[ v49 p874 ]
49:0874(84)NG
The decision of the Authority follows:
49 FLRA No. 84
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1655
(Union)
and
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
ALEXANDRIA, VIRGINIA
(Agency)
0-NG-2178
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
May 2, 1994
_____
Before Chairman McKee and Members Talkin and Armendariz.(1)
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). The appeal concerns the negotiability of 12 provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(2) The Agency filed a statement of position. The Union did not file a reply brief.
For the reasons stated below, we find that Provision 1, which defines "emergency situation," is nonnegotiable. Provision 2, which provides that certain time will not be considered in evaluating performance, is nonnegotiable. We will dismiss the Union's petition as to Provision 3, which requires the Agency to grant employees certain holidays, because the parties did not provide a sufficient record on which to determine its negotiability. Provision 4, requiring the Agency to grant employees excused absence to donate blood, is nonnegotiable. Provision 5, which requires management to assign employees work at the start of each workday, is nonnegotiable. The two disputed sentences of Provision 6, which address hazardous working conditions and describe the circumstances in which supervisors must interrupt work assignments and employees may discontinue their assigned work, are nonnegotiable.
Provision 7, which limits the employees who may be assigned to operate certain equipment, is nonnegotiable. Provision 8, requiring employees to present identification only when entering or leaving buildings, is nonnegotiable. Provisions 9 and 11, which obligate management to offer employees rehabilitation in certain circumstances, are nonnegotiable. Provision 10, which prevents the Agency from contracting out certain functions, is nonnegotiable. We will dismiss the Union's petition as to Provision 12, which provides that any supplement to the parties' agreement will be effective on the date signed by the parties, because the record is insufficient to make a negotiability determination.
II. Provision 1
Article 3, Section 4
Emergency Situation.
A situation which poses sudden, immediate and unforeseen work requirements for the Employer as a result of natural phenomena or other circumstances beyond the Employer's reasonable control or ability to anticipate.
A. Position of the Agency(3)
The Agency contends that, "by defining the conditions which must exist for an emergency to be declared," Provision 1 interferes with the Agency's right to take actions in an emergency under section 7106(a)(2)(D) of the Statute. Statement of Position at 1.
B. Analysis and Conclusions
Under section 7106(a)(2)(D) of the Statute, management has the right to determine whether emergencies exist and decide what actions are necessary to carry out the agency's mission during those emergencies. See, for example, Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 132 (1988) (Norfolk Naval Shipyard), order denying motion for reconsideration as to other matters, 32 FLRA 98 (1988). Provisions that define "emergency" directly interfere with management's right under section 7106(a)(2)(D) to take whatever actions may be necessary to carry out the agency mission during emergencies. Id. See also American Federation of Government Employees, Locals 696 and 2010 and Naval Supply Center, Jacksonville, Florida, 29 FLRA 1174, 1175 (1987) (Naval Supply Center).
Like the provision in Norfolk Naval Shipyard, and the proposal in Naval Supply Center, Provision 1 in this case defines "emergency" and, by doing so, limits management's authority to assess whether an emergency exists. Accordingly, the provision directly interferes with management's right under section 7106(a)(2)(D) to take actions necessary to carry out the Agency's mission in emergencies. As the Union does not assert that the provision is an appropriate arrangement under section 7106(b)(3), Provision 1 is nonnegotiable. See also National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, New York, 22 FLRA 136 (1986).
III. Provision 2
Article 17, Section 8e(5)
Tool(s) and Equipment
e. When special government tool(s) and/or equipment are issued, the following will apply:
. . . .
(5) When an employee has to wait for tool(s) and/or equipment, which have not been issued or are not available, this time will be considered duty or work free. All duty or work free time will not be considered for performance appraisal purposes.
A. Position of the Agency
The Agency contends that, by defining waiting time as nonwork time, Provision 2 prevents management from assigning other work during that time and, as such, directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
B. Analysis and Conclusions
The Agency interprets the first sentence of subsection (5) of Provision 2 as preventing it from assigning other work to employees while those employees are waiting for tools or equipment. Although the sentence may be susceptible to other interpretations, the Union offers no alternatives to the construction advanced by the Agency. In this regard, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See, for example, American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 352 (1993). As the Agency's interpretation is consistent with the sentence's plain wording, we adopt it for out analysis of this provision.
