35:0521(61)NG - - Service and Hospital Employees International Union, Local 150 and VA Medical Center, Milwaukee, WI - - 1990 FLRAdec NG - - v35 p521



[ v35 p521 ]
35:0521(61)NG
The decision of the Authority follows:


35 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SERVICE AND HOSPITAL EMPLOYEES INTERNATIONAL UNION

LOCAL 150

(Union)

and

VETERANS ADMINISTRATION MEDICAL CENTER

MILWAUKEE, WISCONSIN (1)

(Agency)

0-NG-1654

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability petition filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of eight provisions of a collective bargaining agreement negotiated by the Union and the Agency which were disapproved in the course of review under section 7114(c) of the Statute.(2)

Provision 1, which denies the Agency the ability to rescind approved annual leave except in extreme emergencies, is outside the duty to bargain because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 2 requires the Agency to give oral and written counseling to an employee prior to placing the employee on sick leave restriction. Provision 2 is outside the duty to bargain because it directly interferes with the Agency's right to discipline under section 7106(a)(2)(A).

Provision 3 requires supervisors to post advance notice of holiday work schedules. Provision 3 is within the duty to bargain.

Provision 4 requires the Agency to provide a minimum of 14 days' advance notice of changes in an employee's work schedule unless there is an emergency or mutual consent between the Agency and the employee. Provision 4 is outside the duty to bargain because it is inconsistent with law and Government-wide regulation under section 7117(a)(1).

Provision 5, which establishes performance rating levels and criteria for performance evaluations, is outside the duty to bargain because it interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

Provision 6 requires the Agency to secure approval from the Office of Personnel Management (OPM) prior to detailing an employee for more than 1 year. Provision 6 is nonnegotiable because it is inconsistent with a Government-wide regulation.

Provision 7 defines an adverse action as a discharge, a suspension for more than 14 days, a furlough without pay, or a reduction in pay. Provision 7 is within the duty to bargain.

Provision 8, which permits only certain employees to operate machinery or equipment which could cause injury to others, is outside the duty to bargain because it conflicts with management's right to assign work under section 7106(a)(2)(B).

II. Procedural Issues

By an Order of April 17, 1989, the Authority granted the Union an extension of time until April 20, 1989, to file its Response to the Agency's Statement of Position. The Union's Response was personally served by courier and received by the Authority on April 21, 1989. For papers filed by personal delivery, the date they are received by the Authority constitutes the date of filing. 5 C.F.R. § 2429.21. Because the Union's Response was received on April 21, 1989, it was untimely filed and has not been considered. See Army and Air Force Exchange Service, AAFES Distribution Region, Oakland Distribution Center, Oakland, California, 34 FLRA 5 (1989).

In a request dated May 25, 1989, the Agency sought an opportunity to reply to arguments contained in the Union's Response. The Agency stated that certain arguments were made for the first time in the Union's Response and that the Agency has had no opportunity to refute those new arguments. Because the Union's Response was untimely, and, therefore, not considered, there is no need for the Agency to address the Union's Response. Therefore, the Agency's May 25, 1989 request is denied.

III. Provision 1

Article XVII - Leave

1. Annual Leave

b. An employee's approved request for Annual Leave shall not be denied except in extreme emergency. When the leave is rescinded, the employee shall be given specific reasons for the cancellation. Approval of leave will be based on the needs of the service. (Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that Provision 1 is contrary to management's right to assign work under section 7106(a)(2)(B). The Agency asserts that the provision limits its ability to determine the necessity for the employee's services and prevents it from denying an employee's leave except in circumstances of extreme emergency. Agency's Statement of Position at 2, 7. The Agency argues that proposals which require an agency to grant leave regardless of the necessity for the employee's services violate management's right to assign work under section 7106(a)(2)(B) of the Statute. Agency's Statement of Position at 8.

The Agency asserts that although Provision 1 permits cancellation of annual leave in an extreme emergency, it prohibits cancellation of leave based on any other legitimate workload or staffing consideration. Therefore, the Agency contends that Provision 1 directly interferes with its right to assign work under section 7106(a)(2)(B) and is outside the duty to bargain. Agency's Statement of Position at 9.

The Union states that the sentence in dispute means "that after the Agency has approved a period of annual leave for a bargaining unit employee, the Agency will not rescind the grant of leave except in cases of extreme emergency." Union's Petition for Review at 2.

