[ v31 p360 ]
31:0360(32)NG
The decision of the Authority follows:
31 FLRA NO. 32
31 FLRA 360
23 FEB 1988
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF VETERANS
ADMINISTRATION LOCALS
Union
and
VETERANS ADMINISTRATION
Agency
Case No. 0-NG-1273
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). It concerns the negotiability of
14 articles which, for the reader's convenience, have been
divided into 26 proposals, as more fully explained below.
For the reasons set forth below, we find that the following
proposals are negotiable: Proposals 1, 3, 6, 9, 12, 13, 14, 15,
16 and 26. The following proposals are negotiable in part and
nonnegotiable in part: Proposals 2, 4, 5, 7, 8, 17, 18, 19, 20,
21, 22, 23 and 24. Proposal 25 is nonnegotiable. Portions of
Proposals 11 and 21 do not present bases on which the Authority
can resolve the negotiability issues raised. The petition for
review as to those portions will be dismissed.
Additionally, the Union has requested to withdraw the
following portions of the various proposals that are in dispute:
Article 14 (a), Section 6 of Annual Leave (Proposal 3); Article
14 (a), Section 7F of Sick Leave (Proposal 4); Article 14(a),
Section 2 of Teaching (Proposal 15); Article 17, Section 2
(Proposal 18); Article 20, Section 2 (Proposal 19); Article
24(a), Sections 3 and 9 (Proposal 21); Article 25, Sections 1, 2,
3, 7A and C, 12 and 13 (Proposal 22); Article 27, paragraphs 4
and 5 (Proposal 23); Article 30(a), Sections 1B, 2, 3B, 10
And 12 (Proposal 24); and Article 33(a), Sections 2, 3 and 4
(Proposal 25). The Union's request to withdraw is granted and we
will not consider these portions of the proposals further.
II. Preliminary Matters
A. The Veterans Administration (VA or Agency) raises two
common issues with respect to the negotiability of the proposals
in this case, namely that: (1) Title 38 of the United States Code
provides the Administrator of the VA with statutory authority to
regulate conditions of employment of professional medical
employees in the Department of Medicine and Surgery (DM&S) and,
therefore, the Agency has no duty to bargain under the Statute;
and (2) the proposals are outside the duty to bargain under
section 7103(a)(14) of the Statute since they concern matters
that are otherwise provided for by law. The Agency claims that
its regulations are legislative regulations which have the force
and effect of law and which, therefore, preclude bargaining over
the proposals. For the following reasons, we reject the Agency's
contentions.
In Colorado Nurses Association and Veterans Administration
Medical Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VA
Medical Center, Ft. Lyons), petitions for review filed sub nom.
Colorado Nurses Association v. FLRA Nos. 87-1242 and 87-1104
(D.C. Cir. Feb. 25, 1987), we held that the Statute applies to
DM&S employees and that as a general matter the Agency has a duty
to bargain over their conditions of employment. We rejected the
Agency's contentions that certain sections of Title 38 barred
negotiations under the Statute of DM&S employees' conditions of
employment. We also rejected the Agency's arguments that the
Agency's personnel regulations constitute "legislative
regulations" which have the force and effect of law. To the
extent that similar issues are presented here, we reaffirm our
decision that the Statute applies to DM&S employees for the
reasons stated in VA Medical Center, Ft. Lyons.
Based on the analysis and the cases cited in Ft. Lyons, we
find that there is no conflict between Title 38 of the United
States Code and the duty to bargain under section 7117 of the
Statute. To the extent that the Agency raises the same general
argument as to each proposal at issue, we will not restate that
contention and we will not further consider the issue.
We also note that while the Agency has disputed all the
language in the proposals submitted by the Union, the Agency
has, in many instances, relied solely on its general
arguments rejected above. It is well established that the parties
bear the burden of creating a record upon which the Authority can
make a negotiability determination. 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). A party failing to meet this burden acts at its
peril. In those instances where the Agency has raised no other
grounds on which to base a finding that particular language is
outside the duty to bargain, we will find such language to be
nonnegotiable only where the record otherwise indicates that the
language is inconsistent with law, rule or regulation, including
the Statute.
B. Another preliminary matter concerns the technical defects
in many of the Union's proposals. We have held that management's
right to assign work includes the right to determine the
individuals who will perform particular tasks. This right
includes assignment to bargaining unit and nonbargaining unit
employees. Many of the Union's proposals require the assignment
of work to specific employees or portions of the Agency's
organization and are nonnegotiable on that basis. In most of the
proposals, these defects would not permit management to exercise
its congressionally accorded discretion to assign the tasks
involved to whomever it elects. In this decision, we have noted
those proposals which are nonnegotiable solely on the basis that
they assign work to particular individuals or organizational
segments. These defects are easily cured. We urge the parties to
work together to resolve these technical defects and pursue
agreement on the substantive issues involved in the proposals.
We turn now to the specific proposals involved in this case.
For the reader's convenience, we have numbered the sentences or
paragraphs in various proposals. Also, because of their length,
the text of most of the proposals is reproduced in the attached
Appendix. Also because of its length, Article 14(a) has been
divided into separate proposals, numbered 3-17.
III. Proposal 1
Article 6 - Grievance Procedure
The text of this proposal appears in the Appendix. Proposal
1 would establish a grievance and arbitration procedure for
employees subject to the provisions of Title 38.
A. Positions of the Parties
The Agency argues that there is a compelling need for its
regulations which establish a grievance procedure.
The Union asserts that the Agency has not shown a compelling
need for the VA regulations establishing a grievance procedure.
Additionally, the Union states that Proposal 1 excludes
disciplinary actions subject to 38 U.S.C. 4110, that the Agency
has a duty to negotiate a grievance procedure under section
7121(a)(1) and (b)(3)(C), and that the objective of the Agency's
grievance procedure is the resolution of issues concerning
working conditions, not patient care.
B. Analysis and Conclusions
Proposal 1 would establish a negotiated grievance procedure
ending in binding arbitration.
In order to show a compelling need for an agency regulation,
an agency must: (1) identify a specific agency-wide regulation;
(2) show that there is a conflict between its regulation and the
proposal; and (3) demonstrate that its regulation is supported by
a compelling need with reference to the standards in section
2424.11 of our Regulations. Furthermore, generalized reasoning
merely stating conclusions is not enough to support a finding of
compelling need. See American Federation of Government Employees,
AFL - CIO Local 3804 and Federal Deposit Insurance Corporation,
Madison Region, 21 FLRA 870, 880 (1986) (FDIC, Madison
Region).
The Agency argues that grievances by DM&S professionals must
be addressed under the Agency's grievance procedure set forth in
the VA Manual, MP-5, Part II, Chapter 8, section B and DM&S
Supplement, Appendix A. However, the Agency does not demonstrate
that there is a conflict, and one is not apparent, between these
regulations and Proposal 1. Furthermore, while the Agency asserts
that arbitrators lack the expertise to decide grievances which
have an impact on patient care, the Agency has offered no
evidence to support its assertion. We conclude that the Agency
has not established that a conflict exists between the Agency's
grievance procedure and the proposed negotiated grievance
procedure. Since the Agency has not met the second requirement
necessary to establish a compelling need for an agency
regulation, we reject this Agency argument.
We find that Proposal 1, which would establish a negotiated
grievance procedure ending in binding arbitration, is within the
Agency's duty to bargain. As we discussed in Part II of this
decision, entitled "Preliminary Matters," the VA is obligated
under the Statute to negotiate concerning the conditions of
employment of DM&S employees. Furthermore, in VA Medical Center,
Ft. Lyons, 25 FLRA 803, 811-12 (Proposal 1), we specifically
held that grievance and arbitration procedures for DM&S employees
are within the duty to bargain under the Statute to the extent
that the procedures cover matters which are not barred by Title
38. See also Veterans Administration Medical Center, Minneapolis,
Minn. v. FLRA, 705 F.2d 953, 958 (8th Cir. 1983).
In this case, the proposed grievance procedure would not
apply to "disciplinary actions for Title 38 employees." See
Section 2(f) of Proposal 1. Therefore, the requirement in Title
38 that professional standards boards (PSBs) determine charges of
inaptitude, inefficiency, or misconduct for certain professional
employees would not be affected by the proposed grievance
procedure. Thus, we conclude that Proposal 1 is negotiable. VA
Medical Center, Ft. Lyons, 25 FLRA 803, 811-12 (proposal
establishing a negotiated grievance procedure which excludes
matters covered by 38 U.S.C. 4110 held negotiable).
Finally, we note that the designation of particular Agency
officials to act at various steps of the grievance procedure is
not a violation of management's right to assign work under
section 7106(a)(2)(B) of the Statute. We have held that the
requirement in section 7121 that the parties negotiate the
structure of their grievance procedure carves out an exception to
management's right to assign work. National Federation of Federal
Employees, Local 29 and Department of Defense, HQ U.S. Military
Entrance Processing Command, 29 FLRA 726, 728 (l987) (Provision
1).
In summary, we reject the Agency's arguments and find that
the negotiated grievance procedure is within the Agency's duty to
bargain.
IV. Proposal 2
Article 12 - Promotions and Assignments (for Title 38
Employees)
The text of this proposal is found in the Appendix.
This proposal pertains to promotions, advancements, awards
and leave for certification speciality tests in the medical
field.
A. Positions of the Parties
The Agency asserts that Proposal 2 interferes with
management's right to assign work under section 7106(a)(2)(B):
Specifically, the Agency claims that this proposal requires that
management assign certain responsibilities to PSBs. The Agency
also argues that Proposal 2 establishes criteria for special
advancements in violation of its right to assign work.
Furthermore, the Agency asserts that the procedures set forth in
Proposal 2 constitute methods and means of performing work under
section 7106(b)(1) and are nonnegotiable.
The Union responds that the procedures outlined for PSBs in
Proposal 2 are negotiable procedures under section 7106(b)(2) and
are not methods and means of performing the Agency's work. In
addition, the Union argues that its proposal merely references
existing provisions in Agency regulations concerning PSBs. The
Union also asserts that criteria for promotions and special
advancements are set out in the VA's regulations. According to
the Union, those portions of Proposal 2 which are in Agency
regulations are within the Agency's duty to bargain. Although the
Agency makes no specific arguments concerning Section 5, the
Union asserts that it is not inconsistent with law or
Government-wide regulation for the Agency to grant administrative
leave for examinations and that Section 5 should be found to be
negotiable.
B. Analysis and Conclusion
1. Assignment of Work to PSBs and Supervisors Interferes
with Management's Right to Assign work
The first sentence in Section 1 and the second sentence in
Section 4 would require PSBs to consider Title 38 employees for
promotions and special advancements, respectively. The Agency
contends that these requirements are nonnegotiable. We agree. We
have held previously that an agency has the right to determine
which management group will be assigned particular duties and
tasks. See New York State Nurses Association and Veterans
Administration, Bronx Medical Center, 30 FLRA 706, 718 and 726
(1987) (Proposals 6 and 9) (VA, Bronx Medical Center). See also
Patent Office Professional Association and Patent and Trademark
Office, Department of Commerce, 29 FLRA 1389, 1414-16 (1987)
(Proposal 14), petition for review filed sub nom. Patent Office
Professional Association v. FLRA, No. 87-1824 (D.C. Cir. Dec.
24, 1987); American Federation of State, County and
Municipal Employees, AFL - CIO, Local 2910 and Library of
Congress, 11 FLRA 632, 632-33 (1983) (Proposals 1 and 2).
Contrary to the Union's argument, the fact that the Agency's
regulations currently provide that PSBs will consider Title 38
employees for promotions and special advancements does not render
Proposal 2 negotiable. If the negotiated agreement were to
contain a provision designating PSBs as the management groups
responsible for considering Title 38 employees for promotion and
special advancement, the Agency's right to reassign this task
would be eliminated for the life of the collective bargaining
agreement. Clearly, such a provision would interfere with
management's rights to assign work under section 7106(a)(2)(B).
See American Federation of Government Employees, AFL - CIO, Local
1858 and U.S. Army Ordnance Missile and Munitions Center and
School (USAOMMCS), Redstone Arsenal, Alabama, 26 FLRA 102,
104-05 (1987) (Provision 2) (Redstone Arsenal, Alabama)
(inclusion of existing rating levels and definitions in contract
held nonnegotiable as interference with management's right to
change levels and criteria).
