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29 FLRA No. 1

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1458

               Union

       and

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE U.S. ATTORNEY
SOUTHERN DISTRICT OF FLORIDA

               Agency

Case No. 0-NG-1058

DECISION AND ORDER
 ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case comes before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute), and presents issues concerning the negotiability of 17 provisions of an agreement which were disapproved by the Agency head in the course of review under section 7114(c) of the Statute. For the reasons discussed below, we conclude that the Agency must rescind its disapproval of Provisions 2, 5, 6, 8, 9, 15 and 17. The Union's petition for review of the other provisions is dismissed.

II. Provision I

Article 9 - Safety, Health, Welfare and General Working Conditions

Section 4. An employee has the right to decline to perform an assigned duty if the employee has a reasonable belief that the duty poses an immediate risk to the employee's health or safety. The employee is to report the situation to his/her supervisor or other supervisory individual whoever is available immediately. [PAGE]

A. Positions of the Parties

The Agency contends that the provision interferes with its rights under section 7106(a)(2)(A) of the Statute to assign, direct and discipline employees and with its right under section 7106(a)(2)(B) to assign work.

The Union argues that the Statute requires that management rights be exercised in accordance with applicable laws. In this regard, the Union claims that, under Executive Order 12196 and related regulations, employees have the right to refuse to perform assigned tasks based on a reasonable belief that there is imminent danger of death or serious bodily injury and that there is insufficient time to abate the danger through normal channels. The Union also asserts that the provision is an appropriate arrangement for employees adversely affected by the exercise of a management right.

B. Analysis and Conclusion

1. The Provision Conflicts with Applicable Regulations

The regulation governing the matter covered by Provision 1 is 29 C.F.R. 1960.46(a) which was issued under authority of Executive Order 12196. The regulation permits an employee to decline to carry out a task when the employee has a reasonable belief that "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 established in accordance with this part."

Provision 1, however, seeks to protect an employee's refusal to carry out a task based on a reasonable belief "that the duty poses an immediate risk to the employee's health or safety." The provision, therefore, contains a less rigorous standard--"an immediate risk to the employee's health and safety" as contrasted with the regulatory "imminent risk of death or serious bodily harm"--of protection for employees refusing to undertake assigned work. Furthermore, the provision makes no reference to the regulatory requirement that the employee reasonably believe there is insufficient time to seek relief through normal hazard reporting and abatement channels.

Consequently, the provision would circumscribe management's authority to a greater degree than does the regulation which the provision purports to enforce, in that it insulates employees from the consequences of refusing to perform work involving a lesser degree of perceived peril than described [ v29 p2 ] by the regulation. The provision, therefore, conflicts with 29 C.F.R. 1960.46(a). Compare Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 26 FLRA No. 67 (1987) (proposal prescribing standard for granting compensatory time off for religious reasons held nonnegotiable because of a conflict with standard prescribed in applicable Government-wide regulations).

The regulation at issue is codified at part 1960 of 29 C.F.R. as an occupational safety and health regulation of the Federal Government published by the Department of Labor's Occupational Safety and Health Administration. By its terms, this regulation is binding on agencies as defined in 5 U.S.C. 101 or on any employing unit or authority of the Executive Branch of the Government and applies to any person, other than a member of the Armed Forces, employed by an agency. 29 C.F.R. 1960.2. This regulation is, therefore, generally applicable throughout the Federal Government. Hence, we find that it is a "Government-wide regulation" within the meaning of section 7117(a). See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).

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

In American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 4) petition for review filed on other grounds sub nom. American Federation of Government Employees, Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept, 22, 1986), the Authority found that Proposal 4, which prevented the agency from assigning overtime work to employees if the employees felt that it would endanger their health, was a substantive infringement on the agency's right to assign work under section 7106(a)(2)(B) and that it was not a "procedure" within the meaning of section 7106(b)(2) of the Statute. Since Provision 1 likewise would prevent the Agency from assigning work to employees in the circumstances stated in the provision, we find, for the reasons stated in VA Medical Center, New York, that it directly interferes with the right to assign work.

3. The Provision is not an Appropriate Arrangement under Section 7106(b)(3)

The Union asserts that Provision 1 is intended to protect employees from immediate risks to their health and [ v29 p3 ] safety by permitting them to refuse to perform work involving such dangers. Thus, the provision is aimed at reducing threats to health and safety by, in effect, limiting the types of assignments employees can be required to perform. Hence, we find that the provision is intended to be an arrangement under section 7106(b)(3) of the Statute for employees who may be affected adversely by management's exercise of its reserved right to assign work.

