[ v30 p1236 ]
30:1236(137)NG
The decision of the Authority follows:
30 FLRA NO. 137
30 FLRA 1236 (1988)
29 JAN 1988
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1808
Union
and
DEPARTMENT OF THE ARMY
SIERRA ARMY DEPOT
Agency
Case No. O-NG-1356
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)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute) and
concerns the negotiability of 16 provisions of a local agreement
disapproved by the Agency head under section 7114 (c) of the
Statute.
For the reasons which follow, we dismiss the appeal as to a
provision identified as Article XXV, Section 25.2 and Provision
2. We find Provisions 4, 6, 9, 10, 13 and 16 to be negotiable. We
also find Provisions 1, 3, 5, 7, 8, 11, 12, 14 and 15 to be
nonnegotiable.
II. Background
In its Statement of Position, the Agency withdrew its
negotiability allegation as to Article XXX, Section 301.1. In its
Reply Brief, the Union withdrew from consideration Article V,
Section 5.2; Article XIX, Section 19.3; Article XX, Section 20.2;
Article XXII, Section 22.5; Article XXV, Section 25.1; Article
XXV, Section 25.3; Article XXVII, Section 27.4; and Article
XXXIV, Section 34.7. Thus, these provisions will not be
considered further.
In its Petition for Review the Union stated, without any
supporting arguments, that to the extent any of the provisions
included in its appeal conflicted with management's rights "they
are intended to constitute procedures or appropriate arrangements
for adversely affected employees." In its Reply Brief, however,
the Union provided specific arguments concerning whether four of
the disputed provisions constituted negotiable appropriate
arrangements. Pursuant to section 2424.8 of our Rules and
Regulations, we granted the Agency's request to file a supplement
to its Statement of Position to address these specific Union
arguments, raised for the first time in the Union's Reply Brief,
that four of the disputed provisions were negotiable as
appropriate arrangements under section 7106(b)(3). We granted
permission to the Union to respond to the Agency's supplemental
submission and the Union filed a response further addressing the
four provisions.
The parties in each case bear the burden of creating a
record sufficient for the Authority to make negotiability
determinations. See National Federation of Federal Employees,
Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g
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
(1981). As to claims that a proposal constitutes a negotiable
appropriate arrangement under section 7106(b)(3), the Authority
established a framework for determining whether proposals involve
negotiable appropriate arrangements in National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). The
Authority stated that the record in each case would be examined
to ascertain whether, in fact, the proposal in question is
designed to constitute an appropriate arrangement for employees
adversely affected by the exercise of a management right. The
Authority stated further that the Union bears the responsibility
for identifying: (1) the management right that is claimed to have
produced the alleged adverse effects, (2) the effects or
foreseeable effects on employees which flow from the exercise of
those rights, and (3) how those effects are adverse.
After concluding that a proposal is intended to be an
arrangement, the Authority will determine whether the arrangement
is appropriate or whether it is inappropriate because it
excessively interferes with the exercise of a management right.
The Authority indicated that a variety of factors will be
considered in making this determination including the nature and
extent of the impact experienced by adversely affected
employees; the extent to which the circumstances giving rise to
the adverse affects are within an employee's control; the nature
and extent of the impact on management's ability to deliberate
and act pursuant to its management rights; and the benefits to be
derived from the proposed arrangement as compared with the
negative impact on management's rights. Whether or not an
appropriate arrangement exists is dependent upon the unique facts
of each case. In order that the Authority may make this
determination, the parties are expected to set forth all relevant
considerations with as much specificity as possible.
As previously mentioned, although the Union claimed that all
the disputed provisions were intended to be appropriate
arrangements, the Union provided specific arguments only as to
four of the provisions: Provisions 1, 2, 5 and 14. Consequently,
we will consider the Union's 7106(b)(3) arguments only as to the
four provisions referred to in the Union's Reply Brief and
addressed by the Agency and the Union in their supplemental
submissions.
III. Procedural Issue
In its Petition for Review the Union included a provision
identified as Article XXV, section 25.2, Changes in Tours of
Duty. The record indicates, however, that this provision was not
disapproved by the Agency head under section 7114(c) of the
Statute. See Commander, Civilian Personnel Division, Department
of the Army letter dated December 5, 1986, attached to the
Union's Petition for Review.
Under section 7117(c)(1) of the Statute and section 2424.1
of our Rules and Regulations, an allegation of nonnegotiability
is a necessary prerequisite for review of a negotiability issue.
See, for example, American Federation of State, County, and
Municipal Employees, AFL - CIO, Local 2910 and Library of
Congress, 11 FLRA 632, 632 n.1 (1983). A disapproval of a
negotiated agreement under section 7114 (c) constitutes an
allegation nonnegotiability. See, for example, American
Federation of Government Employees, AFL - CIO, Local 2 and
Department of the Army, U.S. Army Audio Visual Communications
Center, Washington, D.C., 6 FLRA 354 (1981).
Since the Agency did not disapprove Article XXV, Section
25.2 and, in fact, indicated that except for the provisions
specifically included in its written disapproval, the rest of the
contract was approved, the petition for review as to Article XXV,
Section 25.2 is not properly before us and must be dismissed. See
American Federation of State, County and Municipal
Employees, Local 2910 and Library of Congress, 18 FLRA 241, 241
n.1 (1985).
IV. Provision I
Article VII - Employees' Rights
Section 7.6 - Polygraph Tests
The Employer will not require an employee in the bargaining
unit to submit to a polygraph test.
A. Positions of the Parties
The Agency contends that the provision conflicts with its
right to determine its internal security practices under section
7106(a)(1) of the Statute. In support, the Agency relies on
American Federation of Government Employees, AFL - CIO, Local
1858 and Department of the Army, U.S. Army Missile Command,
Redstone Arsenal, Alabama, 10 FLRA 440, 444 (1982) (Redstone
Arsenal). The Agency states that Provision 1 would prohibit the
use of a specific investigative technique which may be part of
the internal security practices adopted to safeguard personnel
and property of the Agency, as well as national security.
The union recognizes that the Authority held in Redstone
Arsenal and American Federation of Government Employees, Local 32
and Office of Personnel Management, 16 FLRA 40 (1984) (Office of
Personnel Management) that proposals limiting the use of
polygraph tests are nonnegotiable because they infringe on
management's right to determine its internal security practices.
However, the union disagrees with the Authority's holdings in
those cases. The Union states that Provision 1 pertains to
mandatory tests, not those undertaken voluntarily by employees.