In Section 2, the third sentence would require immediate
supervisors to recommend employees for special advancements. The
fourth sentence in that section states that immediate supervisors
will forward petitions to the appropriate PSB. We have held
consistently that the right to determine who will perform
specific tasks is part of management's right to assign work under
section 7106(a)(2)(B) of the Statute. See, for example, National
Union of Hospital and Health Care Employees, AFL - CIO, District
1199 and Veterans Administration Medical Center, Dayton, Ohio, 28
FLRA 435, 443-45 (1987) (Proposal 6, Section 4) (VA Medical
Center, Dayton), petition for review filed sub nom. Veterans
Administration Medical Center, Dayton, Ohio v. FLRA, No. 87-1521
(D.C. Cir. Sept 28, 1987) (requiring chief of nursing to serve on
labor-management committee); Illinois Nurses' Association and
Veterans Administration Medical Center, Hines, Illinois, 28 FLRA
212, 214-18, 219-20 (1987) (Proposals 1, 2 and 7) (VA Medical
Center, Hines), petition for review filed sub nom. Veterans
Administration Medical Center, Hines, Illinois v. FLRA, No.
87-1514 (D.C. Cir. Sept. 28, 1987) (Proposal 1 requiring
immediate supervisor to conduct orientation, Proposal 2 requiring
chief nurse to discuss negative Nurse PSB recommendation with
affected nurse, Proposal 7 requiring immediate supervisor to take
certain actions with regard to nurses' reassignments); and
National Federation of Federal Employees, Local 1798 and Veterans
Administration Medical Center, Martinsburg, West Virginia, 27
FLRA 239, 246-50 (1987) (Proposal 3, Sections 1(E) and
(F)) (VA Medical Center, Martinsburg), petition for review filed
sub nom. Veterans Administration Medical Center, Martinsburg,
West Virginia v. FLRA, No. 87-1342 (D.C. Cir. July 24, 1987)
(requiring immediate supervisor to discuss a promotion action
with employee and provide employee with written justification for
using negative performance standard). Thus, we conclude that in
Section 2 sentences three and four are outside the Agency's duty
to bargain to the extent that they would require management to
assign duties to supervisors.
In Section 1 the first sentence, in Section 2 the third and
fourth sentences, and in Section 4 the second sentence would
assign duties and tasks to supervisors and the PSBs. To the
extent that these sentences assign work, they are inconsistent
with the right to assign work under section 7106(a)(2)(B) of the
Statute and are nonnegotiable. We note, however, that the defects
in these sentences could be cured by removing the references to
supervisors and PSBs. 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) (U.S. Army Missile
Command), petition for review filed sub nom. 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 v. FLRA, No. 87-7445 (11th
Cir. July 17, 1987).
2. The Remainder of Sections 1, 2, Constitute Negotiable
Procedures
We find that the following portions of Proposal 2 constitute
negotiable procedures: Section 1, sentences 2, 3 and 4; Section
2, sentences 1 and 2; Section 3; and Section 4, the first
sentence. These portions do not interfere with management's right
to act under section 7106(a), rather, they set forth procedures
by which management will act or not act. In Section 1, the second
sentence provides that employees will be considered for promotion
when they meet the requirements that the Agency establishes. The
third sentence in Section 1 states that management will consider
a waiver of experience and/or degree requirements where
appropriate. The fourth sentence in Section 1 states that
consideration for promotion shall be based on merit principles.
In Section 2 the first sentence states that management will
consider employees for advancement and the second sentence
provides that management may advance an employee from one to five
steps. The first sentence in Section 4 provides procedures
for processing an employee's petition. Section 3 states that
employees may be considered for a special advancement for
performance.
The Agency argues that Section 2 is nonnegotiable because it
establishes criteria which an employee must attain in order to
receive special advancement. However, the first sentence in
Section 2 merely states that employees will be considered for
special advancement. Management is not required to grant special
advancements to an employee who has achieved professional
recognition by the means described, nor is the Agency prevented
from considering any other employees for advancements within the
grade. If management decides to advance an employee, management
also determines the number of steps an employee will be advanced
according to the second sentence in Section 2. Similarly, Section
1, sentences 2 and 3, and Section 3 simply state that management
will consider employees for promotions and special advancements.
The fourth sentence in Section I merely recognizes the
applicability of merit principles in promotions. VA Bronx Medical
Center, 30 FLRA 706, 726-27 (Proposal 9) (proposal requiring
agency to consider employees for promotion held negotiable).
The Agency also argues that the procedures used by the PSBs
constitute methods and means of performing work under section
7106(b)(1) and are nonnegotiable. The Agency asserts that peer
review, which is performed by the PSBs, is an integral part of
the VA's exclusive chapter 73 personnel system. The Union
responds that the VA has not established the required nexus
between its patient care mission and the procedures set forth in
Proposal 2. We agree.
The Agency established PSBs to perform peer review functions
required by statute. See 38 U.S.C. 4106(b). However, the Agency
has not established how this proposal is inconsistent with the
peer review process or with the PSBs' method of operation.
Section 1, sentences 2, 3, and 4; Section 2, sentences 1 and 2;
Section 3; and the first sentence in Section 4 establish
procedures which employees will use in applying for promotions
and special advancements. They do not affect the Agency's right
to determine what the PSBs will consider or mandate the criteria
they will use, nor do they assign or not assign particular
responsibilities and tasks to PSBs. Thus, we reject the Agency's
argument that the PSBs' procedures constitute the Agency's
methods and means of performing work. American Federation of
Government Employees, Local 644, AFL - CIO and U.S. Department of
Labor, Mine Health and Safe Administration, Morgantown, West
Virginia, 15 FLRA 902, 903 (1984) (Proposal 1) (Mine
Health and Safety Administration, Morgantown); American
Federation of State, County and Municipal Employees, AFL - CIO,
Local 2477, et al. and Library of Congress, Washington, D.C., 7
FLRA 578, 583 (1982), aff'd sub nom. Library of Congress v.
FLRA, 699 F.2d 1280 (D.C. Cir. 1983).
We also note that Section 4, the first sentence, would
require that an employee receive notification when a petition for
special advancement is forwarded to the appropriate PSBs and a
copy of an immediate supervisor's recommendation concerning an
advancement request. We have held previously that proposals
requiring that employees receive notice of management action are
within the duty to bargain. Thus, we find the requirement that an
employee be notified when a special advancement petition is
forwarded to be negotiable. See VA, Bronx Medical Center, 30
FLRA 706, 718 (Proposal 6) (proposal requiring that notice of
appointment be sent to new employees held negotiable). See also
VA Medical Center, Dayton, 28 FLRA 435, 447 (Proposal 7)
(proposal requiring that nurses be notified of board actions on
promotions held negotiable).
3. Section 5 Interferes with Management's Right to Assign
Work and is Nonnegotiable
Section 5, the first sentence, provides that absences to
undergo examination by an approved speciality or certification
board will be authorized. The second sentence adds that the
amount of time authorized will include travel to and from the
place of examination.
The Union states that Section 5 authorizes administrative
leave for employees who undergo tests by speciality or
certification boards in the medical field. Reply Brief at 11-12.
The Union does not argue that Section 5 allows management
discretion to approve or disapprove an absence to undergo
examination. Rather, the language of the proposal states that
management must approve an absence for an employee who is "to
undergo examination" by an approved speciality or certification
board. Thus, the proposal mandates that the Agency grant leave.
Although the Agency may choose to provide this leave, it may not
be required to do so. We find, therefore, that Section 5
interferes with management's right to assign work in violation of
section 7106(a)(2)(B) of the Statute and is nonnegotiable. See VA
Medical Center, Hines, 28 FLRA 212, 238-40 (Proposal 8, section
3) (proposal preventing agency from changing employee's approved
annual leave held nonnegotiable).
In conclusion, we find that Section 5 in Proposal 2 is
nonnegotiable. The remainder of Proposal 2 is negotiable except
for Section 1, the first sentence; Section 2, the third and
fourth sentences; and Section 4, the second sentence.
V. Proposal 3
Article 14(a) - Leave as it Applies to Title 38
Annual Leave
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency argues that the proposal is outside the duty to
bargain for the reasons discussed and disposed of in Part II of
this decision. The only specific argument the Agency makes
concerning Proposal 3 is that Section 1 of the proposal is
inconsistent with the right to assign work under section
7106(a)(2)(B) of the Statute. The Agency claims that the proposal
would prevent the Agency from changing leave once it is approved
except in cases of emergency. According to the Agency, this
restriction would have the effect of preventing management from
changing schedules in order to meet its patient care needs and,
more specifically, from determining the particular employee to
whom work would be assigned.
The Union states that Title 38 employees are covered under
the provisions of Chapter 63 of Title 5. Next, the Union argues
that this proposal constitutes a procedure for securing and
recording absences from work. As to the Agency's argument
concerning Section 1, the Union argues that this section would
not prevent the Agency from determining what work should be
performed or when it should be performed. Moreover, according to
the Union, Section I does not define what is meant by the term
"emergency." Further, the Union asserts that the emergency
criterion for rescinding annual leave approved by management is
an appropriate arrangement for employees adversely affected by
the exercise of management's right to assign work.
B. Analysis and Conclusions
Initially, we note that Title 5 sets forth that "a
physician, dentist, or nurse in the Department of Medicine and
Surgery, Veterans' Administration" is excluded from coverage
under the provisions of chapter 63, Annual and Sick Leave. See 5
U.S.C. 6301(2)(v). Accordingly, the Union's statement as to this
portion of Title 5 is incorrect.
1. Section 1
This section describes the use and scheduling of annual
leave. As noted above, the Agency claims that this section
violates the right to assign work by preventing the Agency from
changing leave once it is approved except in cases of emergency.
The Agency further claims that this restriction would prevent
management from taking into account patient care needs. We
disagree. The second sentence of the section provides
specifically that approval of leave is to be based on workload
and staffing needs. Therefore, determinations concerning leave
usage are made in the context of the Agency's patient care needs.
Section 1 is thus distinguishable from Proposal 6, Section 4 in
Illinois Nurses Association and Veterans Administration Medical
Center, North Chicago, Illinois, 27 FLRA 714, 730-33 (1987)
(Proposal 6, Section 4) (VA Medical Center, North Chicago),
petition for review filed sub nom. Veterans Administration
Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405
(D.C. Cir. Aug. 17, 1987). In that case, we found nonnegotiable a
proposal which would have prohibited the agency from cancelling
approved annual leave except in cases of extreme emergency.
Unlike Section 1, which allows the Agency to take into account
workload and staffing needs, the proposal in VA Medical Center,
North Chicago did not permit the agency to consider its patient
care needs.
The provision for cancelling approved leave only in cases of
emergency, as stated in sentence 6 of Section 1, must be read in
conjunction with sentence 2 of the section. In other words, in
determining whether an emergency situation exists warranting the
disapproval of previously approved leave, Section 1 recognizes
that the Agency's workload and staffing needs will be taken into
account. The Union acknowledges that the section does not define
the tern emergency. The Agency is left with discretion to define
when an emergency exists and, therefore, the Agency may consider
its workload and staffing needs in deciding whether to disapprove
leave.
Accordingly, we find that Section I is within the duty to
bargain.
2. Sections 2, 3, 4, 5, 7, 8 and 9
These sections of Proposal 3 provide for the following:
Section 2 establishes the minimum charge for annual leave for
various types of employees; Section 3 sets forth the procedure
for requesting annual leave; Section 4 provides for the
advancement of annual leave; Section 5 addresses use of
annual leave when such leave coincides with travel while in a
duty status; Section 7 addresses accrual and use of annual leave
by career residents; Section 8 outlines the minimum charge and
method of charge of annual leave for full-time physicians,
dentists, podiatrists and optometrists; and Section 9 concerns
the disposition of leave on transfer, separation or retirement.
These sections concern a condition of employment, annual
leave. As noted, other than its general arguments discussed and
rejected in Part II of this decision, the Agency has made no
specific arguments with respect to any of these sections of
Proposal 3. Furthermore, the Agency has not established, and it
is not otherwise apparent that any section is contrary to law or
a Government-wide regulation, especially since this proposal
reflects provisions of the Agency's regulations.
In conclusion, we find that Proposal 3 is within the duty to
bargain.
VI. Proposal 4
Article 14 (a) - Leave as
Sick Leave
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency makes specific arguments with regard to two
sections of this proposal concerning sick leave. The Agency
argues that both Sections 7 and 11 are inconsistent with
management's right to assign work since they would require the
assignment of specific duties to particular positions. Section 7
requires that the Chief Medical Director and facility directors
or their designees grant advanced sick leave. Section 11 requires
the appointing official to ascertain the date on which new
appointees are entering on duty. Furthermore, the Agency claims
that no duty to bargain exists since these sections involve the
assignment of work to nonbargaining unit employees.
The Union claims that the proposal does not interfere with
management's rights, is consistent with law, and constitutes a
negotiable procedure. In addition, the Union argues that Sections
8 and 10 of the proposal are appropriate arrangements for
adversely affected employees within the meaning of the Statute.
