35:0139(16)NG - - AFGE, National EPA Council and EPA - - 1990 FLRAdec NG - - v35 p139



[ v35 p139 ]
35:0139(16)NG
The decision of the Authority follows:


35 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, NATIONAL EPA COUNCIL

(Union)

and

ENVIRONMENTAL PROTECTION AGENCY

(Agency)

0-NG-1616

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

March 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of one proposal which requires that the standard of "nexus" will apply to disciplinary actions.

For the reasons discussed below, we find the proposal is within the duty to bargain.

II. The Proposal

Employees shall have the right to direct and/or fully pursue their private lives, personal welfare and personal beliefs without interference, coercion or discrimination by the Employer so long as such activities do not conflict with job responsibilities. The standard of nexus shall apply.

III.Positions of the Parties

A.The Agency

The Agency contends that the proposal would restrict its authority to take disciplinary action under section 7106(a)(2)(A) of the Statute. Specifically, the Agency asserts that the proposal would prevent management "from taking disciplinary action for off-duty conduct 'so long as' such conduct did not 'conflict with job responsibilities.'" Agency's Statement of Position at 2. Additionally, the Agency contends that the proposal would place substantive limitations on management's right to discipline to an even greater extent than the proposals the Authority found nonnegotiable in Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367 (1986) (Proposal 1) (DLA) and National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 407-13 (1988) (Proposals 19 and 20), rev'd as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988).

The Agency also argues that the proposal is "facially inconsistent with government-wide regulations." Agency's Statement of Position at 3. In support, the Agency asserts that off-duty conduct is regulated by 5 C.F.R. Part 735 and subject to a presumption of nexus under applicable case law. Id. The Agency asserts that the legal concept of nexus which is referred to in the proposal is "fundamentally at odds" with the substantive restrictions in the first sentence of the proposal. Id.

B.The Union

The Union contends that the proposal is intended to be fully consistent with 5 C.F.R. Part 735 and other applicable regulations. The Union states that it views the nexus standard as "a legal requirement for any determination that a disciplinary action is for the 'efficiency of the service.'" Union's Response at 2. Further, the Union states "[t]he proposal intends the same definition and states the same standard as the Merit Systems Protection Board [MSPB]." Id. at 1.

In addition, the Union asserts that the language "so long as such activities do not conflict with job responsibilities" allows management to take disciplinary action on anything which would relate to "job responsibilities." Id. at 14. The Union explains that unlike the term "job-relatedness" used in NFFE, or the reference to "performance" in DLA, "'job responsibilities' includes . . . standards of conduct, any and all nexus-related matters, (as interpreted by the MSPB), or any other matter which can be defined as a job responsibility of an employee." Id. at 14-15.

IV.Analysis and Conclusion

We conclude that the proposal is within the duty to bargain.

We find that this proposal would have the same effect as the proposal which we found negotiable in American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and Department of the Navy, United States Marine Corps, 35 FLRA No. 14 (1990) (USMC). The proposal in USMC provided:

Subject to applicable law, rule and regulation, employees shall have the right to direct and/or fully pursue their private lives, personal welfare and personal beliefs without interference, coercion or discrimination by the employer so long as such activities do not conflict with job responsibilities. The standard of nexus shall apply. (Only the underlined sentence is in dispute.)

We found that the proposal in USMC reflected a statutory requirement which is applicable to adverse actions taken under 5 U.S.C. Chapter 75. We found that by providing that the nexus standard be applied, the proposal in USMC required only that the agency take adverse actions in accordance with the statutory nexus requirement existing at the time of the action. Because the proposal required only that the agency comply with applicable legal requirements, we concluded that the disputed portion of the proposal was within the duty to bargain.

In this case, the Union explains that the proposal is intended to require that the Agency apply the statutory nexus requirement in taking adverse actions under 5 U.S.C. Chapter 75. We note that the last sentence of the proposal states "[t]he standard of nexus shall apply." The Union asserts that the proposal is intended to (1) be consistent with applicable regulations under 5 C.F.R. Part 735 and the MSPB's definition of nexus, and (2) "remain consistent with applicable 'law, rule or regulations.'" Union's Response at 2. Additionally, the Union asserts "[t]he clause is clearly crafted to adhere to the required legal standards." Id. at 5. Although the first sentence of the proposal does not include the phrase "subject to applicable law, rule and regulation," we find that the Union's intent is that the two sentences of the proposal be read together to require the application of the statutory nexus standard in an adverse action taken for the efficiency of the service. Therefore, we conclude that this proposal would have the same effect as the proposal found negotiable in USMC.

Applying the analysis used in USMC, we conclude that this proposal is within the duty to bargain. In USMC, we noted that the courts and MSPB hold that an agency must establish a nexus or connection between an employee's conduct and the efficiency of the service in order to support an adverse action under 5 U.S.C. Chapter 75. See Doe v. Hampton, 566 F.2d 265, 272 (D.C. Cir. 1977); Parsons v. U.S. Department of the Air Force, 707 F.2d 1406, 1408 n.5, 1409 n.7 (D.C. Cir. 1983). See also National Treasury Employees Union v. Bush, 891 F.2d 99, 102 (5th Cir. 1989) (agency plans under section 5(g) of Executive Order 12564, entitled "Drug-Free Federal Workplace," must "necessarily comply with the 'nexus' requirement of the CSRA[.]"). Additionally, we noted that management's right to take disciplinary action against employees under section 7106(a)(2)(A) must be exercised in accordance with law. See National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578, 586 (1988). We concluded that because the proposal in USMC required only that the agency comply with applicable legal requirements, it did not interfere with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute.

Reading both sentences of the proposal together, we find that the proposal would require that the Agency apply the nexus standard in taking adverse actions under 5 U.S.C. Chapter 75. The proposal, therefore, requires only that the Agency comply with applicable legal requirements. Thus, we conclude that the proposal would not interfere with management's right to take disciplinary action under section 7106(a)(2)(A).

In reaching this conclusion, we note that this proposal is distinguishable from the proposals in NFFE and DLA cited by the Agency. As we noted in USMC, the proposals in NFFE established a separate contractual limitation on management's right to take disciplinary action, as opposed to adopting the applicable legal standard. For example, Proposal 19 in NFFE required the agency to demonstrate "job relatedness." 31 FLRA at 407. Similarly, the Authority found that the proposal in DLA was intended to limit the agency's right to take disciplinary action to those circumstances where there was a direct relationship between the conduct and the employee's job performance. 24 FLRA at 368. Here, the Union explains that "job responsibilities" include any matter "which can be defined