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 29 FLRA NO. 122

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES

     Union

     and

DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT

     Agency

Case No. 0-NG-1141

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of 16 provisions of a local agreement disapproved by the Agency head under section 7114(c) of the Statute.

For the reasons which follow, we conclude that Provisions 1, 2, 3, 4, 5, 6, 7 and 10, Provision 13 in part and Provision 16 in part are negotiable. Provisions 8, 11 and 12, Provision 13 in part, Provisions 14 and 15 and Provision 16 in part are nonnegotiable. Provision 9 and Provision 16 in part are found negotiable in a separate opinion (Chairman Calhoun concurring in part and dissenting in part).

II. Provision 1

Article XIV

Section 14.2. DEVELOPMENT OF PERFORMANCE STANDARDS:

The BLM and the Union agree that the development of performance standards and the identification of critical elements will be a joint effort between the employee and the supervisor. If they cannot agree, the supervisor will set the standards for the coming rating year. The standards and identified critical elements shall be put in writing and signed or initialed by the employee and the supervisor; initialing indicates each has seen and discussed them. Further amendments may be made during the rating year, and these amendments will be noted with the party's initials. 1

A. Positions of the Parties

The Agency contends that the provision is outside the duty to bargain because it would require negotiations on performance standards and critical elements. The Union contends that the provision merely reflects the requirements of applicable law that employees be allowed input into the development of performance standards.

B. Analysis and Conclusion

Provision 1 here is to the same effect as the first sentence of Proposal 1 found negotiable in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 116 (1987) (Proposal 1). In that case, the first sentence of Proposal 1 required the supervisor to hold a meeting with employees to permit then to provide input on a performance appraisal plan. In finding the first sentence of Proposal 1 in that case to be negotiable, we determined that it was well established under Authority precedent that 5 U.S.C. 4302(a)(2) encouraged employee participation in establishing performance standards without specifying the form which such participation must take. Thus, we noted that the manner in which a particular agency provides for such participation is within an agency's discretion and within the duty to bargain to the extent that it would not prevent the agency from establishing performance standards and critical elements under section 7106(a)(2)(A) and (B) of the Statute.

Similarly, Provision 1 in this case also concerns the manner in which the Agency will meet the requirement of 5 U.S.C. 4302(a)(2) to include employee participation in the establishment of performance standards without specifying the form of the supervisor's participation. Thus, based on the reasons and cases cited in Patent and Trademark Office, we find Provision 1 to be negotiable.

III. Provision 2

Article XV

Section 15.9(c).

Administrative details of thirty (30) days or less to perform duties of a higher level or in a different line of work shall be rotated to the fullest extent practicable.

A. Positions of the Parties

The Agency contends that the provision violates management's rights to assign employees and to assign work under section 7106 (a)(2)(A) and (B) of the Statute. The Union contends that the provision is a negotiable procedure, under section 7106(b)(2) of the Statute, and is consistent with law, specifically, 5 U.S.C. 2302(b)(6).

B. Analysis and Conclusion

The provision provides that administrative details of 30 days or less to perform certain duties would be rotated to the fullest extent practicable. The Agency argues that the provision would require it to rotate the assignments on the basis of whether an employee had previously been assigned rather than that employees' qualifications for the assignment.

The Authority has consistently held that under section 7106(a)(2)(A) of the Statute management retains discretion as to the personnel requirements of the work of the position, that is, the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment and reliability. American Federation of government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 612-13 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

Furthermore management's right to assign work under section 7106(a)(2)(B) encompasses discretion to establish the particular qualifications and skills needed to perform the work to be done, and to exercise judgment in determining whether a particular employee meets those qualifications. Thus, when management determines that only one employee possesses the requisite qualifications to do certain work, section 7106(a)(2)(B) reserves to management the right to assign the work to that particular employee. Wright-Patterson, 2 FLRA at 631. Where, however, in management's judgment, two or more employees are equally qualified and capable of performing the work, the selection of any one of those employees to perform the work would be consistent with management's exercise of its discretion. Under such circumstances, the procedures by which employees previously judged by management to be equally qualified will be selected to perform the work are negotiable. Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982).

Likewise, Provision 2 does not seek to prescribe the qualifications and skills necessary to perform a particular work assignment. Rather, it merely sets forth a procedure the Agency would use when selecting employees previously determined by management to be qualified to perform the work required in the detail. Union Response at 4. See Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA 848 (1985), enforced sub nom. United States Naval Ordnance Station, Louisville, Kentucky v. FLRA, 818 F.2d 545 (6th Cir. 1987). Thus, Provision 2 is within the duty to bargain.

IV. Provision 3

Article XV

Section 15.10. TEMPORARY PROMOTION:

An employee temporarily placed in a higher grade position or assigned to a group of duties warranting a higher grade shall be temporarily promoted and shall be paid commensurate with the position or duties from the first day of the effective date of the temporary promotion. The temporary promotion or sixty (60) days or more will be made based on competitive procedures.

A. Positions of the Parties

The Agency contends that the provision is outside the duty to bargain because it violates: (1) Government-wide regulations; (2) section 7103 (a)(14)(B) of the Statute; and (3) management's rights to select and promote employees under section 7106 (a)(2)(C).

The Union contends that the Agency has misinterpreted the provision and denies that it is outside the duty to bargain for any of the reasons provided by the Agency. The Union contends that the provision is merely a procedure which the Agency will observe in exercising its rights under the Statute.

B. Analysis and Conclusion

The dispute between the parties concerns only the first sentence of this provision. This sentence would require the Agency to "temporarily promote" employees "temporarily placed" in a higher grade position or assigned to a group of duties warranting a higher grade. For the reasons set forth below, we find that the provision is within the Agency's duty to bargain.

The Agency first argues that the provision conflicts with the time-in-grade requirements of 5 C.F.R. 300.602 and with the position classification requirements of Federal Personnel Manual (FPM) chapter 511-9, subchapter 3-2. The Union, however, clearly states that it does not intend the provision to be applied in any fashion which would violate applicable laws or regulations. Moreover, we find nothing in the language of the provision requiring that it be applied in any manner inconsistent with the regulations cited by the Agency. Absent an indication in the provision itself or in the record that the Union intends otherwise, the provision must be interpreted as consistent with applicable law. Therefore, this Agency contention is without merit.

The Agency next argues that the provision is outside the duty to bargain under sections 7103(a)(14)(B) and 7106(a)(2)(C) of the Statute. However, the Agency has failed to demonstrate that the provision either requires negotiation over the classification of any position, or that it violates management's rights to select or promote employees. Rather, the provision only requires the Agency to compensate employees at the rate of a higher graded position after the Agency has selected and assigned the employee to that higher grade position. Therefore, these Agency contentions are without merit.