B. Analysis and Conclusions
1. Section 1
This section sets forth the circumstances for which sick
leave shall be granted. The Union states that this section is
consistent with Government-wide regulations which implement 5
U.S.C. 6301 et seq.
As we noted in connection with Proposal 3, physicians,
dentists and nurses in the Department of Medicine and Surgery are
specifically excluded by 5 U.S.C. 6301(2)(v), from the provisions
of 5 U.S.C. 6301 et seq. Therefore, the Union's reliance on this
portion of Title 5 is misplaced.
We find that Section 1 is outside the duty to bargain. This
section states that sick leave shall be granted in a variety of
circumstances. The granting or denial of specific leave requests
are matters left to management's discretion. The discretion to
grant or deny leave is a component of management's right to
assign work under section 7106(a)(2)(B) of the Statute. See, for
example, FDIC, Madison Region, 21 FLRA 870, 873-74 (Proposal 2).
Here, Section I would require management to grant sick leave
under the listed circumstances. By removing the discretion
inherent in management's right to assign work, the section is
violative of that right.
2. Section 3
This section establishes the reporting procedures and
requirements for incapacitated employees. Sentences I and 2
provide that an incapacitated employee will report the illness to
the supervisor, or designee, as soon as possible. Sentence 3
provides that if the employee expects to be absent more than one
day, the employee will advise the supervisor of the approximate
date of return, if possible. Where the employee so advises the
supervisor, sentence 4 states that daily reports will not be
necessary. Sentence 5 provides that an employee routinely will
not be required to reveal the nature of the illness as a
condition for approval. Sentence 6 states that failure to furnish
the nature of the illness will not, by itself, serve as a basis
for disapproval of the leave.
We find that sentences 5 and 6 of Section 3 are
nonnegotiable. It is well established that management's rights to
direct employees and to assign work under section 7106(a)(2)(A)
and (B) include the right to require employees to account for
their failure to meet standards of performance,
standards of conduct or for other derelictions which may result
in discipline. Tidewater Virginia Federal Employees Metal Trades
Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA
343, 344-45 (1984) (Provision 1); Navy Public Works Center, Pearl
Harbor, Honolulu, Hawaii v. FLRA, 678 F.2d 97 (9th Cir. 1982).
Proposals which permit employees the option to not answer
questions concerning their performance or conduct immunize
employees from discipline for refusing to account for their work
or conduct and, thus, directly interfere with management's rights
to direct employees and to assign work and also directly
interfere with management's right to discipline employees under
section 7106(a)(2)(A). Id.
Here, the employees would not have to account routinely the
basis of a sick leave request as a condition for having such sick
leave approved or disapproved. Sentences 5 and 6 would permit
employees to avoid being questioned about sick leave usage. As
such, these sentences violate management's rights to direct
employees, assign work and discipline employees under section
7106(a) of the Statute. See also American Federation of
Government Employees, AFL - CIO, Local 2052 and Department of
Justice, Bureau of Prisons, Federal Correctional Institution,
Petersburg, Virginia, 30 FLRA No. 94, slip op. at 4-6 (1987)
(Proposal 1) (proposal expressly precluding supervisor from
asking or ordering employees to provide reasons for sick leave
usage was found to be outside the duty to bargain).
We note, moreover, that sick leave is designed to be used
for certain purposes relating to employee illness, medical
appointments, or other medical situations. By allowing employees
not to be held accountable for the reasons for which sick leave
is being used, management would have no way of ascertaining
whether sick leave is being used appropriately--that is, in
connection with illness or medical matters. The need to ensure
that sick leave is being used properly is different from the use
of annual leave which was raised in Proposal 3. Specifically, in
Proposal 3, Section 1, which concerned the use and scheduling of
sick leave, sentence 5 provides that employees need not state the
reasons for leave requests when making routine requests for
annual leave (see Appendix for text of Proposal 3). Finding
Section 1 of Proposal 3 to be negotiable is not inconsistent with
our finding here because Section I of Proposal 3 also stated that
annual leave is to be earned in accordance with appropriate
statutes and regulations. By referencing the applicability of
statues and regulations, if any monitoring of annual leave was to
be deemed appropriate, the Agency would retain its discretionary
authority under section 7106(a) of the Statute.
Based on the foregoing, we find that sentences 5 and 6 of
Section 3 are outside the duty to bargain. Sentences 1 through 4,
however, are within the duty to bargain. These sentences merely
establish reporting procedures and requirements and, therefore,
constitute negotiable procedures within the meaning of section
7106(b)(2) of the Statute.
3. Sections 2, 4, 5, 6, 7, 9 and 10
Section 2 describes the circumstances under which a written
application (SF 71) or medical certification will or will not be
required to support the use of sick leave. The section also
establishes a procedure by which employees who are suspected of
sick leave abuse will be required to establish proof of sick
leave and will be counseled about the requirement. Section 4
describes the circumstances when sickness which occurs during a
period of annual leave will be charged to sick leave and not to
annual leave. Section 5 describes the circumstances under which
sickness occurring during a period of leave without pay (LWOP)
will be charged to sick leave. Section 6 describes charges to
sick leave for full-time physicians, dentists, podiatrists and
optometrists. Section 7 outlines the use of advanced sick leave.
Section 9 concerns the type of leave which will be authorized for
employees on prolonged absence, who are not expected to return to
work, and the type of leave to be granted to employees on
prolonged absence who are expected to return to work. Section 10
authorizes the use of sick leave for employees who are VA
claimants or beneficiaries and are ordered by the Agency to
undergo a medical examination.
These sections do not require any action on the part of
management. Further, the Agency only made general arguments that
the proposed matters are inconsistent with its internal
regulations which have the force and effect of law. We rejected
this argument in Part II of this decision. We note that much of
the language of these sections, including Sections 7 and 9A, are
taken virtually word-for-word from the Agency's regulation. The
Agency did not argue that a compelling need exists for these
regulations so as to bar negotiation of this proposal. In
addition, with the exception of Section 7F, which was withdrawn
by the Union, the Agency has not argued that the proposed matters
are inconsistent with the exercise of management's rights and no
such interference is otherwise apparent. In fact, we note that
Section 7 of the proposal does not require that leave be granted.
Rather it is within the Agency's discretion and subject to the
Agency's internal regulations.
Accordingly, we conclude that these sections are negotiable
procedures and are within the duty to bargain.
4. Section 8
This section describes the circumstances for use of
involuntary sick leave. Employees who are unable to perform their
duties may be placed on involuntary sick leave. Section 8 further
provides for the termination of involuntary sick leave when the
employee presents himself or herself for duty and competent
medical authority determines that the employee is able to perform
his or her duties. For the following reason, we find that Section
8 interferes with the right to assign work under section
7106(a)(2)(B) of the Statute.
In American Federation of Government Employees AFL - CIO,
Local 1625 and Department of the Navy, Naval Air Station, Oceana,
Virginia, 30 FLRA No. 122, slip op. at 15 (1988) (Provision 6)
(Naval Air Station, Oceana), 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 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
concluded 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).
There is nothing in the language of Section 8 or in the
record which indicates that the term "competent medical
authority," was intended to be limited to the Agency's own
medical authorities. Thus, consistent with Naval Air Station,
Oceana, we find that Section 8 violates the right to assign work
by removing the Agency from the decision-making process as to
whether an employee is capable of returning to work and
performing his or her assigned duties.
We also find that Section 8 does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute. The Union claims that this section was designed
to minimize the adverse effect of an employee being placed on
involuntary sick leave--the adverse effect being the use by the
employee of sick leave and the possible depletion of
that employee's available sick leave. In our view, Section 8
directly interferes with management's right to determine whether
employees are capable of returning to work and performing their
duties by permitting decisions as to employee capability to be
made by non-Agency officials. Therefore, the section constitutes
an excessive interference with the exercise of a management right
and does not constitute an appropriate arrangement.
Based on the foregoing analysis, we conclude that Section 8
is outside the duty to bargain.
5. Section 11
This section concerns crediting and recrediting of sick
leave for employees who: (A) change employment within the
Department of Medicine and Surgery; (B) are reemployed by the
Agency after a break in service of not more than 3 years; or (C)
are reemployed by the Agency during a period covered by lump-sum
payments. Except for the second and fifth sentences of subsection
C, we find Section 11 to be within the duty to bargain.
The various portions of Section 11 are consistent with the
Agency's internal regulations. Again, since no compelling need
was asserted or established for such regulations so as to bar
negotiations and, with the one exception addressed below, the
section is not inconsistent with the exercise of any management
rights, Section 11 is within the duty to bargain.
Sentence 2 of subsection C prescribes that the appointment
officer will have the responsibility for ascertaining whether new
appointees are entering on duty prior to the expiration of leave
represented by a lump-sum payment. The Agency argues that the
assignment of a particular duty to the appointment officer is
outside the duty to bargain because it violates management's
right to assign work and because it involves the assignment of
work to nonbargaining unit employees. The Union argues that the
appointing officer does not refer to a specific individual but,
rather, that it is a generic term which allows the Agency to
appoint whomever it chooses.
We find that sentence 2 of subsection C is outside the duty
to bargain. As we stated in connection with Proposal 2, the right
to determine who will perform specific tasks is part of
management's right to assign work under section 7106(a)(2)(B). By
specifying that the appointment officer will perform a
specific task, the sentence violates management's right to assign
work.
Likewise, we find that sentence 5 of subsection C is outside
the duty to bargain since it assigns the task of making
arrangements for deductions to the Fiscal Officer. While the
Union claims, in the case of the appointing officer, that this
sentence is negotiable because no specific individual is named,
we find that it is the assignment of duties to particular
positions, not to particular individuals, that renders the
sentence, as well as sentence 5, nonnegotiable.
Finally, we note that if the second and fifth sentences of
subsection C were redrafted to preserve the Agency's right to
assign work, they would be within the duty to bargain. See U.S.
Army Missile Command, 27 FLRA 69, 81.
In conclusion, we find that Section 11 is within the duty to
bargain, except for the second and fifth sentences of subsection
C, which are not within the duty to bargain.
VII. Proposal 5
Article 14 (a) - Leave as it Applies to Title 38
Administrative Leave or Excused Absence
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The only arguments made by the Agency with regard to
Proposal 5 are the general arguments previously discussed and
rejected in Part II of this decision.
The Union claims that the proposal concerns negotiable
procedures which either preserve management's right to grant or
deny administrative leave or which would authorize leave after
management has already determined that employees are to be absent
from their duties.
B. Analysis and Conclusions
1. Section I
This section states that consistent with Agency policy,
management officials may grant absences from duty without charge
to leave. Section 1 lists examples of activities for which
excused absences may be authorized.
We find this section to be within the duty to bargain. As
the Union notes, this section preserves management's right to
decide whether or not to grant excused absences. Moreover, the
proposal clearly states that the granting of excused absences
will be consistent with Agency policy. See VA Medical Center,
Dayton, 28 FLRA 435, 448 (Proposals 8 and 9--proposals which
incorporate the accrual of various types of leave as established
in the agency's regulations are within the duty to bargain). But
see Fort Bragg Association of Educators, NEA and Department of
the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Fort Bragg
Schools), petition for review filed sub nom. Fort Bragg
Association of Educators, NEA v. FLRA, No. 87-1823 (D.C. Cir.
Dec. 24, 1987) (Chairman Calhoun concurring in part and
dissenting in part on other grounds) (Proposal 23 which required
administrative leave to be granted under various circumstances
did not preserve management's discretion to determine whether
anemployee's absence would conflict with the accomplishment of
work and therefore violated the right to assign work under
section 7106(a)(2)(B)).
2. Section 2
This section provides that the Chief Medical Director and
facility directors or their designees are authorized to approve
absences for employees who have been required to serve long hours
in the care and treatment of patients.
This section is within the duty to bargain because it
preserves management's right to determine whether or not to
approve absences. Moreover, to the extent that the section does
not specify a particular management official who is authorized to
approve absences but, rather, permits the named officials or
their designees to do so, Section 2 does not conflict with the
right to assign work. See Fort Stewart (Georgia) Association of
Educators and Fort Stewart Schools, 28 FLRA 547, 556 (1987)
(Proposal 3) (Fort Stewart Schools), petition for review filed
sub nom. Fort Stewart Schools v. FLRA, No. 87-8734 (llth Cir.
Sept. 22, 1987).
3. Section 3
Section 3 authorizes absences for employees who undergo
various types of professional examinations. We find this section
to be nonnegotiable for the same reason as Proposal 2, Section 5
(which would have required that administrative leave be granted
for employees to undergo examinations by an approved speciality
or certification board without regard to patient care needs). By
mandating that leave be granted to employees without regard to
the necessity for the services of such employees in
meeting patient care needs, Section 3 interferes with
management's right to assign work under section 7106(a)(2)(B).