B. Analysis

Provision 1 is outside the duty to bargain because it directly interferes with management's right to assign work under section 7106(a)(2)(B).

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine when the work that has been assigned will be performed. American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1176-78 (1987) (Fort Rucker). In Fort Rucker, the Authority held that Provision 5, requiring the granting of annual leave to an employee where the request for leave was made in advance unless compelling workload requirements prevented scheduling the leave, violated management's right to assign work. The provision was outside the duty to bargain because it did not permit management to assign work to that employee during the period covered by the leave request, even if management had determined that it needed the employee's services for other than compelling workload requirements.

Provision 1 prohibits the Agency from rescinding approved leave requests "except in extreme emergency." Provision 1 is similar to a provision found to be outside the duty to bargain in American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1010-11 (1988). In that case, Provision 3, which would have restricted the cancellation of approved annual leave to those circumstances involving unpredictable mission requirements, was found to interfere directly with management's right to assign work. See also, Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492, 516-17 (1987), affirmed as to other matters sub nom. Overseas Education Association v. FLRA, 858 F.2d 769 (D.C. Cir. 1988). Because Provision 1 precludes the Agency from rescinding leave approval, it violates the Agency's right to assign work and is outside the duty to bargain.

IV. Provision 2

Article XVII - Leave

3. Sick Leave

d. Prior to an employee being placed on Sick Leave Restriction, the employee must have received an oral and written counseling concerning Sick Leave usage and must have shown no significant improvement since the date of counseling. A medical statement may be required to prevent further abuse of Sick Leave usage. Once an employee is placed on Sick Leave Restriction, the restriction will be reviewed every six (6) months. If the employee's attendance improves substantially, the Sick Leave Restriction will be lifted immediately. A Sick Leave Restriction should be based upon just cause.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that Provision 2 interferes with to management's right to discipline employees under section 7106(a)(2)(A). The Agency asserts that Provision 2 is similar to other proposals found by the Authority to be outside the duty to bargain. The Agency contends that Provision 2 would require it to provide counseling for two leave offenses, thereby denying the Agency the ability to take any other action. Therefore, the Agency argues that Provision 2 interferes with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. Agency's Statement of Position at 3, 10-11.

The Agency also contends that Provision 2 is outside the duty to bargain because it would substantially limit the Agency's discretion in imposing discipline by subjecting the Agency's choice of discipline to arbitral review. The Agency argues that the provision would subject management's decision as to whether the employee had shown significant improvement since counseling to arbitral review. Agency's Statement of Position at 11-12.

The Union states that the first sentence of Provision 2 means that "before placing an employee on sick leave restriction, which requires an employee to bring a medical certificate for each day of illness, the employer must have given the employee (1) an oral counseling and (2) a written counseling and the employee must not have significantly improved his attendance since the counseling." Union's Petition for Review at 3.

B. Analysis

The first sentence of Provision 2 directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. Rather than placing an employee on restriction for leave abuse, the Agency would be required to counsel the employee at least twice, once orally and once in writing. Regardless of the circumstances warranting the imposition of leave restriction, management would be unable to take any action other than counseling for the first two leave offenses and the provision would substitute counseling for whatever form of leave restriction management might wish to employ for at least two occasions of leave abuse. Because Provision 2 requires the Agency to counsel employees, rather than allowing the imposition of discipline, the provision is inconsistent with management's right to take disciplinary action.

Provision 2 is like the provision found to be outside the duty to bargain in National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1510-11 (1987), enforced in part and reversed in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). In that case, the Authority found that Provision 12, which required that an employee be counseled at least twice prior to being placed on leave restriction, interfered with the agency's right to discipline. See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 129-35 (1987). Because Provision 2 requires that employees be counseled prior to being placed on leave restriction, it likewise directly interferes with the Agency's right to discipline and is outside the duty to bargain.

V. Provision 3

Article XVII - Leave

5. Holidays

Supervisors shall determine the number of employees who can be spared from duty on a given holiday. Consistent with this determination, the supervisor shall allow as many employees as possible to be off duty on a holiday. The supervisor shall post a notice indicating the employees who are expected to work on a holiday at least two (2) weeks prior to the holiday.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that Provision 3 is nonnegotiable because it does not allow management to make schedule changes authorized by 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(b)(1). The Agency argues that by removing its ability to schedule holiday work less than 14 days before a holiday, the provision prevents the Agency from considering its mission requirements or its needs "in determining what work, if any, (and which employee) may be needed on the holiday." Agency's Statement of Position at 12. The Agency asserts that Provision 3 "takes away the Agency's authority to schedule and change scheduled work" and, therefore, conflicts with law and regulation and is nonnegotiable under section 7117(a) of the Statute. Id. at 14.