Based on the holding in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), we must next determine whether the provision is an "appropriate" arrangement under section 7106(b)(3). That is, we must decide whether the burden imposed on the exercise of the management right is excessive when weighed against the provision's benefit to employees. We conclude, on balance, that the benefit accruing to the employees is outweighed by the detriment imposed upon the exercise of the Agency's right to assign work.

Although the provision is intended to protect employees from work assignments which, in their judgment, would pose immediate risks to health or safety, in our view the standard established in the provision for restricting management's ability to have an assignment executed is too broad. As we have previously observed, the proposed standard varies significantly from that established by executive order and the related Government-wide regulation. The cited regulatory standard, it should be noted, is enforceable by means of the parties' negotiated grievance procedure. The less rigorous proposed standard would apply to any assignment which an employee in his or her sole estimation believes to pose an immediate risk, regardless of how great or minor, to health or safety. Moreover, the provision does not include the additional regulatory requirement that there be insufficient time to seek elimination of the potential threat. In our view then, the proposed standard constitutes an excessive interference with the Agency's rights both to assign work and to discipline employees for refusing to carry out their assignments. See 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 No. 22 (1987) (Provision 2).

Thus, Provision 1 is both inconsistent with a Government-wide regulation and interferes excessively with the management rights to discipline employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Consequently, the provision is outside the duty to bargain. [ v29 p4 ]

III. Provision 2

Article 2 - Management Rights

Section 1. General. In the administration of all matters covered by this Agreement, the parties are governed by existing and future laws, Government-wide regulations, policies set forth in the Federal Personnel Manual, and other binding authorities outside of the Department. This includes published agency policies and regulations in existence at the time this Agreement was approved and are not in conflict with this Agreement. (The underlined part is in dispute.)

A. Positions of the Parties

The Agency argues that the term "subject to . . . any other applicable law, rule, or regulation" as used in section 7114(c)(3) of the Statute also encompasses "agency rules for which the agency wishes to assert a compelling need and concerning which the Authority has not yet made a determination." Consequently, in the Agency's view, Provision 2 violates the Statute.

The Union asserts that whether or not Provision 2 is approved by the Agency head, by operation of the Statute, compelling need arguments must be raised by the Agency head during section 7114(c) review or such objections are waived.

B. Analysis and Conclusion

As stated by the Union, its objective here is to subordinate to the negotiated agreement any Agency regulations or policies in conflict with the agreement. That is, by means of this provision, the Union seeks to forestall the Agency's raising a compelling need argument in a grievance proceeding concerning an alleged violation of the agreement. In this respect, we find that Provision 2 is to the same effect as the provisions found negotiable in National Treasury Employees Union and Department of the Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 13 FLRA 554 (1982) and in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982) (Article 2, section 1A and B, Article 32, section 10A, and Article 40, section 3), remanded as to other matters, [ v29 p5 ] No. 82-2225 (D.C. Cir. Jan. 19, 1984), vacated by FLRA as to other matters, 15 FLRA 1036 (1984). The provisions in those cases similarly provided that the parties' negotiated agreement would prevail over conflicting existing agency (Internal Revenue Service) and subsequently issued agency or Government-wide (U.S. Customs Service) regulations. The Authority found that the provision in Internal Revenue Service was not inconsistent with section 7117(a) of the Statute because the agency failed to sustain its burden to establish that the provision conflicted with a specific agency regulation for which a compelling need existed under the Authority's published criteria. Additionally, the Authority found the provision in U.S. Customs Service not inconsistent with section 7116(a)(7) of the Statute because, after a negotiated agreement becomes effective, subsequently issued rules and regulations, with one statutory exception, cannot invalidate terms of the agreement.

Because the Agency here has not shown that a conflict exists between any internal Agency regulation for which a compelling need exists and any of the negotiated agreement's provisions, and based on the reasoning set forth more fully in Internal Revenue Service and U.S. Customs Service, Provision 2 is within the duty to bargain. 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 No. 9 (1987) (Provision 1).

IV. Provision 3

Article 12 - Leave

Section 7. Adjustment of Work Schedules for Religious Observances. Employees will be granted time off from their regular work schedules for religious observances and be permitted to work Compensatory Time to offset the lost work time. An employee who elects to work Compensatory Time as a substitute for time off shall be granted an equal amount of time off in increments of 15 minutes. The work must be performed within a period of 6 weeks before or 6 weeks after the time off.

A. Positions of the Parties

The Agency asserts that Provision 3 conflicts with its right under section 7106(a)(2)(B) of the Statute to assign [ v29 p6 ] work. it points out that the cited management right includes the authority to determine when the work will be performed as well as when the assignment will occur.

The Union characterizes the provision as an appropriate procedure--presumably within the meaning of section 7106(b)(2)--by which management will excuse an employee for religious observances. The Union contends that the provision's 12-week time frame is sufficient notice for the employer to reschedule the employee's work. Thus, in the Union's view, the Agency is not prevented from acting at all respecting the assignment of work.