4. Sections 4, 5, 6, 8 and 9
Section 4 authorizes absences for employees who are required
to undergo various types of medical examinations. Section 5
authorizes absences for medical treatment. Section 6 authorizes
absences for administratively required vaccinations and
immunizations. Section 8 authorizes absences for employees who
are required to appear before Federal Boards, VA Boards and
Committees. Section 9 authorizes absences for employees in
emergency suspension situations.
We find these sections to be within the duty to bargain.
They are consistent with the Agency's regulations and do not
require particular management officials to act. Moreover, various
portions of these sections indicate that leave will be authorized
only after management already has approved an employee's absence
from work. For example, Section 4 provides for no charge to leave
for employees who are designated by proper VA authority to
undergo or report for examinations and Section 6 provides no
charge to leave for employees who undergo "administratively
required vaccinations or immunizations." see our discussion of
Proposal 23, subsections d and h in Fort Bragg Schools, 30 FLRA
508, 527-31.
5. Section 7
Section 7 authorizes excused absences for examinations for
employees who are injured in the performance of their duties. The
Agency makes no specific claim that this section interferes with
its right to assign work. This section merely concerns the type
of leave that will be authorized--after the employee's absence
from work has been authorized--when an employee receives an
examination for work-related injuries. Accordingly, we find
Section 7 to be negotiable.
VIII. Proposal 6
Articles 14(a) - Leave as it applies to Title 38
Holidays
The text of the proposal is found in the Appendix.
A. Positions of the Parties
No specific arguments were made by the Agency to the various
sections of the proposal. The Agency's general arguments
concerning this proposal have been rejected in Part II of this
decision.
The Union claims that Proposal 6 constitutes a negotiable
procedure and does not violate any management rights. The Union
further argues that Sections 1 and 8 are consistent with law and
Government-wide regulations.
B. Analysis and Conclusions
We find that this proposal is within the duty to bargain.
Section I states that holidays for VA employees will be those
established by statute or Executive Order. Section 2 provides
that management acknowledges that more liberal leave approval may
be appropriate on days preceding and following holidays. Section
3 states that there will be no restrictions on unit employees in
applying for scheduled vacations which include both Christmas and
New Year's Day. Section 7 provides that an employee who works on
a holiday will be paid under controlling regulations and/or law.
Sections 8 states the Agency's policy concerning leave for the
observance of religious holidays and describes the circumstances
under which an employee may work compensatory tine rather than
use annual leave or LWOP in order to be absent on religious
holidays. Section 9 provides for authorized absences on state and
local holidays when "it is determined that Federal work" may not
be properly performed as provided in the Agency's regulations.
In reaching our conclusion that these sections are within
the duty to bargain, we find that Section 1 is consistent with
the Agency's regulation which, by its own terms, identifies
holidays as those designated by Federal statute or Executive
Order. Section 2 is negotiable because it does not require the
Agency to approve leave before and after holidays but merely
states that leave approval may be appropriate. Section 3 simply
allows employees to apply for scheduled leave which includes both
Christmas and New Year's Day. Management would be free to deny
the leave request. Therefore, Section 3 preserves management's
right to take into account its patient care needs when granting
leave for those particular holidays.
Section 4 provides initially for a grouping of holidays
where 24-hour, 7 day-a-week staff is necessary. The section
further provides that the scheduling of holidays off within
22 each group will be equitably distributed in accordance with
the provisions of Section 6 and as staffing and workload
requirements permit. Section 6 sets forth a method for resolving
conflicts in holiday scheduling. These sections are negotiable
because they allow for the scheduling of holidays off in
accordance with staffing and workload requirements.
Section 5 establishes a procedure by which employees may
request holidays off in connection with annual leave. It does not
require management to grant such leave.
Sections 7, 8 and 9 are negotiable because they each require
conformance with controlling laws and/or regulations. Thus,
section 7 provides that employees who work on holidays will be
paid under controlling regulations and/or laws. Section 8
contains a general statement as to the Agency's policy of
permitting employees, when practicable, to be absent from work in
order to observe religious holidays. It allows employees to work
compensatory overtime specifically in accordance with law and
applicable regulations. Section 9 provides that when a decision
is made to close a facility on a state or local holiday because
no Federal work can be properly performed, as determined under
Agency regulations, employee absences will not be chargeable to
leave. Since these sections allow management to act in a manner
that is consistent with law and regulations, the sections are
within the duty to bargain.
IX. Proposal 7
Article 14 (a) - Leave as it Applies to Title 38
Leave Without PAY
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The sole objections the Agency raises as to this proposal
are those rejected in Part II.
The Union states that the proposal concerns employee
requests for LWOP. The Union further contends that the proposal,
with the exception of part of Section 2 and Section 6, provides
for Agency approval or disapproval of the LWOP requests and,
consequently does not prevent management from acting at all. The
Union indicates that Section 2 covers disabled veterans who are
entitled to leave under Executive Order 5396 and reservists and
National Guardsmen who are entitled to LWOP, if
necessary, to perform military training, which is consistent with
38 U.S.C. SS 2024(d). The Union also contends that Section 6
provides for incremental charges of LWOP which was found
negotiable in American Federation of Government Employees, AFL -
CIO, Local 2875 and Department of Commerce, National Oceanic and
Atmospheric Administration, National Marine Fisheries Service,
Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA
441, 446 (1981) (Proposal 4).
B. Analysis and Conclusions
Sections 1, 2, 4 and 7 concern the conditions for the
granting of LWOP. Section 2 states that the authorization of LWOP
is a matter of "administrative discretion" and thus an employee
cannot "demand LWOP except in the case of disabled veterans who
are entitled to LWOP if necessary for medical treatment under
Executive Order 5396; and reservists and National Guardsmen who
are entitled to LWOP if necessary to perform military training
duties." Section 4 states that employees who are disabled on the
job and file a claim with the Office of Workers' Compensation
Programs or who make application for disability retirement may be
granted LWOP without priorapproval of the Central Office for the
entire period of absence from duty.
With the exception of the special cases noted in Sections 2
and 4, the proposal does not require the Agency to grant LWOP
without consideration of its need to require an employee to
remain on duty to perform necessary work. In fact, Section 7
specifically addresses the Agency's patient care needs. Rather,
the proposal gives the Agency discretion as to whether or not to
grant LWOP. The two exceptions noted in Section 2 require that
disabled veterans must be granted LWOP consistent with Executive
Order 5396 and that reservists and National Guardsmen are
entitled to LWOP to perform military training duties which,
according to the Union, is consistent with 38 U.S.C. SS 2024(d).
In these situations, the Agency's discretion to grant LWOP is
limited by applicable law.
The exception in Section 4 grants LWOP to employees who have
made application for workmens' compensation or disability
retirement without prior Central Office approval. Section 4 does
not require that such leave be approved.
Since we find that section 2 is consistent with applicable
laws and that Sections 1, 4 and 7 do not interfere with
management's rights, we conclude that Sections 1, 2, 4 and 7 are
negotiable. See Veterans Administration Staff Nurses
Council, Local 5032, WFNHP, AFT, AFL - CIO and Veterans
Administration Medical Center, Wood, Wisconsin, 29 FLRA 849, 866
(1987) (Proposal 11) (VA Medical Center, Wood), petition for
review filed sub nom. Veterans Administration Medical Center,
Wood, Wisconsin v. FLRA, No. 87-1740 (D.C. Cir. Dec. 2, 1987)
and Fort Bragg Schools, 30 FLRA 508, 525-31 (Proposal 27).
Compare VA Medical Center, North Chicago, 27 FLRA 714, 730-32
(Proposal 6, Section 8 requiring the agency to grant LWOP pay to
union officials for up to 1 year regardless of work needs found
nonnegotiable because it did not leave any discretion with the
agency to deny such requests).
Section 3 states that LWOP for 30 days or less may be
approved by the Facility Directors or their designees and LWOP
for more than 30 days must be approved by the Chief Medical
Director or his designee. Section 3 does not designate a
particular Agency official to grant or refuse to grant LWOP but,
rather, permits the Agency to designate who will act. Therefore,
the proposal does not interfere with management's right to assign
work. See our discussion of Proposal 5, Section 2.
Section 5 describes the procedure that an employee must
follow to substitute LWOP for annual and sick leave or vice versa
after LWOP has been authorized in circumstances where the
employee is disabled on the job and files a claim for worker's
compensation or disability retirement. This section only concerns
the procedures used in substituting leave after management has
already approved an employee's absence from work. See Proposal 11
in VA Medical Center, Wood, 29 FLRA 849, 866. Accordingly, we
find Section 5 to be negotiable.
Section 6 sets forth the minimum amount of time that
employees may be charged for LWOP. It is consistent with the
Agency's regulations. The Agency made no specific claims
concerning this section and it is not otherwise apparent that
this section is inconsistent with any management rights under
section 7106 of the Statute. Accordingly, we find Section 6 to be
negotiable.
Section 8 requires the Chief of Service to inform employees
who have been on LWOP for more than 30 days what their rights
are on returning to work. We find this section to be outside the
duty to bargain for two reasons. First, to the extent the section
requires the Chief of Service to take certain action, the section
is inconsistent with management's right to assign work under
section 7106(a)(2)(B). See our discussion concerning Proposal 2.
Second, the section requires the Agency to make every effort to
return an employee coming back from a period of LWOP to the
facility which granted the LWOP. The only exception to
this would be when the employee requests reassignment to another
facility, there is a suitable vacancy, and both facilities agree
to the reassignment. This portion of Section 8 violates
management's right to assign work by requiring management to make
every effort to return an employee to the facility which granted
the LWOP, except under limited circumstances. Management would
thus be unable to reassign an employee returning from LWOP to
whatever facility management decides to place the employee.
Moreover, to the extent that management would have to make every
effort to return the employee, the section would impermissibly
impose a substantive condition on management's right to assign
work. See VA Medical Center, Ft. Lyons, 25 FLRA 803, 820.
X. Proposal 8
Article 14(a) - Leave as it Applies to Title 38
Tardiness and Brief Absences
Section 1. Brief absences from duty of less than one hour
and tardiness may be excused when the reasons are justifiable to
the supervisor. If not excused, the supervisor must determine a
proper action concerning the lost time. This would include
arranging for the time to be made up, an appropriate charge to
leave or AWOL, and possible disciplinary action as the
circumstances warrant.
Section 2. Tardiness or Absence for Part of the Day. A
full-time physician, dentist, podiatrist, or optometrist will be
charged a full day's leave for absence for a part of a day,
unless the absence is excused by officials authorized to approve
leave. This authority to approve absence for tardiness and
absence for portions of a day will be exercised only when such
absence from duty is of short duration and will not be
interpreted to cover absences of a major portion of the day
wherein annual or sick leave should be properly charged.
A. Positions of the Parties
The Agency made only general arguments that were rejected in
Part II of this decision. The Union claims that the decision as
to whether to excuse tardiness and brief absences would be
retained by the Agency by Section 1 and the section is,
therefore, negotiable. In support of its position, the Union
cites to the Authority's decision in National Labor Relations
Board, Region 5 and National Labor Relations Board Union, Local
5, 2 FLRA 328 (1979) (NLRB, Region 5). As to the negotiability
of Section 2, the Union indicates that it provides for
incremental charges to leave.
B. Analysis and Conclusions
For the reasons discussed below, we find that Section 1 is
outside the duty to bargain. Section 2, however, is within the
duty to bargain.
Section 1 provides that tardiness and brief absences from
duty may be excused when the reasons for such absences are
acceptable to the supervisor. The section further provides that
the supervisor take certain actions when brief absences or
tardiness are not excused. Since Section 1 designates the
supervisor as the management official who must perform these
tasks, the section violates management's right to assign work
under section 7106(a)(2)(B). See U.S. Army Missile Command, 27
FLRA 69, 81.
If this defect were cured, we would find Section I to be
within the duty to bargain. Similar proposals authorizing excused
absences for occasional periods have been found to be within the
duty to bargain. See, for example, NLRB, Region 5 (proposal
authorizing excused absence of up to 30 minutes per pay period
per employee for occasional and unavoidable tardiness in
reporting to work) and Overseas Education Association, Inc. and
Department of Defense Dependents Schools, 29 FLRA 734, 750
(1987), petition for review filed sub nom. Overseas Education
Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Oct. 14, 1987)
(Proposal 10 - use of excused absences for brief, occasional
periods when various activities could not be accomplished outside
the duty day). But see Fort Bragg Schools, 30 FLRA 508, 546
(Proposal 42 -permitting employees to have up to 30 paid minutes
per day to engage in nonwork personal activities violates
management's right to assign work by requiring management to
assign specific duties to be accomplished during the last 30
minutes per day in order to prevent the employees from leaving
early).
