[ v27 p69 ]
27:0069(14)NG
The decision of the Authority follows:
27 FLRA No. 14
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858
Union
and
U.S. ARMY MISSILE COMMAND, THE U.S.
ARMY TEST, MEASUREMENT, AND DIAGNOSTIC
EQUIPMENT SUPPORT GROUP, THE U.S.
ARMY INFORMATION SYSTEMS COMMAND-
REDSTONE ARSENAL COMMISSARY
Agency
Case No. 0-NG-1148
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority under section 7105(a)(2)(E) of the
Statute and concerns the negotiability of eleven (11) provisions of an
agreement which were disapproved under section 7114(c) of the Statute.
/1/
II. Procedural Issues
The Union argues that the disapproval -- by the Army Materiel Command
-- was ineffectual because (1) it has not been shown that the Command
had the authority to disapprove agreements for the Agency head under
section 7114(c) of the Statute, and (2) the Command's disapproval was
not served on the Union within the 30-day period required by section
7114(c). These contentions cannot be sustained.
The Authority has explained that agency heads have the discretion to
delegate their authority to disapprove locally negotiated agreements
under section 7114(c). American Federation of Government Employees,
Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop,
California, 19 FLRA 1016, 1017 (1985), remanded on other grounds sub
nom. American Federation of Government Employees v. FLRA, No. 85-1689
(D.C. Cir. Nov. 17, 1986). In this case, unlike the delegation in
dispute in Sharpe Army Depot, the Agency has shown that the Agency head
had delegated this authority to the Army Materiel Command by Agency
regulations.
Regarding timely service of the disapproval, a disapproval is timely
under section 7114 (c) if it is served on the union by certified mail
within 30 days of the local agreement's execution date. The date of
service is the date it is deposited in the mail. American Federation of
Government Employees, AFL-CIO, Local 900 and Department of the Army,
Office of the Adjutant General, U.S. Army Reserve Components, Personnel
and Administrative Center, St. Louis, Missouri, 18 FLRA 40 n.1 (1985),
remanded on other grounds sub nom. American Federation of Government
Employees v. FLRA, No. 85-1406 (D.C. Cir. Nov. 17, 1986). The Agency
has shown that the disapproval was deposited in the mail by certified
mail on June 7, 1985, which is within 30 days of the local agreement's
execution date -- May 9, 1985.
III. Provision 1
Article 11, Section 1.d., Grievance and Arbitration Procedure
An employee or group of employees filing a grievance under this
procedure shall be represented by a union official or by a
representative approved in writing by the Union President.
However, the employee or group employees may elect to represent
himself/themselves as long as the provisions of Section 1.b. above
are complied with.
A. Positions of the Parties
The Agency asserts that the provision is nonnegotiable because it
conflicts with sections 7114(a)(5) and 7121(b)(3) of the Statute, which
restrict the representation of employees in negotiated grievance
procedures to representatives who are acting for the exclusive
representative. The Union argues that the Agency has misunderstood the
provision and that the provision is negotiable. The Union states that
the intent of the provision is "to make clear that employees may only be
represented by bona fide agents of the (U)nion." Union petition at 2.
B. Analysis and Conclusion
The provision is negotiable. It states that an employee may be
represented by "a Union official" or by "a representative approved by
the Union President." As explained by the Union, the intent of this
provision is to allow employees to select persons who the employees
would prefer as their representatives in the parties' negotiated
grievance procedures. If the Union president approves the employee's
choice in writing, the representative will be acting as an agent for the
Union. This explanation is consistent with the provision's wording and
we adopt it for the purpose of this decision. Hence, we find that this
provision concerns the procedures the Union will follow in designating
its representatives. Consequently, we find that the provision is not
inconsistent with section 7114 or section 7121 of the Statute. Colorado
Nurses Association and Veterans Administration Medical Center, Ft.
Lyons, Colorado, 25 FLRA No. 66 (1987) (proposal 1), petition for review
filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C.
Cir. Feb. 25, 1987).
Although the operative language of this provision is virtually
identical to the proposal held to be nonnegotiable in National
Federation of Federal Employees, Local 1001 and Department of the Air
Force, Vandenberg Air Force Base, California, 15 FLRA 804 (1984), the
intent attributed to the proposal by the union in Vandenberg
distinguishes that proposal. As explained in Vandenberg, under section
7114(a)(50 and section 7121 of the Statute unit employees are permitted
two options for representation under negotiated grievance procedures --
(1) they may be represented by the exclusive representative or (2) they
may represent themselves.