In our view, the provision is similar to ones found negotiable in National Association of Government Employees, Local R12-29 and Department of the Navy, Naval Construction Battalion Center, Port Hueneme, California, 19 FLRA 939 (1985); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 628 (1980) (Proposal XV), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), and Methods and Standards Association and Naval Air Rework Facility, Naval Air Station, Pensacola, Florida, 2 FLRA 286 (1979). In those cases the Authority determined that proposals requiring the temporary promotion of employees officially assigned to a higher graded position, or to the duties of a higher graded position, for certain specified time periods were within the duty to bargain.

Accordingly, we conclude that Provision 3 is within the duty to bargain.

V. Provisions 4 and 7

Provision 4

Article XV

Section 15.11.

Policies and procedures set forth in this negotiated article take precedence over those set forth in the BLM Manual 1400-335. Otherwise, the procedures set forth in that manual chapter will be followed.

Provision 7

Article XIV

Section 16.7. UPWARD MOBILITY:

The Upward Mobility Program is a program designed to focus personnel policy and practices on the development and implementation of specific career opportunities for lower level employees (at GS-9 or below or wage equivalent) who are in positions or occupational series which do not enable them to realize their full work potential.

The Bureau of Land Management and the Union are committed to use the Upward Mobility Program. The policies and procedures described in BLM Manual 1400-330, to the extent consistent with this article, will be followed in carrying out the Upward Mobility Program. The Program shall be open to all employees who meet the criteria established by BLM regulations.

A. Positions of the Parties

Bureau of Land Management (BLM) Manual 1400-335 refers to an Agency regulation which concerns merit promotion policies and procedures. The Agency contends that Provision 4 conflicts with section 7116(a)(7) of the Statute. It also contends that the provision would prohibit the enforcement of legislation in conflict with the agreement. More particularly, the Agency states that a BLM Manual on any subject matter covered by the FPM consists of repeating Government-wide regulations and setting forth those matters in which it has discretion. The Agency claims, in effect, that a change in a Government-wide rule or regulation implementing 5 U.S.C. 2302 would "most likely" require a change in BLM Manual 1400-335. The Agency states that as this provision would prohibit such a change, it is nonnegotiable. Statement of Position at 9.

The Agency also asserts that the provision would prohibit the enforcement of subsequent legislation through BLM Manuals which are in conflict with this provision. As to Provision 7, the Agency argues that it would prevent changes in BLM Manual 1400-300 which may be mandated by law and would conflict with section 116(a)(7) of the Statute. Therefore, according to the Agency, the provision is nonnegotiable.

The Union contends there is no merit in the Agency's position, and that the provisions constitute negotiable procedures.

B. Analysis and Conclusion

Contrary to the Agency's assertions, we find both provisions to be within the duty to bargain for the following reasons:

1. Provision 4

In our view, the provision would have the following effects: (1) it would essentially require the Agency to waive the application of its own regulation, BLM Manual 1400-335 with regard to matters that are covered by the parties' agreement; and (2) it would give precedence to policies and procedures set forth in the agreement over subsequently made changes to the BLM Manual.

We have previously found provisions having these effects to be within the duty to bargain and not to be inconsistent with section 7116(a) (7) of the Statute. 2 See International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 1) and cases cited therein.

Nothing in the Statute prevents the Agency from agreeing to waive the application of its own regulation where matters are covered by the parties' collective bargaining agreement. The Agency would not be precluded from making changes in the BLM Manual. It would simply be precluded from applying those changes that are in conflict with the negotiated agreement to those employees who are covered by the agreement. Also, there is nothing in the language of the provision itself to indicate that the agreement would not have to be in compliance with existing Government-wide regulations that are in effect at the time the agreement is executed. See Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203 (1987) (Provision 6), petition for review filed sub nom. Board of Education of the Fort Knox FLRA, No. 87-3702 (6th Cir. July 24, 1987).

Further, we find no merit to the Agency's contentions that it would be precluded from making changes in the BLM Manual regarding 5 U.S.C. 2302 matters and from enforcing subsequent legislation through the BLM Manual that is in conflict with the agreement. The Agency has not specifically demonstrated that BLM Manual 1400-335 concerns a 5 U.S.C. 2302 matter, nor has it identified any specific Government-wide regulations which the BLM Manual presumably implements.

Moreover, the Union has pointed out that Article 4, Section 4.3 of the parties' collective bargaining agreement, which was not disapproved by the Agency head, provides that "in the administration of all matters covered by the Agreement, officials and employees are governed by existing or future laws ... of appropriate authorities(.)" Reply Brief at 12.

2. Provision 7

As noted above, the Agency claims that this provision would prevent changes in BLM Manual 1400-300 which may be mandated by law and that it would also conflict with section 7116(a)(7) of the Statute. For the same reasons that we rejected the Agency's arguments to this effect with regard to Provision 4, we do the same here. That is, the Agency has not identified any specific law or Government-wide regulation with which the provision conflicts. Further, the Agency has not in any manner demonstrated that the provision conflicts with section 7116(a) (7) of the Statute.

Based on the foregoing analysis, we find that Provisions 4 and 7 do not conflict with section 7116(a) (7) of the Statute; do not conflict with other applicable law or regulation; and would not prohibit the enforcement of subsequent legislation in conflict with the agreement. Therefore, we conclude that Provisions 4 and 7 constitute negotiable procedures under section 7106(b)(2) of the Statute.

VI. Provisions 5 and 6

Provision 5

Article XVI

Section 16.5. UNION REPRESENTATION:

An employee discussing a problem of alleged discrimination with an EEO counselor or at any step of the EEO complaint procedure has the right to be accompanied by a union representative of his/her choice, if he/she so desires. Once a complaint has been filed, the Union may attend any subsequent formal discussion, hearing, or investigation concerning the complaint. 3

Provision 6

Article XVI

Section 16.6. OFFICIAL TIME:

An employee and his/her representative, if the representative is an employee, shall be given a reasonable amount of time to prepare and present a complaint or any subsequent appeal. A complainant and/or the representative shall be given official time to attend any conference, meeting, hearing, investigation, or trial in connection with an EEO complaint provided a written complaint has been filed.

A. Positions of the Parties

According to the Agency, both provisions concern the processing of Equal Employment Opportunity (EEO) matters under procedures established in FPM chapter 713, rather than under the parties' negotiated grievance procedures. it contends that the provisions violate various subchapters of FPM Chapter 713 by undermining the impartiality of EEO investigations, as required by those sections of the FPM.

The Union contends that the provisions concern Union representation and consequently relate to conditions of employment over which they are entitled to bargain. it states specifically that for this reason, the Agency's arguments dealing with the EEO provisions in the FPM are without merit.

B. Analysis and Conclusion

In order to establish that the provisions are outside the duty to bargain under section 7117 of the Statute on the basis alleged by the Agency, the Agency would have to establish that FPM Chapter 713 is a Government-wide rule or regulation with which the provisions are inconsistent. The Agency has made no claim that FPM Chapter 713 is a Government-wide rule or regulation. Instead, the Agency has merely cited to provisions of that chapter which stress the need for impartial consideration and investigation of EEO complaints within an agency. More particularly, with regard to Provision 6, the Agency has also cited to that portion of the FPM which grants a reasonable amount of time to an employee or the employee's representative for the processing of an EEO complaint.