Section 2 does not designate which management official is
authorized to approve leave. Rather, it simply states that
officials authorized to approve leave may grant excused absences
when they are of short duration. The Agency is free to determine
who those authorized officials will be. The Agency also retains
the discretion to grant or deny the excused absence in
the first instance. Accordingly, we find Section 2 to be within
the duty to bargain.
XI. Proposal 9
Article 14 (a) - Leave as it Applies to Title 38
Unauthorized Absence
Section 1. Unauthorized absence is any absence from duty
which has not been approved. An employee who is absent without
approval for any cause will explain to the person authorized to
approve leave, at the earliest practicable time, the cause of
this absence and the failure to ask for permission to be absent.
If it is found that the employee was absent without sufficient
cause, or that the failure to obtain permission to be absent is
not satisfactorily accounted for, the time lost will be counted
as unauthorized absence and pay will be forfeited in the
applicable amount.
Section 2. Charging Unauthorized Absence. The minimum charge
for unauthorized absence for full-time (nonphysician facility
Directors) physicians, dentists, residents, podiatrists, and
optometrists is 1 calendar day. The minimum charge for authorized
absence for full-time nurses, (nurse anesthetists) PAs and EFDAs
and part-time employees is 15 minutes and multiples thereof.
A. Positions of the Parties
The Agency made no specific arguments with respect to this
proposal. The Union argues that the proposal concerns a
negotiable procedure.
B. Analysis and Conclusions
We agree with the Union that the proposal is a negotiable
procedure concerning unauthorized absences. Section 1 merely
defines an unauthorized absence, the manner in which an employee
will report such absence and the consequences which flow from
such absence. Section 2 describes the incremental charges of
unauthorized absence for various types of employees. No argument
has been made that this proposal is inconsistent with any law,
rule or regulation and none is apparent to us.
Therefore, it is within the duty to bargain.
XII. Proposals 10 and 11
Article 14 (a) - Leave as it Applies to Title 38
Proposal 10
Military Leave - Employees will be granted military leave in
accordance with 5 USC 6323. Employees will be provided advice on
leave benefits by the Personnel Office upon request.
Proposal 11
Court Leave - Court Leave will be administered in accordance
with appropriate statutes and regulations.
On presentation, by a Veteran employee who has a service
connected disability or any other disability, of a Statement from
a medical authority that treatment is required, annual leave or
sick leave will be granted, if available; otherwise,
leave-without-pay will be granted. The granting of such leave is
mandatory provided that the Veteran gives prior notice of
definite days and hours of absence for medical treatment.
A. Positions of the Parties
The Agency made no specific arguments with respect to these
proposals. The Union argues that they do not interfere with the
exercise of any management rights and that they are consistent
with applicable laws and regulations.
B. Analysis and Conclusions
Except for the second paragraph of the proposal on court
leave, we find Proposals 10 and 11 to be within the duty to
bargain. The proposals by their terms are consistent with law and
regulation and are therefore within the duty to bargain.
The second paragraph of Proposal 11 refers to the granting
of leave to enable veterans with disabilities to obtain medical
treatment and not court leave. Neither party specifically
addresses the applicability of this paragraph to court
leave, the heading under which the paragraph appears. Thus, in
the absence of any arguments concerning (1) the applicability of
this paragraph to court leave or (2) the manner in which this
paragraph is intended to be implemented, we find that the record
does not establish a sufficient basis on which to make a
negotiability determination. Therefore, we dismiss the appeal as
to this paragraph.
XIII. Proposal 12
Article 14(a) - Leave as it Applies to Title 38
Approval/Disapproval of Leave Requests Employees will be
informed whether requested leave is approved or disapproved. Upon
request, employees will be furnished the reasons for disapproval
in writing.
The use of properly requested and approved leave shall not
be a negative factor in an employee's performance rating.
A. Positions of the Parties
The Agency argues that Proposal 12 violates management's
right to assign work by prescribing rating elements or factors to
be considered in an employee's rating.
The Union contends that Proposal 12 constitutes an
appropriate arrangement for employees adversely affected by the
exercise of management's right to assign work. More particularly,
the Union claims that the proposal would not prevent the Agency
from approving or disapproving leave or from using leave as a
factor in a performance rating. Rather, the proposal is simply
designed to prevent management from retaliating against an
employee, who has properly requested and been granted leave, by
rating that employee unsatisfactory because of the employee's use
of leave.
B. Analysis and Conclusions
The Agency raises no objection to the first paragraph of the
proposal and we find no basis for holding it to be nonnegotiable.
The paragraph imposes no burden on the Agency's right to assign
work. Rather, it merely obligates the Agency to inform affected
employees of its decision to grant or deny a leave request and,
upon an employee's request, to furnish in writing the reasons for
its decision. Hence, contrary to the Agency's view, the first
paragraph in no way interferes with the right to
assign work under section 7106(a)(2)(B) of the Statute, but,
rather, is a negotiable procedure under section 7106(b)(2).
The second paragraph provides that employees' performance
ratings will not be affected adversely by the use of officially
approved leave. As we stated in connection with Proposal 4,
Section 1, the granting or denial of specific leave requests are
matters left to management's discretion. The discretion to grant
or deny leave is a component of management's right to assign work
under section 7106(a)(2)(B) of the Statute. See, for example,
FDIC, Madison Region, 21 FLRA 870, 873-4, (Proposal 2). Here,
however, the paragraph's scope is limited to the ramifications
for an employee of management's decision to grant requested
leave. If management needs to have work performed during a period
for which an employee has requested leave, management may deny
the request or revoke a previously granted request. Therefore,
the second paragraph does not involve the right to assign work
because the Agency retains the unfettered discretion to grant or
deny leave applications.
The Agency claims that the second paragraph infringes on its
managerial authority to establish "rating elements or factors" to
be applied in evaluating employee performance. We find that the
Agency has not demonstrated that this paragraph interferes with
its right to establish rating elements or factors.
Performance standards are intended to establish the minimum
level of job performance required of an employee in carrying out
his or her assigned responsibilities. Critical elements are those
components of a job which are sufficiently important that failure
to attain the prescribed level of performance requires remedial
action. National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769, 774 (1980),
(Bureau of the Public Debt), aff'd sub nom. National Treasury
Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The
second paragraph does not prescribe the level of performance
necessary to perform assigned work adequately nor does it require
that any specified factors or elements be used in rating
performance. Rather, the paragraph applies only after management
has exercised its right to grant leave on request.
Accordingly, we find the proposal's second paragraph, and
the proposal as a whole, to be consistent with management's right
to assign work under section 7106(a) (2)(B). The proposal,
therefore, is within the duty to bargain.
XIV. Proposal 13
Article 14(a) - Leave as it Applies to Title 38
Use or Lose Leave
Management agrees to assist employees in scheduling leave in
an effort to avoid forfeiture of annual leave. Such assistance
will include a written notice to employees on or before June 1,
of each year. Such notice will advise employees of the importance
of requesting an adequate amount of leave to avoid the loss of
leave.
A. Positions of the Parties
The Agency makes no specific arguments with respect to this
proposal. The Union claims that the proposal is merely a
procedural requirement to notify employees of the importance of
requesting leave in order to avoid the loss of leave.
B. Analysis and Conclusion
We agree with the Union that this proposal constitutes a
negotiable procedure. The proposal simply requires the Agency to
notify employees of the potential for forfeiting annual leave and
to assist them in scheduling their use of annual leave so that
they will not forfeit such leave. The proposal does not require
any particular management official to act, nor does it require
the approval of annual leave. Since no basis for finding the
proposal nonnegotiable has been argued or established and since
none is otherwise apparent to us, we find Proposal 13 to be
within the duty to bargain.
XV. Proposal 14
Article 14(a) - Leave as it Applies to Title 38
Maternity/Paternity Leave
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency's sole claims concerning this proposal have been
rejected in Part II of this decision.
The Union contends that this proposal provides the basis for
employees' receiving leave for maternity or paternity reasons.
According to the union, this proposal does not require the Agency
to approve leave for these reasons and the Agency is not
prevented from denying the leave requests.
B. Analysis and Conclusions
Section 1 of Proposal 14 merely provides that sick, annual
or LWOP may be granted as appropriate for maternity or paternity
reasons. Nothing in this section requires the Agency to grant
such leave. Rather, the Agency retains discretion to grant such
leave, or to rescind a prior authorization for such leave. Thus,
since the Agency has raised no objection to this section and no
violation of management's rights is otherwise apparent, we find
Section 1 to be negotiable.
Section 2 sets out general policy regarding the employment
of pregnant employees. The Agency has made no claim that this
section is in any manner inconsistent with law, rule or
regulation and since no inconsistency is otherwise apparent, we
find this section to be within the duty to bargain.
Section 3 imposes no obligation on management. Rather, it
concerns the manner in which a pregnant employee will inform the
Agency of her pregnancy and physical condition. Under Section 3,
the Agency is free to determine the employee's medical fitness
for continued duty. Finally, Section 3 recognizes that the
determination of continued fitness for duty varies from
individual to individual. We find that since the Agency has made
no claim that this section is inconsistent with any law, rule or
regulation and since no inconsistency is otherwise apparent, the
section is within the duty to bargain.
Section 4 provides that employees will be granted
accumulated and accrued sick leave consistent with medical need
due to pregnancy, when it has been established that the employee
is unable to perform her duties. Under this section the Agency
would not be required to grant sick leave in circumstances where
the employee was fit for duty. The section limits the
requirements to grant sick leave only where it has been
established that the employee is unable to perform work due to
pregnancy. Finally, the last sentence only indicates that
advanced sick and annual leave and LWOP may be authorized. There
is nothing in this sentence which requires the Agency to grant an
employee advanced leave or LWOP. Since the Agency has
made no claim that this section violates law, rule or regulation
and no violation is apparent, we find the section to be within
the duty to bargain.
Section 5 merely provides that employees be notified of
their right to use accumulated sick leave. Again, the Agency made
no specific claim that this section violates any law, rule or
regulation, and since no violation is apparent, we find this
section also to be within the duty to bargain.
Accordingly, Proposal 14 is within the duty to bargain.
XVI. Proposal 15
Article 14(a) - Leave as it Applies to Title 38
Teaching
Section 1.
Full-time employees may accept teaching responsibilities in
private and public colleges and universities, provided the
teaching obligations do not conflict with the performance of
their duties in DM&S. Absences resulting from such teaching
assignments if no remuneration is involved may be excused without
charge to leave.
A. Positions of the Parties
The Agency makes no specific arguments concerning leave for
the purpose of accepting teaching responsibilities, except for
its general arguments that the VA has the sole authority to
determine working conditions for DM&S employees and that its
regulations have the force and effect of law, which we rejected
in Part II of this decision.
The Union asserts that this proposal would allow full-time
employees to accept teaching responsibilities outside the VA if
there is no conflict with their duties for the VA. The Union
claims that the VA may authorize excused absences instead of
charging the employee with leave. Such excused absences could be
administrative leave, which is within the Agency's discretion to
grant. According to the Union, this proposal would not prevent
the Agency from exercising its rights. The Union relies upon
National Federation of Federal Employees, Local 1429 and U.S.
Department of the Army, Letterkenny Army Depot, 23 FLRA 117
(1986) in support of its contention.
B. Analysis and Conclusions
This proposal is negotiable. Based on the wording of the
proposal and the Union's explanation, the first sentence of the
proposal gives management the discretion to determine whether an
employee can accept a teaching assignment which would require the
employee to be released from work. The second sentence of the
proposal provides that an employee who has accepted such a
teaching assignment may have an absence incurred in connection
with that assignment excused without charge to leave if such
excused absence does not involve remuneration. The question of
whether an employee is entitled to excused absence arises only
after management has made a prior determination that the
employee's teaching assignment is consistent with its work
requirements. Thus, this proposal is negotiable. See VA Medical
Center, Wood, 29 FLRA 849, 866 (1987) (Proposal 11) (where we
found negotiable a proposal which provided employees with the
option of substituting sick leave or annual leave for time (off
work) which would otherwise be charged to LWOP, because the
employee's option arose after management had already made the
decision that the employee might be released from work).
XVII. Proposal 16
Article 14(a) - Leave as it Applies to Title 38
Vacations
Section 1. All employees are encouraged to plan vacations
each year. Management will make every effort to accommodate the
employee's desires, consistent with workload and staffing needs.
The procedures for scheduling requests for annual vacation leave
of five days or more will be left to local supplementary
bargaining.
