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50 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF MARINE CORPS LOCALS

COUNCIL 240

(Union)

and

U.S. DEPARTMENT OF THE NAVY

U.S. MARINE CORPS

WASHINGTON, D.C.

(Agency)

0-NG-2207

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 31, 1995

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Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one provision of a negotiated agreement that was disapproved by the Agency head under section 7114(c) of the Statute.

The provision states that the Family and Medical Leave Act (FMLA) shall apply to employees who must care for medical emergencies for certain persons who are not covered by the FMLA. For the reasons which follow, we find that the provision excessively interferes with management's right to assign work and is, therefore, nonnegotiable.

II. Provision

Article 17, Section 8. Family and Medical Leave

a. Public Law 103-3, the Family and Medical Leave Act of 1993 (FMLA), provides substantive legal entitlement to employees regarding leave in certain specified circumstances. The Office of Personnel Management and the Department of Defense have issued implementing regulations regarding the Act.

b. The employer will implement the provisions of the FMLA consistent with the Act and its regulations, as well as this MLA.

c. The parties agree that the provisions of the FMLA shall also apply to situations where an employee seeks to care for a medical emergency of a dependent child, regardless of age, or of an in-law or grandparent of the employee.

[Only the underlined portion is in dispute.]

III. Background

The FMLA, 29 U.S.C. §§ 2601-2654, requires an employer to grant up to 12 work weeks of leave during any 12-month period to employees to care for the medical emergencies of their parents, children under the age of 18, and spouses.⁽¹⁾ The disputed provision would extend the FMLA provisions concerning the medical emergency care leave to employees who have to care for their grandparents, parents-in-law, and dependent children of any age.

IV. Positions of the Parties

A. Agency

The Agency claims that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) because it would require the Agency to grant leave without regard to its workload demands or its need for an employee's services. The Agency also argues that the provision does not constitute an arrangement under section 7106(b)(3) of the Statute because it does not ameliorate the adverse effects which flow from the exercise of a management right. Instead, the Agency claims that the adverse effects occur only when management denies the employee a benefit, i.e., the opportunity to take extended leave. In the alternative, the Agency claims that, even if the provision is an arrangement, it excessively interferes with management's right to assign work because it would mandate the granting of leave for up to a quarter of a year and deprive management of its discretionary authority to approve and disapprove leave.

B. Union

The Union states that the provision is intended as an appropriate arrangement under section 7106(b)(3) of the Statute for employees who are adversely affected by management's denial of leave and assignment of work at a time when they have to care for relatives during medical emergencies. The Union argues that the adverse effects on employees caused by management's denial of leave and assignment of work during a time when the employee must care for a medical emergency of a specified relative or dependent include, among other things, emotional stress and anxiety, lowered morale and physical illness, and ultimately, poor job performance. Finally, the Union claims that, as the FMLA now mandates grants of leave for health and family-related reasons as a matter of public policy, the same public policy reasons should weigh heavily in finding the provision negotiable.

V. Analysis and Conclusion

A. Management's Right to Assign Work

The disputed provision, which adopts the requirements of the FMLA, entitles specified employees to leave without pay (LWOP) for up to 12 weeks in certain circumstances.⁽²⁾ Consistent with the FMLA, the provision provides for no exceptions to that entitlement. The Agency claims, and the Union "agree[s]" with the Agency, that the provision directly interferes with its right to assign work under section 7106(a)(2)(B) because it would require the Agency to grant leave without regard to its workload demands or its need for an employee's services. Reply Brief at 9. Moreover, longstanding precedent holds that proposals which restrict an agency's right to deny requests for annual or other leave directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. E.g., National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1126 (1991). As such, the provision runs afoul of the statutory prohibition against the negotiation of provisions "affect[ing] the authority of any management official of any agency . . . in accordance with applicable laws . . . to assign work[.]" 5 U.S.C. § 7106(a)(2)(B).⁽³⁾

B. Appropriate Arrangement

In determining whether a collective bargaining provision constitutes an appropriate arrangement, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If a proposal is intended to be an arrangement, the Authority determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986)(KANG).⁽⁴⁾ To determine whether the arrangement is appropriate, the Authority balances the respective interests of the Agency and employees to determine whether the proposed arrangement excessively interferes with the Agency's right to assign work. See Id., 21 FLRA at 31-33.

We will assume, without deciding, that the provision at issue in this case constitutes an arrangement. In determining whether it excessively interferes with management's rights, we note that the provision affects significant management interests in assigning work. It establishes an absolute requirement that the Agency grant extended periods of LWOP in certain circumstances, and as a result, would remove the Agency's discretion to deny leave based on its workload considerations. In particular, management could be required, at any time and regardless of its workload, to grant up to 12 weeks of leave to any and all eligible employees. Management could not require the employee to stagger or delay the leave to accommodate its workload and would be prevented from placing a returning employee in a different or non-equivalent position.

At the same time, the provision clearly affords significant benefits to employees, by permitting them to care for an ailing relative and avoid the costs of professional services or institutional care of the relative. However, although the benefits to employees are considerable, they do not outweigh the heavy burden placed on management to grant an extensive amount of leave without regard to workload or any other considerations. Similar burdens on management's right to assign work have been held to outweigh equally significant benefits. E.g., American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1529 (1992)(proposal establishing an absolute requirement that management grant certain LWOP requests for an employee's illness or disability held to excessively interfere with management's right to assign work); American Federation of Government Employees, AFL-CIO, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 253 (1990)(proposal requiring a grant of annual leave in certain circumstances except when critical work needs to be accomplished excessively interferes with management's right to assign work). As no basis on which to reach a contrary conclusion is present in this case, we find, consistent with Authority precedent, that the provision excessively interferes with management's right to assign work under section 7106(a)(2)(B) and, therefore, does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Therefore, we conclude that the provision is nonnegotiable.

VI. Order

The petition for review is dismissed.

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

1. The FMLA provides that an employer must, without exception, grant such requests once an employee has submitted the required certification by an appropriate health care provider. In addition, the FMLA provides that an employee may elect, or an employer may require the employee, to substitute any accrued paid vacation, personal, medical or sick leave for any part of the 12-week period, provided that such substituted leave is used consistent with current law and regulation governing the granting and use of such leave. The FMLA also requires that an employee returning to work be restored to the same or equivalent position and that such right to restoration may be denied only in cases where it is "necessary to prevent substantial and grievous economic injury to the operations of the employer[.]" 29 U.S.C. § 2614(b)(1)(A).

2. As neither party asserts that the provision requires the Agency to grant any type of leave other than LWOP, we will not address whether the provision is inconsistent with any law or regulations governing other categories of leave.

3. In its Petition for Review, the Union asserted that the provision constituted a procedure under section 7106(b)(2) of the Statute. However, in its Reply Brief, the Union does not advance this claim and, in fact, as previously indicated, acknowledges that the provision "deprives management of the right to assign work as provided for under [section] 7106(a)(2)(B)." Reply Brief at 9. In these circumstances, we do not address further the Union's initial claim.

4. The approach set forth in KANG has been cited or applied with approval by several United States Courts of Appeal. E.g., United States Immigration and Naturalization Service, United States Border Patrol v. FLRA, 12 F.3d 882, 884 (9th Cir. 1993); United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218, 225 (5th Cir. 1992); Overseas Education Association v. FLRA, 961 F.2d 36, 40 (2d Cir. 1992); Nuclear Regulatory Commission v. FLRA, 895 F.2d 152, 155 (4th Cir. 1990); Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1491 (D.C. Cir. 1989).

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