The Union states that the sentence in dispute means that "two weeks prior to a holiday, the employer is required to post a notice indicating which employees it will expect to work on that holiday." Union's Petition for Review at 3-4.

B. Analysis (3)

The Agency contends that Provision 3 is inconsistent with 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(b)(1) because it precludes management from making changes in employees' work schedules less than 14 days before a holiday. We find, however, that Provision 3 preserves management's right to schedule employees pursuant to law and regulation. The provision's requirement that notice will be posted indicating the employees who are "expected" to work on a holiday leaves the Agency the flexibility to add to or delete from the schedule as needed. There is nothing in the provision which indicates that the Agency would be limited in scheduling or assigning holiday work in circumstances where the Agency did not provide 14 days' advance notice. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 403 (1987) (proposal requiring 2 days' advance notice before making changes in scheduled overtime was found to be a negotiable procedure under section 7106(b)(2)). Accordingly, we reject the Agency's contention that this provision would prevent it from scheduling or assigning holiday work.

Finally, we note that Provision 3 provides that the required notice shall be posted by "[t]he supervisor[.]" Long-standing Authority precedent holds that Union proposals which require particular individuals to perform particular duties are nonnegotiable because they violate management's right, under section 7106(a)(2)(B) of the Statute, to assign work. See, for example, National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA No. 30 (1990). Contrary to our colleague's view, however, that precedent does not require a determination that Provision 3 is nonnegotiable. We note the following.

First, nothing in the plain wording of the provision, read in the context of the provision as a whole, supports the conclusion that the provision is intended to restrict the Agency's designation of an individual to post the required notice. Indeed, there is no indication in the record that the Union has any interest in identifying the individual who would post the notice. It appears, instead, that both parties recognize that the crux of their dispute relates to the content and the timing of the notice, not the mechanics of its posting. See, for example, Union's Petition for Review at 3 (the provision "means that two weeks prior to a holiday, the employer is required to post a notice . . . ."); Agency's Statement of Position at 12 ("Provision 3 requires that the VA post a notice . . . .").

Second, consistent with what appears to be the clear intent of the parties, the Agency did not disapprove the provision on the basis that it would require a particular individual to perform a particular function. The Agency asserts only that the provision conflicts with law and regulation applicable to the scheduling of employees' work. In view of the parties' apparent agreement that the required notice need not be posted by a particular individual, it is understandable that the Agency would not disapprove the provision on the basis that it required otherwise.

Finally, the provision was agreed upon at the local level. That fact does not, of course, prohibit the Agency from disapproving the provision during review under section 7114(c) of the Statute, as it did here. It does, however, make us reluctant to find the provision nonnegotiable on a basis which is both inconsistent with the parties' intent and not objectionable to the Agency on either the local or the national level.

In sum, we do not believe that either Authority or court precedent requires a conclusion that Provision 3 is nonnegotiable because it violates the Agency's right to assign work. To the extent that previous Authority decisions indicate that the Authority will find similar provisions nonnegotiable, even though there is no indication that the union intends to restrict the agency's right and the agency does not object to the provision, those decisions will no longer be followed. Accordingly, as Provision 3 is consistent with 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(b)(1), it is negotiable.

VI. Provision 4

Article XIX - Tours of Duty

2. Except for unanticipated emergency situations, a minimum of fourteen (14) days (10 days for relief employees) advance notice by employees or the Employer, will be necessary to effect changes in an employee's work schedule, except such notice shall not be necessary with mutual consent of the employee(s) and supervisor(s). The Employer will approve the exchange of shifts and/or days off by employees of the same job classification and who have the necessary skill, ability, dependability and conduct, provided the exchange is consistent with the operational needs of the facility and does not result in overtime or a violation of the basic workweek, and is made with the mutual consent of both employees.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that Provision 4 conflicts with its authority under 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(a) to schedule a 40-hour workweek at least 7 days in advance unless the head of the Agency determines that the Agency "would be seriously handicapped in carrying out its functions or that costs would be substantially increased." Agency's Statement of Position at 15. The Agency cites cases in which the Authority found that proposals requiring advance notice of changes in work schedules except in emergencies were inconsistent with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. The Agency argues that both exceptions to the notice requirement, the "mutual consent exception" and the "emergency exception," are too narrow to comply with statutory and regulatory provisions and that, therefore, Provision 4 is inconsistent with law and regulation and is outside the duty to bargain under section 7117 of the Statute. Id. at 16-17.