B. Analysis and Conclusion

We find Provision 3 to the same effect as Proposal 5 found nonnegotiable in 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 5 in that case would have obligated the agency to grant administrative leave or other accommodations to the religious needs of its employees unless the accommodation would impose an "undue adverse impact on the other employees." In finding the proposal nonnegotiable, the Authority noted at 15 FLRA 584 that, "(t)he proposal excludes from consideration, in excusing an employee for religious reasons, the Agency's need for the employee's services during the period of excusal." Because the proposal in effect required the approval of religious leave, except in one limited circumstance, it was found to be inconsistent with the right to assign work. In so finding, the Authority repeated its statement in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), that the right to assign work under section 7106(a)(2)(B) "includes the right to assign general continuing duties, to make specific periodic work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed." Because Provision 3 in this case requires the Agency to grant time off for religious observance without respect to the Agency's need for the employee's services during the time period in question, it is also nonnegotiable.

In addition, we reject the Union's argument that the 12-week period during which compensatory time could be worked allows the Agency to act with regard to its authority to assign work. This argument fails to recognize the Agency's authority "to determine when the work which has been assigned [ v29 p7 ] will be performed." Under this provision, the Agency could not require that an employee undertake an assignment on a day that an employee indicated the need for religious leave, regardless of how long an employee had to work the compensatory time.

Thus, based on Kirtland Air Force Base, Provision 3 in this case is inconsistent with the Agency's right under section 7106(a)(2)(B) of the Statute to assign work and is outside the duty to bargain.

V. Provision 4

Article 13 - Performance Appraisals

Section 1. All employees in the bargaining unit will be evaluated on an annual basis under a performance evaluation system that includes performance standards and critical elements of performance that are significant in terms of title, series and grade. Such standards and critical elements shall be consistent with the employee's official duties and responsibilities.

A. Positions of the Parties

The Agency contends that Provision 4 is nonnegotiable because it is concerned with the identification and establishment of critical elements and performance standards.

According to the Union, this provision deals exclusively with the application of critical elements and performance standards. Under the provision's terms, the Union asserts, an arbitrator could not require management to establish any element or standard but could find that an element or standard not meeting the criteria had been misapplied.

B. Analysis and Conclusion

The Authority has consistently held that proposals substantively restricting management's authority to establish critical elements and performance standards are inconsistent with the rights to assign work and to direct employees under section 7106(a)(2)(A) and (B) of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); American Federation of Government Employees, [ v29 p8 ] AFL - CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981) (Proposals 1 and 2), 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). In fact, language similar to that contained in Provision 4, here, was found to impose a substantive restriction on management's authority to establish performance standards in American Federation of Government Employees, Local 3748, AFL - CIO and Agricultural Research Service, Northern States Area, 20 FLRA 495 (1985). This conclusion was based on analyses of the express language of the disputed provisions. There, the Authority noted that the language at issue was not located in the parts of the provisions addressing the application of performance standards.

In like manner, we conclude that the criteria appearing in Provision 4 apply to the content of the elements and standards themselves. Specifically, we note that such terms as "significant" and "consistent with the employee's official duties and responsibilities" are employed to define and modify the standards and elements. Further, the Union's own position states that the disputed part of the provision "means, however, that an element not meeting the criteria could be interpreted so as to have been misapplied." Reply Brief at 19. Thus, under this provision a critical element itself must satisfy the provision's criteria.

Therefore, based on the reasoning in Agricultural Research Service and the cases cited in that decision, Provision 4 is inconsistent with section 7106(a)(2)(A) and (B) rights to direct employees and to assign work. Consequently, it is outside the duty to bargain. See also Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987) (Sections 3.E and F), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987).

VI. Provision 5

Article 14 - Training and Upward Mobility

Section 2. Should there be a limitation of funds, applicants with longer office seniority should be considered first. [ v29 p9 ]

A. Positions of the Parties

The Agency contends that the provision would require it to assign training to senior employees based on factors unrelated to the need for training. Such a requirement, the Agency asserts, violates a Government-wide regulation. However, if the Authority should find that the provision has the meaning assigned to it by the Union in its Petition for Review, the Agency would withdraw its objection.

The Union contends that the provision, in context, requires consideration of seniority as but one of the factors in making training assignments.

B. Analysis and Conclusion

We find nothing in the language of the provision to contradict the Union's explanation of its purpose and meaning. That is, there is nothing in this provision which requires management to assign training on the basis of seniority or on any other factor unrelated to the need for training. Rather, according to the Union, this provision only requires that when management has identified a training need, management would consider senior employees first. Petition for Review at 4.

