19:0048(6)NG - NFFE Local 15 and Army Armament Munitions and Chemical Command, Rock Island Arsenal, IL -- 1985 FLRAdec NG



[ v19 p48 ]
19:0048(6)NG
The decision of the Authority follows:


 19 FLRA No. 6
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 15
 Union
 
 and
 
 U.S. ARMY ARMAMENT MUNITIONS
 AND CHEMICAL COMMAND,
 ROCK ISLAND ARSENAL, ILLINOIS
 Agency
 
                                            Case No. O-NG-1022
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to Section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and presents issues
 concerning the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Article XXI Leave
 
          Section 13 Leave Without Pay
 
          a.  It shall be the policy of the employer to grant leave
       without pay (LWOP) under the following circumstances:
 
          1).  For educational purposes which would contribute to the
       best interests of the organization.
 
          2).  For recovery from illness or disability not of a permanent
       or disqualifying nature, after all sick and annual leave are
       exhausted.
 
          3).  Pending final action by the Office of Personnel Management
       (OPM) on a claim for disability retirement upon exhaustion of all
       sick and annual leave, and pending final action by the Bureau of
       Employees' Compensation on a claim for employment connected injury
       or disease.
 
          4).  To avoid a break in the continuity of service for
       conditional employees who must relocate because they are
       dependents of service members or of Federal employees who are
       obliged to move on rotational assignments or upon the transfer of
       a function or activity.
 
          b.  Benefits - At least one of the following benefits should be
       expected to result from the granting of extended LWOP:
 
          1).  Increased job ability.
 
          2).  Protection and/or improvement of the employee's health.
 
          3).  Retention of a desirable employee.
 
          4).  Furtherance of a program of interest to the Government
       (e.g., Peace Corps volunteer).
 
          5).  OPM and DA guidance indicates that LWOP should not
       initially be granted in excess of 1 calendar year.  Under special
       circumstances the LWOP may be extended for another year in
       increments of 6 months.  Such extensions will be the exception
       rather than the rule.
 
    The Union contends the proposal would merely serve to provide
 guidance to management in determining when an employee should be granted
 leave without pay (LWOP).  However, the Agency contends the proposal
 sets forth substantive criteria which would limit management in the
 exercise of its rights.  The Authority finds, in agreement with the
 Agency, that the clear language of the proposal would require the Agency
 to grant LWOP to an employee who meets the specified criteria.  In this
 regard, the Authority held in American Federation of Government
 Employees, AFL-CIO, Local 2263 and Department of the Air Force,
 Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New
 Mexico, 15 FLRA No. 126, at 4-5 (1984), that a proposal which would
 require an agency to grant an employee's request for leave without
 regard to the necessity for that employee's service during the period
 covered by the request violates management's right under section
 7106(a)(2)(B) of the Statute to assign work.  Specifically, the
 Authority found that insofar as the proposal removes management's
 discretion to deny annual leave in the circumstances described it would
 effectively nullify the Agency's ability to determine when assigned work
 will be performed.  Thus, for the reasons set forth in Kirtland Air
 Force Base, the Authority concludes that Union Proposal 1 would deny the
 Agency the discretion to exercise its right under section 7106(a)(2)(B)
 of the Statute to assign work and, consequently, is outside the duty to
 bargain.
 
                             Union Proposal 2
 
          Article XXI Leave
 
          Section 14 Absent Without Leave (AWOL)
 
          The employer agrees that absent without leave (AWOL) is to be
       used for purposes of charging employees who knowingly and
       willfully do not report for work without notifying the supervisor
       and employees who do not request leave in advance.  AWOL should
       not be used for charging employees who have a legitimate reason
       for being absent because of events that are no fault of their own.
 
    The Union contends that this proposal is also meant only to provide
 guidance to management in determining when an employee should be charged
 with being absent without leave (AWOL).  However, the Authority finds,
 in agreement with the Agency, that the clear language of Union Proposal
 2 provides substantive criteria for management to apply when deciding
 whether to authorize employee absences.  Based upon this interpretation,
 the Agency contends that, insofar as the proposal would require the
 Agency to approve certain employee absences, it would prevent the Agency
 from taking disciplinary action against employees on the basis of those
 absences and would therefore interfere with management's right under
 section 7106(a)(2)(A) of the Statute to discipline employees.  /2/ The
 Authority agrees.
 
    In American Federation of Government Employees, Local 1822, AFL-CIO
 and Veterans Administration Medical Center, Waco, Texas, 9 FLRA 709,
 711-12 (1982), the Authority held that a proposal which would have had
 the effect of modifying the substantive criteria for taking disciplinary
 action against employees violated management's right to discipline
 employees under section 7106(a)(2)(A) of the Statute.  In terms of this
 case, the Authority notes that AWOL is a proper basis for disciplinary
 action against an employee.  /3/ Therefore, in circumstances where Union
 Proposal 2 would require the Agency to approve the employee's absence,
 the employee would no longer be considered AWOL and the absence could
 not be the basis for discipline.  Thus, for the reasons set forth in
 Veterans Administration Medical Center, Waco, Texas, the Authority
 concludes in agreement with the Agency that the Union's proposal would
 violate the Agency's right under section 7106(a)(2)(A) of the Statute to
 discipline employees, and, consequently, is outside the duty to bargain.
  /4/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C. Jul