Even assuming that FPM Chapter 713 is a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute, we conclude that the Agency has failed to demonstrate that Provisions 5 and 6 are inconsistent with that Chapter so as to bar negotiations. Moreover, the Agency has not alleged and it does not otherwise appear that the provisions are inconsistent with any other law, rule or regulation. Therefore, and for the reasons more fully set forth below, we find the provisions to be within the duty to bargain.

1. Provision 5

Provision 5 would authorize union representation at any formal discussions, hearings or investigations concerning an EEO matter once an EEO complaint has been filed. In this manner, the provision is to the same effect as provisions previously found to be within the duty to bargain. In American Federation of Government Employees, AFL-CIO Local 1770 and Department of the Army, Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 28 FLRA 493 (1987) (Provision 1, Section 8), petition for review filed sub nom. Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 87-2661 (4th Cir. Sept. 22, 1987), the provision granted the union the right to have reasonable representation at all formal discussions between the employer and an employee concerning EEO complaints. In finding the provision negotiable, we ascribed to the phrase formal discussion the same meaning that it has under section 7114 (a)(2)(A) of the Statute. In this decision, we adopt the same interpretation. Also, in American Federation of Government Employees, Local 2182, AFL-CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA 600 (1987) (Provision 1), we found negotiable a provision concerning the right of the union to have an observer present at EEO complaint hearings.

While the issue of union attendance at an investigation was not raised in either of the cited cases, as it is in Provision 5, the analysis which formed the basis of our conclusion in U.S. Army Research and Technology Laboratories is equally applicable here. In that case we found that the regulations of the Equal Employment Opportunity Commission (EEOC) grant to agencies the responsibility for establishing regulations governing their processing of complaints of discrimination and require that agencies ensure that their regulations comply with certain principles and regulations established by the EEOC. 29 C.F.R. 1613.211 through 1613.222. We found that EEOC procedural regulations serve only as guidelines to agencies and are, therefore, within an agency's discretion. The particular procedural regulation involved in U.S. Army Research and Technology Laboratories concerned attendance at discrimination complaint hearings. Since this was a matter within the agency's discretion, the provision was within the duty to bargain.

Likewise, the EEOC regulations governing investigations are procedural in nature. As such, matters concerning investigations are within the Agency's discretion to bargain. Apart from its arguments concerning FPM Chapter 713, which were previously addressed, the Agency has not asserted that bargaining over the matter would be inconsistent with any other applicable law, rule or regulation. Therefore, we find the portion of the provision dealing with attendance at investigations to be within the duty to bargain, as is the remainder of the provision for the reasons stated.

2. Provision 6

Provision 6 would authorize official time for various activities relating to a written EEO complaint. We note that the regulations of the EEOC as well as the provision of the FPM relied on by the Agency grant an employee or his representative a reasonable amount of official time for the presentation of an EEO complaint. 5 C.F.R. 1613.214 and FPM Chapter 713, Appendix B, B-4. The portion of the provision here that is not in dispute appears to be consistent with these provisions. The disputed portion, however, would extend the authorization of official time for other matters related to the EEO complaint.

Section 7131(d) of the Statute permits the negotiation of official time under various circumstances. 4 As we stated in National Archives and Records Administration, 24 FLRA 245 (1986), the plain language of the section indicates that official time may be negotiated for an employee representing an exclusive representative or in connection with matters covered by the Statute. The legislative history of the Statute confirms that official time negotiated under section 7131(d) is to be used for labor-management relations activities. Here, we find that official time is being sought in connection with matters relating to the processing of EEO complaints. In our view, this concerns activities relating to labor-management relations. Accordingly, we find Provision 6 to be within the duty to bargain.

VII. Provision 8

Article XVII

Section 17.1(a).

Prior to issuing a proposed notice of disciplinary action or adverse action, the supervisor will undertake any appropriate inquiry or investigation and will meet with the employee(s) and his/her (their) representative, if the employee requests representation. As appropriate, appropriate counseling will be provided to notify the employee of employer's expectation as to acceptable future behavior or action by the employee. Management will assure an employee who has received a proposal (sic) notice of disciplinary action, or who will receive one, is informed of management's expectations as to acceptable behavior or actions by the employee.

A. Positions of the Parties

The Agency contends, in essence, that the provision violates its rights under sections 7106(a)(1) and 7106(a)(2)(A) and (B) to determine its organization, to take disciplinary action against its employees, and to assign work. The Union contends that the provision is a negotiable procedure and does not interfere with any of the management rights cited by the Agency.

B. Analysis and Conclusion

The provision specifically requires a supervisor to undertake an appropriate inquiry or investigation prior to issuing a proposed notice of disciplinary action or adverse action. The Agency claims that the provision contemplates that it will be the immediate supervisor who will undertake the inquiry or investigation. According to the Agency, this violates management's rights to assign work and determine its organization. The Agency also argues that the provision establishes preconditions on the exercise of management's right to discipline. That is, the Agency would be required to explore the facts and circumstances before notification of discipline as a precondition of the right to take discipline. The Agency also argues in this connection that the extent of any inquiry or investigation is an internal management matter and constitutes integral deliberations concerning the relevant factors upon which management can determine whether to propose disciplinary action. What management does therefore as a part of the inquiry or investigation is part of the decision to discipline itself and therefore outside the duty to bargain.

The Agency's contention that requiring a specific supervisor to perform work violates management's right to determine its organization cannot be sustained. In this respect, the Agency has not demonstrated and it does not otherwise appear that the provision relates in any manner to the Agency's organizational structure. See National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA 214 (1986) (Proposal 1).

We also reject the Agency's arguments concerning the requirement to explore the facts and circumstances and the extent of the inquiry as placing preconditions on and being part of the exercise of management's rights. We do not view the provision as injecting the Union into the deliberative process by which management will exercise its right to discipline and we find nothing in the provision that would prevent the Agency from exercising that right.

With regard to the Agency's assertion that the provision contemplates that the immediate supervisor take the actions required, the Union claims that nothing in the provision requires that the supervisor be an employee's immediate supervisor. Rather, the Union claims that the term supervisor was intended to mean the appropriate management official with authority to issue a proposed disciplinary or adverse action. Reply Brief at 17-18.

However, whether the provision was designed to apply to an appropriate management official, as claimed by the Union, or an immediate supervisor, as claimed by the Agency, we find the provision to be inconsistent with the Agency's right under section 7106(a)(2)(B) of the Statute to assign work.