Accordingly, we find that Provision 5 is a negotiable procedure under section 7106(b)(2) of the Statute to be employed by management in selecting employees for training in the circumstances covered by the provision.

VII. Provision 6

Article 16 - Assignment of III, Injured and Handicapped Employees

Section 1. Employees recuperating from illness or injury and temporarily unable to perform their assigned duties may voluntarily submit a written request to their supervisor for temporary assignment to duties commensurate with the disability and the employee's qualifications. The Employer shall, to the extent possible, and in accordance with applicable rules and regulations and medical recommendations, make every reasonable effort to grant such temporary assignments. Such employees will continue to be considered for promotional opportunities for which they are otherwise qualified. (Only the underscored sentence is in dispute.) [ v29 p10 ]

A. Positions of the Parties

The Agency contends that Provision 6, by requiring that certain employees be assigned to light duties, is inconsistent with its right under section 7106(a)(2)(B) of the Statute to assign work. The Agency also asserts that inclusion of the qualifying phrases "to the extent possible" and "make every reasonable effort" does not alter the provision's inconsistency with the right to assign work. Further, the Agency points out, the provision creates a management problem with regard to those aspects of the regular work which the employee is unable to perform.

The Union characterizes the provision as an appropriate arrangement under section 7106(b)(3) for employees adversely affected by management's assignment of work. The Union also contends that the provision is a "procedure" to be followed in accommodating employees who are temporarily incapacitated.

B. Analysis and Conclusion

Contrary to the Agency's position, we do not find that the provision interferes with the management right to assign work. The provision does not absolutely prohibit the assignment of certain work as does, for example, Provision 2 found to be nonnegotiable in 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 No. 22 (1987). The absence of an express obligation on the part of management to refrain from assigning certain duties or to tailor the employee's position to comport with his or her asserted disability distinguishes this provision from other "light duty" proposals we have reviewed. Moreover, we note that the provision requires that, in acting on an employee's written request, management comply with "applicable rules and regulations" in addition to medical recommendations. Thus, management would retain the discretion to not make such work assignments if it so chooses.

In our view, therefore, Provision 6 permits employees to request, for certifiable medical reasons, to perform less arduous work, for which they are qualified, than that which they are usually assigned, if such less arduous work is available for them to perform. The Agency is obligated to make a reasonable effort to grant requests for such available work only in accordance with "applicable rules and regulations." Consequently, we find Provision 6 to be a negotiable procedure within the meaning of 7106(b)(2) of the Statute to be followed by the Agency in exercising its right to assign work. [ v29 p11 ]

VIII. Provision 7

Article 19 - Adverse Actions

Section 3. Only that information and evidence furnished the employee and/or the union may be used against an employee in an adverse action proceeding.

A. Positions of the Parties

The Agency contends that the provision interferes with its internal security practices under section 7106(a)(1) of the Statute by dictating the timing and extent of investigations of alleged employee misconduct. The Agency explains that, in its view, the provision would bar the use of evidence discovered subsequent to notification of the Agency's intention to take an adverse action and would result in an inability to take disciplinary action. This latter result, the Agency asserts, is also inconsistent with its section 7106(a)(2)(A) right to discipline. The Agency also characterizes the provision as a per se "exclusionary rule" and/or a "discovery mechanism." Noting that the matters covered by the provision may either be arbitrated under the negotiated grievance procedure or appealed to the Merit Systems Protection Board (MSPB), the Agency contends that the provision impermissibly usurps the MSPB's rule-making authority.

The Union asserts that the Agency's "internal security" argument is actually a compelling need assertion in disguise. The "practice" alluded to by the Agency, the Union states, is actually an internal Agency regulation. The Union contends that the provision limits neither the gathering nor use of evidence. It merely creates a substantive "due process right" to know the charges and evidence involved in a disciplinary action.

B. Analysis and Conclusion

Provision 7 in this case is to the same effect as Proposal 4 found nonnegotiable in Overseas Education Association, Inc., and Department of Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987). Proposal 4 in that case essentially required that records to which an employee has not been granted access would not be used to affect adversely the employee. In finding that proposal to be nonnegotiable the Authority noted that the proposal made no allowances for [ v29 p12 ] situations where disclosure of information would be inconsistent with law and Government-wide rule or regulation. Specifically cited were regulations of the Office of Personnel Management barring the release of medical information to an employee "concerning a mental or other condition of such a nature that a prudent physician would hesitate to inform a person suffering from it of exact nature and probable outcome(.)" Because the proposal in that case did not allow the agency to comply with legal and regulatory restrictions on the disclosure of information, it violated section 7117 of the Statute. Accord American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 34 (1987) (Proposal 7e).

