30:1130(123)NG - ### -- 1988 FLRAdec NG



[ v30 p1130 ]
30:1130(123)NG
The decision of the Authority follows:


30 FLRA NO. 123

30 FLRA 1130
     29 JAN 1988
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2354

                           Union

              and

DEPARTMENT OF THE AIR FORCE
HQ 90th COMBAT SUPPORT GROUP
F.E. WARREN AIR FORCE BASE
WYOMING

                   Agency

Case No. O-NG-1347

DECISION AND ORDER ON NEGOTIABILITY

     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) and concerns
the negotiability of seven provisions of a locally negotiated
agreement that were disapproved by the Agency head under section
7114 (c) of the Statute. For reasons more fully discussed below,
we find that Provisions 1, 2 and 3 are within the duty to
bargain. Provisions 4, 5, 6 and 7 are outside the duty to
bargain.

     II. Preliminary Matters

     A. Petition for Review is not Procedurally Defective

     The Agency asserts that the Union's petition for review
fails to conform with section 2424.4(a)(2) of the Authority's
Rules and Regulations in that the Union did not include an
explicit statement of the meaning attributed to the provisions in
its petition. According to the Agency, the petition for review
should either be denied because of this deficiency or remanded to
the Union for resubmission in accordance with the Rules and
Regulations.

     In response, the Union indicates that since the Agency
failed to specify its reasons for disapproving the portions
 of the agreement that are in dispute, the Union had no way
of knowing what the Agency's concerns were until after the
petition for review had been filed.

     We find no basis on which to deny the petition for review or
remand it to the Union. The record provides a sufficient basis to
rule on the negotiability of the provisions. Accordingly, the
Agency's request is denied.

     B. Agency's Statement of Position was Timely Filed

     The Union urges the Authority to reject the Agency's
Statement of Position as having been filed untimely. The record
reveals that the Union's petition for review, dated December 2,
1986, was procedurally deficient in that the Union failed to
serve the proper Agency representative. The defect was cured and
the corrected petition was received by the Agency on December 16,
1986.

     Under the Statute and our Rules and Regulations, an agency
has 30  days from receipt of a petition for review within which
to file a statement of its position. The Authority's records
indicate that the Agency's Statement of Position was both dated
and received by the Authority on January 15, 1987. Thus, the
Agency's statement was timely filed and the Union's request must
be denied.

     III. Provisions 1 and 2

     Provision 1

     Article 4 - Employee Rights

     Section B.

     An employee must request and obtain permission from his/her
immediate supervisor to meet with his/her Union representative
during regular working hours of the employees involved.
Supervisory permission will be granted except when there are
work-related reasons related to mandatory coverage and/or the
mission of the functional area which precludes such release.
Ordinary workload will not Preclude the release of employees
under this section. (Only the underscored portion is in dispute.)


     Provision 2

     Article 5 - Union Rights

     Section D.

     A Union officer or steward must request and obtain
permission from his/her supervisor to be released on official
time to engage in representational activity during regular
working hours of the Union officer or steward involved.
Supervisory permission will be granted except when there are
work-related reasons related to the mandatory coverage and/or the
mission of the functional area which precludes such release.
Ordinary workload will not preclude the release of employees
under this section. (Only the underscored portion is in
dispute.)

     A. Positions of the Parties

     The Agency's position is that the underscored portions of
these provisions restrict management's right to assign work,
including the right to determine when work will be performed. The
Agency also claims that the provisions would prevent it from
considering effective and efficient government operations as a
factor to be used in determining whether an employee could be
released from duty. In support of its position, the Agency cites
the Authority's decisions in American Federation of Government
Employees, AFL - CIO, National Immigration and Naturalization
Service Council and U.S. Department of Justice, Immigration and
Naturalization Service, 8 FLRA  347 (1982), rev'd as to other
matters sub nom. U.S. Department of Justice v. FLRA,  790 F.2d
724 (D.C. Cir. 1983); National Treasury Employees Union and
Internal Revenue Service, 17 FLRA  379 (1985); and Overseas
Federation of Teachers and Department Of Defense Dependent
Schools, Mediterranean Region, APO New York, 21 FLRA  640
(1986).

     The Union argues that the Agency has misconstrued the
provisions. The Union notes that the language of the provisions
was agreed to by the local negotiators whose intent was that the
language not interfere with the exercise of management's rights.
Instead, the language was a compromise between the Union's
position that managers be prevented from refusing to release
employees or union officials for arbitrary reasons and
management's desire that it be able to accomplish its mission by
performing all work which is necessary.