As explained by the union in Vandenberg, /2/ the intent of that
proposal was to allow unit employees a third option -- not permitted
under section 7114 and section 7121 -- by which unit employees could be
represented under the negotiated grievance procedure by representatives
who, although approved by the union, would be acting solely and
exclusively for the employees as the employees' personal
representatives. By contrast and consistent with the Union's intent,
this provision is solely concerned with the procedures by which
employee-selected representatives are designated as union
representatives. It is not intended, as contrasted with the Vandenberg
proposal, to allow employees to select personal representatives.
IV. Provision 2
Article 12, Section 2.j., Merit Placement and Promotion Program
An employee is entitled to see any records or any supervisory
appraisal of his past performance which was used or which may be
used in the rating and ranking process under merit promotion
procedures. (Emphasis added.)
A. Positions of the Parties
The Agency claims the provision is nonnegotiable because it requires
disclosures of crediting plans which conflict with the Government-wide
rules or regulations of the Office of Personnel Management (OPM), Agency
regulations for which a compelling need exists, and the Privacy Act (5
U.S.C. 552a). The Union argues that the provisions are negotiable,
notwithstanding the requirements of OPM's regulations.
B. Analysis
1. Government-wide rules or regulations
As argued by the Agency, the provision is nonnegotiable because it is
inconsistent with OPM's Government-wide rules and regulations.
Although not explicitly stated in the provision, the parties agree
that the underscored language, which entitles employees "to see any
records . . . which may be used in the rating and ranking process,"
requires the Agency to disclose crediting plans which the Agency may be
about to use in rating candidates whenever an employee asks for this
information. So intended, the provision is directly analogous to the
proposal held nonnegotiable -- as being in conflict with OPM's
Government-wide rules or regulations -- in National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, 23 FLRA No.
91 (1986).
As explained in Customs Service, under FPM Supplement 335-1,
subchapter S6, and FPM Letter 335-15, OPM encourages agencies to inform
candidates of the job requirements of positions and the procedures to be
used when rating candidates. However, OPM also requires agencies to
guard against disclosures of crediting plans which could undermine the
rating process (by giving some candidates an unfair advantage) or
undermine the usefulness of the selection process. FPM Supplement
335-1, subchapter S5-3, subsection (c). To guard against these
disclosures, as required by OPM regulations, agencies must be able to
evaluate and decide requests for crediting plans on a case-by-case
basis.
The proposal in Customs Service was held to be nonnegotiable, as
being inconsistent with OPM's regulations, because it required blanket
disclosures of crediting plans; it required the agency to release its
crediting plans to the Union whenever the Union requested the plans.
Although the wording of this provision differs, it suffers from the same
problems. As already mentioned, the provision applies to current
crediting plans. It requires the Agency to release the plans to
employees who expect to be rated under them, upon request. Thus, the
Agency could not reject a request for the plans when it believes that
their disclosure might undermine the fairness and the usefulness of the
selection process. Accordingly, the provision is nonnegotiable on the
same basis and for the same reasoning as the proposal in Customs
Service.
The Union's argument that the provision is negotiable notwithstanding
OPM's rules or regulations is not compelling in this proceeding. Under
section 7117(a)(1) of the Statute, a matter is within the duty to
bargain only to the extent it is not inconsistent with Government-wide
rules or regulations. In enacting this provision, Congress did not
intend that the Authority would decide the merits of Government-wide
rules or regulations. American Federation of Government Employees v.
FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986).
2. Agency regulations
The Agency argues that because the provision requires release of
information, the provision is inconsistent with Agency regulation AR
340-17, which bars release of such information. The Agency claims that
the provision is nonnegotiable because a compelling need exists for this
regulation under section 2424.11(c) of our regulations because it
implements a nondiscretionary mandate of exemption (b)(2) of the Freedom
of Information Act (FOIA, 5 U.S.C. Section 552). This argument cannot
be sustained.
