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35 FLRA No. 6

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS

LOCAL 4

(Union)

and

DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD

PORTSMOUTH, NEW HAMPSHIRE

(Agency)

0-NG-1531

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of portions of three provisions of a negotiated agreement which were disapproved by the head of the Agency under section 7114(c) of the Statute.⁽¹⁾

We dismiss the Union's petition for review concerning Provisions 1 and 6. Provision 1 prevents the Agency from using statements, made by employees during discussions with management officials where a Union representative is not present, to support disciplinary action. It is outside the duty to bargain because it directly interferes with management's right to discipline. Provision 6, concerning an employee's revocation of Union dues withholding, is outside the duty to bargain because it conflicts with section 7115(a) of the Statute.

Provision 2 requires management to take certain actions to accommodate physically disabled employees. Although it interferes with management's right to assign employees, it is a negotiable appropriate arrangement under section 7106(b)(3).

II. Provision 1

Article 10, Section 2. It is agreed and understood that the Employer retains the right to hold discussions with employees pertaining to the Employer/employee relationship without affording the right to representation. However, if disciplinary action is taken, the affected employee's answers during this discussion will not be used to support the disciplinary action. (Only the underlined language is in dispute.)

A. Positions of the Parties

The Agency contends that the second sentence of this provision directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency asserts that the disputed sentence would prohibit it from using statements made by employees during discussions with management where a union representative was not present either (1) as an independent basis for disciplinary action, or (2) to impeach later testimony given by the same employee. According to the Agency, the provision would exclude an employee's statements made without union representation even if the employee had no statutory or contractual right to be represented.

The Agency contends that its position is supported by the Authority's decision in Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988) (Charleston Naval Shipyard), where, the Agency asserts, the Authority held that disciplinary action may not be reversed based only on the failure to afford representation under section 7114(a)(2)(B) of the Statute.

The Agency also argues that the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3 (1987) (Department of Justice) supports its position that Provision 1 is nonnegotiable. In that case, the Authority found a provision which precluded the use of information or evidence, which was not provided to the employee, in an adverse action proceeding to be outside the duty to bargain because it was inconsistent with a Government-wide regulation. Id. at 14-15. In the Agency's view, this decision was grounded on the conclusion that "the requirement to release information which it properly could not release to employees would have had the effect of preventing the agency from exercising its right to discipline[.]" Agency's statement of position at 18-19.

The Agency contends that the disputed sentence precludes it from correcting an error in not affording representation. If the Agency fails to afford representation during a discussion by management officials with one of its employees, the information obtained during the discussion cannot be used even for impeachment purposes. The Agency, therefore, argues that the second sentence of Provision 1 is identical in effect to Provision 2 which was found to be nonnegotiable in National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318, 320 (1985), aff'd sub nom. NFFE, Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986). That provision, which precluded the Agency from taking disciplinary action if the action was not initiated within 60 days of an offense, was found to violate the Agency's right to take disciplinary action against an employee. The Agency contends that because the disputed portion of Provision 1 prevents the Agency from taking disciplinary action based on statements of employees who were not represented by the Union, the disputed part directly interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute.

Finally, the Agency contends that this provision is not an appropriate arrangement under section 7106(b)(3).

The Union contends that the disputed sentence of Provision 1 does not prevent the Agency from taking disciplinary action. The Union argues that the provision limits the Agency's actions only to the extent that the Agency acts improperly by denying an employee union representation in instances where "such lack of representation is inconsistent with law or the contract." Union's response at 1. The Union argues that any mistakes the Agency may make can be corrected during the investigatory process.

B. Analysis and Conclusions

For the following reasons, we find that the disputed portion of Provision 1 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and is nonnegotiable.

The Union states that Provision 1 prevents management from using information which is obtained in discussions with unrepresented employees "where such lack of representation is inconsistent with law or contract." Union's response at 1. We reject the Union's argument that the provision concerns the Agency's obligation under law to provide representation at meetings which result in disciplinary action because the Union's argument is inconsistent with the plain wording of the provision.