     B. Analysis and Conclusion

     We find that Provisions 1 and 2 constitute procedures for
scheduling official time under section 7131(d) of the Statute and
as such they are within the duty to bargain.

     Section 7131(d) authorizes the negotiation of official time
for representational purposes. The Authority has identified
contract administration, participation in grievance arbitration,
and the like, as examples of such representational matters. See
American Federation of Government Employees, Local 2094, AFL -
CIO and Veterans Administration Medical Center, New York, New
York, 19 FLRA  1027, 1029 (1985).

     In Military Entrance Processing Station, Los Angeles,
California, 25 FLRA  685, 688-89 (1987) we reexamined the
relationship between management's right to assign work under
section 7106(a)(2)(B) and the authorization to negotiate official
time for representational purposes under section 7131(d). We
stated that Congress provided in section 7131(d) that agencies
and unions should jointly determine through negotiations the
amount of official time to be available to employees during any
given time period that is "reasonable, necessary, and in the
public interest." see also American Federation of Government
Employees, council of Locals No. 214 v. FLRA,  798 F.2d 1525,
1530 (D.C. Cir. 1986). We noted that the Court in AFGE, Council
of Locals No. 214 stated that section 7131(d) "carves exceptions"
to management's right to assign work under section 7106(a)(2)(B);
otherwise, that right "would preclude any negotiation of official
time provisions, since official time always affects an agency's
ability to assign work." 798 F.2d at 1530-31 n.8.

     Thus, we held that "the use of official time under section
7131(d)--that is, its amount, allocation and scheduling--is
negotiable absent an emergency or other special circumstances(.)"
Military Processing Station at 689. See also AFGE. Council of
Locals No. 214, 798 F.2d at 1530. "An agency has no obligation to
abandon what it conceives to be the best interest of the agency
merely because it must negotiate on an official time proposal."

     Provision 1 requires an employee to request and obtain
permission in order to meet with his or her union
representative during the regular work hours of the employees
involved. Provision 2 requires the union officer or steward to
request and obtain permission in order to be released on official
time to engage in representational activity during the regular
working hours of the officer or steward. In both cases, the
request would be automatically granted, with certain work-related
exceptions. Ordinary workload would not be considered a basis on
which to deny a request.

     While the parties have not so specified, we construe the
official time referred to in Provision 2 to refer to
representational responsibilities falling within the meaning of
section 7131(d) of the Statute.

     Both Provision 1 and Provision 2 permit the Agency to deny
requests for official time when there are "mandatory" work
requirements. Further, the Agency acknowledges that under these
provisions requests for official time could be denied for "a
critical mission requirement(.)" Statement of Position at 4. The
Agency, however, claims that the provisions are still
nonnegotiable because they would not permit the Agency to
consider effective and efficient government operations as a
factor in determining whether to grant a request for official
time. Such a generalized concern regarding government operations
"cannot displace a specific congressional concern for the
negotiability of official time proposals." AFGE, Council of
Locals No. 214, 798 F.2d at 1530. Consequently, we find that the
Agency has not established that these provisions would prevent
the Agency from taking into account emergency or other special
circumstances in determining whether to deny a request for
official time.

     Thus, based on Military Processing Station, we find that
Provision 2 is negotiable. We also find that Provision 1 is
within the duty to bargain. While Provision 2 authorizes the
release of the union officer or steward, Provision 1 authorizes
the release of employees for the purpose of meeting with their
union representatives on matters that are obviously related to
labor-management activities. Provisions 1 and 2, in our view, go
hand-in-hand. The ability of the union officer or steward to
engage in representational responsibilities during regular
working hours, as authorized by Provision 2, would be seriously
hampered, and even rendered meaningless, if the particular
employee whom the union official was representing was not
similarly released during regular working hours. 

     Further, as previously noted, the Agency relied on three
Authority decisions to support its claim that Provisions 1 and 2
were nonnegotiable. We find that such reliance is misplaced and
cannot be sustained. Two of the three cases relied on by the
Agency are not pertinent. Neither Department of Justice, 8 FLRA 
347, nor Internal Revenue Service, 17 FLRA  379, dealt with the
use of official time and/or the release of employees for
representational purposes.

     The third case, Department of Defense Dependent Schools,
Mediterranean Region, 21 FLRA  640, sets out an approach to
resolving whether official time proposals are negotiable which is
no longer valid in view of our decision in Military Processing
station.

     Accordingly, based on the reasons set forth above, we find
Provisions 1 and 2 to be within the duty to bargain.