The exemptions in the FOIA exempt agencies from the disclosure
requirements of the FOIA; they do not prohibit agencies from releasing
information. Department of the Army, Headquarters, XVIII Airborne Corps
and Fort Bragg, North Carolina, 26 FLRA No. 52 (1987). Accordingly, we
cannot sustain the Agency's claim that a compelling need exists for its
regulation which bars negotiation of the provision because, as it
asserts, its regulation implements a nondiscretionary mandate of the
FOIA.
3. The Privacy Act, 5 U.S.C. 552a
The Agency's claim that the provision conflicts with the Privacy Act
cannot be sustained. The Agency has not supported this contention, and
the alleged conflict with the Privacy Act is not apparent to us. Based
on the provision's wording and the parties' understanding of its intent,
in large part the information which is subject to the provision's
disclosure requirements does not concern the personal privacy of
employees. Further, the information covered by the provision which
would concern employees' privacy would be personal to the employees who
requested the information.
C. Conclusion
The provision is nonnegotiable under section 7117 of the Statute
because it is inconsistent with Government-wide rules or regulations.
The provision is not nonnegotiable, as claimed by the Agency, because it
conflicts with Agency regulations for which a compelling need exists or
the Privacy Act.
IV. Provision 3
Article 12, Section 3.d., Merit Placement and Promotion Program
The Union President or his representative, upon request, will
be allowed access to the complete Merit Promotion Selection data
when a bargaining unit employee has asked the Union to represent
him in a formal complaint. If requested in writing, a copy of the
Merit Promotion Selection Roster will be furnished to the Union.
(Emphasis added.)
A. Positions of the Parties
The Agency's position, as in Provision 2, is that the underscored
language of this provision would require disclosures of crediting plans
and related information which conflict with OPM's Government-wide rules
or regulations, Agency regulations for which a compelling need exists,
and the Privacy Act. The Union argues that this provision is negotiable
because it applies to disclosures of crediting plan information which is
necessary for the Union's representation functions under the Statute.
B. Analysis
1. OPM's regulations
As previously explained for Provision 2, in National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, we
found that a proposal was outside the duty to bargain because it
required blanket disclosures of existing agency crediting plans without
regard to whether release of those plans would undermine the fairness
and validity of the selection procedure. We also found, however, that
under FPM Supplement 335-1, subchapter S6, release of crediting plans is
authorized where the release would not create any unfair advantage to
some candidates or compromise the utility of the selection process. A
determination as to whether release of crediting plans would create an
unfair advantage or compromise the utility of the selection process
depends on the particular circumstances present and should be made on a
case-by-case basis.
In Department of the Army, Headquarters, XVIII Airborne Corps and
Fort Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987), we found
that disclosure of the requested data would not create an unfair
advantage to some candidates or compromise the utility of the agency's
selection process and therefore would not be contrary to the
requirements of the FPM. The requests were limited to two specific
selection actions and did not require blanket disclosures of all agency
crediting plans. The crediting plans were subject to limited disclosure
to the union to fulfill its representational duties. We stated that
disclosure under those circumstances would not result in an unfair
advantage to prospective candidates (because the selection actions had
been completed) nor would it destroy the integrity of the agency's
selection process.
The disclosures of crediting plans contemplated under Provision 3
here are directly analogous to the disclosures in Fort Bragg. The
provision requires Union access to selection data only when a unit
employee has asked the Union for representation in connection with a
formal complaint. As implied by the provision and confirmed by the
Union's explanation, the selection data covered by the provision is data
which has already been used in a selection action. The Union also has
explained that its access to this information will be limited to
instances in which the information is necessary to enable the Union to
evaluate the fairness of a completed selection action in connection with
an EEO complaint, a contractual grievance, or an unfair labor practice.
This explanation is consistent with the provision's wording. Adopting
this explanation of the provision for the purpose of this decision, we
conclude -- absent a showing by the Agency that the Union's had
disseminated this type of information in the past so as to prejudice the
Agency's procedures -- that the disclosures of crediting plans covered
by this provision are the equivalent of those in Fort Bragg.
Accordingly, as discussed more fully in Fort Bragg, we find that this
provision is not inconsistent with OPM's regulations.
