20:0193(26)NG - AFGE Local 2786 and Defense Mapping Agency -- 1985 FLRAdec NG

20 FLRA No. 26

AMERICAN FEDERATION OF GOVERNMENT 
EMPLOYEES, AFL-CIO, LOCAL 2786 
Union 

and 

DEFENSE MAPPING AGENCY
Agency

                                      Case No. 0-NG-925

               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 three provisions of the local parties'
agreement which were disapproved by the Agency head pursuant to section
7114(c) of the Statute.  Upon careful consideration of the entire
record, including the parties' contentions, the Authority makes the
following determinations.

                               Provision 1

         Article XXV, Section 5:

         Section 5.  If remedial action for unacceptable performance is
      necessary, management shall attempt where possible to apply that
      action progressively i.e., reassignment, demotion, termination.

   The Union contends that Provision 1 herein is not significantly
different from proposals, found negotiable by the Authority, requiring
management to "attempt where possible" or to "endeavor" to act in a
certain manner.  /1/ This contention cannot be sustained.  In this
regard, the Agency's interpretation of the effect of the instant
provision is persuasive.  In the Agency's view, the provision:

         goes far beyond the requirement to "endeavor" to make
      assignments in a certain way found negotiable in the Mare Island
      case cited above.  Rather it makes terminations and demotions of
      unsuccessful performers contingent on the agency's having no other
      choice and directs reassignments of unsuccessful employees to
      position vacancies if such reassignments are within the limits of
      the agency's ability or capacity.  /2/

In agreement with the Agency, the Authority concludes that
notwithstanding the presence of the phrase "shall attempt where
possible," the provision would bind management to the progressive
disciplinary steps prescribed unless the Agency were able to demonstrate
that no other positions were available to which an employee performing
in a substandard manner could appropriately be reassigned or demoted.
/3/ Cf. National Treasury Employees Union, Chapter 204 and Federal
Election Commission, 19 FLRA No. 25(1985) (wherein the phrase
"reasonable restrictions" was held to subject the exercise of a reserved
management right to arbitral review).  In this respect, Provision 1
herein is to the same effect as Union Proposal 3 found nonnegotiable in
American Federation of Government Employees, AFL-CIO, Local 1708 and
Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
No. 1(1984).  In that case, the Authority found that a proposal which
required the agency to train or reassign an employee before demoting or
terminating that employee for unacceptable performance would expressly
place a substantive restriction on management's discretion to decide to
remove or reduce employees in grade or pay pursuant to section
7106(a)(2)(A) of the Statute.  Moreover, the restriction itself involved
the exercise of management's right to assign employees or work pursuant
to section 7106(a) of the Statute.  The Authority concluded that the
proposal directly interfered with reserved management rights and thus
did not constitute a procedure within the meaning of section 7106(b)(2)
of the Statute.  /4/

   Consequently, since Provision 1 herein also would require the
application of progressive discipline in performance-based disciplinary
actions it is, based on National Labor Relations Board, outside the duty
to bargain.

                               Provision 2

         Article XXV, Section 6:

         Section 6.  The element rating levels and the overall rating
      levels will be in accordance with DMA Instruction 1434.1 except
      that the minimally satisfactory overall rating level will not be
      used.

   Provision 2 seeks to prescribe the numbers of performance levels by
contractually eliminating one of the levels previously applied by the
Agency in evaluating the performance of its employees.  In this regard,
the provision is to the same effect as the proposal which was before the
Authority in American Federation of State, County and Municipal
Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA
578(1984), seeking inter alia to require that there be three rating
levels for overall performance.  In that case, the Authority found the
disputed proposal to be nonnegotiable, stating, "(t)he number of
performance levels for both individual job elements and overall
performance are essential aspects of the rights to assign work and
direct employees." Accordingly, based on U.S. Department of Justice and
the reasons and cases cited therein, Provision 2 in this case is also
inconsistent with the rights of management to direct employees and to
assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute and
is therefore outside the duty to bargain.