Provisions preventing management from assigning work during specified periods of the work day substantively limit, and, therefore, directly interfere with, management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1288-89 (1993) (Office of Hearings and Appeals). The first sentence of subsection (5) of Provision 2 provides that time spent by employees waiting for tools shall be considered "work free." As noted, we construe the first sentence as precluding management from assigning work to employees while those employees are waiting for needed tools or equipment to become available. As such, it directly interferes with management's right to assign work. Office of Hearings and Appeals, 46 FLRA at 1288-89.
The second sentence of subsection (5) prevents management from considering employees' time spent waiting for tools and equipment in evaluating their performance. Provisions that prohibit management from holding employees accountable for work performance, including performance affected by matters outside the employees' control, directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Office of Hearings and Appeals, 44 FLRA 293, 300 (1992). As the plain wording of the second sentence would prohibit management from holding employees accountable for time spent waiting for tools or equipment to become available, that sentence directly interferes with management's rights to direct employees and assign work.
The Union does not assert that Provision 2 is an appropriate arrangement under section 7106(b)(3). As such, we conclude that both sentences of Provision 2 directly interfere with management's rights and are nonnegotiable.
IV. Provision 3
Article 20, Section 7
Holidays.
Employees shall be granted all holidays given to Federal employees by statute and Presidential Executive Order. Any local holiday which interferes significantly with transportation and the protection of employees in Federal buildings will also be given as holidays for the employees affected as approved by appropriate authority.
A. Position of the Agency
The Agency contends that Provision 3 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it prevents management from determining when assigned work will be performed. The Agency also asserts that the provision is not an appropriate arrangement under section 7106(b)(3).
B. Analysis and Conclusions
We find that, in the absence of any explanation by the Union as to how Provision 3 is intended to operate, we are unable to determine whether it is negotiable. Therefore, we will dismiss the petition for review as to this provision.
In particular, we cannot ascertain the significance of the phrase "shall be granted" in the provision's first sentence. If that phrase requires management to excuse employees from work during holidays designated by law and executive order without regard to management's need to have the employees perform work, the first sentence directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 839 (1990). On the other hand, if the phrase merely requires the Agency either to excuse employees from work or pay them any premium to which they are entitled under law, rule, or regulation, the provision would be negotiable.
In addition, the provision's second sentence requires that employees "be given as holidays" local holidays meeting the criteria contained in that sentence. If the sentence is intended to establish additional holidays for employees, it concerns a matter specifically provided for by Federal statute, 5 U.S.C. § 6103, which prescribes the holidays to which Federal employees are entitled, and would be nonnegotiable because it would not concern a condition of employment as defined by section 7103(a)(14)(C) of the Statute. Maritime/Metal Trades Council and Panama Canal Commission, 26 FLRA 140, 141 (1987). On the other hand, if the provision merely is intended to obligate management to exercise its discretion to grant administrative leave when, in the described circumstances, management decides temporarily to curtail Agency activities, the second sentence may be negotiable. See, for example, National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993, 996-97 (1991).
The parties bear the burden of creating a record on which the Authority can make a negotiability determination. Parties failing to meet this burden act at their peril. Absent information explaining and/or interpreting the provision, we cannot determine whether it is consistent with law, rule, and regulation. Consequently, the petition for review as to Provision 3 is dismissed. See, for example, National Federation of Federal Employees, Local 2024 and U.S. Department of the Interior, Bureau of Land Management, Medford District Office, 48 FLRA 1411, 1413 (1994) (Bureau of Land Management).
V. Provision 4
Article 23
Blood Donation
Employees are encouraged to serve as blood donors and will be excused from work without charge to leave for the time necessary to donate the blood, for recuperation following blood donation, and for necessary travel to and from the donation site. The individual will be credited with a minimum of four (4) hours. In cases where the employee must travel a long distance, or when unusual need for recuperation occurs, up to an additional four (4) hours may be authorized.
A. Position of the Agency
The Agency contends that, because Provision 4 requires it to authorize excused absences for employees who wish to donate blood without regard to the Agency's work needs, the provision is inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute.