In this respect Provision 8 is to the same effect as Provision 6 found to be nonnegotiable in American Federation of Government Employees, AFL-CIO, Local 1858 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, 27 FLRA 69 (1987), petition for review filed sub nom. U.S. Army Missile Command, U.S. Army Test, Measurement, Equipment Support Group, U.S. Army Information Systems Command-Redstone Arsenal Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987). In that case, Provision 6 required that the immediate supervisor conduct an inquiry or investigation before issuing a proposed notice of disciplinary action. We found that because the provision assigned particular tasks to particular agency personnel it violated management's right under section 7106(a)(2)(B) to assign work. Thus, based on U.S. Army Missile Command, Provision 8 in this case which also assigns particular tasks to particular Agency personnel is nonnegotiable. However, this defect is easily cured. By deleting the reference to particular Agency personnel, it would be negotiable. U.S. Army Missile Command at 81.

VIII. Provision 9

The Authority Members have expressed different views concerning the negotiability of Provision 9. The Decision and Order on this provision and the separate opinion of Chairman Calhoun follow this decision.

IX. Provision 10

Article XX

Section 21.3(b). DISTRIBUTION:

Records showing the overtime work shall be maintained. The employer will make every reasonable effort to ensure that the opportunity to work overtime is shared equally among employees who are normally assigned to the work. In the event an employee does not desire to work overtime, the supervisor shall make every reasonable effort to accommodate the employee's request.

A. Positions of the Parties

The Agency contends that the disputed part of the provision interferes with its right under section 7106(a)(2)(B) to assign work. The Union contends that it does not interfere with management's right to assign work, and is negotiable because it concerns a matter which affects working conditions within the Agency's discretion.

B. Analysis and Conclusion

The Agency supports its contention by asserting that on its face the provision would preclude management from assigning overtime to supervisors or to employees other than those normally assigned the work. The Union states that the provision would not expressly limit management's ability to assign work to supervisors or to anyone management sees fit. Under the Union's interpretation, the Agency would be required to make every reasonable effort to assign overtime equally only after it decides to assign overtime work to those employees who normally perform the work involved.

Contrary to the Agency's assertions, we find nothing in the provision that would interfere with management's right to assign work. Rather, we find the provision to be to the same effect as provisions or proposals found negotiable in the following cases: Fort Bragg Dependent Schools, 28 FLRA 493 (1987) (Provision 2, Section 4 - the opportunity to work overtime will be equitably offered to all qualified employees within a particular trade or occupation); American Federation of Government Employees, AFL-CIO, Meat Grading Council of Locals and Department of Agriculture, Meat Grading and Certification Branch, 22 FLRA 496 (1986) (Proposal 2 - employee regularly assigned to a task requiring overtime will have the primary responsibility of performing the necessary service during the week and on weekends); and American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Agriculture, Food Safety and Quality S.D.C., 9 FLRA 663 (1980) (Proposal 1 - if certain types of overtime are required, they will be performed by particular employees during the workday, except in certain circumstances). In all the aforementioned cases, the basis for finding the disputed matters to be within the duty to bargain is that they were concerned only with which employee among those in the bargaining unit already assigned to perform certain work would be selected to perform that work in an overtime status. See also National Association of Government Employees, Local R4-75 and U.S. Department of the Interior National Park Service, Blue Ridge Parkway, 24 FLRA 56 (1986) (Provision 5 - a reasonable effort will be made to rotate personnel who are mission essential where less than a full workforce is required).

Likewise, Provision 10 simply would require the Agency to attempt to equalize overtime work among those employees in the unit who are already assigned to perform that work. As to the Agency's contention that the provision would preclude management from assigning overtime to supervisors or employees other than those normally assigned the work, we find nothing in the language of the provision to support this contention. Moreover, the Union stated that the provision would not limit management's ability to assign work to supervisors or anyone else management sees fit. The provision would apply only after the Agency has decided to assign overtime work to employees who normally perform the work.

Accordingly, we find Provision 10 to be within the duty to bargain.

X. Provision 11

Article XX

Section 21.5. RELIGIOUS OBSERVANCES:

An employee whose personal religious beliefs require that he/she be absent from work during scheduled work periods may elect, with the approval of his/her supervisor to engage in overtime work for time lost as the result of meeting those religious requirements. An employee who elects, and receives permission for, such overtime work shall be granted equal compensatory time off from his/her scheduled tour of duty (in lieu of overtime pay) for such religious reasons, or requirements. Except in emergency situations, such compensatory time off will be granted.

A. Positions of the Parties

The Agency contends that the disputed sentence of the provision violates its right to assign work under section 7106(a)(2)(B) of the Statute. According to the Union, the provision is negotiable since it complies with applicable laws laws and regulations.

B. Analysis and Conclusion

The disputed sentence of the provision requires that except in emergency situations, compensatory time off for religious observances will be granted. "Emergency" is defined elsewhere in the parties' agreement as "a situation which imposes sudden, immediate, and/or unforeseen work requirements as a result of natural phenomena, civil disturbances, or other circumstances beyond the Employer's reasonable control or ability to anticipate."

In American Federation of Government Employees AFL-CIO, Local 1923 and Department of Health and Human Services Social Security Administration, Baltimore, Maryland, 17 FLRA 543 (1985), the Authority determined nonnegotiable a proposal which allowed an agency to deny time off for religious observance only under unusual circumstances where such time off would severely disrupt the agency's function. The Authority also found that the proposal was inconsistent with 5 C.F.R. 550.1002 (1984), a Government-wide regulation governing the granting of compensatory time off for religious observances. This regulation requires an agency to grant employees' requests for religious compensatory time and to modify the employees' work schedules "to the extent that such modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission(.)"

As previously set forth, this provision would permit the Agency to deny an employee's request for compensatory time for religious reasons only in emergency situations. Thus, unless an emergency existed, the provision would require the Agency to modify an employee's work schedule even if such modification interfered "with the efficient accomplishment of the agency's mission." Like the proposal in Social Security Administration, Baltimore, this standard is inconsistent with the standard established by 5 C.F.R. 550.1002. See also Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy Naval Underwater Systems Center, 26 FLRA 568 (1987).

Moreover, by limiting the Agency's ability to deny an employee's request for religious compensatory time off to emergency situations only, the provision conflicts with management's right under section 7106(a)(2)(B) to assign work. The right to assign work includes the right to determine when assignments will occur and to determine when the work which has been assigned will be performed. See 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).

Accordingly, we find that the disputed part of Provision 11 is inconsistent with a Government-wide regulation and, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute. It is also inconsistent with the Agency's right to assign work, under section 7106(a)(2)(B).

XI. Provision 12

Article XX

Section 21.9. SICK LEAVE

Prior to the employee being placed on leave restriction, the employee must be counseled at least twice concerning leave abuse. Once an employee is on leave restriction, the restrictions will be reviewed every three (3) months. If the employee's use of leave improves, the leave restriction will be lifted. 5

A. Positions of the Parties

The Agency contends that the disputed part of the provision conflicts with its right to discipline employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). The Union contends that the provision is a negotiable procedure which does not prevent the Agency from acting at all in the exercise of its rights.