2. Agency regulations
The Agency argues that because the provision requires release of
information, the provision is inconsistent with Agency regulation AR
340-17, which bars release of such information. The Agency claims that
the provision is nonnegotiable because a compelling need exists for this
regulation under section 2424.11(c) of our regulations because it
implements a nondiscretionary mandate of exemption (b)(2) of the Freedom
of Information Act (FOIA, 5 U.S.C. Section 552). As we previously
explained in connection with Provision 2, this contention cannot be
sustained because the exemptions in the FOIA do not prohibit the release
of information. Fort Bragg, 26 FLRA No. 52 (1987). Accordingly, there
is no basis for the Agency's claim that there is a compelling need for
its regulation because it implements a restriction on the release of
information which is mandated by the FOIA.
3. The Privacy Act, 5 U.S.C. 552a
The Union concedes that the provision may be interpreted as requiring
disclosure of personal data on employees other than those who have
requested Union assistance. It has also explained, however, that the
provision would not prevent the Agency from sanitizing selection data as
necessary to ensure compliance with the Privacy Act. Union brief at 10.
Although the provision does not expressly provide for sanitizing that
data, the Union's explanation is not inconsistent with the general
language of the provision and we adopt it for the purpose of this
decision. So intended and applied, we conclude that the provision would
not require disclosures in conflict with the Privacy Act.
C. Conclusion
The provision is negotiable. It is not inconsistent with
Government-wide regulations, Agency regulations for which a compelling
need exists, or the Privacy Act.
V. Provision 4
Article 14, Section 2.g., Details
An employee will not be detailed to a draft job description or a
set of duties beyond his physical capabilities.
A. Positions of the Parties
The Agency asserts that this provision is nonnegotiable because it
restricts management's discretion to assign employees and assign work,
in conflict with management's rights under section 7106(a)(2)(A) and (B)
of the Statute. The Agency also contends that the provision does not
constitute an "appropriate arrangement" under section 7106(b)(3) of the
Statute, because the provision's standard for restricting management's
right to assign employees and to assign work -- an employee's physical
capabilities -- is too vague. The Union argues that the provision
constitutes a negotiable appropriate arrangement under section
7106(b)(3) of the Statute because it is intended to protect employees'
health and safety.
B. Analysis and Conclusion
The provision is nonnegotiable. Based on its wording and the Union's
explanation of its intent, the provision would preclude management from
assigning to employees duties which are beyond employees' "physical
capabilities." So intended, the provision conflicts with management's
right to assign work under section 7106(a)(2)(B) of the Statute. See
National Federation of Federal Employees, Local 943 and Department of
the Air Force, Headquarters Keesler Technical Training Center, Keesler
Air Force Base, Mississippi, 19 FLRA 949, 951 (1985) and National
Federation of Federal Employees, Local 1624 and Air Force Contract
Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980), in which
the Authority held nonnegotiable proposals which required management to
tailor assigned duties to employees' physical capabilities. Since the
provision applies to duties of positions to which employees may be
assigned -- as well as to duties in positions to which employees have
already been assigned -- the provision also conflicts with the right to
assign employees under section 7106(a)(2)(A).
Because the provision conflicts with management's rights under
section 7106(a)(2)(A) and (B), the provision is nonnegotiable unless it
constitutes a negotiable appropriate arrangement under section
7106(b)(3) of the Statute. National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
(1986). As explained in Kansas Army National Guard, to determine
whether the provision constitutes a negotiable appropriate arrangement,
we determine whether the provision is intended to be an arrangement for
employees who may be adversely affected by the exercise of management's
statutory rights. If the provision is so intended, we determine whether
the intended arrangement is appropriate, or whether it is inappropriate
because it excessively interferes with the exercise of management's
rights.
We conclude that this provision is intended to be an arrangement for
employees who may be adversely affected by the exercise of management's
rights to assign employees and assign work. Based on the Union's
undisputed explanation, the provision is intended to protect employees
from duties, in new or preexisting positions, which would endanger their
health or safety.
In determining whether the intended arrangement is appropriate,
however, we agree with the Agency's position that the provision's
standard for restricting management's rights -- whether the duties are
within employees' physical capacities -- is too broad. The restriction
would apply to any duty assignments which employees perceived to be
beyond their physical capacities for any reason, and to any extent. In
this regard, notwithstanding the Union's stated purpose, the provision
excessively interferes with management's rights to assign employees and
assign work.
Accordingly, we conclude that the provision does not constitute a
negotiable appropriate arrangement under section 7106(b)(3).
