24:0056(7)NG - NAGE Local R4-75 and Interior, National Park Service, Blue Ridge Parkway -- 1986 FLRAdec NG
[ v24 p56 ]
The decision of the Authority follows:
24 FLRA No. 7 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-75 Union and U.S. DEPARTMENT OF THE INTERIOR NATIONAL PARK SERVICE BLUE RIDGE PARKWAY Agency Case No. 0-NG-1144 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of five provisions of a negotiated agreement disapproved by the Agency head under section 7114(c) of the Statute. /1/ II. Provision 1 Article XIV, Annual Leave, Section 4 In the event of a conflict in annual leave scheduling among employees, the senior employee based on length of service, using service computation dates, will be given first choice in the absence of determinable hardship and thereafter rotated in descending seniority sequence. However, length of service shall not be used for the same choice leave each year, (e.g., Christmas Holidays, July 4th Holidays, New Year Holidays, first week of hunting season and etc.). A. Positions of the Parties The Agency asserts that the provision violates its right to assign work under section 7106(a)(2)(B) of the Statute because the provision mandates leave approvals, based on seniority, which may conflict with work requirements. The Union disputes this assertion. B. Analysis and Conclusion The provision is negotiable. As worded and explained by the Union, the provision creates a procedure for resolving conflicts between employee leave schedules. Where the number of employees who apply for leave for a particular period exceeds the number management can release from work during that period, the provision requires that the more senior employees will be given preference. The Agency's interpretation of the provision -- that it requires that employee leave requests take precedence over mangement's work requirements -- is unsupported. The provision creates a procedure for resolving conflicts among employee requests for leave. Although the Agency correctly cites Authority precedent on management's right to disapprove leave requests which conflict with its work requirements, for example, 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 580, 583-84 (1984), that precedent is inapplicable to this provision because the provision preserves management's right to schedule and approve leave based on its work requirements. III. Provision 2 Article XIV, Annual Leave, Section 8 An employee may be called back from leave when an emergency arises. A. Positions of the Parties The Agency claims the provision conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute because it would prevent management from calling employees back from leave except in emergencies. The Union asserts that the Agency has misinterpreted the provision. B. Analysis and Conclusion The provision is negotiable. As worded and explained by the Union, the provision advises employees that they may be called back from leave in emergencies. The provision does not limit management's right to cancel leave to a particular definition of an "emergency" or limit management's right to cancel leave for other reasons. Further, unlike provision 2 in 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, 22 FLRA No. 13 (1986), this provision does not limit the Agency's right to act in emergencies under section 7106(a)(2)(D) of the Statute by imposing a definition of "emergency" on management. IV. Provision 3 Article XXVI, Disciplinary and Adverse Actions, Section 6(b) (b) An employee against whom an adverse action is proposed is entitled to a total of at least thirty (30) calendar days advance written notice prior to the effective date of the action taken. An employee shall be given at least fifteen (15) calendar days advance notice prior to the effective date of a suspension of fourteen (14) days or less. These time frames shall not preclude the EMPLOYER from taking immediate action if the crime provisions are invoked in accordance with 5 U.S.C. 7513(b)(1) and 5 C.F.R. 752.404(d). (Only the underscored sentence is in dispute.) A. Positions of the Parties The Agency argues that the disputed language conflicts with management's right to discipline employees under section 7106(a)(2)(A) of the Statute because the provision would prevent it from suspending employees on 24-hour notice. The Agency also argues that the disputed language conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute because suspending an employee from work inherently concerns whether work will be assigned to that employee. The Union argues that the provision is negotiable because it constitutes a "procedure" or an "appropriate arrangement" under section 7106(b)(2) and (3) of the Statute and it does not conflict with managment's right to discipline employees. B. Analysis and Conclusion The disputed language is within the Agency's duty to bargain under section 7106(b)(2) of the Statute. As worded and explained by the Union, the disputed language applies to suspensions of employees under 5 U.S.C. Sections 7501-7504 and 5 CFR Section 