B. Analysis and Conclusions
As plainly worded, Provision 4 prevents the Agency from denying employees' requests for excused absences to donate blood. As Provision 4 requires the Agency to grant excused absences to employees volunteering to donate blood, without regard to management's need to have the employees perform work, we conclude that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 182-83 (1993) (Fort Carson). Compare National Federation of Federal Employees, Local 1429 and U.S. Department of the Army, Letterkenny Army Depot, 23 FLRA 117, 119 (1986) (provision that did not restrict agency's right to deny employee's request to donate blood when employee was needed to perform work held not to interfere with management's right to assign work). Accordingly, in the absence of a Union assertion that the provision is an appropriate arrangement under section 7106(b)(3), Provision 4 is nonnegotiable. See Fort Carson, 48 FLRA at 183.
VI. Provision 5
Article 25, Section 6
At the start of each workday, the supervisor will assign work for each employee.
A. Position of the Agency
The Agency asserts that, by assigning "specific work to each supervisor of a bargaining unit employee[,]" Provision 5 directly interferes with management's rights to determine the personnel by which its operations will be conducted and assign work under section 7106(a)(2)(A) and (B) of the Statute, respectively. Statement of Position at 3. Further, according to the Agency, under the proposal, "the right . . . to assign work would be conditioned on the requirement that it be assigned on the day it was to be performed." Id. In the Agency's view, such condition "would clearly abrogate" the right to assign work. Id. The Agency also argues that, by "[d]epriving management of the ability to make decisions on the amount and type of guidance provided to each employee," the provision directly interferes with its right to direct employees under section 7106(a)(2)(A) of the Statute. Id. Additionally, the Agency asserts that the provision fails to recognize that "some employee[s'] grades and therefore pay are set based on [their] ability to perform duties without day-to-day guidance on what is expected." Id.
B. Analysis and Conclusions
Initially, we reject the Agency's contention that Provision 5 assigns a specific function to specific management officials. We find that the provision requires only that someone within the employees' supervisory chain advise employees of their daily assignments. Accordingly, we conclude that Provision 5 does not dictate the particular individual who is responsible for making work assignments. Rather, under the provision, management retains discretion to select who will make the work assignments. See National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 746 (1992) (provision requiring "the supervisor" to prepare performance appraisals held not to interfere with agency's right to assign work).
The Agency also contends that, under Provision 5, its right to assign work "would be conditioned on the requirement that [the work] be assigned on the day it was to be performed." Statement of Position at 3. That is, under its interpretation, the Agency would be prevented from assigning work unless the assignments are made in accordance with the requirements of the provision. Although Provision 5 may be susceptible to other interpretations, the Union offers no alternatives to the construction suggested by the Agency. As we noted with regard to Provision 2, a party failing to meet its burden of creating a record upon which we can make a negotiability determination acts at is peril. Accordingly, as it is consistent with the provision's plain wording, we adopt the Agency's interpretation of the provision for the purpose of our analysis.
Proposals or provisions that impose conditions on management's ability to make work assignments directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Fort Carson, 48 FLRA at 189. Provision 5 requires management to assign work at the beginning of each workday. This requirement substantively limits the Agency's right to assign work. Consequently, Provision 5 directly interferes with the right to assign work under section 7106(a)(2)(B). See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 406 (1987). As the Union does not contend that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute, it is nonnegotiable.
VII. Provision 6
Article 27, Section 3a(4)
Hazard Reporting.
a. Detection of unsafe or unhealthy working conditions at the earliest possible time, and the prompt correction of the related hazards at the lowest possible working level, are essential elements of mishap prevention. Accordingly, the supervisor will:
. . . .