The Union asserts that a polygraph test is not an appropriate
"investigative technique" because it is not a reliable predictor
of whether any particular individual is being untruthful. The
Union concludes that the mandatory submission to a polygraph test
is an arbitrary and capricious method of investigation which
interferes with the due process rights of employees. Moreover,
the Union notes the reluctance of courts and the Merit Systems
Protection Board (MSPB) to accept the use of polygraph test
results as evidence unless very stringent safeguards to insure
their accuracy have been met. The Union also notes the reluctance
of the courts and the MSPB to adopt an adverse inference when an
individual refuses to take a polygraph test.
The Union also argues that the provision constitutes an
appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute.
B. Analysis and Conclusion
Provision 1 prohibits the Agency from requiring unit
employees to submit to polygraph tests. Consequently, it is like
section (e) of the proposal found nonnegotiable in National
Federation of Federal Employees, Local 1300 and General Services
Administration, 18 FLRA 789 (1985). Section (e) of the proposal
in that case would have prohibited the use of polygraphs. The
Authority, relying on its decisions in Redstone Arsenal and
Office of Personnel Management, held that by preventing the
agency from utilizing the investigative techniques which it had
adopted, the proposal violated management's right under section
7106(a)(1) of the Statute to determine its internal security
practices. Provision 1 also precludes the Agency from requiring
employees to submit to polygraph tests. Based on the
above-mentioned cases and the record in this case, we find that
the Agency has established a sufficient link between the use of
polygraphs and its plan to safeguard personnel and property.
Therefore, Provision 1 directly interferes with the Agency's
right under section 7106(a)(1) of the Statute to determine its
internal security practices.
We reject the Union's argument that this provision
constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. In Kansas Army National Guard,
the Authority held that in order to determine whether a proposal
constitutes an appropriate arrangement for employees adversely
affected by the exercise of a management right, a determination
must be made as to whether the proposal excessively interferes
with the exercise of management's rights. The provision here is
not an appropriate arrangement under section 7106(b)(3), because
it would completely preclude the use of polygraph tests. Rather
than ameliorating an adverse effect of an exercise of a
management right, the provision would prevent management from
exercising the right. Accordingly, the provision excessively
interferes with management's right to determine its internal
security practices. Any benefits which flow to unit employees by
requiring the Agency to use investigative techniques other than
polygraphs are outweighed by the effect on management's right.
Therefore, Provision I is not an appropriate arrangement within
the meaning of section 7106(b)(3). It is outside the duty to
bargain. See International Organization of Masters, Mates and
Pilots and Panama Canal Commission, 26 FLRA 92 (1987).
V. Provision 2
Article VII - Employees' Rights
Section 7.9 - Services for Handicapped Employees
d. The Employer shall provide the means to assist
handicapped employees in the accomplishment of official work. Any
employee in the bargaining unit who performs such a service shall
be allowed official time in which to do such work, and such
service shall be voluntary.
A. Positions of the Parties
The Agency's sole contention is that because the underlined
sentence would require management to assign only volunteers to
assist handicapped employees, the sentence limits management's
right to assign employees and assign work under sections
7106(a)(2)(A) and (B) of the Statute. In the Agency's view, the
provision would prevent the Agency from determining which
particular employee would be assigned the task of assisting
handicapped employees. The Agency claims that its choices for
this assignment would be limited to employees who volunteered. In
support of its contentions, the Agency cites American Federation
of Government Employees, AFL - CIO, National Immigration &
Naturalization Service Council and U.S. Department of Justice,
Immigration & Naturalization Service, 8 FLRA 347 (1982).
In its Supplemental Submission the Union stated as
follows:
In closer review of the above proposal, we now believe that
the last clause; i.e., '...and such service shall be voluntary,'
to be in violation of of the 'right to assign' and we, therefore,
request to withdraw this portion of the clause from our appeal.
Supplemental Submission at 7.
B. Analysis and Conclusion
The only aspect of the underscored portion of Provision 2
disputed by the Agency is the requirement that assignments to
assist handicapped employees be voluntary. The Union has now
withdrawn that requirement from consideration in this appeal.
Thus, as there is no longer a viable dispute as to
Provision 2, we dismiss the petition for review as to this
provision as being moot.
Although we dismiss the petition for review as to this
provision, we note that under 5 U.S.C. 3102(c), an agency is
authorized to employ personnel assistants, readers and
interpreters, or to assign such assistants as may be necessary to
enable handicapped employees to perform their work. See also 29
C.F.R. 1613.704 (concerning "reasonable accommodation to the
known physical or nmental limitations of a qualified handicapped
applicant or employee"). The degree of skill on the part of the
assistant varies according to the nature of the handicap
involved. See Federal Personnel Manual (FPM) chapter 306,
subchapter 5, section 5-3. For example, FPM Chapter 306,
subchapter 5, Section 5-3 notes that individuals providing
reading assistance for blind employees should be able to read
well and articulate clearly. On the other hand, an individual
providing assistance for deaf employees may require knowledge of
sign language. The providing of assistance to physically
handicapped employees may include providing assistance during
meals, arranging the handicapped employee's work materials or
transferring the employee from a wheelchair to a taxi or other
mode of transportation or just pushing a wheelchair-bound
employee to and from a worksite or cafeteria.
Although the duties involved in assisting handicapped
employees generally do not require a specialized skill, the
Office of Personnel Management (OPM) recommends, but does not
require, that such duties be incorporated in the position
description of the employee who is assigned to assist handicapped
employees. FPM chapter 306, subchapter 5, section 5-4.
VI. Provision 3
Article IX - Matters for Consultation and Negotiations
Section 9.2 - Agreement
d. The Employer reserves the right of the depot commander to
review for approval any agreement reached. Such approval, or
disapproval, must be exercised within 30 working days or the
agreement becomes binding.
A. Positions of the Parties
The Agency contends that the provision conflicts with
section 7114(c) of the Statute which provides for agency head
approval of agreements within 30 days of execution. In support,
the Agency relies on American Federation of Government Employees,
Local 1546 and Department of the Army, Sharpe Army Depot,
Lathrop, California, 19 FLRA 1016 (1985), remanded on other
grounds sub nom. American Federation of Government Employees, AFL
- CIO, Local 1546 v. FLRA, No. 85-1689 (D.C. Cir. Nov. 17,
1986).
The Union asserts that the Agency misinterprets the
provision. The Union states that the provision neither vests the
Depot Commander with any authority to review an agreement under
section 7114(c) of the Statute nor requires the Depot Commander
to review an agreement. Rather, the Union asserts that the
provision makes the Depot Commander responsible as the management
agent to see that the review process is accomplished in
accordance with section 7114(c).