752.101-.203, which require agencies to follow certain procedures when they propose to suspend employees for 14 days or less. For these suspensions, under 5 U.S.C. Section 7503(b)(2) employees are to be provided with a "reasonable time" to answer the proposed action. Under 5 CFR Section 752.203(c), employees must be given at least 24 hours to answer. The Agency has not argued or shown that an answer period of 15 days, as provided in the disputed language, is contrary to 5 U.S.C. Section 7503(b)(2) or 5 CFR Section 752.203(c). Accordingly, we find that the disputed language is consistent with applicable law and regulations. The disputed language also does not conflict with management's right to take disciplinary action. Under no circumstances would the provision preclude the Agency from initiating disciplinary action against an employee. Rather, it establishes a procedure to be followed after disciplinary action has been proposed. Compare National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of the Interior, 17 FLRA 318 (1985), aff'd sub nom. NFFE Local 615 v. FLRA, No. 85-1299 (D.C. Cir. Sept. 12, 1986). The provision balances the Agency's need to impose discipline against employees' rights to have notice of and an opportunity to answer the charges against them and does not prevent the Agency from exercising its rights. The provision, therefore, constitutes a negotiable procedure under section 7106(b)(2). As noted by the Union, other language in the agreement provision, which refers to 5 U.S.C. Section 7513 and 5 CFR Section 752.404, preserves the Agency's right to separate an employee from the workplace, without delay, for a serious offense and where the employee's presence at the workplace might threaten other Agency employees, Agency property, or other legitimate Agency interests. The Office of Personnel Management's (OPM's) implementing regulations at 5 CFR Section 752.404(b)(3)(i)(v) detail a list of options for this purpose. In addition, the fact that the provision requires the Agency to follow the procedures of 5 U.S.C. Sections 7512-7514 and 5 CFR Section 752.401-.406 when contemplating such immediate actions does not render the provision nonnegotiable. The Authority has consistently held that provisions requiring management to exercise its statutory rights under section 7106 in compliance with law are within the duty to bargain. American Federation of Government Employees. AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 677-78 (1983). Finally, the provision does not affect the Agency's right to assign work. The provision does not affect the Agency's determinations concerning the assignment of work to an employee during the period prior to an employee's suspension and does not require that suspensions become effective at any particular time. The Agency is therefore free to determine employees' work assignments during the period a suspension is in prospect, and when it becomes effective. V. Provision 4 Article XXX, Health and Safety, Section 6 The EMPLOYER will provide relief or assistance to an employee who is required to lift an item, or operate machinery or equipment, requiring physical exertion beyond safe limits specified in current applicable directives. A. Positions of the Parties The Agency asserts that the provision conflicts with management's right to assign work because it would allow an employee to refuse work. The Union disputes this and argues that the provision is negotiable as an "appropriate arrangement" under section 7106(b)(3) of the Statute. B. Analysis and Conclusion The provision is negotiable. The provision requires management to provide assistance to employees -- in the form of other personnel or additional tools or equipment -- when the physical exertion required for a task exceeds safe limits under applicable directives. As worded and explained by the Union, the provision does not prevent management from assigning work to employees or empower employees to refuse work assignments. Accordingly, the provision does not conflict with mangement's right to assign work under section 7106(a)(2)(B) of the Statute. The assistance required by the provision would take the form of additional personnel, tools or equipment. Union Response to Agency Statement of Position at 6. Although not raised by the Agency, implementation of the provision could affect management's rights to determine numbers, types, and grades of employees who are assigned to a work project or the methods and means of performing work under section 7106(b)(1) of the Statute. See, for example, International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 524 (1983); Laborers' International Union, Local No. 1276 and Department of Defense, Defense Logistics Agency, 12 FLRA 62 (1983). These matters are permissive subjects of bargaining under section 7106(b)(1), that is, matters on which the Agency may elect to bargain or not to bargain. See, for example, American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 381-82 (1982), enforcement denied as to other matters sub