Section 2. In areas where 24 hour, 7 day per week staffing
is necessary, Management agrees to make a reasonable effort to
honor an employee's request for two scheduled days off before and
after a vacation period.
Section 3. Any management directed movement of an employee
from one work location to another which results in a change in
leave group will not result in loss of an employee's use of
approved leave, where it is practical to make other arrangements.
A. Positions of the Parties
The only arguments advanced by the Agency concerning this
proposal were those discussed and rejected in Part II.
The Union contends that Proposal 16, allowing employees to
plan vacations with Agency approval, is procedural in nature and
does not prevent the Agency from acting.
B. Analysis and Conclusions
Section 1 of Proposal 16 encourages employees to plan
vacations each year and requires management to make every effort
to accommodate employees' decisions consistent with workload and
staff needs. This proposal is, therefore, distinguishable from
those involved in VA Medical Center, Dayton, 28 FLRA 435, 467
(Proposal 16), and VA Medical Center, Ft. Lyons, 25 FLRA 803,
818 (Proposal 4). In these cases we found that proposals that
included the phrase "management will make every effort" placed a
substantive condition on management's rights to assign work and
assign employees and thus were nonnegotiable. However, Section 1
requires management to make every effort to accommodate the
employee's desires consistent with workload and staffing needs.
Accordingly, management's rights to assign work and employees are
not infringed by Section 1. We, therefore, find Section 1 to be
negotiable.
Section 2 requires management to make "a reasonable effort"
to honor an employee's request to extend his or her vacation
period by adding two scheduled days off both before and after the
vacation leave. The section is applicable to employees working in
areas where 24 hour, 7 day per week staffing is necessary. We
find that Section 2 constitutes a negotiable procedure under
section 7106(b)(2) of the Statute to be followed by management in
granting or denying employees' requests that scheduled days off
occur at specific times. The section obligates management to
exert a reasonable effort to grant such requests in the context
of its around-the-clock operations. The section does not
interfere with management's scheduling of work, nor does it
require the granting of an employee's request if workload or
staffing needs dictate otherwise. Accordingly, Section 2 is
within the duty to bargain. See Tidewater Virginia Federal
Employees Metal Trades Council, AFL - CIO and Norfolk Naval
Shipyard, 31 FLRA No. 18 (1988) (Provisions 5 and 6).
Section 3 provides that when an employee has leave approved
and subsequently changes work locations and leave group, at the
direction of management, the leave will not be lost
when it is practical to make other arrangements. We find this
section to be negotiable because it does not require that the
leave be granted. Rather, the use of leave is dependent on
whether other arrangements practically can be made. The Agency
would, thus, be able to determine whether its workload and
staffing needs can be met by such other arrangements. Therefore,
we find Section 3 to be within the duty to bargain.
XVIII. Proposal 17
Article 14(a) - Leave as it Applies to Title 38
Disposition of Leave on Retirement
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The sole claims raised by the Agency concerning this
proposal have been rejected in Part II of the decision.
The Union argues that this proposal does not violate any
management rights and that the proposal is consistent with
Government-wide regulations.
B. Analysis and Conclusions
Except for the last sentence in the third paragraph of
Section 2B, Proposal 17 is within the duty to bargain. Subsection
1A of this proposal merely states that an employee's application
for disability retirement is not to be interpreted as the
employee's intention not to return to duty.
Subsection 1B only indicates that sick leave may be granted
to an employee pending a decision by the Office of Personnel
Management (OPM) on a claim for disability retirement.
Neither of these subsections, which are restatements of the
Agency's regulations, requires management to act in any manner
inconsistent with its section 7106 rights. Since the Agency has
made no claim that these subsections are otherwise inconsistent
with any law, rule or regulation and no inconsistency is
otherwise apparent, these subsections are within the duty to
bargain.
Section 2 of Proposal 17, also a restatement of the Agency's
regulations, describes the disposition of advanced and accrued
leave in various circumstances, including optional and
disability retirement, restoration after military service,
separation for advocating the overthrow of the Government, and
death. The Agency makes no claim that this section is
inconsistent with any law, rule or regulation, including the
Statute, and no inconsistency is otherwise apparent.
However, we note that the third paragraph of Section 2B,
headed "Indebtedness for Advanced Leave on Separation From the
Service," in its last sentence, prescribes a specific function to
be carried out by the "Fiscal Service." We previously have held,
in this decision and in other cases, that management retains the
right to determine which organizational element or group will be
assigned specified tasks and duties. See our discussion at Part
II of this decision. Therefore, the last sentence of that
paragraph, although its defect can readily be cured, is outside
the duty to bargain as currently written. With the exception of
the cited sentence, Section 2 is within the duty to bargain.
XIX. Proposal 18
Article 17 - Proficiency Ratings (For Title 38 Employees
The text of this proposal is found in the Appendix.
A. Positions of the Parties
In addition to the general arguments rejected in Part II of
this decision, the Agency argues that Section 2 is nonnegotiable
because it requires a particular management official to perform
work.
The Union argues that the proposal is negotiable as a
procedure for keeping employees informed of management's
expectations and management's assessments of employee
performance.
B. Analysis and Conclusions
Section 1 of the proposal sets forth the purposes of the
proficiency-rating system, which include informing employees of
management's expectations and assessments and providing
information to be considered in the granting of promotions.
Section 3 would provide that proficiency ratings be rendered
annually, unless delayed in accordance with the Agency's
regulations. Section 4 would require that new employees
be provided with the performance elements on which they are to be
rated, and would stipulate that all employees should be informed
if their performance elements change. Section 5 requires
supervisors to counsel employees regularly on their performance.
Section 6 provides for a 90-day notice and counseling period
before the annual rating for employees performing
unsatisfactorily.
We conclude that, except as noted below, the proposal
establishes a negotiable procedure, under section 7106(b)(2),
which management will follow before making a final appraisal of
an employee's performance. Section 1, which is a statement of
purpose of proficiency ratings, and Section 3, which provides for
annual ratings, essentially are the same as provisions of the
Agency's own regulations, and present no conflict with
management's section 7106(a) rights. Similar provisions have been
found to be negotiable as procedures under section 7106(b)(2).
See VA, Bronx Medical Center, 30 FLRA 706, 749 (Proposal 18).
The first sentence of Section 4, which would require that new
employees be told of the performance elements on which they are
to be rated, likewise presents no conflict with management
rights. We have found similar language to be within the duty to
bargain. See VA Medical Center, Dayton, 28 FLRA 435, 447
(Proposal 7). The second sentence of Section 4, which states that
all employees should be informed if their performance elements
change, also is negotiable, as the decision to change performance
elements would remain solely within the Agency's discretion. See
VA Medical Center, Martinsburg, 27 FLRA 239, 255 (Proposal 4).
Section 5 and the second sentence of Section 6 provide
explicitly that supervisors shall perform the counseling. We have
held consistently that proposals requiring an agency to assign
specific tasks to supervisors and management officials violate
management's section 7106(a)(2)(B) right to assign work. See our
discussion concerning Proposal 2. To the extent that Section 5
and the second sentence of Section 6 require supervisors to
counsel employees, they are outside the duty to bargain. However,
if the requirement that supervisors perform the counseling were
removed, we would find these sections to be within the duty to
bargain. Thus, as revised, they merely provide for the counseling
of employees before the final proficiency rating is rendered and,
therefore, are negotiable procedures. See American Federation of
Government Employees, AFL - CIO, National Council of VA Locals
and Veterans Administration, 29 FLRA 515, 538 (1987) (Proposal
8).
XX. Proposal 19
Article 20 - Disciplinary Action for Title 38 Employees
The text of this proposal appears in the Appendix.
A. Positions of the Parties
The Agency asserts that 38 U.S.C. 4110 establishes the
exclusive disciplinary and adverse action procedure for VA
employees. Thus, the Agency concludes that it is under no
obligation to bargain concerning such disciplinary and adverse
action appeals.
The Agency also made specific arguments concerning the
following sections of Proposal 19. The Agency claims that Section
I of the proposal directly conflicts with 38 U.S.C. 4110 by
limiting the types of disciplinary action which may be taken
against employees under law. The Agency argues that Sections 3,
4, 6, 7 and 8 add procedural requirements in disciplinary actions
which are not authorized in law or VA regulations. In addition,
the Agency argues that Section 7, by limiting the disciplinary
board membership to three members, is inconsistent with 38 U.S.C.
4110 which provides for three to five members. Further, the
Agency argues that by including probationary employees within its
coverage, Section 7 is also inconsistent with 38 U.S.C. 4101(1)
which provides coverage only for permanent employees. Finally,
the Agency argues that by mandating progressive discipline,
Section 7 is inconsistent with Agency regulations which provide
instead for like penalties for like offenses.
The Union asserts that Proposal 19 is consistent with the
requirements of 38 U.S.C. 4110. The Union notes that Proposal 1,
the proposed negotiated grievance procedure, specifically
excludes disciplinary actions for Title 38 employees from its
scope. The Union acknowledges that employees charged with
inaptitude, inefficiency, or misconduct must appeal through the
peer board review system established by 38 U.S.C. 4110. The Union
concludes that Proposal 19 does not present an alternative to 38
U.S.C. 4110, and that the implementing procedures in the proposal
are not inconsistent with the mandates of section 4110. The Union
also argues that the Agency has made no claim that a compelling
need exists for its regulations.
B. Analysis and Conclusions
This proposal establishes various procedural protections to
be afforded to employees who may be subject to discipline under
38 U.S.C. 4110. Among other things, 38 U.S.C. 4110 provides that
the "Chief Medical Director" shall appoint disciplinary boards
consisting of not less than three nor more than five employees,
senior in grade, "to determine upon notice and fair hearing,
charges of inaptitude, inefficiency, or misconduct.,
We find that the Agency has not established that 38 U.S.C.
4110 precludes the negotiation of procedures to be afforded to
employees in a "fair hearing." Nothing in 38 U.S.C. 4110 provides
that the VA Administrator has the sole right to determine the
procedures necessary to implement the requirements of 38 U.S.C.
4110. Thus, unless the particular procedure sought to be
negotiated conflicts with the requirements of 38 U.S.C. 4110 or
is otherwise inconsistent with law, rule or regulation, including
the Statute, the procedures are negotiable under section
7106(b)(2) of the Statute. See VA, Bronx Medical Center, 30 FLRA
706, 732 (Proposal 11) and the cases cited therein.
1. Section 1
Both sentences of Section I are nonnegotiable.
Regarding the first sentence of the proposal, 38 U.S.C.
4110(d) provides that disciplinary boards may recommend "suitable
disciplinary actions, within limitations prescribed by the
Administrator, which shall include reprimand, suspension without
pay, reduction in grade and discharge." Sentence 1 of the Union's
proposal, however, limits the Agency's right to take other
disciplinary actions which the Administrator deems to be
"suitable." For example, the Agency asserts, without
contravention, that the courts have upheld its right to use
transfers as a disciplinary action. See Moore v. Custis, 736 F.2d
1260 (8th Cir. 1984). Thus, by limiting the Agency's right to
impose disciplinary actions other than those listed, sentence 1
is inconsistent with 38 U.S.C. S 4110(d).
The second sentence of Section 1 provides that disciplinary
action will not be taken in cases of error of professional
judgment where negligence is not involved or in cases of
differences of professional opinion. We conclude that the second
sentence of Section I is outside the duty to bargain as it
violates management's right under section 7106(a)(2)(A) of the
Statute to take disciplinary action by placing
limitations on the scope of what constitutes employee activity
for which disciplinary action is suitable. See VA, Bronx Medical
Center at Proposal 11, part 2 and the cases cited therein.
2. Sections 3 and 4
Section 3 of the proposal includes requirements that an
employee who is alleged to have committed an offense is to be
questioned; that signed statements are to be obtained; that
additional evidence is to be developed to reconcile conflicting
statements; that there be documentation of all evidence;that all
action is to be initiated in a reasonable time after the
preliminary investigation; that supervisory notes would not be
admissible in a disciplinary proceeding unless they had been
shown to the charged employee in a timely manner; and that the
Union be given the opportunity to have a representative present
at any examination in an investigation that may result in a
disciplinary action. The first sentence of Section 3 provides
that a preliminary investigation ordinarily will be initiated by
the appropriate line supervisor. We find that this term leaves
management with the right to determine specifically which
management official will actually conduct such a preliminary
investigation.
Section 4 of the proposal specifies the content of letters
of admonishment and reprimand; provides that the employee will
have the right to be represented by a Union representative at any
discussion with the supervisor who conducted the preliminary
investigation provided for in Section 3 when the employee is
given a letter of admonishment or reprimand, with the Union being
given a reasonable opportunity to provide such a representative;
and provides options as to which official shall act upon the
appeal of an admonishment or reprimand. We find that the use of
the term "supervisor" in Section 4 refers back to the management
officials mentioned in Section 3 to conduct a preliminary
investigation.
