longer follow those decisions to the extent
that they hold that proposals like those in Aberdeen I and Aberdeen II
do not constitute arrangements within the meaning of section 7106(b)(
3).
Specifically, the decisions in Aberdeen I and Aberdeen II are
premised on the finding that the proposals were "an effort to require
the (a)gency to accommodate employees' personal preferences" and the
conclusion that "(t)he adverse effects which the proposal(s) (attempted)
to ameliorate are those which stem from a choice made totally and
completely by the employee, not directly from the exercise of the
management right to require drug testing." Aberdeen I at 233. The
Authority has consistently emphasized, however, that the imposition of
drug testing could adversely affect employees because an employee whose
urine specimen tests positive would be subject to certain personnel
actions and those actions could affect the employee's reputation and
future employment. See National Federation of Federal Employees, Local
15 and Department of the Army, U.S. Army Armament, Munitions and
Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1064 (1988) (Rock
Island I), remanded sub nom. Department of the Army, U.S. Army Armament,
Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No.
88-1239 (D.C. Cir. May 25, 1988) (Order), decision on remand, 33 FLRA
436 (1988) (Rock Island II), rev'd in part and remanded as to other
matters sub nom. Department of the Army, U.S. Army Aberdeen Proving
Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir.
1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990)
(Rock Island III); American Federation of Government Employees,
Department of Education Council of AFGE Locals and U.S. Department of
Education, Washington, D.C., 38 FLRA 1068, 1077-78 (1990) (Department of
Education), reconsideration denied, 39 FLRA 1241 (1991), petition for
review filed sub nom. United States Department of Education v. FLRA, No.
91-1219 (D.C. Cir. May 10, 1991). We also recognize that the imposition
of drug testing may adversely affect employees' personal privacy. See
Department of Education, 38 FLRA at 1094-95. See also National Treasury
Employees Union v. von Raab, 109 S. Ct. 1384, 1390 (1989); Section 4(c)
of Executive Order No. 12564.
By its terms, Proposal 1 attempts to mitigate the adverse effects of
the imposition of drug testing by affording employees the opportunity to
transfer out of TDPs. We find, therefore, that because Proposal 1 is
intended to prevent employees from being adversely affected by being
subjected to the Agency's drug testing program, it is an arrangement for
employees adversely affected by the exercise of a management right
within the meaning of section 7106(b)(3) of the Statute. We note, in
this connection, that because the proposals in Aberdeen I and Aberdeen
II were interpreted as being intended to accommodate employees'
objections to drug testing, the adverse effects of the imposition of
drug testing were not considered. In the future, where section 7106(
b)(3) of the Statute is at issue, we will consider proposals having the
same substantive effect as the proposals in Aberdeen I and Aberdeen II
to be proposed arrangements for employees adversely affected by the
exercise of management's right under section 7106(a)(1) to determine its
internal security practices through the imposition of drug testing.
The question thus becomes whether Proposal 1 is an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute or
whether it excessively interferes with management's rights. In order to
determine whether a proposal excessively interferes with a management
right, we balance the competing practical needs of employees and
managers as they are affected by the proposal. Kansas Army National
Guard, 21 FLRA at 31-32. We find that Proposal 1 is not an appropriate
arrangement.
Proposal 1 allows employees to refuse, on constitutional grounds, to
enter or remain in a TDP and obligates the Agency to provide those
employees with the opportunity for reassignment to an equivalent
non-TDP. The proposal clearly benefits employees who believe that their
constitutional rights are being violated by affording them an
opportunity to become exempt from the drug testing program. However,
based on our interpretation of the proposal as set forth above, that
benefit is obtained by requiring management to reassign those employees
to "equivalent" non-TDPs. The proposal, therefore, precludes management
from placing or retaining in a TDP an employee who believes that his or
her constitutional rights are being violated and from selecting the
person who would fill a non-TDP because management would be required to
fill that position by reassignment of such an employee, regardless of
qualifications or, for example, considerations of workload.
We recognize that employees' personal convictions are important to
them. On the other hand, if management were required, without
exception, to accommodate employees' personal beliefs in determining
assignments to positions, the effective and efficient operation of the
Agency could be severely handicapped. In our view, the proposal imposes
a significant and overly restrictive burden on management's ability to
allocate its personnel resources. We find, therefore, that Proposal 1
excessively interferes with management's rights to assign employees to
positions and to fill positions by selecting from any appropriate
source. Therefore, the proposal is not an appropriate arrangement under
section 7106(b)(3) of the Statute and is nonnegotiable.
Employees who believe their constitutional rights are being violated
may voluntarily have their security clearance reduced to a level just
below that required to be in the TDP group.
A. Positions of the Parties
1. Agency
The Agency interprets the proposal as requiring management "to
redetermine (so as to reduce) security clearances assigned to employees
who object to being in random testing designated positions . . . and,
consequently(,) to reassign that work which can no longer be performed
by these employees to other employees and to reassign these employees to
positions outside the TDP group or, in the alternative, to reduce the
security clearance assigned to an employee and allow the employee to
remain in the established position." Agency Statement at 2. The Agency
contends that the proposal directly interferes with management's rights
to determine its internal security practices under section 7106( a)(1),
to assign work under section 7106(a)(2)(B), and to assign employees
under section 7106(a)(2)(A) of the Statute.
Specifically, the Agency asserts that the establishment of a drug
testing program constitutes an exercise of management's right to
determine its internal security practices. Citing Secretary of the Navy
Instruction (SECNAVINST) 12792.3, "Department of the Navy Drug-Free
Workplace Program," the Agency contends that one purpose of the drug
testing program is to ensure that employees who are entrusted with
national defense secrets "are free of the possibility of coercion or
influence of criminal elements." Id. at 3. According to the Agency, the
use of illegal drugs by personnel in sensitive or critical positions
could "expose extremely sensitive intelligence information." Id. The
Agency concludes that, by requiring management to reduce the security
clearance of an employee in a TDP, the proposal would preclude the
Agency from randomly testing the employee and would thereby directly
interfere with management's right to determine its internal security
practices.
In addition, the Agency asserts that because the proposal would
require management to reassign employees to non-TDPs after their
security clearance is reduced, the proposal directly interferes with
management's right to assign employees under section 7106(a)(2)(A) of
the Statute. Moreover, because employees in TDPs whose security
clearances have been reduced would no longer be able to perform the work
of those positions, the Agency claims that management would be required
to reassign the work of those positions. The Agency asserts, therefore,
that the proposal directly interferes with management's right to assign
work under section 7106(a)(2)(B).
The Agency also contends that the proposal is nonnegotiable under
section 7117(a)(1) of the Statute because it is "inconsistent with
national security law." Agency Statement at 2. Citing Department of the
Navy v. Egan, 108 S. Ct. 818 (1988) (Egan), the Agency contends that no
employee has a right to a security clearance and, therefore, no employee
should have a right to have his or her clearance reduced. The Agency
argues that management has broad discretion to protect classified
information and that its discretion "includes the determination of who
has access to (that information) and any modifications to access." Id.
at 5. The Agency concludes that, because the proposal is inconsistent
with these principles of national security law, the proposal is
inconsistent with law within the meaning of section 7117(a)(1) of the
Statute.
2. Union
The Union explains that Proposal 2, like Proposal 1, is intended "to
ensure that no procedure involved in drug testing TDP's is in violation
of constitutional or statutory law." Union Response at 2. According to
the Union, the proposal allows "a remedy of reduction of security
clearance below that required of a TDP if an actual constitutional
violation exists." Id. The Union contends that the remedy afforded by
the proposal constitutes an appropriate arrangement under section 7106(
b)(3) of the Statute. The Union notes that while the proposal "appears
to require only a subjective standard" of employee "belief" that a
constitutional violation exists, the "actual intent" of the proposal is
to require a reduction in security clearance and a transfer "only if the
employee files an actual claim with the appropriate authority or court
alleging that a constitutional violation does exist." Id. at 2, 3. The
Union states that the proposal would establish a "contractual Temporary
Restraining Order Procedure(.)" Id. at 3.
B. Analysis and Conclusions
By its terms, Proposal 2 would require the Agency, at the request of
employees who believe that their constitutional rights are being
violated by the imposition of the Agency's drug testing program, to
reduce the security clearances of those employees below the level of the
TDPs to which they have been assigned. In the absence of any indication
in the record to the contrary, we interpret Proposal 2 as applying to
those employees who have been assigned to TDPs for which a specified
security clearance is a precondition of assignment. Because Proposal 2
would require that, as to employees who have constitutional objections
to drug testing, management reduce the security clearances of those
employees below the level specified for the TDPs to which they have been
assigned, the effect of the proposal is to disqualify employees for
assignment to those TDPs. See Agency Statement at 4. See also Egan, 108
S. Ct. at 824; American Federation of Government Employees, Local 1923
and U.S. Department of Health and Human Services, Health Care Financing
Administration, Baltimore, Maryland, 39 FLRA 1197, 1205 (1991).
For the reasons discussed in connection with our disposition of
Proposal 1, we conclude that the Union's interpretation of Proposal 2 as
requiring a reduction in security clearance and a transfer only if the
employee files a claim challenging the constitutionality of the drug
testing program is inconsistent with the plain wording of the proposal.
Consequently, as with Proposal 1, we decline to adopt the Union's
interpretation.
Because Proposal 2 requires management to reduce the security
clearances of employees in TDPs who believe that their constitutional
rights are being violated, the proposal has the effect of disqualifying
those employees for assignment to those TDPs. Although Proposal 2 is
silent as to what will be done for those employees who have lost the
security clearance required for their TDPs, the Union explains that
implementation of the proposal will involve the "transfer" of those
employees. Union Response at 3. The Agency also interprets the
proposal as requiring management to reassign to non-TDPs those employees
whose security clearances have been reduced. Agency Statement at 2.
Because the Union's interpretation is consistent with the wording of the
proposal, we will interpret Proposal 2 as requiring management to
reassign employees who, at their own request, have had their security
clearances reduced.
Proposals that preclude management from assigning employees to
particular positions directly interfere with management's right to
assign employees. See West Point Elementary School Teachers
Association, NEA and United States Military Academy, West Point
Elementary School, 34 FLRA 1008, 1010 (1990) (West Point Elementary
School). Moreover, "(a) proposal that conditions the exercise of a
management right on employee choice directly interferes with the
exercise of that right." See Federal Employees Metal Trades Council of
Charleston and U.S. Department of the Navy, Charleston Naval Shipyard,
Charleston, South Carolina, 36 FLRA 401, 405 (1990) (Charleston Naval
Shipyard). Proposal 2 would require management, at the request of
employees assigned to TDPs and based upon their objections to the
constitutionality of drug testing, to reduce those employees' security
clearances, thus precluding the continuation of their existing
assignments to those TDPs. Consequently, we find, consistent with
Charleston Naval Shipyard, that Proposal 2 directly interferes with
management's right to assign employees under section 7106(a)(2)(A) of
the Statute.
To the extent that Proposal 2 requires management to transfer
employees whose security clearances have been voluntarily reduced
because of their beliefs as to the unconstitutionality of the Agency's
drug testing program to non-TDPs, we find, for the reasons discussed in
connection with Proposal 1 and consistent with Aberdeen I and Aberdeen
II, that Proposal 2 directly interferes with management's rights to
assign employees to positions under section 7106(a)(2)(A) and to fill
positions by selecting candidates from any appropriate source under
section 7106(a)(2)(C) of the Statute.
The proposal is nonnegotiable, therefore, unless, as claimed by the
Union, it constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute.
Like Proposal 1, Proposal 2 would benefit employees who believe that
the Agency's drug testing program is unconstitutional by precluding
management from retaining those employees in the TDPs to which they have
been assigned and requiring that they be reassigned to non-TDPs. As
with Proposal 1, however, Proposal 2 requires the reassignment of
employees from TDPs to non-TDPs without regard, for example, to
considerations of workload. Consequently, for the reasons stated in our
analysis of Proposal 1, we find that Proposal 2 excessively interferes
with management's right to assign employees to positions under section
7106(a)(2)(A) and to fill vacant positions by selecting candidates from
any appropriate source under section 7106(a)(2)(C) of the Statute.
Therefore, we conclude that Proposal 2 is not an appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute.
Because we find that Proposal 2 directly and excessively interferes
with management's rights to assign employees to positions under section
7106(a)(2)(A) and to select candidates from any appropriate source to
fill vacant positions under section 7106(a)(2)(C), we find it
unnecessary to address the Agency's claim that the proposal is
nonnegotiable under section 7106(a)(1) of the Statute because it
directly and excessively interferes with management's right to determine
its internal security practices.
Accordingly, we conclude that Proposal 2 is nonnegotiable.
The requirement quota for the random selection from the TDP group
will be made one name at a time. The names will not be returned to the
TDP pool until one year's time has passed. If the quota is such that it
is larger than the remaining TDP pool then all names will be returned to
the pool at the time and then the selection process begun.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 3 as limiting random drug testing to
one test a year for each employee in a TDP. The Agency contends that
the proposal directly interferes with management's right to determine
its internal security practices. In particular, citing National
Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 121
(1988), the Agency asserts that management's decision to adopt a drug
testing plan includes the decision as to the manner in which that plan
will be implemented. Noting that Civilian Personnel Instruction (CPI)
792-3, "Department of the Navy Drug-Free Workplace Program," reserves to
the Secretary of the Navy the right to increase or decrease the
frequency of random testing to "optimize overall deterrence," the Agency
argues that, by limiting random testing to once a year for each
employee, the proposal precludes the Agency "from achieving its stated
deterrence goal." Agency Statement at 6. The Agency concludes that,
because the proposal interferes with the purpose for which the Agency
adopted a drug testing plan, the proposal directly interferes with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute and is, therefore, nonnegotiable.
2. Union
The Union states that its "intent in the random selection procedure
is to test all TDP employees at least once/year." Union Petition at 2.
The Union "wants its unit members who are occasional users to know they
will be selected and if they cannot give up drugs on their own to seek
help." Id. at 2-3. The Union contends that the proposal "will send a
message to Union members that testing will be randomly and efficiently
performed." Union Response at 3.
B. Analysis and Conclusions
Once an employee has been randomly tested, Proposal 3 removes that
employee from the group of employees subject to random testing for 1
year or until the pool of employees in TDPs is exhausted. The proposal
limits the number of times that an employee in a TDP may be randomly
tested during the year following the date on which he or she is randomly
tested. We find that the proposal is nonnegotiable.
Proposals that limit the number of times during a year that an
employee may be subjected to a random drug test directly interfere with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute because such proposals restrict
management's ability to test employees for illegal drug use on a random
basis. See Graphics Communications International Union, Local 98-L and
U.S. Department of Defense, Defense Mapping Agency, Hydrographic
Topographic Command, Washington, D.C., 39 FLRA 437, 442 (1991)
(Hydrographic Topographic Command) (Member Talkin concurring) (proposals
that precluded employees from being subjected to further random testing
during a calendar year once they had tested negative held to directly
and excessively interfere with management's right to determine its
internal security practices under section 7106(a)(1)).
Because Proposal 3 would preclude employees, once they have been
randomly tested, from being subject to random testing again for 1 year
or until the pool of employees is exhausted, we find, consistent with
Hydrographic Topographic Command, that Proposal 3 directly and
excessively interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute. See also
International Federation of Professional and Technical Engineers, Local
128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA
1500, 1530 (1991) (Bureau of Reclamation).
Therefore, we conclude that Proposal 3 is nonnegotiable.
The (Agency) shall require all contractors coming onto (Agency)
grounds, who are performing work the same as or similar to that which
would be designated TDP(,) to test their own employees following
procedures similar to the testing of (Agency) employees by making the
requirement a condition of the contract.
A. Positions of the Parties
1. Agency
The Agency notes that the Union intends the proposal to protect unit
members "and not let them work with or be in the proximity of drug
addicted persons who could physically or mentally hurt its unit
members." Agency Statement at 7. The Agency interprets Proposal 4 as
requiring management to establish and impose a random drug testing
policy on private-sector contractors doing business with the Agency.
The Agency contends that the proposal is nonnegotiable because it: (1)
does not concern a condition of employment of bargaining unit employees;
(2) conflicts with a Department of Defense interim rule, which is a
Government-wide regulation; and (3) conflicts with management's right
to determine its internal security practices under section 7106(a)(1) of
the Statute.
The Agency asserts that "a proposal which is principally focused on
nonbargaining unit positions or employees does not directly affect the
work situation or employment relationship of bargaining unit employees."
Agency Statement at 7. The Agency contends that Proposal 4 is focused
not on unit employees, but instead "concerns all individuals under
contract with the (A)gency who come onto the (A)gency's premises,
regardless of whether they work at the (A)gency's worksite or
elsewhere." Id. Accordingly, the Agency argues that the proposal does
not pertain to bargaining unit employees. Id.
The Agency also contends that Proposal 4 "does not create any rights
for unit employees as employees of the (A)gency nor confer any benefits
which employees would receive by virtue of their employment by the (A)
gency." Id. at 8. Moreover, the Agency argues, the proposal "does not
serve to physically or mentally protect unit employees from drug
addicted contractors . . . because the proposal applies even to
contractors who merely come onto the (A)gency's premises, regardless of
whether they work at the (A)gency or work with unit employees." Id. The
Agency concludes, therefore, that the proposal does not concern a matter
affecting the conditions of employment of unit employees.
The Agency also claims that Proposal 4 is inconsistent with 48 C.F.
R. Section 252.223.7500, which, it argues, is a Government-wide
regulation. That regulation requires Federal contractors to "establish
programs that provide for random testing for the use of illegal drugs by
employees in sensitive positions and, by employees not in sensitive
positions, if the contracting officer determines testing is necessary
for reasons of national security or protection of the health and safety
of those using or affected by a product or performance of the contract."
Agency Statement at 8. The Agency contends that this regulation "does
not apply to subcontracts and places the responsibility of the extent
and criteria of random drug testing on the contractor." Id. The Agency
also notes that the regulation provides that drug testing programs
established by contractors "shall not apply to the extent they are
inconsistent with state or local law, or with an existing collective
bargaining agreement; provided that with respect to the latter, the
contractor agrees that those issues that are in conflict will be a
subject of negotiation at the next collective bargaining session." Id.
The Agency contends that the proposal is inconsistent with the
regulation, which places "implementation responsibilities on the
contractor and not on the (G)overnment." Id. at 9.
Finally, the Agency contends that the regulation establishing the
Agency's drug testing program for its own employees and the Department
of Defense regulation requiring a drug testing program for contractors
"act as deterrents against illegal drug use" and, thus, constitute the
Agency's plans to minimize or eliminate the risks to Government
property, to prevent disclosure of information and disruption of the
Agency's activities. Id. The Agency argues that, because the proposal
requires management to establish and impose a drug testing policy on
private sector contractors, the proposal "directly impinges on"
management's right to determine its internal security practices under
section 7106(a)(1). Id.
2. Union
The Union states that the intent of Proposal 4 is to protect unit
employees by preventing them from working with or being near persons who
use illegal drugs and could "physically or mentally hurt" them.
Petition for Review at 3. According to the Union, the proposal requires
the Agency to test the employees of private sector contractors who work
with unit employees in TDPs for the use of illegal drugs. The Union
contends that the proposal is an appropriate arrangement for unit
employees in TDPs who would be adversely affected if contract employees
performing the same duties were not drug tested. The Union argues that
unit employees would be at risk if they have to work with private sector
employees who have substance abuse problems and that the proposal would
minimize that risk by requiring drug testing for all personnel
regardless of who their immediate employer is. The Union concludes that
the proposal would ensure the safety of the workplace.
B. Analysis and Conclusions
For the following reasons, we conclude that Proposal 4 does not
vitally affect unit employees' conditions of employment and, therefore,
does not constitute a condition of employment for unit employees.
Accordingly, Proposal 4 is nonnegotiable. Moreover, even if Proposal 4
constituted a condition of employment, Proposal 4 would nevertheless be
nonnegotiable for the reasons stated below.
1. Proposal 4 Does Not Concern a Condition of Employment
The Agency contends that Proposal 4 is nonnegotiable because it
concerns solely the working conditions of nonunit employees and,
therefore, does not involve conditions of employment of unit employees
within the meaning of section 7103(a)(14) of the Statute. We disagree.
The fact that a proposal has an effect on the working conditions of
nonunit employees is not in and of itself determinative of the
negotiability of the proposal. See National Federation of Federal
Employees, Local 1482 and U.S. Department of Defense, Defense Mapping
Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA
902, 908 (1991), petition for review filed sub nom. U.S. Department of
Defense, Defense Mapping Agency, Hydrographic/Topographic Center,
Louisville, Kentucky v. FLRA, No. 91-1330 (D.C. Cir. July 16, 1991)
(proposal requiring agency to provide training to supervisors who review
employees' security updates held to "vitally affect" conditions of
employment of unit employees).
Rather, such a proposal is negotiable under the Statute if it (1)
vitally affects the working conditions of unit employees and (2) is
consistent with applicable law, including the management rights
provisions of section 7106 of the Statute, and regulations. See
National Federation of Federal Employees, Local 1482 and U.S.
Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39
FLRA 1169, 1187 (1991) (Defense Mapping Agency, Louisville, Kentucky),
petition for review filed sub nom. U.S. Department of Defense, Defense
Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir.
May 10, 1991); American Federation of Government Employees, Local 32,
AFL-CIO, and Office of Personnel Management, 33 FLRA 335, 338 (1988),
enf'd sub nom. U.S. Office of Personnel Management v. FLRA, 905 F.2d 430
(D.C. Cir. 1990).
A proposal having an effect on nonunit employees will be found to
vitally affect the conditions of employment of unit employees if the
effect of that proposal upon unit employees' conditions of employment is
"significant and material, as opposed to indirect or incidental."
Defense Mapping Agency, Louisville, Kentucky, 39 FLRA at 1187, quoting
International Association of Machinists and Aerospace Workers, Local
Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry
Point, North Carolina, 38 FLRA 1451, 1455 (1991), petition for review
filed sub nom. U.S. Department of the Navy, Naval Aviation Depot, Cherry
Point, North Carolina v. FLRA, No. 91-1123 (D.C. Cir. Mar. 12, 1991).
The record in this case does not demonstrate that requiring the
Agency to drug test contractors' employees using procedures similar to
those for unit employees would have a significant and material effect on
the working conditions of unit employees. The proposal does not direct
the Agency to take any actions with respect to unit employees. Rather,
it applies to contract employees who perform the same or similar work as
unit employees in TDPs. Moreover, consistent with its plain wording,
the proposal could be read, as claimed by the Agency, to include all
such individuals "who come onto the (A)gency's premises, regardless of
whether they work at the (A)gency's worksite or elsewhere." Agency's
Statement of Position at 7. The record does not contain any information
as to the nature or duration of contact between bargaining unit
employees in TDPs and contract employees who perform the same or similar
work. Based on the record before us, it has not been shown how the
proposal has any more than, at best, an indirect or incidental effect on
unit employees' working conditions. Accordingly, we find that Proposal
4 does not vitally affect conditions of employment of bargaining unit
employees. Compare Patent Office Professional Association and
Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 834-35
(1991) (Patent and Trademark Office), petition for review filed sub nom.
Department of Commerce, Patent and Trademark Office v. FLRA, No. 91-1179
(D.C. Cir. April 17, 1991) (proposal which required agency, among other
things, to train supervisors in evaluation of unit employees' work found
to concern matters that vitally affect the conditions of employment of
unit employees under section 7103(a)(14) of the Statute).
Consequently, as Proposal 4 does not vitally affect the conditions of
employment of unit employees, it is nonnegotiable.
2. Even If Proposal 4 Concerned a Condition of Employment, Proposal
4 Would Be Nonnegotiable
Even assuming, however, that Proposal 4 were found to concern a
matter which vitally affects the conditions of employment of unit
employees, it would nevertheless be nonnegotiable. We note at the
outset that the proposal is not nonnegotiable because it is inconsistent
with a Government-wide regulation under section 7117(a)(1) of the
Statute. The regulation relied on by the Agency as a Government-wide
regulation, is not a Government-wide regulation within the meaning of
section 7117(a) of the Statute, but is an Agency-wide regulation which
does not bar negotiation under section 7117(a)(1). Rather, Proposal 4
is nonnegotiable because it excessively interferes with management's
right to determine its internal security practices under section 7106(a)
of the Statute, and, therefore, does not constitute an appropriate
arrangement within the meaning of section 7106(b)(3).
a. The Regulation Relied on by the Agency Is Not a Government-wide
Regulation Within the Meaning of Section 7117(a)
We find that 48 C.F.R. Section 252.223.7500, relied on by the Agency,
is not a Government-wide regulation within the meaning of section
7117(a) of the Statute. The general Federal Acquisition Regulations
(FAR) are codified at Chapter 1 of Title 48, Code of Federal
Regulations. Subsequent chapters are reserved for agency acquisition
regulations that implement or supplement the FAR. The FAR in Chapter 1
and the agency regulations in Chapter 2 to 49 comprise the FAR System.
48 C.F.R. Section 1.104-1(b); 48 C.F.R. Subpart 1.3 -- Agency
Acquisition Regulations; 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, 530-31 (1987).
Because Section 252.223.7500 is part of Chapter 2, which is reserved for
Department of Defense regulations supplementing the FAR, it is an Agency
regulation. 48 C.F.R. Section 252.200. Therefore, 48 C.F.R. Section
252.223.7500 does not constitute a Government-wide regulation within the
meaning of section 7117(a) of the Statute.
We note that the Agency asserts that 48 C.F.R. Section 252.223.7500
was published in the Federal Register on January 31, 1989, as an interim
regulation. The section relied on by the Agency was actually published
in the Federal Register on Sept. 28, 1988. 53 Fed. Reg. 37763-65,
Sept. 28, 1988; 48 C.F.R. Section 252.223.7500. A review of the
January 31, 1989, Federal Register shows that FAR interim regulations on
a Drug-Free Workplace were published on that date at 54 Fed. Reg. 4968.
Those regulations became final on May 25, 1990, 55 Fed. Reg. 20707.
However, the FAR provisions on a drug-free workplace do not address
contractors' use of drug testing as a means to achieve a drug-free
workplace. See 48 C.F.R. Ch. 1, Subpart 23.5 -- Drug-Free Workplace.
The Agency has not demonstrated any conflict between those regulations
and Proposal 4, and none is apparent to us.
Because the regulation relied on by the Agency does not constitute a
Government-wide regulation within the meaning of section 7117(a) of the
Statute, and no other Government-wide regulation is raised as a bar, we
reject the Agency's contention that Proposal 4 is inconsistent with
Government-wide regulation.
b. Proposal 4 Directly Interferes With Management's Right Under
Section 7106(a)(1) to Determine Its Internal Security Practices
The Agency claims that Proposal 4 directly interferes with its right
to determine its internal security practices under section 7106(a)(1) of
the Statute. We agree.
An agency's right to determine its internal security practices under
section 7106(a)(1) of the Statute includes the right to determine the
policies and take actions which are part of its plan to secure or
safeguard its personnel, its physical property, and its operations. See
National Federation of Federal Employees, Local 2050 and U.S.
Environmental Protection Agency, 35 FLRA 706 (1990) (EPA); National
Federation of Federal Employees, Local 15 and U.S. Army Armament,
Munitions and Chemical Command, Rock Island Arsenal, Rock Island,
Illinois, 30 FLRA 472, 475 (1987); National Association of Government
Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public
Works Center, Great Lakes, Illinois, 30 FLRA 415, 417 (1987).
Proposal 4 requires that the procedures for drug testing of certain
contract employees be the same as the procedures applicable to
bargaining unit employees in TDPs. The proposal establishes a standard
governing the actions that the Agency will take and the procedures it
will adopt to safeguard the personnel, the property, and the operations
at Agency workplaces. Proposal 4 precludes the Agency from using other
measures governing drug use by contractors' employees to ensure a
drug-free workplace. In particular, it precludes the Agency from
requiring contractors to use other procedures to ensure a drug-free
workforce, even if those measures were more stringent than those applied
by the Agency. In essence, Proposal 4 establishes a substantive
limitation on management's determination of the internal security
practices that it will employ at Agency workplaces where Agency and
contractors' employees perform the same or similar work.
Proposals which establish substantive criteria governing the exercise
of a management right directly interfere with that right. See West
Point Elementary School, 34 FLRA 1008, 1010 (1990); Rock Island I, 30
FLRA 1046, 1059-60 (1988); American Federation of Government Employees,
AFL-CIO, Local 1501 and Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, 24 FLRA 470, 472-73
(1986). In Defense Logistics Council of American Federation of
Government Employees Locals v. FLRA, 810 F.2d 234 (D.C. Cir. 1987)
(Defense Logistics Council), the court upheld the Authority's
determination that a proposal establishing standards governing the
suspension of driving privileges for driving while intoxicated were
nonnegotiable under section 7106(a)(1). The court stated as follows:
Each of these provisions seeks to modify the criteria by which the
(a)gency determines suspensions. Each is clearly substantive. . .
. Under the "direct interference" test, therefore, these (u)nion
proposals are nonnegotiable since they directly interfere with
management's right to determine its internal security practices.
. . . The language of these proposals would substantively alter
the decisionmaking criteria used by management in implementing the
Directive.
Defense Logistics Council, 810 F.2d at 240 (citations omitted).
Moreover, it is not necessary that a proposal dictate the specific
action that an agency must take in order for that proposal to constitute
a substantive limitation on the exercise of a management right. A
general criterion may also constitute a substantive limitation on that
right. See American Federation of Government Employees, Local 3748 v.
FLRA, 797 F.2d 612, 617-18 (D.C. Cir. 1986); National Treasury
Employees Union v. FLRA, 767 F.2d 1315, 1317 (9th Cir. 1985). See also
EPA, 36 FLRA at 627.
Even though Proposal 4 does not dictate the specific terms of the
provision which management must include in agreements with outside
contractors, it limits management's decision as to the measures it will
institute to ensure a drug-free workplace, where both bargaining unit
and contractors' employees work together. Accordingly, we conclude that
Proposal 4 establishes a substantive criterion that directly interferes
with management's right to determine its internal security practices
under section 7106(a)(1) of the Statute. See Rock Island I, 30 FLRA at
1060.
c. Proposal 4 Is Not an Appropriate Arrangement Under Section 7106(
b)(3)
The Union claims that Proposal 4 constitutes an appropriate
arrangement within the meaning of section 7106(b)(3). As noted above,
to determine whether a 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 right.
The Union contends that Proposal 4 is intended to protect employees
from "private sector workers who have substance abuse problems (which)
would not be detected and would put drug free (U)nion workers at risk."
Union's Response at 5. In light of this contention, we conclude that
the proposal is intended to address the adverse effects of the internal
security practices that the Agency has employed at its facilities.
Therefore, it is intended to be an arrangement within the meaning of
section 7106(b)(3).
The next question is whether Proposal 4 excessively interferes with
management's right to determine its internal security practices so as
not to constitute an appropriate arrangement. As noted above, in
determining whether a proposal excessively interferes with a management
right, we will weigh "the competing practical needs of employees and
managers" to determine whether the benefit to employees afforded by the
proposal is greater than the burden placed by the proposal on the
exercise of the management right or rights involved. Kansas Army
National Guard, 21 FLRA at 31-34.
The Agency contends that Proposal 4 "directly impinges on
management's right to establish its internal security practices."
Agency's Statement of Position at 9. The Agency asserts that its
regulations "constitute the (A)gency's plans which are intended to
eliminate or minimize risks to (G)overnment property and prevent
disclosure of information and disruption of the (A)gency's right to
determine its internal security practices." Id.
The Union argues that Proposal 4 would eliminate the potential that
private sector workers who have substance abuse problems would not be
detected and would put bargaining unit employees at risk. The Union
claims that Proposal 4 is an appropriate arrangement for rectifying this
situation because it would require uniform testing of employees in TDPs
regardless of who their immediate employer is. The Union asserts that
Proposal 4 would ensure safety of the workplace through equitable drug
testing procedures for TDPs and contractors' employees performing
similar work, regardless of their employer.
We find that Proposal 4 excessively interferes with management's
right to determine its internal security practices. Therefore, Proposal
4 does not constitute an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute.
The proposal does not direct the Agency to take any actions with
respect to unit employees. Rather, it applies to contract employees who
perform the same or similar work as unit employees in TDPs, and would
require the use of testing techniques similar to those used on unit
employees, and would preclude the use of more stringent testing methods.
As we stated above, the proposal could be read, as claimed by the
Agency, to include all such individuals "who come onto the (A) gency's
premises, regardless of whether they work at the (A)gency's worksite or
elsewhere." Agency's Statement of Position at 7.
Moreover, the record does not contain any information as to the
nature or duration of contact between bargaining unit employees in TDPs
and contract employees who perform the same or similar work. The
contact could be very limited, of short duration, or only at a
significant distance between the employees. The record does not show
how the contact would differ from contact with a visitor to the
worksite. As such, the purported benefit of the proposal to employees
is speculative at best compared to the burden on the Agency of requiring
contractors to use similar drug testing procedures on their employees
rather than other or more stringent procedures, and we conclude that
Proposal 4 excessively interferes with management's right to determine
its internal security practices.
Therefore, even if Proposal 4 were found to concern a condition of
employment, we find that it would not constitute an appropriate
arrangement within the meaning of section 7106(b)(3) and, therefore,
would be nonnegotiable.
Persons in testing designated positions who are being tested under
the random selection procedure, shall not be required to supply a sample
outside of the employee's scheduled work hours. Any employee, who is
required to remain under surveillance during his/her scheduled lunch
period, shall not be denied his/her normal lunch routine.
A. Positions of the Parties
1. Agency
The Agency interprets the first sentence of the proposal to limit
management's discretion to order an employee to undergo drug testing
when the time required to collect a urine specimen for testing extends
beyond the regular shift. The Agency asserts that the first sentence is
nonnegotiable because it interferes with management's rights to assign
work under section 7106(a)(2)(B) and to determine internal security
practices under section 7106(a)(1) of the Statute. The Agency also
asserts that the first sentence does not constitute an appropriate
arrangement because there is no adverse effect on employees which
results from the assignment to provide a drug sample outside an
employee's regular work shift. The Agency argues that its policy
providing for overtime pay or compensatory time mitigates any intrusion
into an employee's personal time when an employee is assigned to stay
beyond the shift to provide a urine sample for a drug test.
The Agency argues that "(t)he authority to order an employee to
undergo a urine test is an assignment of work. See American Federation
of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661
and U.S. Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Danbury, Connecticut, 31 FLRA 95, 99 (1988)."
Agency's Statement of Position at 10. The Agency maintains that
management's right to assign work 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
right to assign work. The Agency argues that Proposal 5 interferes with
its right to assign work because it limits the Agency's discretion to
determine the duration of work assignments according to Agency policy
regarding the collection of urine samples for drug tests.
The Agency asserts that its right to determine its internal security
practices under section 7106(a)(1) of the Statute includes the
formulation of those policies and measures which are part of the
Agency's plan to secure or protect its physical property against
internal or external risks, to prevent improper or unauthorized
disclosure of information, or to prevent the disruption of the Agency's
activities. The Agency contends that an integral part of that decision
is its policy requiring employees being tested to remain at the
collection site within view of the drug program coordinator until they
are ready to provide a sample.
The Agency contends that the second sentence of Proposal 5, which
would require the Agency to release employees at the end of their work
shift or during lunch breaks, interferes with the Agency's purposes for
adopting a drug testing program so as to conflict with management's
rights to determine internal security practices. The Agency asserts
that allowing employees to leave would give them an opportunity to clear
their systems of traces of drugs or to fail to return to provide the
urine sample when scheduled.
2. Union
The Union states that Proposal 5 means that "unit personnel selected
by random procedure are not criminals or drug abusers and shall not be
required to remain after hours against their will if they cannot provide
a urine specimen during their regularly scheduled hours." Union Petition
at 4. The Union states that Proposal 5 provides that unit members shall
be allowed to eat as they normally would even when required to provide
specimens. The Union states that Proposal 5 ensures that "(t)he passing
of a urine sample shall not be used to harass a person who has a problem
in providing urine samples." Id.
The Union claims that Proposal 5 is negotiable under section 7106(
b)(2) and (b)(3) of the Statute. The Union asserts that Proposal 5 is
intended as a procedure to be observed when the Agency exercises its
management rights by requiring a drug test. The Union claims that the
first sentence of Proposal 5 is an appropriate arrangement for employees
who would be adversely affected by requiring them to provide a sample
outside of scheduled work hours. The Union asserts that the second
sentence of Proposal 5 is a procedure to ensure that employees being
tested are not deprived of their lunch breaks.
B. Analysis and Conclusions
We find that the first sentence of Proposal 5 is inconsistent with
the final Guidelines. Because the first sentence of Proposal 5 is
inconsistent with the final Guidelines, which are Government-wide
regulations, it is nonnegotiable under section 7117(a)(1) of the
Statute. We find that the second sentence of Proposal 5 is negotiable.
1. The First Sentence
The Union states that Proposal 5 means that an employee who cannot
produce a urine sample will not be required to stay beyond the end of
the shift to try to produce the required sample. Because the Union's
explanation of the meaning of Proposal 5 is consistent with the wording
of the proposal, we will adopt that interpretation for purposes of this
decision. We find that, interpreted in this manner, the first sentence
of Proposal 5 has the same effect as other proposals providing that an
employee may leave the collection site if he or she is unable to provide
a sample of sufficient volume. See American Federation of Government
Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra
Army Depot, Herlong, California, 37 FLRA 1439, 1445-47 (1990) (Member
Talkin dissenting as to other matters) (Sierra Army Depot).
The final Guidelines are Government-wide regulations within the
meaning of section 7117(a)(1) of the Statute. Aberdeen Proving Ground,
890 F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. The final
Guidelines provide instructions to the collection site person in the
event that an employee sent for drug testing cannot provide a sample of
sufficient size, that is, 60 milliliters. The Guidelines provide that
the employee being tested "may be given a reasonable amount of liquid to
drink for this purpose (e.g., a glass of water)." See section 2.2(
f)(10) of the final Guidelines, 53 Fed. Reg. 11981. If the employee
being tested still fails to provide a sample of at least 60 milliliters,
the collection site person is to contact the appropriate authority for
guidance. Id.
The first sentence of Proposal 5 provides that if the employee is
unable to provide a sample during his or her shift, the employee will
not be required to remain in order to try to provide a sample. The
effect of the first sentence is that the employee will not be required
to remain at work or at the collection site past his or her shift. The
first sentence of Proposal 5 is inconsistent with the portion of the
final Guidelines providing that the collection site person is to contact
the appropriate authority for guidance. The first sentence of Proposal
5 would not permit collection site personnel to comply with the
instructions in section 2.2(f)(10) of the final Guidelines. Because the
first sentence of Proposal 5 provides alternate procedures for an
employee who is unable to produce a sample of sufficient volume during
his or her regularly scheduled hours of work, it is inconsistent with
section 2.2(f)(10) of the final Guidelines. As the first sentence of
Proposal 5 is inconsistent with the final Guidelines, it is
nonnegotiable under section 7117(a)(1) of the Statute.
Because we have found that the first sentence of Proposal 5 is
inconsistent with a Government-wide regulation and is nonnegotiable
under section 7117(a)(1) of the Statute, we need not reach the question
of whether the proposal constitutes an appropriate arrangement under
section 7106(b)(3). The Authority will not consider whether a proposal
constitutes an appropriate arrangement within the meaning of section
7106(b)(3) when, as in this case, the proposal is nonnegotiable under
section 7117(a)(1) and not under section 7106. See, for example,
American Federation of Government Employees, AFL-CIO, Local 3232 and
Department of Health and Human Services, Social Security Administration,
Region II, 31 FLRA 355 (1988) (DHHS, SSA, Region II). Moreover,
inasmuch as the first sentence of Proposal 5 is nonnegotiable under
section 7117(a)(1) of the Statute, we need not consider the other
arguments raised by the parties. See Sierra Army Depot, 37 FLRA 1439,
1447 (1990).
2. The Second Sentence
The second sentence of Proposal 5 provides that an employee being
tested shall not be denied his or her normal lunch routine. The
proposal also provides that the employee may be required to remain under
surveillance during the lunch period. We find that the second sentence
of Proposal 5 is negotiable.
The Agency has not demonstrated, and it is not otherwise apparent to
us, that the second sentence of Proposal 5 is inconsistent with the
final Guidelines or with management's rights under section 7106.
Because the second sentence of Proposal 5 states that the employee to be
tested may be kept under surveillance during the lunch period, the
proposal would not have the potential to compromise the integrity of the
testing process. The proposal does not preclude compliance with
provisions of the final Guidelines, such as section 2.2(6) regarding the
employee's access to water fountains, faucets, etc. after reporting to
the collection site. If the employee reports to the collection site and
encounters delays, the employee may follow his or her lunch routine,
albeit while under surveillance as required by the Agency, and then
report again to the collection site and again follow the procedures
established in the final Guidelines. Because it has not been shown to
be inconsistent with law or regulation, the second sentence of Proposal
5 is negotiable.
Those persons being tested outside the random selection process, if
detained beyond scheduled work hours, shall be in a work status and will
be paid overtime dollar (sic) or compensatory time at their choice. In
addition, these persons will be provided transportation to their homes.
If under surveillance during scheduled lunch period they shall not be
denied their normal lunch routine.
A. Positions of the Parties
1. Agency
The Agency interprets the first sentence of Proposal 6 as allowing
any bargaining unit employee who is required to remain beyond normal
duty hours to provide a urine specimen under non-random testing the
option of overtime payment or compensatory time. The Agency asserts
that the first sentence of Proposal 6 is nonnegotiable because it is
inconsistent with applicable Government-wide regulations.
The Agency states that there are approximately 925 bargaining unit
employees covered by the General Schedule (GS), of whom approximately 50
are at the GS-5/7 level and are covered by the Fair Labor Standards Act
(FLSA), and approximately 900 are at the GS-9 through 15 levels and are
exempt from FLSA. The Agency states that 5 C.F.R. Section 551.531( b),
which governs the former group of employees, provides, in pertinent
part, that an employee who earns an overtime pay entitlement may be
granted compensatory time off if the employee earns an overtime
entitlement under 5 C.F.R. Section 550.113 that is equal to or greater
than the employee's entitlement under 5 C.F.R. Section 551.501.
The Agency also states that as to employees who are covered under
title 5 overtime pay provisions and not FLSA, 5 C.F.R. Section 550.114(
b) provides, in pertinent part, that an employee whose rate of basic pay
exceeds the maximum rate for GS-10 shall be compensated for irregular or
occasional overtime work with an equivalent amout of compensatory time
off from his or her tour of duty instead of payment under 5 C.F.R.
Section 550.113. The Agency asserts that the first sentence of Proposal
6 would give employees the option of electing compensatory time or
overtime pay without regard to whether such employees are precluded from
doing so by applicable Government-wide regulation. The Agency concludes
that the first sentence of the proposal is nonnegotiable under section
7117(a)(1) because it is inconsistent with applicable Government-wide
regulations.
The Agency interprets the second sentence of Proposal 6 as obligating
the Agency either to furnish a Government-owned vehicle to transport an
employee home or to authorize payment of taxicab fares if an employee
misses a carpool ride, when the employee has been required to remain at
the collection site beyond normal duty hours to provide a specimen and
the employee does not have transportation home. The Agency asserts that
the second sentence of Proposal 6 is nonnegotiable because it conflicts
with 31 U.S.C. Section 1344 and Federal Travel Regulation (FTR) 1-2.3(e)
(41 C.F.R. Section 301-2.3(e)), a Government-wide regulation.
The Agency claims that the FTR "authorizes the payment of taxicab
fare in specified circumstances when an employee is officially ordered
to work outside his or her designated post of duty." Agency Statement at
13. The Agency contends that appropriated funds may not be used for
transporting employees from work to home. The Agency asserts that to
the extent that the second sentence of Proposal 6 obligates the Agency
to furnish a Government-owned vehicle to provide these employees with
transportation to their homes, the proposal conflicts with applicable
law and is nonnegotiable under section 7117(a)(1) of the Statute.
Additionally, the Agency argues that Section 1-2.3(e) of the FTRs
precludes payment of employees' work to home commute, except under
limited circumstances. The Agency maintains that the second sentence of
Proposal 6 does not include all of the regulatory elements necessary to
establish eligibility for payment of cab fare on completion of an
overtime assignment.
Specifically, the Agency argues that the proposal makes no reference
to taxicab fare. The Agency contends that the proposal is broad enough
to encompass the cost of a rental car. Moreover, the Agency states
that, according to the Union's statement of intent, the employee will be
provided transportation if a carpool ride is missed, regardless of the
continued availability of other public transportation. The Agency
states that the FTRs authorize payment from work to home after an
overtime assignment only when the employee is dependent on public
transportation and when the travel is during hours of infrequently
scheduled public transportation or darkness. Therefore, the Agency
claims that the second sentence of Proposal 6 is inconsistent with FTR
Section 1-2.3(e), which is a Government-wide regulation within the
meaning of section 7117(a)(1), and concludes that the proposal is
nonnegotiable.
The Agency interprets the third sentence of Proposal 6 as permitting
an employee to leave the premises on lunch breaks while the employee is
undergoing non-random drug testing, such as reasonable suspicion testing
and accident or unsafe practice testing where the employee provides a
urine sample under direct observation. The Agency asserts that the
third sentence of Proposal 6 is nonnegotiable because it interferes with
its right to determine its internal security practices under section
7106(a)(1) of the Statute.
The Agency argues that during non-random drug testing, such as
reasonable suspicion and accident or unsafe practice testing, where
direct observation of collection is required, constant surveillance of
the employee during a lunch break is essential to the determination of
whether an employee has used illegal drugs. The Agency contends that if
an employee were released for lunch under these circumstances, "the
employee might not return or could attempt to devise some means to
sabotage the test result." Id. at 16. The Agency asserts that under
these circumstances, the determination that employees may not leave the
collection site until a specimen has been provided constitutes an
exercise of the Agency's right to determine its internal security
practices under section 7106(a)(1) of the Statute. The Agency concludes
that because the third sentence of Proposal 6 directly interferes with
the Agency's right to determine its internal security practice, it is
nonnegotiable.
2. Union
The Union states that its intent in Proposal 6 is to prevent
supervisors from harassing employees by stating that they suspect an
employee of being under the influence of drugs. The Union states that
if management is required to implement the Union's proposals,
supervisors would hesitate to require employees to remain after hours or
during lunch periods, if only to harass an employee, because under
Proposal 6 it would cost the supervisors money. In addition, the Union
states that any person who is subjected to non-random drug testing is
suspected of being on drugs and, therefore, that person should not be
allowed to drive. The Union states that if employees belong to a car
pool, they should not be required to pay their taxi fare home.
The Union claims that Proposal 6 is negotiable under section 7106(
b)(2) and (b)(3). The Union contends that the first sentence of
Proposal 6 is intended to provide compensation to employees who are kept
beyond regular working hours while awaiting a drug test. The Union
asserts that this sentence is intended as an appropriate arrangement
under section 7106(b)(3) of the Statute for employees who would be
adversely affected by being tested after working hours. According to
the Union, the second sentence of Proposal 6 is intended to require the
Agency to provide transportation home for an employee if the employee is
tested at such a time that he or she is unable to commute home because a
ride was missed or because public transportation stopped running for the
day.
B. Analysis and Conclusions
The first sentence of Proposal 6, which allows employees a choice of
overtime or compensatory time if they are required to remain at work
beyond scheduled work hours, is negotiable under section 7117(a)(1) of
the Statute because it is consistent with the applicable Government-wide
regulation. The second sentence of Proposal 6, which requires the
Agency to provide transportation for employees from work to home if drug
tests keep them beyond their scheduled work hours, conflicts with 41
C.F.R. Section 301-2.3(e), a Government-wide regulation. Therefore, the
second sentence of Proposal 6 is nonnegotiable under section 7117(a)(1)
of the Statute. The third sentence of Proposal 6, which provides that
employees undergoing non-random drug testing shall not be denied their
normal lunch routine, is negotiable.
1. The First Sentence
Federal employees are generally divided into two groups insofar as
overtime payment is concerned -- those employees who are exempt from
coverage by the FLSA and earn overtime only under title 5 of the United
States Code and those employees who are covered by the FLSA and who earn
overtime only under the FLSA. Under 5 C.F.R. Section 550.114, employees
who are exempt from the FLSA and are covered by title 5 may, upon
request, earn compensatory time in lieu of overtime pay for time spent
in irregular or occasional overtime work. Under 5 C.F.R. Section
551.531, which has recently been revised by the Office of Personnel
Management to implement the Federal Employees Pay Comparability Act of
1990 (FEPCA), Pub. L. No. 101-509, 104 Stat. 1427 (1990), employees who
are covered by the FLSA and are not prevailing rate employees may also,
upon request, earn compensatory time in lieu of overtime pay for time
spent in irregular or occasional overtime work. See FPM Bulletin
551-25; 56 Fed. Reg. 20339 (1991).
Based on the record in this case, we find that the bargaining unit
consists of employees who are exempt from the FLSA and employees who are
covered by the FLSA. There are no prevailing rate employees in the
unit. Agency Statement of Position at 14. Therefore, all unit
employees may, consistent with law and regulation, request compensatory
time off instead of overtime pay for occasional or irregular overtime
work. The first sentence of Proposal 6, by its plain terms, gives all
unit employees, both those exempt from the FLSA and those covered by the
FLSA, the right to request and be granted compensatory time in lieu of
overtime pay. Consequently, we conclude that the first sentence of
Proposal 6 is consistent with 5 C.F.R. Sections 550.114 and 551.531.
Therefore, the first sentence of Proposal 6 is negotiable.
