19:1027(120)NG - AFGE Local 2094 and VA Medical Center, NY, NY -- 1985 FLRAdec NG



[ v19 p1027 ]
19:1027(120)NG
The decision of the Authority follows:


 19 FLRA No. 120
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2094, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, NEW YORK, NEW YORK
 Agency
 
                                            Case No. O-NG-1038
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 raises issues concerning the negotiability of four Union proposals.
 Upon careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.  /1/
 
                             Union Proposal 1
 
          Employees of the bargaining unit will be given 15 minutes after
       starting time to reach their duty station.  Employees will be
       given 15 min. before the end of their shift for personal hygiene
       and changing of clothing.
 
    The Agency argues that this proposal violates its right to assign
 work under section 7106(a)(2)(B) of the Statute /2/ by effectively
 shortening normal working hours, thereby precluding the Agency from
 assigning other types of work during the time employees would otherwise
 be on duty.  The Union contends that the proposal merely states a
 procedure that management would follow in exercising its right to assign
 work.  In agreement with the Agency, the Authority finds that the
 proposal violates management's right "to assign work" under section
 7106(a)(2)(B) of the Statute.
 
    The proposal would require management to refrain from assigning
 employees normal duties during the time periods specified therein, and
 would preclude the assignment of other work at those times.  In this
 regard, the proposal is substantively identical to Proposal 7 in
 National Treasury Employees Union and NTEU Chapter 80 and Department of
 the Treasury, Internal Revenue Service, Central Region, 8 FLRA 197
 (1982), which required that the first and last 15 minutes of each
 workday were to be devoted to packing and unpacking files and not to the
 work those employees normally performed.  In that case, the Authority
 found the proposal outside the duty to bargain since it removed
 management's discretion to assign work to employees under section
 7106(a)(2)(B) of the Statute.  Thus, for the reasons set forth in
 Internal Revenue Service, the Authority finds that Union Proposal 1 in
 the present case is outside the duty to bargain.  /3/
 
                             Union Proposal 2
 
          Official Time will be granted to bargaining unit employees when
       they visit their Congressman for any job related reason.
 
                             Union Proposal 3
 
          Official Time will be granted to bargaining unit employees when
       employees have to appear at any Federal agency for interviews, or
       testing.
 
    These proposals, on their face, would require the Agency to grant
 official time to bargaining unit employees for, respectively, visits to
 their Congressmen for any job related reason and for appearances at any
 Federal agency for interviews or testing.  /4/ In support of the
 negotiability of these proposals, the Union contends, among other
 things, that they do not violate any law, rule or regulation.  For the
 reasons stated below, the Authority disagrees.
 
    Section 7131 establishes the authority for the granting of official
 time under the Statute.  That is, subsections (a), (b) and (c) concern
 the authorization of official time for contract negotiations, impasse
 proceedings and proceedings before the Authority respectively.  While
 subsection (d) authorizes the granting of official time to employee
 representatives in "any amount" the parties agree to be "reasonable,
 necessary, and in the public interest," such authorization is expressly
 limited to those matters which are not already provided for in the other
 portions of section 7131.  In the Authority's view, subsection (d)
 clearly can only be read to authorize the negotiation of official time
 for other labor-management related representational matters such as
 contract administration, participation in grievance arbitration and the
 like.  /5/
 
    However, the Union Proposals herein do not specifically concern
 representational matters but would require the Agency to grant such
 official time broadly to any bargaining unit employee regardless of
 whether or not the employee is representing an exclusive representative.
  In this regard, Union Proposal 2 would grant official time to
 bargaining unit employees who visit their Congressmen for any
 job-related reason, and, on its face, employs language which is clearly
 inconsistent with the requirement of section 7131(d) that such official
 time may be granted only for representational matters.  Similarly,
 Proposal 3 would grant official time to bargaining unit employees for
 appearances at any Federal agency for interviews and testing.  Such a
 requirement is completely unrelated to representational matters.
 Therefore, the Authority concludes that Union Proposals 2 and 3 are
 outside the Agency's duty to bargain because they do not concern
 representational matters, in violation of section 7131(d) of the
 Statute.
 
                             Union Proposal 4
 
          The Employer does not institute disciplinary action against an
       alcoholic or drug abuser until he/she is given every opportunity
       to overcome his/her alcoholism or drug abuse problem.
 
    In American Federation of Government Employees, Local 1812, AFL-CIO
 and United States Information Agency, 16 FLRA No. 48 (1984) (Union
 Provision 2), the Authority considered the negotiability of a union
 proposal which would have restricted the agency in taking disciplinary
 action against an employee having work performance problems while the
 employee was an active participant in a counseling program progressing
 toward the renewal of acceptable work performance.  The Authority found
 the proposal was inconsistent with the Agency's right to discipline
 employees under section 7106(a)(2)(A) of the Statute /6/ and, therefore,
 was outside the duty to bargain.  The Authority noted that under the
 proposal, an employee would completely avoid disciplinary action for his
 or her conduct or unacceptable work performance by remaining a
 participant in the program and making progress, however slight, towards
 acceptable performance, and the agency's right to discipline such an
 employee would be permanently restricted, rather than having the effect
 of merely delaying the imposition of disciplinary action.  See also
 National Treasury Employees Union and Internal Revenue Service, 6 FLRA
 522 (1981).
 
    In the instant case, the Union argues that the proposal is intended
 merely to assure that employees receive a reasonable accommodation to
 overcome their handicap.  However, contrary to the Union's argument,
 this proposal expressly would prevent the Agency from instituting
 disciplinary action against an employee until the employee is given
 every opportunity to overcome the alcoholism or drug abuse problem.  /7/
 Hence, as in United States Information Agency, the Agency's right to
 discipline such an employee would be permanently restricted, rather than
 having the effect of merely delaying the imposition of disciplinary
 action.  /8/ Union Proposal 4, therefore, directly affects management's
 right to discipline employees under section 7106(a)(2)(A) of the Statute
 and is not within the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Proposals 1, 2, 3, and 4 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., August 27, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency did not file a Statement of Position and the Union did
 not file a Reply Brief in this case.
 
 
    /2/ Section 7106(a)(2)(B) provides as follows:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
                                .  .  .  .
 
          (B) to assign work, to make determinations with respect to
       contracting out, and to determine the personnel by which agency
       operations shall be conducted(.)
 
 
    /3/ See also American Federation of Government Employees, AFL-CIO,
 Local 3424 and Federal Home Loan Bank Board, San Francisco, California,
 14 FLRA 79 (1984).
 
 
    /4/ Although the Union references its statement of position with
 respect to these proposals in terms of administrative leave instead of
 official time, the Authority bases its decision herein on the expressed
 terms of the proposals themselves, which refer specifically to official
 time.
 
 
    /5/ See AFGE, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984),
 affirming U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and
 U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731
 (1983).
 
 
    /6/ Section 7106(a)(2)(A) provides as follows:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
                                .  .  .  .
 
          (A) to . . . direct . . . employees in the agency, or to
       suspend, remove, reduce in grade or pay, or take other
       disciplinary action against such employees(.)
 
 
    /7/ The Authority has consistently held that it will not base a
 negotiability determination on a union's statement of intent which is
 inconsistent with the express language of the disputed proposal.  See,
 e.g., American Federation of Government Employees, Local 2761 and U.S.
 Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA
 No. 118 (1985) at 5 n. 7 of the decision.
 
 
    /8/ Cf. American Federation of State, County and Municipal Employees,
 AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983),
 (proposal to give employees who accepted assistance in the Alcoholism
 and Drug Abuse Assistance Program a reasonable opportunity to improve
 their pe