VI. Provision 5
Article 23, Section 3.c., General Performance Appraisal System (GPAS)
Positions which are assigned essentially the same duties and
responsibilities under a common job description will have
essentially the same major job elements.
A. Positions of the Parties
The Agency argues that the provision would determine the performance
standards for Agency positions in conflict with management's rights to
direct employees and assign work under section 7106(a)(2)(A) and (B) of
the Statute. The Union asserts that the provision is negotiable because
the provision is only concerned with standardizing positions
descriptions, and it would only require the Agency to establish position
descriptions which reflected employees' assigned duties.
B. Analysis and Conclusion
The provision is identical to Provision 1 which was held to be
nonnegotiable in American Federation of Government Employees, AFL-CIO,
Local 1858 and U.S. Army Ordnance Missile and Munitions Center and
School (USAOMMCS), Redstone Arsenal, Alabama, 26 FLRA No. 12 (1987). In
that decision we stated that the provision would preclude management's
determination that critical elements of similar positions under a common
job description should not be the same because, in management's
judgment, the different circumstances relating to work performance in
those positions warrant weighing job elements differently and, thus,
establishing different critical elements.
The Union's explanation -- that the provision merely requires the
Agency to establish position descriptions for employees which reflected
employees' assigned duties -- does not comport with the wording of the
provision. We will not base a negotiability decision on a Union
statement of intent which is clearly inconsistent with the language in
dispute. For example, National Federation of Federal Employees, Local
1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air
Force Base, Colorado, 11 FLRA 565, 574 (1983). Based on the plain
wording of the provision, we conclude that it is nonnegotiable because
it would preclude the Agency from determining the critical elements of
Agency positions.
VII. Provision 6
Article 26, Section 2.a. Disciplinary Actions
Prior to deciding whether or not a disciplinary action is
warranted, the immediate supervisor shall undertake a preliminary
investigation and discussions with the employee concerned.
A. Positions of the Parties
The Agency argues that the provision conflicts with management's
right to assign work under section 7106(a)(2)(B) of the Statute because
it requires the Agency to assign to supervisors investigative and
counseling tasks which Agency management may prefer to assign to other
personnel. The Union argues that the provision is negotiable because
the functions are not onerous and supervisors may request that the
investigative and counseling functions be performed by other personnel.
B. Analysis and Conclusion
The Authority has consistently held that managment's right to assign
work under section 7106(a)(2)(B) encompasses the right to assign
specific duties to particular individuals, including management
officials, and that provisions which interfere with this right are
nonnegotiable. For example, National Association of Government
Employees, AFL-CIO, Local R14-87 and Department of the Army and the Air
Force, Kansas Army National Guard, 19 FLRA 381 1985); American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, 14 FLRA 278 (1984), aff'd mem. sub nom. Local 32,
AFGE v. FLRA, No. 84-1251 (D.C. Cir. May 10, 1985). Since this
provision requires the Agency to assign certain investigative and
counseling tasks to supervisors it violates the right to assign work and
is nonnegotiable.
The Union points out that in National Treasury Employees Union and
Department of Treasury, Internal Revenue Service, 8 FLRA 136 (1982)
(IRS), the Authority held proposals which concerned the manner in which
inspectors would notify employees of certain procedures, privileges, and
obligations for interrogations which could lead to disciplinary action
to be negotiable. We do not consider that decision to be controlling
here. First, the agency's objections to the proposals in IRS were that
the proposals did not concern conditions of employment and they
conflicted with the agency's right to determine its internal security
practices under section 7106(a)(1). Second, in contrast to the Agency's
position here, in IRS the agency made no claim that the proposals
interfered with the right to assign work under section 7106(a)(2)(B).
Third, nothing in the record in IRS indicated that the proposals
concerned the assignment of duties to inspectors which were beyond the
duties the agency had already assigned to the inspectors.
Were it not for the provision's defect requiring that investigative
and counseling functions will be performed by supervisors, which appears
to be subsidiary to the basic intent of the provision, we would conclude
that the provision is negotiable. The provision's general requirements
-- that some investigation be completed and some counseling be given
employees before discipline is imposed -- clearly concern conditions of
employment under section 7103(a)(14) of the Statute. Moreover, these
general requirements constitute procedures, concerning the exercise of
management rights, which are negotiable under section 7106(b)(2) of the
Statute. Accordingly, the local parties who negotiated the provision
can preserve its underlying intent and their commitment to sound and
effective labor-management relations if they negotiate the elimination
of this defect.