2. The Second Sentence
The second sentence requires the Agency to provide transportation
home whenever an employee is required to remain at work for a drug test
after scheduled work hours. Under the Travel Expense Act and the FTRs,
employees must place themselves at their regular places of work and
return to their homes at their own expense absent statutory or
regulatory authority to the contrary. 55 Comp. Gen. 1323 (1976). See
also National Council of Field Labor Locals, Local 2513, AFGE and U.S.
Department of Labor, Employment Standards Administration, Region 2, 29
FLRA 451, 454 (1987) (Employment Standards Administration).
We note that the second sentence makes no reference to taxicab fare.
However, in its statement of intent, the Union explains that the
proposal means that employees should not have to pay the taxi fare for
their ride home. Petition for Review at 5. Because the Union's
explanation is consistent with the wording of the proposal, we will
adopt this interpretation of the second sentence of Proposal 6 for the
purposes of this decision. Based on the Union's explanation of the
second sentence, we interpret that portion of the proposal as requiring
the Agency to pay employees' taxi fare home whenever they are required
to remain at the testing site after work hours.
The FTRs, at 41 C.F.R. Section 301-2.3(e), authorize the payment of
taxicab fare only in specific circumstances, as explained below, when an
employee is officially ordered to work outside of regular working hours
at his or her designated post of duty. Because the second sentence of
Proposal 6 would require the Agency to pay employees' taxi fare whenever
employees are required to remain after work hours to complete a drug
test, regardless of the circumstances, we find that the second sentence
of the proposal is inconsistent with 41 C.F.R. Section 301-2.3(e).
The FTRs are Government-wide regulations within the meaning of
section 7117(a)(1) of the Statute. International Association of
Machinists and Aerospace Workers Union and Department of the Treasury,
Bureau of Engraving and Printing, 33 FLRA 711, 740 (1988) (Bureau of
Engraving and Printing). The FTRs establish the circumstances under
which an Agency may reimburse an employee for the cost of transportation
between office and residence. 41 C.F.R. Section 301-2.3(e) states:
Reimbursement for the usual taxicab fares paid by an employee for
travel between office and home may be authorized or approved
incident to the conduct of official business at an employee's
designated post of duty when the employee is dependent on public
transportation for such travel incident to officially ordered work
outside of regular working hours and when the travel is during
hours of infrequently scheduled public transportation or darkness.
Agencies are expected to establish stringent administrative
controls at sufficiently high levels which ensure that
reimbursements are authorized only when justifiable and when all
circumstances set forth herein are met.
41 C.F.R. Section 301-2.3(e). The FTRs are codified in title 41 of the
Code of Federal Regulations. See 54 Fed. Reg. 20262 (1989).
Consistent with its plain wording and the Union's statement of
intent, the second sentence of Proposal 6 would require the Agency to
pay employees' taxi fare home whenever they are required to remain after
work hours for drug testing. As noted previously, however, the FTRs
authorize payment of taxi fare after an overtime assignment only "when
the employee is dependent on public transportation" and "when the travel
is during hours of infrequently scheduled public transportation or
darkness." 41 C.F.R. Section 301-2.3(e).
To the extent that the second sentence provides taxi fare home to an
employee who is dependent on public transportation and who was required
to remain at work for purposes of drug testing after public
transportation stopped running, the proposal would be negotiable.
However, the FTRs do not provide for the payment of taxi fare home while
public transportation is still available. Id. Because the second
sentence of Proposal 6 would require the payment of taxi fare whenever
employees are required to remain at work, regardless of whether public
transportation is available, we find that the second sentence of the
proposal is inconsistent with 41 C.F.R. Section 301-2.3(e).
Accordingly, because 41 C.F.R. Section 301-2.3(e) is a Government-wide
regulation within the meaning of section 7117(a)(1) of the Statute, we
conclude that the second sentence of Proposal 6 is nonnegotiable under
section 7117(a)(1) of the Statute. See Bureau of Engraving and
Printing, 33 FLRA at 741.
3. The Third Sentence
The third sentence of Proposal 6 is like the second sentence of
Proposal 5, which provides that employees who are required to remain
under surveillance while awaiting a drug test under random selection,
may follow their normal lunch routine. The third sentence of Proposal 6
states that if the employee is under surveillance, the employee shall
not be denied the normal lunch routine. We note that the parties have
not attributed any significance to the slightly different wording in
these proposals, and we find that the differences in the proposals are
not meaningful. For the reasons stated in our analysis and conclusion
regarding the second sentence of Proposal 5, we find that the third
sentence of Proposal 6 is negotiable.
4. Summary
Because we have found that the first and second sentences of Proposal
6 are inconsistent with Government-wide regulations and are
nonnegotiable under section 7117(a)(1) of the Statute, we need not reach
the question of whether the first and second sentences of Proposal 6
constitute an appropriate arrangement under section 7106(b)( 3). As
noted above, the Authority will not consider whether a proposal
constitutes an appropriate arrangement within the meaning of section
7106(b)(3) when, as in this case, the proposal is nonnegotiable under
section 7117(a)(1) and not under section 7106. See, for example, DHHS,
SSA, Region II, 31 FLRA 355 (1988). Moreover, inasmuch as the first and
second sentences of Proposal 6 are inconsistent with Government-wide
regulations and are nonnegotiable under section 7117( a)(1) of the
Statute, we need not consider the other arguments raised by the parties.
See Sierra Army Depot, 37 FLRA at 1447.
All containers and covers which will contain employees' urine sample
may be washed and rinsed by the employee, in the presence of an official
observer, if he/she so requests. This option will be given to the
testee in writing at the time the sample is requested.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 7 is nonnegotiable because it
interferes with the Agency's right to determine its internal security
practices under section 7106(a)(1) of the Statute. The Agency also
contends that Proposal 7 is inconsistent with section 2.2(f)(6) of the
final Guidelines, which are Government-wide regulations within the
meaning of section 7117(a)(1) of the Statute. The Agency asserts that
that section of the final Guidelines provides that after employees have
reported to the collection site and have washed their hands, they are
not to have access to any water fountain, faucet, soap dispenser,
cleaning agent, or any other materials which could be used to adulterate
the specimen. The Agency argues that if an employee washed the
collection container and lid prior to providing the sample, traces of
water or soap could remain in the container and taint the sample. The
Agency concludes that because the proposal requires that the employee be
allowed to wash the containers, the proposal is inconsistent with
section 2.2(f)(6) of the final Guidelines.
2. The Union
The Union states that the intent of Proposal 7 "is to protect
employees from persons or persons who would salt the containers or
covers." Union Petition at 5-6. The Union states that Proposal 7 is
intended as a procedure, under section 7106(b)(2) of the Statute, to
ensure accurate and untainted test results. According to the Union,
allowing an employee to wash all the containers and covers used in the
collection process for the employee's urine sample will enhance employee
confidence in the accuracy of drug testing. Union's Response at 7.
B. Analysis and Conclusions
Proposal 7 provides that an employee may wash all containers and lids
used in the collection process of the employee's urine sample. Because
we find that Proposal 7 is inconsistent with the final Guidelines, we
conclude that Proposal 7 is nonnegotiable under section 7117(a)(1) of
the Statute.
As noted earlier, the final Guidelines are Government-wide
regulations within the meaning of section 7117(a)(1) of the Statute.
Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA at
438-39. The final Guidelines provide instructions to the personnel at
the collection site to ensure the integrity and identity of specimens.
The final Guidelines provide that after washing their hands, employees
who are to be tested "shall remain in the presence of the collection
site person and shall not have access to any water fountain, faucet,
soap dispenser, cleaning agent or any other materials which could be
used to adulterate the specimen." Section 2.2(f)(6) of the final
Guidelines, 53 Fed. Reg. 11980-81. Because section 2.2(f)(6) of the
final Guidelines precludes employee access to water, soap, or other
cleaning materials that could be used to adulterate a specimen, except
when employees are washing their hands, we conclude that the purpose of
section 2.2(f)(6) is to prevent employees from using soap or other
cleaning agents to adulterate their specimens.
Proposal 7 provides that employees may wash and rinse all collection
containers and lids which will contain their urine samples. The
proposal does not specify whether employees would wash and rinse the
containers before or after washing their hands. Section 2.2(f)(6) of
the final Guidelines precludes employees, after they have washed their
hands, from having access to cleaning agents and water which they could
use to adulterate their specimens. Interpreted literally, therefore,
section 2.2(f)(6) of the Guidelines would not preclude employees from
cleaning containers before they wash their hands. In our view, however,
the purpose of section 2.2(f)(6) is to limit employees' access to and
use of soap and cleaning agents only to the washing of their hands
before the test. We note, in this connection, that section 2.2( f) of
the final Guidelines requires agencies to "take precautions to ensure
that a urine specimen not be adulterated or diluted during the
collection procedure(.)" 53 Fed. Reg. 11980.
Interpreting the specific limitation set forth in section 2.2(f)(6)
in light of the general policy requiring measures to prevent
adulteration or dilution of specimens prescribed by section 2.2(f), we
conclude that these provisions of the final Guidelines are designed to
minimize, throughout the testing procedure, whether before or after
hand-washing, the risk that employees may take actions that would affect
the validity of the test. The exception for hand-washing to the
limitation on employee access to water, soap, or other cleaning
materials in section 2.2(f)(6) is intended to be construed narrowly.
See Section 8 of the Response to Comments, 53 Fed. Reg. 11973.
By requiring that employees be allowed to clean the containers used
to collect their specimens, the proposal permits employees to use soap
and other cleaning agents for purposes other than cleaning their hands.
The proposal therefore authorizes a use for soap and cleaning agents
which is inconsistent with the limitation prescribed in section 2.2(f)(
6), namely, that employees have no access to those materials other than
to wash their hands. Consequently, by requiring that the employees be
allowed to use cleaning agents and water to clean or rinse the
collection container, Proposal 7 is inconsistent with section 2.2(f)(6)
of the final Guidelines. Because Proposal 7 is inconsistent with the
requirement of section 2.2(f)(6) of the final Guidelines, it is
nonnegotiable under section 7117(a)(1) of the Statute.
Because Proposal 7 is inconsistent with a Government-wide regulation
and is nonnegotiable under section 7117(a)(1) of the Statute, we need
not consider the other arguments raised by the parties. See Sierra Army
Depot, 37 FLRA at 1447.
No person shall be frisked or searched.
A. Positions of the Parties
1. Agency
The Agency interprets the proposal as immunizing employees from
inspections and searches. The Agency contends that the proposal
directly interferes with management's right to determine its internal
security practices under section 7106(a)(1). Citing National
Association of Government Employees, Local R4-6 and Department of the
Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) and National Treasury
Employees Union, Chapter 21 and Department of the Treasury, Bureau of
Engraving and Printing, 18 FLRA 405 (1985), the Agency asserts that
proposals limiting management's right to conduct searches are
nonnegotiable.
The Agency also notes that the final Guidelines require the
collection site person to ask individuals to remove any unnecessary
outer garments that might conceal items or substances that could be used
to tamper with or adulterate urine specimens. The Agency contends that
if the collection site person believes that an individual is concealing
items or substances that could be used to tamper with or adulterate the
specimen, the proposal would preclude the collection site person from
searching that individual. The Agency concludes that, because the
proposal would prevent such a search, the proposal directly interferes
with management's right to determine its internal security practices.
2. Union
The Union explains that the intent of Proposal 8 is to prevent unit
employees from being "manhandled or treated as criminals" during "the
entire procedure of providing a specimen(.)" Union Petition at 6.
According to the Union, the proposal simply requires management to
comply with constitutional and statutory limitations on searches or
frisks while employees are being tested.
B. Analysis and Conclusions
By its plain wording, Proposal 8 precludes management from frisking
or searching an employee in any situation. Taken literally, therefore,
the proposal would apply to situations other than drug testing.
However, because both the Agency and the Union understand the proposal
to govern only the collection of urine specimens, we will limit our
interpretation of the proposal to those circumstances. Consequently, we
interpret the proposal as restricting the Agency's ability to frisk or
search employees who have been required to provide a urine sample for
drug testing purposes. Interpreted in this manner, we find that the
proposal is negotiable.
In American Federation of State, County and Municipal Employees,
Local 3097 and Department of Justice, Justice Management Division, 42
FLRA No. 33 (1991) (Justice Management Division), we found a proposal
substantively the same as Proposal 8 in this case to be negotiable.
Proposal 31 in Justice Management Division provided that employees sent
for drug testing will not be subject to any kind of search or frisk
procedures and will not be required to disrobe, with the exception of
outer garments. Applying the principles set forth in Kansas Army
National Guard, 21 FLRA at 31-33, we concluded that, even if Proposal 31
directly interferes with management's right to determine its internal
security practices, the proposal is negotiable as an appropriate
arrangement under section 7106(b)(3) of the Statute.
In particular, we found in Justice Management Division that Proposal
31 was not inconsistent with those portions of Section 2.2 of the final
Guidelines that permitted the Agency to require employees to remove
their outer garments or that permitted direct observation. See Section
2.2(f)(4) and (13) of the final Guidelines. 53 Fed. Reg. 11980-81.
Neither the wording of Proposal 8 nor the record in this case suggests
that the proposal is intended to preclude the Agency from requiring
employees to remove their outer garments prior to providing a urine
sample or directly observing the provision of a sample where there is
reason to believe that the sample may be altered or substituted. We
conclude, therefore, that Proposal 8 in this case, like Proposal 31 in
Justice Management Division, is consistent with applicable law and
regulation.
In Justice Management Division we also found that, under Kansas Army
National Guard, Proposal 31 constituted an arrangement for employees
adversely affected by management's right to test employees for drugs
because it protected employees against the intrusions on their privacy
incident to a frisk. We also found that because Proposal 31, consistent
with applicable law and regulation, permitted the Agency to directly
observe the provision of a sample where there was reason to believe that
the sample may be altered or substituted, the proposal allowed the
Agency to ensure that the integrity of the sample was not compromised.
We concluded, therefore, that the benefit to employees of the protection
against frisks and searches afforded by the proposal outweighed the
minimal burden imposed by the proposal on the exercise of management's
rights.
Proposal 8 in this case, like Proposal 31 in Justice Management
Division, would benefit employees by limiting the intrusion on their
privacy that would result from a frisk or a search. Moreover, as we
concluded above, Proposal 8, like Proposal 31 in Justice Management
Division, would not preclude the Agency from ensuring the integrity of
the sample by direct observation where there is reason to believe that
the sample may be altered or substituted.
The Union did not explicitly claim that Proposal 8 was intended to be
an appropriate arrangement. However, where the issue of appropriate
arrangements is not raised, if the proposal at issue is substantively
the same as a proposal in a case in which the issue was raised, in order
to avoid the anomaly of conflicting results in similar cases, the
Authority will consider the issue. See American Federation of
Government Employees, AFL-CIO, Local 3457 and U.S. Department of the
Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA
1276, 1278 (1991). Consistent with Justice Management Division,
therefore, we find that the benefit to employees afforded by Proposal 8
outweighs the burden imposed by the proposal on management's right to
determine its internal security practices under section 7106(a)(1).
Because we find that the benefit to employees afforded by Proposal 8
outweighs the burden imposed by the proposal on management's right to
determine its internal security practices, we find that Proposal 8 does
not excessively interfere with that right. We conclude, therefore, that
Proposal 8 is a negotiable appropriate arrangement under section
7106(b)(3) of the Statute. See Justice Management Division, 42 FLRA No.
33, slip op. at 69-72.
No person shall be observed by any other than the official observer
while providing a sample.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 9 as preventing the Agency "from
assigning more than one 'officially designated observer' should the
situation warrant." Agency Statement at 19. The Agency contends that
the proposal directly interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute and to determine
"unilaterally" the number of employees assigned to a work project under
section 7106(b)(1). Id.
Specifically, the Agency contends that management's right to assign
work includes the discretion to determine the particular employees to
whom particular responsibilities will be assigned. Because Proposal 9
precludes anyone other than the official observer from observing an
employee during the collection of the urine sample, the Agency concludes
that the proposal directly interferes with management's right to assign
work.
The Agency also contends that proposals that require the assignment
of two or more employees to a work project directly interfere with
management's right to determine the number of employees assigned to a
work project, under section 7106(b)(1). The Agency further contends
that such proposals are nonnegotiable unless the Agency elects to
bargain on them. Because Proposal 9 would prevent management from
assigning more than one employee to observe the collection of the urine
specimen, the Agency concludes that the proposal is nonnegotiable under
section 7106(b)(1) unless the Agency elects to bargain on the proposal.
2. Union
The Union explains that Proposal 9 is intended "to prevent
perversion" and to ensure unit members' privacy. Union Petition at 6.
According to the Union, the proposal limits the persons who would
observe the collection procedure to those persons who are officially
designated observers. The Union contends that the proposal would not
limit the number of officially designated observers. Union Response at
8. The Union concludes that the proposal is a negotiable procedure
under section 7106(b)(2) of the Statute.
B. Analysis and Conclusions
Proposal 9 requires the Agency to assign only official observers to
observe the collection process. In the absence of any evidence to the
contrary, we interpret the proposal as taking effect only where the
Agency has determined that an observer is required because there is
"reason to believe" that an employee will alter or substitute his or her
sample. See Section 4(c) of Executive Order No. 11564.
We also find, consistent with the wording of the proposal and the
Union's stated intent, that the proposal would not restrict the Agency's
determination as to which persons could be an official observer or the
number of individuals who could be designated as official observers. We
note, in this regard, that the proposal refers to "the" official
observer. The Union explains, however, that "(t)he proposal does not
intend to limit in any way the number of management appointed official
observers. The intent ( ) is to allow only official observers to view
the testing." Union Response at 9. In our view, the Union's explanation
is consistent with the wording of the proposal. Moreover, there is no
evidence in the record that there is a particular individual who has
been designated as "official observer." Accordingly, the phrase could
equally plausibly be read to refer to the class of individuals
designated by the Agency as an "official observer." Consequently, we
will adopt the Union's explanation of the proposal for purposes of this
decision.
Interpreted in this manner, Proposal 9 does not limit the number of
official observers that could be assigned in any given instance where
the Agency determines that an observer is necessary. The proposal
limits observation of the collection process to those persons designated
as observers by the Agency but does not restrict the Agency's ability to
designate those observers or to assign them to observe a particular
instance of specimen collection.
Based on this interpretation, we find that Proposal 9 does not
directly interfere with management's rights to assign work under section
7106(a)(2)(B) or to determine the numbers, types and grades of employees
assigned to a work project under section 7106(b)(1) of the Statute.
Proposals that require management to assign work to particular employees
directly interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute. See Patent and Trademark Office, 39 FLRA
783, 789-90 (1991) (proposal requiring delegation of signatory authority
to GS-13 examiners held to directly interfere with the right to assign
work under section 7106(a)(2)(B)). On the other hand, proposals that
preserve management's discretion as to the employees to whom it will
assign particular duties are negotiable. See Defense Mapping Agency,
Louisville, Kentucky, 39 FLRA 1169, 1189-90 (1991). Because Proposal 9
does not restrict management's ability to designate the persons who will
serve as observers, we find, consistent with Defense Mapping Agency,
Louisville, Kentucky, that the proposal does not directly interfere with
management's right to assign work under section 7106(a)(2)(B).
Moreover, proposals that direct management to assign a particular
number of employees to a particular task directly interfere with
management's right to determine the numbers of employees assigned to a
work project under section 7106(b)(1) of the Statute. See Patent and
Trademark Office, 39 FLRA at 805 and 825. Proposals that preserve
management's discretion as to the numbers of employees to assign to a
work project or tour of duty do not directly interfere with management's
right under section 7106(b)(1). See National Federation of Federal
Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving
Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA
1389, 1393-96 (1991) (Aberdeen Proving Ground Support Activity).
Because Proposal 9 does not restrict management's ability to determine
the number of employees who could be an observer or who could observe a
particular specimen collection, we find, consistent with Aberdeen
Proving Ground Support Activity, that the proposal does not directly
interfere with management's right to determine the numbers, types and
grades of employees assigned to a work project under section 7106(b)(1)
of the Statute.
Accordingly, we find that Proposal 9 is negotiable.
The Union officials and stewards will be given the same training as
supervisors.
Proposal 11
Employees will be given biannual training sessions on the ills of
substance abuse.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 10 as requiring management "to provide
specific training on drug testing to union officials and stewards."
Agency Statement at 20. The Agency interprets Proposal 11 as requiring
management "to train employees to be knowledgeable of the consequences
of substance abuse so that employees will not use drugs and, thereby,
will someday eliminate the need for drug testing." Id. at 21. The
Agency contends that, because the proposals require training for unit
employees and determine the content of that training, the proposals
directly interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute.
2. Union
The Union explains that the intent of Proposals 10 and 11 is "to
ensure that TDP employees, (U)nion officials, (U)nion stewards and
management are all fully aware and understand the procedure to be used
during drug testing." Union Response at 9. The Union indicates that the
drug testing program will be implemented smoothly if all personnel
involved are "fully aware of what is required of them." Id. The Union
also notes that a drug free workplace will be achieved more easily by a
combination of education and drug testing. The Union concludes that the
proposals constitute negotiable procedures under section 7106(b)(2) of
the Statute.
B. Analysis and Conclusions
By their terms, and as explained by the Union, Proposals 10 and 11
would require the Agency to provide training in the drug testing program
to Union representatives and to unit employees. There is no evidence in
the record that the proposals are intended to instruct employees who
have responsibilities in the drug testing program as to how to
accomplish those responsibilities, that the proposals are intended
directly to affect, or would directly affect, employees' work
performance, or that the proposals are intended to increase the
knowledge, proficiency, skill and qualifications of employees in the
performance of their official duties. See American Federation of
Government Employees, Local 3407 and U.S. Department of Defense, Defense
Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557
(1991) (Defense Mapping Agency). Rather, as explained by the Union, the
proposals are intended only to educate or inform Union representatives
and unit employees as to the operation of the drug testing procedures.
Proposals that require management to provide union representatives
and unit employees with training in the agency's drug testing program,
to the extent that they merely require management to provide information
and do not involve instruction in the duties of employees' positions, do
not directly interfere with management's right to assign work under
section 7106(a)(2)(B) of the Statute. See U.S. Department of
Transportation and Federal Aviation Administration, 40 FLRA 690, 713-16
(1991) (Federal Aviation Administration); National Treasury Employees
Union and U.S. Department of the Treasury, Internal Revenue Service,
Washington, D.C., 39 FLRA 1532, 1535-36 (1991) (Internal Revenue
Service); Defense Mapping Agency, 39 FLRA at 559-66. Because Proposals
10 and 11 merely require management to provide Union representatives and
unit employees training in, and information about, the operation of drug
testing procedures, we find, consistent with Federal Aviation
Administration, Internal Revenue Service, and Defense Mapping Agency,
that the proposals do not directly interfere with management's right to
assign work. Consequently, we conclude that Proposals 10 and 11 are
negotiable.
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on the second sentence of Proposal 5; the first and
third sentences of Proposal 6; Proposal 8; Proposal 9; Proposal 10;
and Proposal 11. /*/ The petition for review as to Proposal 1;
Proposal 2; Proposal 3; Proposal 4; the first sentence of Proposal 5;
the second sentence of Proposal 6; and Proposal 7 is dismissed.
(*) In finding these proposals to be negotiable, we make no judgment
as to their merits.
42 FLRA 712
42 FLRA NO. 48
Dept. of Veterans Affairs, Veterans Administration Medical Center,
Memphis, Tennessee and NAGE, Local R5-66, Case No. 4-CA-00371 (Decided
September 30, 1991)
7116(a)(1) and (5)
UNFAIR LABOR PRACTICE
CHANGING CONDITIONS OF EMPLOYMENT
PROCEDURE FOR APPROVING SICK LEAVE
IMPLEMENTING CHANGE WITHOUT NOTIFICATION
The complaint alleged that the Respondent violated section 7116(a)(
1) and (5) by changing its procedure for approving sick leave, a
condition of employment, and implementing the change without notifying
the Union and bargaining concerning the substance or impact of the
change. In agreement with the Judge, the Authority found that the
General Counsel had failed to establish a prima facie case. The
Authority concluded that the General Counsel had shown, at most, that
two employees who previously had been cited for sick leave abuse were
required to present additional medical evidence to justify their
requests for sick leave. The General Counsel did not establish that
this was a newly imposed requirement or a change in a condition of
employment.
Case No. 4-CA-00371
U.S. DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL
CENTER, MEMPHIS, TENNESSEE
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-66
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel and by the Union to the attached decision
of the Administrative Law Judge. The Respondent filed separate
responses to the General Counsel's and the Union's exceptions.
The complaint alleged that the Respondent violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) by changing its procedure for approving sick leave, a
condition of employment, and implementing the change without notifying
the Union and bargaining concerning the substance or impact of the
change. The Judge found that the General Counsel had failed to
establish a prima facie case, and recommended that the complaint be
dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. Upon consideration of the Judge's
decision and the entire record, we adopt the Judge's findings,
conclusions, and recommended order.
In order to establish a prima facie showing that an unfair labor
practice has occurred, the General Counsel must present evidence that
would establish the elements of the statutory violation alleged, if such
evidence is presumed to be true and the evidence presented by the
opposing party is disregarded. Action, 26 FLRA 299, 301 (1987). The
evidence must be sufficient only to withstand a motion to dismiss.
Letterkenny Army Depot, 35 FLRA 113, 119 (1990).
Section 7116(a)(5) of the Statute makes it an unfair labor practice
for an agency to refuse to bargain in good faith with an exclusive
representative of its employees. As a result, an agency must provide
the exclusive representative with notice of proposed changes in
conditions of employment affecting unit employees and an opportunity to
bargain over those aspects of the changes that are negotiable. Even if
the subject matter of the change is outside the duty to bargain, an
agency must bargain about the impact and implementation of a change in
conditions of employment that has more than a de minimis impact on unit
employees. U.S. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland and Social Security
Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA
1309, 1317 (1991).
Thus, to establish a prima facie case that an agency has refused to
bargain in good faith in violation of section 7116(a)(5), the General
Counsel must show that there was an established practice concerning a
negotiable condition of employment and that the agency changed the
practice without giving notice to the exclusive representative and
affording it an opportunity to bargain. In the case of a change in a
condition of employment that is nonnegotiable, the General Counsel must
show that the agency made the change without giving the union the
opportunity to bargain on the impact and implementation of the change.
The threshold question in this case is whether the Respondent changed
its procedure for approving sick leave for previous absences by
requiring medical evidence, in addition to that contained on the
standard form 71 (SF-71), to support sick leave taken by employees whom
the Respondent previously had found to have abused sick leave. The
Judge found that the General Counsel had not established that the
Respondent changed its procedure for approving sick leave in such
circumstances. Therefore, the Respondent was under no obligation to
notify the Union when the Respondent required such information, or to
bargain with it concerning such demands.
Accepting the evidence presented by the General Counsel as true for
the purpose of testing the sufficiency of the General Counsel's case, we
agree with the Judge that the General Counsel failed to establish a
prima facie case.
The General Counsel called three witnesses. Two of these witnesses
were employees who testified that they were surprised to be asked for
additional support for sick leave claims when they returned from leave.
The record shows that the Respondent required these employees to submit
additional evidence for approval of leave taken after December 1989 when
both were on "medical certification," a status that results from
continued sick leave abuse after a warning that a pattern of sick leave
abuse has been observed. The General Counsel's third witness had been
the local Union president since an unspecified date in 1987. Transcript
at 61. He testified that prior to the fall of 1989, additional medical
evidence had not been required to justify absences for sick leave.
Thus, at most, the General Counsel's evidence establishes that two
employees, who were required to furnish additional medical evidence for
the sick leave they had taken after December 1989, had not known of such
a requirement in the past, /1/ and that the current Union president did
not know about such a policy. The General Counsel presented no evidence
other than the subjective belief of these three witnesses regarding the
actual policy that existed concerning sick leave documentation prior to
December 1989. In particular, the record does not establish whether any
other employees on medical certification had ever taken sick leave
during their time in that status, or if they had, whether they were
permitted to do so without providing additional evidence. As noted by
the Judge, a demand for the additional information from employees under
medical certification "may not be a change at all from past practice
since there are no cited instances involving employees in that status
for whom approval was sought for past leave usage." Judge's Decision at
11.
The Union argues that the parties have negotiated over the type of
evidence that will be administratively acceptable to support a claim for
sick leave and have agreed that such evidence will be an SF-71 completed
by a doctor or a statement from the doctor. Accordingly, the Union
contends, any change in the evidence required must be the product of
negotiations. We disagree that Article 28, section 2 D of the parties'
collective bargaining agreement establishes the type of documentation
that may be required when management suspects that an employee is
abusing sick leave. /2/ Rather, the provision states only that the
Activity may require a "medical certificate" in such circumstances,
without defining what information the medical certificate shall include.
The Union president testified that approval of sick leave for employees
absent for a minimum of three days consisted of a doctor's statement
providing evidence that the employee could not work, and that the
statement could be in the form of a signed SF-71. Transcript at 62;
General Counsel's Exhibit 4. However, the Union president did not
testify as to the Respondent's requirements for sick leave documentation
from employees who had been placed on medical certification. Therefore,
we do not find that this testimony is definitive regarding the meaning
of the term "medical certificate" contained in Article 28 section 2 of
the negotiated agreement.
In summary, the General Counsel has shown, at most, that two
employees who previously had been cited for sick leave abuse were
required to present additional medical evidence to justify their
requests for sick leave taken after December 1989. We agree with the
Judge's conclusion that the General Counsel did not establish that this
was a newly imposed requirement or a change in a condition of
employment.
The complaint is dismissed.
Case No. 4-CA-00371
DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL
CENTER, MEMPHIS, TENNESSEE
Respondent
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-66
Charging Party
Austin G. Moody, Esq. For the Respondent
Sherrod G. Patterson, Esq. For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on May 15, 1990,
by the Regional Director for Region IV, Federal Labor Relations
Authority, a hearing was held before the undersigned on June 7, 1990 at
Memphis, Tennessee.
This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. section 7101, et seq., (herein called the Statute).
It is based on a first amended charge filed on April 23, 1990 by
National Association of Government Employees, Local R5-66 (herein called
the Union) against Department of Veterans Affairs, Veterans
Administration Medical Center, Memphis, Tennessee (herein called the
Respondent).
The Complaint alleged, in substance, that in December 1989 Respondent
changed its procedure for approving sick leave by requiring additional
medical information to support requests by employees for sick leave
approval. Further, that such change was implemented without notifying
the Union and bargaining with it concerning the substance or impact and
implementation thereof - all in violation of section 7116( a)(1) and (5)
of the Statute.
Respondent's Answer, /3/ dated June 1, 1990, denies that the alleged
change in the procedure for approving sick leave, as well as the
commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter briefs were filed which have been
duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
1. At all times material herein the National Association of
Government Employees (NAGE) has been, and still is, the exclusive
bargaining representative of a nationwide unit of employees for
collective bargaining including employees at Respondent's Medical
Center.
2. The Union herein has been, at all times material herein, the
delegated agent of NAGE and has acted as its representative for the
purposes of collective bargaining on behalf of Respondent's employees.
3. At all times material herein both NAGE and Respondent have been
parties to a collective bargaining agreement which covers the unit
employees of Respondent's Medical Center.
4. The said collective bargaining agreement /4/ provides, under
Article 28 - LEAVE, Section 2 D 1, that generally, SF-71 (Application
for Leave) and a medical certificate or equivalent should not be
required for a sick leave period of three consecutive work days or less.
Further, that when a supervisor believes an employee is abusing the
entitlement to sick leave, a medical certificate may be required for any
period of absence. /5/
5. The following provisions regarding sick leave is set forth in 5
CFR Section 630.403 entitled "Supporting evidence." --
An agency may grant sick leave only when supported by evidence
administratively acceptable. Regardless of the duration of the
absence, an agency may consider an employee's certification as to
the reason for his absence as evidence administratively
acceptable. However, for an absence in excess of 3 workdays, or
for a lesser period when determined necessary by an agency, the
agency may also require a medical certificate, or other
administratively acceptable evidence as to the reason for the
absence.
6. A Policy Memorandum issued by Respondent on June 14, 1989 is
entitled "LEAVE FOR MEDICAL CENTER EMPLOYEES" (G.C. Exhibit 17). It
provides under 3(b) thereof, inter alia, that supervisors are
responsible for determining necessity for, or acceptability of, sick
leave medical certificates. Further, under 3(c) thereof, inter alia,
that employees are responsible for submitting accurate statements about
absences, application for, and use of sick leave; and furnishing
medical certificates when required.
7. In support of its contention that in December 1989 Respondent
changed its past practice of accepting merely a doctor's certificate
(form SF-71) from employees in the Respiratory Therapy Unit for approval
of sick leave, General Counsel adduced testimony from three witnesses.
The events in which they were involved, as well as their testimonies in
that regard, are as follows:
(a) Renee Curtis is employed by Respondent as a Respiratory
Technician in the Respiratory Therapy Unit which is composed of 21
employees. In October 1989, and during the preceding months, she was
absent due to illnesses and placed on sick leave. The usual procedure
called for an employee, who is ill and absent from work for over three
days, to fill out a form SF-71. On this form the employee sets forth
the reason for being incapacitated for duty, whether medical examination
would be required, and a space is provided for the doctor to certify
that he treated the employee who was advised not to report to work.
Under date of October 26, 1989, Patricia A. Hyatt, Technical Director
of the Respiratory Care Unit, wrote Curtis listing her absences due to
illness during January, March, May, July, August and October of that
year. Further, that in view of this record of absences for illness,
Curtis must present a medical certificate to substantiate any requests
for sick leave. The employee was absent from work thereafter for
illness from November 16-22, 1989. She submitted a SF-71 signed by her
physician to Hyatt on November 23, 1989 upon her return to work. On
December 1, 1989 Hyatt wrote Curtis again and referred to the employee's
sick leave from November 16 through November 22, 1989. The supervisor
stated that in order to support approval of such past sick leave, Curtis
should provide additional information by December 12, 1989 re her
medical condition for review by the Personnel Health Physician.
Attached thereto was a document, which was entitled "Medical
Documentation Requirements," to be used as a guide by her doctor to the
kinds of information that would be useful. /6/ No new medical
evaluation was required, and Curtis was advised that a copy of medical
or hospital records, or a narrative medical summary might be sufficient.
Curtis took Hyatt's letter to her doctor's office which required a
release in order to furnish the additional information required. The
data was not sent as requested, /7/ and on January 17, 1990 Dr. Carlo L.
Mainardi, Chief of the Medical Service, wrote Curtis in regard thereto.
He stated that since she failed to provide the additional data re her
medical condition for review by the Employee Health physician to support
approval of sick leave, Curtis would be charged AWOL for the period
November 16-22, 1989 (40 hours). Further, this letter of reprimand
would remain in Curtis' official personnel folder for two years unless
extended for additional offenses within such period.
Hyatt wrote Curtis on April 26, 1990 that the employee will remain on
medical certification in which she had been placed on October 26, 1989,
because of his failure to submit the information which had been
requested; that she must provide a medical certificate to support
requests for sick leave regardless of the length of the illness; that
her sick leave record would be reviewed at the end of a six month
period.
Curtis, who testified that additional medical information had never
been required previously, filed a grievance which was carried through
successive steps but denied by Respondent.
(b) Employee Beverly Watkins is a Respiratory Technician who also
works in Respiratory Therapy. She testified that prior to December 1989
the policy in her unit required that an employee who is ill and absent
over three days, and had to take sick leave, must bring a doctor/medical
certificate which attested to the illness. If a supervisor felt that an
employee abused sick leave, he could put the individual on "medical
certification," which called for submitting a medical certificate on all
absences. Watkins stated that the policy changed in December 1989 so
that an employee who has been out on sick leave for more than three days
was required to bring more than a doctor's certificate or statement in
order to obtain approval for such sick leave. Additional medical
information was required, including such items as lab reports and other
medical records.
Watkins was ill and absent from work on February 6 and 7, 1990. She
submitted a doctor's statement to Hyatt upon her return to work. In a
letter /8/ dated March 7, 1990 Hyatt wrote Watkins that the employee
must submit additional information concerning her medical diagnosis in
order to obtain approval of sick leave for the two days of her absence.
Watkins obtained the additional information in the form of a letter from
another physician (G.C. Exhibit 15) which she gave to Hyatt. She was
under a medical certification requirement which obliged her to furnish a
medical certificate within five days of her return to work. /9/
Record facts show that on February 16, 1989 Hyatt wrote Beverly
Watkins re "Leave Usage" (Resp. Exhibit 6). /10/ The supervisor
referred to the absences by Watkins for 32 hours on sick leave (December
23-24, 1988 and January 10 and 21, 1989); that there was a need to
determine if the employee was well enough to fulfill her duties as a
respiratory therapist. Hyatt stated that to support continued approval
of sick leave, Watkins must provide additional information about her
medical condition for review by the Personnel Health Physician.
Further, that a failure to submit the information would result in denial
of leave.
Watkins was concerned about the requirement that additional
information must be obtained during an absence for illness. On March
13, 1990 Dr. William J. Bickers, Chief of Ambulatory Care, wrote her and
stated that Medical Center Memorandum 05-27, "Leave for Medical Center
Employees," of June 14, 1989, details the medical center policy on leave
requests for Respiratory Therapy Unit employees.
(c) The President of the Union, James A. Confer, Jr., testified that
in the fall of 1989 the policy in Respiratory Therapy for approval of
sick leave was changed so as to require additional medical evidence to
justify absences for sick leave. He stated that prior thereto only a
doctor's statement was needed to support incapacity of an employee to
work.
8. Hyatt testified that the procedure for approving sick leave has
not been changed nor was it altered in December 1989. She avers that if
a pattern of sick leave abuse is seen, a sick leave warning is sent out
to the employee. If the abuse continues, the employee is placed on
medical certification, and a physician's statement is then needed
regarding any illness to show the person is incapacitated for duty and
the time or duration is specified. Whatever documentation is submitted
by the employee, Hyatt turns it over to the Employee Health physician
for his analysis. However, it is Hyatt's responsibility to approve or
disapprove the sick leave. In the event that the sick leave is not
approved, the time spent on such leave is converted to AWOL.
9. Record facts show that on April 19, 1989 Hyatt wrote Winifred
Reese, another Respiratory Therapy Unit employee re her leave usage.
The supervisor noted that Reese had been absent for 128 hours (November
13-15, 1988, January 14-17, 1989, February 3-5 and 9-12, 1989, March 11
and 28, 1989). Hyatt informed Reese that to support continued approval
of sick leave the employee must provide additional information re her
medical condition for review by the Personnel Health Physician.
Enclosed was the standard for Medical Documentation as a guide to the
information which would be useful, and Hyatt concluded by stating that
failure to submit the information would result in denial of leave.
10. Ben Jackson, Jr., Chief of Labor Relations, testified that Hyatt
did not change the procedure for approving sick leave in December 1989.
Further, that the procedure has been to require additional medical
information when an employee is under medical certification and when a
supervisor cannot determine whether a person is incapacitated and unable
to work. /11/ He advised Hyatt of her right to ask for such data. That
policy has existed since late 1985 or early 1986. Jackson also testified
that there were a number of instances where employees, who had been on
sick leave, were asked to obtain additional medical information to
support past sick leave and obtain approval therefor. /12/
The issue for determination is whether Respondent changed its past
practice in the Respiratory Therapy Unit regarding the approval of sick
leave theretofore taken by the employees. If so, whether its failure to
notify the Union, and bargain with the latter re the change, was
violative of section 7116(a)(1) and (5) of the Statute.
General Counsel contends that, prior to December 1, 1989, an employee
who returns to work after being absent due to illness was merely
required to bring in a doctor's certificate attesting to the dates and
the illness. It is maintained that on and after the said date employees
in the Respiratory Therapy Unit were required to obtain additional
medical information to obtain approval for their past sick leave. This
requirement, it is urged, was a change from the past practice, and since
the Union was not notified thereof, nor given an opportunity to bargain
thereon, Respondent violated the Statute.
Respondent insists that the procedure for approving sick leave was
not changed in December 1989 or at any other time. It is contended that
for years the practice has been that, in cases of sick leave abuse,
additional medical information was required to support employees'
requests for approval of sick leave. In conformity with the Code of
Federal Regulation, 5 CFR 630.403, it has asked for other evidence when
necessary to support a reason for an employee's absence before approving
sick leave. Respondent maintains that General Counsel has not
established, by a preponderance of the evidence, that the procedure in
this regard was changed in the Respiratory Therapy Unit.
While the parties do not agree as to whether the practice alluded to
was changed in December 1989, there is no dispute re the continued
existence of certain procedures involving sick leave usage. Thus, if an
absence for illness does not exceed three days, a doctor's certificate
is not generally needed to support sick leave approval. Should such
absence exceed three days, a medical certificate must be submitted by
the employee along with a form SF-71 seeking approval for the particular
dates of absence. In the event that a supervisor feels that sick leave
has been abused, the employee is given a sick leave warning. The
warning lists the dates of the employee's absences, suggests there is an
abuse, and notifies the individual he may be placed on "medical
certification." An employee who is thereafter placed in this status must
submit a physician's statement upon being absent due to illness
regardless of the length or nature of the illness. This is required for
approval of the individual's sick leave. The foregoing is standard
procedure.
It is recognized, of course, that an agency may not make changes in
conditions of employment without first notifying the bargaining agent
and affording it an opportunity to bargain concerning the changes,
whether it be concerning the subsistence or the impact and
implementation thereof. Social Security Administration, et al., 36 FLRA
655. Further, matters dealing with sick leave usage do involve
conditions of employment, although certain proposals concerning such
usage may violate the right to direct employees, assign work and
discipline employees, Fort Bragg Schools, 30 FLRA 508. Apart from
whether the Respondent did change its past practice re the information
required to approve past leave, I agree with General Counsel that (a)
sick leave usage and its approval is a condition of employment and (b)
to the extent that it has discretion over a matter, as sick leave usage,
Respondent may exercise its discretion through negotiations. /13/
After a careful review of the entire record I am convinced, however,
that General Counsel has not established a prima facie case herein. I
am not persuaded it has been shown that supervisor Hyatt changed the
practice with respect to past sick leave when she required additional
medical information in support of requested approval for such leave.
Thus it would follow, and I so conclude, that Respondent was under no
obligation to notify the Union of any demand made to employees in the
Respiratory Therapy Unit for additional medical information, nor to
bargain with it concerning such demand.
In support of its position General Counsel places particular stress
upon the testimonies of two employees in the Respiratory Therapy Unit
who were supervised by Hyatt. These employees, Renee Curtis and Beverly
Watkins, both testified that on or after December 1, 1989 the supervisor
implemented a new requirement in order for employees to gain approval
for past sick leave.
With respect to Curtis, this individual was informed on December 1,
1989 that additional medical information (aside from her doctor's
statement) would be needed to support approval for 40 hours of sick
leave taken by her on November 16-20, 1989. Since this was not
forthcoming, she was placed on AWOL for that period and given a
reprimand for the failure to provide that information. In April 1990
Curtis was also notified she would remain on medical certification, in
which she was placed on October 26, 1989 based on her sick leave
absences during the previous four months.
In regard to Beverly Watkins, she had been absent on sick leave on
February 6 and 7, 1990, at which time she was also on medical
certification based on prior sick leave usage. A doctor's certificate
for the two days, which was therefore required, was submitted by her to
obtain approval for that sick leave usage. Watkins was notified on
March 7, 1990 by Hyatt that additional medical information was required
for review by the Employee Health Physician to determine her
incapacitation. She submitted the additional information as requested.
General Counsel's remaining witness, James A. Confer, Jr., who is the
Union president, testified that in the fall of 1989 the practice was
changed to require more than a doctor's certificate after an employee
returned from sick leave; that additional medical information was
required to obtain approval for such leave.
While these witnesses are in accord that previously employees were
not obliged to provide such additional medical information attesting to
past sick leave, such evidence standing alone does not suffice to
establish that such requirement was a change in past practice. Both
Technical Director of Respiratory Therapy, Patricia A. Hyatt, and Chief
of Labor-Relations, Ben Jackson, testified that such a requirement was
not a change; that the Respondent followed 5 CFR 630.403 which
regulates the granting of sick leave, and which permits an agency to
"require a medical certificate or other administratively acceptable
evidence as to the reason for the absence." Jackson testified that the
procedure has existed since 1985-1986 for a supervisor, who cannot
determine whether a person, who is under medical certification, is
incapacitated and unable to work, to require additional medical
information. Further, that there were a number of instances when
employees were asked to submit additional information to support past
sick leave, although none in Respiratory Therapy was executed through
him.
The fact that the record reveals two occasions after December 1, 1989
when additional medical information was demanded does not establish,
without more, that a change in procedure was made by Respondent. It may
well be that other employees were not asked to submit such information
because there was no evidence that they abused sick leave, or that they
had such excessive leave usage which would require additional medical
information. We are left to speculate concerning the precise instances
when, or whether, such additional data was required in the Respiratory
Therapy Unit. It is noted that both Curtis and Watkins were on medical
certification when the additional information was sought by Hyatt, and a
demand under those circumstances may not be a change at all from past
practice since there are no cited instances involving employees in that
status for whom approval was sought for past leave usage. However, in
order to establish a violation herein it is incumbent upon General
Counsel to overcome speculation in this regard. /14/ This might have
been accomplished via the records of the employees in the Respiratory
Therapy Unit for the several years prior to 1989, or through the
testimonies of other unit employees as to their past leave usage in
those years and the practice concerning the required submission of
medical information. In any event, the burden is upon General Counsel
to adduce such data where the evidence is conflicting with respect to
the practice so as to support a prima facie case of a unilateral change.
I am persuaded that it has not been established by a preponderance of
the evidence that Respondent changed the past practice in the
Respiratory Therapy Unit concerning the approval of past sick leave.
The record arguably supports the conclusion that Respondent continued to
call for additional medical information in said Unit when it determined
that sick leave had been abused, or when it needed such data to decide
if an employee was able to perform the required duties.
In view of the foregoing, I conclude that Respondent has not violated
section 7116(a)(1) and (5) of the Statute as alleged. Accordingly, it
is recommended that the Authority adopt the following Order:
The Complaint in Case No. 4-CA-00371 is dismissed.
Issued, Washington, D.C., September 19, 1990
WILLIAM NAIMARK
Administrative Law Judge
(1) This case does not involve the issue of whether in fact the
Respondent gave appropriate notice to the individual employees who
testified that additional medical evidence was required to support their
leave requests. The question here is whether the General Counsel has
established that the Respondent changed an established past practice by
requiring such evidence.
(2) Article 28, section 2 D of the parties' collective bargaining
agreement provides, in pertinent part:
D. 1) Generally, SF 71 (Application for Leave) and a medical
certificate or equivalent should not be required for a sick leave
period of 3 consecutive work days or less. However, when a
supervisor believes that an employee is abusing the entitlement to
sick leave (e.g., excessive use of sick leave or a pattern of sick
leave usage which, in either case, is unsubstantiated), a medical
certificate may be required for any period of absence. . . .
(3) This Answer, filed after the Formal Papers of General Counsel
were prepared, was not included therein but is included in General
Counsel's exhibits. Along with its brief General Counsel filed a Motion
to designate Respondent's Answer as G.C. Exhibit 1(g). No opposition
having been made thereto, the Motion is granted.
(4) G.C. Exhibit 2.
(5) Section 2C of this Article also provides, inter alia, that a
supervisor will not routinely request the nature of illness as a
condition for approval of sick leave.
(6) This document, which is part of G.C. Exhibit 5, is annexed as
part of the decision and marked Appendix. It is set forth in 5 CFR
339.104 which sets forth what should be included in an acceptable
diagnosis made by a physician.
(7) The failure arose from a misunderstanding as to whom should
follow through and accept responsibility for getting the data to
Respondent's Employee Health office. Respondent deemed it to be the
employee's responsibility, but Curtis' doctor would not provide the
additional information without a release for it. Curtis testified she
felt it was a matter to be handled between her doctor's office and
Employee Health office.
(8) Except for the dates involved, it contained the same language as
set forth in Hyatt's letter to Curtis of December 1, 1989.
(9) Under date of January 2, 1990 Hyatt placed Watkins in this status
due to absences for several days during November and December 1989.
(10) Attached thereto was the same document, "Medical Documentation
Requirements," which accompanied the memo sent to Curtis on December 1,
1989 requesting additional medical information for approval of her sick
leave.
(11) Jackson affirmed that the nature of the additional information
requested by Hyatt is the same as sought by the Chief of the Dietetic
Service. Hyatt may not have included all the suggested documentation in
the attachment she enclosed to the employees in her unit.
(12) None of these in Respiratory Therapy was routed through Jackson.
(13) The requirement to provide additional reasons for sick leave is
discretionary with the agency when sick leave abuse is suspected. Thus,
a proposal to dispense with this request for medical diagnosis itself
has been declared negotiable. See American Federation of Government
Employees, AFL-CIO, Local 2052, and Department of Justice, Bureau of
Prisons, et al., 30 FLRA 837, 840-841.
(14) The two instances where Respondent required additional medical
information, which involved Winifred Reese and Beverly Watkins in
February 1989, do not shed much light on the issue herein. As General
Counsel maintains, they bespeak of continued approval for sick leave and
do not refer specifically to approval for past sick leave usage.
However, it might be surmised that, although not alleged as a violation,
the requirement to submit additional medical data for future sick leave
constituted a change in past practice. Nevertheless, one cannot make
such a conclusion without showing what occurred with respect to specific
employees prior to 1989.