The proposal in Office of Dependents Schools did not expressly concern release of information directly related to adverse action proceedings. However, in the governing Office of Personnel Management (OPM) regulations, it is recognized that the kind of medical information which was pivotal to the decision in Office of Dependents Schools may also be a factor in an adverse action proceeding. 5 CFR 752.404(b)(1)((b)(3)(iii), and (b)(3)(iv) (1987). Because Provision 7 makes no allowance for the legal or regulatory prohibition against release to an employee of certain information, it is inconsistent with a Government-wide regulation and outside the duty to bargain under section 7117(a)(1) of the Statute.

IX. Provision 8

Article 19

Section 4. The parties agree that adverse action will only be taken for just and sufficient cause and the penalty will fit the offense.

A. Positions of the Parties

The Agency states its position on Provision 8 in the following manner: "(w)e presume that the parties intended for this sentence to be synonymous with the statutory standard of 'such cause as will promote the efficiency of the service' in which case we have no objection. Otherwise, the provision is inconsistent with 5 U.S.C. 7513, and thus, 5 U.S.C. 7106(a)(2)(A)." Agency Statement of Position at 20. The Agency concludes that since the Union elected to appeal rather than to elaborate on the provision's intent, the Union intended the private sector "just cause" standard be applied rather than the statutory standard. [ v29 p13 ]

The Union argues that Article 2, Section 1 of the parties negotiated agreement requires the agreement to be administered in accordance with applicable rules and regulations. Thus, according to the Union, an arbitrator would be bound by the same standards applied by the MSPB in reviewing actions. Further, in the Union's view, it is entirely appropriate for the parties to agree to certain standards of due process to which the Agency must adhere in order to comply with either the contractual just cause or statutory efficiency of the service standard in taking adverse actions.

B. Analysis and Conclusion

It is clear that, if a disciplinary action taken under 5 U.S.C. Chapter 75 is grieved under a negotiated grievance procedure, an arbitrator must apply the same standards in deciding the case as would be applied by an administrative law judge or an appeals officer if, instead, the case had been appealed through the appellate procedures of 5 U.S.C. 7701. Cornelius v. Nutt, 472 U.S. 648, 660-61 (1985). The arbitrator must follow the same rules governing burden of proof, standard of proof and the harmful error rule in determining whether a disciplinary action is for "such cause as will promote the efficiency of the service."

Further, the Authority has indicated that an arbitrator's finding that discipline was not for "just cause" is effectively a determination that the discipline was not for "such cause as will promote the efficiency of the service." American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986). In this respect, the Union has expressly indicated that this clause is subject to Article 2, Section 1 of the agreement which specifically requires that the agreement be administered in accordance with applicable laws, rules and regulations. Reply Brief at 26.

Consequently, we find the Agency has not sustained its claim that this provision is intended to establish a standard of review different from "such cause as will promote the efficiency of the service" as required by 5 U.S.C. Chapter 75. Thus, Provision 8 is negotiable.

X. Provision 9

Article 20 - Disciplinary Action

Section 1. A disciplinary action is a penalty Imposed by the Employer when an employee's [ v29 p14 ] action is alleged to have violated a law, regulation, rule, proper instruction from supervisory personnel, security procedures, or not to conform to acceptable established standards of conduct or office procedures. The disciplinary action manifests itself as a written reprimand or suspension of 14 days or less. The parties to this agreement agree that employees will only be subject to disciplinary action for fair, and sufficient cause, and that the penalty will fit the offense.

A. Positions of the Parties

The Agency asserts that the provision can be read so as to establish a standard for disciplinary action different from that prescribed by 5 U.S.C. 7503. Therefore, the provision interferes with the right to discipline under section 7106(a)(1)(A) of the Statute.

The Union did not respond to the Agency's position on Provision 9. However, because the dispute also involves a "just cause" provision, we believe that the Union's position on Provision 8 is also intended to apply to this dispute.

B. Analysis and Conclusion

As noted with regard to Provision 8, an arbitrator's finding that a disciplinary action cannot be sustained because it was not for just cause effectively constitutes an affirmative finding that the discipline was not for such cause as will promote the efficiency of the service. Consequently, based on the reasoning in Northeastern Program Service Center, 22 FLRA No. 19 (1986) (fully cited in our discussion of Provision 8) Provision 9 does not establish a standard inconsistent with law and is within the duty to bargain.

XI. Provisions 10 and 11

Article 20

Section 4. If the Employer decides that an employee should be reprimanded, the written proposed reprimand will be delivered to the Employee within ten (10) work days of when the Employer became aware of the basis of the proposed reprimand. [ v29 p15 ]

Section 5. If a suspension is proposed, the proposed disciplinary letter will be delivered to the employee no later than 15 work days after the Employer became aware of the incident and has investigated it.