(4) When an employee feels that he/she is subject to conditions so severe that even a short-term exposure to such conditions would be detrimental to health or safety, he/she should report the circumstances to the immediate supervisor and Union Steward. The supervisor and Steward shall inspect the work area to insure that it is safe before requiring the employee to carry out the work assignment. If any doubt regarding the safety of existing conditions is raised by either the supervisor or Steward, a ruling shall be obtained from the State Safety or Health Office. The supervisor shall grant the employee immediate relief from any unsafe or unhealthy circumstances, pending permanent resolution of the problem. When such immediate relief is not deemed necessary or possible, the supervisor shall give the rationale for the decision to the Union and to the employee(s) in writing over his/her signature. The Union or an employee(s) who believe that work is being required under conditions which are unsafe or unhealthy beyond the normal hazards inherent in the operations in question, have the right to file a grievance. When short-term exposure requires immediate solution and it is not possible to obtain supervisor concurrence beforehand, then the employee may at his/her discretion terminate his/her on duty action and so notify the supervisor, requesting temporary assignment to other duties.
[Only the underscored parts of the provision are in dispute.]
A. Position of the Agency
The Agency contends that Provision 6 directly interferes with its right under section 7106(a)(2)(B) of the Statute to assign work and is inconsistent with an applicable Government-wide regulation, 29 C.F.R. § 1960.46(a).(4)
B. Analysis and Conclusions
At the outset, we reject the Agency's argument that Provision 6 is nonnegotiable because it conflicts with 29 C.F.R. § 1960.46(a). In this connection, we agree with the Agency that the provision would appear to afford employees greater immunity from discipline than that afforded by the regulation. For example, the regulation refers to an employee's belief that an assigned task poses "an imminent risk of death or serious bodily harm . . . ." The provision, on the other hand, refers to situations where "short-term exposure requires immediate solution . . . ." However, nothing in the regulation prevents agencies from granting employees additional protection. See Fort Carson, 48 FLRA at 202. As such, the fact that the provision affords such protection does not render it nonnegotiable as inconsistent with the regulation. See id.
Nevertheless, we conclude that Provision 6 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. It is well established, in this regard, that the right to assign particular duties to employees is included within the right to assign work. See, for example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 47 FLRA 512, 519-20 (1993). Under the first disputed sentence of Provision 6, a supervisor is required to "grant the employee immediate relief from any unsafe or unhealthy circumstances, pending permanent resolution of the problem[,]" and, under the second disputed sentence, an employee may, "at his/her discretion[,] terminate his/her on duty action" in situations "[w]hen short-term exposure requires immediate solution and it is not possible to obtain supervisor concurrence beforehand[.]" By requiring supervisors to discontinue certain work assignments, and authorizing employees to disregard directions to perform work in certain circumstances, the disputed sentences substantively limit the Agency's right to assign particular tasks and, as such, directly interfere with the Agency's right to assign work under section 7106(a)(2)(B). See id. at 520.
The Union does not assert that the disputed sentences constitute appropriate arrangements for employees who are adversely affected by the exercise of a management right. Nevertheless, as the provision, by its plain terms, addresses the effect of work assignments on employees' health and safety, we will consider the negotiability of the sentences under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management rights. See National Treasury Employees Union, Chapter 242 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176 (Member Armendariz concurring in part and dissenting in part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.
We will assume that the disputed sentences in Provision 6 are arrangements for employees whose health or safety may be endangered while performing certain work. Having so assumed, however, we are unable to conclude that the arrangements are appropriate. In this connection, the Union has provided no information concerning the operation of the disputed sentences. For example, the Union does not explain or otherwise clarify the extent of the Agency's obligation to grant "immediate relief" under the first disputed sentence. We note, in this regard, that the sentence immediately following the first disputed sentence refers to situations where "such immediate relief is not deemed necessary or possible[.]" We are unable to determine from our reading of those two sentences the extent of either the benefits provided employees by the first disputed sentence or the burdens the sentence imposes on the exercise of management's right to assign work. Similarly, although the second disputed sentence provides protections to employees that differ from those encompassed by 29 C.F.R. § 1960.46(a), the Union does not explain the extent of the differences or why different protections are desired or necessary.
We again note that the parties bear the burden of creating a record on which we can base a negotiability determination. As the record provides an insufficient basis on which to conclude that Provision 6 constitutes an appropriate arrangement, and as it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, Provision 6 is nonnegotiable. See, for example, Fort Carson, 48 FLRA at 205.