In this regard, the nonnegotiability of provisions which assign tasks
to particular agency personnel is established in long-standing Authority
precedent and should be familiar to union and management
representatives. For examples, American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 2 FLRA 604, 631 (1980). Nevertheless, the matter
continues to be a source of negotiability disputes before the Authority.
Local parties should conduct their negotiations in a manner which
attempts to ensure that provisions will not be disapproved under section
7114(c) based on a deficiency which -- as appears to have occurred here
-- does not go to the heart of the matter upon which the local parties
had reached agreement. Union representatives should carefully word
their proposals and explain their intent to ensure that the assignment
defect present in Provision 6 does not arise. Similarly, management
representatives should be able to recognize such potential defects early
in negotiations and to signal their willingness to discuss a proposal
which eliminates the assignment defect.
Effective and efficient labor-management relations is also fostered
when agency heads explore alternative, constructive processes which will
enable them to avoid disapprovals of provisions like Provision 6 when
the defect in the provision does not appear to be central to the
provision's basic intent. For example, if an agency head is able to
identify the problem early in the 30-day review process, the local
parties might be notified immediately and discussions with the union
could be initiated to eliminate the problem before the review period
under section 7114(c) expires.
VIII. Provision 7
Article 26, Section 3, Disciplinary Actions
The employee will also have the right to a representative of his
choice as approved by the Union President.
A. Positions of the Parties
The Agency asserts that this provision is nonnegotiable because it
conflicts with employees' right to select personal representatives under
statutory adverse action procedures, as provided under 5 U.S.C. Section
7503(b)(3). The Union claims that the provision is negotiable, because
it is only concerned with allowing employees to select representatives
who would be acting for the Union.
B. Analysis and Conclusion
The provision is nonnegotiable. Based on its wording and the
Agency's explanation of its intent, which is not disputed by the Union
and which we adopt for the purpose of this decision, the provision
requires Union approval of employee representatives in any grievance or
appeal action. So intended, the provsion conflicts with section
7114(a)(5) of the Statute. This section provides that in any grievance
or appeal procedure which has not been negotiated under the Statute,
like the adverse action procedures of 5 U.S.C. Sections 7501-04,
employees are guaranteed the right to select their own personal
representatives. See Vandenberg, 15 FLRA 804, 806 (1984). Provision 7
is distinguishable in this regard from Provision 1 which is concerned
solely with representation in a negotiable grievance procedure.
IX. Provision 8
Article 27, Section 1
Fitness for Duty Examinations
Before submitting a formal request for a fitness for duty physical
examination, the supervisor will conduct, in accordance with the
Federal Personnel Manual, a counseling session with the employee,
to discuss the problem and inform the employee of alternatives
(retirement, reassignment, etc.) available to him.
A. Positions of the Parties
The Agency argues that the provision is nonnegotiable because OPM's
Government-wide rules or regulations -- in the Federal Personnel Manual
(FPM), 5 CFR Section 339.302, and 5 CFR 831.1203(b) -- do not require
agencies to counsel employees before they require employees to undergo
fitness-for-duty ("medical suitability") examinations. The Agency also
argues that the provision is nonnegotiable because it requires the
Agency to assign counseling functions to supervisors in conflict with
the right to assign work under section 7116(a)(2)(B) of the Statute.
The Union argues that the provision is negotiable.
B. Analysis and Conclusion
Based on its wording and the parties' explanations, the provision
requires the Agency to assign specific counseling functions to
supervisors. In this regard the provision is nonnegotiable because it
conflicts with management's right to assign work under section
7106(a)(2)(B) of the Statute, on the same basis and for the same reasons
as Provision 6, above. The Agency's other objections to the provision
cannot be sustained.
As argued by the Agency, OPM's regulations do not require agencies to
counsel employees before they are required to submit to fitness-for-duty
medical examinations. However, in our view OPM's regulations do not
prohibit such counseling. Furthermore, the provisions of subchapter 1-3
of FPM chapter 339 refer to alternatives to removal if an employee is
shown to be suffering from a medical disability. The Agency has not
shown that the counseling required by the provision conflicts with these
OPM's regulations. The provision does not mandate the Agency to
implement any alternative for an employee. Rather, it merely requires
the Agency to counsel employees on their available alternatives.