B. Analysis and Conclusion
The Union states that this provision should be interpreted
only to require the Depot Commander to ensure that the process of
reviewing locally negotiated collective bargaining agreements is
accomplished under section 7114(c). This statement is
inconsistent with the plain wording of the provision which
"reserves the right of the depot commander to review for approval
any agreement reached."
Section 7114(c) provides that a locally negotiated
collective bargaining agreement "shall be subject to the approval
of the head of the agency." Since the head of an agency is not
obligated to personally review locally negotiated agreements, the
authority to review locally negotiated agreements may be
delegated to other officials within the agency. Sharpe Army
Depot. However, the discretion to determine which particular
agency officials will have the authority to review and approve or
disapprove locally negotiated collective bargaining agreements
involves the exercise of management rights. That is, the decision
to designate the particular agency officials who will have the
authority to review and approve or disapprove collective
bargaining agreements concerns the agency's right to determine
the personnel by which agency operations will be carried out
under section 7106(a)(2)(B) of the Statute. See National
Federation of Federal Employees, Locals 1707, 1737 and 1708 and
Headquarters, Louisiana Air and Army National Guard, New
Orleans, Louisiana, 9 FLRA 148, 149 (1982) (Proposal 2)
(Louisiana Air and Army National Guard).
Furthermore, a requirement to designate a particular agency
official to review and approve or disapprove locally negotiated
collective bargaining agreements also involves management's right
to assign work under section 7106(a)(2)(B). See 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, 81
(1987) (Provision 6) (U.S. Army Missile Command), Petition for
review filed on other grounds 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 (llth Cir. July 17,
1987).
Thus, this provision directly interferes with the Agency's
rights to assign work and to determine the personnel by which
Agency operations will be conducted. The Provision, therefore, is
outside the duty to bargain.
VII. Provision 4
Article IX - Matters for Consultation and Negotiations
Section 9.3 - Matters Not Covered by Agreement
The fact that conditions are reduced to writing does not
alleviate responsibility of either party to consult and bargain
on matters not covered by this agreement. Previously designated
representatives of the Employer and the Union, the Union
Management Committee, will meet to discuss these matters at least
quarterly on dates agreed to by both parties.
A. Positions of the Parties
The Agency asserts that the underlined sentence conflicts
with its rights to assign employees and to assign work under
sections 7106(a)(2)(A) and (B) of the Statute by requiring that
"previously designated" members of the parties' negotiating teams
meet to discuss certain matters. The Agency claims that this
limitation keeps it from deciding whether to designate other
management representatives for such meetings. The Agency cites
National Association of Government Employees, AFL - CIO,
Local R14-87 and Department of the Army and the Air Force, Kansas
Army National Guard 19 FLRA 381 (1985), for the principle that
the assignment of specific duties to particular individuals,
including management officials, is nonnegotiable under section
7106(a)(2)(B) of the Statute.
The Union contends that the Agency misinterprets the
sentence. The Union contends that the sentence merely requires
that both management and the Union will designate their
representatives prior to any bargaining. Moreover, the Union
contends that the sentence is a procedural arrangement between
the parties concerning the matter in which their contract is to
be implemented.
B. Analysis and Conclusion
According to the Union, this sentence only requires that
prior to any meetings between management and the Union that both
management and the Union notify each other of their respective
representatives for those meetings. In our view, the Union's
interpretation of this sentence is reasonable and not
inconsistent with the express language of the sentence. Thus, the
sentence does not require management to designate particular
officials who will always attend such meetings. Rather, the
Agency is free to select its representatives for any negotiation
or consultation meeting required by this sentence or to change
its representatives prior to the meeting. The sentence does not
interfere with the Agency's right to assign work to its
management officials nor does it require that certain work be
assigned to certain individuals. Therefore, we conclude that the
sentence is within the duty to bargain.
VIII. Provision 5
Article XVII - Reduction-in-Force, and/or Transfer of
Function
Section 17.5 - Description of Competitive Areas
a. The smallest competitive area for actions covered by this
Agreement is all jobs at affected competitive levels in the
commuting area where the reduction is taking place.
b. The competitive area shall be all jobs in the local
commuting area for which employees may qualify without undue
disruption.
A. Positions of the Parties
The Agency contends that the provision conflicts with 5
C.F.R. 351.402(b), a Government-wide regulation issued by the
Office of Personnel Management (OPM), which requires that
competitive areas for reductions-in-force (RIF) "be defined
solely in terms of an agency's organizational unit(s) and
geographical location, and it must include all employees within
the competitive area so defined." The Agency contends that by
defining the competitive area in terms of "all jobs in the local
commuting area" or "for which employees may qualify without undue
disruption" the provision is inconsistent with the regulation. In
support, the Agency cites National Treasury Employees Union And
Department of Health and Human Services, Region VI, Dallas,
Texas, 22 FLRA 580 (1986).
The union recognizes that Authority decisions hold that
proposals concerning competitive areas for RIFs are nonnegotiable
because such proposals have an impact on nonbargaining unit
employees. The Union states that this provision is directed at
bargaining unit employees. According to the Union, the
legislative history of the Statute permits bargaining on matters
such as the definition of competitive areas for bargaining unit
employees. The Union maintains that the provision only has an
indirect impact on nonbargaining unit employees. Finally, the
Union claims that the provision is an appropriate arrangement for
employees adversely affected by a RIF.
B. Analysis and Conclusion
We accept the Union's statement that the provision is
intended to define a competitive area in terms of, and limited
to, the bargaining unit only. As such, it is inconsistent with 5
C.F.R. 351.402(b). That regulation requires that a competitive
area be "defined solely in terms of an agency's organizational
unit(s) and geographical location, and it must include all
employees within the competitive area go-defined." Provision 5,
however, defines a competitive area in terms of "all jobs in the
commuting area for which the employee may qualify for without
undue interruption."
5 C.F.R. 351.402(b) constitutes a Government-wide regulation
within the meaning of section 7117(a)(1) of the Statute because
it establishes a mandatory policy which is applicable generally
to civilian employees of the Federal Government. See National
Treasury Employees Union and Department of Health and Human
Services, Region X, 25 FLRA 1041 (1987) (Proposal 2).
Thus, Provision 5 is nonnegotiable because it is inconsistent
with a Government-wide regulation. See also National Treasury
Employees Union, NTEU Chapter 202 and Department of the Treasury,
Bureau of Government Financial Operations, 22 FLRA 553, 554
(1986) (Proposal 1).