1. THE HISTORY OF THE MEDICAL CONDITIONS, INCLUDING REFERENCES TO
FINDINGS FROM PREVIOUS EXAMINATIONS, TREATMENTS AND RESPONSES TO
TREATMENT;
2. CLINICAL FINDINGS FROM THE MOST RECENT MEDICAL EVALUATION,
INCLUDING ANY OF THE FOLLOWING WHICH HAVE BEEN OBTAINED: FINDINGS OF
PHYSICAL EXAMINATION; RESULTS OF LABORATORY TESTS; X-RAYS; EKG'S AND
OTHER SPECIAL EVALUATIONS OR DIAGNOSTIC PROCEDURES; AND, IN THE CASE OF
PSYCHIATRIC EVALUATION OF PSYCHOLOGICAL ASSESSMENT, THE FINDINGS OF A
MENTAL STATUS EXAMINATION AND THE RESULTS OF PSYCHOLOGICAL TESTS, IF
APPROPRIATE;
3. DIAGNOSIS, INCLUDING THE CURRENT CLINICAL STATUS;
4. PROGNOSIS, INCLUDING PLANS FOR FUTURE TREATMENT AND AN ESTIMATE
OF THE EXPECTED DATE OF FULL OR PARTIAL RECOVERY;
5. AN EXPLANATION OF THE IMPACT OF THE MEDICAL CONDITION ON OVERALL
HEALTH AND ACTIVITIES, INCLUDING THE BASIS FOR ANY CONCLUSION THAT
RESTRICTIONS OR ACCOMMODATIONS ARE OR ARE NOT WARRANTED, AND WHERE THEY
ARE WARRANTED, AN EXPLANATION OF THEIR THERAPEUTIC RISK AVOIDING VALUE;
6. AN EXPLANATION OF THE MEDICAL BASIS FOR ANY CONCLUSION WHICH
INDICATES THE LIKELIHOOD THAT THE INDIVIDUAL IS OR IS NOT EXPECTED TO
SUFFER SUDDEN OR SUBTLE INCAPACITATION BY CARRYING OUT, WITH OR WITHOUT
ACCOMMODATION, THE TASKS OR DUTIES OF A SPECIFIC POSITION;
7. NARRATIVE EXPLANATION OF THE MEDICAL BASIS FOR ANY CONCLUSION
THAT THE MEDICAL CONDITION HAS OR HAS NOT BECOME A STATIC OR WELL
STABILIZED AND THE LIKELIHOOD THAT THE INDIVIDUAL MAY EXPERIENCE SUDDEN
OR SUBTLE INCAPACITATION AS A RESULT OF THE MEDICAL CONDITION.
42 FLRA 703
42 FLRA NO. 47
NFFE, Local 1781 and Dept. of Agriculture, Forest Service (Randall,
Arbitrator), Case No. 0-AR-2158 (Decided September 30, 1991)
7122(a)
ARBITRATION EXCEPTION
SUSPENSION
FAILURE TO DRAW ESSENCE FROM AGREEMENT BASED ON A NONFACT
VIOLATES LAW
5 U.S.C. 7701
HARMFUL ERROR
TIMELINESS OF DISCIPLINARY ACTIONS
IGNORED PRECEDENT
The Arbitrator denied the grievance over the suspension of the
grievant for 7 days. The Authority denied all exceptions. Rejected
were the contentions that the award failed to draw its essence from the
agreement, and that the award was based on a nonfact, the Authority
stating their precedent on such contentions and finding that the Union
had failed to establish that the award was deficient on those grounds.
The third exception rejected was that the award violates 5 U.S.C.
7701, pertaining to harmful error, and agency regulations, pertaining to
disciplinary actions. The Authority concluded that the provisions of
the agreement, and not agency regulations, govern the disposition of
matters to which they both apply when there is a conflict between the
agreement provisions and the regulatory provisions. Thus, the agreement
provision takes precedence over the Agency regulation, and the
Arbitrator found no violation of the agreement.
Finally, the Authority rejected the exception that the Arbitrator
ignored precedent, noting that disagreement with a arbitrator's
interpretation and application of the agreement provides no basis for
finding the award deficient because it is the arbitrator's construction
of the agreement for which the parties have bargained.
Case No. 0-AR-2158
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1781
(Union)
U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Geraldine M. Randall filed by the Union under section 7122(
a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance over the suspension of the
grievant for 7 calendar days.
We conclude that the Union's exceptions fail to establish that the
award is deficient. Accordingly, we will deny the exceptions.
The grievant was a GS-9 law enforcement officer with the Agency. The
Agency alleged that the grievant was on oral and written notice that he
was expected to attend the first day of law enforcement refresher
training in May 1989. When the grievant failed to attend the first day
of the training, he was subsequently charged with failing "'to comply
with written and/oral instructions'" and was suspended for 7 calendar
days. Award at 4. The grievant filed a grievance over the suspension.
The grievance was not resolved and was submitted to arbitration on the
stipulated issue of whether the disciplinary action was in accordance
with the parties' collective bargaining agreement.
The Arbitrator concluded that the Agency had substantiated its
charge. The Arbitrator found that the grievant was given both written
and oral instructions to attend the training and that the grievant did
not have discretion to decide not to attend. The Arbitrator also
concluded that the penalty imposed was reasonable and in conformity with
the Agency's table of penalties.
The Arbitrator rejected the Union's assertion that the Agency
violated Article 22, Section 2c of the parties' agreement because
discipline was not imposed "'within a reasonable time period after the
incident in question, or after Management knew or reasonably should have
known of the incident.'" Id. at 12 (quoting agreement). The Arbitrator
noted that the grievant's suspension was not proposed until August 8,
1989, over 3 months after the occurrence of the offense. However, the
Arbitrator found that it was undisputed that the grievant's supervisor
did not learn of the full extent of the offense until June and that the
grievant's June training assignments and annual leave interfered with
the ability to investigate and process the matter. Accordingly, the
Arbitrator determined that there were valid explanations for the
Agency's failure to act for more than half of the period of delay.
Moreover, the Arbitrator found that it was undisputed that the delay did
not harm the grievant. For all these reasons, the Arbitrator ruled that
under the circumstances, the delay did "not rise to the level of a
contract violation." Id.
Finding no reason to set aside the suspension, the Arbitrator ruled
that the action was taken in accordance with the parties' collective
bargaining agreement.
A. Positions of the Parties
The Union contends that the award does no draw its essence from the
parties' collective bargaining agreement. The Union notes that under
Article 22 of the agreement, disciplinary action must be initiated
within a reasonable time period after the incident and that the
Arbitrator acknowledged the delay by management before proposing the
grievant's suspension. The Union asserts that the parties' agreement
does not allow for either party not to be held accountable for its
failure to follow the provisions of the agreement based on a
determination that the violation did not harm any employees. The Union
claims that by "mitigat(ing)" management's violation of the agreement,
the award fails to draw its essence from the agreement. Exceptions at
1. The Union further claims that the agreement contains no provision
for delaying the initiation of discipline in the circumstances of this
case and that, therefore, the Arbitrator's refusal to set aside the
grievant's suspension is deficient.
The Agency contends that the award does draw its essence from the
parties' agreement. The Agency disputes the Union's assertion that the
Arbitrator found a violation of the agreement. The Agency argues that,
to the contrary, the Arbitrator determined that the delay did not
violate the requirement to initiate discipline within a reasonable
period of time, as the Arbitrator interpreted and applied the word
"reasonable." The Agency further argues that even if there were a
technical violation of the agreement, the Arbitrator was entitled to
decide what the consequences of any agency violation should be in
applying the agreement and that, consequently, her refusal to set aside
the discipline is not deficient.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award does not
draw its essence from the collective bargaining agreement.
We agree with the Agency that the Union has misstated the
Arbitrator's award. Contrary to the contention of the Union, the
Arbitrator did not find a violation of Article 22, Section 2c of the
agreement. Instead, she determined that "the delay d(id) not rise to
the level of a contract violation." Award at 12. Consequently, the
Arbitrator did not "mitigate Management's violation of contract
provisions," Exceptions at 1, as alleged by the Union, and such
allegation provides no basis for finding the award deficient.
Furthermore, the Union's assertion that the agreement contains no
provision permitting the delay allowed by the Arbitrator fails to
establish that the award does not draw its essence from the agreement.
To establish that an award is deficient because it does not draw its
essence from a collective bargaining agreement, the party making the
allegation must demonstrate that the award: (1) cannot in any rational
way be derived from the agreement; (2) is so unfounded in reason and
fact, and so unconnected with the wording and purpose of the agreement,
as to manifest an infidelity to the obligation of the arbitrator; (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. For example, U.
S. Department of the Air Force, McClellan Air Force Base, California and
International Federation of Professional and Technical Engineers, Local
220, 40 FLRA 968, 971 (1991) (McClellan AFB). These tests and the
private sector cases from which they are derived make it clear that an
award will not be found to fail to draw its essence from the agreement
merely because a party believes that the arbitrator misinterpreted the
agreement. McClellan AFB, 40 FLRA at 971 (citing United States
Department of Labor (OSHA) and National Council of Field Labor Locals,
34 FLRA 573, 575 (1990)). The interpretation of a collective bargaining
agreement is left solely to the arbitrator because it is the
arbitrator's construction of the agreement for which the parties have
bargained. McClellan AFB, 40 FLRA at 971-72.
In this case, the Arbitrator determined that in the circumstances
presented, the delay did not violate Article 22, Section 2c. Nothing in
the Arbitrator's interpretation or application of Article 22, Section 2c
disregards the agreement or is irrational, unfounded, or implausible.
Instead, the Union's exception constitutes nothing more than
disagreement with the Arbitrator's interpretation and application of
Article 22, Section 2c and an attempt to relitigate this issue before
the Authority. As such, the exception provides no basis for finding the
award deficient, and we will deny the exception. See id.; Ogden Air
Logistics Center, Hill Air Force Base, Utah and American Federation of
Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).
A. Positions of the Parties
The Union contends that the award is based on a nonfact. The Union
states that the Arbitrator found that the grievant's training
assignments and annual leave during June 1989 interfered with the
ability to investigate and process the matter and accounted "'for more
than half the period of delay.'" Exceptions at 3 (quoting Award at 12).
The Union maintains that the grievant did not miss work due to training
during June 1989 and that the grievant took only 29 hours of annual
leave during June 1989. Therefore, the Union argues that "it is
mathematically impossible for 29 hours of leave taken by the employee in
June, 1989 to account for 'more than half the (13 week) delay' in
initiating the disciplinary action(,)" as found by the Arbitrator. Id.
Consequently, the Union asserts that the award is based "on the
non-facts of Grievant's absence because of training and annual leave in
June, 1989(.)" Id. at 4.
The Agency contends that the Arbitrator's statement was not central
to the Arbitrator's decision. The Agency maintains that the central
fact underlying the award was that the delay did not harm the grievant
and, therefore, was not unreasonable. The Agency asserts that this
basis for the Arbitrator's decision was unaffected by the Arbitrator's
statements as to what contributed to the delay and that, consequently,
the award is not deficient because it is based on a nonfact.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is based
on a nonfact.
To establish that an award is deficient because it is based on a
nonfact, the party making the allegation must demonstrate that the
central fact underlying the award is clearly erroneous but for which a
different result would have been reached by the arbitrator. For
example, U.S. Department of the Navy, Philadelphia Naval Shipyard and
Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991) (Philadelphia
Naval Shipyard).
We find that the Union has misconstrued the award. The Arbitrator
did not attribute "'more than half the period of delay'" to the
grievant's training and annual leave during June 1989. Exceptions at 3
(quoting Award at 12). Before the Arbitrator mentioned the grievant's
training and annual leave in June, the Arbitrator specifically
acknowledged that it was "undisputed that (the grievant's supervisor)
did not learn the full extent of the offence (sic) until June." Award at
12. Thus, contrary to the Union's contention, "'more than half the
period of delay'" was attributed to the supervisor's failing to learn
the full extent of the offense until June, together with the grievant's
training and leave during June that interfered with the supervisor's
ability to investigate and process the matter. Accordingly, we find
that the Union has failed to establish in its exception that the alleged
misstatement is clearly erroneous and its exception provides no basis
for finding the award deficient. See U.S. Department of the Army, Fort
Campbell, Kentucky and American Federation of Government Employees,
Local 2022, 39 FLRA 994, 998 (1991).
Furthermore, even if the Arbitrator's statement were clearly
erroneous, the Union fails to establish that the statement was the
central fact underlying the award such that the result would have been
different but for the misstatement. The Arbitrator, in addition,
clearly relied on her finding that it was undisputed that the delay did
not harm the grievant in determining that the delay did not violate
Article 22, Section 2c of the agreement. Therefore, even if we assume
that the Arbitrator erroneously attributed more than half of the period
of delay to the grievant, in view of the Arbitrator's reliance on the
lack of harm to the grievant, the Union has not demonstrated that the
result would have been different. Accordingly, we will deny this
exception. See Philadelphia Naval Shipyard, 41 FLRA at 539-40.
A. Position of the Parties
The Union contends that the award violates 5 U.S.C. Section 7701 and
5 C.F.R. Section 1201.56, pertaining to harmful error, and Agency
regulations, pertaining to the timeliness of disciplinary actions. The
Union states that the Arbitrator applied the harmful-error rule in
determining that the Agency's delay in initiating disciplinary action
did not violate the agreement or warrant setting aside the grievant's
suspension. The Union argues that the harmful-error rule does not apply
to a 7-calendar day suspension and that, therefore, the award is
contrary to 5 U.S.C. Section 7701 and 5 C.F.R. Section 1201.56. The
Union also argues that disciplinary actions must be timely under Agency
regulations and that such regulations do not provide for harmful error.
Therefore, the Union asserts that the award is contrary to Agency
regulations by failing to set aside the disciplinary action that was
delayed over 3 months.
The Agency argues that the Union's contention that the award should
be found deficient because the Arbitrator applied the harmful-error rule
should be rejected on the basis of the Authority's decision in U. S.
Department of Justice, Immigration and Naturalization Service, Honolulu
District Office, Honolulu, Hawaii and American Federation of Government
Employees, Local 2886, National Immigration and Naturalization Council,
41 FLRA 207 (1991) (INS, Honolulu). The Agency states that in that case
the Authority held that arbitrators are not precluded from applying the
harmful-error rule to short suspensions. With respect to the Union's
contention that the award violates Agency regulations, the Agency
contends that the Union is merely disagreeing with the Arbitrator's
conclusion that the action was brought within a reasonable period of
time, which the Agency contends is the same as "timely" within the
meaning of Agency regulations. The Agency asserts that in the event
that the Agency regulations are viewed to be different than the
collective bargaining agreement, the agreement prevails and no basis is
provided for finding the award deficient because it is contrary to
Agency regulations.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
deficient, as alleged.
We find that the Union provides no basis for finding that the award
is contrary to 5 U.S.C. Section 7701 and 5 C.F.R. Section 1201.56
because the Arbitrator applied the harmful-error rule to a 7-calendar
day suspension. We are not persuaded that the Arbitrator applied the
harmful-error rule. In our view, the Arbitrator did not find any erro
that required an analysis of whether the error was harmful. We
reiterate that the Arbitrator determined that the delay did not rise to
the level of a contract violation. Instead, the Arbitrator considered
any harm to the grievant by the delay in initiating disciplinary action
in interpreting and applying the terms of the agreement requiring that
disciplinary action be initiated "within a reasonable time period."
However, even if we assume that the Arbitrator did apply the
harmful-error rule, in INS, Honolulu, as noted by the Agency, we held
that an arbitrator is not precluded from applying the harmful-error rule
as it has been applied by the Merit Systems Protection Board to a
grievance over a suspension of 14 days or less. 41 FLRA at 211.
Therefore, we would hold, as we held in INS, Honolulu, that the
Arbitrator's determination to apply the harmful-error rule to decide
whether the alleged violation of the parties' collective bargaining
agreement warranted reversing the grievant's suspension would provide no
basis for finding the award to be contrary to 5 U.S.C. Section 7701 or 5
C.F.R. Section 1201.56.
We also find that the Union provides no basis for finding that the
award is contrary to Agency regulations. To the extent that the
Agency's regulatory requirement that disciplinary actions be "timely" is
no different than the agreement's requirement that they be initiated
within a reasonable period of time, the Union is again disagreeing with
the Arbitrator's findings and conclusions that the delay was not
unreasonable in the circumstances presented. As such, the Union's
contention provides no basis for finding the award deficient. See
National Association of Government Employees, Local R5-66 and U.S.
Department of Veterans Affairs Medical Center, Memphis, Tennessee, 40
FLRA 504, 510 (1991) (disagreement with the arbitrator's finding and
conclusion not to sustain the grievance because of the alleged delay by
the agency in processing the discipline provided no basis for finding
the award deficient).
To the extent that Agency regulations have timeliness requirements
that differ from Article 22, Section 2c, the Agency regulations do not
govern the matter of the delay, and no basis is provided for finding the
award contrary to Agency regulations. In U.S. Department of the Army,
Fort Campbell District, Third Region, Fort Campbell, Kentucky and
American Federation of Government Employees, Local 2022, 37 FLRA 186
(1990), we held that only an arbitration award that conflicts with an
agency regulation that governs the matter in dispute will be found
deficient. We concluded that provisions of collective bargaining
agreements, and not agency regulations, govern the disposition of
matters to which they both apply when there is a conflict between the
agreement provision and the regulatory provision. Thus, in terms of
this case, Article 22, Section 2c takes precedence over Agency
regulations, and the Arbitrator found no violation of the agreement.
Accordingly, we will deny this exception.
A. Positions of the Parties
The Union contends that the award is deficient because the Arbitrator
ignored Authority precedent, which holds that provisions such as Article
22, Section 2c are enforceable.
The Agency contends that the award is consistent with Authority
precedent. The Agency argues that the Union is merely disagreeing with
the Arbitrator's interpretation and application of Article 22, Section
2c.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
contrary to Authority precedent. We find that this exception again
constitutes nothing more than disagreement with the Arbitrator's
interpretation and application of Article 22, Section 2c of the parties'
agreement. The reason the Arbitrator did not enforce the provision to
reverse the grievant's suspension is that she found no violation of the
provision. Consequently, none of the cases cited by the Union is on
point. Instead, Authority precedent in this respect is clear:
disagreement with an arbitrator's interpretation and application of the
collective bargaining agreement provides no basis for finding an award
deficient because it is the arbitrator's construction of the agreement
for which the parties have bargained. For example, McClellan AFB, 40
FLRA at 971-72. That the Union or the Authority may have interpreted
the provision differently simply is not relevant. See Department of
Health and Human Services, Social Security Administration, Louisville,
Kentucky District and National Federation of Federal Employees, Local
1790, 10 FLRA 436, 437 (1982).
Accordingly, we will deny this exception.
The Union's exceptions are denied.
42 FLRA 687
42 FLRA NO. 46
NAGE, Local R4-6 and Department of the Army, Fort Eustis, Virginia,
Case No. 0-NG-1842 (Decided September 30, 1991)
7105(a)(2)(E)
10 U.S.C. Section 113 note (Supp. I 1989)
7106(b)(1)
7106(a)(2)(C)
NEGOTIABILITY DETERMINATION
MILITARY CHILD CARE ACT OF 1989
MANAGEMENT'S RIGHT TO DETERMINE THE NUMBERS, TYPES AND GRADES OF
EMPLOYEES
MANAGEMENT'S RIGHT TO MAKE SELECTIONS FOR APPOINTMENTS
BURDEN TO CREATE A RECORD
This case concerns the negotiability of 4 proposals relating to the
Agency's Caregiving Personnel Pay Program.
Proposal 1 provides that conversion of current child care employees
to positions in the new child care grade system will be based solely on
performance and experience. Proposal 6 provides that employees will be
converted to the new child care grade system without competition. The
Authority found that Proposals 1 and 6 were consistent with the Military
Child Care Act of 1989, 10 U.S.C. Section 113 note (Supp. I 1989)
(MCCA).
The Authority also found that Proposal 6 did not directly interfere
with management's right under section 7106(b)(1) of the Statute to
determine the numbers, types and grades of employees or positions
assigned to an organizational subdivision, work project, or tour of
duty. However, the Authority concluded that there was insufficient
evidence in the record for to determine whether Proposals 1 and 6
interfered with the Agency's right to make selections for appointment
under section 7106(a)(2)(C) of the Statute. Therefore, the Authority
dismissed the petition for review as to Proposals 1 and 6.
Proposal 8 would provide a child development center employee a fifty
percent discount on the fee normally charged the employee for child care
services when the services were provided by the center during the
employee's duty hours. The Authority found that Proposal 8 was
nonnegotiable.
Proposal 13 required specific step increases within a pay band based
on an employee's annual performance rating. The Authority found that
Proposal 13 was consistent with the MCCA and did not interfered with the
Agency's right to determine its budget.
Case No. 0-NG-1842
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-6
(Union)
DEPARTMENT OF THE ARMY, FORT EUSTIS, VIRGINIA
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority based 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 4 proposals relating to the Agency's Caregiving
Personnel Pay Program. /1/
Proposal 1 provides that conversion of current child care employees
to positions in the new child care grade system will be based solely on
performance and experience. Proposal 6 provides that employees will be
converted to the new child care grade system without competition. We
find that Proposals 1 and 6 are consistent with the Miliary Child Care
Act of 1989, 10 U.S.C. Section 113 note (Supp. I 1989) (MCCA). We also
find that Proposal 6 does not directly interfere with management's right
under section 7106(b)(1) of the Statute to determine the numbers, types
and grades of employees or positions assigned to an organizational
subdivision, work project, or tour of duty. However, we conclude that
there is insufficient evidence in the record for us to determine whether
Proposals 1 and 6 interfere with the Agency's right to make selections
for appointment under section 7106(a)(2)(C) of the Statute. Therefore,
we will dismiss the petition for review as to Proposals 1 and 6.
Proposal 8 would provide a child development center employee a fifty
percent discount on the fee normally charged the employee for child care
services when the services are provided by the center during the
employee's duty hours. We find that Proposal 8 is nonnegotiable.
Proposal 13 requires specific step increases within a pay band based
on an employee's annual performance rating. We find that Proposal 13 is
consistent with the MCCA and does not interfere with the Agency's right
to determine its budget.
The Union submitted the proposals in this case during negotiations
concerning the Agency's implementation of its Caregiving Personnel Pay
Program. The program was adopted by the Agency to meet the requirements
of the Military Child Care Act of 1989. The MCCA "established certain
criteria within which the Department of Defense must operate its child
care centers. The (MCCA) addresses among other things, child care
center funding, employee training, (parent) user fees, employee pay and
child abuse prevention and safety." Agency Statement at 1. See also
H.R. Conf. Rep. No. 331, 101st Cong., 1st Sess. 662-65, reprinted in
1989 U.S. Code Cong. & Admin. News 1119-22.
The child care (CC) grade structure referred to in the proposals "is
a specific pay schedule for (nonappropriated fund (NAF)) child care
center employees who are directly involved in providing child care
services." Id. at 2. The CC system is designed to offer an acceptable
beginning 'floor' of wages, the potential for interim pay increase
through the use of pay banding, and a system closely paralleling that of
the (General Schedule (GS)) system for equity among staff." Department
of the Army Implementing Guidance, Caregiving Personnel Program at 7
(Attachment 1 to Petition for Review) (Implementing Guidance).
Conversion to the CC grade structure will be determined solely on
current satisfactory performance and experience.
Proposal 6
Employees who are currently performing the duties of like positions
in the CC grade structure will be converted into those CC grade
positions without competition.
A. Positions of the Parties
1. Agency
The Agency contends that Proposals 1 and 6 are inconsistent with the
MCCA because they would allow employees to be converted to CC grade
positions "based on experience rather than training." Agency's Statement
at 2 (emphasis in original). The Agency states that section 1503(a)(1)
of the MCCA requires the Secretary of Defense to implement a training
program for child care employees. The Agency also states that section
1503(a)(2) of the MCCA provides that satisfactory completion of training
shall be a condition of employment of any person employed as a child
care employee and section 1503(a)(3) specifies the training which, at a
minimum, must be completed before an employee is considered qualified
for a CC position. The Agency argues that "by prohibiting the activity
from using training as a determining factor in the conversion of
employees to the CC structure," Proposals 1 and 6 are inconsistent with
the MCCA and, therefore, are nonnegotiable. Id.
The Agency also contends that Proposals 1 and 6 interfere with
management's right to assign work under section 7106(a)(2)(B) and
management's right to establish selective factors and to select employee
from any appropriate source under section 7106(a)(2)(C) of the Statute.
The Agency asserts that management's right to assign work includes the
right to determine the particular qualifications and skills needed to
perform the work and to make judgments in determining whether a
particular employee meets those qualifications. The Agency states that
Proposals 1 and 6 would require the Agency to move employees into CC
positions without regard to certain qualifying factors (specific
training courses) that management has established. The Agency maintains
that the proposals would prohibit managment from using an employee's
education background in determining whether he or she was qualified for
a child care position. The Agency argues that Proposals 1 and 6
directly interfere with management's right to determine the
qualifications needed by the employees to perform certain duties and,
thus, interfere with management's right to assign work.
The Agency argues that the proposals interfere with management's
right to select employees because they "prohibit management from
identifying selective factors, i.e., specific training courses, to be
used in determining the qualifications of employees for positions as
child care providers." Id. at 3. The Agency asserts that the proposals
also interfere with management's right to select because they require
the Agency to select all employees at the activity who are performing
similar functions to fill the CC grade positions at the child care
center. The Agency states that "(s)ection 7106(a)(2)(C) provides
management the right to select from any appropriate source, not just
from current installation employees, as these proposals require." Id.
(citation omitted).
Finally, the Agency contends that Proposal 6 interferes with
management's right under section 7106(b)(1) to determine the numbers of
employees or positions assigned to a particular work project. According
to the Agency, the proposal "requires all employees performing duties
similar to positions in the CC grade structure to be converted to CC
positions" and, thereby, "forces management to move employees into the
child care centers regardless of management's staffing requirements."
Id. at 4 (emphasis in original).
2. Union
The Union states that Proposals 1 and 6 are intended to ensure that
current child care employees are converted to the CC grade "based solely
on satisfactory performance and experience rather than training."
Petition for Review (Petition) at 1 and 2. The Union states that the
MCCA "allows the Agency to convert current employees to the CC grade by
(waiving) the training requirements for six (6) months." Id. at 2. The
Union asserts, therefore, that Proposals 1 and 6 are consistent with the
MCCA. The Union also contends that Proposals 1 and 6 are consistent
with section 7106 of the Statute. The Union argues that the proposals
do not prohibit management from identifying selective factors. The
Union asserts that the MCCA allows employees currently performing the
duties of like positions in the CC grade structure to convert into the
CC grade positions without competition.
B. Analysis and Conclusions
1. Military Child Care Act of 1989
We find that Proposals 1 and 6 are consistent with the requirements
of the MCCA concerning training for child care employees.
The Union explains that Proposals 1 and 6 provide that the Agency
shall not base its decision to convert a current child care employee to
a CC grade position on whether the employee has received training in a
specific area. Rather, under Proposals 1 and 6, the Agency's decision
to convert a current child care employee to a CC grade position shall be
based "solely on current satisfactory performance and experience."
Section 1503(a)(1) of the MCCA requires the Secretary of Defense to
establish and prescribe regulations to implement a training program for
child care employees. As condition of employment, each child care
employee must satisfactorily complete the training program established
under the regulations. Section 1503(a)(3) of the MCCA establishes the
specific areas of training which, at a minimum, the training program
shall cover. Section 1503(a)(2) of the MCCA also provides that, as to
new hires, the employee must "complete the training program not later
than six months after the date on which the employee is employed as a
child care employee." As to a child care employee hired before the date
on which the training program is established, the statute provides that
the Agency "shall require that the employee complete the program not
later than six months after (the date on which the training program is
established)." Section 1503(a)(2) of the MCCA.
The MCCA does not require that employees be trained in specific areas
before they may be converted to a CC grade position. Under the MCCA,
the Agency may allow current employees up to 6 months to complete the
training required in section 1503 of the MCCA. Thus, the Agency has
discretion under the MCCA to convert current child care employees to a
CC grade position without regard to whether the employee have completed
the training requirements in section 1503(a)(3). We find that by
providing that the Agency shall not base its decision to convert a
current child care employee to a CC grade position on whether the
employee has received training in a specific area, Proposals 1 and 6 do
not conflict with the training requirements in section 1503 of the MCCA.
We conclude that the Agency has failed to establish that Proposals 1
and 6 are inconsistent with section 1503 of the MCCA.
2. Management's Right to Determine the Numbers, Types, and Grades of
Employees or Positions Assigned to an Organizational Subdivision, Work
Project, or Tour of Duty
We find that the Agency has not demonstrated that Proposal 6
interferes with the Agency's right to determine the numbers of employees
or positions assigned to a particular work project under section
7106(b)(1) of the Statute. Contrary to the Agency's position, Proposal
6, by its terms, does not affect the number of positions that the Agency
will establish in the CC system. Rather, the proposal addresses how
current employees will be converted to the positions in the CC system
which the Agency has established. Nothing in the record suggests that
the Union intends Proposal 6 to require the Agency to have the same
number and the same types of positions in the new CC system as it had in
the previous system. Therefore, we find that there is no basis to
conclude that Proposal 6 directly interferes with the Agency's right to
determine the numbers, types and grades of employees or positions
assigned to a work project under section 7106(b)(1) of the Statute.
3. Management's Right to Select from Among Properly Ranked and
Certified Candidates or from Any Other Appropriate Source
We find that there is insufficient evidence in the record for the
Authority to determine whether Proposals 1 and 6 interfere with the
Agency's right to select among candidates for appointment to a position
or from any other appropriate source under section 7106(a)(2)(C) of the
Statute.
With respect to filling positions under section 7106(a)(2)(C),
management has the right to make the actual substantive determination in
the selection and appointment process. Veterans Administration Medical
and Regional Office Center of Wilmington, Delaware and Laborers'
International Union of North America, AFL-CIO, Federal Local No. 1154,
32 FLRA 701 (1988). Moreover, section 7106(a)(2)(C) provides that
management has the right when filing positions to make a selection from
a group of properly ranked and certified candidates or from any other
appropriate source. See Local R-1-185, National Association of
Government Employees and the Adjutant General of the State of
Connecticut, 25 FLRA 509 (1987) (Adjutant General) and cases cited in
that decision. See also American Federation of Government Employees,
Local 12 and U.S. Department of Labor, 38 FLRA 1573, 1579 (1991).
Management's right to select for appointment to a position under section
7106(a)(2)(C) also includes the discretion to determine the
qualifications needed to perform the work of a position. See U.S.
Department of the Navy, Naval Aviation Depot, Marine Corps Air Station,
Cherry Point, North Carolina and International Association of Machinists
and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990).
Both Proposal 1 and Proposal 6 establish conditions governing the
conversion process from the current classification system to the Child
Care system. To determine how the proposals affect the exercise of
management's right under section 7106(a)(2)(C) of the Statute, it is
necessary to consider the conversion process referenced in the
proposals.
The MCCA does not specifically require the conversion of child care
employees to a new pay and grading system. That statute requires the
Department of Defense to, among other things: (1) establish a training
program for child care employees (section 1503(a) and (b)); (2) conduct
a program to increase the compensation of child care employees (section
1503(c)); and (3) make available for child care programs of the
Department of Defense additional competitive service positions (section
1503(f)). The statute mandates that the Secretary of Defense prescribe
regulations to implement the requirements of the MCCA.
To resolve the negotiability dispute concerning Proposals 1 and 6, it
is necessary for the Authority to examine the regulations required by
the MCCA to determine: (1) whether those regulations provide for the
conversion of child care workers to another pay and grading system; (2)
if so, what a conversion under those regulations entails; and (3)
whether, and in what manner, the conversion process implicates the
exercise of management's right to select candidates under section 7106(
a)(2)(C) of the Statute.
Neither party in this case has provided a copy of the regulations
required under the MCCA, nor have they cited to any provision of those
regulations. Although the Agency's Implementing Guidance provides for
the conversion of child care employees, it does not appear that the
provisions of the Implementing Guidance are the regulations required by
the MCCA. There is no evidence that the Implementing Guidance was
issued by the Secretary of Defense or that it is applicable outside of
the Department of the Army. Further, we cannot determine from the
record whether the Implementing Guidance is mandatory Agency-wide policy
or is merely intended as non-binding guidance for Department of the Army
managers. Because the parties have not provided a copy of or a citation
to the regulations required by the MCCA or otherwise explained the
conversion process referred to in the proposals, we are unable to
determine what the conversion reference in the proposal entails and
whether, or the extent to which, the conversion process involves the
exercise of management's right to select.
From our examination of the record before us, we have determined that
the negotiability of Proposals 1 and 6 depends on the extent to which
management is required to exercise its discretion under section
7106(a)(2)(C) in the initial conversion of child care employees to the
CC grade system. However, the parties have not explained how employees
are converted to the CC grade system. There is no information in the
record before us as to whether the Agency has discretion under
applicable regulations to determine: (1) whether employees will be
converted to the new system; (2) the positions to which employees will
be assigned once they are converted to the CC grading system; and (3)
the qualifications required for assignment to positions in the CC
system. We are uncertain, for example, whether the conversion process
simply entails a relabeling of existing positions with new position
designations under the CC system -- with no accompanying change in
duties or qualifications -- or whether the process involves the creation
of wholly new positions in that system with a resulting change in duties
and qualifications.
Without additional information as to the nature of the conversion
process, we cannot assess the impact of the proposals on the exercise of
management's right to select. We conclude, therefore, that the parties
have not provided a record on which we can assess the negotiability of
the proposal under section 7106(a)(2)(C) of the Statute. Consequently,
we will dismiss the petition for review as to Proposals 1 and 6.
4. Conclusions
We conclude that Proposals 1 and 6 are not inconsistent with section
1503 of the MCCA. We also conclude that the Agency has failed to
establish that Proposal 6 is nonnegotiable on the basis that it directly
interferes with the Agency's right to determine the numbers of employees
or positions assigned to a particular work project under section
7106(b)(1). Finally, we conclude that the parties have not sustained
their burden of creating a record that is sufficient for the Authority
to determine whether Proposals 1 and 6 interfere with the Aency's right,
in filling vacant positions, to select from among properly ranked and
certified candidates for appointment or from any other appropriate
source under section 7106(a)(2)(C) of the Statute. Therefore, we must
dismiss the petition for review as to Proposals 1 and 6. See American
Federation of Government Employees, Department of Education Council of
AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA
1068, 1107 (1990), decision on remand as to other matters 39 FLRA 1241
(1991), petition for review filed sub nom. United States Department of
Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991).
Employees in the Child Development Center will be given a fifty
percent (50%) discount for their children's care in the CDC.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 8 violates the express language of
section 1504 of the MCCA. The Agency states that section 1504 provides
that fees for attendance at the child care centers are to be based
solely on family income. The Agency argues that "(a)n automatic
reduction in fees based on where a person is employed does not take into
consideration the factor Congress has directed to be considered --
family income." Agency's Response at 6. The Agency states that the only
exception to the family income consideration for determining fees is in
section 1506 of the MCCA, which allows lower fees if the parents
participate in the parent participation program. The Agency also
contends that Proposal 8 violates the requirement in section 1504 of the
MCCA that the regulations establishing fees to be charged parents be
uniform for the military departments. The Agency argues that if it were
to establish a reduced fee for employees at the Agency, the fee policy
would not be uniform throughout the military departments and, therefore,
would violate section 1504 of the MCCA.
2. Union
The Union states that the intent of Proposal 8 is to provide a fifty
percent discount for employees "as long as the employee is in a duty
status. With increase in cost of living, and rising health care costs,
it makes child care practically unaffordable for NAF employees."
Petition at 2. The Union contends that the proposal concerns the
conditions of employment of unit employees and is consistent with law.
B. Analysis and Conclusions
Under Proposal 8, the fee normally charged for child care services at
a child development center would be discounted fifty percent for
employees who are in a duty status when the services are provided. We
find that Proposal 8 is inconsistent with the MCCA.
In National Association of Government Employees, Local R4-26 and
Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA
118, 145 (1991) (Langley Air Force Base, Virginia), we found that the
MCCA applied to child care centers that "provide services to members of
the Armed Forces." The proposal in that case required the agency to
provide free child care services to employees in a duty status. We
found that, due to the uniformity requirement of the MCCA, the proposal
would have the effect of requiring free child care services to all
parents who are in a duty status, including parents who are members of
the Armed Forces. We concluded, therefore, that to the extent that the
proposal at issue in that case was intended to require free child care
services for unit employees in a duty status at centers where child care
was provided for members of the Armed Forces, the proposal was
inconsistent with the requirement of the MCCA that fees for child care
services for children of members of the Armed Forces be based on family
income. Langley Air Force Base at 146.
In particular, we interpreted sections 1504 and 1506 of the MCCA to
provide that:
(T)he Secretary of Defense must establish fees to be charged
parents for attendance at military child development centers and
shall require, for children who regularly attend the centers, that
fees be based on family income. The regulations must also be
uniform for all military departments. The only exception to the
requirement that fees be based on family income for children who
regularly attend the centers is that fees may be lowered for
children whose parents participate in a parent participation
program.
Id. at 146.
Under Proposal 8, family income is no longer the sole criterion to be
used to determine the fees to be charged parents for child care services
at military child development centers. Rather, under the proposal, the
Agency must consider employment status and duty status when it
determines the fees to be charged parents who are employees of the child
development centers. As we found in Langley Air Force Base, Virginia,
section 1504 requires a uniform parent fee schedule that is based solely
on family income. Because Proposal 8 requires that the fees charged
parents who are unit employees be based on criteria other than family
income, to the extent that the proposal would affect the fee structure
for members of the Armed Forces, it is inconsistent with the MCCA.
As we indicated in Langley Air Force Base, Virginia, the requirement
for a uniform system under the MCCA means that the terms applied to
civilian employes must be applied to members of the Armed Forces. In
that case, we found that a proposal requiring free child care for unit
employees who were in a duty status would, consistent with the
requirement for uniformity, necessitate free child care for all children
whose parents were in a duty status, including children of members of
the Armed Forces, contrary to the requirement of the MCCA for fees based
on family income. Id. at 146. Similarly, in this case, providing
discounted fees for employees of the Child Development Center who are in
a duty status would, consistent with the requirement of uniformity,
necessitate discounted fees for all children whose parents are in a duty
status, including children of members of the Armed Forces, contrary to
the requirement of the MCCA that fees for members of the Armed Forces be
based on family income.
Consequently, because the proposal would require discounted child
care fees for members of the Armed Forces, contrary to the requirement
of the MCCA for a fee structure for members of the Armed Forces based on
family income, we find, consistent with Langley Air Force Base,
Virginia, that, to the extent that Proposal 8 applies to child care
centers providing child care services for members of the Armed Forces,
the proposal is inconsistent with the MCCA. We also note in this
connection that the proposal is not limited to parents who participate
in a paent participation program. Thus, it is not covered by the
exception to the fee requirements of section 1504 that is described in
section 1506 of the MCCA. Accordingly, we conclude that Proposal 8 is
nonnegotiable under section 7117(a)(1) of the Statute.
A satisfactory annual performance appraisal will result in a one step
increase in the pay band. An excellent rating will result in a two step
increase in the pay band. An outstanding rating will result in a three
step increase in the pay band.
A. Positions of the Parties
1. Agency
The Agency contends that there is insufficient evidence in the record
for the Authority to determine the negotiability of Proposal 13. The
Agency states that "(t)he CC pay schedule does not have step increases.
Rather, pay bands are used which cover a range of salary at particular
grades without any natural breaks that could be considered steps. The
increments in the pay bands are in one cent intervals making step
determinations impossible." Agency's Response at 7. The Agency argues
that "(a)s there are no steps in the CC pay schedule to allow for
implementation of the proposal, there is an insufficient record upon
which the Authority can render a decision." Id.
The Agency also contends that Proposal 13 is contrary to section
1503(c)(3) of the MCCA. The Agency states that section 1503(c)(3)
"requires the Secretary of Defense to conduct a test program on the
compensation of child care employees who are directly involved in
providing child care and are paid from nonappropriated funds. (These
are the employees in the CC pay schedule.)" Id. at 8. The Agency argues
that negotiating over separate pay scales for the various activities
having child care development centers would interfere with the test
program on the compensation required under section 1503(c)(3). The
Agency contends that to the extent that Proposal 13 includes the general
schedule employees and prevailing rate employees, the proposal is
inconsistent with law, and thus nonnegotiable, because the step
increases for those employees are provided by statute.
Finally, the Agency contends that Proposal 13 may interfere with the
Agency's right to determine its budget but "the (U)nion has provided
insufficient information for the (A)gency to make an argument before the
Authority." Id. at 9.
2. Union
The Union states that Proposal 13 is intended "to provide a range
with the pay band that an employee's salary is adjusted based on an
annual salary." Petition at 3. According to the Union, the pay band
system established by the Agency has a range in which an employee's
salary may be adjusted. The Union states that the proposal "would
ensure an increase in salary as long as an employee maintains a minimum
level of performance throughout the performance period." Id.
The Union contends that "the (A)gency's assertion that the CC pay
schedule does not provide for step increases . . . is totally misleading
and erroneous. (The Implementing Guidance) provides various steps (from
$5.70 per hour to $0.16 per hour) within the pay band that an employee's
salary may be adjusted at the complete discretion of the (A)gency."
Union's Response at 3. See also Implementing Guidance at 13 (Attachment
1 to Petition for Review). The Union states that Proposal 13 concerns
the wages and fringe benefits of employees. The Union argues that
because the wages and benefits of bargaining unit employees are not
determined by statute, Proposal 13 concerns the conditions of employment
of employees and, therefore, is negotiable.
B. Analysis and Conclusions
Contrary to the Agency's claim, the record is sufficient for the
Authority to make a negotiability determination. The pay system
established under the Implementing Guidance has two pay bands. Each pay
band contains 10 incremental increases in pay within the pay band which
are designated in the Implementing Guidance as "steps." See Implementing
Guidance at 13. Thus, because the pay system for child care employees
contains pay increases in steps, the requirement for certain step
increases in Proposal 13 is sufficiently clear that we will be able to
assess the negotiability of the proposal.
We also reject the Agency's contention that Proposal 13 cannot be
implemented consistent with the CC pay schedule because the CC pay
schedule does not have step increases. As we havve noted above, each of
the prescribed pay bands contains 10 incremental steps. Consequently,
the requirement of the proposal for step increases can be implemented
consistent with the pay system for CC employees established by the
Agency in its Implementing Guidance.
We find that the AGency has failed to establish that Proposal 13 is
contrary to section 1503(c)(3) of the MCCA. The Agency has provided no
evidence to demonstrate how collective bargaining concerning employees'
progression through the steps of the pay bands interferes with the test
program required under section 1503(c)(3) of the MCCA, or the
compensation of child care employees who are directly involved in
providing child care and are paid from nonappropriated funds. The
Agency also has not shown that the performance-based step increases in
pay required under the proposal would result in pay for CC grade
employees that is not substantially equivalent to other employees at the
installation with similar training, seniority and experience or that the
proposal would result in pay for entry-level CC grade employees that is
not competitive with other entry-level employees at the Agency, so as to
compromise the validity of the test.
The test program required by the MCCA must be implemented consistent
with the Agency's duty to bargain under the Statute. There is no
evidence that Congress required otherwise or that negotiated variances
would invalidate the test. Because the Agency has failed to demonstrate
how collective bargaining would interfere with the test program on the
compensation of child care employees required under section 1503(c)(3)
there is no basis for us to conclude that Proposal 13 interferes with
the test program and, therefore, to conclude that the proposal is
contrary to section 1503(c)(3) of the MCCA.
As to the Agency's contention that the proposal is inconsistent with
law if it applies to general schedule and prevailing rate employees, we
find that nothing in the Union's petition for review or the record
before us indicates that the Union intends Proposal 13 to apply to
general schedule and prevailing rate employees. The proposal addresses
the conditions of employment of nonappropriated fund employees of the
military departments who provide child care services. Further, the
proposal is directed only to the CC pay schedule, which applies to
"child care employees who are directly involved in providing child care
and are paid from nonappropriated funds." Agency's Response at 8.
Therefore, we reject the Agency's contention that Proposal 13 is
nonnegotiable because it concerns the pay and fringe benefits of general
schedule and prevailing rate employees whose pay is set by statute.
We also find that the Agency has not established that Proposal 13
interferes with the Agency's right to determine its budget. To
establish that a proposal interferes with the right to determine its
budget an agency must either: (1) demonstrate that the proposal
prescribes the particular programs or operations the agency would
include in its budget or prescribes the amount to be allocated in the
budget for them; or (2) make a substantial demonstration that the
proposal entails an increase in costs that is significant and
unavoidable and is not offset by compensating benefits. American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), aff'd
as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d
1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).
The first budget test withdraws from bargaining only those proposals
addressed to the budget per se, not those that would result in
expenditures by an agency and, consequently, have an impact on the
budget. Proposal 13 does not involve the Union in the budgetary process
itself but is limited to requiring the Agency to provide employee
certain increases in pay based on their annual performance appraisal.
It does not prescribe a program or operation to be included in the
Agency's budget nor does it prescribe an amount to be allocated in the
Agency's budget for pay increases. As to the second budget test, the
Agency states that "the (A)gency is unable to equate costs to the
proposed step increases" in Proposal 13. Thus, the Agency has failed to
demonstrate that any increased costs would result from implementation of
Proposal 13 or that those increases would be significant. The Agency
also has failed to make a substantial demonstration that the projected
cost increases associated with the implementation of Proposal 13 are
unavoidable.
We find that the Agency has no demonstrated that Proposal 13
prescribes a particular program or operation that the Agency must
include in its budget or prescribes the amount to be allocated in the
budget for a paticular program or operation. The Agency also has failed
to make a substantial showing that Proposal 13 will result in
significant and unavoidable increases in costs that are not offset by
compensating benefits. Therefore, we conclude that Proposal 13 does not
interfere with the Agency's right to determine its budget under section
7106(a)(1) of the Statute. See Langley Air Force Base, Virginia, 40
FLRA at 132-34.
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposal 13. /2/ The petition for review as to
Proposal 1, Proposal 6 and Proposal 8 is dismissed.
(1) The Union withdrew its petition for review as to Proposals 2 and
9. The Agency withdrew its allegation of nonnegotiability as to
Proposals 7 and 14. Accordingly, those proposals are not before us and
will not be considered in this decision.
(2) In finding the proposal to be negotiable, we make no judgment as
to its merits.
42 FLRA 680
42 FLRA NO. 45
U.S. Department of the Air Force, Oklahoma City Air Logistics Center,
Tinker Air Force Base, Oklahoma and AFGE, Local 916 (Catherwood,
Arbitrator), Case No. 0-AR-2077 (Decided September 30, 1991)
7122(a)
5 C.F.R. Section 335.102(f)(1) and FPM chapter 335, subchapter 1-5
ARBITRATION EXCEPTION
FAILS TO DRAW ESSENCE
TEMPORARY PROMOTIONS
EXCEEDED AUTHORITY
This case concerns an employee's grievance challenging the Agency's
failure to promote him. The Arbitrator sustained the grievance and, as
a remedy, ordered that the grievant be given retroactive temporary
promotion from wage grade WG-8 to WG-9 with backpay for the period from
November 1985 to the date of the award. The Arbitrator also ordered
that the Agency conduct classification audits of all positions similar
to the grievant's position to determine the proper grade and pay for
employees in those positions.
The Authority denied the Agency's exception that the Arbitrator
exceeded his authority when he found that the grievance was timely filed
and thus, arbitrable. The Authority concluded that the Agency failed to
show that the award was deficient for failure to draw its essence from
the parties' collective bargaining agreement.
As to the Agency's exception that the award of a retroactive
promotion for more than 2 years was contrary to a Government-wide
regulation, the Authority modified the award to require the Agency to
request an exception to that relgulation from the Office of Personnel
Management (OPM).
The Authority also found that the Arbitrator exceeded his authority
by ordering the Agency to conduct desk audits of all positions similar
to that of the grievant and to implement the findings of the desk audits
as applicable to the employees assigned to those positions. The
Authority set aside that portion of the award. The Authority noted that
the Arbitrator's award in this case related to matters that were not
submitted to arbitration and encompassed persons who were not included
in the grievance.
Case No. 0-AR-2077
U.S. DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Hugh R. Catherwood filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union did
not file an opposition to the Agency's exceptions.
An employee filed a grievance challenging the Agency's failure to
promote him. The Arbitrator sustained the grievance and, as a remedy,
ordered that the grievant be given a retroactive temporary promotion
from wage grade (WG) 8 to WG-9 with backpay for the period from November
1985 to the date of the award. The Arbitrator also ordered that the
Agency conduct classification audits of all positions similar to the
grievant's position to determine the proper grade and pay for employees
in those positions.
For the following reasons, we deny the Agency's exception that the
Arbitrator exceeded his authority by finding that the grievance was
timely filed and, thus, arbitrable. In response to the Agency's
exception that the award of a retroactive promotion for more than 2
years is contrary to a Govenment-wide regulation, we will modify the
award to require the Agency to request an exception to that regulation
from the Office of Personnel Management (OPM). We also find, in
agreement with the Agency, that the Arbitrator exceeded his authority by
ordering the Agency to conduct desk audits of all positions similar to
that of the grievant and to implement the findings of the desk audits as
applicable to the employees assigned to those positions. We will set
aside that portion of the award.
The grievant was employed by the Agency as a testing equipment
operator at the WG-5 level in 1984. The Agency informed him that he
would be promoted to the journeyman level of WG-8 upon obtaining
certification for magnetic parts inspection (Level 1 certification) and
fluorescent parts inspection (Level 2 certification). The grievant was
promoted to WG-8 on December 16, 1984, although he did not become fully
certified at Level 2 until November 1, 1985.