VIII. Provision 7
Article 27, Section 5b
Occupational Safety and Health Training.
b. Only authorized employees who are qualified or in training will be permitted or required to operate machinery or equipment or to perform work that could cause injury to an inexperienced operator or endanger other employees. Personnel will be trained on new equipment or new work procedures. The Employer invites the Union's comments and input to the Facility Safety Council for the purpose of establishing safe working conditions throughout the work areas.
A. Position of the Agency
The Agency contends that, by limiting the assignment of certain functions to "authorized employees who are qualified or in training[,]" Provision 7 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute.
B. Analysis and Conclusions
It appears from the record that the Agency disputes the negotiability of only the first sentence of Provision 7. In Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 537-39 (1990) (VA Medical Center, Milwaukee), we found that a provision, containing wording identical to that in the first sentence of Provision 7, directly interfered with management's right to assign work under section 7106(a)(2)(B) by requiring management to assign certain tasks to particular personnel. We noted that the provision in that case limited the operation of machinery or equipment to those employees "who know how to operate the machinery or equipment or who are learning to operate the machinery or equipment." Id. at 538. See also National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 812-13 (1987).
The Union offers nothing to support a disposition different from that in VA Medical Center, Milwaukee. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. See, for example, American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, ST. Louis, Missouri, 46 FLRA 1494, 1513-14 (1993). Accordingly, we find that Provision 7 directly interferes with the Agency's right under section 7106(a)(2)(B) of the Statute to assign work and, in the absence of a Union assertion that the provision is an appropriate arrangement under section 7106(b)(3), is nonnegotiable.
IX. Provision 8
Article 34, Section 4
4. Employees will be only required to present proper ID when entering or leaving buildings within the bargaining unit.
A. Position of the Agency
The Agency contends that Provision 8 directly interferes with its right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency asserts that it is responsible for the security not only of "the equipment and personnel inside buildings but also the large amount of expensive and/or hazardous military equipment and/or materials outside buildings." Statement of Position at 4.
B. Analysis and Conclusions
An Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies and take actions that are part of its plan to secure or safeguard its personnel and physical property. See, for example, American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 983 (1990) (Air Force Logistics Command). Where the agency shows a link, or reasonable connection, between the goal of safeguarding its personnel, property, or operations and the practice designed to implement that goal, a proposal or provision that directly interferes with the agency's practice conflicts with the agency's right under section 7106(a)(1). See, for example, National Federation of Federal Employees, Local 28 and Defense Commissary Agency, 47 FLRA 873, 877-78 (1993).
The Agency states that it is responsible for security of material located outside its buildings. It appears from the Agency's argument that it safeguards that material by requiring employees to present identification in the outdoor areas where such material is stored. That is, by requiring employees to display identification in outdoor areas, the Agency can ensure that only authorized personnel have access to that material.
We find that the Agency has established a reasonable connection between a requirement that employees present identification at outdoor sites where material is located and the goal of safeguarding its property. By requiring employees to present identification only upon entering or leaving Agency buildings, Provision 8 is inconsistent with the Agency's security plan and, consequently, directly interferes with management's right to determine its internal security practices under section 7106(a)(1). See Air Force Logistics Command, 34 FLRA at 984. As there is no assertion that the provision constitutes an appropriate arrangement, we find that Provision 8 is nonnegotiable.
X. Provisions 9 and 11
Provision 9
Article 40, Section 10
If an employee has a drug and/or alcohol problem, the Employer will place disciplinary action in abeyance in order to provide the employee a reasonable opportunity to rehabilitate.
Provision 11(5)
Article 52, Section 2
Employees having covered problems will be dealt with by use of non-disciplinary procedures. The Employer will offer the employee rehabilitative assistance before initiating any adverse action for continuing misconduct problems related to alcoholism and drug use. However, if the employee refuses to seek counseling or if the employee's performance or conduct continues to be unacceptable, whether or not the technician accepts assistance or seeks counseling through this program, appropriate corrective action, which may include disciplinary action, will be taken as warranted solely on the basis of unacceptable job performance or conduct.