Since the provision is nonnegotiable because it is
inconsistent with a Government-wide regulation, we need not reach
the question of whether the provision is an appropriate
arrangement. Section 7106(b)(3) applies only when management
exercises a right under section 7106 of the Statute. See National
Federation of Federal Employees, Local 29 and Department of the
Army, Kansas City District, Corps of Engineers, 21 FLRA 228
(1986).
IX. Provision 6
Article XVIII - Contract Out of Bargaining Unit Work
Section 18.2 - Scope
a. The Employer agrees to inform the Union immediately when
contemplating the possibility of contracting out of bargaining
unit work and will continuously keep the Union apprised of the
development of the consideration to contract out. During the
period in which the Employer is considering contracting out, all
pertinent information on the contracting out project, i.e.,
feasibility studies, cost studies, manpower levels, number of
vacancies and their grade and description, indirect costs, etc.,
will be furnished to the Union. These documents will be released
as soon as allowable by applicable laws and regulations.
A. Positions of the Parties
The Agency disapproved only the portion of the provision
relating to the release of feasibility studies. The Agency claims
that feasibility studies are an integral part of the Agency's
internal deliberations concerning decisions to contract out.
Thus, the Agency contends that the provision directly interferes
with management's rights to make determinations with respect to
contracting out under section 7106(a)(2)(B) of the Statute. In
support, the Agency relies on 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 (1981) (Proposal 1) (Homestead
Air Force Base) aff'd sub nom. National Federation of Federal
Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).
The Union asserts that the Agency's position misinterprets
the Authority's holding in Homestead Air Force Base. The Union
claims that Homestead Air Force Base dealt with "milestone
charts," which are internal management recommendations developed
from feasibility studies and which are used by management in
determining whether to contract out. In the Union's view, the
feasibility studies sought under this provision are nothing more
than data and observations on which deliberations are based
rather than being part of the deliberative process itself. The
Union also asserts that the Agency is further protected by the
qualification that the documents would be released only when
permitted by applicable laws and regulations.
B. Analysis and Conclusion
The Authority has indicated that proposals requiring an
agency to provide a union with information used by management in
the contracting out determination process, such as bid
solicitation packages and statements of work to be performed, are
not inconsistent with management's right to make such
determinations under section 7106(a)(2)(B). See U.S. Army
Communications Command Agency, Redstone Arsenal and American
Federation of Government Employees, Local 1858, 23 FLRA 179
(1986); United States Army Communications Command, Fort McClellan
and Local No. 1941, American Federation of Government Employees,
AFL - CIO, 23 FLRA 184 (1986); and Department of the Army,
Oakland Army Base and American Federation of Government
Employees, Local 1157, 23 FLRA 199 (1986). On the other hand, an
"internal management recommendation" is an integral part of
management's deliberative process in making a contracting out
determination and cannot be required to be disclosed. See
Homestead Air Force Base.
The Union expressly indicates that it is not seeking
internal management recommendations. Rather, the Union states
that the feasibility studies it seeks to have disclosed are the
raw data and observations upon which management will develop its
internal management recommendations. See Reply Brief at 21. Thus,
we find the Agency's reliance on Homestead Air Force Base to be
misplaced because Proposal 1 found nonnegotiable in that case required the release of "milestone charts" which were
described as "internal management recommendations." Further, this
provision requires the release of feasibility studies only when
allowed by applicable law or regulation.
Consequently, we conclude that the provision in this case
does not interfere with management's right to make determinations
with respect to contracting out under section 7106(a)(2)(B).
Therefore, it is within the duty to bargain.
X. Provision 7
Article XVIII - Contracting Out of Bargaining Unit Work
Section 18.3 - Decision Procedure
b. The Employer will make every reasonable effort to retain
affected bargaining unit employees.
A. Positions of the Parties
The Agency asserts that the provision would completely
negate its right to lay off employees under section 7106(a)(2)(A)
of the Statute. The Agency cites the Authority's decision in
American Federation of Government Employees, AFL - CIO, National
Border Patrol Council and Department of Justice, Immigration and
Naturalization Service, 16 FLRA 251 (1984) (Immigration and
Naturalization Service) for the proposition that a general
nonquantitative phrase such as "every reasonable effort" does not
alter an otherwise nonnegotiable proposal.
The Union contends that the Agency is attempting to rewrite
its provision by eliminating the phrase "every reasonable
effort." The Union also contends that the Agency misreads
Immigration and Naturalization Service. In the Union's view, its
provision must be judged on its merits in its entirety. The Union
concludes that the provision would not provide absolute
employment security for affected employees, and that the right to
lay off employees is only marginally and indirectly affected.
B. Analysis and Conclusion
The provision is outside the duty to bargain because it
directly interferes with the Agency's discretion to determine
which employees, if any, should be laid off when their work has
been contracted out. Thus, the provision violates management's
rights under section 7106(a)(2)(A) to layoff employees.
See Service Employees International Union, Local 556, AFL - CIO
and Department of the Army, United States Army Support Command,
Hawaii, Fort Schafter, Hawaii, 29 FLRA 1553, 1557 (1987)
(Proposals 5, 6 and 7).
Further, inclusion of the language "every reasonable effort"
does not limit the effect of this provision on management's right
to layoff employees under section 7106(a)(2)(A). Rather, such
language would have the effect of subjecting management's
decisions concerning which employees to layoff to review in an
arbitration proceeding. That is, such language would permit
arbitrators to substitute their judgment for that of management
as to whether particular employees should be retained instead of
being laid off. See Overseas Education Association, Inc.
Department of Defense Dependents Schools, 29 FLRA 734 (Proposal
39), petition for review filed sub nom. Overseas Education
Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Oct. 14,
1987). Therefore, Provision 7 is outside the duty to bargain.
XI. Provision 8
Article XVIII - Contracting Out of Bargaining Unit Work
Section 18.3 - Decision Procedures
d. No bargaining unit employee will be under the supervision
of a non - Federal supervisor in the event that the Employer
requires that unit work be done by contract.
A. Positions of the Parties
The Agency contends that the provision limits its right
under section 7106(a)(2)(B) of the Statute to determine the
personnel by which its operations are to be conducted. In
support, the Agency relies on Louisiana Air and Army National
Guard, 9 FLRA 148, 149 (Proposal 2) and Defense Logistics
Agency, Council of AFGE Locals, AFL - CIO and Department of
Defense, Defense Logistics Agency, 24 FLRA 367, 374 (1986)
(Provision 4) (Defense Logistics Agency).