B.Analysis and Conclusion

It appears from the record that the term "leave restriction" as used in the provision includes restrictions on when an employee can request sick leave, a requirement that sick leave be requested in advance, increased documentation necessary to request sick leave, and the like. The purpose of leave restriction, according to the Agency, is as a first step in eliminating leave abuse and as advance warning to an employee that his/her use of sick leave is being monitored and that the violation of leave restrictions may result in discipline. The disputed part of the provision would require that an employee be counseled at least twice concerning leave abuse before being placed on leave restriction.

We find that the provision is inconsistent with section 7106(a)(1) of the Statute since it would substantively interfere with the Agency's right to discipline. Rather than instituting some form of restriction for leave abuse, the Agency would instead have to counsel the employee at least twice. Thus, regardless of the circumstances warranting the imposition of leave restriction, management would be unable to take any action other than counseling for the first two leave offenses. The provision does not merely delay the exercise of a management right as claimed by the Union--that is, require counseling twice before imposing leave restriction--it would substitute counseling for whatever form of leave restriction management might wish to employ for at least two occasions of leave abuse. The provision here interferes with management's right to take disciplinary action. This provision, therefore, is like the provision found to be outside the duty to bargain in Bureau of Engraving Printing, 25 FLRA 113 (1987) (Provision 22, Subsection (a)), which placed limitations on management's choice of disciplinary action. It is also similar to the proposal in National Maritime Union of America, AFL-CIO and Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Survey, Rockville, Maryland, 15 FLRA 576 (1984) (Proposal 1), which unlawfully prohibited the imposition of a specific penalty for employee misconduct. Provision 12 is, therefore, outside the duty to bargain.

In view of our conclusion, it is unnecessary to address the Agency's contention that the provision is also inconsistent with its right to assign work.

XII. Provision 13

Article XX

Section 21.10. MATERNITY AND PATERNITY LEAVE:

Employees who are pregnant will be allowed to work as long as they and their doctors feel is wise, prior to delivery of the child. Maternity leave in the form of sick leave, annual leave and leave without pay will be granted during delivery confinement and for a period of no more than the period of absence established by the employee, her physician, and her supervisor. The employee shall be returned to her position or a like position at the end of maternity leave. Fathers may be granted paternity leave, i.e., the use of annual leave or leave without pay, in order to care for their wives who are confined or for other minor children. The amount of time allowed shall depend upon the circumstances of the individual case.

A. Positions of the Parties

The Agency contends that the first sentence of the provision interferes with its right to assign work by allowing the employee and her doctor to determine how long the employee will work even though the employee may not be physically capable of performing the assigned duties. The Agency claims that it should not be required to continue assigning such work to the employee. However, allowing the employee to perform light work instead would also violate management's right to assign. The Agency contends that the second sentence of the provision violates its right to assign work by mandating the granting of leave for maternity purposes and by precluding the revocation of a prior authorization of maternity leave even when the employee is needed back at work. The Agency contends that the third sentence of the provision violates its right to assign employees by requiring management to return an employee to her former position or a like position at the end of maternity leave, even when the employee's position has been abolished through a transfer of function or a reduction-in-force.

The Union contends that because the Agency did not declare the first two sentences of the provision nonnegotiable in its original allegation of nonnegotiability, that is, in its disapproval of the locally executed agreement, the attempt to do so in its Statement of Position is untimely and should be dismissed. As to the third sentence of the provision, the Union contends that it is negotiable, because it involves a condition of employment and complies with the Federal Personnel Manual.

B. Analysis and Conclusion

1. The Agency Head's Disapproval is Timely

We find no merit in the Union's contention that the Agency's allegations of nonnegotiability as to the first and second sentences are untimely and should be dismissed. There is no requirement in either the Statute or the Authority's Rules and Regulations that a disapproval of a locally executed agreement must be made with specificity. Rather, the only requirement that an agency support its allegations of nonnegotiability with specificity and rationale occurs after the agency has been served with a petition for review, at which time the agency has 30 days within which to file a statement of position, specifying its reasons for its allegations. Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537, 540-541 (1985), aff'd sub nom. National Association of Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986). Moreover, in such circumstances, a union, of course, has ample opportunity to respond to an agency's arguments by filing a Response to the statement of position. See section 7117(c)(4) of the Statute and section 2424.7 of the Authority's Rules and Regulations.

2. The First Disputed Sentence Does Not Interfere with Management's Right to Assign Work Under Section 7106(a)(2)(B)

This sentence provides that pregnant employees be allowed to work as long as they and their doctors feel it is wise, prior to delivery. The Agency argued that it would interfere with the exercise of management's right to assign work. We disagree.

There is nothing contained in the first sentence of the provision which addresses the duties that management may assign to pregnant employees. This sentence does not state, for example, that management must continue to assign particular duties to pregnant employees, as alleged by the Agency. Nor does the first sentence require management to allow pregnant employees to perform light work instead of their regularly assigned duties.

Rather, this portion of the provision merely provides that pregnant employees will be allowed to work as long as they and their doctors believe is wise. In our view, this sentence is simply an attempt to prevent the Agency from unlawfully discriminating against employees on the basis of pregnancy.

Accordingly, we find that the first sentence of Provision 13 does not interfere with management's right to assign work and is within the Agency's duty to bargain.

3. The Second Disputed Sentence Does Not Interfere with Management's Right to Assign Work Under Section 7106(a)(2)(B)

The Agency claims that because the second sentence mandates the granting of leave for the period of delivery, confinement and recovery it violates management's right to assign work. According to the Agency, although the second sentence includes supervisory involvement, it does not permit the revocation of a prior leave request in circumstances where the employee is needed back to work before the expiration of the authorized leave.

The Union did not indicate the intent of this sentence of the provision or refute the Agency's assertions. However, we find that the Agency has not established that the second sentence would prevent the Agency from revoking any portion of the prior leave authorization in appropriate circumstances, such as where the employee is needed back at work and the employee is able to return. That is, the second sentence specifically contemplates that the total period of absence will be no more than that which is necessary and provides for the employee's supervisor to participate in that determination. Thus, the second sentence is also within the duty to bargain. Compare American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 2) (Proposal 2 interfered with the right to assign work under section 7106(a)(2)(B) because it precluded the agency from requiring an employee to return to work at any point during a period of leave without pay for maternity reasons even if the employee was able to do so and the agency determined it needed the employee's services).

4. The Third Disputed Sentence Conflicts with a Government-wide Regulation

The third sentence of the provision would require an employee to be returned to her position or a like position at the end of her maternity leave. FPM Chapter 630, subchapter 13-4, provides that:

a. Employees planning to return to work. The agency has an obligation to assure continued employment in her position or a position of like seniority, status, and pay, to the employee who wishes to return to work following delivery and confinement, unless termination is otherwise required by expiration of appointment, by reduction-in-force, for cause, or for similar reasons unrelated to the maternity absence.

Rather than complying with subchapter 13-4a, as asserted by the Union, this part of the provision conflicts with this requirement. That is, the third sentence make no specific reference to the various circumstances set out in the FPM which would preclude an employee from being returned to a like position at the end of maternity leave. Rather, the third sentence requires that the employee be returned to her position or a like position regardless of whether the employee's termination is otherwise mandated by, for example, a reduction-in-force, or for other reasons unrelated to the maternity absence.