The disputed portion of Provision 1 provides that statements made by unit employees in discussions with management where a union representative is not present "may not be the basis for the disciplinary action." Union's response at 1. There is no reference in the provision to section 7114(a)(2)(B) of the Statute, which is the provision of law which imposes the requirement that union representation be afforded in certain disciplinary meetings with employees. Furthermore, the provision does not restate rights conferred by section 7114(a)(2)(B).

Section 7114(a)(2)(B)(i) of the Statute provides that a union shall be given an opportunity to be represented at investigatory examinations when, among other things, "the employee reasonably believes that the examination may result in disciplinary action[.]" See National Treasury Employees Union v. FLRA, 835 F.2d 1446 (D.C. Cir. 1987) (an employee who was unaware of management's role in an examination could not reasonably believe that disciplinary action could result and, therefore, had no right to union representation under section 7114(a)(2)(B)). Under the Statute, the employee's reasonable belief that an investigatory examination may lead to discipline is a prerequisite to the right to union representation.

Provision 1, on the other hand, prevents the Agency from using answers provided by an employee in any discussion "pertaining to the Employer/employee relationship" to support disciplinary action unless the employee was afforded the right to union representation during the discussion. The portion of the provision in dispute does not relate to an investigatory examination but, rather, to any discussion or meeting between a management official and an employee regardless of its purpose. In addition, the right to representation under Provision 1 would extend to every meeting between management and its employees regardless of the employee's belief as to whether the meeting could lead to discipline.

Based on the plain wording of the provision, we find that the disputed portion of the provision applies to information obtained during any employer/employee discussions where an employee was not afforded union representation. Therefore, we reject the Union's assertion that the provision concerns meetings where union representation is required by law. We do not base negotiability determinations on a union's statement of intent which is inconsistent with the plain wording of the provision. See, for example, Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1443 (1987). Therefore, we will not base our negotiability determination on the Union's interpretation of Provision 1.

The Union also claims that Provision 1 applies to information which is obtained during discussions where an employee's contractual right to union representation is violated. Provision 1 does not establish any right to representation. It establishes the Agency's right to hold discussions without representation. However, even assuming that Provision 1 enforces a right to representation which is established elsewhere in the contract, the provision is nonnegotiable.

Management's right to discipline includes the right to investigate and use the results of an investigation to support disciplinary action. A proposal which prohibits an agency from supporting disciplinary action against an employee by using statements made by that employee during a discussion where the employee's contractual right to representation was violated is outside the duty to bargain. Such a proposal interferes with management's right to investigate and use the results of an investigation to support a disciplinary action. Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA No. 173 (1990) (Portsmouth Naval Shipyard). Provision 1 has the same effect as the proposal held nonnegotiable in Portsmouth Naval Shipyard. Consequently, it directly interferes with management's right to discipline and is outside the duty to bargain.

The Union does not assert that Provision 1 constitutes an appropriate arrangement under section 7106(b)(3). We, therefore, do not decide that issue in the present case. We note, however, that in Portsmouth Naval Shipyard the Authority found that the proposal excessively interfered with the Agency's right to take disciplinary action and did not constitute an appropriate arrangement negotiable under section 7106(b)(3).

III. Provision 2

Article 11, Section 13. When the Employer determines that an employee is physically disabled for service in his/her current position, every effort will be made to place the employee in a position for which the employee is qualified and physically able to perform at the same grade and pay or, if practicable, to waive qualification standards to allow entry into a closely related occupation which [the employee is] physically able to perform at the same grade and pay.

A. Positions of the Parties

The Agency contends that Provision 2 directly interferes with its rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute because it requires the Agency "to take actions it is statutorily entitled not to take." Agency's statement of position at 27-28. The Agency also asserts that Provision 2 does not constitute an appropriate arrangement under section 7106(b)(3) because: (1) it excessively interferes with management's rights; and (2) the Union has not identified any adverse effect that this provision addresses nor is there any indication that the disability mentioned in the provision arises from the exercise of any management rights. The Agency contends that Provision 2 is nonnegotiable under the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1119 (1988) (Provision 6) (Oceana) because it concerns "speculative, possible adverse impact and seeks to prevent the possibility of such impacts." Agency's statement of position at 31 (emphasis in original).