A. Position of the Agency
The Agency contends that Provisions 9 and 11 are inconsistent with Executive Order 12564 (1986), "Drug-free Federal Workplace," and Federal Personnel Manual (FPM) Letter 792-19. According to the Agency, the executive order and the FPM Letter provide protection from disciplinary action only to employees who voluntarily identify themselves as users of illegal drugs, obtain appropriate counseling and rehabilitation, and subsequently refrain from illegal drug use. The Agency argues that Provisions 9 and 11 are inconsistent with these limitations because the provisions afford protection to employees "who are identified by means other than self-disclosure and those who do not refrain from the use of illegal drugs." Statement of Position at 4. The Agency also asserts that the provisions are inconsistent with section 5(c) of the executive order because they do not allow management to take steps to remove a drug user from a sensitive position. Finally, the Agency maintains that the provisions directly interfere with its right under section 7106(a)(2)(A) of the Statute to discipline employees and are not appropriate arrangements under section 7106(b)(3).
B. Analysis and Conclusions
Section 5(b) of Executive Order 12564 requires agencies to "initiate action to discipline any employee who is found to use illegal drugs[.]" However, that requirement does not apply to employees who "voluntarily identify themselves as users of illegal drugs," and "obtain counseling or rehabilitation through" an Employee Assistance Program (EAP), and refrain thereafter from using illegal drugs. See, for example, American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 872 (1991). Furthermore, under section 5(d) of the executive order, agencies are required to "initiate action to remove from the service any employee who is found to use illegal drugs" and who declines to obtain counseling or rehabilitation through an EAP or who "[d]oes not thereafter refrain from using illegal drugs." See, for example, American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1212 (1990) (Member Talkin dissenting as to other matters). The Authority has determined that Executive Order 12564 constitutes a "law," within the meaning of section 7117(a)(1) of the Statute. See, for example, American Federation of Government Employees, National Council of HUD Locals and U.S. Department of Housing and Urban Development, 43 FLRA 1405, 1410 (1992) (HUD).
By its terms, Provision 9 would require the Agency to hold in abeyance any disciplinary action and offer a drug user rehabilitative services instead. Similarly, Provision 11 would obligate the Agency to offer employees rehabilitative assistance before initiating adverse actions for continuing misconduct related to alcohol or drug abuse. Because neither provision is limited to those illegal drug users who identify themselves voluntarily, they are inconsistent with section 5(b) of the executive order. Additionally, to the extent that Provisions 9 and 11 would preclude imposition of discipline or adverse action on those employees who enter rehabilitation but fail to remain drug free, they are likewise inconsistent with section 5(b). As Provisions 9 and 11 are inconsistent with Executive Order 12564, they are nonnegotiable under section 7117(a)(1) of the Statute. See HUD, 43 FLRA at 1410. In view of this conclusion, it is unnecessary to address the Agency's other arguments.
XI. Provision 10
Article 47, Section 14
The agency will not contract out its functions, if positions in those functions were to be abolished or downgraded, for one (1) year after the effective date of a RIF.
A. Position of the Agency
The Agency contends that Provision 10 "excessively interferes" with its right under section 7106(a)(2)(B) of the Statute to make determinations with respect to contracting out. Statement of Position at 5.
B. Analysis and Conclusions
Provision 10 would prohibit the Agency from contracting out any function that had undergone a reduction-in-force (RIF) for a period of 1 year after the effective date of the RIF. Proposals prescribing when a management right may be exercise constitute substantive limitations on, and directly interfere with the exercise of, that right. See Fort Carson, 48 FLRA at 174, and cases cited there. Consistent with Fort Carson, we find that Provision 10, by barring contracting out for a 1-year period in certain circumstances, directly interferes with management's right under section 7106(a)(2)(B) of the Statute to make determinations with respect to contracting out. As the Union does not assert that the provision is an appropriate arrangement, we conclude that Provision 10 is nonnegotiable.
XII. Provision 12(6)
Article 57, Section 6
6. Amendments and/or supplements will become effective on the date the Union and the Employer sign[] them.
A. Position of the Agency
The Agency asserts that Provision 12 is nonnegotiable because it is inconsistent with section 7114(c) of the Statute. According to the Agency, the provision "does not subject amendments and/or supplements to approval by the head of the Agency or the 30 days to do so as provided" in the Statute. Statement of Position at 5.