Like Provision 6, this provision is nonnegotiable only because it
requires that counseling tasks will be performed by supervisors, a
requirement which appears to be subsidiary to the basic intent of the
provision. Accordingly, our comments in connection with Provision 6
concerning the avoidance of such defects are equally applicable here.
X. Provision 9
Article 47, Section 1.a., Leave
Justified emergency annual leave will not be based solely on the
employer's need for the employee to work overtime.
A. Positions of the Parties
The Agency argues that the provision conflicts with the OPM's
Government-wide rules or regulations in FPM Supplement 900-2, chapter
630, subchapter 3, and FPM Letter 630-29. The Agency also argues that
the provision conflicts with the right to assign work under section
7106(a)(2)(B). The Union argues that the provision constitutes a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute.
B. Analysis
1. OPM's regulations
The provision does not conflict with OPM's regulations. OPM's
requirements on approvals of employee leave requests are explained in
detail in FPM Letter 630-29 (Jan. 28, 1981). Paragraph 7 of this OPM
letter states:
7. Mandatory Approval of Leave Requests. There are instances
(such as treatment for disabled veterans, military service,
certain retirements, and certain illnesses, injuries, or
pregnancies) in which approval of leave requests is mandatory. . .
. Further mandatory requirements for approval of leave within an
agency may be established through negotiated agreement. (Emphasis
added.)
Based on this explanation of OPM's regulations, we find that the
Agency has not established that OPM's regulations bar Provision 9's
requirements on leave approvals.
2. The right to assign work
The Union explains the provision as requiring approvals of leave
requests which will take precedence over the assignment of overtime work
when the employee's leave request is justified because of a "dire
physical, family, or other personal emergency." Union brief at 27.
Adopting this explanation for the purpose of this decision, we find that
the provision directly interferes with management's ability to assign
overtime work and, hence, that it conflicts with the right to assign
work under section 7106(a)(2)(B). For example, 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 No. 9 (1987) (provisions 6-8).
We turn now to the question of whether the provision constitutes a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute. As explained in connection with Provision 4, above, we answer
this question by determining (a) whether the provision is intended to be
an arrangement for employees adversely affected by the exercise of a
management right, and (b) whether the provision is appropriate because
it does not excessively interfere with the exercise of the management
right. We find, based on the Union's explanations, that the provision
is intended to be an arrangement which would ease the impact of overtime
assignments on employees' personal circumstances.
We are unable to conclude, however, that the provision would not
excessively interfere with the exercise of the management right. The
language of the provision does not acknowledge the existence of overtime
assignments which must be performed because there is no alternative.
The provision does not acknowledge management's need to assign overtime
work to a particular employee because that employee is the only employee
capable of performing the work -- for example, because of the employee's
particular skills or the employee's location. The provision simply
requires that an employee's justification for emergency leave shall take
precedence in all circumstances, regardless of management's
requirements. In this regard, we conclude that the provision does
excessively interfere with management's right under section
7106(a)(2)(B) to assign work.
C. Conclusion
The provision is nonnegotiable. The provision conflicts with the
right to assign work under section 7106(a)(2)(B) of the Statute and it
does not constitute a negotiable appropriate arrangement under section
7106(b)(3).
XI. Provision 10
Article 50, Section 1
Inclement Weather or Emergency Conditions
(T)he Installation Commander of Redstone Arsenal will determine
when all or part of the Installation will be closed. The
Commander will authorize the public broadcast media to announce
Installation status when the Installation is to be closed.
A. Positions of the Parties
The Agency argues that the provision is nonnegotiable because it
requires the Agency to assign specific tasks to certain personnel, in
conflict with management's right to assign work under section
7106(a)(2)(B). The Union asserts that the provision is negotiable
because it only requires the Agency to authorize broadcast media to
announce the dates when the Agency's installation will be closed due to
emergency conditions.
B. Analysis and Conclusion
The Agency does not claim that the provision is nonnegotiable because
it requires the Agency to authorize announcements of installation
closings. There is nothing in the record which would indicate that this
requirement would be nonnegotiable.