As the third sentence conflicts with FPM Chapter 630, subchapter 13-4a, we find it unnecessary to address the Agency's contention that it also interferes with its right to assign employees.

XIII. Provision 14

Article XX

Section 21.15. ADVANCED SICK AND ANNUAL LEAVE:

If the employee requests advanced sick or annual leave in lieu of leave without pay, the possibility of granting such will be examined in each individual case and will be granted when possible.

A. Positions of the Parties

The Agency contends that the provision is outside the duty to bargain because it violates its right to assign work under section 7106(a)(2)(B). The Union contends the provision concerns conditions of employment within the discretion of the agency to negotiate and that it is consistent with applicable Government-wide regulations.

B. Analysis and Conclusion

The Agency contends that by providing that leave "will be granted when possible" the provision violates its right to assign work by effectively eliminating its discretion to deny employee requests for advance sick or annual leave.

We agree. Proposals which could have the effect of requiring an agency to grant leave regardless of the necessity for the employee's service during the period covered by the request have consistently been found to violate management's right to assign work under section 7106(a)(2)(B) of the Statute. For example, 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 (Proposal 4). Thus, as Provision 14 also could have the effect of requiring the Agency to grant leave without regard to the necessity for the employee's services during the period covered by the request, it interferes with management's right to assign work. See, American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA 333 (1984) (Proposal 1). We reach this conclusion regardless of the fact that the provision would require that requests for advanced sick and annual leave be granted only "when possible." This language would subject management's determination that it is not possible to grant such a leave request because of workload requirements to review in an arbitration proceeding. Therefore, it does not remove the limitation imposed by the provision on management's exercise of its right to assign work under section 7106(a)(2)(B). See, for example, American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 645, (1985).

Further, the Union's reliance on subchapters 3-4c and 4-3c of FPM chapter 630 to support its position that the provision is negotiable is misplaced. That is, while those two subchapters provide an agency with the discretion to grant advance annual and sick leave respectively, they do not specifically contain the additional language requiring that such leave will be granted when possible. Provision 14 therefore, goes beyond what is provided in the regulations.

Moreover, while the Union has correctly pointed out that insofar as an agency has discretion regarding a matter affecting conditions of employment, it is obligated under the Statute to exercise that discretion through negotiations, there is no duty to bargain where the provision is precluded by regulatory or statutory provisions. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Negotiations are precluded in terms of this provision by section 7106(a)(2)(B) of the Statute, as indicated above.

Based on the foregoing, we find that Provision 14 directly interferes with management's right to assign work, under section 7106(a)(2)(B) of the Statute. It is, therefore, outside the duty to bargain.

XIV. Provision 15

Article XXXI

Section 31.1. PURPOSES:

The Employer and the union agree to establish a Labor Management Relations Committee (LMR Committee) ... the BLM agrees to include on its team a Deputy State Director or higher level official....

A. Positions of the Parties

The Agency contends that the disputed portion of the provision is nonnegotiable because it violates management's right to assign work. The Union contends that the proposal concerns matters relating to conditions of employment over which the Agency retains discretion to negotiate and is within the duty to bargain.

B. Analysis and Conclusion

Like Provision 8 in this case, Provision 15 concerns the assignment of certain tasks to particular personnel. Thus, Provision 15 is nonnegotiable on the same basis and for the same reasons as Provision 8. That is, it conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Further, like Provision 8 in this case, this provision is nonnegotiable only because it requires that particular personnel 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 8, concerning the avoidance of such defects are equally applicable here.

XV. Provision 16

Article XXVI

Sections 26.(c), (d) and (e).

(c) No employee acknowledging medical/behavioral problems shall be terminated without first having the opportunity to avail himself/herself of professional help....

(d) Except when such accommodation would cause undue hardship, Employer will not take disciplinary or adverse actions against an employee for performance and/or conduct related to the employee's medical/behavioral problems during the time the employee is enrolled in the rehabilitation program and is making satisfactory progress.

(e) Before any discipline is taken toward an ill employee who has committed an infraction resulting from drug abuse or illness and who is undergoing rehabilitation treatment, consideration must be given to whether the employee has suffered a temporary relapse rather than failed completely in rehabilitation efforts.

A. Positions of the Parties

The Agency contends that all three parts of the provision interfere with its right to discipline. The Union contends that the provision concerns negotiable procedures which affect conditions of employment and is an appropriate arrangement for adversely affected employees within the meaning of section 7106(b)(3) of the Statute. Additionally, the Union contends that part (c) of the provision reflects the intent of law and regulation.

B. Analysis and Conclusion

1. Section (c)

The Members of the Authority disagree over the negotiability of this portion of the provision. The Decision and Order and Chairman Calhoun's separate opinion on Provision 16(c) follow this decision.

2. Section (d)

Section (d) would prohibit the Agency from taking disciplinary or adverse actions against an employee for performance and/or conduct related to the employee's medical/ behavior problems during the time the employee is enrolled in a rehabilitation program and is making satisfactory progress unless such accommodation causes "undue hardship." Although the Union states that it intends the provision to permit the Agency to take whatever disciplinary action it judges is necessary to effectively and efficiently accomplish its mission, there is no evidence in the record of what is intended by the phrase "undue hardship."

We conclude that this section of the provision could subject to arbitral review Agency determinations to discipline its employees. For example, if in the Agency's view an employee enrolled in a rehabilitation program is not making satisfactory progress, it would have to justify its decision to discipline such an employee by showing "undue hardship." In our view, section (d) is to the same effect as Proposal I found nonnegotiable in National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981). In that case, Proposal I prohibited the agency from instituting discipline with respect to employees who are active participants in a recognized drug/alcoholism program and required the agency to stay disciplinary action with respect to employees who enter such a program. The Authority found that because the proposal precluded the agency from taking disciplinary action against an employee unless the employee stopped participating in the program it granted employees the option to totally deny the agency's statutory authority by participating in such a program. Thus, the Authority concluded that Proposal I in that case violated management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Based on Internal Revenue Service, we find that section (d) also interferes with management's right to discipline under section 7106 (a)(2)(A).

The Union submits that section (d) of this provision is an appropriate arrangement for adversely affected employees under section 7106(b)(3). As the Authority indicated in Kansas Army National Guard, 21 FLRA 24 (1986), when a proposal interferes with a management right and the proposal is intended to be an appropriate arrangement, a determination will be made as to whether the arrangement is appropriate or whether it is inappropriate because it excessively interferes with the exercise of the management right.

The provision would undoubtedly benefit employees by preventing the institution of disciplinary or adverse action. In our view, however, this benefit is outweighed by the infringement on management's right. As long as an employee was making "satisfactory progress" in any rehabilitation program the Agency would be required to demonstrate "undue hardship" in order to exercise its right to discipline. This is so despite the extent of the conduct or performance deficiencies or the length of time the employee has been enrolled in the program. Therefore, we conclude that section (d) excessively interferes with management's right to discipline its employees and thus, does not constitute an appropriate arrangement within the meaning of section 7106(b) (3) of the Statute.