The Agency further asserts that the provision, by precluding
the assignment of certain work to nonunit personnel, directly
conflicts with its right to assign work under section
7106(a)(2)(B) of the Statute. In support, the Agency cites
American Federation of Government Employees, AFL - CIO,
International Council of Marshals Service Locals and U.S.
Marshals Service, 15 FLRA 333 (1984).
The Union asserts that the provision essentially restates
what is already proscribed by law and regulation, citing 5 C.F.R.
300 and FPM Letter 300-8 (Dec. 12, 1967).
B. Analysis and Conclusion
In Defense Logistics Agency the Authority concluded that a
provision restricting the agency's ability to require unit
employees to carry out tasks assigned by individuals who are not
officers or employees of the Federal Government conflicted with
the right to assign work under section 7106(a)(2)(B). The
Authority further found that the provision precluded the agency
from having contractor and/or military personnel perform
supervisory functions in connection with the bargaining unit.
Therefore, the Authority determined that it directly interfered
with the agency's discretion to determine the personnel who would
conduct agency operations under section 7106(a)(2)(B).
The Union in Defense Logistics Agency also argued that the
provision at issue merely reflected limitations set forth in the
Statute and the FPM. However, the Authority concluded that the
incorporation of such limitations in a contract would require
management to continue to comply with such restrictions during
the term of the agreement regardless of whether the particular
restrictions were subsequently removed from the rules and
regulations involved. The provision imposed a substantive
limitation on the exercise of management's rights.
Based on the rationale set forth in Defense Logistics
Agency, we conclude that Provision 8 directly interferes with
management's right to assign work under section 7106(a)(2)(B) and
is outside the duty to bargain.
XII. Provision 9
Article XXIII - Performance Appraisals
Section 23.3(c) - Procedure for Developing Elements and
Performance Standards
The Union shall participate in studies conducted on
employees and in the development or revising of the performance
system.
A. Positions of the Parties
The Agency's sole contention concerning Provision 9 is that
it conflicts with management's right under section 7106(a)(2)(A)
and (B) of the Statute to direct employees and assign work. The
Agency argues that the provision would allow the Union to
participate in studies concerning the development or revision of
the "performance system" and, therefore, the Union would be
involved in management deliberations and decisions concerning the
identification of job performance elements and the setting of
performance standards. The Union provided no position on the
provision other than the contention that it was negotiable.
B. Analysis and Conclusion
Provision 9 is to the same effect as Proposal 2 found
negotiable in National Federation of Federal Employees and
Department of the Interior, Bureau of Land Management, 29 FLRA
1491, 1493 (1987) (Bureau of Land Management) and the first
sentence of Proposal 1 found negotiable in Patent Office
Professional Association and Patent and Trademark Office,
Department of Commerce, 29 FLRA 1389 (1987) (Patent and
Trademark Office). In those cases, the unions sought to provide
for employee involvement and input regarding performance
appraisal plans. In finding those proposals to be negotiable, we
reiterated that 5 U.S.C. 4302(a)(2) encourages participation in
establishing performance standards without specifying the form
which such participation must take. Further, we noted that the
manner in which a particular agency provides for such
participation is within an agency's discretion and within the
duty to bargain to the extent that such participation would not
prevent the agency from establishing performance standards and
critical elements under section 7106(a)(2)(A) and (B) of the
Statute.
Provision 9 concerns the manner in which the Agency will
meet the requirement of 5 U.S.C. 4302(a)(2) to include employee
participation through the Union in the establishment of
performance standards. There is nothing in the plain wording of
the provision which would entitle the Union to negotiate over the
content of performance standards and elements, or to participate
in internal management deliberations. Thus, based on the reasons
and cases cited in Patent and Trademark Office and Bureau of Land
Management, we find Provision 9 to be negotiable.
XIII. Provision 10
Article XXIII - Performance Appraisal
Section 23.6 - Removal or Reduction in Grade
The Employer may extend the said 30 day notice period by an
additional 30 days.
A. Positions of the Parties
The Agency contends that Provision 10 is inconsistent with
Federal law. Specifically, the Agency argues that 5 U.S.C.
4303(b)(1)(A) provides employees with a 30-day advance notice
period of a proposed reduction-in-grade or removal for
unsatisfactory performance. The Agency argues, further, that 5
U.S.C. 4303(b)(2) permits an agency, under regulations prescribed
by the head of the Agency, to extend the notice period for an
additional 30 days. The Agency alleges that it has exercised its
discretion under 5 U.S.C. 4303(b) by issuing a regulation which
provides only a 30-day notice period. The Agency concludes that
since it has exercised its discretion in a manner consistent with
law, it cannot be required to negotiate a longer notice period as
required by this provision.
The Union provided no position on the provision other than
the contention that it was negotiable.
B. Analysis and Conclusion
Provision 10 requires the Agency to exercise its discretion
under 5 U.S.C. 4303(b)(2) to extend by regulation the 30-day
minimum notice period required by that section to 60 days. The
Agency makes no claim that a compelling need exists for its
regulation requiring only a 30-day period. Provision lo is
identical to the provision found negotiable in National
Federation of Federal Employees, Local 476 and Department of the
Army, U.S. Army Electronics Research and Development Command,
Fort Monmouth, New Jersey, 26 FLRA 217 (1987) (U.S. Army
Electronics Research and Development Command). The provision in
that case also required 60 days, advance notice for performance
based adverse actions. In that case, we rejected the agency's
claim that because it had not extended the 30-day notice period
in its regulations to 60 days, the provision violated 5 U.S.C.
4303(b)(2). Rather, we found that the agency head had statutory
authority under 5 U.S.C. 4303(b)(2) to amend its regulations.
Thus, we concluded that the fact that implementation of the
provision would require the agency to amend its
regulations to extend the 30-day notice period to 60 days did not
provide a proper basis on which the agency could disapprove that
provision.
Likewise, based on the rationale found in U.S. Army
Electronics Research and Development Command and the cases cited
therein, the fact that Provision 10 requires the Agency to amend
its regulations to extend the 30-day notice period to 60 days
does not render this provision nonnegotiable. On the contrary, it
is well settled that to the extent an agency has discretion with
respect to a matter affecting conditions of employment of
bargaining unit employees and where that discretion is not
intended to be sole and exclusive, the matter is within the duty
to bargain. See, for example, National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA 748 (1980). Thus, we find Provision 10 to be negotiable.
XIV. Provision 11
Article XXV - Hours of Work
Section 25.5 - Rest Period
The exact timing of the rest periods will be mutually agreed
upon by the steward and supervisor for each department.