                               Provision 3

         Article XV, Section 5:

         Section 5.  Committees:  The Activity agrees to establish a
      functioning safety and health committee or counsel (sic) in
      accordance with the provisions of E.O. 12196.  The Activity
      further agrees to develop and issue necessary identification,
      e.g., official safety and health credentials, to all committee
      members to assist them in carrying out their responsibilities.

         a.  Responsibilities of Committee:

         (1) Principal function is to develop, monitor, implement, and
      evaluate the Activity's safety and health policy.

         (2) Monitor performance of the activities (sic) safety program
      and make recommendations for needed changes.

         (3) Participate in safety and health inspections when such
      activity is necessary to evaluate inspection procedures on safety
      and health matters.

         (4) Assist, monitor and evaluate the effectiveness of office
      safety and health training programs.

         (5) Comment on standards proposed as substitutes for OSHA
      standards as appropriate.

         (6) Evaluate procedures for handling safety and health
      recommendations from employees.

         (7) Review responses to reports concerned with allegations of
      hazardous conditions or alleged safety and health program
      deficiencies.  If half the members of record on the committee are
      not substantially satisfied with the response, they may request an
      appropriate investigation or inspection to be conducted by the
      Occupational Safety and Health Administration (OSHA) or by other
      activities agreed to by the parties.

         b.  Organization of Committee

         (1) The Committee shall consist of two members appointed by the
      Activity, two appointed by the Union and the Administrative
      Officer (GS-09) as ex-officio member.

         (2) Committee members will serve 3 years.

         (3) The Committee Chairperson shall be nominated from among the
      members and elected by the committee.  Chairpersons will serve for
      1 year and alternate between managerial-bargaining unit members.

         (4) The Committee will meet monthly.  Special meetings shall be
      called as necessary.  Adequate notice of meetings shall be
      furnished Committee members in advance by the Chairperson.
      Written minutes of each meeting will be maintained and distributed
      to the Office Director, the Union President, the Administration
      Office and each Committee member.  Minutes will be made available
      to employees upon request.

   The Agency contends that Provision 3 attempts to establish a
certified Occupational Safety and Health Committee within the meaning of
Executive Order 12196.  In this regard, the Agency points out that,
pursuant to the executive order, a certified committee must be part of a
network of such committees established both at the national level and at
other appropriate levels within an agency.  Since the parent agency, the
Department of Defense, has exercised the option available under the
executive order not to establish certified committees, the Agency argues
that the parties to the agreement were without the power to establish a
certified committee within the bargaining unit.  The Union, however,
responds by stating:

         There is nothing in the language (of the Provision), nor is it
      the intent of the union to require the agency to establish a
      "certified" safety committee as defined by the agency.  Rather,
      the union merely seeks an agreement on the establishment of a
      safety and health committee at the level of its exclusive
      recognition, in accordance with provisions of E.O. 12196.  /5/

   While the Authority finds, contrary to the Agency's position, that
Provision 3 does not mandate the establishment of a certified
occupational safety and health committee within the meaning of E.O.
12196, the record indicates that the Agency has carried out the mandate
of E.O. 12196 by providing, through internal agency regulations, for
"uncertified" occupational safety and health committees.  /6/ In these
circumstances, the Authority concludes that such occupational safety and
health committees, established by DoD Instruction 6055.1, are internal
management committees and that the tasks associated with carrying out
the functions of those committees involves the assignment of work,
pursuant to section 7106(a)(2)(B) of the Statute.  In this respect, the
provision is to the same effect as Provision 4 in Association of
Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant
General, Department of Military Affairs, Commonwealth of Pennsylvania, 7
FLRA 346(1981), rev'd, per curiam as to other matters sub nom. Adjutant
General, Department of Military Affairs v. FLRA, 685 F.2d 93 (3rd Cir.
1982), which required that the union be permitted to select its
representatives on