24:0056(7)NG - NAGE Local R4-75 and Interior, National Park Service, Blue Ridge Parkway -- 1986 FLRAdec NG



[ v24 p56 ]
24:0056(7)NG
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
 t