The Union states that the sentence in dispute means that "except where there is mutual consent of the [a]ffected employees and the employer, there must be fourteen days advance notice of changes in an employee's work schedule except in emergency situations." Union's Petition for Review at 4.

B. Analysis

We conclude that Provision 4 is inconsistent with law and regulation and is, therefore, outside the duty to bargain under section 7117(a)(1) of the Statute.

Provision 4 requires a minimum of 14 days' advance notice for the Agency to change an employee's work schedule, unless there is: (1) an unanticipated emergency situation, or (2) mutual consent between the employee and the Agency. Under applicable law, 5 U.S.C. § 6101(a)(3)(A), and the corresponding Government-wide regulation, 5 C.F.R. § 610.121(a)(1), an agency may change an employee's work schedule as long as it provides a minimum of 7 days' notice. An agency may also make changes in work schedules within the required 7-day notice period where the agency would otherwise be handicapped in carrying out its mission or where costs would be substantially increased. See Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 950 (1988) (Fraternal Order of Police).

Provision 4 would preclude the Agency from changing employee work schedules less than 14 days in advance, unless: (1) there was an unanticipated emergency, or (2) the employee and the Agency mutually consented to the change. These types of exceptions to the notice period are too narrow to comply with law and regulation. See Fraternal Order of Police, 32 FLRA at 950; Fort Rucker, 28 FLRA at 1187.

The terms defining the statutory and regulatory exceptions are broader than the term "unanticipated emergency situations" used in the provision. Situations falling within the scope of the applicable statute and regulations--circumstances which would seriously handicap an agency in carrying out its functions or would substantially increase costs--would not necessarily constitute "unanticipated emergency situations" within the meaning of the provision. See National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 756 (1986). The statutory and regulatory situations provided in 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(a)(1) also would not be included within the scope of the exception for mutual consent. See Fraternal Order of Police, 32 FLRA at 950 (proposal which precluded management from changing an employee's work schedule unless the employee agreed was held to be inconsistent with 5 C.F.R. § 610.121).

Provision 4 impermissibly restricts the Agency's right to revise employee work schedules because the exceptions for an unanticipated emergency or mutual consent are narrower than the exceptions to the notice requirement provided by the applicable statute and regulations. Consequently, we find that Provision 4 is inconsistent with 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(a)(1) and is outside the duty to bargain under section 7117(a)(1) of the Statute.

VII. Provision 5

Article XXV - Performance Evaluation

4. An Outstanding Rating will be given when achievement levels for all elements are designated Exceptional.

5. A Highly Successful Rating will be given when achievement levels for all critical elements are designated as exceptional. Achievement levels for all noncritical elements are designated as at

least Fully Successful. Some, but not all noncritical elements may be designated as Exceptional.

6. A Fully Successful Rating will be given when the achievement level for at least one critical element is designated as Fully Successful. Achievement levels for other critical and noncritical elements are designated as at least Fully Successful or higher.

7. A Minimally Successful Rating will be given when achievement levels for all critical elements are designated as at least Fully Successful. However, the achievement level(s) for one (or more) non-critical elements is (are) designated as Less Than Fully Successful. Supervisors are required to assist employees whose performance ratings are Minimally Successful. A written counseling will be prepared for each such employee by his/her supervisor explaining how performance is less than fully successful when compared to the performance standards, and what specific assistance, such as formal training, on-the-job training, counseling or supervisory guidance, will be offered to help the employee to improve.

8. An Unacceptable Rating will be given when the achievements level(s) for one (or more) critical element(s) is (are) designated as Less Than Fully Successful. A critical element is any element which contributes toward accomplishment of organizational goals and objectives, and which is of such importance that unacceptable performance of it would result in unacceptable performance in the position. An employee whose performance is unacceptable shall be afforded a reasonable opportunity as described in Sections 9, 10, and 11 of this Article to improve his/her performance to the acceptable level.

A. Positions of the Parties

The Agency contends that Provision 5 is nonnegotiable because it interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency cites cases in which the Authority held that proposals which established rating levels and criteria for performance evaluations were nonnegotiable because they interfered with management's rights under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that because Provision 5 establishes the number of performance levels and the criteria for meeting each level of performance, Provision 5 interferes with its rights to direct employees and assign work and, therefore, is nonnegotiable.