The Agency further contends that the provision requires it to "waive qualifications and assign employees to perform work in fields related to their own which they may not be qualified to perform." Id. at 32. Consequently, it contends that Provision 2 is not an appropriate arrangement for the additional reason that it fails to preserve management's discretion to determine the qualifications of its employees to perform particular assignments.

The Union contends that Provision 2 constitutes either a procedure under section 7106(b)(2) or an appropriate arrangement for employees who are adversely affected by the exercise of management rights under section 7106(b)(3). The Union asserts that the provision is an appropriate arrangement because it: (1) addresses the adverse impact of management's determination "that an employee is unable to perform in the employee's particular position"; and (2) describes the arrangements management will make for disabled employees. These arrangements require the Agency to make every effort to place a disabled employee in a different position at the same grade or pay or, alternatively, to waive, where practicable, qualification standards to permit the employee "to enter a closely related position." Union response at 2. Finally, the Union asserts that all determinations regarding disability and qualifications for particular positions will be made by the Agency. Id.

B. Analysis and Conclusions

1. Provision 2 Is Not Procedural Within the Meaning Of Section 7106(b)(2)

Provision 2 applies when the Agency determines that an employee is physically unable to perform the duties of the position to which that employee is assigned. It requires the Agency to make "every effort" to (1) place the employee in a different position at the same pay and grade level which the employee is qualified to perform or, if practicable, (2) waive qualification standards and place the employee in a "closely related occupation."

A proposal which requires an agency to assign an employee to a position or to assign work to an employee directly interferes with management rights to assign employees and assign work. See, for example, National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041 (1987) (portion of Proposal 5 which bound the agency to attempt to waive nonmandatory qualifications to maximum extent feasible interfered with agency's right under section 7106(a)(2)(A) to assign employees) (NTEU, Region X); Oceana, 30 FLRA 1105, 1125-26 (1988) (Provision 6, which required Agency to make limited duty work assignments whether or not those assignments were recommended by the Agency's medical authorities, found to directly interfere with the exercise of Agency's right to assign work). Phrases requiring an agency to "make every reasonable effort" to exercise its rights do not remove the limitation on management's exercise of its rights. Those phrases require management to make efforts to exercise its rights in whatever manner is specified in the proposal. Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 753-55 (1987), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).

Provision 2 requires the Agency to make "every effort" to assign employees to positions or to assign work to employees. Accordingly, Provision 2 directly interferes with management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute.

Since Provision 2 directly interferes with management's right to assign employees and work, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2). See American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 715-16 (1986), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987).

2. Provision 2 is An Appropriate Arrangement Within The Meaning of Section 7106(b)(3)

The Union argues that Provision 2 constitutes an appropriate arrangement under section 7106(b)(3) for employees who are adversely affected by management's determination that an employee is "physically disabled for service in his/her current position." Union's response at 2. The Union asserts that a determination of an employee's qualifications for a position is a part of management's right to assign employees. We agree. NTEU, Region X, 25 FLRA 1041, 1049 (1987) (agency's right under section 7106(a)(2)(A) to assign employees encompasses the right to determine the qualifications and skills needed to do the work).

We find that a determination by management that an employee no longer is physically qualified to perform the duties of the job to which the employee is assigned adversely affects the employee. This exercise of management's right has an immediate and clearly defined adverse impact on the employee: the employee no longer will be able to hold that job. Accordingly, we conclude that Provision 2 is an "arrangement" for employees adversely affected by the exercise of management's right to assign employees within the meaning of section 7106(b)(3).

We turn now to the question of whether the arrangement required by Provision 2 is "appropriate." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

The Union states that it intends Provision 2 to require "[m]anagement, after determining that the employee is qualified for a different existing open position at the same grade and pay, [to] make every effort to place the worker in that position." Union's response at 2. The Union states that "[a]ll determinations regarding qualifications and disability are the employer's." Id.