"At some time in 1984 or 1985 a recruitment and training program for
trades and crafts called VO-TECH was instituted, because of a heavy work
load of inspections." Award at 2. Employees in VO-TECH began work at
the WG-3 grade level and were given a target grade of WG-9 upon
receiving Level 1 and Level 2 inspection certificates and becoming
qualified as journeymen.
The grievant filed a grievance on August 30, 1989, which he claimed
entitlement to a promotion to the WG-9 grade level. The grievance was
submitted to arbitration on the following issue:
Was the Agency's refusal to promote the grievant . . . from pay
grade 8 to grade 9 in violation of any rules, regulations,
statutes, or the Master Labor Agreement? If so, what is the
remedy?
Id. at 1.
As a preliminary matter, the Arbitrator denied the Agency's claim
that the grievance was not arbitrable because it was untimely filed.
The Agency claimed that, under the agreement, the grievant was required
to discuss the matter with his supervisor within 21 days of becoming
aware of the alleged improper management action before filing a
grievance. The Arbitrator noted the Union's argument that "the (g)
rievant had several times before filing the (grievance) asked his first
level supervisor for promotion and was merely awaiting a response." Id.
The Arbitrator ruled that "to deprive the (g)rievant of his only right
to be heard for so technical a point would not be just cause." Id.
The Arbitrator heard testimony supporting the grievant's claim that
he had performed the same duties as employees in the VO-TECH program who
had been promoted to WG-9 and that the grievant had trained some of the
WG-9 VO-TECH employees. The Agency asserted that the grievant had been
promoted to the target grade promised to him and that he had failed to
be promoted competitively to WG-9 because he had not been ranked high
enough on the lists of qualified candidates for vacant WG-9 positions.
The Union maintained that it was unfair and improper to have employees
doing the same work at different grades and that having junior employees
train senior employees "was harmful to morale." Id. at 3. The Union
also asserted that the WG-8 employees wre entitled to backpay under the
provision of the collective bargaining agreement that "requires that an
employee assigned the 'grade-controlling duties of a higher graded
position for 30 consecutive calendar days' shall receive the pay from
the 31st day on of the higher graded position." Id.
The Arbitrator found that the Agency improperly assigned to employees
in the VO-TECH program a higher target grade than assigned to employees
already performing the same work. He stated that "an injustice was done
to the (g)rievant by failing to reclassify his position to grade 9 and
promote him to the higher level or, alternatively, to grant him a
non-competitive promotion to the same target grade as the VO-TECH
trainees." Id. at 4. The Arbitrator ruled that the grievant was
entitled to backpay under the temporary promotion provision of the
parties' agreement because the grievant "was doing 'grade controlling
duties (of a higher graded position)' for more than 30 calendar days."
Id. The Arbitrator also stated that the classification procedures
contained in the parties' agreement should be followed and that "(a)fter
the appropriate wage grade for all the journeyman Testing Equipment
Operators is found, all the positions should be allocated to a single
class and the rules for reclassification pay adjustments be applied."
Id. at 5.
As his award, the Arbitrator sustained the grievance and ordered
that:
1) The Grievant be made whole for his loss of WG 9 pay from
November 1, 1985 to date;
2) That a classification audit be made of all the WG 5439 WG 8
and WG 9 journeyman Testing Equipment Operator positions and that
the findings be implemented in accordance with Civil Service law
and rules and Article 17 of the Master Labor Agreement.
Id.
A. Position of the Agency
The Agency asserts that the Arbitrator's finding that the grievance
is arbitrable does not draw its essence from the parties' collective
bargaining agreement. The Agency points out that section 6.07a of the
parties' agreement provides that an employee desiring to file a
grievance "must first discuss the matter informally with his first level
supervisor within twenty-one (21) calendar days of the date of the
management action or occurrence giving rise to the grievance or
reasonable awareness of such action or occurrence." Exception at 3-4.
The Agency maintains that the grievant became eligible for promotion in
May 1985 and did not file the grievance until August 1989. The Agency
contends that the Arbitrator did not consider the requirements of the
parties' agreement and that his finding that the grievance was timely
filed is not a plausible interpretation of the agreement.
B. Analysis and Conclusions
We conclude that the Agency has failed to show that the award is
deficient for failure to draw its essence from the parties' collective
bargaining agreement. For an award to be found deficient because it
fails to draw its essence from a collective bargaining agreement, the
party making the allegation must demonstrate that the award: (1) cannot
in any rational way be derived from the agreement; or (2) is so
unfounded in reason and fact, and so unconnected with the wording and
the purpose of the agreement as to manifest an infidelity to the
obligation of the arbitrator; or (3) evidence a manifest disregard for
the agreement; or (4) dos not represent a plausible interpretation of
the agreement. See U.S. Department of Transportation, Federal Aviation
Administration, Springfield, Illinois and National Air Traffic
Controllers Association, 39 FLRA 1036 (1991).
The Arbitrator's finding that the grievance was timely filed is not
deficient under any of the above criteria. Contrary to the Agency's
assertion, the Arbitrator did not ignore the parties' agreement. He
responded to the arguments made concerning timeliness and credited the
Union's argument that the grievant was awaiting a reply to one of his
several requests for promotion before filing a grievance. The Agency is
merely disagreeing with the Arbitrator's procedural ruling that the
grievance was timely, which does not provide a basis for finding the
award deficient. See National Treasury Employees Union and U.S.
Department of Health and Human Services, Family Support Administration,
35 FLRA 501, 512 (1990) (an arbitrator's determination that a grievance
was timely filed concerns a matter of procedural arbitrability and
disagreement with that determination provides no basis for finding an
award deficient).
A. Position of the Agency
The Agency contends that the award of a temporary promotion with
backpay for the grievant from November 1, 1985 until the date of the
award in 1991 is contrary to 5 C.F.R. Section 335.102(f)(1) and Federal
Personnel Manual (FPM) chapter 335, subchapter 1-5, which limit
temporary promotions to a definite period not to exceed 2 years. In
support of this exception, the Agency cites Department of the Army, New
Cumberland Army Depot and American Federation of Government Employees,
Local 2004, 21 FLRA 968 (1986) (New Cumberland Army Depot).
B. Analysis and Conclusions
We agree with the Agency that 5 C.F.R. Section 335.102(f)(1) and FPM
chapter 335, subchapter 1-5 place an effective limit of 2 years on the
duration of a temporary promotion. Further, as recognized by the
Authority in New Cumberland Army Depot, an award by an arbitrator of a
temporary promotion must be consistent with civil service law and
regulation. 21 FLRA at 972. However, in New Cumberland Army Depot, the
Authority recognized that agencies may temporarily promote an employee
for more than 2 years with the formal approval of OPM obtained under 5
C.F.R. Section 335.102(g) and FPM chapter 335, subchapter 1-5. In that
case, the Authority modified the arbitrator's award to direct the
activity to request OPM to authorize a temporary promotion for a period
in excess of 2 years. 21 FLRA at 973-74.
We conclude that a modification such as the modification made to the
arbitrator's award in New Cumberland Army Depot is appropriate in the
circumstances of the present case. The Arbitrator found that the
grievant was entitled to a retroactive temporary promotion under the
parties' collective bargaining agreement for the time that he had
performed WG-9 duties. That time was in excess of 2 years. Therefore,
we will modify the Arbitrator's award to order th Agency to request
authorization from OPM under 5 C.F.R. Section 335.102(g) and FPM chapter
335, subchapter 1-5 to grant the grievant a temporary promotion for the
period from November 1, 1987 to the date of the award.
A. Position of the Agency
The Agency contends that the Arbitrator exceeded his authority by
addressing an issue not before him and by awarding relief to employees
who did not file grievances. The Agency maintains that the only issue
in this case concerned the grievant's nonselection for promotion to
grade WG-9 and that the Arbitrator went beyond that issue when he
ordered the Agency to conduct classification audits of all the WG-8 and
WG-9 journeyman testing equpment operators and to implement the findings
of those audits. The Agency also contends that the Arbitrator's
ordering of classification audits and possible reclassification of
employees is contrary to section 7106(a)(2)(C) of the Statute.
B. Analysis and Conclusions
We conclude that the second paragraph of the Arbitrator's award is
deficient because the Arbitrator exceeded his authority. An arbitrator
exceeds his or her authority when, for example, the arbitrator issues an
affirmative order that exceeds the scope of the matter submitted to
arbitration or awards relief to persons who did not file a grievance on
their own behalf and did not have the union file a grievance for them.
See U.S. Department of the Air Force, Air Logistics Center, Tinker Air
Force Base, Oklahoma and American Federation of Government Employees,
Local 916, 41 FLRA 303, 305 (1991). The Arbitrator's award in this case
relates to matters that were not submitted to arbitration and
encompasses persons who were not included in the grievance.
The issue presented to the Arbitrator was agreed upon by the parties
and concerned only whether the Agency had improperly refused to promote
the grievant to grade WG-9. The stipulated issue did not refer to any
other employees seeking relief and did not concern the accuracy of the
classification of all journeyman testing equipment operators.
Therefore, the Arbitrator had authority only to resolve the grievance of
the grievant. He exceeded that authority when he ordered the Agency to
conduct classification audits of all WG-8 and WG-9 journeyman testing
equipment operator positions and to implement the results of those
audits. See United States Army, Academy of Health Sciences, Fort Sam
Houston, Texas and National Federation of Federal Employees, Local No.
28, 34 FLRA 598, 600 (1990) (arbitrator exceeded authority by directing
the agency to rescind a form which applied to all employees, including
employees who were not included in the grievance being arbitrated).
Consequently, that portion of the award is deficient and will be struck
from the award. In view of this decision, it is not necessary to
address the Agency's contention that this portion of the award is
contrary to section 7121(c)(5) of the Statute.
The Agency's first exception is denied. The Arbitrator's award is
modified to strike paragraph 2 and to substitute the following for
paragraph 1:
The Grievant shall be made whole for his loss of WG-9 pay from
November 1, 1985 to the date of the award. The Agency shall
request that the Office of Personnel Management formally authorize
the Agency to grant the grievant a retroactive temporary promotion
with backpay from November 1, 1987 to date.
42 FLRA 674
42 FLRA NO. 44
U.S. Department of Defense, Defense Mapping Agency, Hydrographic/
Topographic Center,, Washington, D.C. and AFGE, Local 3407 (Doherty,
Arbitrator), Case No. 0-AR-2097 (Decided September 30, 1991)
7122(a)
ARBITRATION EXCEPTION
REMAND
PROOF OF SERVICE
FAILS TO DRAW ESSENCE
In his original award, the Arbitrator denied a grievance claiming
that the grievant was improperly denied a monetary performance award.
The Union filed exceptions to the Arbitrator's award, and the Authority
concluded that it was unable to determine whether the award was
deficient. Accordingly, in 37 FLRA 1066, the Authority remanded the
case to the parties for resubmission to the Arbitrator.
In his award on remand, the Arbitrator found that the parties had
agreed to an Agency regulation precluding grievances over a failure to
grant monetary performance awards. Accordingly, the Arbitrator
reaffirmed his original denial of the grievance.
The Authority first noted that it considered the Union's exception
because the Agency did not claim that it was prejudiced by the Union's
failure to timely comply with the Authority's Order that the Union
provide proof of service of the award on remand and certain other
documents.
The Authority concluded that the Union failed to establish that the
award was deficient. The Authority noted that the Union's assertion was
merely disagreement with the Arbitrator's evaluation of the evidence and
with his conclusions. The Authority also concluded that the Union did
not establish that the award failed to draw its essence from the
agreement.
Case No. 0-AR-2097 (37 FLRA 1066 (1990))
U.S. DEPARTMENT OF DEFENSE, DEFENSE MAPPING AGENCY, HYDROGRAPHIC/
TOPOGRAPHIC CENTER, WASHINGTON, D.C.
(Agency)
AMERICAN FEDERATION GOVERNMENT EMPLOYEES, LOCAL 3407
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to the award on
remand of Arbitrator James F. Doherty filed by the Union under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Agency filed an opposition to the exception.
In his original award, /1/ the Arbitrator denied a grievance claiming
that the grievant was improperly denied a monetary performance award.
The Union filed exceptions to the Arbitrator's award, and we concluded
that we were unable to determine whether the award was deficient.
Accordingly, in 37 FLRA 1066, we remanded the case to the parties for
resubmission to the Arbitrator.
In his award on remand, the Arbitrator found that the parties had
agreed to an Agency regulation precluding grievances over a failure to
grant monetary performance awards. Accordingly, the Arbitrator
reaffirmed his original denial of the grievance.
For the following reasons, we conclude that the Union fails to
establish that the award is deficient and we will deny the exception.
The dispute in this case arose when the Agency failed to recommend
the grievant for a cash award based on his performance rating. A
grievance was filed and, when the grievance was not resolved, it was
submitted to arbitration on the issue of whether the Agency violated the
parties' collective bargaining agreement by failing to recommend the
grievant for an award.
On the "'threshold question as to whether the grievance (was) of the
type covered under the (parties') collective bargaining agreement(,)'"
the Arbitrator concluded that the grievance was not covered by the
agreement. 37 FLRA at 1067 (quoting from award; brackets in original).
The Arbitrator noted that the parties' agreement provided that employee
performance will be appraised in accordance with, among other things,
Defense Mapping Agency Instruction (DMAINST) 1434.1. The Arbitrator
also noted that DMAINST 1434.1 had been "'supplanted'" by Defense
Mapping Agency Performance Systems Manual (DMAM) 1434.3, which provided,
in pertinent part, that the Agency's failure "'to pay a performance
award may not be appealed/grieved.'" Id. (quoting from award). Based on
DMAM 1434.3, the Arbitrator denied the grievance.
The Union filed an exception to the initial award contending that the
award was deficient because the Arbitrator improperly relied on DMAM
1434.3. The Union argued that DMAM 1434.3 did not bar the grievance
because, among other things, the regulation had not been implemented.
In its opposition, the Agency argued that the parties agreed to
incorporate DMAM 1434.3 in the collective bargaining agreement.
In 37 FLRA 1066, we noted that DMAM 1434.3 was issued after the
effective date of the parties' agreement. We also noted that although
section 7116(a)(7) of the Statute generally prevents agencies from
enforcing a regulation that conflicts with a preexisting collective
bargaining agreement, parties may agree to allow subsequently issued
regulations to override such an agreement. As the Arbitrator had not
expressly found that the parties agreed to allow DMAM 1434.3 to override
the parties' agreement, we remanded the award to the parties "to request
the Arbitrator to clarify his award to determine whether the parties had
agreed that DMAM 1434.3 overrides their preexisting collective
bargaining agreement and to resolve the grievance accordingly." 37 FLRA
at 1070.
In his award on remand, the Arbitrator referenced three joint
exhibits introduced at the original arbitration hearing and noted that
in Joint Exhibit 3 (the Union president's response to the Agency's
announcement of the implementation date of DMAM 1434.3), the president
stated that: "'the implementation of the (Performance Management
System) shall be in accordance with Section 4 of Article IV of the
negotiated agreement.'" Award at 3 (quoting from Joint Exhibit 3). The
Arbitrator found that Article IV, section 4 of the agreement "deals with
employee and Union rights and responsibilities and is not germane to the
issue in this case." Id.
The Arbitrator concluded that "(t)he documents are clear. There was
a negotiation on (DMAM) 1434.3 followed by an agreement which was
expressly referenced to the negotiated agreement between the parties.
Section 1434.3 precludes the grievance in this case." Id. Accordingly,
the Arbitrator again denied the grievance.
A. The Union
The Union argues that the Arbitrator "misinterpreted, modified and/
or ignored" the parties' agreement and evidence presented at the
arbitration hearing. Exception at 1. In particular, the Union disputes
the Arbitrator's finding that Article IV, section 4 of the parties'
agreement was not relevant to the grievance. /2/ The Union contends
that Article IV, section 4 is relevant because it addresses the parties'
obligations "to negotiate the changes to personnel policies, practices
and working conditions . . . ." Id. at 3. The Union also contends that,
under Article IV, section 4, "there is no agreement . . . until
intervention of the FMCS is unsuccessful and the issues are referred to
the FSIP." Id. According to the Union, the Agency's position prior to
the original arbitration hearing was that "none of DMAM 1434.3 had been
implemented." Id.
B. The Agency
The Agency asserts that the exception should be dismissed because the
Union failed to comply timely with an Authority order directing the
Union to cure certain procedural defects in its exception. The Agency
also asserts that the exception constitutes mere disagreement with the
Arbitrator's award.
A. Preliminary Matter
As noted by the Agency, the Union failed to comply timely with an
Authority order that the Union provide proof of service of the award on
remand and certain other documents. It is undisputed, however, that the
Union received the Order 2 days after the due date established in the
Order and that the Union complied with the Order on the date it was
received. In these circumstances, and noting that the Agency does not
claim that it was prejudiced by the Union's failure to timely comply
with the Order, we will consider the exception. See U.S. Department of
Health and Human Services, Social Security Administration, Southeastern
Program Service Center and American Federation of Government Employees,
Local 2206, 38 FLRA 1170, 1175 (1990).
B. The Union Has Not Demonstrated That the Award Is Deficient
We reject the Union's assertion that the award on remand is deficient
because the Arbitrator "misinterpreted, modified and/or ignored" the
parties' collective bargaining agreement and the evidence offered at the
arbitration hearing. Exception at 1.
The Arbitrator concluded, based on his evaluation of evidence offered
at the original arbitration hearing and his interpretation and
application of Article IV, section 4 of the parties' agreement, that
"there was negotiation on (DMAM) 1434.3 followed by an agreement which
was expressly referenced to the negotiated agreement between the
parties." Award at 3. Insofar as the Union's exception disputes the
Arbitrator's evaluation of the evidence offered at the hearing, the
exception fails to demonstrate that the award is deficient. Instead,
the exception constitutes mere disagreement with the Arbitrator's
evaluation of the evidence and his conclusions based thereon. See, for
example, U.S. Department of the Air Force, Langley Air Force Base,
Hampton, Virginia and National Association of Government Employees,
Local R4-106, 41 FLRA 246, 249 (1991).
Moreover, insofar as the Union's argument is construed as a
contention that the award fails to draw its essence from the parties'
agreement, it likewise fails to demonstrate that the award is deficient.
To demonstrate that an award is deficient on this ground, it must be
shown that the award: (1) cannot in any rational way be derived from
the agreement; (2) is so unfounded in reason and fact, and so
unconnected with the wording and the purpose of the agreement as to
manifest an infidelity to the obligation of the arbitrator; (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. See, for
example, U.S. Department of Commerce, Patent and Trademark Office and
Patent Office Professional Association, 41 FLRA 1042, 1048 (1991).
The Union has not demonstrated that the Arbitrator's award is
deficient under any of these standards. The Arbitrator concluded, as
relevant here, that Article IV, section 4 of the parties' agreement was
not "germane" to the grievance. Award at 3. The Union has not shown
that, in view of the Arbitrator's conclusion that the parties negotiated
over and reached agreement on DMAM 1434.3, the Arbitrator's conclusions
regarding Article IV, section 4, are irrational, implausible, or
unconnected to the wording and purpose of the agreement. As such, the
Union has not established that the award fails to draw its essence from
the agreement.
As the Union's exception provides no basis for finding the award
deficient, we will deny the exception.
The Union's exception is denied.
(1) Exceptions to the original award were docketed as Case No.
0-AR-1938.
(2) Article IV of the parties' agreement contains two subsections, A
and B. Subsection A addresses "Employee Rights and Responsibilities."
Subsection B addresses "Union Rights and Responsibilities." Both
subsections A and B contain a section 4. It is apparent from the
Union's argument, that its reference to Article IV, section 4 is
intended to encompass Article IV, subsection B, section 4, which
provides, in pertinent part:
a. When (the Agency) contemplates changes to personnel
policies, practices, and working conditions, it will consult with
the Union in writing. Within two weeks of the consultation either
party may require negotiation of the issue.
d. Impasses arising out of such negotiations will be referred
to the FMCS. If the intervention of the FMCS is unsuccessful, the
impasse will be referred to the FSIP. At that point the (Agency)
may implement its last best offer to the Union.
Attachment 6 to Exception.
42 FLRA 664
42 FLRA NO. 43
National Archives and Records Administration and AFGE Council 260,
Local 2578 (Applewhaite, Arbitrator), Case No. 0-AR-1990 (Decided
September 30, 1991)
7122(a)
5 U.S.C. S 5596
ARBITRATION EXCEPTION
TIMELINESS
AWARD CLARIFICATION
BACK PAY ACT
The grievant filed a grievance over the Agency's failure to grant her
a career-ladder promotion to GS-11. The Arbitrator ruled that the
grievant was entitled to have been promoted to GS-11 effective August
31, 1987. In a clarification of his award, the Arbitrator awarded
backpay from that date until the date on which the grievant terminated
her employment with the Agency. The Agency filed exceptions to the
Arbitrator's award.
The Authority concluded that the Agency's exceptions were untimely
filed insofar as they disputed the Arbitrator's original award, and
dismissed the exceptions to that extent. The Authority found that, to
the extent that the exceptions disputed the clarification of the award
of backpay to the grievant until the date on which she terminated her
employment with the Agency, the exceptions were timely filed. However,
the Authority concluded that the exceptions provided no basis for
finding that aspect of the award deficient, and denied the exceptions.
The Authority concluded that the Agency failed to establish that the
award was deficient by ordering the grievant compensated at the GS-11
grade level with pay increases and increments from August 31, 1987,
until the date on which the grievant terminated her employment with the
Agency. The Authority found that the Arbitrator's extension of the
award of backpay beyond April 26, 1988, was fully consistent with the
grievant's statutory entitlements under the Back Pay Act and that the
Agency misapprehended the effect of the classification audit report of
April 26, 1988.
Case No. 0-AR-1990
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL 260, LOCAL 2578
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Leon B. Applewhaite filed by the Agency under section 7122(
a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union filed an opposition to the Agency's exceptions.
The grievant filed a grievance over the Agency's failure to grant her
a career-ladder promotion to GS-11. The Arbitrator ruled that the
grievant was entitled to have been promoted to GS-11 effective August
31, 1987. In a clarification of his award, he awarded her backpay from
that date until the date on which she terminated her employment with the
Agency.
We conclude that the Agency's exceptions were untimely filed insofar
as they dispute the Arbitrator's original award, and we will dismiss the
exceptions to that extent. We conclude that the exceptions were timely
filed to the extent that they dispute the clarification of the award to
award backpay to the grievant until the date on which she terminated her
employment with the Agency. However, we find that the exceptions
provide no basis for finding that aspect of the award deficient, and we
will deny the exceptions.
On August 19, 1985, the grievant was appointed to the position of
communications management specialist, GS-391, at the GS-7 grade level.
The position was in a career ladder with a full-performance level of
GS-12. On August 19, 1986, the grievant was granted a career-ladder
promotion to GS-9. After she had served 1 year at GS-9, her supervisor
made a delayed recommendation that she be granted a career-ladder
promotion to GS-11. The recommendation was placed in abeyance pending a
classification audit of the grievant's position.
On April 26, 1988, the findings of the classification audit were
issued. The audit report found that the grievant's position was
misclassified as to title, series, and grade. The audit report
concluded that if no changes were made to the current tasks assigned to
the grievant, the correct grade determination was GS-7 and a downgrade
action would be necessary. The audit report advised that if some
changes were made in the position, the position could potentially
support a GS-9 grade level as a communications specialist, GS-393. The
report stated that apparently no GS-11 position description was ever
established or classified and that no GS-11 work was observed. The
report further found that the GS-12 position description was
misclassified and could support only a GS-9 level even if revisions were
made. Accordingly, the audit report recommended that the GS-11 and
GS-12 levels of the series be abolished.
On May 1, 1988, the Union filed a grievance over the Agency's failure
to grant the grievant a career-ladder promotion to GS-11. As a result
of the classification audit, the grievant was reassigned in August 1988
to the position of communications specialist, GS-393, at the GS-9 grade
level. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Agency argued that a career-ladder
promotion cannot be granted after a classification audit results in the
abolition of the career-ladder position. The Agency maintained that,
consequently, the grievance was not grievable or arbitrable because it
concerned a classification matter under section 7121(c)(5) of the
Statute and Article 34 of the parties' collective bargaining agreement.
The Arbitrator rejected the Agency's argument that the grievance
concerned a classification matter. He ruled that the grievance was
arbitrable as a matter relating to a career-ladder promotion. The
Arbitrator concluded that the grievant should have received a
career-ladder promotion to GS-11 effective August 31, 1987. He found
that the grievant satisfied the requirements for promotion and that the
grievant's supervisor had recommended her for promotion before the
classification audit. The Arbitrator recognized the legitimacy of the
classification audit and its abolition of the original career ladder,
but he ruled that it could not be used retroactively to deprive the
grievant of the promotion to which she was entitled. Instead, he ruled
that the audit applied to preclude the grievant's career-ladder
promotion to GS-12 because a GS-12 position was no longer available.
Accordingly, on April 20, 1990, the Arbitrator issued the following
award:
That the matter is grievable and arbitrable as a career ladder
promotion.
That the Grievant . . . is entitled to career ladder promotion
to GS-11 effective August 31, 1987.
That the career ladder position has been reclassified and is
non-grievable and non-arbitrable as of April 26, 1988.
Award at 6.
According to the Agency, on March 24, 1990, the grievant terminated
her employment with the Agency. Pursuant to the Arbitrator's award, the
Agency, in June 1990, provided the grievant with backpay computed on the
basis of the difference in salary between GS-9 and GS-11 for the period
August 31, 1987, to April 26, 1988. The Union objected to the Agency's
interpretation of the award. The Union claimed that the Arbitrator's
reference to April 26, 1988, did not terminate the Agency's backpay
obligation because the Arbitrator found that the grievant should have
been promoted to GS-11 and would have been a GS-11 until she left the
Agency's employment. As a result of the dispute, the Arbitrator issued
a clarified award on August 2, 1990, reiterating the findings of his
April 20 award and specifying the period for which the grievant was
entitled to backpay. On August 6, the Arbitrator corrected the date on
which the backpay award terminated. The award as clarified provided as
follows:
That the Agency should have promoted the Grievant . . .
permanently to the GS-11 level effective August 31, 1987.
That after April 26, 1988 there was no GS-12 position she could
have been promoted to perform in her present classification
series.
That the GS-12 position in her classification series had been
abolished.
That she is entitled to be properly compensated as a GS-11 from
August 31, 1987 until her service terminates from that position
including pay increases and increments.
On September 5, 1990, the Agency filed exceptions to the award, as
clarified.
A. The Agency
As a threshold matter, the Agency contends that its exceptions
concern only the award, as clarified, and that, consequently, they were
timely filed. The Agency explains that it did not file exceptions to
the initial award because it reasonably believed that the backpay
entitlement of the grievant was from August 31, 1987, to April 26, 1988.
The Agency maintains that it was not until the August 6, 1990
clarification that it became clear that the grievant's entitlement to
backpay extended beyond April 26, 1988. The Agency asserts that its
exceptions concerning such an extension were filed within 30 days of the
August 6 clarification and that, therefore, they should be considered to
have been timely filed.
In its exceptions, the Agency contends that the Arbitrator's award of
a retroactive promotion and backpay subsequent to April 26, 1988, is
contrary to the Back Pay Act, 5 U.S.C. Section 5596, the Classification
Act, 5 U.S.C. Sections 5101-5115, and management's right to assign work
under section 7106(a)(2)(B) of the Statute, and is based on a nonfact.
The Agency argues that the award is contrary to the Back Pay Act
because the Arbitrator failed to make the findings necessary for an
award of backpay. The Agency claims that there was no finding of a
causal connection because the Arbitrator made no finding that the Agency
had violated any provision of the collective bargaining agreement. The
Agency claims that, in particular, the Arbitrator did not find that the
action taken for the period of time after April 26, 1988, was
unjustified or unwarranted. The Agency also asserts that a retroactive
promotion with backpay is not authorized for any period of time before a
position is actually classified. Thus, the Agency argues that the award
is deficient because the classification audit specifically found that
there never was a position established or classified at the GS-11 grade
level.
The Agency argues that the award is contrary to the Classification
Act because in order to promote the grievant the Agency would first have
to classify a GS-11 position, which the Arbitrator found was
appropriately determined by the Agency not to be supportable under the
classification standards. The Agency argues that for the same reasons,
the award is contrary to management's right to assign work under section
7106(a)(2)(B). The Agency claims that after having found that the
Agency legally determined that there was no work that could be performed
at the GS-11 grade level, the Arbitrator could not order the grievant
promoted to GS-11.
The Agency maintains that the award is based on the fact that a
classified GS-11 position existed, and the Agency argues that this
constitutes a nonfact. The Agency asserts that the award is deficient
because although the Arbitrator found that the classification audit was
legal and that the Agency rightfully abolished the career ladder on
April 26, 1988, the award nevertheless requires promotion to a position
that never existed.
B. The Union
The Union contends that the Agency's exceptions were untimely filed.
The Union claims that the Arbitrator did not modify his award in the
clarification of August 2 and 6. In the Union's view, the clarification
served only to reaffirm the Arbitrator's prior ruling that the grievant
was entitled to a promotion as of August 31, 1987, and was due
compensation at this grade level from this date until the date on which
she terminated her employment with the Agency. Therefore, the Union
asserts that under established Authority precedent, the Agency's
exceptions should be dismissed as untimely filed.
A. Timeliness of Exceptions
In his award dated April 20, 1990, the Arbitrator ruled that the
grievant was entitled to have been granted a career-ladder promotion to
GS-11 effective August 31, 1987. In his clarification award of August 2
and August 6, 1990, the Arbitrator clarified the April 20 award to state
that the grievant was entitled to have been compensated as a GS-11 with
pay increases and increments from August 31, 1987, until the date on
which she terminated her employment with the Agency.
We have held that a clarification award does not operate to extend
the time period for filing exceptions under section 7122 of the Statute.
National Treasury Employees Union, Chapter 199 and U.S. Department of
the Treasury, Bureau of the Public Debt, 35 FLRA 668, 671 (1990) (Bureau
of the Public Debt). Only when an arbitrator's response to a
clarification request gives rise to the deficiency alleged in the
exception does the filing period for exceptions begin with the service
of the arbitrator's response. Id. at 671. In this case, we conclude
that the Agency's exceptions were untimely to the extent that they
dispute the Arbitrator's ruling in the April 20 award that the grievant
was entitled to have been promoted to GS-11 as of August 31, 1987. The
alleged deficiencies pertaining to this ruling arose as a result of the
April 20 award. In the clarification award, the Arbitrator merely
reiterated this ruling from the April 20 award. Accordingly, the
Agency's exceptions filed on September 5, 1990, insofar as they contend
that this ruling is deficient, were untimely filed, and they are
dismissed to that extent.
However, we conclude that the Agency's exceptions were timely filed
to the extent that they dispute the Arbitrator's award of backpay after
the classification audit report of April 26, 1988. We find that this
alleged deficiency did not arise until the Arbitrator's clarification of
August 6. We agree with the Agency that the period of the backpay award
was not clearly specified as extending beyond April 26, 1988, until the
August 6 clarification. Consequently, the time period for filing
exceptions disputing the extension of the award of backpay beyond April
26, 1988, did not commence until service of the clarification award of
August 6, and the Union's exceptions filed on September 5 were timely.
See Bureau of the Public Debt, 35 FLRA at 672 (citing United States
Department of the Interior, Bureau of Land Management, Eugene District
Office and National Federation of Federal Employees, Local 1911, 6 FLRA
401, 403 n.2 (1981)). Accordingly, we will resolve on the merits the
Agency's exceptions insofar as they contend that the award is deficient
by extending the award of backpay to the grievant beyond April 26, 1988.
B. Merits of the Exceptions
We conclude that the Agency fails to establish that the award is
deficient by ordering the grievant compensated at the GS-11 grade level
with pay increases and increments from August 31, 1987, until the date
on which the grievant terminated her employment with the Agency. We
find that the Arbitrator's extension of the award of backpay beyond
April 26, 1988, is fully consistent with the grievant's statutory
entitlements under the Back Pay Act and that the Agency has
misapprehended the effect of the classification audit report of April
26, 1988.
As we noted in U.S. Department of Housing and Urban Development
Regional Office, Atlanta, Georgia and American Federation of Government
Employees, Local 1568, 41 FLRA 520, 526 (1991), under 5 U.S.C. Section
5596(b)(1)(A)(i), an employee who has suffered an unjustified or
unwarranted personnel action that resulted in the denial of a
career-ladder promotion is entitled on correction of that unwarranted
denial of promotion to receive compensation for the period during which
the unwarranted action was in effect. The compensation awarded should
be an amount equal to the pay, allowances, and differentials that the
employee normally would have earned or received during the period if the
denial of promotion had not occurred. See also National Labor Relations
Board Union, Local 19 and Office of the General Counsel, National Labor
Relations Board, 7 FLRA 21 (1981).
In this case, the grievant was statutorily entitled to have received
pay at the GS-11 grade level for the period during which the unwarranted
action of the denial of her promotion to GS-11 was in effect. In our
view, the period during which this unwarranted action was in effect was
precisely as found by the Arbitrator: the period began on August 31,
1987, and ended on the date on which the grievant terminated her
employment with the Agency. In the Arbitrator's April 20, 1991, award,
as to which we have dismissed the exceptions, the Arbitrator ruled that
the grievant should have been promoted as of August 31, 1987.
Accordingly, under section 5596(b)(1)(A)(i), the grievant was entitled
to have been compensated as a GS-11 beginning on August 31, 1987.
Therefore, we find, contrary to the contentions of the Agency, that the
April 26, 1988, audit report, which issued after the date on which the
grievant was entitled to have been promoted, could not alone have
affected the grade and pay level that the grievant would have attained
on August 31, 1987.
Contrary to the arguments of the Agency that the classification audit
operated on April 26, 1988, to affect the grievant at that time, the
audit report expressly indicates that the grievant's grade level could
be affected only by a separate and independent personnel action.
Furthermore, Federal Personnel Manual (FPM) chapter 511, subchapter 7-2
advises that an agency position classification action takes effect on
the date an agency official with delegated authority approves the pay
system, title, series, and grade determination and that this date
normally is the date the official revises the position description. In
cases such as this one where the position is occupied, subchapter 7-2
expressly requires that "the classification action must be implemented
by a subsequent personnel action, i.e., the issuance of a Notification
of Personnel Action, SF 50 (or equivalent), within a reasonable period
of time." Subchapter 7-2(b) specifically provides that for purposes of
an employee's pay, "it is the effective date of the personnel action (SF
50) that appoints or assigns the employee to the reclassified position,
and not the date of the classification action, that is determining."
(Emphasis in original.) The Agency in its exceptions fails to argue, and
in no manner establishes, what personnel action it would have taken
against the grievant after April 26, 1988, as a result of the audit
report and in what manner such personnel action would have affected the
grievant's entitlement to GS-11 pay, and we will not speculate in order
to find the award deficient. Accordingly, we conclude that there is no
basis for finding that the award of backpay beyond April 26, 1988, is in
any manner deficient because of the issuance of the classification audit
report on that date.
Moreover, even if we were to assume that the Agency did, or would
have, abolished the GS-11 position within a reasonable period of time
after April 26, 1988, we still conclude that there is no basis for
finding the award of backpay deficient. As we understand grade
retention as set forth in 5 U.S.C. Section 5362, the Agency's action in
abolishing the GS-11 position and downgrading the position to a GS-9 or
GS-7 would not have affected the GS-11 pay that the grievant would have
attained on August 31, 1987. Grade retention under 5 U.S.C. Section
5362 is for a period of 2 years. Therefore, because the grievant left
the Agency less than 2 years after the classification audit, she would
have retained her GS-11 grade until the date on which she terminated her
employment with the Agency.
As explained by the court in Atwell v. MSPB, 670 F.2d 272, 275 (D.C.
Cir. 1981), "the position classification determinations of an agency are
the touchstones by which compensation, responsibility, and related
personnel decisions are made. Thus, where the grade of a civil
servant's position is lowered, reductions in pay and fringe benefits
would ordinarily be the norm . . . ." However, the court noted the
application of grade retention under 5 U.S.C. Section 5362:
In recognition, however, of the fact that an employee whose
position is reclassified may be harmed through no "fault" of his
own, Congress, in structuring the civil service, mandated the
provision of certain offsetting benefits where a position is
lowered in grade. In most cases, the employee whose position is
downgraded is entitled to retain for a two-year period the former
grade of the position, and during this period the retained grade
is used for the purpose of computing compensation and related
fringe perquisites.
670 F.2d at 275-76. In short, "the employee whose position is
downgraded never has his pay lowered as a net result of the
reclassification, and retains his former grade for two years(.)" Id. at
276. More specifically, FPM chapter 536, subchapter 4-3 provides that
employees entitled to grade retention are entitled to within-grade
increases in the retained grade and comparability increases when their
rate of basic pay is within the rate range of the retained grade.
In sum, we conclude that the Arbitrator's order that the grievant be
compensated as a GS-11 with pay increases and increments is consistent
with law and regulation and was unaffected by the classification audit
of April 26, 1988. Accordingly, we will deny the Agency's exceptions to
the extent that they contend that the award of backpay beyond April 26,
1988, was deficient.
The Agency's exceptions, insofar as they contend that the
Arbitrator's original award was deficient, are dismissed as untimely
filed. To the extent that the Agency's exceptions contend that the
award of backpay after the classification audit report of April 26,
1988, was deficient, they are denied.
42 FLRA 659
42 FLRA NO. 42
Veterans Affairs Medical Center, Martinsburg, West Virginia and NAGE,
Local R4-78, Case No. 3-CA-10514 (Decided September 30, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the Union with the names
and home addresses of bargaining unit employees.
Case No. 3-CA-10514
VETERANS AFFAIRS MEDICAL CENTER, MARTINSBURG, WEST VIRGINIA
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-78, AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The General Counsel filed a brief with the
Authority. Neither the Respondent nor the Union filed a brief.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the following reasons, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's
employees. By letter dated February 26, 1991, the Union requested the
names and home addresses of the unit employees it represents. By letter
dated March 19, 1991, the Respondent refused to provide the Union with
the requested information.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available, and does not constitute guidance, advice, counsel
or training provided for management officials or supervisors related to
collective bargaining. The parties also stipulated that: (1) the
Respondent argues that "the Union has alternative means to obtain the
names and home addresses"; and (2) the General Counsel argues that "it
is not necessary to determine if alternative means of communication . .
. are available . . . ." Stipulation at 3, paras. 10 and 11.
The General Counsel argues that the Authority's decisions in Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788
(1986) (Farmers Home), and U.S. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth
Naval Shipyard), enforcement denied sub nom. FLRA v. U.S. Department of
the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No.
90-1949 (1st Cir. Aug. 13, 1991) (FLRA v. Portsmouth Naval Shipyard),
are dispositive of the issues in this case. The General Counsel asserts
that, consistent with these decisions, the Respondent's admitted failure
to furnish the Union with the requested information violates section
7116(a)(1), (5), and (8) of the Statute.
As noted previously, neither the Respondent nor the Union filed a
brief with the Authority.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
We note that, in FLRA v. Portsmouth Naval Shipyard, the U.S. Court of
Appeals for the First Circuit denied the Authority's petition for
enforcement of Portsmouth Naval Shipyard. Subsequently, in FLRA v. U.
S. Department of the Navy, Navy Ships Parts Control Center, et al., Nos.
90-3690, 90-3724 (3d Cir. Sept. 13, 1991), a divided Court of Appeals
for the Third Circuit denied the Authority's petition for enforcement of
U.S. Department of the Navy, Navy Ships Parts Control Center and Navy
Fleet Material Support Office and NAVSEA Logistics Center and Navy
Publishing and Printing Service, 37 FLRA 722 (1990), in which the
Authority relied on Portsmouth Naval Shipyard. We respectfully disagree
with these courts' decisions and adhere to our decision in Portsmouth
Naval Shipyard.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available, and does not constitute advice, guidance, or
counsel provided to management officials or supervisors relating to
collective bargaining, within the meaning of section 7114(b)(4) of the
Statute. Accordingly, based on the Authority's decision in Portsmouth
Naval Shipyard, we conclude that the Respondent violated section 7116(
a)(1), (5), and (8) of the Statute by failing to furnish the Union with
the requested names and home addresses of unit employees represented by
the Union.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Veterans Affairs Medical Center, Martinsburg, West
Virginia, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National
Association of Government Employees, Local R4-78, AFL-CIO, the
exclusive representative of certain of its employees, the names
and home addresses of all employees in the bargaining unit it
represents.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Furnish the National Association of Government Employees,
Local R4-78, AFL-CIO, the exclusive representative of certain of
its employees, the names and home addresses of all employees in
the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Association of Government Employees,
Local R4-78, AFL-CIO, are located, copies of the attached Notice
on forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Director
of the Veterans Affairs Medical Center, Martinsburg, West
Virginia, and shall be posted in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted, and shall be maintained for 60 consecutive
days thereafter. Reasonable steps shall be taken to ensure that
such notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Washington, D.C.
Regional Office, Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order as to what steps have
been taken to comply.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R4-78, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL furnish the National Association of Government Employees,
Local R4-78, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. Regional Office, Federal Labor Relations
Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O.
Box 33758, Washington, D.C. 20033-0758, and whose telephone number is:
(202) 653-8500.
42 FLRA 650
42 FLRA NO. 41
Dept. of Justice, Immigration and Naturalization Service, New York
District and AFGE, Immigration and Naturalization Service Council
(Schmertz, Arbitrator), Case No. 0-AR-1912 (Decided September 30, 1991)
7122(a)
7106(a)(2)(A)
ARBITRATION EXCEPTION
SUSPENSION
BACK PAY ACT
5 U.S.C. 5596(b)
5 U.S.C. 7503(a)
MERIT SYSTEM PROTECTION BOARD
STANDARD OF PROOF
5 U.S.C. 7701(c)(1)(B)
RIGHT TO DISCIPLINE
The Arbitrator sustained a grievance filed over a 10 day suspension
for specified acts of conduct, setting aside the suspension and ordering
the grievant to receive back pay. The Authority found that the award
was not contrary to the Back Pay Act, as alleged by the Agency,
rejecting the contention that there existed a specific standard of proof
that must be met in order to support disciplinary actions of 14 days or
less. The Authority also rejected the contention that the award is
contrary to the 7106(a)(2)(A) right to assign, noting that it is well
established that arbitrators have authority under the Statute to resolve
grievances over whether disciplinary action was warranted and, if so,
whether the penalty assessed was appropriate.
Case No. 0-AR-1912
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE,
NEW YORK DISTRICT OFFICE
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL
LOCAL 1917
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Eric J. Schmertz filed by the Agency pursuant to section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union filed an opposition to the Agency's exceptions.
The Agency suspended the grievant for 10 days without pay for
allegedly: (1) misstating a fact to a supervisor and co-worker; (2)
refusing to answer a supervisor's question; and (3) using insulting,
abusive and obscene language when talking to a supervisor. The
Arbitrator found that the Agency failed to show by clear and convincing
evidence that the suspension was made for just and sufficient cause.
The Arbitrator sustained the grievance, set aside the suspension, and
ordered that the grievant be given backpay. For the following reasons,
we deny the Agency's exceptions.
The grievant is a Deportation Officer who was reassigned to perform
Bond Officer duties for 1 day. While completing a worksheet on a bond
for an alien being held in the Chula Vista detention center, the
grievant had all of the information needed to entitle the alien to be
released on bond, except the alien's date of birth. When the grievant
was unable to obtain that information, he requested the secretary who
was preparing the alien's bond worksheet to put her own date of birth on
the form. The secretary refused.
The supervisor overheard the grievant request that the secretary use
her own date of birth on the form. When the supervisor asked the
grievant about that action, a dispute developed between the supervisor
and the grievant. As a result, the grievant was charged with: (1)
dereliction of duty; (2) misstatement of fact to a supervisor; (3)
refusal to answer a supervisor's question; and (4) use of insulting,
abusive and obscene language to a supervisor. The Agency investigated
the incident and dismissed the charge of dereliction of duty. The
Agency proposed that the grievant be suspended for 10 days without pay
on the remaining charges.
The grievant grieved the suspension. The matter was not resolved and
the grievance was submitted to arbitration. The parties stipulated the
folowing issue before the Arbitrator: "Was the 10-day suspension of
(the grievant) taken for just and sufficient cause in accordance with
Article 31-H(1) of the negotiated agreement, and if not, what shall the
remedy be?" /1/ Award at 1.
The Arbitrator stated that the Agency "has the burden of establishing
by clear and convincing evidence that there was just and sufficient
cause for disciplining (the grievant)." Id. at 11. With respect to the
charge that the grievant made a misstatement of fact to the supervisor
and a co-worker, the Arbitrator found that the Agency "failed to
establish by clear and convincing evidence that the conduct charged
provides just and sufficient cause for disciplining (the grievant)." Id.
at 13. The Arbitrator found "significant evidence of record that (the
grievant), after having identified the aliens who were entitled to be
released, acted in accordance with common office practice to accomplish
their release expeditiously." Id.
With regard to the alleged misconduct of the grievant set forth in
the third and fourth charges, the Arbitrator found that the parties
presented completely different versions of the incident. As there was
no corroboration of either side's version, the Arbitrator found that he
was "constrained" to find that the Agency had "not sustained its burden
of establishing by clear and convincing evidence that the words were
spoken and that there was just and sufficient cause for disciplining the
(grievant) on the basis of these last two charges." Id. at 13-14.
The Arbitrator set aside the grievant's 10-day suspension and ordered
that the grievant be made whole as to any loss of money or rights and
privileges that he suffered by virtue of the suspension.
A. The Agency
The Agency contends that the award is contrary to 5 U.S.C. Section
5596(b) (the Back Pay Act) and 5 U.S.C. Section 7503(a) because the
Arbitrator imposed an improper standard of proof. /2/ The Agency
specifically excepts to the Arbitrator's statement that "(t)he Employer
has the burden of establishing by clear and convincing evidence that
there was just and sufficient cause for disciplining (the grievant)."
Exceptions at 2 (emphasis in original).
The Agency asserts that in providing for arbitral review of
grievances contesting suspensions of 14 days or less, Congress "intended
the evidentiary standard to be applied to be the 'arbitrary and
capricious,' or at most, the 'preponderance of the evidence standard,
not the more difficult 'clear and convincing evidence' standard which
the Arbitrator applied here." Id. at 3. The Agency argues that the
Arbitrator departed from the private sector practice by applying the
"clear and convincing evidence" standard and that if the Arbitrator had
applied the correct standard, the "evidence presented by the (Agency)
was sufficient to support the suspension." Id. at 6-7.
The Agency contends that under Department of the Treasury, Internal
Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (Internal Revenue
Service), an arbitrator can reverse a disciplinary action imposed by an
agency only if the arbitrator finds that the action was contrary to law.
The Agency asserts that the only laws that limit management's right to
discipline employees are the Back Pay Act, 5 U.S.C. Section 5596(b), and
5 U.S.C. Section 7503, pertaining to suspensions for 14 days or less.
The Agency maintains that the only substantive limitation on
management's right to take disciplinary action is that such action be
taken "for such cause as will promote the efficiency of the service" as
provided in 5 U.S.C. Section 7503(a).
The Agency argues that Congress intended that a lesser standard of
proof than "clear and convincing evidence" be used in adjudicating
grievances concerning disciplinary actions taken under 5 U.S.C. Section
7503. Exceptions at 9. The Agency contends that "the implied statutory
standard of proof which an agency must meet in order to sustain a minor
disciplinary action" is that the action not be "arbitrary and
capricious." Id. The Agency asserts that even if Congress did not
intend the "arbitrary and capricious" standard to be applied in such
cases, the highest standard of proof that Congress could have intended
in those cases is the "preponderance of the evidence" standard
prescribed for the Merit Systems Protection Board (MSPB) in 5 U.S.C.
Section 7701(c)(1)(B) for deciding adverse action cases arising under 5
U.S.C. Section 7512-13. Id. at 11. The Agency argues that Congress
"could not logically be found to have intended to give employees any
greater protection with respect to contesting suspensions of 14 days or
less . . . than with respect to contesting suspensions of 15 days or
more or removals(.)" Id. at 15. The Agency contends that the usual
standard of proof applied in private sector cases is the "preponderance
of the evidence" standard and asserts that allowing agencies and unions
to negotiate any standards they may choose would be unworkable and lead
to inconsistencies with the standards established by law for union
animus and equal employment opportunity cases.
The Agency also asserts that the award interferes with management's
right to discipline employees under section 7106(a)(2)(A) of the
Statute. The Agency argues that requiring management to meet a higher
standard of proof than "arbitrary and capricious" or "preponderance of
the evidence" would result in disciplinary actions being set aside and
would "serve to interfere with the right to 'suspend' employees reserved
by section 7106(a)(2)(A) of the Statute." Id. at 22. The Agency asserts
that a negotiated agreement provision to use the "clear and convincing
evidence" standard would not constitute either a procedure under section
7106(b)(2) of the Statute or an appropriate arrangement under section
7106(b)(3) of the Statute. Id.
B. The Union
The Union contends that the Arbitrator's award is not contrary to any
law, rule or regulation. The Union asserts that the Agency's reliance
on sections 7503(a), 5596(b) and 7106(a)(2)(A) of Title 5 of the U.S.
Code is misplaced because those provisions "contain no language on
burden of proof." Opposition, n.1.
The Union maintains that an arbitrator, when resolving a contract
violation, "is not required to apply (F)ederal law pertaining to the
proper order and nature of proof in actions in (F)ederal courts(.)" Id.
at 1-2. The Union notes that the Arbitrator properly applied the
standard of "just and sufficient cause" provided in the parties'
agreement and notes that the Arbitrator also stated that the Agency
failed to show by "clear and convincing evidence" that it had "just and
sufficient cause" to suspend the grievant. Id. at 2. The Union denies
that the Arbitrator's use of the term "clear and convincing evidence"
constitutes a violation of law and maintains that unless a specific
standard of proof is expressly provided for in an agreement, an
"arbitrator may establish whatever standard of proof the arbitrator
considers appropriate, and the award is not reviewable on that basis."