     IV. Provision 3

     Article 9 - Hours of Work

     Section A

     Overtime and premium pay will be paid in accordance with
applicable laws and regulations. Overtime assignments will be
rotated among qualified employees, as determined by Management
based upon qualifications, skills and abilities. Mandatory
overtime will not be imposed if there are enough qualified
volunteers to staff the job within the functional area. If
mandatory over-time is imposed, employees will be provided with
as much advance notice as possible. Employees will be excused
from overtime if the overtime would adversely affect the health
or safety of the employee as determined by Base Medical
Authority. Overtime shall not be assigned as a reward or penalty.
Hours of work, tours of duty or shifts will not be changed
without the notice required by this section solely to avoid the
payment of overtime or premium pay. (Only the underscored word is
in dispute.) 

     A. Positions of the Parties

     The Agency claims that the provision is inconsistent with
management's right to assign overtime and that the provision,
therefore, conflicts with the right to assign work under section
7106(a)(2)(B) of the Statute. The Agency also argues that by
assigning duties to the Base Medical Authority, the provision is
likewise inconsistent with management's right to assign work.

     The Union states that the provision is concerned with who
will determine whether the assignment will adversely affect the
health and safety of the employee. Further, the Union claims that
management's local negotiators suggested that the Base Medical
Authority, a segment of the Agency, make the requisite
determinations.

     B. Analysis and Conclusion

     We find that Provision 3 is not inconsistent with
management's right to assign work under section 7106 (a)(2)(B).
Rather, Provision 3 is a negotiable procedure under section
7106(b)(2) by which the Agency exercises its right to assign work
under section 7106(a)(2)(B).

     In American Federation of Government Employees, AFL - CIO,
Local 1625 and Department of the Navy, Naval Air Station, Oceana,
Virginia, 30  FLRA  No. 122 (1988) (Provision 6), we reexamined
the relationship between management's right to assign work under
section 7106(a)(2)(B) and employees' health and safety. We stated
that the procedures by which an agency exercises its right to
assign work may include restrictions on particular assignments or
duties imposed by the agency's own medical authorities. We found
that the right to assign work does not entitle one portion of an
agency to assign duties to an employee which are inconsistent
with those which are found by another portion of the agency to
constitute a risk to the employee's health and safety. Thus, we
determined that an agency may be contractually bound to observe
restrictions on the assignment of duties to an employee which are
imposed by an agency's own medical authorities.

     Consequently, we stated that we will examine proposals
requiring an agency to assign--or not to assign--particular
duties for health and safety reasons to determine whether they
(1) require the agency to observe restrictions which have been
imposed by the agency's medical authorities, or (2) impose
restrictions independent of and/or inconsistent with 
those of the agency's medical authorities. We stated further that
proposals which require the agency to assign work consistent with
restrictions imposed by its own medical authorities would be
found to be negotiable procedures under section 7106(b)(2). On
the other hand, proposals which impose restrictions which are
independent of and/or inconsistent with those of the agency's own
medical authorities would be found to violate the agency's right
to assign work under section 7106(a)(2)(B).

     Applying this analytical framework to Provision 3, we find
that the Provision expressly provides that the Agency's own
medical authorities would determine whether a particular overtime
work assignment would adversely affect the health or safety of an
employee.

     It is well established that the right to assign work
encompasses the assignment of work on an overtime basis. See, for
example, American Federation of Government Employees, AFL - CIO,
Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base,
Nonappropriated Fund Instrumentality, Albany, Georgia. 29 FLRA 
1587, 1592 (1987), and cases cited in that decision at Provision
2. However, where the Agency's own medical authorities determined
that the overtime work assignment would not adversely affect the
employee's health or safety, Provision 3 would not require that
the employee be excused from the overtime assignment. Thus, in
this circumstance, Provision 3 would not in any manner interfere
with management's right to assign work under section
7106(a)(2)(B).

     Where, however, the Agency's own medical authorities
determined that a particular overtime assignment would adversely
affect an employee's health or safety, the Agency would be
constrained to modify the overtime assignment or to excuse the
employee in accordance with the medical authorities'
determination. Based on Naval Air Station, Oceana, Virginia, such
a restriction on management's right to assign work is a
negotiable procedure under section 7106(b)(2).

     In finding Provision 3 to be a negotiable procedure under
section 7106(b)(2) by which the Agency assigns work under section
7106(a)(2)(B), we distinguish this holding from our determination
that Provision 6 in Naval Air Station, Oceana, Virginia
excessively interfered with management's right to assign work.
Provision 6 required management to provide light duty work
assignments even where in the judgment of the agency's own
medical authorities the employee could perform his or her regular
work assignments. 