3. Section (e)

This section would require the Agency to consider whether an employee who is undergoing rehabilitation treatment has suffered a temporary relapse rather than having failed completely in rehabilitation efforts before taking disciplinary action against the employee for conduct resulting from drug abuse or illness.

Contrary to the Agency's assertion, this section would not interfere with the Agency's right to discipline. It would merely require the Agency to give consideration to a particular factor--whether the employee has suffered a temporary relapse--before taking the disciplinary action. As such, this section constitutes a negotiable procedure under section 7106(b) (2) of the Statute.

To summarize our conclusions on Provision 16, we find that section (d) of Provision 16 directly interferes with Management's right to discipline its employees under section 7106(a)(2)(A) and does not constitute an appropriate arrangement under section 7106(b)(3), because it excessively interferes with that right. Therefore, section (d) is outside the duty to bargain. Section (e) of Provision 16 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. It is therefore within the duty to bargain.

XVI. Order

The petition for review relating to the sentences of the provisions concerning which the Union withdrew its allegations of negotiability, and Provisions 8, 11, 12, 13 (the third disputed sentence), 14, 15, and section (d) of Provision 16, is dismissed. The Agency shall rescind its disapproval of Provisions 1, 2, 3, 4, 5, 6, 7, 10, 13 (the first and second disputed sentences), and section (e) of Provision 16 which were bargained on and agreed to by the parties at the local level. 6

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun,        Chairman

Henry B. Frazier III,      Member

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER ON PROVISION 9 AND PROVISION 16, SECTION (c)

I. Provision 9

Article XVII

Section 17 .1(c)(5). SUSPENSIONS:

When the Employer proposes a suspension of an employee for fourteen (14) days or less, the employee shall be given a written notice of the proposed suspension which shall:

(1) contain the specific reasons for the proposed suspension;

(2) inform the employee of the right to union representation;

(3) provide at least fifteen (15) calendar days in which the employee may answer the proposal orally and/or in writing;

(4) contain the name of the official to whom an answer may be directed; and

(5) inform the employee that any request for an extension of time in which to reply must be made to the deciding official prior to the expiration of the specified notice period.

The deciding official must not be the proposing official. A decision by the deciding official must be made as soon as practicable following the reply or the expiration of the notice period. The deciding official will give every reasonable consideration to the written and/or oral response of the employee in his/her decision to suspend or not suspend the employee. The effective date of a suspension under this article will be not less than (10) days from the date of the decision letter.

A. Positions of the Parties

1. The First Disputed Sentence

The Agency contends that because the first disputed sentence requires officials outside the Arizona State Office bargaining unit to make the final disciplinary decision it is nonnegotiable. The Agency also contends that this part of the provision violates management's rights under section 7106(a)(2)(B) to assign work and under section 7106(a)(1) to determine its organization. In support, the Agency relies on American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Proposal 2).

The Union contends that the first disputed sentence is an appropriate arrangement, under section 7106(b)(3) of the Statute, for employees adversely affected by the exercise of management's right to discipline. It denies that this part of the provision conflicts with management's rights. As to the second disputed sentence, the Union contends that it does not interfere with management's right to make determinations as to when to discipline and is negotiable under section 7106(b)(3). The Union also states that as the provision is based on 5 U.S.C. 7503 which provides employees with certain procedural due process protections, it would not have harmful effects on management's right to discipline, as asserted by the Agency.

2. The Second Disputed Sentence

The Agency asserts that this portion of the provision violates management's right under section 7106(a)(2)(B) to make determinations as to when to discipline. It also contends that the provision would impermissibly dilute the effects of a decision to discipline and interfere with the Agency's ability to perform its functions.

The Union contends that it does not interfere with management's right to make determinations as to when to discipline and is negotiable under section 7106(b)(3). The Union also states that as the provision is based on 5 U.S.C. 7503, which provides employees with certain procedural due process protections, it would not have harmful effects on management's right to discipline, as asserted by the Agency.

B. Analysis and Conclusion

1. The First Disputed Sentence is Negotiable

As explained by the Union, the intent of this part of the provision is to require that someone other than the proposing official make a final determination on a discipline action in order to assure that affected employees will obtain a fair evaluation of their respective cases before the discipline is imposed.

In our view, this part of the provision is inconsistent with management's right to assign work under section 7106(a)(2)(B) since it would prevent the Agency from making the proposing official the deciding official as well. We find, however, under the test articulated in Kansas Army National Guard, 21 FLRA 24 (1986), that this portion of the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3).

The Union indicates that the intent of this sentence is to assure that the principles of due process and fundamental fairness will be accorded to employees who are suspended. The Union cites to past instances in which the individual who was both the proposing and deciding official failed to adequately investigate cases which had the effect of preventing the affected employees from obtaining a fair evaluation of their cases.

We find that this portion of the provision is designed to be an arrangement for employees adversely affected by the exercise of management's right to assign work. The Union is seeking to avoid situations in which employees would be harmed by the failure to conduct adequate investigations. We find further that this arrangement is appropriate since the benefits to be gained from promoting the principles of due process and fundamental fairness outweigh the interference with management's right to assign work. Additionally, this portion of the provision would simply distinguish between the proposing official and the deciding official. It would not prevent the Agency from assigning the duties to these officials altogether.

In finding the first portion of the provision to be an appropriate arrangement and therefore within the duty to bargain, we must reject the Agency's other contentions.

First, we reject the Agency's claim that the first sentence requires officials outside the Arizona State Office to make the final decision. There is nothing in the first sentence which specifies any particular level within the Agency where the final decision will be made.

We also find that there is nothing in the specific language of the first sentence which requires the Agency in any manner to modify its organizational structure. Thus, the first sentence does not interfere with the Agency's right to determine its organization under section 7106(a)(1). Internal Revenue Service, Atlanta District, 22 FLRA 314 (1986) (Proposal 1).

2. The Second Disputed Sentence is Negotiable

In our view, the disputed sentence is similar to a provision found negotiable in National Treasury Employees Union and Department of the Treasury, 24 FLRA 494 (1986), petition for review filed sub nom. Department of the Treasury v. FLRA, No. 87-1084 (D.C. Cir. Feb. 13, 1987), which required a 10-day delay before nonbargaining unit employees could be considered for selection to a position. As stated in that decision, proposals which do not prevent management from acting at all with respect to a management right constitute negotiable procedures within the meaning of section 7106(b)(2) of the Statute. See also American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 625 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Because this portion of the provision does not prevent management from acting at all in the exercise of its reserved rights, it does not directly interfere with any of the management rights alleged by the Agency. Rather it constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

The Authority's decision in National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Provision 1) does not require a contrary result. In that case, the provision required that any disciplinary action resulting in removal would not be effected for at least 10 working days. The Authority found that the provision was inconsistent with 5 U.S.C. 7513(b)(1) since it would prevent the agency from exercising its right to immediately remove an employee when there was reasonable cause to believe that the employee had committed a crime punishable by imprisonment. The provision was also found to be inconsistent with section 7106(a)(2)(A) and (B) of the Statute which protects the authority of management to hold employees accountable for meeting standards regarding their work performance. In other words, once the employee was put on notice that management had decided to terminate his or her employment and had fixed a separation date, management would have no effective method of holding the employee accountable for failing or refusing to carry out assigned work during the additional 10-day period set forth in the provision.