Id.
The Union also claims that the Arbitrator's finding that there was no
clear and convincing evidence simply means that the Agency "had not
convinced him . . . that the (Agency) had proffered enough evidence to
demonstrate that it had just and sufficient cause to discipline the
grievant." Id. at 3.
The Union asserts that the standards set forth in section 7701,
pertaining to the appellate review procedures of the MSPB, do not apply
to the arbitration of suspensions of 14 days or less, even though under
section 7121(e) of the Statute, an arbitrator is governed by the
standards provided in section 7701(c). The Union claims that, as it
pertains to disciplianry actions, section 7121(e)(2) "only applies to
the more serious adverse actions enumerated in section 7512 and,
therefore, neither that section nor the standards set forth in (s)
ection 7701(c) apply to suspensions of 14 days or less as in this case."
Id. Therefore, the Union argues, the award is not contrary to law.
Further, the Union states that the Agency and the Union agreed in
Article 31 H(1) of their agreement to use the just and sufficient cause
standard to resolve disciplinary matters. The Union notes that the
parties "agreed to a contract that did not further delineate or define
the 'burden of proof' standards for Section 7503 matters such as the
instant case." Id. at 7.
We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient because it is contrary to law.
Therefore, we will deny the Agency's exceptions.
A. The Arbitrator's Award Is Not Contrary to 5 U.S.C. Section 5596(
b) or 5 U.S.C. Section 7503(a)
Initially, we reject the Agency's contention that 5 U.S.C. Section
5596(b) and 5 U.S.C. Section 7503(a) establish a specific standard of
proof that must be met in order to support disciplinary actions of 14
days or less. Neither of those provisions of law contains any language
concerning standard of proof or burden of proof and neither provision
establishes any standards that an arbitrator must apply when considering
grievances over disciplinary actions such as suspensions of 14 days or
less. The substantive standards relating to burden of proof and degree
of proof prescribed by 5 U.S.C. Section 7701(c)(1) for appeals to the
MSPB are further defined in 5 C.F.R. Section 1201.56. In addition to
describing the proper allocation of the burden of proof, that regulation
describes "substantial evidence," "preponderance of the evidence," and
"harmful error," as those terms relate to appeals before the MSPB. 5
C.F.R. Section 1201.56(c). The Authority has repeatedly held that
arbitrators are not bound by those substantive standards applied by the
MSPB when resolving grievances over actions not covered by 5 U.S.C.
Sections 4303 and 7512. See, for example, U.S. Department of Health and
Human Services, Social Security Administration, Office of Hearings and
Appeals, 41 FLRA 504, 511 (1991); American Federation of Government
Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air
Logistics Center, Hill Air Force Base, Utah, 40 FLRA 958, 963 (1991);
U.S. Department of Justice, Immigration and Naturalization Service,
Jacksonville, Florida and American Federation of Government Employees,
National Border Patrol Council Local 3725, 36 FLRA 928, 932 (1990) (INS,
Jacksonville).
The award in this case concerns the 10-day suspension of the
grievant. A suspension for 10 days is not a matter covered by 5 U.S.C.
Sections 4303 or 7512. Therefore, the standards prescribed for appeals
of those matters to the MSPB do not apply in this case and the Agency's
exceptions provide no basis for finding the award to be deficient as
contrary to law. Consequently, in the absence of any specified standard
of proof, the Arbitrator was free to apply the standard of proof that he
deeemed appropriate to determine whether the suspension of the grievant
was for such cause as will promote the efficiency of the service. See
INS, Jacksonville, 36 FLRA at 932.
We find that the Agency's arguments based on the decision of the
Supreme Court in Internal Revenue Service are misplaced. That decision
concerns the negotiability of a union proposal that would require the
negotiated grievance procedure to be designated as the internal appeals
procedure for complaints relating to contracting out of work. The
Agency has not pointed to any language in that decision that addresses
the issue in the present case and, particularly, no language that
prescribes the standard of proof that arbitrators should apply when
resolving grievances arising from disciplinary action taken by an agency
against an employee under 5 U.S.C. Section 7503. We note that the
Supreme Court has held that when arbitrators are called upon to address
grievances arising under the provisions of 5 U.S.C. Sections 4303 or
7512, those arbitrators are required to apply the substantive standards
prescribed for the MSPB in 5 U.S.C. Section 7701(c), which describes the
appropriate standard of proof and the harmful error standard. See
Cornelius v. Nutt, 472 U.S. 648, 660-61 (1985). In Cornelius v. Nutt,
the Supreme Court made no finding of a similar requirement for
arbitrators deciding matters under 5 U.S.C. Section 7503. Consequently,
we find that the Agency has failed to demonstrate that the Arbitrator
was required to apply the substantive standards found in 5 U.S.C.
Section 7701(c) to the grievance over a 10-day suspension.
We conclude that the Agency has failed to show that the Arbitrator's
award is deficient on the basis that the Arbitrator addressed the issue
presented and found that the Agency failed to show that the grievant's
suspension was made for just and sufficient cause in accordance with the
relevant provision of the parties' collective bargaining agreement. In
the absence of a required standard of proof, the Agency's argument that
the grievant's suspension would have been sustained if the Arbitrator
had applied a different standard of proof constitutes nothing more than
disagreement with the Arbitrator's evaluation of the evidence and
testimony at the hearing, and provides no basis for finding an award
deficient. See U.S. Department of the Treasury, Internal Revenue
Service, Brookhaven Service Center and National Treasury Employees
Union, Chapter 99, 37 FLRA 1176, 1187-88 (1990); INS, Jacksonville, 36
FLRA at 934.
B. The Arbitrator's Award Is Not Contrary to Section 7106(a)(2)(A)
of the Statute
In asserting that the award interferes with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute, the
Agency stated that the Union might argue that the standard of clear and
convincing evidence applied by the Arbitrator "was (contrary to fact)
somehow found to be implicit in Article 31-H of the parties' master
agreement" and that the standard of clear and convincing evidence was
"either a 'procedure' or an 'appropriate arrangement' within the meaning
of section 7106(b)(2) or (3) of the Statute." Exceptions at 22. The
Union did not make this argument, however. Instead, the Union argued
that although the "burden of proof standard at arbitration is
procedural" and that the "contractual 'just and sufficient cause'
standard can be properly viewed as a (s)ection 7106(b)(3) arrangement,"
the parties' agreement is silent as to the standard of proof that was
applicable in disciplinary cases under 5 U.S.C. Section 7503.
Opposition at 6-7.
We conclude, based on long-standing Authority precedent, that the
Agency's exception fails to establish that the Arbitrator's award is
contrary to section 7106(a)(2)(A) of the Statute on the ground that he
applied an improper standard of proof. Consequently, it is not
necessary to determine whether the award concerns the application of a
procedure or an arrangement for employees adversely affected by the
Agency's exercise of its right to discipline employees.
The Arbitrator was asked to determine whether the 10-day suspension
of the grievant was taken for just and sufficient cause in accordance
with Article 31-H(1) of the parties' collective bargaining agreement.
The language of that provision of the parties' agreement is not in the
record before us. However, it is apparent that the provision concerns
the standard -- "just and sufficient cause" -- that must be met by the
Agency when disciplining employees. See Award at 1-2; Exceptions at
21; Opposition at 6.
It is well established that arbitrators have the authority under the
Civil Service Reform Act to resolve grievances over whether disciplinary
action was warranted and, if so, whether the penalty assessed was
appropriate. See INS, Jacksonville, 36 FLRA at 934. Further, as we
have stated above, there is no prescribed standard of proof that must be
applied by arbitrators when deciding disciplinary action cases arising
under 5 U.S.C. Section 7503 and arbitrators are not bound by the
substantive standards that must be applied by the MSPB in cases arising
under 5 U.S.C. Sections 4303 and 7512. The issue before the Arbitrator
in this case concerned whether the 10-day suspension of the grievant was
for just and sufficient cause and, if so, what remedy would be
appropriate. We find that the Arbitrator's determination that the
10-day suspension of the grievant was not for just and sufficient cause
does not interfere with management's right to take disciplinary action.
See Department of Justice, Federal Prisons Systems, El Reno Federal
Correctional Institution, El Reno, Oklahoma and American Federation of
Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA
329, 336 (1990) (an arbitrator's award modifying discipline does not
conflict with management's right to take disciplinary action when the
arbitrator determines that the action is not in accordance with law
because it does not promote the efficiency of the service). Therefore,
we conclude that the Agency has failed to establish that the award is
contrary to management's right to take disciplinary action under section
7106(a)(2)(A) of the Statute.
The Agency's exceptions are denied.
(1) The record does not contain a copy of Article 31-H(1) of the
parties' collective bargaining agreement.
(2) Section 7503(a) pertinently provides:
Under regulations prescribed by the Office of Personnel
Management, an employee may be suspended for 14 days or less for
such cause as will promote the efficiency of the service . . . .
42 FLRA 639
42 FLRA NO. 40
NAGE, Locals R14-68 and R14-73 and Dept. of Defense, Missouri
National Guard, Case No. 0-NG-1735 (Decided September 30, 1991)
7105(a)(2)(E)
7106(a)(2)(B)
7106(b)(3)
NEGOTIABILITY DETERMINATION
RELIEF TO EMPLOYEES
TRAVEL AWAY FROM DUTY STATION
ASSIGN WORK
APPROPRIATE ARRANGEMENTS
Section A(1) of Provision 3 provides that Technicians who, as part of
their duties, must operate government vehicles shall not be required or
be voluntarily permitted to physically operate a vehicle without
relieve, in excess of any period of ten consecutive hours. Noting that
as plainly worded, the section imposes a substantive condition on the
Agency's right to determine the duration of work assigned to vehicle
operators, the Authority concluded that the section directly interferes
with the Agency's right to assign work. However, concluding that the
benefits provided employees under the section outweigh the minimal
impact on management's rights, the Authority concluded that it did not
excessively interfere and constituted an appropriate arrangement under
7106(b)(3).
Sections A(2) and (b) of Provision 3 provides that employees will not
be required to operate overweight, overlength, or overwide vehicles
without proper certification and/or prescribed escort vehicles except in
cases of emergency and that in situations of emergency that may occur,
escort vehicles should still be provided. The Authority concluded that
these portion of the Provision directly interfere with management's
right to assign work, but that they are negotiable as appropriate
arrangements.
Provision 4 provides that technicians will not be required to travel
away from their normal duty station when it is reasonable foreseeable in
advance that they will be away from their normal duty station for more
than 10 hours without appropriate TDY orders. The Authority concluded
that the provision directly interferes with management's right to assign
work, but is negotiable as an appropriate arrangement.
Case No. 0-NG-1735
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R14-68 AND
R14-73
(Union)
U.S. DEPARTMENT OF DEFENSE, MISSOURI NATIONAL GUARD
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a petition for review filed by
the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The petition concerns
the negotiability of two provisions of a collective bargaining agreement
that were disapproved by the Departments of the Army and the Air Force
National Guard Bureau under section 7114(c) of the Statute. /1/
We find that Provision 3, which requires the Agency to provide relief
to employees after they have operated a vehicle for 10 consecutive hours
and which concerns the operation of overweight, overlong, and overwide
vehicles, is negotiable. We find that Provision 4, which prohibits the
Agency from requiring unit employees to travel away from their normal
duty stations for more than 10 hours unless they are provided with
appropriate Temporary Duty Assignment (TDY) orders, is negotiable.
ARTICLE 18, SECTION 5
A. Technicians who, as part of their duties, must operate government
vehicles over public roads, highways, or interstate throughways shall
not be required:
(1) or be voluntarily permitted to physically operate a vehicle
without relief, in excess of any period of ten consecutive hours;
(2) to operate overweight, overlength, or overwide vehicles
without proper certification and/or prescribed escort vehicles as
required by appropriate statute and regulation except in cases of
emergency and (sic) determined by the employer.
B. It is understood that in situations of emergency that may occur
or be declared by appropriate officials, especially during normal
nonworking hours, that certification as described above would be
difficult, if not impossible to obtain, however escort vehicles, if
required, should still be provided under these circumstances.
A. Positions of the Parties
1. The Agency
The Agency contends that, by imposing conditions on the Agency's
right to assign unit employees to drive certain vehicles and its right
to determine the duration of work assignments, Provision 3 directly and
excessively interferes with its right to assign work under section
7106(a)(2)(B) of the Statute. The Agency also contends that permitting
an employee to drive without a proper certification or escort only in an
emergency "would be an extremely restrictive situation that would only
control in a fraction of situations and would be extremely hard to
justify before an arbitrator of just what constituted an emergency."
Statement of Position at 4. The Agency also contends, without
elaboration, that the provision violates its right to determine the
personnel by which Agency operations shall be conducted.
2. The Union
The Union contends that Provision 3 constitutes an appropriate
arrangement. In particular, the Union argues that section A(1)
constitutes an appropriate arrangement for employees who are adversely
affected by management's right to assign work. According to the Union,
"(t)he adverse consequence addressed is the operation of a vehicle for
an extended period of time without relief, which is tiring to the
employee and could result in death or injury from an accident caused by
exhaustion." Reply Brief at 2. The Union asserts that the provision
"only requires some relief at least every 10 consecutive hours. It does
not mandate the type of relief, or state who has to do it." Id.
(emphasis in original). The Union also asserts that the provision "has
been in a series of contracts dating back at least to 1979(.)" Id.
The Union contends that sections A(2) and B of the provision would
ensure "compliance with applicable law concerning overweight, overlength
or overwidth vehicles." Reply Brief at 1. The Union notes that these
sections "allow( ) the Agency to make exceptions in the event of an
emergency as determined by the (Agency)." Id.
B. Analysis and Conclusions
1. Section A(1)
A proposal that precludes management from determining the duration of
work assignments directly interferes with management's right to assign
work under section 7106(a)(2)(B) of the Statute. For example,
International Association of Fire Fighters, Local F-159 and U.S.
Department of the Navy, Naval Station Treasure Island, San Francisco,
California, 37 FLRA 836, 837-38 (1990); American Federation of
Government Employees, National Council of Field Labor Locals, Local 644
and U.S. Department of Labor, Office of the Assistant Secretary,
Philadelphia, Pennsylvania, 37 FLRA 828, 832-33 (1990). Section A(1)
precludes the Agency from requiring an employee to operate a vehicle in
excess of 10 consecutive hours unless the Agency provides the employee
with "relief." As plainly worded, section A(1) imposes a substantive
condition on the Agency's right to determine the duration of work
assigned to vehicle operators. Accordingly, we find that section A(1)
directly interferes with the Agency's right to assign work.
As noted previously, the Agency asserts also that this section
interferes with its right to determine the personnel by which Agency
operations shall be conducted. However, the Agency provides no argument
in support of its assertion. Accordingly, as no basis on which to find
such interference is apparent to us, we reject the Agency's assertion.
Compare Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and
Department of Defense, Defense Logistics Agency, 24 FLRA 367, 374-76
(1986) (provision that precluded the agency from having contractor
and/or military personnel supervise unit employees directly interfered
with the agency's right to determine the personnel by which agency
operations are conducted).
A proposal that directly interferes with management's rights under
section 7106(a) of the Statute is negotiable if it constitues an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. To determine whether a proposal constitutes an appropriate
arrangement, we 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 right. National Association
of Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA 24, 31 (1986) (KANG).
The Union asserts that section A(1) is an appropriate arrangement.
The Union argues that "(t)he adverse consequence addressed is the
operation of a vehicle for an extended period of time without relief,
which is tiring to the employee and could result in death or injury from
an accident caused by exhaustion." Reply Brief at 2. Based on the plain
wording of section A(1) and the Union's statement of intent, we conclude
that section A(1) consitutes an arrangement.
To determine whether a proposal excessively interferes with
management's rights, the Authority balances the competing practical
needs of employees and managers as they are affected by the proposal.
See id. at 31-32. In balancing these needs in this case, we note first
that section A(1) would provide significant benefits to employees. It
is undisputed that operating a vehicle for an extended period of time
results in fatigue which, in turn, increases the likelihood of accidents
resulting in injury to drivers and property. Section A(1) would
ameliorate such adverse effects by requiring the Agency to provide
employees with "relief" after 10 hours of driving. Consistent with the
plain wording of section A(1), and the Union's statement of intent, this
section does not mandate the type of "relief" that the Agency must
provide and does not otherwise limit the Agency's right to determine the
duration of work assignments or which employees will perform them.
On the other hand, although section A(1) would affect the Agency's
right to assign work, we conclude that such effect would be minimal.
The Agency does not assert that it is necessary or desirable for
employees to be assigned to drive vehicles for more than 10 consecutive
hours. Indeed, it is undisputed that a similar provision has been in
effect for over 10 years. The Agency makes no claim that the similar
provision has had any adverse effect on its operations. Moreover, as
discussed above, the provision does not constitute a blanket prohibition
on assignments for over 10 hours and, further, does not specify the
"relief" that the Agency must afford employees who operate vehicles for
more than 10 hours.
On balance, we conclude that the benefits provided employees under
section A(1) outweigh the minimal impact on management's right to assign
work. Therefore, section A(1) does not excessively interfere with that
right and constitutes an appropriate arrangement under section
7106(b)(3) of the Statute.
2. Sections A(2) and B
We conclude, based on the plain wording of sections A(2) and B and
the parties' arguments, that those sections are intended to be read
together. When read together, these sections prohibit the Agency,
except in emergency situations, from requiring employees to operate
certain vehicles unless the Agency complies with requirements imposed
"by appropriate statute and regulation" concerning driver certifications
and escort vehicles. In emergency situations, only escort vehicles
would be required.
The Union states that sections A(2) and B merely require "compliance
with already established rules and regulations . . . ." Reply Brief at
1. The Union's statement is consistent with the plain wording of
section A(2). Accordingly, for the purposes of this decision, we
interpret section A(2) as requiring the Agency to comply with existing
statutory and regulatory requirements concerning driver certifications
and escort vehicles in connection with the operation of overlong,
overwide, and overweight vehicles.
Proposals that require an agency to restrict work assignments to
"qualified" personnel directly interfere with the exercise of
management's right to assign work. See American Federation of
Government Employees, Local 3407 and U.S. Department of Defense, Defense
Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557,
567 (1991). Moreover, proposals establishing substantive conditions on
the right to assign work directly interfere with that right. See
National Federation of Federal Employees, Local 1655 and Department of
Military Affairs, Illinois Air National Guard, 35 FLRA 815, 818-20
(1990). Section A(2) and B would prohibit the Agency, absent an
emergency, from requiring employees to perform certain work (operating
overwide, overweight, or overlong vehicles) unless the employees were
certified or the Agency provided escort vehicles. Even in emergency
situations, section B would require escort vehicles. As such, sections
A(2) and B impose substantive conditions on the Agency's right to assign
work under section 7106(a)(2)(B) of the Statute. For the reasons
discussed in connection with section A(1), however, we reject the
Agency's unsupported claim that these sections would affect its right to
determine the personnel by which Agency operations shall be conducted.
Although sections A(2) and B impose substantive conditions on the
Agency's right to assign work, the Authority has previously held that
provisions that require an agency to exercise its management rights in
accordance with existing legal requirements of law and regulation are
negotiable. For example, National Federation of Federal Employees,
Local 1497 and Department of the Air Force, Lowry Air Force Base,
Colorado, 9 FLRA 151, 156 (1982). The Authority held that such
provisions did not interfere with the exercise of management's rights
because they merely required an agency to comply with existing external
limitations on those rights. Id.
Recently, however, the Authority reexamined its previous approach to
this issue in light of the decision of the U.S. Supreme Court in
Department of the Treasury, Internal Revenue Service v. FLRA, 110 S.
Ct. 1623 (1990) (IRS v. FLRA). In that case, the Court held that, with
respect to management's rights under section 7106(a)(2) of the Statute,
the Statute "does not empower unions to enforce all 'external
limitations' on management rights, but only limitations contained in
'applicable laws.'" Id. at 1628. In National Treasury Employees Union
and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA
No. 31 (1991) (IRS), we held that, insofar as management rights under
section 7106(a)(2) are concerned, proposals requiring compliance with
applicable laws do not interfere with the exercise of such rights.
Compare American Federation of Government Employees, AFL-CIO, Department
of Education Council of AFGE Locals and U.S. Department of Education, 38
FLRA 1068, 1075-76 (1990) (Department of Education), request for
reconsideration denied, 39 FLRA 1241 (1991), petition for review filed
sub nom. United States Department of Education v. FLRA, No. 91-1219
(D.C. Cir. May 10, 1991) (proposals requiring management to exercise its
rights under section 7106(a)(1) of the Statute in accordance with
applicable laws directly interfere with the exercise of such rights).
We also held, for reasons discussed fully in IRS, that the term
"applicable laws" in section 7106(a)(2) includes, among other things,
provisions in the United States Code as well as rules and regulations
having "the force and effect of law." 42 FLRA No. 31, slip op. at 15.
As relevant here, we held that agency regulations must have certain
substantive and procedural characteristics in order to constitute
regulations having the force and effect of law. Specifically, agency
regulations have the force and effect of law, so as to constitute
"applicable laws," if they: (1) are promulgated pursuant to an explicit
or implicit delegation of legislative authority by Congress; (2) affect
individual rights and obligations, and (3) are promulgated in accordance
with applicable procedural requirements. Id., slip op. at 15-17.
In the instant case, the Union does not identify the "appropriate
statute and regulation" to which section A(2) refers. /2/ Therefore, we
are unable to determine whether, consistent with IRS, sections A(2) and
B require compliance with "applicable laws." However, as noted
previously, insofar as the sections do require such compliance, they do
not directly interfere with the exercise of management's rights under
section 7106(a)(2) and are negotiable.
Nevertheless, even assuming that the sections refer to existing
requirements that do not constitute applicable laws, we find that they
are negotiable as appropriate arrangements under section 7106(b)(3) of
the Statute for two reasons.
First, consistent with the Union's assertion that Provision 3
constitutes an appropriate arrangement, it is reasonable to conclude
that the operation of overlong, overwide, or overweight vehicles
involves special safety concerns. It also is reasonable to conclude, in
connection with these vehicles, that existing statutory and regulatory
requirements involving driver certifications and escort vehicles address
these concerns. Sections A(2) and B would mitigate the adverse effects
on employees of being deprived of the protections afforded by these
requirements. See Department of Education, 38 FLRA at 1078 (Authority
noted employees' interest in "maintaining the protections afforded them
under . . . laws, rules, and regulations").
Second, these sections relate, by their terms, only to certifications
and escort vehicles that are "required by appropriate statute and
regulation . . . ." That is, the sections do not establish any
requirements beyond those already existing. Moreover, the Agency does
not dispute the existence of these requirements. As such, we are unable
to identify the Agency's interest in acting without regard to them. See
National Federation of Federal Employees, Council of GSA Locals and
General Services Administration, 41 FLRA 728, 750 (1991) (Authority
stated that agency had not "asserted an interest in acting without
regard to its regulation" and no such interest was apparent). See also
Department of Education, 38 FLRA at 1078 (Authority held that agency had
not "demonstrated that a requirement that it act in a manner consistent
with laws, rules and regulations excessively interferes" with its
management rights). In these circumstances, we conclude that the impact
of the sections on the exercise of management's rights is, at most,
minimal.
On balance, we find that the benefits afforded employees by sections
A(2) and B of Provision 3 outweigh the minimal impact of those sections
on management's right to assign work. Accordingly, we conclude that
insofar as sections A(2) and B of Provision 3 require compliance with
legal requirements that do not constitue applicable laws, as defined by
the Authority in IRS, the sections do not excessively interfere with the
exercise of management's right to assign work and are negotiable.
Article 19, Section 11B
Technicians will not be required to travel away from their normal
duty stations when it is reasonably foreseeable in advance that they
will be away from their normal duty station for more than 10 hours
without appropriate TDY orders.
A. Positions of the Parties
1. The Agency
The Agency asserts that Provision 4 prevents the Agency from
assigning an employee to temporary duty (TDY) for more than 10 hours
without appropriate TDY orders. The Agency contends that the provision
"would excessively interfere with management's right to assign work and
determine the personnel by which agency operations shall be conducted."
Statement of Position at 4.
2. The Union
The Union contends that Provision 4 "is intended as an appropriate
arrangement." Reply Brief at 2. According to the Union:
The affected right is the right to assign work. The adverse
consequences are the risk that the employee takes in traveling
without appropriate orders, particularly financial. The proposal
addresses that problem by requiring such orders.
Id. The Union claims that the Agency "can live with this language, and
has done so in even more restrictive form since 1979." Id.
B. Analysis and Conclusions
A provision that precludes an agency from requiring employees to
perform certain duties or restricts the ability to assign duties
directly interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute. See Service Employees International
Union, Federal Employees Metal Trades Council of Charleston, Local 696
and U.S. Department of the Navy, Naval Station, Charleston, South
Carolina, 38 FLRA 10, 14 (1990). Provision 4 precludes the Agency from
assigning TDY work to employees when it is reasonably foreseeable that
such employees will be away from their normal duty stations for more
than 10 hours unless it issues appropriate TDY orders. That is, the
provision conditions the Agency's right to assign certain work on the
issuance of travel orders. As such, we find that Provision 4 directly
interferes with the Agency's right under section 7106(a)(2)(B) of the
Statute to assign work. The Agency's assertion that the provision
interferes with its right to determine the personnel by which Agency
operations are conducted is unsupported, however. Accordingly, for the
same reasons expressed in connection with Provision 3, we reject that
assertion.
Although Provision 4 directly interferes with the Agency's right to
assign work, we conclude that the provision constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute. The Union claims
that the provision would address the adverse effects, "particularly
financial(,)" on employees from traveling without travel orders. Reply
Brief at 2. The Agency does not dispute either the existence of such
adverse effects or the Union's assertion that the provision would
mitigate those effects.
Moreover, it is clear that, in many situations, travel orders are
necessary for employees to be reimbursed for various travel expenses.
For example, employee travel vouchers "must be supported by a copy of
the travel authorization." 41 C.F.R. Section 301.11.3. Similarly, "all
claims for injuries occurring in travel status should be accompanied by
a copy of the travel authorization." Federal Personnel Manual Chapter
810-15, subchapter 3-4(b)(3).
Unlike sections A(2) and B of Provision 3, the Union does not claim
that Provision 4 requires compliance with existing regulatory
requirements and no requirement that an agency issue travel orders in
advance of all travel is apparent to us. Nevertheless, existing
regulations clearly require that, except as otherwise provided by law,
all travel must be either authorized or approved by an Agency. 41 C.F.
R. Section 301.1-4(b). In addition, these regulations express a clear
preference for the issuance of travel orders in advance of an employee's
incurrence of travel expenses. See id. ("Ordinarily, a travel
authorization shall be issued before the incurrence of the expenses.").
Finally, the Agency does not dispute that the requirement imposed by
Provision 4 has been in effect between the parties for over 10 years.
The Agency does not claim that during that time the provision has
adversely affected its operations. Moreover, the parties again agreed
to this provision at the local level. Therefore, it is reasonable to
conclude that Provision 4 would not excessively interfere with the
Agency's right to assign work.
On balance, we find that the benefits afforded unit employees by
Provision 4 outweigh the impact of the provision on the Agency's right
to assign work. Accordingly, we conclude that Provision 4 constitutes
an appropriate arrangement and is negotiable.
The Departments of the Army and the Air Force National Guard Bureau
shall rescind its disapproval of, and give effect to, Provisions 3 and
4. /3/
(1) The Union has withdrawn its petition as to Provisions 1 and 2.
Accordingly, those provisions will not be addressed.
(2) We note that limitations on the weight, width, and length of
certain vehicles operating on certain roads are set forth in 23 C.F.R.
part 658. Without addressing whether these provisions apply in the
circumstances of this case, we find that they do not refer to driver
certification or escort vehicles.
(3) In finding these provisions to be negotiable, we make no judgment
as to their merits.
42 FLRA 599
42 FLRA NO. 39
AFGE, AFL-CIO, National Border Patrol Council and National
Immigration and Naturalization Service Council and U.S. Department of
Justice, Immigration and Naturalization Service, Case No. O-NG-1726
(Decided September 30, 1991)
7105(a)(2)(E)
5 C.F.R. Section 2424.3.
Executive Order 12564
FPM Letter 792-19
7106(a)(2)(A)
7106(a)(2)(B)
7106(a)(1)
7106(b)(2)
5 U.S.C. Sections 5542, 5543
7106(b)(3)
NEGOTIABILITY DETERMINATION
TIMELINESS
ALLEGATION OF NONNEGOTIABILITY
DRUG TESTING
MANAGEMENT'S RIGHT TO DISCIPLINE AND ASSIGN WORK
MANAGEMENT'S RIGHT TO DETERMINE ITS INTERNAL
SECURITY PRACTICES
NEGOTIABLE PROCEDURES
OVERTIME COMPENSATION
CONDITIONS OF EMPLOYMENT
APPROPRIATE ARRANGEMENTS
This case concerns the negotiability of four proposals regarding the
implementation of the Agency's drug testing program.
Preliminarily, the Authority concluded that the Union's petition for
review was timely filed. The Authority rejected the Agency's argument,
based on Commander, Carswell AFB, 31 FLRA 620, that it had no obligation
to respond to the Union's request for an allegation of nonnegotiability
because its statement of position before the Panel was a written
allegation of nonnegotiability, within the meaning of section
7117(c)(2), which triggered the Union's obligation to file a
negotiability appeal under section 7117(c)(2) of the Statute.
The Authority noted that the Union requested an allegation of
nonnegotiability on June 19, 1989. When the Agency failed to respond to
the Union's request for an allegation concerning the nonnegotiability of
the proposals as of July 20, 1989, the Union filed a petition for review
with the Authority. The Authority further noted that because the Agency
failed to respond to the Union's request for an allegation of
nonnegotiability, the time limit in section 7117(c)(2) of the Statute
for filing a negotiability appeal did not apply.
The Authority concluded that Proposals 1 and 6, which required the
Agency to provide employees who were required to undergo a "reasonable
suspicion" drug test with various forms of written justification for
that test within 24 and 48 hours, respectively, after testing, were
negotiable procedures under section 7106(b)(2) of the Statute.
Section C of Proposal 3, which provided that employees who were Union
representatives would not be improperly denied official time to
represent employees concerning matters involving the Agency's drug
testing plan, was found to be negotiable.
Proposal 4, which provided for the presence of Union representatives
when the Agency identified which employees would be randomly drug
tested, was found negotiable. Proposal 4 also established procedures by
which the Union would verify the computerized process used by the Agency
to randomly select employees for drug testing. The Authority concluded
that the record was not sufficient to make a negotiability determination
concerning the verification procedures described in Proposal 4.
Therefore, the petition for review as to section A and section C,
subsections 1-3, of Proposal 4 was dismissed.
Case No. O-NG-1726
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL AND NATIONAL IMMIGRATION AND NATURALIZATION SERVICE
COUNCIL
(Union)
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority based 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 four proposals regarding the implementation of the
Agency's drug testing program. /1/
Proposals 1 and 6 require the Agency to provide employees who are
required to undergo a "reasonable suspicion" drug test with various
forms of written justification for that test within 24 and 48 hours,
respectively, after testing. We find that Proposals 1 and 6 constitute
negotiable procedures under section 7106(b)(2) of the Statute.
Section C of Proposal 3 provides that employees who are Union
representatives will not be improperly denied official time to represent
employees concerning matters involving the Agency's drug testing plan.
We find that section C of Proposal 3 is negotiable.
Proposal 4 provides for the presence of Union representatives when
the Agency identifies which employees will be randomly drug tested. We
find that that aspect of Proposal 4 is negotiable. Proposal 4 also
establishes procedures by which the Union will verify the computerized
process used by the Agency to randomly select employees for drug
testing. The record is not sufficient for the Authority to make a
negotiablity determination concerning the verification procedures
described in Proposal 4. Therefore, the petition for review as to
section A and section C, subsections 1-3, of Proposal 4 is dismissed.
The Agency contends that the Union's petition for review is untimely.
We find that the Union's petition for review is timely filed.
As a result of negotiations concerning the Agency's implementation of
Executive Order No. 12564, the parties reached "a partial agreement."
Agency's Statement of Position (Agency's Statement) at 2. However, the
Agency rejected several of the Union's proposals on the basis that the
proposals either were nonnegotiable or reopened matters already agreed
to in the parties' Master Agreement. The Union sought assistance from
the Federal Service Impasses Panel (the Panel). However, after being
advised by the Agency of the negotiability dispute between the parties,
the Panel declined to assert jurisdiction. See Exhibit B to Agency
Statement (Panel's response dated October 3, 1988).
By letter dated June 19, 1989, the Union "request(ed) the Agency's
allegation that the obligation to bargain does not extend to certain
language proposed to be bargained." Attachment to Petition for Review at
1. The Agency received the Union's request for an allegation of
nonnegotiability on June 27, 1989. As of July 20, 1989, the Union had
not "received the requested allegations" of nonnegotiability. Petition
for Review at 1. On July 20, 1989, pursuant to section 2424.3 of the
Authority's Rules and Regulations, the Union filed a petition for review
with the Authority concerning the proposals at issue in this case. The
Union received the Agency's allegation of nonnegotiability on July 21,
1989, after the Union filed its petition for review.
The Agency states that the Authority determined in Commander,
Carswell Air Force Base, Texas and American Federation of Government
Employees, Local 1364, 31 FLRA 620 (1988) (Commander, Carswell AFB) that
the Panel may resolve some duty to bargain issues in an impasse
resolution proceeding. The Agency contends that:
(G)iven the need for an agency to timely assert in its response to
a union request to the Panel that the Panel does not have
jurisdiction to consider the union's proposals because they raise
unresolved negotiability issues, and the Panel's concomitant
obligation to render a decision in the face of such an assertion
regarding its jurisdiction, there is simply no longer any valid
reason to characterize the agency's assertions in this instance as
(an) 'unsolicited'" allegation of nonnegotiability.
Agency's Statement at 8. The Agency asserts that "a subsequent Panel
decision . . . to reject one or more proposals submitted by the union on
the grounds they raise unresolved negotiability questions should be held
to trigger the union's obligation to file under section 7117(c)(2) of
the Statute within 15 days." Id.
The Agency argues that it had no obligation to respond to the Union's
request for an allegation of nonnegotiability in this case because the
Agency's "written statement of management's position before the Panel
regarding the fact that the proposals at issue here raised unresolved
negotiability issues(,) taken (together with) the Panel's subsequent
rejection of the Union's request . . . on jurisdictional grounds,
constituted an agency 'allegation' of nonnegotiability within the
meaning of (section 7117(c)(2))." Id. at 11. Because the Union did not
file its petition for review within 15 days of the Panel's October 3,
1988 denial of the Union's request for assistance, the Agency contends
that the petition for review is untimely.
A petition for reviw must be filed within 15 days of the date of
service of an agency's written allegation of nonnegotiability. 5 C.F.
RSection 2424.3. A union "shall request such allegation in writing(.)"
Id. However, a union is not required to file a petition for review of
an unrequested allegation of nonnegotiability. Rather, "the union may
ignore such unsolicited allegation and instead elect to request in
writing a written allegation of nonnegotiability from the (a)gency" at a
later time. National Federation of Federal Employees, Local 422 and
U.S. Department of the Interior, Bureau of Indian Affairs, Colorado
River Agency, 34 FLRA 721, 723 (1990) (quoting American Federation of
Government Employees, AFL-CIO, Local 1931 and Department of the Navy,
Naval Weapons Station, Concord, California, 24 FLRA 512, 513 (1986)
(Naval Weapons Station) (where the agency's unsolicited allegation of
nonnegotiability was made in the context of a Panel proceeding).
Therefore, the Union in this case could ignore the Agency's unsolicited
allegation of nonnegotiability made in the proceedings before the Panel
and elect to request an allegation at a later time.
We disagree with the Agency's position that Commander, Carswell AFB
compels the conclusion that an allegation of nonnegotiability provided
by an agency in an impasse proceeding at the Panel's request triggers a
union's obligation to file an appeal before the Authority concerning
negotiability issues not resolved by the Panel. In Commander, Carswell
AFB, the Authority held that if the Panel and interest arbitrators can
resolve a duty to bargain issue which arises in a negotiation impasse by
applying existing Authority case law, they have authority under the
Statute to do so. That decision did not suggest that an allegation of
nonnegotiability made by an agency in a Panel proceeding constitutes a
written allegation of nonnegotiability which triggers a union's
obligation to file a negotiability appeal under section 7117(c)(2) of
the Statute. See Naval Weapons Station, 24 FLRA at 513. Therefore, we
reject the Agency's argument, based on Commander, Carswell AFB, that it
had no obligation to respond to the Union's request for an allegation of
nonnegotiability because its statement of position before the Panel was
a written allegation of nonnegotiability, within the meaning of section
7117(c)(2), which triggered the Union's obligation to file a
negotiability appeal under section 7117(c)(2) of the Statute. See
American Federation of Government Employees, National Border Patrol
Council and National Immigration and Naturalization Service Council and
U.S. Department of Justice, Immigration and Naturalization Service, 40
FLRA 521, 523-25 (1991), petition for review filed sub nom. U.S.
Department of Justice, Immigration and Naturalization Service v. FLRA,
No. 91-4525 (5th Cir. June 25, 1991).
The Union requested an allegation of nonnegotiability on June 19,
1989. When the Agency failed to respond to the Union's request for an
allegation concerning the nonnegotiability of the proposals as of July
20, 1989, the Union filed a petition for review with the Authority.
Because the Agency failed to respond to the Union's request for an
allegation of nonnegotiability, the time limit in section 7117(c)(2) of
the Statute for filing a negotiability appeal does not apply. Naval
Weapons Station, 24 FLRA at 514. Therefore, the Union's petition for
review is timely filed.
The Agency filed a Statement of Position setting forth the reasons
supporting managment's assertion that the proposals at issue are
nonnegotiable or not properly before the Authority. The Union filed a
response to the Agency's statement of position. The Agency also filed a
supplemental brief responding to the Union's assertions that the
proposals are negotiable under section 7106(b)(3) of the Statute as
appropriate arrangements. The Agency maintains that the supplemental
brief is necessary because "the Union had made a blanket alternative
argument that all of its proposals constituted 'appropriate
arrangements' within the meaning of section 7106(b)(3) of the Statute
without identifying any of the adverse effects of the exercise of
reserved rights which they intended to ameliorate." Agency's
Supplemental Brief at 1. The Union objects to the Agency's supplemental
brief. Because the Union asserted in its petition for review that the
proposals constitute appropriate arrangements and because the Agency had
an opportunity to respond to those claims in its statement of position,
we have not considered the Agency's unsolicited supplemental brief. See
5 C.F.R. Section 2424.8 (the Authority will not consider unauthorized
supplemental submissions by a party unless such submission is requested
by the Authority or unless, upon a party's written request, the
Authority in its discretion grants permission to file such submission).
Also, during the pendency of this case, the Federal courts issued
several decisions concerning agency drug testing programs. On December
14, 1989, the parties in this case (and parties in similar drug-related
cases) were directed by the Authority to file supplemental briefs
addressing the applicability to this case of recent Federal court
decisions cited in the Order and other court decisions on drug testing
programs. Both the Union and the Agency filed a supplemental brief.
An employee may be subject to testing on the basis that management
has a reasonable suspicion that the employee is using illegal drugs, as
identified in the INS Drug Free Workplace Plan, on or off duty. Upon
written request, an employee who has been tested on the basis of
reasonable suspicion will be provided a copy of the written
justification (which may include such matters as the dates and times of
reported drug related incidents, reliable/credible sources of
information, and the rationale leading to the test) for such testing no
later than the end of the day. In the event the employee is sent for
testing after 12:00 PM (Noon), the Service shall have until 12:00 PM
(Noon) the following day to provide a copy of the written justification
to the employee.
The decision to direct an employee to report for reasonable suspicion
testing, in accordance with the INS Drug Free Workplace Plan, shall be
based on articulable information, facts, and circumstances which would
lead supervision to believe that reasonable suspicion exists that the
employee is using illegal drugs, as identified in the Drug Free
Workplace Plan.
Proposal 6
An employee in the Service may be subject to testing on the basis
that management has a reasonable suspicion that the employee is using
illegal drugs as identified in the INS Drug Free Workplace Plan, on or
off duty. Upon request, an employee who has been tested on the basis of
reasonable suspicion will be provided a copy of the factual observations
upon which the testing has been based, in accordance with Article 15B of
this Agreement. Such documentation should normally be made available to
the employee within 48 hours. The decision to direct an employee to
report for reasonable suspicion testing, in accordance with the INS Drug
Free Workplace Plan, shall be based on articulable facts and
circumstances which led supervision to believe that the employee uses
illegal drugs.
A. Positions of the Parties
1. Agency
The Agency acknowledges the Union's statement that Proposals 1 and 6
do not apply to random testing. Agency's Statement at 12. However, the
Agency argues that if Proposals 1 and 6 "are intended to preclude drug
testing of employees in (testing designated positions) except in those
circumstances where there is a 'reasonable suspicion' the particular
employee to be tested is or has been using illegal drugs, they are
inconsistent with section 3(a) of E.O. 125654 and, thus, with section
7117(a)(1) of the Statute." Agency's Statement at 15.
The Agency states that "Proposals 1 and 6 ostensibly permit
management to order employees suspected of using illegal drugs to report
immediately to a specimen collection site and provide a specimen without
first receiving a copy of 'written justification' for such testing." Id.
The Agency maintains that the written justification required by the
Union's proposal "may often necessarily reveal facts which the employee
not only has no immediate need to know, but which if prematurely
revealed, impair further investigation" of the employee or other
employees. Id. at 18. The Agency states that "management may have good
reason not to contemporaneously disclose most, if not all, of the
information in its possession which would provide 'reasonable cause' to
order the employee to submit to testing." Id. The Agency contends that
Proposals 1 and 6 would require the disclosure of confidential
information concerning ongoing security investigations and, thereby,
would interfere with the Agency's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
The Agency also contends that Proposals 1 and 6 interfere with the
Agency's right to assign work under section 7106(a)(2)(B) of the
Statute. The Agency argues that "given the command structure set out by
management for confirming the existence of 'reasonable suspicion,'"
Proposals 1 and 6 would "require as a practical matter, that a 'written
justification.'" Id. at 21-22. The Agency asserts that even if the
proposals did not require that those tasks be performed by the
employee's first or second-line supervisors, they would interfere with
management's right to assign work. The Agency states that to be
consistent with Proposals 1 and 6, the written justification must be
completed within the time frames established by the proposals. The
Agency argues that by dictating when that particular work is to be
performed, Proposals 1 and 6 interfere with the Agency's right to assign
work.
The Agency also states that even if the Department of Justice and the
Agency's drug testing plans already require that written justification
be provided employees within the time frames established in the
proposals, Proposals 1 and 6 are still nonnegotiable. The Agency argues
that the fact that the Agency has chosen to exercise its reserved rights
in the form of a written order or regulation does not make the Union's
proposals negotiable.
The Agency contends that Proposal 1 directly interferes with
management's right to discipline under section 7106(a)(2)(A) of the
Statute and contravenes 5 U.S.C. Section 5596(b) and Section 7701(c)(
2)(A). The Agency states:
Proposal 1 does not, on its face(,) preclude management from
making use of a positive test result from a specimen obtained as
the result of "reasonable suspicion" testing as the basis for an
adverse action in the circumstance where management fails to
provide a copy of the "written justification" to the employee
within the tight time limits prescribed. However, the clear
import of the proposal is that the Union would, in challenging any
subsequent adverse action in such a circumstance on the employee's
behalf, assert that the action would have to be set aside if
management had, indeed, failed to meet these deadlines. That is,
the purpose of the proposal is to create a tripwire over which
management will frequently . . . have occasion to fall so that the
employee can assert that management committed a "harmful error"
within the meaning of 5 U.S.C. section 7117(c) requiring the
action to be set aside.
Agency's Statement at 24. The Agency argues that the Union cannot
create a contractual procedural which, if violated, would serve to
negate an adverse action where management's failure to follow the
procedure "could not have any effect on the employee's ability to defend
himself against an adverse action based on a positive test result." Id.
at 26. The Agency asserts that because any failure by the Agency to
provide written justification to an employee within the time limits
prescribed in Proposals 1 and 6 "could not have any effect on the
employee's ability to defend himself against an adverse action based
upon a positive test result(,)" such a requirement directly interferes
with the Agency's right to discipline and contravenes 5 U.S. C. Section
5596(b) and Section 7701(c)(2)(A). Id. at 26.
The Agency also asserts that if the Union "attempt(s) to argue that
management could provide whatever time was necessary to complete the
written justification and transmit it to the employee merely by delaying
its order to the employee to report to a collection site . . . our
response would be that it must be rejected(.)" Agency's Statement at 27.
The Agency argues that any delay in ordering an employee to submit a
specimen in a situation where the employee is suspected of working under
the influence of illegal drugs will reduce the Agency's ability to
detect the drug use and, thereby, directly interfere with management's
rights to determine internal security practices.
Finally, the Agency contends that Proposals 1 and 6 are not
"appropriate arrangements" for employees adversely affected by the
exercise of the Agency's rights under section 7106(a)(2)(A) of the
Statute. The Agency asserts that Proposals 1 and 6 are "'procedural' in
nature rather than constituting 'arrangements.'" Id. at 23. The Agency
argues that the Authority's "appropriate arrangements" test in National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24 (1986) is "based on a misreading of the
Statute." Id. See also id. at 56-59. The Agency states that, in any
event, it is unable to address the Union's contention that the proposals
are appropriate arrangements under the test set forth in Kansas Army
National Guard because the Union has not described the adverse effects
the proposals were designed to offset.
In its supplemental brief, the Agency states that recent Supreme
Court decisions on drug testing are pertinent to this case because "they
directly address the government's compelling interest in enabling
responsible supervisors to detect and penalize and/or deter government
employees . . . who use illegal drugs" and "they also address the
undesirable effect on serving that interest which would be created by
requiring an extensive diversion of supervisory and managerial resources
for the purpose of documenting facts to establish 'reasonable cause' to
test employees in critical positions." Agency's Supplemental Brief in
Support of Agency Statement of Position (Agency's Supplemental Brief) at
20. The Agency argues that because the Supreme Court found the
Government's interest "to be so 'compelling' as to outweigh the
employee's privacy interest under the Fourth Amendment (of the United
States Constitution)," it follows that any Union proposal which would
amend the Agency's internal security practices "so as to severly limit
management's ability to carry out such testing most effectively" cannot
constitute a negotiable procedure or an appropriate arrangement within
the meaning of section 7106(b)(2) and section 7106(b)(3), respectively.
Id. at 17-18.
The Agency maintains that there is an inherent conflict between
Proposals 1 and 6 and "the thrust of the Supreme Court's rulings." Id.
at 18. The Agency argues that the proposals would create excessive
burdens on Agency managers and "frequently require management to divert
scarce supervisory . . . resources away from contemporaneously arising
operational needs no matter how pressing these other needs are." Id. at
19. The Agency asserts that the Authority is "constrained" by the
Supreme Court's reasoning in National Treasury Employees Union v. Von
Raab, 109 S. Ct. 1384 (1989) (Von Raab) to reject the Union's assertion
that the proposals do not excessively interfere with the exercise of the
Agency's rights to determine its internal security practices and to
assign work. Id. at 25-26.
2. Union
The Union states that "Proposals 1 and 6 involve only that kind of
drug testing which is based on 'reasonable suspicion.' They do not apply
to other kinds of testing, such as random testing(.)" Union's Response
to Agency's Statement of Position (Union's Response) at 13. According
to the Union, the effect of Proposals 1 and 6 is "to institute the
requirement that a pre-testing standard exists, in this case reasonable
suspicion, upon which determinations to subject employees to drug
testing must be based." Id. The Union asserts that the Agency has
failed to demonstrate how Proposals 1 and 6 would violate management's
rights under section 7106(a) of the Statute. The Union also contends
that Proposals 1 and 6 are appropriate arrangements for employees
adversely affected by the exercise of the Agency's right to test
employees for illegal drug use.
The Union maintains that without articulable information to suspect
an employee of illegal drug usage, employees might be subject to
harassment and intimidation by Agency officials and, therefore, would be
adversely affected by the Agency's exercise of its right to implement a
reasonable suspicion testing program. The Union also maintains that
reasonable suspicion testing adversely affects employees because it is
an intrusion on employees' privacy and is "extremely personally
embarrassing"; "tends to stigmatize the employee in a way random
testing . . . does not, regardless of the outcome of the testing"; and
damages the employee's relationship with the employer because the tests
may be the basis for disciplinary action and performance based action.
Id. at 15-16.
"In weighing the balance of interests between employees and (the
Agency)" to determine whether any alleged interference with the Agency's
right to assign work would be excessive, the Union states that "(b)y
their unambiguous terms, the proposals require that employees 'be
provided with' the required information. They do not address which
individuals . . . would be responsible for providing the information.
Thus, . . . the proposals have nothing to say about the Agency's past or
future determinations as to who would provide the information." Id. at
18.
The Union asserts that Proposals 1 and 6 do not interfere with the
Agency's internal security practices and do not compromise security
investigations. The Union states that Proposal 1 "permits the employer
significant latitude in providing the justification(.)" Id. at 19. The
Union explains that where ongoing investigations involving others are
involved, the written justification required in Proposal 1 could be
tailored to exclude the names of other suspects or witnesses. "At the
same time, the justification would at least provide the employee with
the due process protection of knowing shy she or he was directed to
undergo the testing, and, therefore, would reduce instances in which
testing (is) directed improperly." Id. The Union also states that the
requirement in Proposal 6 that the employee be provided a copy of
factual observations upon which reasonable suspicion testing is based
"both provides the employee with minimal due process protection and
allows the (Agency) to protect ongoing investigations and witnesses."