A. Positions of the Parties
The Agency contends that because this provision does not
provide management with any flexibility in scheduling rest
periods it directly interferes with management's right to assign
work under section 7106(a)(2)(B).
The Union contends that there is flexibility in the
provision since the provision requires that the rest period be
mutually agreed upon by the supervisor and the steward. Further,
the Union contends that this provision would not prevent the
Agency from delaying break periods in order to accomplish
priority work.
B. Analysis and Conclusion
The Union's contention that supervisors can refuse to grant
a rest period at a specific time and that rest periods can be
postponed in order to accomplish priority work is consistent with
express language of the provision. This provision involves only
timing of rest periods. Thus, we adopt the Union's interpretation
for purposes of this decision. Consequently, the Agency
would retain the discretion to refuse to grant a rest period if
work must be completed.
We have found similar proposals to be negotiable and, in
fact, have held that an agency has a duty to bargain over the
time at which breaks are observed during the work day. See
Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 19 FLRA 1085 (1985) and
American Federation of Government Employees, AFL - CIO, Local
3511 and Veterans Administration Hospital, San Antonio, Texas, 12
FLRA 76, 84 (1983) (Proposal 30).
Nevertheless, we find this provision to be nonnegotiable
since it requires a particular management official, the
"department supervisor" to meet with the Union steward to
determine when the rest periods would be taken. Therefore, this
provision interferes with management's right under section
7106(a)(2)(B) to assign what work will be performed and by whom.
See, for example, U.S. Army Missile Command, 27 FLRA 69, 80
(1987) (Provision 6). However, the defect is easily cured by
eliminating the reference to a specific management official. See
U.S. Army Missile Command, 27 FLRA 69, 81.
XV. Provision 12
Article XXXI - Travel and Per Diem
Section 31.2 - Conditions
a. It is further agreed that the following are the minimum
living conditions which would not adversely affect the
performance of employees and their assigned mission on TDY:
(1) All quarters shall be clean and in good condition.
(2) All rooms where employees stay shall have methods and
facilities which assure employees can secure their personal
belongings from theft or vandalism.
(3) There shall be a telephone and a television available in
working condition for the employee's use.
(4) Such quarters shall be free from reasonable noise and
disturbance so as to allow adequate sleep and rest to
perform their assigned work mission.
(5) All quarters shall provide reasonable heating and/or air
conditioning.
(6) Reasonable adequate eating and shopping facilities for
living essentials be available.
(7) Eating facilities shall be available to employees during
hours which will allow reasonable time to eat and reach their
assigned worksite and eat after work is completed. The shopping
facilities shall be available to employees after their hours of
work.
(8) Quarters shall be reserved for the entire TDY period
prior to the employee's departure.
A. Positions of the Parties
The Agency contends that the provision conflicts with
Department of Defense civilian Personnel, Volume 2, Joint Travel
Regulations (JTR) and Department of Defense Instruction 4165.47,
Adequacy Assignment, Utilization and inventory of Unaccompanied
Personnel Housing (DOD Instruction). The Agency argues that
because a compelling need exists for these regulations under
section 7117(a)(2), the provision is nonnegotiable. In support of
its position, the Agency relies on National Federation of Federal
Employees, Local 29 and Kansas City District Corps of Engineers,
Kansas City, Missouri, 17 FLRA 1052 (1985) (Kansas City District
Corps of Engineers), aff'd mem sub nom. National Federation of
Federal Employees, Local 24 v. FLRA, No. 85-1398 (D.C. Cir.
April 1, 1986) and National Federation of Federal Employees,
Local 561 and Department of the Army, U.S. Army Corps of
Engineers, Mobile, Alabama, 17 FLRA 759 (1985) (U.S. Army Corps
of Engineers, Mobile, Alabama).
The Union contends that the sometimes rigorous conditions in
which employees must live while in a travel status warrant the
imposition of negotiated safeguards regarding living quarters. It
further argues that the object of this section is to set a
reasonable standard which resembles as much as possible the
day-to-day living situations an employee would have either at
home or if the employee were to travel on his own personal
business.
B. Analysis and Conclusion
This provision is to the same effect as the proposals found
nonnegotiable in Kansas City District, Corps of Engineers and
U.S. Army Corps of Engineers, Mobile, Alabama. The proposals in
those cases concerned negotiated standards of adequacy of
Government quarters to be utilized by civilian employees for
accommodations while on temporary duty. In each of those cases
the agency contended that the proposal at issue was inconsistent
with agency regulation for which a compelling need existed and
was not within the duty to bargain under section 7117(a)(2) of
the Statute. The union in each of those cases disputed the
agency's contention and claimed that a conflict did not exist
between the proposal and the agency's regulations and that if a
conflict did exist, there was no compelling need for the agency's
regulations.
The Authority rejected the arguments raised by the union in
those cases. The Authority found instead that the regulations in
question were issued in response to language contained in the
Defense Appropriation Act of 1978 and continued in the Defense
Appropriation Act of 1979 which prohibited the Department of
Defense (DOD) from disbursing funds for lodging employees who
were on temporary duty when "adequate government quarters" were
available but not occupied. In reviewing the legislative history
of those two Acts, the Authority found that Congress intended to
ensure significant savings to the Federal Government by providing
an economic disincentive to employees who failed to use
Government quarters when those quarters were adequate and
available. The Authority found that the legislative history of
those Acts was replete with evidence that Congress intended DOD
to issue uniform rules for governing the adequacy of Government
quarters.
Because the DOD regulations had been issued in order to
comply with Congress' mandate, the Authority found that the
Agency had established that a compelling need existed for those
regulations under section 2424.11(c) of the Rules and
Regulations. Section 2424.11(c) provides that a compelling need
may be found to exist for agency regulations that implement a
mandate to the agency, under law or other outside authority,
which implementation is essentially nondiscretionary in nature.
Since the proposals in Kansas City District Corps of Engineers
and U.S. Army Corps of Engineers, Mobile, Alabama, were
inconsistent with the DOD regulations, the Authority found the
Proposals to be nonnegotiable.
The Agency regulations involved in this case are the same
regulations involved in those cases. Therefore, based on the
reasons stated in Kansas City District, Corps of Engineers and
U.S. Army Corps of Engineers Mobile, Alabama, we conclude that
Provision 13 conflicts with Agency regulations for which a
compelling need exists under section 2424.11(c) because the
regulations implement a mandate to the Agency from Congress in an
essentially nondiscretionary manner. Consequently, the provision
is outside the duty to bargain under the Statute.