The Union states that Provision 5 specifies "in simple terms the criteria for various performance rating levels." Union's Petition for Review at 5.

B. Analysis

Provision 5 is nonnegotiable because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

Proposals which establish the number of rating levels and criteria for performance evaluations are outside the duty to bargain because they directly interfere with management's rights to direct employees and assign work. National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 426 (1987). See also 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, 105 (Provision 2) (provision establishing five performance ratings was nonnegotiable because it would interfere with management's right to make changes in the number of rating levels and to establish criteria for performance evaluation).

Provision 5 restricts the Agency's ability to: (1) determine the number of performance rating levels; and (2) weigh and evaluate the elements for performance evaluations. These restrictions limit the Agency's discretion to establish criteria for performance ratings. Consequently, Provision 5 directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is nonnegotiable.

VIII. Provision 6

Article XXVII - Details and Temporary Promotions

2. An employee will not be detailed to a regular vacancy, or to a new position or set of duties of a comparable or lesser grade in excess of one (1) year unless approved by OPM.

A. Positions of the Parties

The Agency contends that Provision 6 is contrary to management's right to assign work under section 7106(a)(2)(B). Agency's Statement of Position at 6, 18. The Agency argues that Provision 6 interferes with management's right to assign work because it requires that management obtain approval of the OPM in order to detail an employee for a period in excess of 1 year. The Agency asserts that OPM approval of details in excess of 1 year is not necessary in some instances. The Agency includes in its Statement of Position a copy of Federal Personnel Manual (FPM) Letter 300-32, which provides that details of up to 2 years in organizations undergoing commercial activity studies do not require OPM approval. Agency's Statement of Position at 18-19.

The Agency also contends that by incorporating a provision of OPM regulations into the agreement, Provision 6 establishes an independent contractual requirement which would interfere with management's discretion to assign work. The Agency argues that proposals which incorporate the provisions of a Government-wide regulation into an agreement interfere with management's rights because they compel management to comply with the requirements of that regulation regardless of whether the regulation is subsequently revised or eliminated. The Agency asserts that because Provision 6 would require the Agency to comply with the OPM approval process regardless of whether OPM revises or eliminates the requirement, the provision interferes with management's right to assign work. Agency's Statement of Position at 19-20.

The Union states that Provision 6 means that "an employee will not be sent on a detail for a regular vacancy or new position in a comparable or lesser grade for more than one year unless the Office of Personnel Management approves the detail." Union's Petition for Review at 6.

B. Analysis

Provision 6 is inconsistent with a Government-wide regulation and, therefore, is outside the duty to bargain.

Provision 6 prohibits the Agency from assigning employees to certain specified details in excess of 1 year unless the Agency obtains approval from OPM. Generally, such details of employees require OPM approval. However, details to an organization undergoing a commercial activity study may be extended by an agency, in 120-day increments, up to a maximum of 2 years without prior OPM approval. FPM Letter 300-32 (March 26, 1987), which replaces FPM chapter 300, subchapter 8-3(b)(2). The Union does not dispute the Agency's position that these provisions are applicable to the bargaining unit. Absent evidence to the contrary, we will consider the bargaining unit employees in this case to be subject to the provisions of FPM Letter 300-32.

Provision 6 requires the Agency to obtain prior approval from OPM for all details in excess of 1 year in duration. Under FPM Letter 300-32, the Agency is not required to obtain such prior approval from OPM in all cases. Because Provision 6 requires OPM approval for details which need not be approved by OPM, Provision 6 is inconsistent with FPM Letter 300-32. Accordingly, Provision 6 is outside the duty to bargain under section 7117(a)(1) of the Statute if FPM Letter 300-32 constitutes a Government-wide regulation. For the following reasons, we conclude that FPM Letter 300-32 constitutes a Government-wide regulation.

First, FPM Letter 300-32 applies to "employees in the competitive service (including Veterans Readjustment Appointees) or in positions under the General Schedule." FPM Letter 300-32, paragraph 1 (emphasis in original). As such, FPM Letter 300-32 is generally applicable to the Federal workforce as a whole and is "Government-wide" within the meaning of section 7117(a)(1) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 32 FLRA 404, 407 (1988).