Id. at 20.
The Union argues that establishing a time frame for providing the
written justification for reasonable suspicion testing does not
interfere with management's rights. The Union states that under
Proposals 1 and 6, employees will "undergo testing first (and) receive
the reason(s) later." Id. The Union maintains that the requirement that
employees be given the reasons for their selection for reasonable
suspicion testing is not to establish a basis to show harmful error
exists. The Union states that "Proposals 1 and 6 would not alter the
already-existing availability of or requirements for the defense of
'harmful error.'" Id. at 21.
The Union claims that the effect of Proposals 1 and 6 on the exercise
of management's right rights is minimal when compared to the benefit
provided employees. The Union asserts that the Proposals 1 and 6 would
not: (1) prevent the Agency from directing employees to undergo
reasonable suspicion testing; (2) designate the Agency official to
provide the employee information concerning the reasons for the testing;
(3) require that testing be delayed until written justification is
provided; or (4) preclude the imposition of discipline.
B. Analysis and Conclusions
We find that Proposals 1 and 6 are consistent with Executive Order
12564. We also find that Proposals 1 and 6 do not directly interfere
with the Agency's rights to determine internal security practices,
assign work or discipline employees. Rather, Proposals 1 and 6
constitute negotiable procedures under section 7106(b)(2) of the
Statute.
1. The Meaning of the Proposals
Proposals 1 and 6 do not concern the Agency's random drug testing
program. The proposals concern only the Agency's plan to test an
employee based on a reasonable suspicion that the employee is using
illegal drugs. The plain wording of Proposals 1 and 6 acknowledges that
an employee may be tested based on a reasonable suspicion that the
employee is using illegal drugs. Proposals 1 and 6 provide that an
employee designated for drug testing based on a reasonable suspicion of
drug use will be provided "written justification" or "documentation"
supporting the Agency's reasonable suspicion within 24 hours under
Proposal 1 or 48 hours under Proposal 6. Proposals 1 and 6 also provide
that the reasonable suspicion supporting the Agency's decision to test
an employee shall be based on articulable information, facts, and
cirrcumstances which would lead the Agency to believe that an employee
has used illegal drugs.
2. Proposals 1 and 6 Are Consistent with Executive Order No. 12564
We reject the Agency's contention that Proposals 1 and 6 are
inconsistent with section 3(a) of Executive Order 12564 because the
proposals preclude random drug testing of employees. We first note that
Executive Order 12564 authorizes, but does not require, random testing.
National Federation of Federal Employees, Local 15 and Department of the
Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island
Illinois, 30 FLRA 1046, 1054 (1988) (Rock Island I), decision on remand
National Federation of Federal Employees, Local 15 and Department of the
Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island,
Illinois, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and
remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving
Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving
Ground), decision on remand National Federation of Federal Employees,
Local 15 and Department of the Army, U.S. Army Armament, Munitions and
Chemical Command, Rock Island, Illinois, 35 FLRA 936 (1990) (Rock Island
III). The Executive Order also authorizes, but does not require,
reasonable suspicion testing, post-accident testing, and applicant
testing. Executive Order 12564, sections 3(c)(1), (2) and (d).
Consequently, even assuming that the Agency correctly interpreted the
proposals, the proposals would not be inconsistent with the Executive
Order. Id.
In any event, the Agency has misinterpreted the effect of the
proposals. As we stated above, Proposals 1 and 6 prescribe only certain
steps management must take when it orders a "reasonable suspicion" drug
test. "They do not apply to other kinds of testing, such as random
testing(.)" Union's Response at 13. Accordingly, we conclude that
Proposals 1 and 6 are consistent with the Executive Order.
3. Proposals 1 and 6 Do Not Interfere with the Agency's Right to
Determine Internal Security Practices
An agency's plan to test employees for use of illegal drugs is an
internal security policy. See Rock Island I, 30 FLRA at 1054-60. The
disclosure of information that pertains to the implementation of that
internal security policy, insofar as disclosure would compromise that
aspect of the policy involving identification of employees who use
illegal drugs, would directly interfere with an agency's right to
determine internal security practices under section 7106(a)(1) of the
Statute. National Federation of Federal Employees, Local 2050 and
Environmental Protection Agency, 36 FLRA 618, 639 (1990) (EPA II).
However, proposals which merely require an agency to notify employees of
matters concerning their conditions of employment do not directly
interfere with an agency's rights under section 7106 and are negotiable
procedures under section 7106(b)(2) of the Statute. Id. at 635. See
also National Federation of Federal Employees, Local 2050 and U.S.
Environmental Protection Agency, 35 FLRA 706 (1990) (EPA I) (Proposal 3,
which required that the union be provided an opportunity to review the
content of the agency's security bulletins, did not interfere with the
agency's internal security practices and constituted a negotiable
procedure).
Even assuming that the Agency's decision to conduct reasonable
suspicion testing constitutes an exercise of management's right to
determine its internal security practices under section 7106(a)(1), we
find that Proposals 1 and 6 do not directly interfere with that right.
Proposals 1 and 6 only require the Agency to notify employees of the
reasons supporting the Agency's reasonable suspicion that an employee is
using illegal drugs after the employee has been tested based on that
reasonable suspicion. The Union states that the proposals permit the
Agency "significant latitude" in providing written justification for
reasonable suspicion testing. Union's Response at 19. The plain
wording of Proposals 1 and 6 and the record before us confirm the
Union's statement as to the effect of the proposals. Although Proposal
1 provides that "written justification . . . may include such matters as
the dates and times of reported drug related incidents, reliable/
credible sources of information, and the rationale leading to the test,"
Proposal 1 does not mandate that each of those matters be included in
every written justification provided employees. Union's Response at 19
(emphasis in original). In fact, the Union specifically states that
"where ongoing investigations involving others were involved, the
written justification could be tailored to exclude names of such other
suspects and witnesses(.)" Id.
We agree with the Union that the Agency retains the latitude under
Proposals 1 and 6 to provide notices to employees that are consistent
with the Agency's security policies. Proposals 1 and 6 only require the
Agency to provide an employee with justification or reasons supporting
the Agency's reasonable suspicion that the employee is using illegal
drugs. The proposals do not require the Agency to disclose every
detailed fact in support of those reasons. Thus, where the Agency has
legitimate security concerns relating to the disclosure of information,
the proposals do not preclude the Agency from preparing the written
justification to exclude the information which, if disclosed, would
compromise the Agency's security plan or policy.
We also note that section 3.c(3) of Federal Personnel Manual (FPM)
Letter 792-19 provides that "(w)here testing is based on reasonable
suspicion, each agency should promptly detail in writing the
circumstances which formed the basis of its determination that
reasonable suspicion exists to warrant the testing." Section 4.c of FPM
Letter 792-19 provides that "(e)mployees being tested under conditions
outlined in section 3c will also receive notice of the circumstances
leading to the decision to test them for illegal drug use."
Further, the requirement in Proposal 6 that a reasonable suspicion be
based on articulable facts does not amount to a requirement that the
Agency disclose each articulable fact to an employee after the employee
has undergone a drug test. Rather, the effect of that requirement in
Proposal 6 is to define the reasonable suspicion standard as a belief
based on articulable facts and circumstances.
In EPA II, we found that, even assuming that a proposal requiring
only that the agency notify the union of incidents that could pose a
threat to employees' well-being concerned internal security matters, the
proposal would not interfere with management's rights to determine
internal security practices. Rather, that proposal constituted a
negotiable procedure under section 7106(b)(2). The proposal in EPA II
did not prescribe any action which the agency must take to deal with the
incidents listed in the proposal nor did the proposal preclude the
agency from taking any action it determined was necessary as a part of
its internal security policies to respond to the incidents. Id. at 634.
See also EPA I, 35 FLRA at 717-18.
Consistent with EPA I and EPA II, we find that, by requiring the
Agency to notify employees of the reasons why they were directed to
undergo reasonable suspicion testing, Proposals 1 and 6 do not hamper
the Agency's ability to prevent the unwarranted disclosure of security
information and, therefore, do not directly interfere with the Agency's
right to determine internal security practices. Rather, Proposals 1 and
6 constitute negotiable procedures under section 7106(b)(2) of the
Statute. See EPA II, 36 FLRA at 635; EPA I, 35 FLRA at 717-18. See
also 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, first sentence, which required the
agency to inform an employee in writing as to why he or she was
designated as an "essential" employee, should management decide on such
a designation, "does not interfere with any management rights");
National Association of Government Employees, Local R1-144 and
Department of the Navy, Naval Underwater Systems Center, 29 FLRA 471
(1987) (Naval Underwater Systems Center) (a proposal requiring the
agency to provide an employee "persuasive reasons" as to why he or she
was selected for furlough did not substantively interfere with the
Agency's right to lay off employees but merely established a procedure
for the agency to follow in the exercise of that right), enforcement
denied as to other matters sub nom. Department of the Navy, Naval
Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir. 1988); AFSCME,
Local 2027 and ACTION, 27 FLRA 191 (1987) (Chairman Calhoun concurring)
(Proposal 1, requiring the agency to provide a repromotion eligible who
is not selected from a best qualified list "persuasive reasons" for
nonselection, was negotiable because it merely established a procedure
for management to follow in the exercise of its rights to hire and
select).
4. Proposals 1 and 6 Do Not Interfere with the Agency's Right to
Assign Work
The Agency contends that by requiring written justification,
Proposals 1 and 6 amount to an assignment of work to either the first or
second-line supervisor and, therefore, directly interfere with the
Agency's right to assign work under section 7106(a)(2)(B) of the
Statute. We reject this contention.
Proposals 1 and 6 require only that the Agency provide employees with
a written justification. Even assuming that the proposals had the
consequences of necessitating the assignment of an employee to prepare a
written justification, the proposals do not determine who will prepare
the written justification. The Agency asserts that "given the command
structure set out by management for confirming the existence of
'reasonable suspicion,'" Proposals 1 and 6 would require that either the
employee's first or second-line supervisor create a written
justification. Agency's Statement at 21-22. However, the proposals do
not require the Agency to follow its command structure.
The proposals preserve the Agency's right to determine who will
prepare a written justification. Proposals establishing procedures that
an agency will follow in exercising its rights under the Statute will
not be found to be nonnegotiable because they require the agency to
assign someone to implement the procedure. See National Federation of
Federal Employees, Local 2099 and Department of the Navy, Naval Plant
Representative Office, St. Louis, Missouri, 35 FLRA 362, 368 (1990)
(Naval Plant Representative Office) ("To bar the negotiation of
procedures that would otherwise be negotiable under section 7106(b)(2)
because they entail the assignment of work to agency personnel would
nullify section 7106(b)(2) and overlook the explicit purpose and intent
of that subsection."). Because Proposals 1 and 6 establish a procedure
that the Agency will follow in exercising its right to test employees
for illegal drugs as part of its plan to secure and safeguard its
property and personnel and because the proposals do not impermissibly
specify who will implement the procedure, we find that Proposals 1 and 6
do not interfere with the Agency's right to assign work. See U.S.
Department of Health and Human Services, Social Security Administration,
Northeastern Program Service Center and American Federation of
Government Employees, National Council of Social Security Administration
Payment Center Locals, Local 1760, 36 FLRA 466, 473-74 (1990).
Further, the Agency has failed to establish that by requiring that
written justification be provided within a specific time period,
Proposals 1 and 6 interfere with its right to assign work. Contrary to
the Agency's assertion, nothing in the proposals would "require
management to divert scarce supervisory (and other, e.g., messenger and
government vehicle) resources away from contemporaneously arising
operational needs(.)" Agency's Statement at 19. As we stated above,
Proposals 1 and 6 establish a procedure and do not directly interfere
with the Agency's right to assign work. The proposals preserve the
Agency's discretion to determine who will be assigned to implement that
procedure. We will not find a procedure like the one in Proposals 1 and
6 nonnegotiable merely because an agency must assign someone to
implement that procedure. See Naval Plant Representative Office, 35
FLRA at 368.
5. Proposal 1 Does Not Interfere with the Agency's Right to
Discipline
The Agency acknowledges that where management fails to provide an
employee a written justification for reasonable suspicion testing within
the time limits prescribed in the proposal, "Proposal 1 does not on its
face, preclude management from making use of a positive test result from
a specimen obtained as a result of 'reasonable suspicion' testing as a
basis for an adverse action." Agency's Statement at 24. Nevertheless,
the Agency maintains that the effect of Proposal 1 is to require the
Agency to set aside a disciplinary action based on a positive drug test
result if the Agency failed to follow the procedure in Proposal 1 when
it ordered the drug test based on "reasonable suspicion." We find that
the Agency has failed to demonstrate that Proposal 1 affects in any way
its right to discipline employees under section 7106(a)(2)(A) of the
Statute.
The Agency claims that under Proposal 1, a failure to provide written
justification to an employee amounts to "harmful error" and, thereby,
"create(s) a contractual procedure which, if violated, would serve to
negate an adverse action in the circumstances where . . . (there is a)
failure on management's part to provide such a written justification
within the prescibed time limits." Agency's Statement at 26. The Union
states that "nothing in the proposals even contemplates 'harmful
error(.)'" Union's Response at 21. The Union also states that
"Proposals 1 and 6 would not alter the already-existing availability of
or requirements for the defense of 'harmful error.'" Id.
We find that the Agency's interpretation of Proposal 1 is not
supported by the plain wording of the proposal or the record. Proposal
1 cannot reasonably be interpreted as requiring a determination by MSPB
or an arbitrator that failure to provide the specified information
constitutes "harmful error." Proposal 1 establishes a procedure under
section 7106(b)(2) of the Statute. Whether a failure to comply with
this, or any other negotiable procedure, would constitute "harmful
error" would depend on the facts of a given case and the application of
5 U.S.C. Sections 5596(b) and 7701(c)(2)(A) to the facts of that case.
Consequently, we conclude that the Agency has failed to demonstrate that
Proposal 1 contravenes 5 U.S.C. Sections 5596(b) and 7701(c)(2)( A).
Further, the Agency asserts that "while the Authority has held that
the harmful error rule does not apply to disciplinary actions involving
suspensions of 14 days or less, this is, with due respect, an erroneous
conclusion of law." Agency's Statement at 26 (citation omitted). The
harmful error rule provides that an agency's decision on an adverse
action or performance-based action may not be sustained if "harmful
error" is shown in the application of the agency's procedures in
arriving at the decision. Department of the Air Force, Griffiss Air
Force Base and American Federation of Government Employees, Local 2612,
34 FLRA 712 (1990) (Griffiss Air Force Base). The case before us does
not raise the issue of whether the harmful error rule should be applied
to disciplinary actions of 14 days or less. Therefore, we decline to
address the Agency's assertion concerning the Authority's application of
the "harmful error" rule. However, we note that in Griffis Air Force
Base the Authority reaffirmed its decision that the harmful error rule
of 5 U.S.C. Section 7701(c) does not apply to a suspension of 14 days or
less. See also U.S. Department of the Air Force, Air Force Logistics
Command, Hill Air Force Base, Utah and American Federation of Government
Employees, 34 FLRA 986 (1990).
We conclude that Proposals 1 and 6 are consistent with Executive
Order No. 12564 and do not directly interfere with the Agency's rights
to determine internal security. practices, assign work, or discipline
employees. Rather, Proposals 1 and 6 contitute negotiable procedures
under section 7106(b)(2) of the Statute.
Because we find that Proposals 1 and 6 constitute procedures which do
not directly interfere with the Agency's rights, it is unnecessary to
determine whether they are appropriate arrangements as asserted by the
Union. See Naval Underwater Systems Center, 29 FLRA at 473. See also
International Plate Printers, Die Stampers and Engravers Union of North
America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113, 118 (1987).
A. The Service will grant reasonable official time to union
representatives, who are involved in employee representation regarding
any matter covered by this agreement.
C. The representative shall suffer no loss of pay or benefits as a
result of carrying out his/her representational responsibilities as
defined in A. above.
(Only the underlined portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is inconsistent with 5 U.S.C.
Section 5542 because it is "too broad and too vague" and, consequently
would require the Agency to pay an employee overtime compensation for
the time the employee is engaged in representational activities.
Agency's Statement at 45. The Agency states that under Proposal 3,
"employees acting as (Union) representatives, (who) might otherwise have
been in a position to have been called for regularly scheduled (5
U.S.C.) section 5542 overtime assignments but for their representational
duties," would receive overtime compensation for the time that they had
to forgo opportunities to work overtime in order to carry out their
representational responsibilities. Id. at 46. The Agency maintains
that Proposal 3 would require that the employee be compensated at the
overtime rate for the time spent on representational activity so that
the employee "suffer(s) no loss of pay or benefits as a result of
carrying out his/her representational responsibilities." Id. The Agency
asserts that the Agency cannot pay employees overtime compensation for
time spent performing representational duties that otherwise would have
been spent by the employees performing hours of work on overtime,
without violating 5 U.S.C. Section 5542.
2. Union
The Union states that Proposal 3 "contractually require(s) . . .
that employees who are (Union) representatives not be improperly denied
official time (in this instance that is synonymous with not lose pay or
benefits) to represent employees on matters involving the Drug Free
Workplace Plan." Union's Response at 27. The Union asserts that the
Agency has misinterpreted Proposal 3. The Union states that "(t)he
Agency Head apparently interprets (Proposal 3) as relating specifically
to instances in which union representatives who perform representational
activities during hours which are outside their regularly scheduled
workweek would claim entitlement under (Proposal 3) to overtime for
those hours. That interpretation is incorrect." Id. at 25.
The Union states that Proposal 3 "does not by its facial meaning nor
by (the Union's) intent, attempt to broaden the circumstances under
which overtime compensation or compensatory time can be provided to
union representative governed by 5 U.S.C., Chapter 55 or the Fair Labor
Standards Act." Id. at 26. According to the Union, Proposal 3 "would
exclude time spent on representational activity from the computation of
(administratively uncontrollable overtime (AUO) so that employees would
be neither advantaged nor disadvantaged by having been engaged in
representational activity in the computation of their "average' number
of hours of AUO worked(.)" Id. The Union maintains that the Agency has
the discretion to determine how AUO computations will be made, and that
discretion is not sole and exclusive. The Union argues that "as with
official time for negotiations, representation time related to the Drug
Free workplace program is within the Agency's discretion to exclude when
computing AUO." Id.
B. Analysis and Conclusions
Proposal 3 provides that employees who are Union representatives will
not be improperly denied official time to represent employees on matters
concerning the Agency's Drug Free Workplace Plan. We find that Proposal
3 is negotiable.
The plain wording of Proposal 3 provides that the employees engaged
in representational activities shall not suffer a loss in pay or
benefits as a result of their representational activities. Nothing in
the wording of the proposal requires the Agency to provide overtime
compensation to employees serving as Union representatives for the time
that they would have to forgo opportunities to work overtime in order to
carry out their representational responsibilities. Moreover, Proposal 3
would not require the Agency to provide official time for hours that an
employee is not in a duty status or to pay employees overtime for
representational activities that occur when an employee is not in an
overtime duty status.
Overtime compensation is paid pursuant to 5 U.S.C. Section 5542(a),
which provides that all hours of work officially ordered and approved in
excess of 8 hours in a day or 40 hours in an administrative workweek are
overtime work entitling the employee to overtime compensation or, where
appropriate under 5 U.S.C. Section 5543, to compensatory time off.
However, a union official's performance of representational activities
on nonduty time outside regular work hours is not the performance of
hours of work officially ordered or approved that constitutes overtime
work for which overtime pay or compensatory time off can be granted.
See U.S. Department of Commerce, National Oceanic and Atmospheric
Administration, National Weather Service and National Weather Service
Employees Organization, 36 FLRA 352, 358 (1990) (National Weather
Service); Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing
and American Federation of Government Employees, Local No. 1138, 23 FLRA
390, 392 (1986) (Wright-Patterson Air Force Base). To be entitled to
overtime compensation for representational activities performed outside
of regular duty hours, the employee/ representative must be in an
overtime duty status (at the direction of the agency) when the event
arose which called for the performance of representational functions.
Warner Robins Air Logistics Center, Warner Robins, Georgia and American
Federation of Government Employees, Local 987, 23 FLRA 270 (1986)
(Warner Robins Air Logistics Center. Therefore, a proposal providing
for the payment of overtime compensation for employees engaged in
representational activity outside of their normal duty hours is
nonnegotiable. American Federation of Government Employees, AFL-CIO and
Environmental Protection Agency, 21 FLRA 635, 637-38 (1986) (Proposal
2).
The Union states that Proposal 3 is intended to be implemented
consistent with the law governing the granting of official time. The
Union also states that Proposal 3 "does not, by its facial meaning nor
the (Union's) intent, attempt to broaden the circumstances under which
overtime compensation or compensatory time can be provided to union
representatives governed by 5 U.S.C., Chapter 55 or the Fair Labor
Standards Act." Union's Response at 26. We find that the Union's
explanation of Proposal 3 is consistent with the wording of that
proposal and that Proposal 3 is consistent with the requirements in law
concerning the granting of overtime for representational activities.
The Agency has not established that Proposal 3 requires the payment
of overtime compensation in a manner inconsistent with 5 U.S.C. Section
5542. The Agency also has failed to establish that Proposal 3 is
inconsistent with any other law governing the granting of official time.
We find that by providing that employees engaged in representational
activities shall receive the same pay and benefits that they would be
entitled to if they were performing work in a regular duty status,
Proposal 3 is consistent with legal requirements concerning the payment
of overtime compensation for representational activities. See National
Weather Service, 36 FLRA at 358; Warner Robins Air Logistics Center, 23
FLRA at 271.
Finally, we note that the Union argues that Proposal 3 is consistent
with the reqirements in law and regulation concerning the payment of
AUO. The Agency states that, to the extent that Proposal 3 provides
that employees shall not lose the benefit of AUO pay because they are
engaged in representational activity, the Agency does not dispute that
Proposal 3 can be implemented consistent with the requirements in law
and regulation concerning the payment of AUO. See Agency's Statement at
45-46. In light of the Union's and the Agency's statements, we find
that there is no dispute between the parties that Proposal 3 is
consistent with applicable law and regulations concerning the payment of
AUO. Therefore, we need not address the Union's arguments concerning
AUO.
Based upon the foregoing, we conclude that Proposal 3 is negotiable.
A. One union representative from each Council will be authorized to
be present at the time random selections for drug testing are made, for
the purpose of verifying the validity of the selection process. The
Service agrees to pay all associated travel and per diem.
B. One union representative from each Council will be authorized to
make an on site inspection of the laboratories, facilities, and
procedures of the company selected as the analysis contractor, on a
quarterly basis. All travel and per diem costs shall be borne by the
Service.
C. Each Council shall be permitted to have an on site observer
present whenever random selections are to be made. The union shall
receive a ten (10) working day advance notice that random selections are
to be made and the location(s) where the selection(s) will be made. The
union observers will be in an on-duty status. Any travel and per diem
costs associated with a union observer's presence for selections will be
borne by the employer.
The verification procedures shall include but are not limited to:
1. Verifying the fact that there was no data stored in the
computer which would contaminate the random selection process once
the program was loaded into the computer for selection;
2. Verifying the accuracy and integrity of the random
selection computer software;
3. Verification of the relative accuracy of the employee data
base from which the random selections will be made;
4. Witnessing the generation of the random selection list from
the computer at a distance from which identification of individual
names would not be possible;
5. At the time random computer selections are made both the
on-site union and management officials will observe the list being
generated and sign the back of each page of a copy of the computer
generated list. The union officials will not have access to the
names on the list at that time.
6. The signed copies of the list will be sealed in an evidence
envelope and signed by the parties present. It will then be
secured by management.
7. Upon completion of the testing of all individuals on the
list who are to be tested, but not later than sixty days from the
date the list was generated, management will provide the secured
list to the Presidents of each Council.
A. Positions of the Parties
1. Agency
The Agency describes its random selection procedure as follows:
The (Agency) will use a program in a computer located in its
Washington Headquarters offices to generate a random list of
employees in (testing designated positions (TDPs)) to be tested.
It is anticipated that, at least initially, a list of 100 names
will be generated each time a list is called for. The employees
occupying TDPs will be given a separate additonal code in the
(Agency's) central personnel data bank for this purpose so they
can be distinguished from other employees in the (Agency's)
personnel data base who are not in TDPs. The lists generated will
be nationwide. In the interest of security, these lists will not
be generated at fixed intervals, but rather at irregular
unannounced, intervals throughout the year. The names of
employees selected will be sent to responsible supervisors at the
duty sites where the employees selected are located, and, on days
prearranged with the collection site contractors, the employees
will be ordered to report to the nearest one of 70 collection
sites around the country.
Agency's Statement at 47-48.
The Agency states that section A and section C of Proposal 4 are
"couched in such vague terms that it is difficult to determine what the
Union intends thereby. Therefore, . . . the Authority is, in accordance
with precedents, obliged to decline to pass on their negotiability."
Agency's Statement at 49 (citations omitted).
In the alternative, the Agency contends that section A and section C
(including subsections 1-7) of Proposal 4 violate the Agency's right to
determine internal security practices under section 7106(a)(1) of the
Statute. The Agency argues that section A and section C would "directly
involve the Union here in the development and implementation of the
selection process" of the Agency's random drug testing program and,
thereby, interfere with the Agency's right "to determine how it will
secure its random selection process." Id. at 49-50. The Agency also
argues that section A and secton C interfere with the Agency's right to
determine internal security practices under section 7106(a)(1) because
those sections would require management to warn the Union of drug
testing in advance of the random selection process. The Agency asserts
that "such forewarning will serve to put unit employees in (testing
designated positions) who are subject to random selection . . . (on
notice) that a list is to be generated, leading them to draw the
reasonable inference that selections for random testing will soon
follow." Id. at 50. The Agency argues that notice to employees of an
impending selection will allow employees who use illegal drugs to
curtail their consumption during this high risk period and destroy the
"maximum deterrent and detection effect" of the random testing program.
Id.
The Agency contends that section B of Proposal 4 does not concern the
conditions of employment of unit employees within the meaning of
7103(a)(14) of the Statute. The Agency states that section B
establishes that Union representatives will be involved in the
inspection of certified drug testing laboratories. The Agency asserts
that "the Secretary of (Health and Human Services (HHS)) or his
designees have the exclusive responsibility for conducting inspections
of the certified laboratories that federal agencies are obliged to use
in order to determine whether they are continuing to meet the standards
set out in the guidelines." Id. at 51 (citing sections 3.2(b) and 3.13
of the final Guidelines, 53 Fed. Reg. at 11, 970). The Agency argues
that Union representatives are not qualified to conduct laboratory
inspections. The Agency maintains that any inspection by Union
representatives would be "totally redundant" and would "open up the
possibility of a conflict between the conclusions of HHS' inspectors and
those reached by Union inspectors." Id. The Agency asserts that "the
inspections could not have any impact on the conditions of employment of
unit employees." Id. at 52.
2. Union
"Proposal 4 applies to random drug testing under the (Agency's) Drug
Free Workplace Plan." Union's Response at 30. The Union states that the
procedures in Proposal 4 do not involve the Union in "either the
development or implementation of the(random) selection process." Id. at
34. The Union asserts that Proposal 4 does not interfere with the
Agency's right to determine internal security practices "(i)nasmuch as
(Proposal 4) enables the (Agency) to maintain the purpose of its
internal security practice, which is to assure randomness and
confidentiality until employees are directed to undergo urinalysis
testing(.)" Id. at 35.
The Union explains:
Proposal 4 refer(s) to utilizing a software program to verify
random selection, as distinct from the Agency's random selection
program and employee data base. The Union's copy of the
verification program would be run at the beginning of a random
selectio procedure and would provide a measure of assurance that
the computer had been programmed to draw randomly and would do so
from input data which accurately reflected the group of employees
whom the (Agency) determined to subject to the random testing.
Union's Response at 32.
The Union states that Proposal 4 allows a Union representative to be
present when the list of employees randomly selected for testing is
generated. The Union maintains that the procedures in Proposal 4 do not
"permit() a (U)nion representative to see or retain possession of the
list of selectees. Rather, they require only that the list be
generated, signed on the back without being read, and sealed until after
the selectees have been tested." Id. at 35. After testing resulting
from each round of selections has occurred, Proposal 4 would allow the
Union to review the list generated by the verification program to: (1)
verify the "identities of persons who have been selected for testing;"
(2) "verify that the correct employees' names are entered(;)" and (3)
"make() sure the computer has been told to randomly select items from
the data base, while preserving to management the possession of the
contents of the data base." Id. at 34-35.
The Union argues that the requirement in Proposal 4 that the Agency
provide the Union 10 days' advance notice that random selections will be
made in the near future would not provide employees advance notice of
the date of the actual testing. The Union maintains that sections A and
C of Proposal 4 "do not indicate that selections would occur at any
particular time because the (Agency) would be free to sit on the lists
until it wanted to run the urinalysis tests." Id. at 36. The Union
asserts that the Agency's argument that the notice requirement is
nonnegotiable because "warning employees about imminent but unspecified
urinalysis testing dates would lead employees to 'curtail their
consumption'" is without merit. Id. The Union states that "the purpose
of random testing, as an exercise of internal security practices under
the Drug Free Workplace programs and E.O. 12564, is specifically to
deter illegal drug use(,)" and that Proposal 4 "actually furthers,
rather than interferes with, the deterrent effect of random drug testing
systems." Id. at 36-37 (footnotes omitted).
The Union contends that the reqirement in section B that the Union be
allowed to inspect the certified drug testing laboratory is negotiable.
The Union maintains that section B does not concern or affect the
authority of HHS inspectors to determine whether laboratories conducting
drug testing of Federal employees are in compliance with Government-wide
regulations. The Union states that "inspections by union officials
aren't purported substitutes for (HHS) inspections." Id. at 37. The
Union contends that "(t)he quarterly inspections which (the Union) is
proposing is an appropriate arrangement and a procedure to verify
testing is being conducted competently." Id. at 38. The Union also
argues that "(b)ecause there is no requirement that (the Agency) modify
its contract with a laboratory in any way as a result of (section B),
there is no interference with the (Agency's) right to make
determinations with respect to contracting out." Id.
B. Analysis and Conclusions
1. The Effect of the Proposal
The Agency has determined that it will use a computer program to
generate a list of employees in testing designated positions for random
drug testing. The Agency also has determined how the testing will be
implemented once the list is generated. Sections A and C of Proposal 4
provide for the presence of Union representatives when the Agency
generates the list of employees randomly selected for drug testing by
computer. The Union representatives will be responsible for verifying
the validity of the selection process "to assure the random testing is,
in fact, random rather than targeted against pre-determined
individuals." Petition at 6. The verification envisioned by the Union
does not involve the Union in "either the development or implementation
of the random selection process." Response at 34.
Subsections C.1, C.2 and C.3 of Proposal 4 "refer to utilizing a
verification software program, which would be developed and provided to
both (the Agency) and the (U)nion." Petition at 6. The Union's copy of
the program would be run at the beginning of the Agency's random
selection procedure to ensure that "the computer had been programmed to
draw randomly and would do so from input data which accurately reflected
the employees who (the Agency) determined to subject to the random
testing." Id. Subsections C.4 and C.5 of Proposal 4 provide that Union
representatives will witness the generation of the list of randomly
selected employees from the computer at a sufficient distance to prevent
identification of the names of employees. Once the list is generated,
Union representatives will sign the back of each page of the list.
Subsection C.6 of Proposal 4 provides that the signed list will be
sealed in an envelope which shall be signed by the Union and Agency
representatives present and then secured by the Agency. Subsection C.
7provides that when all the individuals on the list have been tested,
"but not later than 60 days from the date the list was generated," the
Agency shall provide the list to the Union.
Section B of Proposal 4 provides the Union opportunities to inspect
the laboratory contracted by the Agency to perform drug testing analyses
on bargaining unit employees' urine samples.
2. Management's Right to Determine Internal Security Practices
It is well established that an agency's use of random testing as a
part of its drug testing program constitutes an exercise of management's
right to determine its internal security practices. Rock Island I, 30
FLRA 1046 (1988).
We must examine the requirements of Proposal 4 to determine whether
they directly interfere with the Agency's right under section 7106(a)(
1) to implement a random drug testing program.
3. Sections A and C
The Agency asserts that sections A and C of Proposal 4 "are intended
to involve the Union here in the development and implementation of the
(random) selection process" and, therefore, "would interfere with
management's right under section 7106(a)(1) to determine how it will
secure its random selectio process." Agency's Statement at 49 and 50.
We find that sections A and C establish procedures to be followed in
connection with the random selection process of the Agency's drug
testing program and, therefore, are negotiable.
(a) Union Representatives at Random Selection Sessions
Under the procedures established in sections A and C of Proposal 4,
Union representatives are to be present when the computer generates the
list of employees randomly selected for drug testing. The Union
representatives will be present only to witness the generation of the
list of employees from the computer and not to participate in the
computer operations that generate the list.
The Agency has not shown how the presence of Union representatives to
witness the generation of a list of employees from the Agency's computer
interferes with the Agency's ability to develop and implement its random
selection process. For example, the Agency does not contend that during
the random selection sessions the Agency will be engaging in discussion
of an deliberatio on the selection of employees or other aspects of the
implementation of the drug testing program. Compare National Federation
of Federal Employees, Local 1437 and United States Army Armament
Research, Development and Engineering Center, Picatinny Arsenal, New
Jersey, 35 FLRA 1052, 1061-62 (1990) (proposal requiring the appointment
of a union observer on the rating and ranking panel would involve the
union in management's internal deliberative process and, therefore,
interfered with the agency's right to select under section 7106(a)(C)).
Rather, as the Agency acknowledges, the selection process is purely
mechanical operation.
The record indicates that the Agency's decisions concerning the
development and implementation of the random selection process occur
before the Agency schedules a session to generate the list of employees
randomly selected to be tested. Therefore, the Union would participate
in the random selection process only after the Agency's internal
deliberative process concerning the development and implementation of
the random selection process has been completed. See Department of the
Army, 7th Infantry Division (Light), Fort Ord, California and American
Federatio of Government Employees, 34 FLRA 916, 926 (1990) (proposal
applied only after the agency's internal deliberative process concerning
application of performance standards has been completed; consequently,
the proposal did not permit the union to interject itself into the
agency's internal deliberations concerning the performance appraisal
process).
We find that the portion of sections A and C of Proposal 4 which
provides for the presence of a Union representative when the lists of
employees randomly selected for testing is generated by the Agency's
computer does not interfere with the Agency's right to develop and
implement its random selection process as part of its plan to secure or
safeguard its personnel, its physical property, and its operations. See
National Federation of Federal Employees, Forest Service Council and U.
S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA
174, 180-85 (1991) (Proposal 5, which provided for the presence of a
union representative as an observer during the collection of urine
specimens for drug testing, would have no effect on the agency's
decision or ability to conduct drug tests and, therefore constituted a
negotiable procedure), petition for review filed sub nom. U.S.
Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C.
Cir. Jan. 6, 1991).
Also, sections A and C do not establish any criteria governing the
exercise of the Agency's right to establish a random drug testing
program that restrict the range of an agency's discretion pursuant to
its right to determine internal security practices. Therefore, sections
A and C do not place a substantive limitation on the exercise of the
Agency's rights. Because the Agency has not demonstrated how the
presence of Union representatives at the random selection sessions
directly interferes with any management right, we conclude that the
requirement in sections A and C of Proposal 4 for Union representation
at random selection sessions is negotiable.
(b) Verification of the Selection Process
Section A and subsections 1-3 of section C of Proposal 4 provide that
Union representatives present at random selection sessions will be
responsible for verifying: (1) that there is no data stored in the
computer which would contaminate the random selection process once the
program is loaded into the computer; (2) the accuracy and integrity of
the random selection computer software; and (3) the relative accuracy
of the data base from which random selections are made. We find that
subsections 1-3 of section C do not interfere with the Agency's ability
to develop a random drug testing program. However, we are unable to
determine from the wording of Proposal 4, and the Union's explanation,
how the verification program required by section A and subsections 1-3
of section C would affect the Agency's ability to determine the policies
or to take the actions that will ensure the security of the random drug
testing program. Consequently, we are unable to determine whether and
to what extent section A and subsections 1-3 of section C interfere with
the Agency's right under section 7106(a)(1) to determine its internal
security practices. Therefore, we will dismiss the petition for review
as to section A and subsections 1-3 of section C of Proposal 4.
Management's right under section 7106(a)(1) to determine its internal
security practices includes the right to determine the policies and to
take the actions which are part of its plan to secure or safeguard its
personnel and physical property and to prevent the disruption of its
operations. See National Treasury Employees Union and the U.S.
Department of Energy, Washington, D.C., 38 FLRA 79, 83 (1990). We find
that this right also encompasses the policies that management adopts and
the actions it takes to protect the integrity of the random selection
process, including computer equipment and software used in that process.
The Agency argues that the verification procedures would involve the
Union in the development and implementation of the random selection
process. The verification procedures in sections A and C do not require
the Agency to randomly select employees by computer. Sections A and C
also do not provide for Union participation in the development of a
computerized random selection process. However, if the Agency
implements a computerized random selection process, sections A and C
require the Agency to incorporate procedures that will allow the Union
to verify the randomness of the selection process. Under those
procedures, the Agency is required to develop and give the Union a copy
of a random selection verification software program. Requiring the
Agency to provide the Union with a copy of a verification software
program after it has been developed by the Agency does not interfere
with the Agency's ability to develop that software program or any other
aspect of the computerized random selection process. Therefore, we
reject the Agency's argument that by requiring the Agency to give the
Union a copy of a verification software program, sections A and C would
involve the Union in the development of the Agency's random selection
process.
However, we are unable to determine whether the use of a verification
software program would directly interfere with the Agency's right to
ensure the security of the random selection process. Under sections A
and C, as explained by the Union, the Union's copy of the Agency's
verification software program will be run in the Agency's computer to
verify the random selection program and the computer data base at the
beginning of each random selection session. However, the Union does not
describe the verification program required by the proposal and we are,
therefore, unable to assess how that program would work. We are unable
to determine, for example, whether a verification program could be
developed that would accomplish the objectives required by the Union
without also affecting in some manner the confidentiality of the random
selection process. That is, we are unable to determine whether the use
of such a verification program would permit the Union to obtain
information that would compromise the security of the process in order
for the Union to be assured that there is no extraneous data in the
computer, that the data base is accurate, or that the program does in
fact generate names on a random basis.
If a verification program could be developed that would accomplish
the objectives required by the Union and would not, by its use, affect
or compromise the random selection process, the use of such a program
would not appear to pose a risk to the security of the Agency's random
selection process. On the other hand, if the use of such a program
would affect or compromise the random selection process, requiring the
use of the Union's copy of that program would directly interfere with
management's right to determine its internal security practices.
The record does not contain sufficient information for us to make the
findings necessary to determine the nature or extent of the security
risk to the Agency's operations and property. We are unable to
determine how the proposed verification program would work. Therefore,
we are unable to determine the impact of sections A and C on the
Agency's ability to safeguard its operations and its property from
damage, because we are unable to assess the nature of the verification
software program to be developed by the Agency and the effect of using
that program on the Agency's random selection process.
In National Federation of Federal Employees, Local 2058 and U.S.
Army Aberdeen Proving Ground, Installation Support Activity, 31 FLRA
241, 254-55 (1988) (Aberdeen Proving Ground, Installation Support
Activity) (Proposal 9), the Authority dismissed the union's petition for
review as to a proposal which provided that the computer used to select
employees for random drug testing would be programmed by a disinterested
individual and "monitored by union representation." Id. at 254.
Because the union did not define what it intended by the phrase
"monitored by union representation," the Authority found that the
proposal could be interpreted to give the union a right to: (1) receive
information concerning the implementation of the random selection
process and, thus, could be negotiable; or (2) be directly involved in
the development and implementation of the selection process, in which
case the proposal would be nonnegotiable. There was nothing in the
record on which the Authority could base a decision as to which
interpretation was intended by the union. Therefore, the Authority
dismissed the petition for review as to that proposal.
The record in this case does not contain sufficient information for
us to determine whether verification of the accuracy of the Agency's
random selection process can be accomplished, pursuant to the disputed
portions of Proposal 4, without interfering with the Agency's ability to
safeguard its operations and property. Nor does the record contain
sufficient information concerning the Agency's computer process and the
verification software program to allow us to determine the impact of the
Union's use of the verification program on the Agency's ability to
ensure the security of its random selection process. Because the record
is not sufficient for the Authority to make a negotiability
determination concerning the verification process described in section A
and subsections 1-3 of section C, we will dismiss the petition for
review as to section A and section C, subsections 1-3, of Proposal 4.
See id. at 255.
(c) Notice of Random Selections
Section C of Proposal 4 requires the Agency to give the Union 10
working days' notice of random selections. Section C requires notice of
the session at which random selections will be made, but does not
require the Agency to provide the Union at that session with the names
of the employees selected. Under subsection 7 of section C, the names
of employees selected in a random selection session need not be
disclosed until testing is completed, but not later than 60 days from
the date the names were generated at the session.
The Agency does not specifically object to subsection 7 of section C.
Moreover, the Agency does not address the relationship between the
10-day notice requirement of section C and the 60-day period for the
disclosure of the list of names set forth in subsection 7. Rather, the
Agency states only that the requirement of a 10-day notice to the Union
prior to the generation of a list of names provided in section C of
Proposal 4 "will serve to put unit employees in TDPs who are subject to
random selection . . . (on notice) that a list is to be generated,
leading them to draw the reasonable inference that selections for random
testing will soon follow." Agency's Statement at 50. The Agency argues
that the notice requirements is "destructive of the element of surprise
required to give random testing its maximum deterrent and detection
effect." Id.
Contrary to the Agency's argument, sections A and C of Proposal 4, to
the extent that they provide that the Union be notified of random
selection sessions, do not require advance notice of drug tests.
Compare American Federation of Government Employees, Local 3457 and U.
S. Department of the Interior, Minerals Management Service, Southern
Administrative Service Center, New Orleans, Louisiana, 37 FLRA 1456
(1990) (Proposals 1-9) (Member Talkin concurring) (Minerals Management
Service) (proposals requiring 24-hour advance notice of a drug test
found to be nonnegotiable). The Agency is only required to notify the
Union of random selection sessions. There is no requirement in the
proposal that random selection sessions must occur at any specific time
prior to the actual testing of employees selected during the sessions.
The Agency states that in the interest of security, random selection
sessions will not be scheduled at fixed intervals, but rather at
irregular unannounced, intervals throughout the year. The Agency also
states that the lists generated in the random selection sessions will be
nationwide.
Thus, if employees were made aware of the notice to the Union
concerning a random selection session, they would only know that testing
of the employees selected in the upcoming session would not occur for at
least 10 days. However, because random selection sessions will be
scheduled at irregular unannounced intervals and would involve Agency
employees nationwide, employees would not know which employees would be
selected during the upcoming session or which had already been selected
in a previous session. The Agency has not identified any situation in
which notice to the Union of a random selection session would result in
notice to particular employees that they will tested at a paticular
time. In fact, the notice received by the employees as a result of
sections A and C is no more than the notice they receive by virtue of
the existence of a random drug testing program. That is, notice to the
Union would merely indicate that testing of employees may occur
somewhere in the Agency at anytime. With respect to the first random
selection session, notice to the Union also would not interfere with the
Agency's rights because section 4(a) of Executive Order 12564 mandates
that the Agency provide employees 60 days' notice of the implementation
of its drug testing program. The Agency has the discretion to schedule
the first session during the 60-day notice period and generate several
lists of employees to be tested in any manner it deems necessary to
protect the randomness of its drug testing program.
We find that the notice requirement in sections A and C preserves the
Agency's ability to schedule drug testing of employees in a manner that
is not "destructive of the element of surprise required to give random
testing its maximum deterrent and detection effect." Agency's Statement
at 50. Therefore, we conclude the notice requirement does not interfere
with the Agency's right under section 7106(a)(1) to conduct random drug
testing. Compare American Federation of Government Employees,
Department of Education Council of AFGE Locals and U.S. Department of
Education, Washington, D.C., 38 FLRA 1068 (1990) (Proposal 4) (Member
Talkin dissenting) (proposal requiring the agency to provide specified
information to employees 60 days in advance of the date on which they
will be tested for illegal drugs directly interfered with agency's right
to determine its internal security practices), petition for review filed
as to other matters sub nom. U.S. Department of Education v. FLRA, No.
91-1219 (D.C. Cir. May 10, 1991).
We note that the Agency does not specifically address whether, by
providing that the Union be given the lists of employees selected for
testing in a random selection session "not later than sixty days from
the date the list was generated," subsection C.7 would directly
interfere with some aspect of the Agency's internal security plan. As
to when the Agency will conduct drug tests after random selection
sessions, the Agency states that "testing will probably follow closely
after selections are made." Agency's Statement, Exhibit A at 7. In
light of the Agency's statement and in the absence of an allegation that
subsection C.7 interferes with some aspect of the Agency's internal
security plan, we presume that the Agency does not dispute that
subsection C.7 can be implemented consistent with the Agency's plan for
randomly testing employees for drug use. Because the Agency does not
specifically allege that the 60-day disclosure requirement in subsection
C.7 compromises the Agency's internal security, we find that there is no
basis for the Authority to conclude that subsection C.7 directly
interferes with the Agency's exercise of its rights to determine the
Agency's internal security practices.
4. Section B -- Laboratory Inspections
First, we find that the record is sufficient for us to determine the
meaning and effect of section B of Proposal 4. Section B provides the
Union opportunities to inspect the laboratory with which the Agency has
contracted for the performace of drug testing analyses on bargaining
unit employees' urine samples. Therefore, we reject the Agency's
contention that section B should be dismissed because it "merely
provides for inspections for the sake of inspections, . . . (and) is too
vague to evaluate." Agency Statement at 56.
(a) Conditions of Employment
We conclude that section B of Proposal 4 concerns the conditions of
employment of bargaining unit employees. In deciding whether a matter
involves a condition of employment of bargaining unit employees, the
Authority considers whether the record establishes that there is a
direct connection between the matter and the work situation or
employment relationship of bargaining unit employees. United States
Department of Health and Human Services, Social Security Administration,
Region X, Seattle, Washington, 37 FLRA 880, 886 (1990).
Section B addresses the Agency's program to test bargaining unit
employees for illegal drugs. It provides the Union opportunities to
inspect the laboratory with which the Agency has contracted for the
performance of drug testing analyses on bargaining unit employees' urine
samples. The laboratory referenced in section B will determine whether
a bargaining unit employee's test for illegal drug use is positive or
negative. The results of the laboratory's analyses will be submitted to
the Agency and will have a direct bearing on matters affecting
employees' employment relationship, including providing potential
grounds for disciplinary action. Therefore, we find that there is a
direct connection between the subject matter of the proposal and the
work situation or employment relationship of bargaining unit employees.
We conclude that section B of Proposal 4 concerns a matter pertaining to
the conditions of employment of bargaining unit employees. See also
Rock Island I, 30 FLRA at 1074-75.
(b) Contracting Out
The Agency's contends that section B directly interferes with the
Agency's right to make determinations with respect to contracting out
under section 7106(a)(2)(B) of the Statute. The Agency states that
section B "would clearly require the (Agency) to attempt to modify its
existing contract to provide for union 'inspections,(') and by
implication seek to cancel that contract and solicit bids from
substitute contractors with union visitation rights as part of the
contract requirements." Agency's Statement at 54. We find that the
Agency's interpretation of section B is not reasonable given the wording
of section B and the Union's statement of intent.
The wording of section B merely provides that Union representatives
will be authorized to make on-site inspections of the laboratories
contracted by the Agency to perform drug testing analyses. Section B
does not explicitly or implicitly require the Agency to modify an
existing agreement with a contracting laboratory to allow the Union to
make an on-site inspection of the laboratory. Further, the Agency has
provided no evidence in the record to show that there exists a contract
which would have to be modified if section B were agreed to by the
parties. The Agency has failed to show that section B directly
interferes with the Agency's relationship with a contracting laboratory
or directly interferes with its right to contract out in any other way.
We find no support in the record for the Agency's contention that
section B would require the Agency to cancel its contract with the
laboratory and solicit bids from substitue contractors with union
visitation rights as part of the contract requirements. Therefore, we
reject those arguments. Compare Rock Island I, 30 FLRA at 1063
(proposal requiring the agency to contract out drug testing work only to
certified or qualified test personnel imposed a substantive limitation
on management's right to contract out its drug testing work and thus
directly interfered with the agency's right to contract out work under
section 7106(a)(2)(B)).
We conclude that the Agency has failed to establish that, by
providing for on-site inspections of drug testing laboratories by Union
officials, section B directly interferes with the Agency's right to make
determinations with respect to contracting out under section 7106(
a)(2)(B) of the Statute. Because we find that section B does not
directly interfere with management's right to contract out, we do not
reach the Union's claim that section B constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute.
(c) Internal Security
The Agency contends that section B interferes with management's right
to determine internal security practices under section 7106(a)(1) of the
Statute. The Agency states that "the employer's right to determine its
internal security practices reserved by section 7106( a)(()1) of the
Statute would extend to policing the contractor's performance with
regard to adherence to the (final) Guidelines." Agency's Statement at
55. Essentially, the Agency argues that inspection of the drug testing
laboratory is an exercise of the Agency's right to determine internal
security practices and "what the Union proposes here would clearly
reflect the exercise of that management right." Id. at 56.