Although Provision 2 interferes with management's right to assign work, we conclude that the impact of the proposed "arrangement" on management's right is not excessive. The provision neither prohibits nor requires the assignment of any type of work or particular duties to the employees involved. Even though Provision 2 requires management to make efforts to provide a way for a unit employee, whom management determines is not able to perform in his or her current job because of a physical disability, to continue to work, the provision (1) does not limit the jobs or duties which management can assign; and (2) leaves all qualifications determinations, including whether it is practicable to waive qualifications, to management. Moreover, this provision comports with the Federal policy requiring agencies to make reasonable accommodations to the physical limitations of their employees under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. and the pertinent implementing regulation found at 29 C.F.R. § 1613.704. See, for example, American Federation of Government Employees, Local 12 and U.S. Department of Labor, 24 FLRA 139 (1986)(the arbitrator's award directing the agency to restructure a clerical position to accommodate an employee's physical limitations properly reflected its duty under the Rehabilitation Act and implementing regulations to accommodate an employee's physical limitations). Consequently, we find that the degree of interference with the Agency's rights to assign work and employees is limited. See NTEU, Region X, 25 FLRA at 1050.

Balancing the respective interests of management and employees, we find that the impact on management's rights is limited and the benefit to disabled employees of continuing employment at the same pay and grade levels is extremely significant. Therefore, we find that the provision does not excessively interfere with the Agency's management rights. See, NTEU, Region X, 25 FLRA at 1050. Accordingly, we find that the arrangement is "appropriate" and that Provision 2 is a negotiable "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute.

IV. Provision 6

Article 33, Section 3. Except as provided for in Section 4 below, an allotment for deduction of Union dues may be terminated by the employee through submission of a Dues Revocation form to Code 630 prior to 1 September of each year. Such termination shall become effective the first full pay period following 1 September provided dues allotment has been in effect for at least one full year as of 1 September. (Only the underlined language is in dispute).

A. Positions of the Parties

The Agency contends that Provision 6 is inconsistent with section 7115(a) of the Statute. The Agency asserts that employees must be able to revoke dues withholdings at annual intervals under section 7115(a). It contends that Provision 6 calls for a revocation interval in excess of 1 year. It contends that employees whose union dues withholding began in October could not, under this provision, revoke their dues withholding for almost 2 years.

The Union contends that the Authority's decision in Veterans Administration, Lakeside Medical Center, Chicago, Illinois, 12 FLRA 244 (1983) (Lakeside Medical Center), supports its claim that Provision 6 is negotiable. It further contends that Provision 6 constitutes a "negotiated reasonable arrangement" for the time interval in which dues revocation will become effective. The Union argues that even if an employee has a "one time only [revocation] interval of longer than one year, this disputed language is nevertheless consistent with an effective and efficient government." Union's response at 3.

B. Analysis and Conclusions

We find that Provision 6 violates section 7115(a) of the Statute and is outside the duty to bargain.

The requirement of section 7115(a) that an authorization for dues withholding "may not be revoked for a period of 1 year" means that "authorized dues allotments may be revoked only at intervals of 1 year." American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1029 (1988), reversed as to other matters order sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Nos. 88-7408/7470 (9th Cir. Feb. 7, 1989). The Agency has demonstrated that the disputed portion of Provision 6 could result in situations in which employees would be precluded from revoking dues authorizations for a period of almost 2 years. Agency's statement of position at 45. This result is inconsistent with section 7115(a). Id.

The Union's reliance on Lakeside Medical Center to support the negotiability of Provision 6 is misplaced. In Lakeside Medical Center, the Authority found that the Agency committed an unfair labor practice when it processed dues revocations which were untimely submitted under the parties' negotiated agreement. There was no contention that the yearly interval negotiated by the parties was inconsistent with the requirements of section 7115(a). Therefore, the Authority did not address the yearly interval requirements of section 7115(a). Id. at 247 n.4.

For the above reasons, we find that Provision 6 is outside the duty to bargain.

V. Order

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

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

1. The Union withdrew its appeal of Provision 1 (section 1, second sentence), Provision 3 (section 5), Provision 4 (section 11, first sentence) and Provision 5 (section 3). We will not consider those matters here.

2. In finding Provision 2 to be within the duty to bargain, we make no judgment as to its merit.

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