The Agency's contention concerning Sections 3 and 4 is that
they add additional procedural requirements not found in 38
U.S.C. 4110 or the Agency's implementing regulations. However,
the Agency does not contend that there is a compelling need for
the regulations as written, that these sections of the proposal
interfere with any management right within the meaning of section
7106 of the Statute, or that the additional requirements are
otherwise contrary to law, rule or regulation.
We conclude that Sections 3 and 4 merely establish
procedures which further implement the requirements of 38 U.S.C.
4110, and that they do not conflict with any portions of 38
U.S.C. 4110 or with the Agency's right to discipline employees
pursuant to section 7106(a)(2)(A) of the Statute. Therefore,
Sections 3 and 4 of the proposal are negotiable procedures within
the meaning of section 7106(b)(2) of the Statute and are within
the duty to bargain.
3. Section 5
Section 5 provides that suspensions, demotions, or
discharges will be acted upon by a Central Office Screening Board
and a Disciplinary Board. By requiring that the Central Office
Screening Committee will act upon suspensions, demotions, or
discharges, Section 5 is outside the duty to bargain as it
assigns specific responsibilities to an arm of management,
thereby preventing the Agency from assigning such
responsibilities elsewhere if it so chooses. Therefore, Section 5
of the proposal is outside the duty to bargain because it is
inconsistent with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute. The fact that the Agency's
regulations currently provide that the Central Office Screening
Committee will evaluate charges by a station head requesting the
removal, demotion, or suspension of an employee does not render
Section 5 negotiable. If the negotiated agreement contained a
provision specifically designating the Central Office Screening
committee as the management group responsible for this function,
the Agency's right to reassign this task would be eliminated for
the life of the collective bargaining agreement. Such an
agreement would interfere with mangement's right to assign work
under section 7106(a)(2)(B). See Redstone Arsenal, Alabama, 26
FLRA 102, 104-05.
It should be noted, however, that insofar as Section 5
assigns those responsibilities to the Disciplinary Boards which
are consistent with their statutory duties pursuant to 38 U.S.C.
4110, the assignment of such work to the Disciplinary Boards
would not render Section 5 nonnegotiable by itself. We have found
Section 5 to be nonnegotiable because it assigns specific
responsibilities to the Central Office Screening Committee.
4. Section 6
Section 6 defines the role of the Screening Committees as
evaluating all the evidence produced during preliminary
investigations. The section further provides for the contents of
a "Letter of Charges" to be prepared and issued by the
Screening Committee when it decides to prefer charges, and
prescribes the manner in which letters of charges and notices of
hearing are to be delivered.
The Agency's contention concerning Section 6 is that it adds
additional procedural requirements not found in 38 U.S.C. 4110 or
the Agency's implementing regulations. However, the Agency does
not contend that there is a compelling need for the regulations
as written, that this section of the proposal interferes with any
management right within the meaning of section 7106 of the
Statute, or that the additional requirements are otherwise
contrary to law, rule or regulation.
We conclude that, in general, Section 6 merely establishes
procedures which further implement the requirements of 38 U.S.C.
4110, and that it does not conflict with any portions of 38
U.S.C. 4110 or with the Agency's right to discipline employees
pursuant to section 7106(a)(2)(A) of the Statute. Therefore,
except for the specific portions of Section 6 which we find below
to be nonnegotiable, Section 6 is a negotiable procedure within
the meaning of section 7106(b)(2) of the Statute which is within
the duty to bargain.
The first sentence of Section 6 requires that the Central
Office Screening Committee will be responsible for evaluating all
evidence generated under preliminary investigations. This
sentence is outside the duty to bargain as it assigns specific
responsibilities to an arm of management, thereby preventing the
Agency from assigning such responsibilities elsewhere if it so
chooses. Therefore, the first sentence of Section 6 is outside
the duty to bargain because it is inconsistent with the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute.
The Agency's regulations currently provide that the Central
Office Screening Committee will evaluate for the Chief Medical
Director charges preferred by suspension of an employee. The fact
that the first sentence of Section 6 is consistent with the
Agency's regulations does not render the sentence negotiable. If
the negotiated agreement contained a provision designating the
Central Office Screening Committee as the management group
responsible for reviewing either the preliminary investigations
or the charges as provided for in the Agency's regulations, the
Agency's right to reassign this task would be eliminated for the
life of the collective bargaining agreement. Such an agreement
would interfere with management's right to assign work under
section 7106(a)(2)(B).
The second sentence of Section 6 requires that the Screening
Committee will prepare and issue a "Letter of Charges." Because
this sentence assigns specific responsibilities to an arm of
management it, like the first sentence of Section 6, prevents the
Agency from assigning such responsibilities elsewhere if it so
chooses. Thus, the second sentence of Section 6 is also
inconsistent with management's right to assign work under section
7106(a)(2)(B).
5. Section 7
Section 7 outlines the role of the disciplinary boards in
greater detail than is set forth in 38 U.S.C. 4110. It provides
that the boards shall consist of three employees senior in grade
to the charged employee and be chosen in a certain manner; that
the Union will be allowed to have a representative attend board
meetings; that all members of the board shall have equal voting
rights; what are the procedures to be utilized by the board,
including the right of the Agency, the Union, and the board
itself to question witnesses; and the right to a copy of the
record of the board's proceedings, including closed meetings. The
section provides for standards of evidence upon which the board
could base it findings and recommendations. The section provides
that the charged employee, the witnesses and the Union's
representative shall be on official time for the hearing. The
section outlines the actions which the board may take in acting
upon the charges. The section outlines the prerogatives available
to the Chief Medical Director in acting upon a recommendation for
suitable disciplinary action directed by a disciplinary board.
Finally, the section provides standards for determining suitable
disciplinary actions.
We conclude that Section 7, in general, is negotiable
because, like the other portions of Proposal 19 which we have
found to be negotiable, it merely establishes procedures which
implement the requirements of 38 U.S.C. 4110, and it does not
conflict with any portion of 38 U.S.C. 4110 or with the Agency's
right to discipline employees pursuant to section 7106(a)(2)(A)
of the Statute. Therefore, except for the specific portions of
Section 7 which we find below to be nonnegotiable, we conclude
that Section 7 is a negotiable procedure within the meaning of
section 7106(b)(2) of the Statute which is within the duty to
bargain. We turn now to the specific portions of Section 7 which
we find to be nonnegotiable.
a. Disciplinary Boards to Consist
Section 7, the first sentence of the first paragraph
requires that disciplinary boards consist of three members senior
in grade to that of the affected employee. 38 U.S.C. 4110(a),
however, states that the disciplinary boards shall "consist of
not less than three nor more than five employees." Therefore,
under 38 U.S.C. 4110(a) and under section 7106(a)(2)(B) of the
Statute, the Agency has the right to assign three, four, or five
employees to perform the work of the disciplinary boards. Nothing
in the record indicates that this section is intended to be
limited to requiring that at least three of the three to five
board members be senior in grade to the affected employee.
Rather, the sentence both sets a limit on the number of board
members and requires that the board members be senior in grade to
the affected employee. We find, therefore, that the first
sentence of the first paragraph in Section 7, by limiting the
size of the disciplinary boards to a maximum of three members, is
contrary to the statutory requirements set forth at 38 U.S.C.
4110(a), violates the Agency's right to assign work, and is
outside the duty to bargain.
b. Union Representation for Probationary Employees
The second paragraph of Section 7 of the proposal provides
that probationary employees may be represented by the Union when
appearing before a professional standards board to contest a
proposed separation.
We find that the second paragraph of Section 7 is
nonnegotiable because it interferes with management's right to
hire under section 7106(a)(2)(A) of the Statute. The disciplinary
boards with which Proposal 19 is concerned are constituted under
the authority of 38 U.S.C. 4110. However, the performance of
probationary employees is reviewed by the Professional Standards
Boards (PSBs) which are constituted under the authority of 38
U.S.C. 4106. The Union included a proposal providing for
representation rights for probationary employees appearing before
PSBs in Proposal 25. Therefore, for a fuller discussion of the
rights of probationary employees, see our discussion at Proposal
25, which deals entirely with the rights of such employees. As we
conclude there, agencies are entitled to make summary judgments
regarding the performance of probationary employees, as such
employees are still within the initial hiring period provided for
in law and regulation. Therefore, a proposal which provides
probationary employees with rights other than any which are
provided by law or regulation interferes with the Agency's right
to hire under section 7106(a)(2)(A) of the Statute and
is outside the duty to bargain. Thus, the second paragraph of
Section 7, which would give probationary employees the right to
be represented by counsel before the PSBs, is outside the duty to
bargain.
C. Role of Chief Medical Director as Review Official
The eighth paragraph, in the third and fourth sentences, and
the ninth paragraph, in the second sentence, of Section 7 provide
that when any charges against an employee are sustained, the
disciplinary board will recommend suitable disciplinary action to
the Chief Medical Director, who will then decide what further
action is to be taken. Under 38 U.S.C. 4110(d), the authority to
take final action concerning an action initiated under 38 U.S.C.
4110 is granted to the VA Administrator, who has the discretion
under 38 U.S.C. 4110(e) to delegate this authority to the Chief
Medical Director. By assigning specific responsibilities to the
Chief Medical Director in a manner inconsistent with 38 U.S.C.
4110, which gives the VA Administrator the right to retain
certain authority or to delegate it to the Chief Medical
Director, those sentences of the eighth and ninth paragraphs
which specifically assign certain responsibilities to the Chief
Medical Director are outside the duty to bargain. See our
discussion concerning Proposal 2.
d. Progressive Discipline and the Use of the Table of
Penalties
Paragraph 10 of Section 7 provides that the "concept of
progressive discipline" should be followed when appropriate in
imposing remedies for disciplinary conduct and that the Table of
Penalties in the Agency's regulations should be used as a guide
in determining proper levels of discipline to be administered.
We find this paragraph to be nonnegotiable. As we noted
above in discussing Section 1 of this Proposal, 38 U.S.C. 4110(d)
requires the VA Administrator to impose "Suitable" discipline as
the result of a 38 U.S.C. 4110 action. The second and third
sentences of paragraph 10, by placing limitations on the right of
the Administrator or a designee to impose discipline, interfere
with the Administrator's statutory right to determine what
discipline is suitable in any particular situation. Thus, these
sentences are outside the duty to bargain because they are
inconsistent with the VA Administrator's right pursuant to 38
U.S.C. 4110(d) to impose a "suitable" penalty as the result of a
disciplinary action initiated under that statutory section.
Moreover, this paragraph would place limitations on
management's right to discipline employees in a manner
inconsistent with its rights pursuant to section 7106(a)(2)(A) of
the Statute. Either the Agency would be limited in its right to
impose discipline by the requirement that the concept of
progressive discipline must be applied or the Agency would be
compelled to follow the Table of Penalties in its regulations
when management chose to impose discipline pursuant to certain
actions under 38 U.S.C. 4110. Therefore, we also find paragraph
10 of Section 7 to be nonnegotiable because, under either
situation provided for in the paragraph, limits would be placed
on management's right to determine appropriate discipline which
would be inconsistent with its rights pursuant to section
7106(a)(2)(A) of the Statute. See VA, Bronx Medical Center, 30
FLRA 706, 733 and the cases cited therein.
e. Job Relatedness
Paragraph 11 of Section 7 provides that for certain
disciplinary actions "the employer must demonstrate job
relatedness." While neither party made any specific references as
to the meaning of this paragraph, we interpret it to mean that
the Agency would be precluded from taking disciplinary action
against an employee unless it could demonstrate that the conduct
for which the employee was being disciplined was directly or
indirectly related to the employee's performance on the job.
In Defense Logistics Agency, Council of AFGE Locals, AFL -
CIO and Department of Defense, Defense Logistic Agency 24 FLRA
367, 367 (1986) (Proposal 1) (Defense Logistics Agency), we held
that a proposal providing that an employee's private life was
his/her own affair was outside the duty to bargain because it
would prohibit the Agency from complying with 5 C.F.R. Part 735,
a Government-wide rule or regulation, which requires agencies to
prescribe and enforce standards of conduct which apply to an
employee's private life. We further found that the proposal, by
attempting to establish by contract that a particular
relationship between off-duty conduct and the employee's job
performance must exist in order to sustain a disciplinary action,
placed substantive limitations on the Agency's right to take
disciplinary actions based on off-duty conduct "in accordance
with applicable laws."