B. Analysis and Conclusions
We find that, in the absence of any explanation by the parties as to how Provision 12 is intended to operate, we are unable to determine whether it is negotiable. Therefore, we will dismiss the petition for review as to this provision.
If the provision concerns amendments and supplements to a master agreement, sections 7114(c)(1) and (2) of the Statute apply. Under sections 7114(c)(1) and (2), an agreement between any agency and an exclusive representative "shall be subject to approval by the head of the agency." The agency head is required to act within 30 days from the date the agreement is executed. If the agency head does not approve or disapprove the agreement within the 30-day period, the agreement takes effect on the thirty-first day. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 847 (1991) (decision and order on remand). Provision 12, however, makes any amendments or supplements effective when signed by the parties. Because the provision would not allow for the 30-day period for agency head review set forth in sections 7114(c)(1) and (2), the provision would be nonnegotiable. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1021 (1990).
On the other hand, if Provision 12 applies to amendments and supplements to a local agreement authorized by a negotiated agreement at a higher level, section 7114(c)(4) of the Statute would apply. Under that section, the parties may establish their own procedures for approval of subordinate agreements. In such circumstances, Provision 12 would be negotiable. See National Treasury Employees Union, Chapter 52 and Internal Revenue Service, Austin District, 23 FLRA 720, 721 (1986).
As noted previously, the parties bear the burden of creating a record on which the Authority can make a negotiability determination. Parties failing to meet this burden act at their peril. Absent information explaining and/or interpreting the provision, we cannot determine whether it is consistent with law, rule, and regulation. Consequently, the petition for review as to Provision 12 is dismissed. See, for example, Bureau of Land Management, 48 FLRA at 1413.
XIII. Order
The petition for review is dismissed.
Member Armendariz Concurring as to Provision 6
In the absence of a claim by a union that a proposal or provision is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, the Authority should not address that issue. See, for example, National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Washington, D.C., 48 FLRA 1323, 1328 (1994); American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 175 and 181 (1993) (Member Armendariz dissenting as to other matters). In my view, the sole exception to the general principle set forth above is in the limited circumstance where our statutory obligations would require that we construe a proposal as an appropriate arrangement, even where a union has not claimed that a proposal is intended as an appropriate arrangement, in order to avoid anomalous and conflicting results on substantially identical proposals. See, for example, International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516, 519 (1994) (Member Armendariz concurring and dissenting as to other matters) Merit Systems Protection Board Professional Association and Merit Systems Protection Board, 31 FLRA 258, 264 (1988), rev'd as to other matters sub nom. U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976 (D.C. Cir. 1990). In the present case, it is indisputable that the Union did not raise an appropriate arrangement issue in connection with Provision 6 and that there is no need for the Authority to raise this issue sua sponte in order to avoid anomalous and conflicting results on substantially identical proposals. I conclude that the proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and, inasmuch as the Union did not claim that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, I would not address the appropriate arrangement issue.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Armendariz' separate concurring opinion as to Provision 6 is set forth at the end of this decision.
2. In the letter disapproving the agreement, the Agency head stated that "many articles conflict with law and/or regulation." Enclosure 1 to Petition for Review. However, in its statement of position, the Agency addresses only 12 provisions of the agreement. Accordingly, we conclude that only those 12 provisions are in dispute.
3. The Union provided no arguments addressing the negotiability of the provisions in its petition for review and, as noted, the Union did not file a reply brief.
4. 29 C.F.R. § 1960.46(a), "Agency responsibility," provides, in pertinent part:
(a) The head of each agency shall establish procedures to assure that no employee is subject to restraint . . . because of the exercise by such employee . . . of any right afforded by section 19 of the Act . . . . These rights include . . . the right of an employee to decline to perform his or her assigned task because of a reasonable belief that . . . the task poses an imminent risk of death or serious bodily harm coupled with a reasonable belief that there is insufficient time to seek effective redress through normal hazard reporting and abatement procedures . . . .
5. Although the Agency did not expressly identify the article of the negotiated agreement where this disputed provision occurs, it appears from the record that the disputed section is part of Article 52 of the agreement.
6. The Agency did not indicate where this disputed provision occurs in the negotiated agreement. However, based on the record, it appears that the disputed section is contained in Article 57.