However, the provision requires the Agency to assign certain tasks to
specific personnel: the Installation Commander must determine when all
or part of the Installation is to be closed. In this regard, the
provision is nonnegotiable on the same basis and for the same reasons as
Provisions 6 and 8, above. It conflicts with management's right to
assign work under section 7106(a)(2)(B) of the Statute.
Like Provisions 6 and 8, this provision is nonnegotiable only because
it requires that particular personnel -- the Installation Commander --
will perform certain tasks, a requirement which appears to be subsidiary
to the basic intent of the provision. Accordingly, our comments in
connection with Provision 6 concerning the avoidance of such defects are
equally applicable here.
XII. Provision 11
Article 58, Section 3.e., Safety
No employee, other than qualified maintenance personnel, shall be
required to perform repair work on moving operating machines while
in motion or operation.
A. Positions of the Parties
The Agency argues that the provision conflicts with management's
right to assign work under section 7106(a)(2)(B) of the Statute because
it prevents the Agency from assigning certain types of work to
employees. The Union argues that the provision is negotiable as an
appropriate arrangement under section 7106(b)(3) of the Statute because
it is intended to protect employees from imminent danger of serious
injury or death.
B. Analysis and Conclusion
The provision is nonnegotiable because it conflicts with management's
right to assign work under section 7106(a)(2)(B) and it does not
constitute a negotiable appropriate arrangement under section
7106(b)(3).
As previously explained in connection with Provision 6, provisions
which require management to assign certain tasks to particular personnel
conflict with the right to assign work under section 7106(a)(2)(B). The
Authority has also held that provisions which require management to
restrict work assignments to "qualified" personnel or which condition
management's ability to assign work conflict with this right. For
example, International Brotherhood of Electrical Workers, Local 570,
AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14
FLRA 432, 433-34 (1984) and Laborers International Union, Local 1276,
AFL-CIO and Defense Logistics Agency, Defense Depot Tracy, Tracy,
California, 15 FLRA 49, 50 (1984). This provision conflicts with the
right to assign work for these reasons. It restricts management's
ability to assign repair duties to employees and requires management to
assign repair duties to "qualified maintenance personnel." It conditions
management's ability to assign duties to employees on whether machines
are in motion or in operation.
We now turn to the question of whether the provision constitutes a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute. As explained in connection with Provisions 4 and 9, we answer
this question by determining (a) whether the provision is intended to be
an arrangement for employees adversely affected by the exercise of a
management right and (b) whether the provision is appropriate because it
does not excessively interfere with the exercise of the management
right. We find, based on the Union's explanations, that the provision
is intended to be an arrangement which would protect employees from
dangerous duties.
However, as with Provisions 4 and 9, we agree with the Agency that
the provision excessively interferes with the exercise of the management
right. The provision contains no references to repair work which would
pose imminent dangers to employees' health and safety. It merely
prevents management from assigning repair work on all moving operating
machines to employees other than "qualified maintenance personnel"
whenever the machines are moving or are in operation. Based on its
wording, the impact of the provision would extend well beyond those
circumstances in which such repair work might pose imminent dangers.
The Union's reference to Whirlpool Corporation v. Marshall, 455 U.S.
1 (1980), in support of its position, is inapposite. The Supreme
Court's decision is Whirlpool was solely concerned with whether a
private sector employee has a right to be free from discriminatory
disciplinary action for refusing work when the employee has a reasonable
apprehension of death or serious injury, coupled with a reasonable
belief that no less drastic alternative to refusing the work is
available. 455 U.S. at 11-12. If this is the intent of the provision,
this is what the Union should propose to the Agency for bargaining.
XIII. Order
The Agency must rescind its disapproval of Provision 1 and Provision
3. The petition for review is dismissed as it relates to Provision 2
and Provisions 4-11.
Issued, Washington, D.C., May 20, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In responding to the Union's petition for review the Agency
withdrew its disapprovals of three provisions -- "Article 11, Section
6.i., Grievance and Arbitration," "Article 12, Section 5.a., Merit
Placement and Promotion Program," and "Article 57, Section 2.h., Human
Resources Program." Accordingly, these provisions need not be considered
here.
(2) 15 FLRA 804, 805 n.2 and accompanying text.