A. Positions of the Parties

The Agency contends that these provisions are inconsistent with section 7106(a)(1) and (2) of the Statute and 5 U.S.C. 7701(c)(2) in that they would absolutely bar management's taking disciplinary action against an employee after the specified time limits. According to the Agency, the provisions also infringe on its determinations concerning internal security practices by dictating when investigations must be undertaken and completed.

The Union contends that the proposals are negotiable procedures under section 7106(b)(2) of the Statute. The Union also asserts that the provisions further the statutory requirement that negotiated grievance procedures be expeditious.

B. Analysis and Conclusion

Provisions 10 and 11 are to the same effect as the proposal found nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 2298 and Department of the Navy, Naval Weapons Station, Charleston, South Carolina, 26 FLRA No. 19 (1987). The proposal in that case required that disciplinary action be initiated within 30 calendar days after either the occurrence of the event or management's becoming aware of the occurrence. We found that the proposal created a contractual "statute of limitations" and, in certain circumstances, would prevent the agency from exercising its reserved right under section 7106(a)(2)(A) to discipline employees. We also found that the proposal's substantive interference with a management right placed it outside the scope of section 7106(b)(2) which requires negotiation of procedures to be followed by management in exercising its reserved rights.

Because the provisions here also establish contractual time limits beyond which the Agency cannot exercise its right to discipline, based on the reasons and cases cited in Naval Weapons Station, Charleston, they are outside the duty to bargain. See also National Federation of Federal Employees, Local 618 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 [ v29 p16 ] (1985) (Provision 2) affirmed sub nom. National Federation of Federal Employees, Local 618 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986).

XII. Provision 12

Article 20

Section 6. The charges must be limited to those for which the employee has not previously been charged and must not include charges from which he or she has been absolved. The period of reckoning is two (2) years.

A. Positions of the Parties

The Agency asserts that the provision would prevent the exercise of the right to discipline in several circumstances:

(1) when the Agency itself detects a procedural flaw in a proposed disciplinary action and therefore cancels the action in order to restart it without the defect;

(2) when the Agency, after instituting the disciplinary action, uncovers evidence of more serious misconduct and then cancels the action to institute an action with a more serious charge encompassing the prior charge;

(3) when the Agency reinitiates disciplinary action based on previous charges which were invalidated on procedural grounds.

The Agency also contends that a "double jeopardy" argument is inappropriate because jeopardy does not attach prior to a final decision on the merits of a case. The provision, it notes, is not limited to those circumstances where there has been a final merits decision.

The Union contends that the provision is intended to shield employees from being continually subjected to charges which previously have been dropped. The Union further asserts that there is no management right to subject employees to repeated, redundant charges once the charges have been dismissed by, for example, an arbitrator.

B. Analysis and Conclusion

This provision expressly would prevent the Agency from withdrawing a notice of proposed discipline and instituting a [ v29 p17 ] new disciplinary action encompassing the same charge. This prohibition would apply even if the question of misconduct had not been decided on the merits. Thus, even if the Agency, on its own motion, withdrew the proposal to discipline because of procedural defects or because evidence dictated that a more severe degree of discipline might be appropriate, the Agency would not be able to reinstitute the disciplinary action. In our view, the broad prohibition in Provision 12 against reinstituting disciplinary action would, in the circumstances described, prevent management from exercising its right under section 7106(a)(2)(A).

In further support of this conclusion, we turn to Federal Personnel Manual (FPM) Chapter 752, issued by the Office of Personnel Management pursuant to legislative direction contained in 5 U.S.C. 7504 and 7514. This FPM chapter is deemed to be a "Government-wide" regulation because it applies generally to employees in the competitive service, except for probationers. FPM Chapter 752, subchapter 3-2(e)(5) provides that "(i)f an agency decides that a more severe action than originally proposed is appropriate in a case, it must give the employee a new advance notice to propose the more severe action, so that again the employee may have a chance to defend himself or herself." Provision 12 would either prevent the Agency from complying with the FPM requirement, or, if the Agency did comply, would invalidate the disciplinary action because the new notice would constitute the second charge for the same offense. Accordingly, we find the Provision is inconsistent with management's right to take disciplinary action and is violative of a Government-wide regulation because it would prevent the Agency from acting in compliance with FPM Chapter 752, subchapter 3-2(e)(5). Therefore, it is outside the duty to bargain.

XIII. Provision 13

Article 20

Section 9. The Employer agrees that no disciplinary action shall be taken against any employee for supplying information, giving testimony, or acting as a representative.

A. Positions of the Parties

The Agency contends that the provision would permit employees to supply information in violation of the Privacy Act and several Government-wide regulations. In the Agency's [ v29 p18 ] view, the provision would also prevent disciplining employees for any conduct occurring while acting as a representative, in violation of Authority precedent. Therefore, the Agency argues, the provision is inconsistent with its right under section 7106(a)(2)(A) of the Statute to impose discipline.