Paragraph 11 of Section 7 similarly limits the Agency's
prerogative to impose discipline for an offense not included in
the Agency's Table of Penalties or covered by statute unless the
Agency can demonstrate that the offense is job related.
By so doing, this portion of the proposal interferes with the
Agency's right to take disciplinary actions under section
7106(a)(2)(A) based on off-duty conduct. Thus, paragraph 11 of
Section 7 prohibits the Agency from complying with the
Government-wide rule or regulation at 5 C.F.R. Part 735 and is
outside the duty to bargain.
Paragraph 12 provides that disciplinary actions can be based
on matters covered by statute but not described in the Table of
Penalties. If a disciplinary action is based on a statute, then
the paragraph provides that the actual text of the statute will
be consulted and provided to the Union. Consequently, as
Paragraph 12 is not inconsistent with any law, rule, or
regulation, including the Statute, it is negotiable.
f. Imposition of Penalty by Administrator
Paragraph 13 of Section 7 provides that where specific
disciplinary penalty is not statutorily mandated, the decision as
to whether or not to take any disciplinary action will be left to
the VA Administrator. As we noted in our discussion at subpart c.
of Section 7 above, 38 U.S.C. 4110(d) grants the VA Administrator
the final right to determine what action shall be taken as the
result of an action initiated under section 4110. However, as we
noted in our earlier discussion, 38 U.S.C. 4110(e) also gives the
VA Administrator the discretion to delegate this authority to the
Chief Medical Director. Thus, by assigning specific
responsibilities to the VA Administrator in a manner inconsistent
with 38 U.S.C. 4110, which gives the VA Administrator the right
to retain certain authority or to delegate it to the Chief
Medical Director, Paragraph 13 of Section 7 is outside the duty
to bargain insofar as it specifically assigns certain
responsibilities to the VA Administrator. See our discussion
concerning Proposal 2.
6. Section 8
Section 8 of the proposal provides appellate procedures for
the various levels of discipline.
a. Part A
Part A of Section 8 pertains to the appeal of admonishments
and reprimands. It provides that such appeals may be sought
before the station directors (or designees) or before a hearing
officer selected by the Medical Director. It also provides that
the official designated to hear the appeal will perform other
functions as the process progresses.
We find Section 8, Part A to be negotiable. This section
preserves management's right to designate the appropriate
management official to whom admonishments and reprimands may be
appealed. In addition, this part preserves the right of the Chief
Medical Director to select a hearing officer to hear such
appeals. Finally, if a hearing officer is selected, subparts
A(l), (2) and (3) merely set out procedures that will apply to
such appeals.
b. Part B
The first paragraph of Part B of Section 8 provides that
appeals concerning the suspension, demotion, or removal will be
directed in writing to the Medical Director through the station
director. Disciplinary Boards established under 38 U.S.C. 4110
make recommendations to the Administrator on suitable
disciplinary action, which shall include reprimand, suspension
without pay, reduction in grade, and discharge. Unless the
Administrator has delegated the authority to receive and act on
Disciplinary Board recommendations to the Chief Medical Director,
the Administrator's decision is final. 38 U.S.C. 4110(d). On the
other hand, if the Administrator has delegated the authority to
receive and act on Disciplinary Board recommendations to the
Chief Medical Director, any decision of the Chief Medical
Director may be appealed to the Administrator. 38 U.S.C. 4110(e).
As the first paragraph of Part B of Section 8 provides that the
appeal of a decision concerning suspension, demotion, or removal
may be directed to the Chief Medical Director, the proposal is
outside the duty to bargain as it is inconsistent with 38 U.S.C.
4110, which provides either that a decision rendered by the
Administrator in such matters is final or that a decision
rendered by the Chief Medical Director in such matters may only
be appealed to the Administrator.
We conclude that the second and third paragraphs of Section
8 are negotiable because they merely establish procedures which
implement the requirements of 38 U.S.C. 4110 and they do not
conflict with any portion of 38 U.S.C. 4110 or with the
Agency's right to discipline employees pursuant to section
7106(a)(2)(A) of the Statute. We conclude that the second and
third paragraphs of Section 8 are negotiable procedures within
the meaning of section 7106(b)(2) of the Statute and that they
are within the duty to bargain.
7. Summary
In summary, we find that Sections 3 and 4 of Proposal 19 are
within the duty to bargain. We find that Section 6 of Proposal 19
is within the duty to bargain except for its first two sentences
which assign specific responsibilities to the Central Office
Screening Committee. We find that Section 7 of Proposal 19 is
within the duty to bargain except for: the requirement in the
first sentence of the first paragraph that disciplinary boards
consist of only three members; the second paragraph which would
give representation rights to probationary employees; the
requirement in the eighth and ninth paragraphs that the Chief
Medical Director be assigned certain responsibilities; the tenth
paragraph which requires the use of "progressive discipline" and
the Agency's Table of Penalties; the eleventh paragraph which
requires that job relatedness must be demonstrated in imposing
certain types of discipline; and the thirteenth paragraph insofar
as it delegates specific responsibilities to the VA
Administrator. We find that Part A and the second and third
paragraphs of Part B of Section 8 are within the duty to bargain.
We find that Sections 1, 5 and the first paragraph of Part B of
Section 8 of Proposal 19 are outside the duty to bargain.
XXI. Proposal 20
Article 21 - Employees Assistance Program
Section 2. Policy
B. The Employer will respect an individual's right to
privacy. The Employer will not take disciplinary or adverse
action against an employee based upon an employee's use of
alcoholic beverages or other drugs unless there is a nexus
(relationship) between such use and job performance or conduct.
Section 3.
Responsibilities and Guidelines
The following program provisions will apply:
E. Sick leave, annual leave, or leave without pay will be
granted for treatment or counseling sessions consistent with
practices for other illnesses or circumstances.
A. Positions of the Parties
The Agency's sole contentions concerning this proposal were
rejected in Part II of this decision.
The Union states that the subsections appearing above are
the only parts of the proposal currently in dispute. Reply Brief
at 32.
B. Analysis and Conclusion
1. Section 2B
This section is nonnegotiable under section 7117(a)(1) of
the Statute because it conflicts with the requirements of
Executive Order 12564 and with Government-wide regulation.
Executive Order 12564, entitled "Drug - Free Federal Workplace",
was issued by the President on September 15, 1986. Among the
reasons for issuing the Executive Order were the following:
The use of illegal drugs, on or off duty, by Federal
employees is inconsistent not only with the law-abiding behavior
expected of all citizens, but also with the special trust placed
in such employees as servants of the public.
The use of illegal drugs on or off duty by Federal employees
impairs the efficiency of Federal departments and agencies,
undermines public confidence in them, and makes it more difficult
for other employees who do not use illegal drugs to perform their
jobs effectively. The use of illegal drugs, on or off duty, by
Federal employees also can pose a serious health and safety
threat to members of the public and to other Federal employees.
(3 C.F.R. 225 (1987)) Section 3 of the Executive Order
directs the heads of Executive agencies to establish mandatory
and voluntary drug testing programs for agency employees and
applicants. Section 5 of the Executive Order requires agencies to
"initiate action to discipline any employee who is found to use
illegal drugs" unless the employee takes specified voluntary
steps to eliminate his or her illegal drug usage. Section 5(E) of
the Executive Order further states:
(1) The determination of an agency that an employee uses
illegal drugs can be made on the basis of any appropriate
evidence, including direct observation, a criminal conviction,
administrative inquiry, or the results of an authorized testing
program. Positive drugs test results may be rebutted by other
evidence that an employee has not used illegal drugs.
Clearly, Executive Order 12564 seeks to eliminate use,
either on or off duty, of illegal drugs by Federal employees. In
furtherance of that objective, the Executive Order requires the
disciplining of employees found to be using such drugs.
We previously have held that Executive Order 12564 "has the
force and effect of law." National Federation of Federal
Employees, Local 15 and Department of the Army, U.S. Army
Armament, Munitions and Chemical Command, Rock Island, Illinois,
30 FLRA No. 115 (1988), slip op. at 25 (U.S. Army Armament,
Munitions and Chemical Command).
Section 2B, however, would bar disciplining an employee
based on use of drugs unless the usage could be shown to affect
adversely the employee's job performance or behavior at work.
That section of the proposal, therefore, conflicts with the
requirements of the Executive Order and is outside the duty to
bargain under section 7117(a)(1). See U.S. Army Armament,
Munitions and Chemical Command, slip op. at 21-26, (Proposals 4
through 7).
We also note that OPM has issued regulations,
Government-wide in scope, requiring agencies to issue their own
regulations prescribing employee standards of conduct. The OPM
regulations establish minimum standards for agency regulations.
Among other things, the agency regulations must ensure that its
employees do not "engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government." 5 C.F.R. 735.209. An employee's
failure to comply with those standards is subject to remedial
action, including the imposition of discipline. Because we view
the OPM standard as applying to any conduct of the type
described, and not just that which adversely affects job
performance, Section 2B of the proposal conflicts with the
regulations. Section 2B would shield an employee from discipline
in circumstances where a criminal conviction resulted from drug
or alcohol use, but where that usage had no direct adverse effect
on performance or behavior on the job. Such a result is
inconsistent with the OPM regulations and places Section 2B
outside the duty to bargain because of its interference with the
Agency's right to discipline under section 7106(a)(2)(A) of the
Statute. See Defense Logistics Agency, 24 FLRA 367.
2. Section 3E
This section is negotiable because it preserves management's
authority to grant or deny sick leave, annual leave or leave
without pay. The section's objective is to assure that employees'
requests for leave to undergo treatment or counseling are not
treated differently from other requests for the same types of
leave. That is, under this section, management's obligation is to
act on these requests in a nondiscriminatory manner. The section
does not require management to grant leave when such action is
inconsistent with its workload or staffing requirements. Hence,
there is no interference with the right to assign work.
For the reasons stated, Proposal 20, Section 2B is outside
the duty to bargain and Section 3E is negotiable.
XXII. Proposal 21
Article 24(a) - Tours of Duty
The text of this proposal is found in the Appendix.
A. Section 1
1. Positions of the Parties
The Agency claims that Section I would limit its right to
determine the work schedules of the health care professionals
covered by Proposal 21. According to the Agency, it must be able
to schedule employees with specialized skills to perform specific
tasks on particular shifts consistent with patient care
requirements. The Agency states that there is extensive
specialization in the health care profession and that management
must have the flexibility to schedule a particular professional
to work when patient care requires that professional's skill and
expertise. Additionally, the Agency argues that all sections in
Proposal 21 conflict with an Agency regulation for
which there is a compelling need.
The Union claims that Section I is consistent with 5 C.F.R.
610.111(a)(1) and, therefore, there is no violation of
management's right to assign work. The Union responds to the
Agency's compelling need argument by asserting that the Agency
has failed to explain how its regulation is essential to provide
quality patient care.
2. Analysis and Conclusions
Initially, we note that the Union's reliance on 5 C.F.R.
610.111(a)(1) is misplaced. That section, which concerns the
establishment of the basic workweek of Federal employees, applies
only to Federal employees covered by 5 C.F.R. Part 550, Subpart
A. 5 C.F.R. 550.101(b)(12) expressly excludes DM &S employees
from coverage under 5 C.F.R. Part 550, Subpart A.
a. Sentence 1
Section 1, the first sentence, provides that the
administrative workweek, or basic workweek, will be 40 hours
Sunday through Saturday for full-time employees. Title 38
provides that full-time nurses may be employed under the "Baylor
Plan." Nurses on that plan work two regularly scheduled 12-hour
tours of duty within the period commencing at midnight Friday and
ending at midnight the following Sunday. 38 U.S.C. 4107(h)(1).
Therefore, to the extent that Section 1, the first sentence,
pertains to nurses working under the Baylor Plan, it conflicts
with Title 38 and is nonnegotiable under section 7117(a)(1) of
the Statute.
As to employees not working under the Baylor Plan, Title 38
states that 40 hours is an administrative, or basic, workweek.
See 38 U.S.C. 4107(e)(5)(1982). The Agency has not established
that sentence 1 would interfere with its right to determine work
schedules. For example, sentence 1 does not prevent management
from assigning work to employees beyond 40 hours per week.
Furthermore, it does not prevent the Agency from assigning
employees to tours of duty and schedules which will ensure that
there are employees with the appropriate specialized skills to
perform specific tasks on particular shifts. Rather, we conclude
that Section 1, the first sentence merely restates Federal law.
Proposals which merely restate applicable Federal law are
negotiable. See, for example, Joint Council of Unions, GPO and
United States Government Printing Office, 25 FLRA 1033, 1034
(1987) (proposal making changes in work assignments grievable
held consistent with the Statute and negotiable).
The Agency also argues that Proposal 21 conflicts with an
Agency regulation for which ther