30:0909(102)NG - AFGE and Army and Air Force Exchange Service -- 1988 FLRAdec NG
[ v30 p909 ]
The decision of the Authority follows:
30 FLRA NO. 102 30 FLRA 909 15 JAN 1988 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Union and ARMY AND AIR FORCE EXCHANGE SERVICE Agency Case No. 0-NG-1397 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The case presents issues concerning the negotiability of two provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. The two provisions concern an employee's declining to perform a task where he/she reasonably believes the task poses imminent danger of death or serious physical harm. We find that the provisions are within the duty to bargain under section 7106(b)(3) because they constitute appropriate arrangements for employees adversely affected by the exercise of management's rights to assign work and direct employees under section 7106 of the Statute. II. Provision 1 Article 35, Health and Safety, Section 9 The tern "imminent danger" means any conditions or practices in any work place which could reasonably be expected to cause death or serious physical harm immediately or before there is sufficient time for the imminence of such danger to be eliminated through normal procedures. In the case of imminent danger situations, employees shall make reports by the most expeditious means available. The employee has the right to decline to perform assigned tasks because of a reasonable belief that, under the circumstances, the tasks pose an imminent risk of death or serious bodily harm, coupled with a reasonable belief that there is insufficient time to effectively seek corrective action through normal hazard reporting and abatement procedures. In these instances, the employee must report the situation to his supervisor or the next immediately-available, higher level supervisor. If the supervisor believes the condition or corrected condition does pose an immediate danger, then the supervisor shall request an inspection by the Employer's Safety and Security Technician or Specialist (SST or SSS) as well as contact the Local Union safety representative, who shall be afforded the opportunity to be present at the time the inspection is made. Should the SST or SSS decide the condition does not pose an immediate danger and give an instruction to return to work, continued refusal by the employee at this point would be justified, if there was a reasonable basis for the employee to believe that imminent danger was present. A. Positions of the Parties The Agency contends that Provision 1 conflicts with its rights to assign work, direct employees, and discipline employees under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the provision transfers to the employee the sole discretion to determine whether or not to perform assigned tasks. That is, the Agency contends that if an employee has a reasonable basis to believe that imminent danger is present, the employee can refuse to perform the task. Further, an employee can continue to refuse even after appropriate management officials have investigated the situation and have determined, after any necessary corrections, that it does not pose an imminent danger to the employee. The Agency argues that while the provision does not expressly state that employees may not be disciplined for refusing to perform work, it allows employees in the described situations to refuse to perform assigned tasks and thereby to be immune from discipline for such refusal. The Union argues that the provision is a negotiable procedure and an appropriate arrangement for employees who in the course of their jobs are faced with life-threatening situations. Moreover, the Union maintains that the provision does not prohibit the initiation of discipline but, rather, provides a defense when discipline is proposed. B. Analysis and Conclusions We find that this provision would prevent the Agency from assigning work to employees in circumstances where employees reasonably believe that the duties present an imminent danger of death or serious bodily harm coupled with insufficient time within which to abate the hazard even if the Agency had abated the imminent danger or decided that it did not exist. Proposals which prescribe conditions on management's ability to require employees to perform particular duties directly interfere with management's right to assign work. See American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986) (Proposal 4), aff'd sub nom. American Federation of Government Employees, AFL - CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987). In VA Medical Center, New York, the Authority found that Proposal 4, which prevented the Agency from assigning overtime work to employees if the employees believed,-that it would endanger their health, was a substantive infringement on the agency's right to assign work under section 7106(a)(2)(B) and that it was not a "procedure" within the meaning of section 7106(b)(2) of the Statute. Provision 1, likewise, would prevent the Agency from assigning work to employees under the circumstances stated in the provision. We find, for the reasons stated in VA Medical Center, New York, that it directly interferes with the right to assign work. Furthermore, since the right to direct employees under section 7106(a)(2)(A) involves the right to supervise and guide them in the performance of their duties, the right to direct employees is reflected in the supervisory function of assigning work. International Plate Printers, Die Stampers and Engravers Union of North America AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 120 (1987). Moreover, the fact that the provision reflects essentially the same wording as Occupational Safety and Health Administration (OSHA) regulation, 29 C.F.R. 1960.46(a), does not make it negotiable. The provision goes beyond the contractual recognition of externally imposed limitations and imposes an independent, substantive contractual requirement. See National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 577 (1981) (Proposal 1), aff'd sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Based on the Union's intent and the wording of the provision, we find that the provision does not prevent management from initiating disciplinary actions against employees. Consequently, the provision does not concern the exercise of management's right to discipline employees. The provision is distinguishable from Provisions 26-28 in Department of the Treasury, Bureau of Engraving and Printing, 25 FLRA 113, 135-37. In that case, we found that the provisions stating that an employee "shall not be subject to disciplinary action" did not concern an employee's defense to discipline but totally precluded management from instituting discipline against employees. Because Provision 1 conflicts with management's rights to assign work and derivatively to direct employees under section 7106(a)(2)(A) and (B), it is nonnegotiable unless it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). As explained in Kansas Army National Guard, in order to determine whether the provision constitutes a negotiable appropriate arrangement, we determine whether the provision is intended to be an arrangement for employees who are adversely affected by the exercise of management's statutory rights. If the provision is so intended, we then determine whether it is inappropriate because it excessively interferes with the exercise of management's rights. We conclude that this provision is intended to be an arrangement for employees who may be adversely affected by the exercise of management's rights to assign work and direct employees. Based on the Union's undisputed explanation, the provision is intended to protect employees from the adverse impact of assignment to, and direction