nom. Department of Justice v. FLRA, 727 F.2d 481, 487-88 (5th Cir. 1984). Negotiations on permissive subjects may begin and later cease. See Civil Service Reform Act of 1978: Conference Report, H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 154 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, H.R. Comm. Print No. 96-7, 96th Cong., 1st Sess. 793, 822 (1979) (where it is stated: "In sum, the conference report fully preserves the right of management to refuse to bargain on "methods and means" and to terminate bargaining at any point even if it initially agrees to negotiations.") In this case, bargaining on the provision occurred at the local level and an agreement was executed. Disapproval of the provision occurred pursuant to section 7114(c) of the Statute. Local agreements are subject to review by the agency head (or designee) under section 7114(c). National Treasury Employees Union, Chapter 52 and Internal Revenue Service, Austin District, 23 FLRA No. 93 (1986). As for the scope of the review, however, "(s)ection 7114(c) strictly limits the occasions in which the head of the agency may invalidate an agreement(.)" AFGE v. FLRA, 778 F.2d 850, 859 n.15 (D.C. Cir. 1985). Section 7114(c) requires approval by the agency head "if the agreement is in accordance with the (Statute) and any other applicable law, rule, or regulation(.)" We conclude that agreement provisions may not be disapproved by an agency head under section 7114(c) simply because they relate to section 7106(b)(1) matters. These provisions are not inconsistent with the Statute. They differ, in this respect, from provisions which conflict with management's rights under section 7106(a) of the Statute. Unlike section 7106(a), which provides that "nothing in (the Statute) shall affect the authority of any management official" to exercise those rights, section 7106(b)(1) provides that "nothing in this section shall preclude an agency" from electing to bargain on those subjects. Provisions relating to section 7106(b)(1) matters, therefore, may be included in an agreement in accordance with the Statute. As a result, unless they are otherwise inconsistent with applicable law, rule, or regulation, these provisions are not subject to disapproval under section 7114(c). /2/ VI. Provision 5 Article XII, Adverse Weather Policy, Section 5 Within those functions where there are two or more employees performing the same function and less than the full work force is required a reasonable effort will be made to rotate the personnel designated as mission essential. The names of the personnel designated as mission essential will be posted in the work area and updated to reflect changes. A. Positions of the Parties The Agency asserts that the provision conflicts with section 7106(a)(2)(A) because it would prevent management from assigning employees to tasks based on their individual abilities. The Agency also asserts that the provision prevents the Agency from determining which Agency personnel are mission essential and that it is nonnegotiable for this reason because these determinations are critical for the Agency's internal security practices. The Union disputes these assertions. B. Analysis and Conclusion The provision is negotiable. As explained by the Union, this provision merely requires that assignments of personnel who are mission essential be rotated in situations where less than a full workforce is required, to ensure that these assignments are evenly distributed. The provision does not affect management's discretion to determine which Agency personnel are mission essential. The provision also explicitly preserves management's right to change these determinations as it deems necessary. The provision is analogous to the proposals on overtime assignments held negotiable by the Authority in National Federation of Federal Employees, Local 1622 and U.S. Commissary, Fort Meade, Maryland, 16 FLRA 998, 999-1000 (1984) and American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663, 664-65 (1982). The Authority found that those proposals did not violate management's right to assign work under section 7106(a)(2)(B) because they only established procedures for assigning work to employees who normally perform such work. VII. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency rescind its disapproval of the disputed provisions. /3/ Issued, Washington, D.C., November 18, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In response to the Union's petition for review, the Agency withdrew its disapprovals of two provisions: "Article XIV, Annual Leave, Section 1" and "Article XXVIII, Training, Section 3." Accordingly, these provisions need not be considered here. (2) For a similar conclusion under the analogous agency head review provisions of Executive Order 11491, as amended, see AFGE Council of Locals 1497 and 2165 and Region 3, General Services Administration, Baltimore, Maryland, 3 FLRC 397, 400-01 (1975). (3) In finding the disputed provisions to be negotiable, the Authority makes no judgment as to their merits.