XVI. Provision 13
Article XXXII - Dues Withholding
Section 32.5 - Dues Termination
An employee's voluntary allotment for payment of his/her
union dues shall be terminated with the start of the first pay
period following the pay period in which any of the following
occurs:
a. Loss of exclusive recognition by the Union.
b. Separation of an employee from the unit for which the
Union holds exclusive recognition.
C. Receipt by the Employer of notice from the Union that the
employee has been expelled or has ceased to be a member in good
standing of his local Union. Such notice shall be promptly
forwarded by the Union to the Employer.
d. An employee may terminate his authorization for the
deduction of Union dues by submitting Standard Form 1188 (or
individual substitute in duplicate to the Employer). Such
duplicate shall be promptly forwarded to the Union by the
Employer. A termination of allotment will not be effective,
however, until the first full pay period following one year from
the date the first deduction was made by the payroll office,
provided the form or request is received in a timely fashion.
Thereafter, such revocation will not be effective until the first
full pay period following any successive anniversary date,
provided the form or request is received no later than such
anniversary date and no earlier than 30 days before such
anniversary date.
A. Positions of the Parties
The Agency contends that by delineating specific criteria
for terminating automatic dues withholding, the provision
prohibits termination of dues withholding for reasons not listed.
The Agency argues that the Union has failed to include the
temporary promotion of employees into supervisory positions in
the list of criteria. Thus, according to the Agency, because it
would be prohibited from terminating an employee's dues
withholding when the employee was temporarily promoted to a
supervisory position, the provision violates section 7115 of the
Statute. The Agency also contends that once an employee is
promoted into a supervisory position, dues withholding should
immediately cease and the 2-week delay required by the provision
in implementing a termination violates section 7115(b) of the
Statute.
The Union contends that nothing in the language of the
provision is inconsistent with law, rule or regulation. It
alleges that the provision does not prohibit the cancellation of
the voluntary dues allotment to the union of employees
temporarily promoted to supervisors. Rather, the Union notes that
section (b) of the provision expressly provides that dues
withholding may be terminated upon the separation of an employee
from the bargaining unit. Further, the Union contends that
delaying a termination of dues withholding until the beginning of
the first pay period after the occurrence of the promotion is
merely a procedural matter which is consistent with the
termination of any other employee payroll deduction.
B. Analysis and Conclusion
In International Association of Machinists and Aerospace
Workers, Lodge 2424 and Department of the Army, Aberdeen Proving
Ground, Maryland, 25 FLRA 194 (1987) (Proposal 1), we found that
section 7115(b)(1) requires the termination of a dues deduction
authorization when "the agreement between the agency and the
exclusive representative involved ceases to be applicable to the
employee(.) " We further noted that the Authority had previously
held that the agreement between the parties ceases to be
applicable to an employee when she or he is promoted, even
temporarily, to a supervisory position. Internal Revenue Service,
Fresno Service Center, Fresno, California, 7 FLRA 371 (1981),
reversed as to other matters sub no. I.R.S. Fresno Service Center
v. FLRA, 706 F.2d 1019 (9th Cir. 1983). The Union interprets
section (b) of the provision to cover such restrictions as when
an employee receives a temporary promotion, that is,
when the employee is separated from the unit for which the Union
holds exclusive recognition. This interpretation is consistent
with the plain wording of the Statute. Accordingly, we reject the
Agency's argument that the proposal does not cover employees who
are temporarily promoted to a supervisory status.
Further, we find that section (d) of the provision is a
procedural matter and the Agency has failed to show that such
procedure is violative of any law, rule or regulation. Federal
Personnel Manual Supplement 990-2, Book 550, subchapter
S3-8(c)(5) states "the effective date of the commencement of an
allotment, and any change or termination of the allotment will be
determined by agency policy." The Agency has not provided any
specific policy that it has established in this regard nor has it
shown that section (d) conflicts with any agency policy or
regulation. Accordingly, we find Provision 13 to be negotiable.
XVII. Provision 14
Article XXXIII - Safety and Health
Section 33.1.c - General
If a bargaining unit employee has a reasonable belief that
performing assigned tasks may endanger their health or safety,
they may refuse to perform such tasks.
A. Positions of the Parties
The Agency contends that the provision violates management's
section 7106(a)(2)(B) right to assign work as it provides an
employee sole discretion in determining whether or not to perform
an assigned task.
The Union contends that the clear intent of the provision is
to protect employees in the event of a reasonable belief that an
employee's life is in danger beyond the normal and inherent
dangers of the position the employee occupies. According to the
Union, the provision merely reiterates a statutory right and
cannot be construed to be violative of any management right. The
Union contends that the provision constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the
Statute.
B. Analysis and Conclusion
We find Provision 14 to be nonnegotiable because it is
inconsistent with a Government-wide regulation. Regulations
issued by the Occupational Safety and Health Administration,
(OSHA) provide that when employees have a "reasonable belief"
that they are in "imminent risk of death or serious bodily harm"
from a work assignment, and do not have sufficient time to seek
redress through normal abatement procedures, they may decline to
perform the assignment. 29 C.F.R. 1960.46(a). Provision 14,
however, provides that where employees have a reasonable belief
that performing assigned tasks "may endanger their health or
safety, they may refuse to perform such tasks." Employees'
refusals to work are only protected under OSHA regulations where
they are based on a reasonable belief on the part of employees
that they are subject to "imminent risk of death or serious
bodily injury." The standard set forth in Provision 14,
therefore, is broader than and exceeds the limitations set forth
in 29 C.F.R. 1960.46(a). Provision 14, accordingly, is
inconsistent with the regulations.
We found in American Federation of Government Employees, AFL
- CIO, Local 1770 and Department of the Army, Fort Bragg
Dependent Schools, Fort Bragg, nNorth Carolina, 28 FLRA 493, 505
(1987) (Provision 3), petition for review filed sub nom.
Department of the Armv, Fort Bragg Dependent Schools, Fort Bragg,
North Carolina v. FLRA, No. 87-2661 (4th Cir. Sept. 22, 1987)
that 29 C.F.R. 1960.46(a) constituted a Government-wide
regulation within the meaning of section 7117(a)(1) of the
Statute because the regulation established binding policies which
are generally applicable throughout the Federal Government. See
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748 (1980).
Because we conclude that Provision 14 is inconsistent with
29 C.F.R. 1960.46(a), which is a Government-wide regulation, we
find that Provision 14 is outside the duty to bargain. Since this
provision is nonnegotiable because it is inconsistent with a
Government-wide regulation, we need not reach the question of
whether the provision constitutes an appropriate arrangement
under section 7106(b)(3). See Kansas City District, Corps of
Engineers, 21 FLRA 228 (1986).