Under the final Guidelines, on-site laboratory inspections relating
to the granting or maintaining of certification are performed by
qualified inspectors designated by HHS. See Secion 3.2(b) and 3.20 of
the final Guidelines, at 53 Fed. Reg. 11986, 11989 (1988). The final
Guidelines do not establish a right for either agency officials or union
representatives to participate in inspections incident to the
certification of laboratories, nor do they preclude agency officials or
union representatives from participating in those inspections. See
National Federation of Federal Employees, Forest Service Council and U.
S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA
174, 179-80 (1991) (Forest Service), petition for review filed sub nom.
United States Department of Agriculture, Forest Service v. FLRA, No.
91-1275 (D.C. Cir. June 10, 1991). Moreover, the final Guidelines do
not prevent agencies from reaching an agreement with the laboratory that
agency officials may attend inspections conducted by the qualified
inspectors or conduct any other types of inspections that are in
accordance with the final Guidelines. See id.
In Forest Service, we held to be negotiable a proposal providing that
the union may designate a representative as an observer to participate
in an on-site inspection of a drug testing laboratory whenever agency
officials participate in that inspection. We found that the proposal
would not prevent HHS from conducting the on-site inspections by
qualified inspectors provided for under section 3.20 of the final
Guidelines. Moreover, becaue the final Guidelines do not prohibit
agency officials or union representatives from participating in those
inspections, we found that the proposal did not require something that
is precluded by the final Guidelines by allowing a Union representative
to participate only where Agency officials participate. We also found
that the final Guidelines permit agencies and laboratories to agree that
a Union representative would also be allowed to accompany the Agency
officials as an observer in on-site laboratory inspections and that such
an agreement is not precluded by section 3.20 of the final Guidelines.
Section B of Proposal 4 in this case provides for quarterly on-site
inspections by Union officials of the laboratory, facilities, and
procedures of the contractor selected by the Agency to perform drug
testing analyses. Like the proposal in Forest Service, section B would
not prevent HHS from conducting the on-site inspections by qualified
inspectors provided for under section 3.20 of the final Guidelines.
Likewise, inasmuch as the inspections proposed in section B are not
intended as substitutes for HHS' inspections for laboratory
certification, the Agency's argument that the Union officials are not
qualified to conduct laboratory certification inspections is not
relevant and, therefore, is rejected.
Also, to the extent that section B may be interpreted to allow
independent laboratory inspections by Union officials, we find that the
Agency has not cited any provision of law, rule, or regulation that
prevents the parties from agreeing to independent laboratory inspections
by Union officials. As stated above, sections 3.2(b) and 3.20 of the
final Guidelines, governing the certification of drug testing
laboratories, specifically provide for on-site inspections of
laboratories and do not preclude the participation of union officials.
Moreover, HHS recognized that laboratories "may be willing to provide
escorted tours to union officials to illustrate the quality of their
processes." 53 Fed. Reg. at 11,977 (commentary to the final Guidelines).
See also Section 2.4(a)(1) of the final Guidelines (allowing access to
drug testing laboratories by personnel authorized to conduct inspections
on behalf of Federal agencies for which the laboratory is engaged in
urine testing and "escorted" access to laboratories by "authorized
visitors"). Thus, the final Guidelines do not provide that Union
officials may inspect laboratories only as observers on HHS inspections
or only with Agency officials present. Rather, under the final
Guidelines, laboratories may provide union officials an opportunity to
tour the laboratory independent of HHS inspections and without agency
officials.
We find that the Agency has not demonstrated that, by providing for
laboratory inspections by Union officials, section B is inconsistent
with an law, rule, or regulation. Therefore, consistent with Forest
Service, we conclude that section B of Proposal 4 is negotiable.
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposal 1, section C of Proposal 3, section C,
subsections 4-7 of Proposal 4, and Proposal 6. /2/ The petition for
review is dismissed as to section A and section C, subsections 1-3 of
Proposal 4.
(1) The Union withdrew its petition for review as to Proposal 2,
sections A and B of Proposal 3, and Proposal 5. See Union's Response at
23-24. Accordingly, those proposals are not before us and will not be
considered in this decision.
(2) In finding those proposals to be negotiable, we make no judgment
as to their merits.
42 FLRA 592
42 FLRA NO. 38
U.S. Department of the Navy, Naval Weapons Center, China Lake,
California and International Brotherhood of Police Officers, Local 337,
SEIU, AFL-CIO, Case No. 98-CA-10168 (Decided September 30, 1991)
7116(a)(1), (5), and (8)
5 C.F.R. Section 2429.1(a)
UNFAIR LABOR PRACTICE
NAME AND HOME ADDRESSES
STIPULATED RECORD
The complaint alleged that the Respondent violated the Statute by
failing and refusing to provide the Union with the names and home
addresses of bargaining unit employees represented by the Union. The
Authority found that the Respondent committed the unfair labor practice
as alleged.
Case No. 98-CA-10168
U.S. DEPARTMENT OF THE NAVY, NAVAL WEAPONS CENTER, CHINA LAKE,
CALIFORNIA
(Respondent)
INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 337, SEIU,
AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the reasons stated below, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of employees
employed by the Respondent. By memorandum dated December 6, 1990, the
Union requested the Respondent to provide the Union with the "(n)ames
and home mailing addresses of all bargaining unit employees."
Stipulation, Exhibit 1(e). By memorandum dated March 18, 1991 the
Respondent refused to provide the Union with the names and home
addresses of unit employees "based upon Privacy Act considerations."
Stipulation, Exhibit 1(f).
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available, and do not
constitute guidance, advice, counsel or training provided for management
officials or supervisors relating to collective bargaining, within the
meaning of section 7114(b)(4) of the Statute.
A. The Respondent
The Respondent disagrees with the Authority's decision in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement denied sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Aug. 13, 1991) (FLRA v. Porstmouth Naval Shipyard). In that case,
we reaffirmed the Authority's decision in Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home),
and concluded that a union is entitled, under section 7114(b)(4) of the
Statute, to the names and home addresses of bargaining unit employees.
The Respondent asserts that the Authority should apply the reasoning of
the court in FLRA v. U.S. Department of the Treasury, Financial
Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S.
Ct. 863 (1990), to find that the Respondent was not required to supply
the Union with the requested information.
The Respondent contends that the disclosure of employees' home
addresses is prohibited by the Privacy Act, 5 U.S.C. Section 552a, and
the Freedom of Information Act, 5 U.S.C. Section 552. The Respondent
argues, in this regard, that the requested information has not been
established to be necessary, within the meaing of section 7114(b)(4) of
the Statute, for the discharge of the Union's representational
responsibilities.
Finally, the Respondent asserts that "(t)he system of records that
will be used to supply the union with the requested information is a
Navy system . . . not an OPM system . . . ." Respondent's Brief at 1.
According to the Respondent, the "routine use disclosure provisions of
the applicable Navy system of records . . . precludes( ) the disclosure
of employee home addresses to unions, especially if there are
alternative means of communications available to the labor
organizations." Id. The Respondent incorporated in, and attached to,
its statement a brief filed by the U.S. Department of Justice in the U.
S. Court of Appeals for the First Circuit in Portsmouth Naval Shipyard,
wherein the Department of Justice argues that (1) employee home
addresses may not be disclosed from official personnel files pursuant to
the routine use notice published by the Office of Personnel Management
(OPM), and (2) the OPM routine use notice does not apply to "the
Department of the Navy's payroll system of records, which would probably
be the most accurate source of employees' current home addresses."
Attachment to Respondent's Brief at 44 n.38.
B. The General Counsel
The General Counsel contends that this case is controlled by the
Authority's decisions in Portsmouth Naval Shipyard and Farmers Home.
Noting that the Respondent agrees that the information requested by the
Union constitutes data within the meaning of section 7114(b)(4) of the
Statute, is normally maintained by the Respondent in the regular course
of business, is reasonably available, and does not constitute guidance,
advice, counsel or training provided for management officials or
supervisors relating to collective bargaining, the General Counsel
asserts that the Respondent's failure and refusal to provide the names
and home addresses of bargaining unit employees to the Union constitutes
a refusal to comply with section 7114(b)(4) and is an unfair labor
practice under section 7116(a)(1), (5) and (8) of the Statute.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available to the Respondent, and does not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors relating to collective bargaining. Accordingly, based on
the Authority's decision in Portsmouth Naval Shipyard, we conclude that
the Respondent violated section 7116(a)(1), (5), and (8) of the Statute
by failing to furnish the Union with the names and home addresses of
unit employees represented by the Union.
We note that, in FLRA v. Portsmouth Naval Shipyard the United States
Court of Appeals for the First Circuit denied the Authority's petition
for enforcement of Portsmouth Naval Shipyard. Subsequently, in FLRA v.
U.S. Department of the Navy, Navy Ships Parts Control Center, et al.,
Nos. 90-3690, 90-3724 (3d Cir. September 13, 1991), a divided Court of
Appeals for the Third Circuit denied the Authority's petition for
enforcement of U.S. Department of the Navy, Navy Ships Parts Control
Center and Navy Fleet Material Support Office and NAVSEA Logistics
Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), in
which the Authority relied on Portsmouth Naval Shipyard. We
respectfully disagree with these courts' decisions and adhere to our
decision in Portsmouth Naval Shipyard.
We also note, in this regard, the Respondent's argument that OPM's
routine use notice does not apply to the "system of records that will be
used to supply the union with the requested information . . . ."
Respondent's Brief at 1. The Respondent does not specify the system of
records to which it refers. Read in light of the Department of Justice
brief attached to, and incorporated in, the Respondent's brief, however,
we construe the Respondent's argument to be that the requested
information would be supplied from the Respondent's payroll records
because official personnel files, which are subject to the OPM's routine
use notice, are not the most accurate source of current home addresses.
This argument is not relevant to our resolution of this case. There
is no basis on which to conclude that the Union specifically requested
the Respondent to provide the home addresses from its payroll records or
from any other specific system of records. Moreover, the Respondent
does not dispute that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject o OPM's routine use notice. See U.S. Naval
Ordnance Station, 40 FLRA 348, 350-51 (1991), application for
enforcement filed sub nom. FLRA v. U.S. Naval Ordnance Station, No.
91-2519 (4th Cir. Apr. 24, 1991).
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of the Navy, Naval Weapons Center, China
Lake, California shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International
Brotherhood of Police Officers, Local 337, SEIU, AFL-CIO, the
exclusive representative of certain of its employees, the names
and home addresses of all employees in the bargaining unit it
represents.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of the
rights assured them by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Furnish the International Brotherhood of Police Officers,
Local 337, SEIU, AFL-CIO, the exclusive representative of certain
of its employees, the names and home addresses of all employees in
the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the International Brotherhood of Police Officers,
Local 337, SEIU, AFL-CIO are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Commander and shall be posted in conspicuous places, including
all bulletin boards and other places where notices to employees
are customarily posted, and shall be maintained for 60 consecutive
days thereafter. Reasonable steps shall be taken to ensure that
such notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, San Francisco Regional
Office, Federal Labor Relations Authority, in writing, within 30
days from the date of this Order as to what steps have been taken
to comply.
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE
WE WILL NOT refuse to furnish, upon request of the International
Brotherhood of Police Officers, Local 337, SEIU, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the International Brotherhood of Police Officers,
Local 337, SEIU, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, California 94103 and whose telephone number is: (415)
744-4000.
42 FLRA 587
42 FLRA NO. 37
AFSCME Local 3097 and Department of Justice, Justice Management
Division, Case No. 0-NG-1372 (31 FLRA 322) (Decided September 27, 1991)
NEGOTIABILITY DETERMINATION
This case came to the Authority on remand from the United States
Court of Appeals for the District of Columbia Circuit. It concerns the
Authority's decision concerning Proposal 1 in AFSCME Local 3097 and
Department of Justice, Justice Management Division, 31 FLRA 322 (1988),
Department of Justice, Justice Management Division v. FLRA, No. 88-1316
(D.C. Cir. July 27, 1990) (order).
In Justice, the Authority determined that Proposal 1, which required
the Agency to comply with Office of Management and Budget (OMB) Circular
A-76 in making contracting-out decisions, was negotiable. The Agency
petitioned for review of this determination in the District of Columbia
Circuit.
While the Agency's petition for review in this case was pending
before the court, the United States Supreme Court decided IRS v. FLRA,
110 S. Ct. 1623. In IRS v. FLRA, the Court reversed and remanded a
decision by the District of Columbia Circuit, IRS v. FLRA, 862 F.2d 880,
sustaining an Authority finding in NTEU and IRS, 27 FLRA 976, that a
different proposal addressing agency compliance with OMB Circular A-76
was negotiable. The D.C. Circuit subsequently remanded that case to the
Authority. IRS v. FLRA, No. 87-1439 (D.C. Cir. May 11, 1990) (order).
Shortly thereafter, the present case was remanded to the Authority.
On remand, the Authority concluded that Proposal 1, was negotiable
because it did not directly interfere with the Agency's right to make
determinations regarding contracting-out and was not otherwise
inconsistent with law, rule, or regulation.
The Authority noted that the proposal did not impose any limitation
on management's exercise of its right to make determinations with
respect to contracting out other than that already imposed by section
7106(a)(2) of the Statute, and that, therefore, Proposal 1 did not
directly interfere with the Agency's right under section 7106(a)(2).
Case No. 0-NG-1372 (31 FLRA 322 (1988)
AFSCME LOCAL 3097
(Union)
DEPARTMENT OF JUSTICE, JUSTICE MANAGEMENT DIVISION
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority pursuant to a remand of the
Authority's decision concerning Proposal 1 in AFSCME Local 3097 and
Department of Justice, Justice Management Division, 31 FLRA 322 (1988)
(Justice), by the United States Court of Appeals for the District of
Columbia Circuit. Department of Justice, Justice Management Division v.
FLRA, No. 88-1316 (D.C. Cir. July 27, 1990) (order).
In Justice, the Authority determined that Proposal 1, which requires
the Agency to comply with Office of Management and Budget (OMB) Circular
A-76 in making contracting-out decisions, was negotiable. The Agency
petitioned for review of this determination in the District of Columbia
Circuit.
While the Agency's petition for review in this case was pending
before the court, the United States Supreme Court decided Department of
the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990)
(IRS v. FLRA). In IRS v. FLRA, the Court reversed and remanded a
decision by the District of Columbia Circuit, Department of the
Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880 (D.C. Cir.
1988), sustaining an Authority finding in National Treasury Employees
Union and Department of the Treasury, Internal Revenue Service, 27 FLRA
976 (1987) (NTEU), that a different proposal addressing agency
compliance with OMB Circular A-76 was negotiable. The D.C. Circuit
subsequently remanded that case to the Authority. Department of the
Treasury, Internal Revenue Service v. FLRA, No. 87-1439 (D.C. Cir. May
11, 1990) (order). Shortly thereafter, the case now before us also was
remanded to the Authority.
For the following reasons, we conclude on remand that Proposal 1 is
negotiable.
The Agency agrees to comply with OMB Circular A-76 and other
applicable laws and regulations in conducting the library study and
making decisions on contracting out.
A. The Authority's Decision in Justice
In Justice, the Authority concluded that OMB Circular A-76 was a
"rule or regulation" within the meaning of section 7103(a)(9)(C)(ii) of
the Federal Service Labor-Management Relations Statute (the Statute),
which defines "grievance." Therefore, the Authority decided that alleged
violations of the Circular "may be included in a grievance procedure
negotiated under section 7121." Justice at 337. The Authority rejected
the Agency's argument that the proposal interfered with management's
right to make determinations with respect to contracting out under
section 7106(a)(2)(B) of the Statute. Noting that agency officials must
follow the policies established by OMB Circular A-76, the Authority
found that Proposal 1 constituted a negotiable procedure, under section
7106(b)(2) of the Statute.
The Authority further held that subjecting the Agency's
contracting-out decisions to arbitral review was consistent with section
7106(a)(2)(B) of the Statute. Citing Newark Air Force Station and
American Federation of Government Employees, Local 2221, 30 FLRA 616
(1987), the Authority stated that "(t)he Agency's concern with
arbitrators 'substituting their judgment' for that of management
presents no basis on which to find this proposal nonnegotiable."
Justice, 31 FLRA at 343.
Finally, the Authority rejected the Agency's argument that Proposal 1
was inconsistent with OMB Circular A-76 and its Supplement and,
therefore, was nonnegotiable under section 7117 of the Statute. The
Authority found that nothing in the proposal affected the right of an
independent contractor or its employees to challenge contracting-out
decisions under the procedures established by the OMB issuances.
Further, even assuming a conflict between the appeals procedure in OMB
Circular A-76 and the proposal, the Authority stated that "the language
of the Circular cannot limit the statutorily prescribed scope of a
negotiated grievance procedure." Justice, 31 FLRA at 346.
B. The Supreme Court's Decision in IRS v. FLRA
In IRS v. FLRA, the Supreme Court reversed the Authority's holding
that compliance with OMB Circular A-76 could be enforced through a
negotiated grievance procedure because the Circular constituted a rule
or regulation within the meaning of section 7103(a)(9) of the Statute.
The Court stated that the holding was "flatly contradicted by . . .
Section 7106(a)'s command that 'nothing in this chapter' . . . shall
affect the authority of agency officials to make contracting-out
determinations in accordance with applicable laws." 110 S. Ct. at 1627
(emphasis omitted). The Court stated that "there are no 'external
limitations' on management rights, insofar as union powers under Section
7106(a) are concerned, other than the limitations imposed by 'applicable
laws.'" Id. at 1629 (emphasis in original).
The Court also held that the term "applicable laws" in section 7106(
a)(2) is not synonymous with the phrase "any law, rule, or regulation,"
in section 7103(a)(9) of the Statute. The Court stated that "(i)t
cannot be true . . . that all actions not in accordance with a 'law,
rule, or regulation' under Section 7103(a)(9) are, by definition, also
actions not 'in accordance with applicable laws' in Section 7106(a)."
Id. (emphasis in original). However, the Court stated that it is a
"permissible (though not an inevitable) construction of the (S)tatute
that the term 'applicable laws' in Section 7106(a) extends to some, but
not all, rules and regulations . . . ." Id. (footnote omitted). Because
the scope of the term "applicable laws" in section 7106(a)(2) was not
considered by the United States Court of Appeals for the District of
Columbia Circuit, the Supreme Court remanded the case to the District of
Columbia Circuit to consider that issue, or "await (the Authority's)
specification, on remand, of the particular permissible interpretation
of 'applicable laws' (if any) it believes embraces the Circular." Id. at
1630.
Following the District of Columbia Circuit's remand of NTEU to us, we
examined the scope of the term "applicable laws" and whether it
encompasses OMB Circular A-76 in our decision and order on remand in
National Treasury Employees Union and U.S. Department of the Treasury,
Internal Revenue Service, 42 FLRA No. 31 (1991) (Treasury).
C. The Authority's Decision in Treasury.
In Treasury, we held that, insofar as management rights under section
7106(a)(2) are concerned, proposals that require compliance with
applicable laws do not directly interfere with the exercise of such
rights. Compare American Federation of Government Employees, Department
of Education Council of AFGE Locals and U.S. Department of Education, 38
FLRA 1068, 1075-76 (1990) (Department of Education), request for
reconsideration denied, 39 FLRA 1241 (1991), petition for review filed
sub nom. United States Department of Education v. FLRA, No. 91-1219
(D.C. Cir. May 10, 1991) (proposals requiring management to exercise its
rights under section 7106(a)(1) of the Statute in accordance with
applicable laws directly interfere with the exercise of such rights).
We also held in Treasury that the term "applicable laws" in section
7106(a)(2) includes, among other things, provisions of the United States
Code as well as rules and regulations having "the force and effect of
law." Id., slip op. at 15. As relevant here, we held that regulations
must have certain substantive and procedural characteristics in order to
constitute regulations having the force and effect of law.
Specifically, regulations have the force and effect of law, so as to
constitute "applicable laws," if they: (1) are promulgated pursuant to
an explicit or implicit delegation of legislative authority by Congress;
(2) affect individual rights and obligations; and (3) are promulgated
in accordance with applicable procedural requirements. Id., slip op. at
15-17. For reasons fully set forth in Treasury, we concluded that OMB
Circular A-76 constituted a regulation having the force and effect of
law and, therefore, constituted an applicable law within the meaning of
section 7106(a)(2) of the Statute.
Proposal 1 requires the Agency to comply with OMB Circular A-76,
which is an applicable law within the meaning of section 7106(a)(2) of
the Statue. As the proposal imposes no limitation on management's
exercise of its right to make determinations with respect to contracting
out other than that already imposed by section 7106(a)(2) of the
Statute, Proposal 1 does not directly interfere with the Agency's right
under section 7106(a)(2).
There is no dispute that the practical effect of Proposal 1 is to
authorize the processing of alleged violations of OMB Circular A-76
through the negotiated grievance procedure. See Justice, 31 FLRA at
323-24. Although the Agency argued in Justice that Proposal 1 is
inconsistent with the appeal procedures in the Circular, an identical
argument was addressed and rejected in Treasury. We stated that
"grievances enforcing the Circular are within the scope of the
negotiated grievance procedure under section 7103(a)(9) of the
Statute(,)" and that "OMB cannot preclude grievances enforcing the
Circular by issuing regulations that limit the scope of the statutory
grievance procedure." Treasury, slip op. at 28 (citation omitted). We
reach the same conclusion here. Finally, for the reasons previously
stated in Justice, 31 FLRA at 343-45, we reject the Agency's argument
that Proposal 1 would improperly allow arbitrators to substitute their
judgment for that of the Agency in exercising its right to make
contracting-out determinations. See also Treasury, slip op. at 27.
Proposal 1 does not directly interfere with the Agency's right to
make determinations regarding contracting-out and is not otherwise
inconsistent with law, rule, or regulation. Accordingly, Proposal 1 is
negotiable. /1/
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposal 1. /2/
(1) To the extent that the reasoning in Justice differs from that
applied here, Justice will no longer be followed.
(2) In finding Proposal 1 to be negotiable, we make no judgment as to
its merits.
42 FLRA 567
42 FLRA NO. 36
AFGE, Local 3457 and Dept. of the Interior, Minerals Management
Service, Southern Administrative Service Center, New Orleans, Louisiana,
Case No. 0-NG-1694 (Decided September 27, 1991)
7105(a)(2)(D)
7106(a)(1)
7106(b)(3)
NEGOTIABILITY DETERMINATION
DRUG TESTING
FEDERAL WORKPLACE DRUG TESTING GUIDELINES
INTERNAL SECURITY PRACTICES
EXECUTIVE ORDER 12564
APPROPRIATE ARRANGEMENTS
Proposal 1, which provides that all drug testing will be conducted in
accordance with the HHS scientific and technical guidelines and that the
method and equipment used will meet the requirements as set forth in the
guidelines, was found to be negotiable as an appropriate arrangement
under 7106(b)(3).
Proposal 2, which provides employees will report to the designated
location to be tested, was found to not be sufficiently specific and
delimited in form and content to permit a determination as to its
negotiability.
Proposal 3, which provided, in pertinent part, that tests will be
given in a sanitary, secluded area which provides the employee with both
visual and auditory privacy, was found to be negotiable.
Proposal 4, which requires that the Agency use the gas
chromatography/mass spectrometry test to confirm initial positive drug
tests, was found to be negotiable as an appropriate arrangement under
7106(b)(3).
Proposal 5, which would require the Agency to permit employees to
return the next day if they are unable to provide a urine specimen of
sufficient volume, was found to be nonnegotiable as inconsistent with
the Federal Workplace Drug Testing Guidelines.
The petition for review of Proposal 6, which requires the Agency to
collect, handle and transport urine specimens in accordance with strict
chain of custody procedures, was dismissed upon the finding that the
proposal is not in dispute.
Proposal 7, which provides, in pertinent part, that the authorized
collection agent will collect all specimens, was found to be negotiable.
Case No. 0-NG-1694
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3457
(Union)
U.S. DEPARTMENT OF THE INTERIOR, MINERALS MANAGEMENT SERVICE,
SOUTHERN ADMINISTRATIVE SERVICE CENTER, NEW ORLEANS, LOUISIANA
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). /1/ The appeal
concerns the negotiability of seven proposals involving implementation
of the Agency's drug testing program.
Proposal 1 requires the Agency to conduct all drug testing in
accordance with the scientific and technical guidelines promulgated by
the Department of Health and Human Services (HHS) and to use methods and
equipment that meet the requirements set forth in the guidelines. We
find that Proposal 1 is negotiable as an appropriate arrangement under
section 7106(b)(3) of the Statute.
Proposal 2 is not sufficiently specific and delimited in form and
content to permit a determination as to its negotiability.
Proposal 3 provides that drug tests will be given in a sanitary,
secluded area that accords employees visual and auditory privacy. We
find the proposal to be negotiable.
Proposal 4 requires the Agency to use the gas chromatography/mass
spectrometry test to confirm initial positive drug tests. We find that
Proposal 4 is negotiable as an appropriate arrangement under section
7106(b)(3) of the Statute.
Proposal 5 would require the Agency to permit employees to return the
next day if they are unable to provide a urine specimen of sufficient
volume. We find that Proposal 5 is nonnegotiable under section
7117(a)(1) of the Statute.
Proposal 6 requires the Agency to collect, handle and transport urine
specimens in accordance with strict chain of custody procedures. We
conclude that Proposal 6 is not in dispute.
Proposal 7 states that the authorized collection agent will collect
all specimens. We find that the proposal is negotiable.
Section 5. Methods and Procedures for Testing
All drug testing will be conducted in accordance with the HHS
scientific and technical guidelines. The methods and equipment used
will meet the requirements as set forth in the guidelines.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 1 is ambiguous and, unless
clarified by the Union, should be dismissed. The Agency states,
however, that if the proposal is not intended to preclude the
application of other applicable guidelines, such as the "Department's
Plan," the proposal would be negotiable. Statement of Position at 2.
On the other hand, the Agency argues that if the proposal is intended to
preclude the application of relevant guidelines other than those
referenced in the proposal, the proposal would be nonnegotiable because
it would directly interfere with management's right to determine its
internal security practices under section 7106(a)(1) of the Statute.
The Agency further argues that to the extent the proposal would preclude
the application of the "Department's Plan," for which there is a
compelling need "under the requirements of Section 2 of the Executive
Order, . . ." the proposal would be nonnegotiable under section 7117(
a)(2) and (b) of the Statute and section 2424.11 of the Authority's
Rules and Regulations. Id.
1. Union
The Union states that the intent of Proposal 1 is to incorporate into
the parties' agreement the standards and requirements contained in the
Mandatory Guidelines for Federal Workplace Drug Testing issued by HHS,
53 Fed. Reg. 11970-89 (1988) (Guidelines). The Union states that the
proposal would neither include nor exclude any other rule or regulation.
The Union asserts that to the extent there may be an inconsistency
between the proposal and Agency policy, rule, or regulation, there would
be no bar to negotiations because there is no compelling need for such
policy, rule, or regulation. The Union also states that the proposal is
consistent with an Agency policy entitled "Drug Free Workplace Policy
and Procedures," which requires the Agency to adhere to all scientific
and technical guidelines for drug testing programs that are promulgated
by HHS. Union Response at 7.
Finally, the Union argues that the Authority previously has found
negotiable proposals that reference regulations, as long as such
proposals do not otherwise restrict the exercise of management rights.
Citing National Treasury Employees Union and Internal Revenue Service, 3
FLRA 693 (1980), the Union argues that as Proposal 1 would incorporate
provisions of a Government-wide regulation into the parties' agreement,
the proposal is negotiable.
B. Analysis and Conclusions
Proposal 1 would require the Agency to conduct its drug testing
program in accordance with the scientific and technical Guidelines that
are issued by HHS and to use the methods and equipment that meet the
requirements of those Guidelines. We find, contrary to the Agency, that
the proposal is sufficiently specific to enable us to provide the
parties with a negotiability determination.
The first sentence of Proposal 1 is virtually identical to a portion
of a proposal found to be negotiable in U.S. Department of
Transportation and Federal Aviation Administration, 40 FLRA 690, 711-12
(1991), petition for review filed sub nom. Professional Airways Systems
Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No.
91-1310 (D.C. Cir. June 28, 1991) (FAA), which required the employer to
use the HHS scientific and technical Guidelines for its drug testing
program. In that case, we relied on our earlier decision in American
Federation of Government Employees, Department of Education Council of
AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA
1068, 1074-79 (1990) (Member Talkin dissenting, as to other matters)
(Department of Education), decision on reconsideration, 39 FLRA 1241
(1991), petition for review filed sub nom. United States Department of
Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), which involved
a proposal requiring the agency to establish and administer its drug
testing program in accordance with applicable laws, rules and
regulations, among other things. We concluded that although that
portion of the proposal directly interfered with management's right
under section 7106(a)(1) of the Statute to determine its internal
security practices, it was nevertheless negotiable as an appropriate
arrangement under section 7106(b)(3) of the Statute. In reaching that
result, we noted that an agency's implementation of a drug testing
program could adversely affect employees and that as the existence of
applicable laws, rules and regulations already serves to limit agency
action, an agency's interest in being able to act without regard to such
restrictions is negligible.
In FAA, we found that the same considerations that applied to finding
the proposal negotiable as an appropriate arrangement in Department of
Education applied equally to a requirement that the agency use HHS
Guidelines in its drug testing program. As the first sentence of the
proposal here is virtually identical to that in FAA, we conclude, for
the same reasons, that it is negotiable as an appropriate arrangement.
We also find that the second sentence of the proposal, mandating the
use of methods and equipment that meet the requirements contained in the
Guidelines, constitutes a negotiable appropriate arrangement.
Initially, however, we find that the second sentence directly interferes
with the Agency's right to determine its internal security practices.
In National Federation of Federal Employees, Local 15 and Department
of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock
Island, Illinois, 30 FLRA 1046, 1059 (1988) (Rock Island I), remanded as
to other matters sub nom. Department of the Army, U.S. Army Armament,
Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No.
88-1239 (D.C. Cir. May 25, 1988) (Order), decision on remand, 33 FLRA
436 (1988) (Rock Island II), rev'd in part and remanded as to other
matters sub nom. Department of the Army, U.S. Army Aberdeen Proving
Ground, Installation Support Activity v. FLRA, 890 F.2d 467 (D. C. Cir.
1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III), the
Authority held that management's determination of the methods and
equipment to be used in drug testing is an exercise of its right to
determine its internal security practices under section 7106(a)(1) of
the Statute. The Authority also held that limitations on the range of
management's choices as to the methods and equipment used to conduct
drug tests establish substantive criteria governing the exercise of
management's right to determine its internal security practices. Here,
the second sentence of Proposal 1 would require the Agency to use the
methods and equipment specified in the scientific and technical
Guidelines issued by HHS. As such, this portion of the proposal imposes
substantive criteria governing the Agency's right to determine its
internal security practices under section 7106(a)(1) of the Statute and,
therefore, directly interferes with the exercise of that right.
However, the requirement contained in the second sentence of the
proposal is comparable to that contained in the first sentence of the
proposal. Both sentences require the Agency to fulfill its
responsibilities under the drug testing program in accordance with HHS
Guidelines. For the same reasons that led to a finding that the first
sentence constitutes a negotiable appropriate arrangement, we conclude
that the second sentence also is negotiable as an appropriate
arrangment.
We reject the Agency's contention that Proposal 1 is nonnegotiable
under section 7117(a)(2) and (b) of the Statute because it is
inconsistent with the "Department's Plan" for which there is a
compelling need under section 2 of Executive Order 12564. /2/ The
Agency has not provided a copy of its Plan or explained how Proposal 1
is inconsistent with the Plan. Further, the Agency has not provided any
evidence or argument to support its contention that there is a
compelling need for the Plan so as to bar negotiations over Proposal 1.
Under these circumstances, there is no basis on which to conclude that
Proposal 1 is nonnegotiable under section 7117(a)(2) and (b) of the
Statute.
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
A. Under the terms of this agreement, affected employees will
report to the designated location to be tested. (Only the
underlined portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is ambiguous and, therefore, that
the petition for review as to this proposal should be dismissed. The
Agency asserts, in this regard, that the phrase, "Under the terms of
this agreement," could be interpreted to refer to other proposals that
are nonnegotiable. The Agency argues, therefore, that Proposal 2 is
nonnegotiable to the extent that it might incorporate nonnegotiable
aspects of other proposals.
2. Union
The Union states that the intent of Proposal 2 is to inform employees
of the first procedural step in the taking of urine specimens by
describing that step in the parties' agreement. The Union asserts that
the proposal concerns a procedural matter and, therefore, is negotiable.
Additionally, the Union disputes the Agency's claim that, by its terms,
Proposal 2 references nonnegotiable proposals. The Union states that if
a matter is nonnegotiable, it will either not be in the agreement or
will not be an enforceable provision, if contained in the agreement.
B. Analysis and Conclusions
We conclude that the proposal is not sufficiently specific and
delimited to enable us to determine whether it is negotiable. It is not
clear from the record what terms of the parties' agreement are being
referenced by the proposal. The Union offers only the explanation that
the parties' agreement could not contain nonnegotiable provisions or, if
such provisions were in the agreement, they could not be enforced.
Without an explanation from the Union delineating the specific terms of
the agreement, we are unable to determine the effect of the proposal or
whether it is consistent with applicable law and regulation.
Proposal 2 contains the same defect as a proposal in Department of
Education, 38 FLRA at 1092-94, which the Authority found was not
sufficiently specific in form and content to enable the Authority to
determine the proposal's negotiability. The proposal in that case
provided that "(u)pon direction of management under the terms of Section
3 above, affected employees will report to the designated location to be
tested." Id. at 1092. We found that without an explanation from the
union concerning the terms of "Section 3," we were unable to determine
the effect of the proposal or whether it was consistent with applicable
law and regulation. Therefore, we dismissed the union's petition for
review concerning that proposal.
We make the same findings here. A petition for review that does not
present a proposal sufficiently specific and delimited to enable the
Authority to make a negotiability determination does not meet the
conditions for review set forth in 5 U.S.C. Section 7117(c) and 5 C.F.
R. Section 2421.1. National Association of Agricultural Employees and
U.S. Department of Agriculture, Animal and Plant Health Inspection
Service, Plant Protection and Quarantine, Houston, Texas, 32 FLRA 1265
(1988). Consequently, we will dismiss the petition for review as to
Proposal 2.
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
B. Tests will be given in a sanitary, seculuded area which
provides the employee with both visual and auditory privacy.
(Only the underlined portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is nonnegotiable because it
conflicts with Executive Order 12564 and the Guidelines and because it
directly interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
More specifically, the Agency notes that both section 4(c) of the
Executive Order and section 2.2(e) of the Guidelines /3/ provide for
privacy during the collection of a urine specimen "unless there is
reason to believe that a particular individual may alter or substitute
the specimen to be provided." 53 Fed. Reg. at 11980. The Agency argues
that the proposal would require the Agency to accord employees "complete
privacy," both visual and auditory, in all circumstances, thereby
preventing the Agency from assigning an observer, which the Agency
claims is permitted by section 4(c) of the Executive Order and section
2.2(e) of the Guidelines. Statement of Position at 4.
The Agency also argues that Proposal 3 directly interferes with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute. The Agency asserts that under
section 7106(a)(1), management can unilaterally determine the
"techniques to assure the internal security of an agency." Statement of
Position at 5. The Agency maintains that it might be unable to obtain a
sanitary, secluded area that provides visual and auditory privacy, and
that the proposal would delay testing in emergency situations, such as
post-accident or reasonable suspicion testing, when the Agency-designate
collection sites may not be accessible. Additionally, the Agency argues
that auditory privacy may not be appropriate where there is reason to
believe that an employee may alter or substitute a specimen. Therefore,
the Agency argues that the proposal severely and impermissibly restricts
its right to determine its internal security practices.
The Agency further argues that the proposal is similar to a proposal
found nonnegotiable in Rock Island I, 30 FLRA at 1079-81, and that
Proposal 3 is outside the duty to bargain on the same basis.
2. Union
The Union states that the intent of Proposal 3 is to inform employees
of the second procedural step in the taking of urine specimens. The
Union further states the proposal is "a procedure and an appropriate
arrangement to alleviate the adverse effect of the management decision
to invade and violate an employee's privacy." Petition for Review at 2;
Union Response at 4-5.
The Union asserts that the proposal "is not intended to preclude the
appropriate, limited, and controlled observation under the circumstances
described in the HHS Guidelines." Union Response at 5. The Union
disputes the Agency's meaning of the term privacy. Rather, the Union
asserts that the term privacy "includes whatever degree of 'privacy' is
reasonable under the circumstances. However, by definition, it can
never mean a complete lack of privacy." Id. at 10-11 (footnote omitted).
The Union also contends that the proposal does not prohibit the use of
public rest rooms, but simply means that "reasonable privacy will be
afforded whatever the circumstances." Id. at 11. However, the Union
explains that the proposal would require that if a public rest room is
used, it must be sanitary and secluded. The Union further explains that
secluded means "mainly out of the view of others. Of course, if
circumstances require direct observation of the collection of urine,
then it would not prohibit an authorized observer." Id. at 12.
B. Analysis and Conclusions
We find that Proposal 3 does not conflict with section 4(c) of the
Executive Order or section 2.2(e) of the Guidelines. We also find it
unnecessary to determine whether the proposal directly interferes with
management's right to determine its internal security practices because
even if there were such an interference, we would nonetheless find that
the proposal constitutes a negotiable appropriate arrangement.
Therefore, the proposal is within the duty to bargain.
Section 4(c) of the Executive Order provides, in relevant part, that
"(p)rocedures for providing urine specimens must allow individual
privacy, unless the agency has reason to believe that a particular
individual may alter or substitute the specimen to be provided." The
Authority previously has addressed the requirements of section 4(c) of
the Executive Order in the context of proposals that are comparable to
Proposal 3. In Department of Education, 38 FLRA at 1094, the union
sought to bargain over a proposal that would require tests to be given
in a sanitary, secluded area that provides employees with privacy. In
finding the proposal negotiable, the Authority found that section 4(c)
"mandates that agencies allow employees individual privacy when
providing urine samples." Id. The Authority also found that "(a)n
agency may limit an employee's privacy only if the agency has reason to
believe that the employee will attempt to alter or substitute his or her
sample." Id. /4/ Subsequently, in National Federation of Federal
Employees, Council of GSA Locals and General Services Administration, 41
FLRA 728 (1991) (GSA), the Authority found negotiable a proposal that
permitted observation when collection site personnel had reason to
believe that an employee might alter or substitute a specimen based on
criteria set forth in an agency regulation. The Authority found that
section 4(c) of the Executive Order does not mandate direct observation
in any circumstances, but simply provides an exception to the
requirement that employees be afforded privacy. The exception that is
stated in section 4(c) is where an agency has reason to believe that an
employee may alter or substitute a specimen.
The Agency argues that the proposal conflicts with section 4(c) of
the Executive Order by preventing the Agency from assigning an observer
during the administration of a drug test. We disagree. The Executive
Order does not require observation in any circumstances. Therefore, the
proposal is not inconsistent with section 4(c). Similarly, the proposal
is not inconsistent with section 2.2(e) of the Guidelines, which is
essentially a restatement of section 4(c) of the Executive Order. /5/
As section 2.2(e) of the Guidelines does not require direct observation
during the administration of a drug test, there is no inconsistency
between the proposal and that section of the Guidelines.
We also reject the Agency's contention that the proposal requires
both auditory and visual privacy in all circumstances. As explained by
the Union, the proposal "is not intended to preclude the appropriate,
limited, and controlled observation under the circumstances described in
the HHS Guidelines(,)" and the degree of privacy to be accorded to
employees is that which is "reasonable under the circumstances." Union
Response at 5, 11. We find that the Union's explanation as to the
manner in which the proposal is intended to operate does not require
auditory and visual privacy in all circumstances. Instead, the proposal
is consistent with those provisions of the Guidelines that require
direct observation in certain defined circumstances. More specifically,
sections 2.2(f)(13) and 2.2(f)(16) of the Guidelines require direct
observation by a same gender collection site person when, respectively:
(1) the temperature of a specimen falls outside a prescribed range, thus
giving rise to a reason to believe that the employee may have altered or
substituted the specimen, or (2) whenever there is reason to believe
that a particular individual may alter or substitute the specimen to be
provided, thus necessitating that a second specimen be obtained. Based
on the Union's explanation, we find that the proposal would not affect
the Agency's ability to restrict an employee's privacy in the
circumstances required by the Guidelines. /6/
Finally, using the framework set out in Department of Education, we
find it unnecessary to determine whether the proposal directly
interferes with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute. We find that even if
the proposal directly interferes with the exercise of that right, the
proposal is negotiable as an appropriate arrangement under section
7106(b)(3) of the Statute. In reaching this result, we note, initially,
that where a union indicates that a proposal is designed to offer
benefits or protections for employees, we will assess whether the
proposal constitutes a negotiable appropriate arrangement under section
7106(b)(3) of the Statute. To determine whether a proposal constitutes
an appropriate arrangement, we must decide whether the proposal is
intended to be an arrangement for employees adversely affected by the
exercise of a management right, and whether the proposal is appropriate
because it does not excessively interfere with the exercise of a
management right. National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
The Union states that the proposal is designed to alleviate the
adverse effects on employees' privacy interests resulting from the
administration of drug tests. As such, we find that the proposal is
intended to be an arrangement. We further find, after balancing the
competing interests of employees and the Agency, that the interests of
the employees are of greater significance and outweigh those of the
Agency. Specifically, the benefits to employees that would inure under
the proposal relate to the protection of personal privacy. We view
personal privacy to be of paramount concern, particuarly in light of the
requirement for individual privacy contained in the Executive Order. In
contrast, we find that only a limited burden would be imposed on the
exercise of management's right to administer its drug testing program.
Any interference with the exercise of management's right, therefore, is
minimal. Accordingly, we find that the proposal is a negotiable
appropriate arrangement. See Department of Education, 38 FLRA at 1099,
in which we reached a similar result.
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
C. Any "positive" results will again be verified by a 2nd Gas
Chromatography/Mass Spectrometry Test (GC/MST). (Only the
underlined portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 4 is nonnegotiable because it
interferes with management's right under section 7106(a)(1) of the
Statute to determine its internal security practices. The Agency notes
that under Rock Island I, 30 FLRA at 1059, the determination of the
methods and equipment to be used in drug testing is an exercise of
management's right to determine its internal security practices.
The Agency further argues that proposals that incorporate specific
regulatory requirements into negotiated agreements, thereby establishing
substantive contractual limitations on agencies' discretion to exercise
their rights, are nonnegotiable. The Agency acknowledges, in this
connection, that the wording of Proposal 4 follows section 2.4(f) of the
Guidelines, which authorizes the use of the gas chromatography/mass
spectrometry (GC/MS) technique to confirm all initial positive drug test
results. The Agency argues, however, that as the proposal would
incorporate into the parties' agreement the requirement to use a
specific technique contained in the Guidelines, the proposal would
establish a contractual obligation with which the Agency would have to
comply. The Agency argues that if the provisions of the Guidelines were
revised or eliminated, the Agency would nonetheless have to comply with
the contractual limitation, thereby substantively limiting the Agency's
discretion to determine its internal security practices.
2. Union
The Union states that the intent of Proposal 4 is to inform employees
of the second step in the "taking and testing of urine specimens." Union
Response at 5. The Union also states that the intent of the proposal is
to ensure that a reliable test is used in order to guard against
inaccurate results. The Union asserts that this would be accomplished
by requiring that the Agency use the best technology available. The
Union also states that the proposal is drafted to "track" the Guidelines
and the Medical Review Officer Manual. Id. Additionally, the Union
asserts that the proposal is drafted to reflect the Agency's own drug
testing procedures which also require the use of the GC/MS test to
confirm initial positive drug test results.
B. Analysis and Conclusions
We find that the proposal directly interferes with the Agency's right
to determine its internal security practices under section 7106( a)(1)
of the Statute. However, we also find that the proposal constitutes a
negotiable appropriate arrangement under section 7106(b)( 3) of the
Statute.
Proposal 4 requires that any positive test result will be verified by
a second gas chromatography/mass spectrometry (GC/MS) test. Initially,
we note that the proposal references a "2nd" GC/MS test. However, as
both parties argue the applicability of the Guidelines, we assume for
purposes of this decision that the GC/MS test referenced in the proposal
is the technique used to test an initial positive result, and that the
proposal is not intended to require that there be two GC/ MS tests.
Section 2.4(f)(1) of the Guidelines requires that '(a)ll specimens
identified as positive on the initial test shall be confirmed using gas
chromatography/mass spectrometry (GC/MS) techniques . . . ." 53 Fed.
Reg. 11983. The Agency argues that by incorporating a specific
technique into the parties' agreement, with which the Agency would have
to comply, the proposal impermissibly imposes a substantive limitation
on the exercise of the Agency's right to determine its internal security
practices. We agree.
As we found in connection with Proposal 1, proposals that limit the
range of management's determination as to the methods and equipment that
are used to conduct drug tests directly interfere with management's
right to determine its internal security practices by establishing
substantive criteria governing the exercise of that right. Proposal 4
specifies the particular technique that the Agency will use to confirm
initial positive test results. In this manner, we note that Proposal 4
is more restrictive than the second sentence of Proposal 1 which
required the Agency to use whatever methods and equipment are specified
in the Guidelines. As the Agency argues, management would be required
to use the technique specified in Proposal 4 for the duration of the
parties' agreement, notwithstanding any revision of section 2.4( f)(1)
of the Guidelines. We find that as the proposal would require the use
of a particular technique for the duration of the parties' agreement,
the proposal established a substantive criterion on the exercise of the
Agency's right to determine its internal security practices.
However, we further find that the proposal constitutes a negotiable
appropriate arrangement for employees adversely affected by the exercise
of that management right.
The Union states that the intent of the proposal is to ensure that a
reliable test is used to guard against inaccurate test results. To this
end, the Union states that the proposal requires the Agency to use the
best technology available. We find that the proposal thus constitutes
an arrangement for employees adversely affected by management's right to
determine its internal security practices.
We further find that the proposal does not excessively interfere with
the exercise of management's right. The proposal concerns confirmatory
testing of specimens that initially test positive. Employees who test
positive may be subject to various personnel actions, including removal
from a sensitive position. See section 5 of Executive Order 12564.
Additionally, those employees also may be subject to disciplinary
action. Clearly, it is in the interest of employees to ensure that the
best available technology is used for the confirmatory testing process.
The risk of inaccurate results, with its attendant negative
consequences, thus would be minimized by the use of the GC/MS technique.
Therefore, we view the benefits to employees under the proposal to be
significant. In contrast, the effect on the Agency would be minimal.
The Agency is already required to use the GC/ MS technique under section
2.4(f)(1) of the Guidelines. There has been no assertion that a better
technique is presently available that could be used by the Agency or
that there is an impending change in the requirements of the Guidelines.
If the requirement to use the GC/MS technique set forth in the
Guidelines were to be changed, however, the Agency, at most, would be
required to use the GC/MS only for the duration of the parties'
agreement. Also, nothing in the proposal would prevent the Agency from
using additional confirmatory techniques, as appropriate. On balance,
we conclude that the proposal does not excessively interfere with the
Agency's right to determine its internal security practices.
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
D. If sufficient volume of urine is not able to be provided
within a reasonable period of time on the appointed day, the
selectee may return on the next day until the necessary amount is
voided.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 5 is nonnegotiable because it is
inconsistent with the Guidelines and interferes with management's right
to determine its internal security practices under section 7106(a)(1) of
the Statute.
The Agency argues that Proposal 5 is inconsistent with the
instructions contained in section 2.2(f)(10) of the Guidelines that a
collection site person must follow when an employee is unable to provide
at least 60 milliliters of urine. The Agency argues that by allowing
employees to return the following day to produce a urine specimen of
sufficient size, employees would have the opportunity to purge
themselves of an illicit drug so as to test negative on the day of the
test. The Agency states that allowing employees to return the next day
would frustrate the purpose of the drug testing program, which is to
detect illegal drug users, and that the proposal thereby interferes with
the Agency's right to determine its internal security practices.
The Agency also views the proposal as essentially allowing a type of
split sample if an employee provides a portion of the sample on one day
and then is permitted to return the next day to provide an additional
sample. The Agency argues that such a split sample is inconsistent with
the "Medical Review Officer Manual: A Guide to Evaluating Urine Drug
Analysis" and the Guidelines.
2. The Union
The Union states that Proposal 5 is intended to assure that an
adequate amount of urine is collected for analysis. The Union states
that the proposal "does not preclude additional measures such as those
described in the HHS Guidelines." Petition for Review at 3. The Union
also asserts that the instructions in the final Guidelines and the
Medical Review Officer Manual are advisory and not mandatory. Further,
the Union maintains that allowing employees to return the following day
to produce a urine specimen of sufficient size would not provide enough
time for the employees to purge themselves of illegal drugs and avoid
the detection of such drugs in their bodies because what is being tested
are metabolites, or indicators of drug use that "remain in the system
for days, weeks, even months after ingestion of a drug." Union Response
at 14.
B. Analysis and Conclusions
Proposal 5 would require the Agency to permit employees who are being
tested for illegal drug usage to return the next day for testing when
they cannot provide a urine specimen of sufficient volume.
Proposal 5 is virtually identical to Provision 4 found nonnegotiable
in American Federation of Government Employees, Local 1808 and
Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA
1439, 1445 (1990) (Member Talkin dissenting, as to other matters)
(Sierra Army Depot). In that case we found that by providing for an
employee who was unable to supply a urine sample of sufficient volume to
return the next day, the provision at issue was inconsistent with
section 2.2(f)(10) of the Guidelines, which provides that the employee
may be given liquid to drink and that the collection site person is to
contact the appropriate authority for guidance. Because Proposal 5
similarly allows an employee who is unable to provide a urine sample of
sufficient volume to leave the collection site and return the next day,
rather than to remain while additional fluids are consumed and until
guidance is received from an appropriate authority, the provision is
inconsistent with section 2.2(f)(10) of the Guidelines.