     In summary, Provision 3 is negotiable as a procedure under
section 7106(b)(2) by which the Agency assigns work under section
7106(a)(2)(B).

     V. Provision 4

     Article 15 - Training

     Section B.

     New employees will be provided orientation and training
necessary to assist them in adjusting to their job and job
environment. (Only the underscored words are in dispute).

     A. Positions of the Parties

     The Agency's position is that by requiring the assignment of
training, the provision interferes with management's right to
assign work under section 7106(a)(2)(B).

     The Union claims that the provision is simply a reiteration
of management's responsibility to train new employees and raises
the correlative presumption that employees will not bear the
burden of management's failure to fulfill its responsibilities
under the Statute. Reply Brief at 7.

     B. Analysis and Conclusion

     The provision is outside the duty to bargain. Proposals
which require an agency to provide training to bargaining unit
employees are outside the duty to bargain because the assignment
of training constitutes an assignment of work. See American
Federation of Government Employees Local 1760, AFL - CIO and
Department of Health and Human Services, Social Security
Administration, 23 FLRA  168 (1986) (Proposal 8) and cases cited
therein. See also National Union of Hospital and Health Care
Employees, AFL - CIO, District 1199 and Veterans Administration
Medical Center, Dayton, Ohio, 28 FLRA  435 (1987) (Proposals 14
and 18), petition for review filed sub nom. Veterans
Administration Medical Center, Dayton, Ohio v. FLRA,  No. 87-1521
(D.C. Cir. Sept. 28, 1987).

     Because the provision here would require the assignment of
training to new employees, the provision is inconsistent with
management's right to assign work. 

     VI. Provision 5

     Article 16 - Firefighter Provisions

     Section D.

     A minimum of five (5) hours will be set aside for sleeping
and shall be continuous and uninterrupted, unless a mission
essential or emergency situation arises that makes this
impossible. (Only the underscored words are in dispute.)

     A. Positions of the Parties

     The Agency states that the provision would totally preclude
management from assigning work during certain hours to employees
who are working on 24-hour shifts. Therefore, the provision
conflicts with management's right to assign work under section
7106(a)(2)(B). In support of its position, the Agency relies on
the Authority's decision in International Association of
Firefighters, AFL - CIO, Local F-116 and Headquarters, 4392d
Aerospace Support Group (SAC), Vandenberg Air Force Base,
California, 9 FLRA  700 (1982).

     The Union argues that under 5 C.F.R. 551.432, firefighters
who get at least 5 hours of sleep will not have that time
considered as hours of work. The union interprets this regulation
to require 5 hours of sleep. Finally, the Union notes that the
provision would permit management to deny the sleep time in
mission essential situations.

     B. Analysis and Conclusion

     Provision 5 conflicts with the right to assign work. The
provision would require that a minimum of 5 hours be set aside
for sleeping purposes. During that time, sleep could be
interrupted only for mission essential or emergency reasons. By
imposing such a requirement, the provision would prevent
management from making normal assignments of work for at least a
5-hour time period. The provision, therefore, is to the same
effect as a proposal found to be outside the duty to bargain in
Vandenberg Air Force Base. The proposal in that case would have
entitled employees to 4 hours of rest between standby tours,
mission requirements permitting. The Authority concluded that the
proposal would have limited the number of hours during which work
normally could be performed and was, therefore, inconsistent with
section 7106(a)(2)(B). We reach the same result here. 

     The Union's reliance on 5 C.F.R. 551.432 is misplaced. This
regulation sets forth the circumstances in which time spent
sleeping will be compensated. See 5 C.F.R. 551.401 which also
discusses compensation and hours of work. This provision, on the
other hand, does not involve compensation; it involves assignment
of work during sleep periods. Accordingly, we conclude that this
provision was properly disapproved.

     VII. Provision 6

     Article 22 - Disciplinary and Adverse Actions

     Section C.

     The following procedures shall be followed on suspensions
and adverse actions:

     (a) The employee's supervisor shall prepare a proposed
notice stating specifically, and in detail, the reason for the
disciplinary or adverse action. The proposed notice shall be
served on the employee within ninety (9) calendar days after the
occurrence of the alleged offense or when the alleged offense
becomes known or should have become known to Management unless an
ongoing investigation is pending. Management recognizes it's
(sic) obligation to investigate these matters expeditiously and
will not under any circumstances intentionally delay an
investigation within it's (sic) control. Failure to meet this
deadline shall preclude disciplinary or adverse action based on
the alleged offense. (Only the underscored portion is in
dispute.)