The second disputed sentence of Provision 9 is different from U.S. Geological Survey in one important respect. The provision in that case addressed removal actions. The provision here concerns suspensions of 14 days or less. 5 U.S.C. 7513(b)(1) is not applicable to such suspensions. Also inapplicable is the rationale underlying the finding of an inconsistency with section 7106 (a)(2) (A) and (B). Here, nothing would prevent the Agency from continuing to hold employees accountable for meeting the standards established for their work performance.

In conclusion then, we find this portion of the provision to be within the duty to bargain. As a result of this analysis, it is unnecessary to address the Union's contention that this portion of the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

II. Provision 16 Section (c)

Provision 16 is set forth on page 28. Section (c) of the provision would prohibit the Agency from terminating an employee who acknowledges medical/behavioral problems without first permitting the employee to seek professional help.

In our view, this section would merely delay the exercise of management's right to discipline. In this manner, section (c) is to the same effect as a proposal the Authority found negotiable in American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983) (Proposal 5). The proposal in that case required the agency to give employees with a drug/alcohol abuse problem who accepted assistance in the agency's rehabilitation program a reasonable opportunity to improve their performance before being subject to adverse action. As with the provision in this case, the only effect of the proposal was to delay the imposition of discipline. Moreover, as more fully explained in Library of Congress, applicable OPM regulations, namely, FPM Supplement 792-2, subchapter 5-1c, specifically define the objective of Federal drug abuse programs as being rehabilitative rather than punitive. Section (c) is fully consistent with that objective.

In view of our finding that section (c) does not interfere with the Agency's right to discipline, it is unnecessary to address the Union's additional contention that the section constitutes an appropriate arrangement under section 7106(b)(3).

III. Order

The Agency must rescind its disapproval of Provision 9 and section (c) of Provision 16. 7

Issued, Washington, D.C. November 6, 1987.

Henry B Frazier III,       Member

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

Separate Opinion of Chairman Calhoun

Provisions 9 and 16(c)

Provision 9 concerns disciplinary actions and provides, in relevant part that (1) a deciding official must not be the proposing official; and (2) the effective date of a suspension will be not less than 10 days from the date of the decision letter. My colleagues conclude that the first part is negotiable an an appropriate arrangement under section 7106(b)(3) of the Statute, and that the second part is negotiable because it does not prevent the Agency from "acting at all" to exercise its rights. I agree with my colleagues' on the first part of the provision.

However, I disagree with my colleagues' determination that the second part of Provision 9 is negotiable. In my view, the Agency's right to discipline, like other management rights under section 7106(a) of the Statute, includes the right to determine when the discipline will be effected. See, for example, my opinion in National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986), petition for review filed sub nom., Department of the Treasury v. FLRA, No. 87-1084 (D.C. Cir. February 13, 1987) (concerning the right to select). The second part of Provision 9 requires that a decision to discipline be effected no earlier than 10 days following the date of the decision letter. As such, I conclude that the proposal directly and to an excessive degree conflicts with management's right to discipline.

The Union asserts that the second part of Provision 9 constitutes an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of management's right to discipline. I disagree. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority held that the determination of what constitutes an appropriate arrangement involves weighing the benefits to employees of the proposed arrangement against the effect of the proposal on management's rights. Subsequently, in 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 22), the Authority held that a proposed arrangement for employees adversely affected by the agency's exercise of its right to discipline was not "appropriate" within the meaning of section 7106(b)(3). The Authority noted that the proposal concerned

Like the proposal in Bureau of Engraving and Printing, Provision 9 in the instant case involves employees who are at "fault." Further, the Union's proposal in this case applies to all suspensions, without regard to their durations or to the employee's conduct giving rise to the suspension. For example, the proposal would treat suspensions of employees whose conduct may pose a threat to other employees or be otherwise disruptive to the work situation the same way as suspensions of employees in situations where those considerations are not present. In fact, in situations where the Agency found that the immediate suspension of an employee was necessary, the proposal would totally frustrate the Agency's exercise of its right. As such, although I might conclude that in other circumstances a similar proposal would be negotiable, I find that the second part of Proposal 9 excessively interferes with the exercise of the right to discipline and does not constitute an appropriate arrangement.

Provision 16 (c) provides that "(n)o employee acknowledging medical/behavioral problems shall be terminated without first having the opportunity to avail himself/herself of professional help." My colleagues conclude that the provision is negotiable because it merely delays the Agency's exercise of its right to discipline.

In my view, the provision is not sufficiently specific for me to rule on its negotiability. It is clear that the Agency has legal obligations with respect to certain handicapping conditions. See, for example, 29 C.F.R. 1613.702, 1613.704. Based on the record in this case, however, I am unable to determine whether or not the Union intends this provision to simply incorporate existing requirements in this area.

As I have stated before, I believe that the Authority should not rely on the "delay/acting at all" standard in determining the negotiability of proposals but rather, should examine the real effects of proposals on management's rights. See my opinion in Department of the Treasury, 24 FLRA 494 (1986), discussed above in connection with Provision 9. Since the provision in this case refers only to "medical/behavioral" problems, and since the record is unclear as to whether the Union intends the provision to merely incorporate existing obligations, I am unable to determine whether, and to what extent, the proposal may conflict with law, including management's rights under section 7106 of the Statute. Accordingly, I would dismiss the Union's petition as to this section of Provision 16.

Issued, Washington, D.C., November 6, 1987

Jerry L Calhoun,         Chairman

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: This provision initially contained a second disputed sentence which the Union subsequently withdrew from consideration in its Reply Brief. Accordingly, the second disputed sentence will not be considered further here.

Footnote 2: Section 7116(a) (7) provides as follows:
7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--
(7) to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed(.)

Footnote 3: This provision initially contained a second disputed sentence which the Union subsequently withdrew from consideration in its reply brief. Accordingly, the second disputed sentence will not be considered further here.

Footnote 4: Section 7131(d) provides:
7131. Official time
(d) Except as provided in the preceding subsections of this section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,
shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

Footnote 5: The Union has withdrawn from its petition for review an additional disputed sentence which was originally a part of this provision. It, therefore, will not be considered further in this decision.

Footnote 6: In finding these Provisions to be within the duty to bargain, we make no judgment as to their merits.

Footnote 7: In finding these matters to be within the duty to bargain, we make no judgment as to their merits.

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