Accordingly, consistent with our decision in Sierra Army Depot, we
find that Proposal 5 is inconsistent with 2.2(f)(10) of the final
Guidelines, which previously have been found to be Government-wide
regulations. Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island
II, 33 FLRA at 438-39. Therefore, the proposal is outside the duty to
bargain under section 7117(a)(1) of the Statute. Inasmuch as Proposal 5
is inconsistent with a Government-wide regulation and is nonnegotiable
under section 7117(a)(1) of the Statute, we need not consider the other
arguments raised by the parties.
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
E. The collection, handling, and transportation of all
specimens will be in accordance with the HHS Strict Chain of
Custody Procedures.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 6 is "ambiguous" and, unless
clarified by the Union, the petition for review as to this proposal
should be dismissed. The Agency argues that the word "strict" in the
proposal subjects the proposal to more than one interpretation. The
Agency asserts that if the proposal intends that the collection,
handling and transportation of urine specimens be done in accordance
with the chain of custody procedures of the Guidelines, "the proposal
would be negotiable." Statement of Position at 13. On the other hand,
the Agency asserts that if, by the term "strict," the proposal intends
to hold the Agency to a higher standard than provided in the Guidelines,
the proposal would interfere with management's right under section
7106(a)(1) to determine the internal security practices of the Agency.
2. Union
The Union states that the intent of Proposal 6 is to incorporate the
procedures of the Guidelines. The Union further states that the
proposal is "worded" to "reflect whatever is in the applicable
regulations(.)" Union Response at 6.
B. Analysis and Conclusions
The Agency asserts that if Proposal 6 intends that the collection,
handling and transportation of urine specimens be done in accordance
with the chain of custody procedures of the Guidelines, the proposal
would be negotiable. The Union states that the intent of the proposal
is to incorporate the procedures of the Guidelines, and is "worded" to
"reflect whatever is in the applicable regulations." Id. As nothing in
the record indicates a contrary intent, we find that Proposal 6 is
designed to require the Agency to do nothing more or less than to adhere
to the chain of custody procedurs in the Guidelines. Given this
interpretation of the proposal, on which basis the Agency concedes the
proposal is negotiable, we find that Proposal 6 is not in dispute.
Accordingly, we will dismiss the petition for review as to Proposal 6.
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
F. The authorized collection agent will collect all drug
testing specimens. (Only the underlined portion is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 7 is nonnegotiable under section
7106(a)(2)(B) of the Statute because it interferes with management's
rights to assign work and determine the personnel by which Agency
operations will be conducted.
The Agency states that there may be several collection site persons
at the collection site, in addition to the authorized collection agent
specified in the proposal. By specifying that only the collection agent
can collect urine specimens, the Agency argues that the proposal
restricts the exercise of management's rights. The Agency notes that
the Authority consistently has held that proposals that assign specific
duties to particular individuals interfere with management's right to
assign work under 7106(a)(2)(B) of the Statute and, therefore, are
nonnegotiable. The Agency argues that a similar result should be
reached here.
2. Union
The Union contends that the proposal does not require management to
assign specific duties to particular individuals and, therefore, that
the proposal is a negotiable procedural arrangement. The Union states
that Proposal 7 contains the same procedure prescribed in the Guidelines
and the Agency's own policy. The Union further states that an
authorized agent is "one who is officially designated by the agency to
collect the specimens(,)" and that the proposal seeks "to have only duly
designated personnel . . ." perform the collection task. Id. at 17, 18.
The Union adds that the proposal is an "obvious safeguard . . ." to
avoid compromising test results. Id. at 18.
B. Analysis and Conclusions
In Department of the Army, 42 FLRA No. 35, we found an identical
proposal to be within the duty to bargain. We found that that proposal
did not interfere with the Agency's right to assign work. We further
noted that section 2.2 of the Guidelines sets forth the standards to
which agencies must adhere in establishing procedures governing the
handling and transportation of urine specimens from one authorized
individual to another. We found there, as we do here, that the proposal
would not require the agency to assign specific duties to particular
individuals or prescribe the identity or qualifications of the
individuals authorized to make collections. We further found, as we do
here, that the proposal did not prevent the agency from adhering to the
standards contained in the Guidelines. We concluded that the proposal
was within the duty to bargain.
We reach the same result here. Accordingly, for the reasons more
fully set forth in Department of the Army, we conclude that Proposal 7
is negotiable.
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposals 1, 3, 4 and 7. /7/ The petition for
review as to Proposals 2, 5 and 6 is dismissed.
(1) The Authority directed the parties to file supplemental briefs
addressing the applicability of Federal court decisions, issued during
the pendency of this case, which involved Federal agency drug testing
programs. Neither party filed a supplemental brief.
(2) Section 2 of the Executive Order, among other things, requires
each Executive agency to develop a plan for achieving a drug-free
workplace.
(3) Although it referred to section "2.1(e)" of the Guidelines, the
Agency obviously intended to refer to section 2.2(e) of the Guidelines.
(4) In Department of Education, the Authority also reexamined the
proposal in Rock Island I on which the Agency now relies. 38 FLRA at
1096. As the Authority stated that it would no longer follow the
interpretation of that proposal, we will not address further the
Agency's argument here that Proposal 4 is to the same effect as the
proposal in Rock Island I.
(5) Section 2.2(e) of the Guidelines states as follows:
Procedures for collecting urine specimens shall allow individual
privacy unless there is reason to believe that a particular
individual may alter or substitute the specimen to be provided.
(6) We note that in American Federation of Government Employees,
AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot,
Herlong, California, 42 FLRA No. 35 (1991) (Department of the Army), we
found that an identically worded proposal was inconsistent with sections
2.2(f)(13) and (16) of the Guidelines. We reached that result based on
the fact that the intent of the proposal was to preclude direct
observation in circumstances where the Guidelines require such
observation.
(7) In finding these proposals negotiable, we make no judgment as to
their merits.
42 FLRA 542
42 FLRA NO. 35
AFGE, Local 1808 and Dept. of the Army, Sierra Army Depot, Herlong,
California, Case No. 0-NG-1631 (Decided September 27, 1991)
7105(a)(2)(E)
7106(a)(1)
7106(a)(2)(B)
7117(a)(1)
NEGOTIABILITY DETERMINATION
DRUG TESTING
FEDERAL WORKPLACE DRUG TESTING GUIDELINES
INTERNAL SECURITY PRACTICES
ASSIGN WORK
INCONSISTENT WITH GOVERNMENT-WIDE REGULATIONS
The appeal concerned the negotiability of six proposals involving the
implementation of the Agency's drug testing program. On a preliminary
matter, the Agency claimed that the petition for review was not properly
before the Authority and should be dismissed, arguing that the parties
at the level of recognition completed negotiations regarding the drug
testing program when they entered into a Memorandum of Agreement and the
Union, which is not the exclusive representative, is seeking review of
proposals that were disposed of in bargaining. The Authority rejected
the claim, finding that the conditions governing review of a
negotiability appeal have been met.
Proposal 4, which requires that drug tests be given in a sanitary,
secluded area that affords employees visual and auditory privacy was
found to be inconsistent with the Guidelines for Federal Workplace Drug
Testing (Guidelines), and, therefore, nonnegotiable.
Proposal 6, which states that the authorized collection agent will
collect all specimens, was found to not interfere with the right to
assign work, contract out or determine the personnel by which Agency
operations will be conducted, and is negotiable.
Proposal 8, which requires the Agency to destroy any employee records
concerning unconfirmed drug test results, was found to be inconsistent
with the Guidelines and FPM Supplement 293-31, and, therefore,
nonnegotiable.
Proposal 9, which provides that no employee shall be required to sign
any document associated with the drug testing program stating he or she
agrees or disagrees to be tested, was found to be nonnegotiable in that
it directly and excessively interferes with management's right to
determine the internal security practices under 7106(a)(1). Member
Talkin dissented.
Proposal 10, which provides that no bargaining unit employee will be
involved in any phase of the drug testing procedure, was found to be
nonnegotiable because it directly and excessively interferes with
management's right to assign work under 7106(a)(2)(B).
The first part of Proposal 11, which provides that the Employer will
not coerce or require employees to participate in voluntary drug testing
programs, was found to be negotiable in that it does not conflict with
Executive Order 12564 or interfere with the Agency's right to determine
internal security practices. The second sentence, which provides that
participation or non-participation in these programs will neither
advantage or disadvantage employees, was found to be outside the duty to
bargain because it was inconsistent with Executive Order 12564.
Case No. 0-NG-1631
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1808
(Union)
U.S. DEPARTMENT OF THE ARMY, SIERRA ARMY DEPOT HERLONG, CALIFORNIA
(Agency)
Before Chairman McKee and Members Talkin and Armendariz. /1/
This case is before the Authority based on a negotiability appeal
filed by the Union /2/ under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute). /3/ The
appeal concerns the negotiability of six proposals involving the
implementation of the Agency's drug testing program.
Proposal 4 requires that drug tests be given to employees in a
sanitary, secluded area that affords employees visual and auditory
privacy. The proposal, as explained by the Union, is inconsistent with
the Guidelines for Federal Workplace Drug Testing (Guidelines), 53 Fed.
Reg. 11970-11989 (1988). Therefore, the proposal is nonnegotiable under
section 7117(a)(1) of the Statute.
Proposal 6 states that the authorized collection agent will collect
all specimens. We find that the proposal does not interfere with
management's rights to assign work, contract out or determine the
personnel by which Agency operations will be conducted. We find the
proposal to be negotiable.
Proposal 8, which requires the Agency to destroy any employee records
concerning unconfirmed drug test results, is inconsistent with the
Guidelines and Federal Personnel Manual (FPM) Supplement 293-31 and,
therefore, is nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 9 would prevent the Agency from requiring employees to sign
any documents in which they agree or disagree to be tested for drug use.
We find Proposal 9 to be nonnegotiable because it directly and
excessively interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
Proposal 10 states that no bargaining unit employee will be involved
in any phase of the Agency's drug testing procedures. We find that the
proposal is nonnegotiable because it directly and excessively interferes
with management's right to assign work under section 7106( a)(2)(B) of
the Statute.
Proposal 11 states that the Agency will not coerce or require
employees to participate in voluntary drug testing programs and that
participation or non-participation in such programs will not advantage
or disadvantage employees. The first part of the proposal is
negotiable. The second part of the proposal is outside the duty to
bargain under section 7117(a)(1) of the Statute because it is
inconsistent with Executive Order 12564.
The Agency claims that the petition for review is not properly before
the Authority and should be dismissed as moot. The Agency argues that
the parties at the level of exclusive recognition, namely, Local 1808
and Sierra Army Depot, completed negotiations regarding the Agency's
drug testing program when they entered into a Memorandum of Agreement
(MOA). The Agency asserts that the Union, which itself is not the
exclusive representative, is now seeking review of proposals that were
disposed of at the bargaining table.
The Agency notes that during the course of negotiations, Local 1808
sought to bargain over the proposals that are the subject of the instant
petition. The proposals were declared nonnegotiable by the Agency and,
according to the Agency, there was no request for a written allegation
of nonnegotiability at that time. Instead, the parties continued to
negotiate and reached agreement culminating in the MOA. The Agency
argues that in negotiating the MOA, Local 1808 agreed to alternative
language in lieu of the proposals declared nonnegotiable, thereby
rendering those proposals moot.
After the parties reached agreement, the Agency head disapproved
several provisions of the MOA while conducting a review under section
7114(c) of the Statute. Those provisions, which differ from the
proposals in this case, were appealed to the Authority by the Union in
Case No. 0-NG-1617, and were later resolved by the Authority in American
Federation of Government Employees, Local 1808 and U.S. Department of
the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439 (1990)
(Member Talkin dissenting in part) (Sierra Army Depot). The Agency
notes that at the same time the appeal in Sierra Army Depot was filed
with the Authority, the Union requested a written allegation of
nonnegotiability from the Agency as to the proposals that were declared
nonnegotiable during bargaining. In response, the Agency submitted a
written allegation of nonnegotiability. Thereafter, the Union filed the
instant petition for review with regard to those proposals. As noted,
the Agency maintains that this petition for review is moot and,
therefore, not properly before the Authority.
The Agency also states that a reopener provision contained in the MOA
would not operate to reopen negotiations over the instant proposals.
Instead, the Agency states that the reopener operates only if there is a
change in law or regulation regarding the Agency's drug testing program.
The Agency asserts that as there has been no change in law or
regulation, the reopener would not apply, and any decision issued by the
Authority would constitute an advisory opinion.
In response to the Agency's contentions, the Union argues that the
agreement reached by the local parties constituted an "interim
agreement" and that the local parties reached agreement only on matters
"not declared outside the duty to bargain by the employer." Union
Response at 10, 11 (emphasis omitted). Further, the Union argues that
by entering into the MOA, the Union did not waive or forfeit the right
to bargain or appeal the Agency's declaration of nonnegotiability, and
that the Union did not otherwise withdraw or "'exchang(e)'" the disputed
proposals. Id. at 14. The Union also argues that there was no
understanding or agreement that the MOA "was the extent of the area the
(U)nion wished to bargain over(.)" Id. at 16.
We reject the Agency's contention that the appeal is moot. There is
no dispute that the Agency declared the proposals contained in the
petition for review to be nonnegotiable. The Agency is now raising
additional arguments as to whether the MOA constituted the complete
agreement of the parties as to the Agency's drug testing plan and the
effect of the reopener on subsequent negotiations.
It is well established that, where the conditions for review of a
negotiability appeal have been met, a union is entitled to a decision
from the Authority on whether disputed proposals are negotiable under
the Statute, even though additional issues may exist, such as those
relating to an agency's obligation to bargain under the terms of an
agreement. See American Federation of Government Employees, Local 2736
v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); National Federation of
Federal Employees, Local 341 and U.S. Department of the Interior, Bureau
of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39
FLRA 1272, 1275 (1991). Here, the Agency declared that the proposals
were nonnegotiable. The Union disagreed with the Agency's allegation
and filed a petition for review. The conditions governing review of a
negotiability appeal, set forth in section 2424.1 of our Rules and
Regulations, have been met. Consequently, we conclude that the petition
for review is properly before us. To the extent that the Agency raises
issues concerning the effect of the MOA on the Agency's obligation to
bargain, those issues should be resolved in other, appropriate
proceedings. See 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,
306 n.6 (1984).
Tests will be given in a sanitary, secluded area which provides the
employee with both visual and auditory privacy. (Emphasis in original;
entire proposal is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 4 is nonnegotiable because it
conflicts with Executive Order 12564 and the Guidelines. The Agency
also argues that the proposal excessively interferes with management's
right to determine its internal security practices under section 7106(
a)(1) of the Statute.
More specifically, the Agency states that section 4(c) of the
Executive Order allows for individual privacy unless there is reason to
believe that an individual may alter or substitute the specimen. The
Agency argues that by precluding management from assigning an observer
in the circumstances allowed by the Executive Order, the proposal is
outside the duty to bargain. The Agency notes that Proposal 4 has the
same effect as a proposal found nonnegotiable in National Federation of
Federal Employees, Local 15 and Department of the Army, Armament
Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046
(1988) (Rock Island I), remanded as to other matters sub nom.
Department of the Army, U.S. Army Armament, Munitions and Chemical
Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25,
1988) (Order), decision on remand, 33 FLRA 436 (1988) (Rock Island II),
rev'd in part and remanded as to other matters sub nom. Department of
the Army, U.S. Army Aberdeen Proving Ground Installation Support
Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving
Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III).
The Agency further argues that the proposal is inconsistent with
section 2.2(e) of the Guidelines, which restates section 4(c) of the
Executive Order, and also with section 2.2(f)(14) of the Guidelines.
/4/ The Agency argues, as to those sections of the Guidelines, that
direct observation is permitted when there is reason to believe that an
individual may alter or substitute a specimen. By prohibiting direct
observation in any circumstance, the Agency argues, the proposal is
inconsistent with the Guidelines. Additionally, the Agency asserts that
the proposal is inconsistent with section 2.2(f)(9) of the Guidelines,
which permits the use of a public rest room as a collection site. The
Agency contends that by requiring tests to be provided in a sanitary and
secluded area, the proposal would prohibit the Agency from conducting
tests in a public rest room when necessary.
The Agency also argues that the proposal interferes with management's
right to determine its internal security practices by subjecting the
Agency's choice of an internal security technique to bargaining. The
Agency states that the technique of direct observation is necessary,
under certain circumstances, to ensure the integrity of the drug testing
process.
Finally, in its supplemental brief, the Agency responded to the
Union's assertion that Proposal 4 should be read in conjunction with the
Union's other proposals, particularly with Proposal 1. Proposal 1,
which was withdrawn, provided, in part, that employees would not be
subject to drug testing unless there was a reasonable, articulable
suspicion to believe that the employee was under the influence of
illegal drugs. The Agency argues that if Proposal 4 is to apply only
when there is reasonable, articulable suspicion that an individual is
under the influence of illegal drugs, the proposal would not permit the
Agency to engage in random drug testing and, as such, the proposal is
inconsistent with various court decisions and is outside the duty to
bargain.
2. Union
The Union states that Proposal 4 should be read in conjunction with
Proposal 1 and, when so read, the proposal is consistent with the
Executive Order. According to the Union, allowing for privacy when a
sample is provided, unless there is a reason to believe that an employee
may be abusing illegal substances, "duplicates" section 4(c) of the
Executive Order and "is not inconsistent with regulation." Union
Response at 22.
B. Analysis and Conclusions
As explained below, we find that the proposal is not inconsistent
with the Executive Order. However, the proposal is nonnegotiable under
section 7117(a)(1) of the Statute because it is inconsistent with the
Guidelines.
The Authority previously has addressed the requirements of section
4(c) of Executive Order 12564. That section provides, in relevant part,
that "(p)rocedures for providing urine specimens must allow individual
privacy, unless the agency has reason to believe that a particular
individual may alter or substitute the specimen to be provided." In
American Federation of Government Employees, Department of Education
Council of AFGE Locals and U.S. Department of Education, Washington,
D.C., 38 FLRA 1068, 1094 (1990) (Member Talkin dissenting, in part)
(Department of Education), decision on reconsideration, 39 FLRA 1241
(1991), petition for review filed sub nom. United States Department of
Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), the Authority
found that section 4(c) "mandates that agencies allow employees
individual privacy when providing urine samples." Id. at 1094. The
Authority also found that "(a)n agency may limit an employee's privacy
only if the agency has reason to believe that the employee will attempt
to alter or substitute his or her sample." Id. /5/ Subsequently, in
National Federation of Federal Employees, Council of GSA Locals and
General Services Administration, 41 FLRA 728, 733 (1991) (GSA), the
Authority found that section 4(c) of the Executive Order does not
mandate direct observation in any circumstances, but simply provides an
exception to the requirement that employees be afforded privacy. The
exception that is stated in section 4(c) is where an agency has reason
to believe that an employee may alter or substitute a specimen.
The Agency argues that the proposal is inconsistent with section 4(
c) by precluding management from assigning an observer in the
circumstances permitted by the Executive Order. We reject this
contention. As the Executive Order does not require observation in any
circumstances, the proposal is not inconsistent with section 4(c). For
the same reason, we reject the Agency's contention that the proposal is
inconsistent with section 2.2(e) of the Guidelines. /6/ That section,
which essentially restates section 4(c) of the Executive Order, also
does not require direct observation during the administration of a drug
test. Therefore, the proposal is not inconsistent with that section of
the Guidelines.
We find, however, that the proposal is inconsistent with sections
2.2(f)(13) and (16) of the Guidelines. Those sections provide as
follows:
(f) Integrity and Identity of Specimen. . . . The following
minimum precautions shall be taken to ensure that unadulterated
specimens are obtained and correctly identified:
(13) If the temperature of a specimen is outside the range of
32.5 (degrees) - 37.7 (degrees)C/90.5 (degrees) - 99.8 (degrees)
F, that is a reason to believe that the individual may have
altered or substituted the specimen, and another specimen shall be
collected under direct observation of a same gender collection
site person and both specimens shall be forwarded to the
laboratory for testing. . . .
(16) Whenever there is reason to believe that a particular
individual may alter or substitute the specimen to be provided, a
second specimen shall be obtained as soon as possible under the
direct observation of a same gender collection site person.
The proposal states that tests will be given in a sanitary and
secluded area that provides employees with visual and auditory privacy.
As explained by the Union, privacy would not be required when there is a
reason to believe that an employee "may be abusing illegal substances."
Union Response at 22. It is clear from the Union's statement that this
is the sole circumstance under which the Agency could forego the privacy
requirement. Sections 2.2(f)(13) and (16) of the Guidelines require the
collection of specimens under direct observation in certain defined
circumstances, however. More particularly, section 2.2(f)(13) provides
that if a specimen is outside a specified temperature range, that fact
constitutes a reasonable belief that an employee may have altered or
substituted the specimen. Under such circumstances, the Guidelines
require the collection of another specimen under the direct observation
of a same gender collection site person. Similarly, section 2.2(f)(16)
of the Guidelines requires that, in certain situations, second specimens
must be obtained under direct observation. Although Proposal 4 does not
specifically prevent the Agency from limiting an employee's privacy if
the Agency believes the employee may alter or substitute a specimen, we
find that the Union's explanation as to the limited circumstances under
which the Agency could forego the privacy requirement prevents the
Agency from conducting drug tests under direct observation where
required by the Guidelines. Thus, Proposal 4 is inconsistent with
sections 2.2(f)(13) and (16) of the Guidelines because the proposal
would allow direct observation only when there is reason to believe that
an employee may be abusing illegal substances.
Stated otherwise, Proposal 4 contemplates that privacy must be
provided during the administration of a drug test unless a determination
has been made that an employee may be abusing illegal substances.
However, there may be additional situations that could give rise to a
reasonable belief that an employee may alter or substitute a specimen
that are not based on an employee's suspected drug abuse, and the
proposal would require the Agency to provide both visual and auditory
privacy under such circumstances as well. Therefore, the Union's
assertion that the proposal is consistent with regulation must be
rejected.
The proposal here is distinguishable from both Department of
Education and GSA. In Department of Education, we found negotiable a
proposal stating that tests will be given in a sanitary and secluded
area that provides employees with privacy. Although the language of the
proposal in that case is similar to the language of Proposal 4, we reach
a different result here based on the differing meanings ascribed to each
proposal by the respective unions. In Department of Education, the
union stated that its intent was to implement the proposal consistent
with law, rule, and regulation and, further, that the requirement for
privacy contained in the proposal could be obviated if the agency had a
reasonable suspicion that an employee might attempt to invalidate or
falsify a specimen. We found that the union's explanation as to the
manner in which the proposal was intended to operate was consistent with
both the Executive Order and the Guidelines. We noted, particularly,
that the union's use of the term "reasonable suspicion" was consistent
with the term "reason to believe" as set forth in section 4(c) of the
Executive Order. We further found that the proposal did not "in any way
prevent the (a)gency from exercising its right to limit an employee's
privacy if it has a reason to believe that the employee will alter the
sample." Id. at 1095. In contrast, the proposal here would limit the
Agency's ability to dispense with the privacy requirement unless it
appears that an employee is "abusing illegal substances." Union Response
at 22. As we stated above, there are other circumstances, set forth in
the Guidelines, which require direct observation during the
administration of a drug test that are not contingent on an employee's
abuse of illegal drugs.
In GSA, the union proposal at issue specifically permitted
observation when collection site personnel had reason to believe that an
employee might alter or substitute a specimen based on criteria set
forth in an agency regulation. Although the inquiry focused on whether
the criteria contained in the regulation were consistent with law and
regulation, the proposal, unlike that present here, expressly referenced
the agency's ability to suspend the requirement for privacy where there
was reason to believe an employee might alter or substitute a specimen.
In conclusion, we find that the proposal is outside the duty to
bargain under section 7117(a)(1) of the Statute because it is
inconsistent with the Guidelines, which previously have been found to
constitute a Government-wide regulation. Aberdeen Proving Ground, 890
F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. As the proposal is
inconsistent with sections 2.2(f)(13) and (16) of the Guidelines, we
need not address the Agency's additional contention concerning section
2.2(f)(9) of the Guidelines, and the effect of the proposal on the
Agency's ability to conduct a drug test in a public rest room. It is
also unnecessary to address the Agency's contention that the proposal
interferes with the exercise of management's right to determine its
internal security practices.
The authorized collection agent will collect all drug testing
specimens.
A. Positions of the Parties
1. Agency
The Agency contends that the proposal should be dismissed because it
lacks clear meaning and intent. Alternatively, the Agency argues that
the proposal interferes with management's right to assign work under
7106(a)(2)(B) of the Statute. The Agency notes that the Guidelines
delegate certain responsibilities to collection site personnel and that
the Agency appoints its own employees as collection site personnel. The
Agency states that "(w)e want to be sure that Proposal 6 does not,
somehow, interfere with that authority." Statement of Position at 12.
The Agency also cites various Authority decisions finding that proposals
assigning specific duties to particular individuals interfere with an
agency's right to assign work.
In its supplemental submission the Agency argues that the proposal
does not constitute a negotiable appropriate arrangement under section
7106(b)(3) of the Statute. The Agency also references findings made by
the Authority in Rock Island I, 30 FLRA 1046, 1061-66 (1988) (Proposal
3), that a proposal regarding the use of qualified and certified test
personnel interfered with management's rights to assign work and
contract out under section 7106(a)(2)(B) of the Statute and with
management's right to determine the type of employees who perform work
under section 7106(b)(1) of the Statute. Although the Agency
acknowledges that in Aberdeen Proving Ground the court found that
proposal was nonnegotiable on the basis that it conflicted with the
Guidelines, rather than being inconsistent with the exercise of
management's rights, the Agency nonetheless states that "like the Rock
Island proposal, (Proposal 6) conflicts with the right to assign work,
to contract out, and to determine the type of employee to perform the
work." Agency's Supplemental Brief at 18.
2. Union
The Union explains that Proposal 6 requires that all drug testing
specimens be collected by "an authorized official and not just any
individual." Union Response at 28. According to the Union, the proposal
pertains to the protection of the chain of custody and employee privacy.
The Union adds that the proposal is similar to Proposal 3 in Rock
Island I, which constituted a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Proposal 6 requires that an authorized collection agent collect all
drug testing specimens. Contrary to the Agency, we find that the
proposal is sufficiently specific to enable us to resolve the
negotiability of the proposal and, further, that the proposal is
negotiable.
The Agency claims that the proposal interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute. We
disagree. 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 position the duties will be assigned. National Weather Service
Employees Organization and U.S. Department of Commerce, National Oceanic
and Atmospheric Administration, National Weather Service, 37 FLRA 392,
399 (1990) (National Weather Service). The proposal here simply
requires that drug testing specimens be collected by an authorized
collection agent. The proposal does not require the Agency to assign
specific duties to particular individuals or prescribe the identity or
qualifications of the individuals who are authorized to make
collections. For example, the Agency would be free to continue
assigning collection responsibilities to its own employees. Under these
circumstances, we find that the proposal does not directly interfere
with management's right to assign work under section 7106(a)( 2)(B) of
the Statute. /7/
Moreover, we find that the proposal requires no more than is required
by section 2.2 of the Guidelines. That section contains the standards
to which agencies must adhere in establishing procedures governing the
handling and transportation of urine specimens from one authorized
individual to another. See Department of Education, 38 FLRA at 1105.
The proposal contains no language that would prevent the Agency from
adhering to those standards. Additionally, to the extent that the
Guidelines require that authorized individuals handle specimens, the
Union's statement that the proposal is designed to ensure that "not just
any individual( )" collects specimens, Union Response at 28, is
consistent with the Guidelines.
Finally, we reject the Agency's reliance on Rock Island I for the
proposition that the proposal here, like Proposal 3 in Rock Island I,
interferes with management's rights to contract out under section 7106(
a)(2)(B) of the Statute and to determine the type of employees who
perform work under section 7106(b)(1) of the Statute. In Aberdeen
Proving Ground, the court declined to evaluate the effect of Proposal 3
on management's rights. Instead, the court found that the proposal,
which was designed to ensure that urinalysis testing was not performed
by unqualified or uncertified personnel, was inconsistent with the
Guidelines. The Authority's findings in Rock Island I, therefore, no
longer support the arguments raised by the Agency. Additionally, other
than setting forth a bare assertion, the Agency has not shown or argued
the applicability of these additional management rights to Proposal 6.
However, even if the Agency had made such a showing, we would
nonetheless find that the Agency's arguments are misplaced. First,
there is nothing in the plain wording of the proposal that addresses any
aspect of agency action involving contractors. Second, as the proposal
does not prescribe the identity or qualifications of the individuals
authorized to make collections or require that particular individuals be
assigned specific duties, the proposal would not interfere with the
Agency's right to determine the personnel who will conduct Agency
operations.
The agency shall destroy any employee records concerning
non-confirmed test results.
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 8 is not sufficiently clear in its
application to the Agency and, therefore, should be dismissed. The
Agency states that although the proposal appears to refer to the
destruction of unconfirmed positive test results, the Agency "does not
receive any positive test result until the test is confirmed and the
Medical Review Officer finds that the tests are positive. . . .
Therefore, there will be no records for the activity to destroy."
Statement of Position at 13.
In the alternative, the Agency argues that the proposal is
nonnegotiable because it is inconsistent with the Guidelines. The
Agency notes that section 2.4(m) of the Guidelines requires all drug
testing laboratories to maintain and make available for at least 2 years
documentation of all aspects of the drug testing process. The Agency
argues that Proposal 8 would conflict with Section 2.4(m) of the
Guidelines if interpreted to mean that "the agency('s) (Army) drug
testing laboratories would have to destroy such records." Id. (emphasis
in original).
2. Union
The Union states that Proposal 8 was drafted during the period when
the Agency was involved in handling drug-testing records, including
unconfirmed positive results. The Union states that "notwithstanding
the fact that the (A)gency has changed its program to preclude such an
occasion, if there are no records present, then the proposal cannot
violate an (A)gency policy or regulation." Union Response at 30.
The Union further argues that the proposal is consistent with the
Guidelines, which require that the Agency "not keep such records as are
the object of the proposal." Id. The Union also maintains that the
proposal does not involve any management right and that none has been
argued by the Agency.
B. Analysis and Conclusions
Although there is some dispute between the parties as to the
applicability of the proposal in the face of the Agency's claim that it
does not receive unconfirmed test results, the parties have addressed
the substance of the proposal, and we shall do so as well.
Proposal 8 is virtually identical to a proposal that was found
nonnegotiable in Department of Education, 38 FLRA at 1109-12. We found
that the proposal in that case was inconsistent with the requirement in
FPM Supplement 293-31 that agencies retain records concerning the
results of laboratory drug testing in an Employee Medical File System.
We also found that the proposal was inconsistent with the requirements
in the Guidelines concerning the reporting of test results and the
maintenance of records on urinalysis testing. We found, specifically,
that unconfirmed initial test results must be characterized and reported
as negative test results, and that requiring agencies to destroy
negative results would prevent agencies from complying with the
Guidelines' reporting requirements. As both FPM Supplement 293-31 and
the Guidelines are Government-wide regulations, we concluded that the
proposal was outside the duty to bargain under section 7117(a)(1) of the
Statute.
As Proposal 8 would require the Agency to destroy non-confirmed, or
negative test results, we find, for the reasons more fully discussed in
Department of Education, that Proposal 8 is nonnegotiable.
No employees shall be required to sign any document associated with
the drug abuse testing programs stating he or she agrees or disagrees to
be tested.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 9 directly interferes with
management's right under section 7106(a)(1) of the Statute to determine
its internal security practices. The Agency states that, as part of its
drug testing program, it has developed a "'Condition of Employment' form
that requires certain employees to adhere to the terms of the drug
testing program as a continuing condition of employment." Statement of
Position at 14. The Agency argues that proposals similar to Proposal 9
were found nonnegotiable in National Association of Government
Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31
FLRA 62 (1988) (Pueblo Depot Activity) and American Federation of
Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31
FLRA 45 (1988) (Tooele Army Depot) and, as Proposal 9 "has the same
effect . . ." Proposal 9 should also be found nonnegotiable. Statement
of Position at 14. The Agency also argues that Proposal 9 is not an
appropriate arrangement under section 7106(b)(3) of the Statute because
it excessively interferes with the exercise of management's right to
determine its internal security practices.
In its supplemental submission, the Agency responds to a
constitutional issue raised by the Union by stating that the issue has
been "settled by the courts." Agency's Supplemental Brief at 18.
2. The Union
The Union acknowledges that the Authority found that an identical
proposal in Tooele Army Depot was nonnegotiable. However, the Union
disagrees with that decision and urges the Authority to reconsider its
policy in this area. The Union states that its proposal, like that at
issue in Tooele Army Depot, "goes to the forced agreement to be tested
as opposed to . . . a statement that the employee acknowledges that they
may have to submit to testing." Union Response at 30 (emphasis in
original). The Union asserts that forcing an employee to agree to
testing involves significant constitutional questions regarding freedom
of expression and speech. The Union states that its proposal "merely
bars the agency from forcing agreement from an employee." Id. at 31.
B. Analysis and Conclusions
We find that Proposal 9 is nonnegotiable because it directly and
excessively interferes with management's right under section 7106(a)(1)
of the Statute to determine its internal security practices.
Before addressing the merits of the proposal, we note that although
both parties agree that Proposal 9 is to the "same effect" or
"identical" to a proposal in Tooele Army Depot, Statement of Position at
14, Union Response at 30, the language of Proposal 9 differs in one
respect from the language of the proposal in Tooele Army Depot. The
language in Proposal 9 provides that an employee will not be required to
sign a document agreeing or disagreeing "to be tested." The proposals in
Tooele Army Depot and the subsequent cases discussed below are somewhat
different in that they linked the signing of a document to an employee's
agreement or disagreement with the agency's drug testing program. As
the parties have agreed that Tooele Army Depot is applicable and/or
controlling, however, and as the Authority's analysis in Tooele Army
Depot and subsequent cases is applicable here, we will address Proposal
9 as the parties have agreed it should be interpreted.
In Tooele Army Depot, 31 FLRA at 51-57, and Pueblo Depot Activity, 31
FLRA at 65-67, the Authority found that proposals preventing an agency
from requiring employees to sign documents agreeing to comply with the
agency's drug testing program directly and excessively interfered with
the agency's right to determine its internal security practices under
section 7106(a)(1) of the Statute. The Authority subsequently
reaffirmed Tooele Army Depot in Department of Education, 38 FLRA at
1116-18 and American Federation of Government Employees, Local 738 and
U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203,
1216-19 (1990) (Member Talkin dissenting, in part). The Authority found
that proposals that would preclude an agency from requiring that
employees agree to submit to testing for the use of illegal drugs as a
condition of their employment in critical positions directly interfere
with management's right to determine its internal security practices.
Additionally, the Authority found that such proposals excessively
interfere with management's right to determine its internal security
practices and, therefore, do not constitute appropriate arrangements
within the meaning of section 7106(b)(3) of the Statute.
Proposal 9 would prevent the Agency from requiring certain employees
to sign a "Condition of Employment" form in which they agree to submit
to testing under the Agency's drug testing program. As such, the
proposal has a potentially greater effect on the ability of the Agency
to conduct its drug testing program than did the proposals found to be
nonnegotiable in Tooele Army Depot. Consequently, we find that Proposal
9 directly and excesively interferes with the exercise of the Agency's
right to determine its internal security practices. /8/
No bargaining unit employee will be involved in any phase of the drug
testing procedures.
A. Positions of the Parties
1. Agency
The Agency maintains that Proposal 10 is subject to more than one
interpretation. The Agency contends that, depending on how Proposal 10
is interpreted, it either: (1) interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute; or (2) is
inconsistent with Executive Order 12564 and directly and excessively
interferes with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.
With regard to its first argument, the Agency asserts that the
proposal would prevent the assignment of work relating to any phase of
the drug testing process. By way of example, the Agency states that it
would not be able to assign an employee to serve as a collection site
person under section 2.2(f)(9) of the Guidelines for the purpose of
either accompanying an individual into or securing a public rest room
for use as a specimen collection site.
With regard to its second argument, the Agency states that the
proposal could be read to preclude the testing of employees under any
circumstances. The Agency argues that the proposal would, thereby,
conflict with the Executive Order and directly and excessively interfere
with management's right to determine its internal security practices.
2. Union
The Union states that Proposal 10 "is not intended to apply to
employees as subjects of testing; it is only meant in the
administration and management of the testing process itself." Union
Response at 33 (emphasis in original). The Union explains that the
proposal seeks to protect against "conflict-of-interest situations" in
which employees might be "subject to improper intervention in the drug
testing process(,)" and to prevent employees "from being pitted against
one another with possible resulting false incrimination, or at the
least, false accusations." Id. at 32.
B. Analysis and Conclusions
We find that Proposal 10 directly and excessively interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute. Therefore, it is nonnegotiable.
The plain wording of Proposal 10 states that unit employees will not
be involved in any phase of drug testing procedures. The Union states
that the proposal is not intended to apply to employees as subjects of
testing but, rather, is intended to apply to the administration and
management of the drug testing process. As so interpreted, the Agency
concedes the proposal would not prevent it from lawfully requiring
employees to undergo drug tests. Consequently, to the extent that the
Agency has raised arguments concerning an alternative interpretation of
the proposal, those arguments need not be considered further. Instead,
we will address only the Agency's argument that the proposal directly
and excessively interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute.
In this connection, the Agency argues that the proposal would prevent
the Agency from requiring unit employees to perform any work assignments
pertaining to collection procedures that are contained in section 2.2 of
the Guidelines. As we stated previously, management's right to assign
work under section 7106(a)(2)(B) of the Statute includes the right to
determine the particular duties that will be assigned, when work
assignments will occur, and to whom or what position the duties will be
assigned. National Weather Service, 37 FLRA at 399. Based on the
Agency's uncontradicted assertion that the proposal would prevent the
Agency from assigning duties to unit employees, we find that Proposal 10
directly interferes with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute.
This finding does not end the inquiry, however. Where a union
alleges that a proposal is designed to offer benefits or protections for
employees, we will assess whether the proposal constitutes a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute. To
determine whether a proposal constitutes an appropriate arrangement, we
must decide whether the proposal is intended to be an arrangement for
employees adversely affected by the exercise of a management right, and
whether the proposal is appropriate because it does not excessively
interfere with the exercise of a management right. National Association
of Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA 24, 31-33 (1986). For the reasons set forth below, we conclude
that the proposal excessively interferes with the exercise of
management's right to assign work.
The Union states that the proposal is designed to prevent situations
in which unit employees might be compromised by their drug testing
assignments in their dealings with other unit employees. We find that
the proposal thus constitutes an arrangement for employees adversely
affected by management's right to assign work.
We further find, after balancing the competing interests of the
Agency in being able to assign work and the interests of employees in
ensuring that they are not placed in compromising situations, that the
proposal would excessively interfere with the exercise of management's
right to assign work. It is clear that unit employees who are called on
to assume drug testing duties would be placed in sensitive, or at the
very least, awkward positions if such duties involved fellow unit
employees. At the same time, however, the proposal would prevent the
Agency from assigning duties pertaining to any phase of the Agency's
drug testing procedures to unit employees. The restriction placed on
the Agency's ability to assign work is absolute. The proposal contains
no exception for any drug testing activity with which unit employees may
become involved. The Agency's ability to assign work would be seriously
impaired under the proposal. On balance, therefore, we conclude that
the proposal excessively interferes with the Agency's right to assign
work.
The employer will not coerce or require employees to participate in
voluntary drug testing programs. Participation or non-participation in
these programs will neither advantage or disadvantage employees.
A. Positions of the Parties
1. Agency
The Agency contends that the meaning of the term voluntary in the
first sentence of the proposal is not clear, given the different
meanings ascribed to that term in other Union proposals, including some
that were later withdrawn by the Union. The Agency states, with regard
to voluntary drug testing programs under section 3(b) of Executive Order
12564, that it "does not coerce or require any employee to participate
in the voluntary testing program established under the Executive Order."
Statement of Position at 16. However, in view of the Union's general
use of the term "voluntary" in other proposals, the Agency maintains
that the first sentence of Proposal 11 is inconsistent with the
Executive Order and excessively interferes with management's right to
determine its internal security practices under section 7106( a)(1) of
the Statute.
The Agency also argues that the second sentence of the proposal is
inconsistent with sections 5(b) and (d) of Executive Order 12564 as well
as management's right to discipline employees under section 7106(
a)(2)(A) of the Statute. With regard to the Executive Order, the Agency
states that if the proposal is intended to refer to voluntary drug
testing under section 3(b) of the Executive Order, an employee who
voluntarily submits to drug testing and tests positive, would be free
from any "'disadvantageous' personnel actions required by EO 12564." Id.
The Agency notes that section 5(b) of the Executive Order insulates
from discipline only those employees who identify themselves as drug
users or who volunteer for drug testing prior to being identified as
illegal drug users through other means, and who meet other specified
criteria. The Agency states that the proposal would provide complete
protection for an employee because the employee could participate in the
drug testing program by volunteering to be tested either before or after
being identified through other means, and thus be free of any
"'disadvantage.'" Id.
The Agency also argues that the second sentence of the proposal is
inconsistent with section 5(d) of the Executive Order, which requires
the removal of any employee who is found to use illegal drugs through
any means, and who thereafter refuses counseling or rehabilitation and
who fails to refrain from illegal drug use. The Agency states that the
removal is required irrespective of whether the employee is found to use
illegal drugs through random testing, reasonable suspicion testing, or
voluntary testing. The Agency argues that the second sentence of the
proposal "provides a blanket protection for drug users." Id. at 17.
The Agency also argues that the proposal would prevent the Agency
from taking disciplinary action against any employee who voluntarily
agrees to testing, tests positive, and refrains from using drugs. The
Agency argues that the proposal thus directly interferes with
management's right to discipline under section 7106(a)(2)(A) of the
Statute.
Finally, the Agency contends that the second sentence of the proposal
could be interpreted to mean that no sanctions could be applied to
employees who refuse to participate in the other forms of drug testing
authorized under Executive Order 12564, apart from voluntary testing
under section 3(b). If that were the case, the Agency asserts that the
second sentence of the proposal is inconsistent with Executive Order
12564 and excessively interferes with the Agency's right to determine
its internal security practices.
2. Union
The Union states that the proposal "seeks to clearly state an
employee's right to participate or not to participate in voluntary
programs. By definition, if the program is voluntary, then there is no
intrusion upon the 'right to assign.'" Union Response at 33. The Union
further states that the term "'voluntary' is used in referencing
'voluntary drug testing programs(,)'" that "nothing in the word
'voluntary' means 'mandatory(,)'" and that the proposal "is otherwise
consistent with law, rule or regulation." Id.
B. Analysis and Conclusions
1. The First Sentence of Proposal 11 Is Negotiable
The first sentence of the proposal refers to voluntary drug testing
programs. We reject the Agency's contention that the first sentence of
the proposal does not clearly set forth the meaning that should be
ascribed to the term. Instead, we find that the proposal is merely
designed to ensure that the Agency adhere to its stated practice of not
coercing or requiring any employee to participate in voluntary drug
testing. Inherent in the nature of any voluntary activity is
consensual, noncoercive participation. The proposal requires nothing
more than the Agency claims is its practice, and nothing more than is
otherwise inherent in voluntary drug testing programs under section 3(
b) of Executive Order 12564.
We also reject the Agency's assertion that, based on the use of the
term "voluntary" in other proposals, the first sentence of Proposal 11
excessively interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute. As stated
above, the use of the term voluntary refers to voluntary drug testing
programs under section 3(b) of the Executive Order, and not to any other
matter. Also, nothing contained in the proposal references or is
intended to apply to any other form of drug testing authorized under
Executive Order 12564. Consequently, the Agency would not be prevented
from subjecting employees to any other lawful drug testing.
Accordingly, we find that the proposal does not conflict with the
Executive Order or interfere with the Agency's right to determine its
internal security practices, as alleged.
2. The Second Sentence of Proposal 11 Is Nonnegotiable
The second sentence of the proposal provides that participation or
nonparticipation in voluntary drug testing programs will neither
advantage nor disadvantage employees. The Agency argues that the
proposal is inconsistent with section 5 of the Executive Order and the
right to discipline under section 7106(a)(2)(A) of the Statute. The
Agency argues, more particularly, that if an employee participates in a
voluntary drug test and tests positive, the proposal would prevent the
Agency from taking disciplinary action, such as a removal. We agree.
The Authority has stated that section 5(b) of the Executive Order
requires agencies to "'initiate action to discipline any employee who is
found to use illegal drugs(,)'" but that the requirement does not apply
to employees who "'voluntarily identify themselves as users of illegal
drugs,' 'obtain counseling or rehabilitation through an'" Employee
Assistance Program, and thereafter refrain from using illegal drugs.
See American Federation of Government Employees, Local 1692 and U.S.
Department of the Air Force, Mather Air Force Base, California, 40 FLRA
868, 872 (1991). Consequently, the Authority has found that proposals
that preclude an agency from disciplining employees who voluntarily
disclose that they use, or have used, illegal drugs, enter
rehabilitation, and refrain from using drugs thereafter, do not conflict
with the Executive Order. The Authority further has found, however,
that such proposals directly interfere with management's right to
discipline under section 7106(a)(2)(A) of the Statute. See National
Treasury Employees Union and Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1140 (1991).
The second sentence of Proposal 11 is nonnegotiable for two reasons.
First, by stating that there will be no disadvantage to employees who
participate in voluntary drug testing programs, the proposal would
prevent the Agency from removing an employee in accordance with the
requirements contained in the Executive Order, if it is determined,
following a voluntary drug test, that the employee is using illegal
drugs. What distinguishes this proposal from those that are consistent
with the Executive Order is that the proposal here makes no reference to
the additional requirements in section 5(b) that the employee obtain
counseling or rehabilitation and thereafter refrain from illegal drug
use. The proposal, as the Agency contends, would provide blanket
protection to an identified illegal drug user.
Second, by preventing the Agency from taking disciplinary action
against employees, the second sentence of the proposal directly
interferes with the Agency's right to discipline under section 7106(a)(
2)(A) of the Statute. Unlike proposals that have been found to
constitute negotiable appropriate arrangements under section 7106(b)(3)
of the Statute, the Union has made no claim that the proposal here was
intended as an appropriate arrangement. In any event, as the proposal
is inconsistent with the Executive Order, the proposal could not
constitute a negotiable appropriate arrangement.
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposal 6 and the first sentence of Proposal 11.
/9/ The petition for review as to Proposals 4, 8, 9 and 10 and the
second sentence of Proposal 11 is dismissed.
(1) Member Talkin's dissenting opinion as to Proposal 9 is set forth
at footnote 8.
(2) Both the petition for review and the response to the Agency's
statement of position were filed by the American Federation of
Government Employees (AFGE) for and on behalf of AFGE's Local 1808. All
references to the Union will hereinafter refer to AFGE.
(3) The Authority directed the parties to file supplemental briefs
addressing the applicability of Federal court decisions issued during
the pendency of this case, which involved Federal agency drug testing
programs. Both the Union and the Agency filed supplemental briefs which
we have considered. In its supplemental brief, the Union requested that
Proposals 1, 2, 3 and 5 be withdrawn from its appeal. The request is
hereby granted. In its supplemental brief, the Agency withdrew its
allegation of nonnegotiability as to Proposal 7. Accordingly, we will
not address the negotiability of Proposals 1, 2, 3, 5 and 7.
(4) Although it referenced section 2.2(f)(14) of the Guidelines, the
Agency quoted, and obviously intended to reference, section 2.2(f)(16)
of the Guidelines.
(5) In Department of Education, the Authority also reexamined the
proposal in Rock Island I on which the Agency now relies. 38 FLRA at
1096. As the Authority stated that it would no longer follow the
interpretation of that proposal, we will not address further the
Agency's argument here that Proposal 4 is to the same effect as the
proposal in Rock Island I.
(6) Section 2.2(e) of the Guidelines provides:
Privacy. Procedures for collecting urine specimens shall allow
individual privacy unless there is reason to believe that a
particular individual may alter or substitute the specimen to be
provided.
(7) In view of this finding, we need not address the Agency's
contention that the proposal does not constitute a negotiable
appropriate arrangement for employees adversely affected by the exercise
of a management right.
(8) For the reasons more fully discussed in her dissenting opinion in
Department of Education, Member Talkin would find Proposal 9 to be
negotiable on the grounds that an agency's inability to obtain written,
advance consent from employees would not prevent the Agency from
otherwise lawfully subjecting employees to drug testing. Even assuming
the proposal could be read as directly interfering with the Agency's
right to determine its internal security practices under section 7106(
a)(1) of the Statute, however, Member Talkin would find that the
proposal constitutes a negotiable appropriate arrangement, based on her
view that the proposal simply allows employees who choose not to sign
such a document to express their views concerning the Agency's drug
testing program. In assessing the effect of the proposal on the
Agency's right to determine its internal security practices, therefore,
Member Talkin would find that the burden placed on the Agency's exercise
of its right would be minimal. The Agency would still be permitted to
test employees, in appropriate circumstances, and to take whatever
action is necessary if an employee were to refuse to submit to a drug
test. By contrast, Member Talkin would find that the benefits to
employees that would be afforded under the proposal, which would include
the expression of personal beliefs and views, outweigh any limited
burden that would be imposed on the Agency.
(9) In finding these proposals negotiable, we make no judgment as to
their merits.
42 FLRA 527
42 FLRA NO. 34
AFGE, Dept. of Education Council of AFGE Locals and Dept. of
Education, Case No. 0-NG-1593 (Decided September 27, 1991)
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