to perform, duties which will seriously endanger their health and safety. In deciding whether the intended arrangement is appropriate, we must determine whether its negative impact on management's rights to assign work and direct employees is "excessive" when weighed against the intended benefit to adversely affected employees. By enabling employees who reasonably perceive their work situations to present serious and life-threatening conditions, Provision 1 clearly benefits those employees. Since the provision applies in a narrowly defined set of circumstances and does not prevent management from disciplining employees, we conclude that it does not excessively interfere with management's rights, as explained below. Under this proposal if a supervisor instructs an employee to perform work in circumstances which the employee believes is an "imminent danger" situation, the employee has the obligation and the opportunity to explain this to the supervisor. If the supervisor, alone or in conjunction with an Agency safety representative, reasserts the instruction, with or without attempted corrective action, the employee must choose between (1) setting aside his or her concerns and performing the work or (2) disobeying the order and risking disciplinary action, for example, for insubordination. If the Agency institutes disciplinary action against the employee, the proposal enables the employee or the Union to dispute the disciplinary action, through the parties' negotiated grievance procedure. The employee's defense against the discipline would be that, because the employee's perception that the work situation constituted an imminent danger was correct, the discipline would not be for just cause. If the grievance is not settled short of arbitration and the matter is submitted to arbitration under the parties' procedures, the arbitrator ultimately would decide that issue based on evidence concerning the work situation presented by the parties. Provision 1 does not apply to every perceived threat to employee health and safety. Under Provision 1 there must be facts which would support a reasonable belief that the threat (1) is imminent; (2) poses a risk of death or serious physical injury; and (3) cannot be abated through normal procedures. The provision would apply the same standard in circumstances where an employee continued to refuse to work based on disagreement with a decision by Agency officials that there was no immediate danger present or that the condition had been corrected. Provision 1 does not protect employees who feel themselves to be in danger where there is no clear evidence to support that conviction. compare American Federation of Government Employees, AFL - CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 505-09, (1987) (Provision 3) petition for review filed sub nom. Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 87-2661 (4th Cir. September 22, 1987) (provision permitting employees to refuse work where they feel in danger held inconsistent with 29 C.F.R. 1960.46(a)). The threat must also be immediate and pressing rather than merely likely. Moreover, under Provision 1 the harm with which employees are threatened must present a risk of serious bodily harm or be life-threatening. A risk of injury of any sort is not sufficient. Finally, the threat must be so pressing and severe that it is not possible to deal with it in time to prevent the harm. Problems which may be resolved before they result in serious physical harm would not justify employees' stopping work. Only in the most limited circumstances, therefore, would the provision restrict the Agency's ability to assign work. Compare American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA 69, 77-79 (1987) (Provision 4), petition for review filed sub nom. U.S. Army Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987) (provision permitting employees to refuse details which would be beyond their physical capacities held not to be an appropriate arrangement under section 7106(b)(3) because it would apply to any assignments, for any reason, and to any extent). Thus, while the protection afforded employees by Provision 1 would result in some interference with management's rights, that interference is not excessive. On balance, therefore, while the provision interferes with management's right to assign work, it concerns a matter of great importance to the health and safety of employees. We conclude that the benefit afforded by the provision to employees who may be required to work in situations where their health and safety are seriously threatened outweighs the detriment to management caused by the provision's limited interference with management's right to assign work. Consequently, we find that Provision 1 does not excessively interfere with management's right and constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See National Federation of Federal Employees, Local 29 and Department of Defense, HQ, U.S. Military Entrance Processing Command, 29 FLRA 726 (1987). III. Provision 2 Article 37, Over the Road Drivers, Section 8 Employees are not required to, and will not be penalized for failing to, continue a run when a situation arises which would make continuing it an imminent danger. A. Positions of the Parties The Agency contends that Provision 2 excessively interferes with its rights to assign work, direct employees, and discipline employees under section 7106(a)(2)(A) and (B). The Union maintains that the provision is within the duty to bargain as a negotiable procedure and appropriate arrangement for employees who are faced with life-threatening situations in the performance of their work. The Union states that it intends the definition of "imminent danger" and the standard of "reasonable belief" as used in Provision 1 to be incorporated into Provision 2. Moreover, the Union states that Provision 2 does not immunize an employee from the initiation of a disciplinary action by the Agency but, rather, provides a defense once discipline is undertaken. B. Analysis and Conclusion Based on its language and the Union's statement of intent, we conclude that Provision 2 is to the same effect as Provision 1. We conclude for the same reasons expressed in conjunction with Provision 1, that Provision 2 interferes with the Agency's right to assign work and direct employees but does not interfere with the right to discipline employees. It is, however, negotiable under section 7106(b)(3) as an appropriate arrangement. In reaching the conclusion that the provision does not interfere with the right to discipline employees we adopt the Union's explanation of the provision, as follows: The driver provision only protects an employee from being penalized (e.g., disciplined) if an imminent danger did exist. Thus, in the context of the disputed provisions taken together, proposing discipline does not constitute a penalty and would not be barred by the driver provision. Union Response at 3 (emphasis in original). In view of this statement, we find that the phrase "will not be penalized" in this provision refers only to the outcome of a disciplinary action in which an employee who establishes that an "imminent danger" existed will not be punished. The provision does not prevent the Agency from instituting a disciplinary action. Compare Department of the Treasury, Bureau of Engraving and Printing, 25 FLRA 113, 135-37 (the phrase "shall not be subject to disciplinary action" totally precluded management from instituting discipline against employees). IV. Order The Agency must rescind its disapproval of Provisions 1 and 2. 1 Issued, Washington, D.C. January 15, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In finding that these provisions are within the duty to bargain, we make no judgment as to their merits.