The Union contends that another provision of the agreement requires that the one disputed here be interpreted consistent with law and regulations. Hence, the provision's purpose is to protect employees from reprisals for engaging in activity protected by law.

B. Analysis and Conclusion

In agreement with the Agency we find that Provision 13 is inconsistent with the right to discipline under section 7106(a)(2)(A) of the Statute. The Authority has held that conduct by a union representative exceeding the boundaries of "robust debate" is not protected activity. In Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 26 FLRA No. 14 (1987), petition for review filed sub nom. American Federation of Government Employees, Local 2031 v. FLRA No. 87-1199 (D.C. Cir. May 4, 1987), we held that disciplining a local union president for harsh criticism of a management official which included racial epithets and disparagements was not an unfair labor practice. Although such harsh criticism would otherwise have been protected activity, the local president's attack was outside the protected area.

In United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985), the Authority adopted the Administrative Law Judge's findings, conclusions and recommended order dismissing an unfair labor practice complaint against the agency. The agency had disciplined the local union president for sending to a Korean newspaper a letter which aired certain labor relations problems and contained criticism of the installation's commander. The Judge found the criticism to be so "derogatory and/or defamatory so as to be prejudicial to the U.S. Government." Such criticism, the Judge held, loses the protection of the Statute.

Under Provision 13, however, employees would be insulated from the discipline imposed in the cited cases. Provision 13 fails to recognize that conduct, while on the surface appearing to be protected activity, may be so flagrant as to remove it from the protection of the Statute. Consequently, we find the provision in conflict with the reserved right to discipline. [ v29 p19 ]

Contrary to the Agency's view and consistent with the Union's stated intent, we do not construe Provision 13 as insulating employees from discipline for furnishing information or testimony, the content of which violates the Privacy Act or other laws or regulations. Hence, insofar as these issues are concerned, the provision would be within the Agency's duty to bargain. In this regard, see 5 U.S.C. 2302(b)(8) concerning reprisals for disclosure of information and 5 U.S.C 7116(a)(4) concerning complaints, affidavits, petitions, information and testimony of employees.

XIV. Provision 14

Article 21 - Grievance Procedure

Section 4. Appeal and Grievance Options An aggrieved employee affected by discrimination, a removal or reduction in grade based on unacceptable performance, or adverse action as defined in Article 19 may raise at his/her option the matter under a statutory appellate procedure or the negotiated grievance procedure, but not both, with one exception. The exception is that if an employee has pursued a grievance of an action otherwise appealable to the Merit Systems Protection Board (MSPB) through arbitration and if the grievance involved an allegation of discrimination, then the employee retains the right to request review of a final decision by the MSPB.

A. Positions of the Parties

The Agency asserts that the provision is inconsistent with section 7121(d) of the Statute because it does not make reference to the right of appeal to the Equal Employment Opportunity Commission (EEOC).

The Union acknowledges the omission noted by the Agency and states its "agreement with the agency . . . that this section should be modified to include access to the EEOC as well as the MSPB." Petition for Review at 9. However, the Union contends that the provision as written does not preclude an employee's right to review by the EEOC.

B. Analysis and Conclusion

Section 7121(d) of the Statute provides that an employee affected by a discrimination matter as defined by 5 U.S.C. 2302(b)(1) may raise the matter under either a [ v29 p20 ] statutory appeal procedure or under a negotiated grievance/ arbitration procedure. In circumstances where the employee raises the discrimination matter in the negotiated grievance procedure, section 7121(d) expressly authorizes the employee to appeal an arbitrator's final decision on the matter as follows:

Selection of the grievance procedure in no manner prejudices the right of an aggrieved employee to request the (MSPB) to review the final decision . . . in the case of any personnel action which could have been appealed to the Board, or where applicable, to request (EEOC) to review a final decision in any other matter involving a complaint of the type prohibited by any law administered by the (EEOC).

Because this provision references only an appeal to MSPB it is inconsistent with the express provisions of section 7121(d) and, thus, it is nonnegotiable.

While the Union may have intended this provision to reiterate or explain an employee's rights of appeal in situations involving discrimination matters, we note that a negotiated agreement presumably is furnished, or readily available to, unit employees and their representatives. As such, the agreement is apt to be their first point of reference in ascertaining employee rights in reference to management actions. Reliance on the agreement would not inform employees in this case of the appeal right not mentioned in the provision. Consequently, employees may fail to avail themselves of that appeal channel, to their detriment.