     A. Positions of the Parties

     The Agency argues that the provision interferes with its
right to take disciplinary actions under section 7106(a)(2)(A).
More particularly, the Agency claims that the provision
establishes a 90-day statute of limitations which could preclude
the institution of an investigation and/or the imposition of
disciplinary action. In support of its position, the Agency cites
the Authority's decisions in National Federation of Federal
Employees, Local 615 and National Park Service, Sequoia and Kings
Canyon National Parks, U.S. Department of Interior, 17 FLRA  318
(1985) (sequoia and Kings Canyon), aff'd sub nom. National Federation of Federal Employees, Local 615 v. FLRA,  801 F.2d
477 (D.C. Cir. 1986); American Federation of Government
Employees, AFL - CIO, Local 1770 and Department of the Army,
Headquarters, XVIII Airborne Corps and Fort Bragg, North
Carolina, 17 FLRA  752 (1985); and American Federation of
Government Employees, AFL - CIO, Local 1931 and Department of the
Navy, Naval Weapons Station, Concord, California, 24 FLRA  512
(1986).

     The Union states that the provision was designed to prevent
situations in which employees are prejudiced by management's
inordinate delay in proposing disciplinary action. The Union
further states that the provision contains enough qualifying
language so as not to interfere with the exercise of management's
rights.

     B. Analysis and Conclusion

     In agreement with the Agency, we find that the provision is
inconsistent with management's right to discipline under section
7106(a)(2)(A) of the Statute.

     The provision would require that proposed notices of
disciplinary and adverse action be served on the affected
employee "within . . . 90 calendar days after the occurrence of
the alleged offense or when the alleged offense becomes known or
should have become known to Management unless an ongoing
investigation is pending." Failure to adhere to this time limit
would preclude the imposition of disciplinary or adverse action.
We find this provision to be to the same effect as Provision 2 in
Sequoia and Kings Canyon. In that case, the provision required
investigations of incidents for which disciplinary actions may be
taken to be initiated normally within 60 days of the incident or
within 60 days after the agency became aware of the incident. The
Authority found that by establishing a contractual "statute of
limitations" on management's ability to investigate whether
disciplinary action was justified, the provision prevented
management from exercising its statutory right to discipline
employees.

     This provision would require the Agency to initiate
investigations within 90 days after occurrence of the alleged
offense or within 90 days after the offense becomes known or
should have become known to management. If there was no pending
investigation, the Agency would be required to serve the proposed
notice within the 90-day period or be prevented from taking the
disciplinary or adverse action. In this manner, the provision
could prevent the Agency from exercising its right to take
disciplinary action. 

     Accordingly, we find this provision to be outside the duty
to bargain. See also National Federation of Federal Employees,
Local 1994 and Military Entrance Processing Station, Boston
Massachusetts, 27 FLRA  968 (1987) (Provision 2).

     VIII. Provision 7

     Article 27 - Merit Promotion

     Section F. - Rating and Ranking

     All candidates for promotion must meet all legal and
regulatory requirements and the screening factors established in
the appropriate Promotion Evaluation Pattern (PEP). Only valid,
job-related factors will be used in evaluating candidates. The
use of assessment centers for evaluating candidates for
competitive promotions is prohibited. Selective placement factors
will not normally be used. Upon request, applicants who do not
meet the basic eligibility requirements will be informed of which
requirements they did not meet. (Only the underscored portion is
in dispute.)

     A. Positions of the Parties

     The Agency asserts that the provision conflicts with its
right to select under section 7106(a)(2)(C) by prohibiting the
use of assessment centers and, in certain circumstances,
selective placement factors as a means of determining eligibility
for promotional opportunities.

     The Union argues that the provision does not interfere with
management's right to select individuals for promotion. Instead,
the provision is concerned with the use of assessment centers,
which are negotiable procedures. The Union explains that the
assessment center is a method of screening candidates for
promotion prior to their actual application for promotion.

     B. Analysis and Conclusion

     The provision interferes with management's right under
section 7106(a)(2)(C) to select because it prohibits the use of
assessment centers and selective placement factors in determining
employee eligibility for promotion. As the Authority stated in
National Federation of Federal Employees, Local 1497 and
Headquarters, Lowry Technical Training Center  (ATC),
Lowry Air Force Base, Colorado, 11 FLRA  565, 568 (1983), the
ri