In making this determination, we distinguish our decision in
American Federation of Government Employees and Army and Air
Force Exchange Service, 30 FLRA No. 102 (1988) (Provision 1).
Provision 1 prevented the agency from assigning work to employees
in circumstances where employees reasonably believed
that assigned duties presented 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. We found that the fact
that the language of Provision 1 reflected essentially the same
wording of 29 C.F.R. 1960.46(a), did not make the provision
negotiable. Rather, we determined that the provision went beyond
mere recognition of externally imposed limitations and, instead,
imposed independent and substantive restrictions on management's
rights to assign work and to direct employees under section
7106(a)(2)(A) and (B).
Nevertheless, we found Provision 1 to be a negotiable
appropriate arrangement under section 7106(b)(3). We determined
that while the provision interfered with management's rights, it
concerned a matter of great importance to the health and safety
of employees. We concluded that the benefit afforded by the
provision to employees who may be required to work in situations
where their health and safety were seriously threatened
outweighed the detriment to management caused by the provision's
limited interference with management's rights. That is, the
provision did not apply to every perceived threat to employe
health and safety. Under the provision there had to be facts to
support a reasonable belief that the threat (1) was imminent; (2)
posed a risk of death or serious physical injury, and (3) cannot
be abated through normal procedures. Consequently, we held that
the provision did not excessively interfere with management's
rights but constituted a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute.
Provision 14 in this case, however, is inconsistent with 29
C.F.R. 1960.46(a) and thus, is nonnegotiable on that basis. In
view of this determination, we need not address the Agency's
additional arguments concerning the negotiability of this
provision.
XVIII. Provision 15
Article XXXIV - Depot Smoking Policy
Section 34.4. The Employer agrees that non-smokers will not
be required to enter smoking areas when employees are smoking or
second hand smoke is present.
A. Positions of the Parties
The Agency argues that this provision prevents management
from assigning work to employees in the circumstances listed in
the provision. Thus, the Agency claims that the provision
violates management's right to assign work under section
7106(a)(2)(B) of the Statute.
The Union provided no specific arguments concerning this
provision.
B. Analysis and Conclusion
Proposals concerning the implementation of an agency's
smoking policy are negotiable. American Federation of Government
Employees, Local 2324 & AFL - CIO and Department of the Army,
Headquarters, 1st Infantry Division, Fort Riley, Kansas, 27 FLRA
33 (1987); National Association of Government Employees, Local
R14-32 and Department of the Army, Fort Leonard Wood, Missouri,
26 FLRA 593 (1987).
Further, we recently decided in National Treasury Employees
Union and Internal Revenue Service, Indianapolis District, 30
FLRA 32 (1987), that a proposal seeking to protect the rights of
nonsmoking employees by permitting them to ask individuals
occupying designated smoking areas to refrain from smoking when
the nonsmoking employees must be in the designated smoking area
was within the duty to bargain.
This provision, however, although ostensibly seeking to
protect nonsmokers, expressly prevents the Agency from assigning
work in the circumstance set out in the provision. Matters
related to health and safety are legitimate factors which
management may take into account in assigning work. However,
Provision 15 precludes management from assigning work and, as a
result, is nonnegotiable. See American Federation of Government
Employees,_AFL-CIO, Local 3631 and Environmental Protection
Agency, 11 FLRA 637 (1983); Homestead Air Force Base, 6 FLRA
574, 585 (Proposal 6). Compare 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) (Proposals requiring an agency to observe
restrictions on assignments of work which are imposed by the
agency's own medical authorities are negotiable procedures).
In summary, Provision 15 interferes with management's right
to assign work under section 7106(a)(2)(B) and is, therefore,
outside the duty to bargain.
XIX. Provision 16
Article XLI - Board, Committees, and Councils
Section 41.1 - Membership on Boards, Committees, and
Councils
Union representation will be provided on specified boards,
committees, and councils as a means of facilitating communication
to and from employees in the unit. For each board, committee, and
council listed below, the Union will nominate one representative
and one alternate and submit their name(s) to the Employer. Final
appointments will be subject to review and approval by the
Employer. Membership changes will be requested as necessary by
the Employer or the Union.
d. Incentive Awards Committee.
A. Positions of the Parties
The Agency disputes only the portion of this provision which
provides for a union representative on an Incentive Awards
Committee. The Agency argues that because this committee reviews
and makes recommendation concerning incentive awards, the
provision is inconsistent with management's right to direct
employees and assign work under section 7106(a)(2)(A) and (B) of
the Statute. In support, the Agency relies on Department of the
Navy, Northern Division, Naval Facilities Engineering Command, 19
FLRA 705 (1985) (Naval Facilities Engineering), reversed and
remanded sub nom. NFFE, Local 1430 v. FLRA, No. 85-1648 (D.C.
Cir. Nov. 6, 1986).
The Union disagrees with the Authority's decision in Naval
Facilities Engineering Command. The Union contends that
negotiating on bonuses for performance does not interfere with
the rights to assign work and to determine work requirements.
B. Analysis and Conclusion
In American Federation of Government Employees, AFL - CIO,
Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28
FLRA 1172 (1987) (Army Aviation Center, Fort Rucker), we held
that Provision 9, which required the agency to select
one employee to serve on the incentive awards committee, to be
within the duty to bargain. We rejected the agency's contention
that union membership on the incentive awards committee
interfered with the agency's rights to direct employees and to
assign work under sections 7106(a)(2)(A) and (B) of the Statute.
Id. at 1180.
Provision 16 in this case is substantially the same as
Provision 9 in Army Aviation Center, Fort Rucker. Accordingly,
for the reasons set forth in Army Aviation Center, Fort Rucker,
we find that Provision 16 does not directly interfere with
management's rights to direct employees and to assign work under
section 7106(a)(2)(A) and (B). Thus, we find Provision 16 to be
within the duty to bargain. See also National Federation of
Federal Employees, Local 797 and Department of the Navy, 29 FLRA
333, 335 (1987) (Provision 2).
XX. Order
The petition for review as to Article XXV, Section 25.2,
Provisions 1, 2, 3, 5, 7, 8, 11, 12, 14 and 15 is dismissed. The
Agency shall rescind its disapproval of Provisions 4, 6, 9, 10,
13 and 16. 1
Issued, Washington, D.C.,January 29, 1988
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS
FOOTNOTES
Footnote 1 In finding these provisions to be negotiable, we
make no judgments as to their respective merits.