Further, we believe the dispute over the language in this case should have been resolved by the parties without the need for a negotiability determination by us. The Agency objected to the provision's omission to an appeal right to EEOC and the Union acknowledged the omission. In these circumstances, it seems clear that a simple modification to the provision's language would have settled the issue.

XV. Provision 15

Article 22 - Arbitration

Section 10. The arbitrator's award shall be binding on the parties. However, either party may file exceptions to an award with the Federal Labor Relations Authority under regulations prescribed by the Authority. [ v29 p21 ]

A. Positions of the Parties

The Agency asserts that the provision is nonnegotiable because it fails to note that judicial review is the only recourse for arbitration awards issued under section 7121(f) of the Statute.

The Union contends that reference to "regulations prescribed by the Authority" makes the provision consistent with applicable law.

B. Analysis and Conclusion

We agree with the Union. The provision incorporates by reference our Rules and Regulations. Section 2425.3(b) of the Rules and Regulations enumerates the types of exceptions to arbitration awards we will not consider. Consequently the provision is neither misleading nor does it purport to confer upon us jurisdiction beyond that prescribed by the Statute. The provision, therefore, is within the duty to bargain.

XVI. Provision 16

Article 23 - Travel for Grievance and Arbitration

The Employer will pay the travel expenses and the per diem of the grievant and the Union Representative for a meeting/hearing for the purpose of investigating or adjusting a grievance if either the grievant or the Union Representative does not live or work within a 15 mile radius of the metropolitan area where the meeting/hearing is to take place.

A. Positions of the Parties

The Agency contends that the provision is nonnegotiable for two reasons: (1) the provision violates Government-wide regulations in that it provides for per diem in a commuting situation where subsistence only is prescribed; (2) the provision apparently requires paying per diem and travel expenses whether or not the Union representative is a Federal employee, in violation of law.

The Union contends that the provision is intended to comply with applicable travel regulations and is only intended to apply to employees in the bargaining unit. [ v29 p22 ]

B. Analysis and Conclusion

We find nothing in the express language of the provision or in the record to support the Agency's claim that the term "the Union Representative" is intended to include persons who are not members of the bargaining unit. Rather, the Union expressly indicates that the provision applies only to employees. Reply Brief at 39. Thus, we find that this provision applies only to members of the bargaining unit.

However, the Union does not dispute that in some circumstances covered by the provision employees would not be entitled to both per diem and travel expenses under applicable regulations. In this respect, we cannot agree with the Union that the provision's objective merely is to confer on employees whatever payments regulations authorize.

The mandatory tone of the provision along with the absence of any reference in the provision to the fact that regulations may preclude payment of some or all of the types of expenses listed, contradicts the Union's explanation of the provision's purpose. Hence, we agree with the Agency that the provision is outside the duty to bargain because, in certain circumstances, it would require payments in violation of Government-wide regulations.

XVII. Provision 17

Article 25

Section b. The provisions of this agreement which conflict with a national agreement shall expire on the date the national agreement goes into effect and all other items of the agreement remain in effect.

A. Positions of the Parties

The Agency argues that continuation of any local agreement subsequent to the recognition of a larger bargaining unit is dependent upon authorization by the parties at the level of recognition. The Agency asserts that the provision is an attempt to prevent the parties at any higher level of recognition from agreeing that there will be no supplemental agreements, in violation of section 7116(a)(1) or (5) and (8) and section 7116(b)(5) and (8) of the Statute.

The Union contends that the provision would not circumscribe bargaining at a higher level of recognition. Rather, if an agreement at that level were to supersede or specifically bar supplemental agreements, the provision would [ v29 p 23 ] provide for termination of this agreement. However, in the event that supplemental agreements were not barred, under this provision any matters not expressly cancelled by the master agreement would remain in effect.

B. Analysis and Conclusion

We do not find that the Agency's interpretation of the provision is supported by the provision's plain language. The provision is an effort to provide for the disposition of the negotiated agreement in the event that a unit consolidation occurs and an agreement is negotiated at the consolidated level of recognition. Rather than dictating any terms to be included in the higher level agreement, the provision looks to that agreement to determine the fate of the terms of the agreement in which it appears. That is, the higher level agreement would determine what terms, if any, of the agreement here would remain in effect. Consequently, we cannot agree with the Agency that the provision is an impermissible impediment to bargaining at a higher level of recognition. Accordingly, we find the provision to be within the Agency's duty to bargain.

XVIII. Order

The Agency must rescind its disapproval of Provisions 2, 5, 6, 8, 9, 15 and 17. 1 The Union's petition for review as it relates to Provisions 1, 3, 4, 7, 10, 11, 12, 13, 14 and 16 is dismissed.

Issued, Washington, D.C., September 25, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p24 ]

FOOTNOTES

Footnote 1 In finding these provisions to be within the duty to bargain, we make no judgment as to their merits.

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