Second, OPM is empowered under 5 U.S.C. §§ 1301, 3301, and 3302, and 5 C.F.R. §§ 5.1 and 110.101 to establish regulations governing the competitive service, including policy and guidance governing details. Pursuant to this authority, OPM issued FPM Letter 300-32. Because OPM issued FPM Letter 300-32 pursuant to its authority to promulgate regulations governing the competitive service, FPM Letter 300-32 is a "binding declaration of official policy" which constitutes a "regulation" within the meaning of section 7117(a)(1) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1759 and Department of the Army, Headquarters, Fort McPherson, Georgia, 31 FLRA 21, 29-30 (1988); National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9 FLRA 151, 154-55 (1982).

Because Provision 6 is inconsistent with a Government-wide regulation within the meaning of section 7117(a)(1), it is outside the duty to bargain. In view of this determination, we find it unnecessary to address the Agency's contentions that the provision is outside the duty to bargain because it conflicts with management's rights.

IX. Provision 7

Article XXVIII - Disciplinary and Adverse Actions

2. An adverse action is a discharge, suspension for more than fourteen (14) days, furlough without pay, or reduction in pay. It includes a resignation, optional retirement, or requested reduction in pay if the action was secured by duress, intimidation or deception. It does not include any action directed or subject to the approval of the Office of Personnel Management, a reduction-in-force action, an action based on security determinations, or an action terminating a temporary promotion within a period of two (2) years and returning the employee to the position from which temporarily promoted or to an equivalent or intervening position.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that Provision 7 "improperly attempts to make any 'furlough without pay' an adverse action[,]" and is nonnegotiable under section 7117 of the Statute because it is inconsistent with the wording of 5 U.S.C. § 7512. Agency's Statement of Position at 21. The Agency argues that, by defining an adverse action as a "furlough without pay," the provision is contrary to 5 U.S.C. § 7512, which states that an adverse action is a "furlough of 30 days or less[.]" The Agency further notes that 5 C.F.R. § 351.201(a)(2) provides that a furlough of more than 30 days is a reduction-in-force, not an adverse action.

The Union states that the disputed sentence "simply defines what an adverse action is under this labor agreement." Union's Petition for Review at 6.

B. Analysis

We conclude that Provision 7 is within the duty to bargain because it is consistent with law.

The relevant portion of 5 U.S.C. § 7512 states that an adverse action applies to: "(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less" but does not apply to "a reduction-in-force under section 3502 of this title," or to "a reduction in grade or removal under section 4303 of this title[.]" The Agency notes that under 5 C.F.R. § 351, a Government-wide regulation, a furlough for more than 30 days is covered as a reduction-in-force. 5 C.F.R. § 351.201(a)(2). The Agency contends that because Provision 7 covers furloughs of more than 30 days, it includes reductions-in-force as adverse actions and, therefore, is inconsistent with 5 U.S.C. § 7512.

The first sentence of Provision 7 defines adverse actions to include furloughs, without reference to the length of the furlough. The remainder of the provision states that its definition "does not include a reduction-in-force action[.]" Reading the two sentences concurrently, we find that Provision 7 does not include furloughs of more than 30 days in its definition of adverse actions.

The statutory definition of the term "adverse action" is provided in 5 U.S.C. § 7512. The record in this case does not indicate that the provision is intended to be read differently from 5 U.S.C. § 7512. We find that Provision 7 is intended to be interpreted consistent with the statutory definition of adverse action and, therefore, covers furloughs of 30 days or less only. Interpreted in this manner, the provision is consistent with law and is negotiable under section 7117(a)(1) of the Statute.

X. Provision 8

Article XXXIII - Health and Safety

2. Only authorized employees, who are qualified or in training, will be permitted or required to operate machinery or equipment or to perform work that could cause injury to an inexperienced or untrained operator or endanger other employees or patients.

A. Positions of the Parties

The Agency contends that Provision 8 is contrary to management's rights to assign work and to determine the personnel by which Agency operations shall be conducted under section 7106(a)(2)(B). Agency's Statement of Position at 7, 23. The Agency argues that Provision 8 does not allow management to consider the needs of the Agency or emergency situations when assigning an employee to perform a work assignment. The Agency asserts that Provision 8 requires that management assign certain tasks only to specified employees and conditions management's ability to assign work on consideration of whether the employee's performance could cause injury or otherwise endanger others. Agency's Statement of Position at 23-24.

The Union states that Provision 8 means that "the employer will assign the operation of machinery and equipment to people who are competent to operate it in a safe manner. This requires the employer to use common sense." Union's Petition for Review at 6.

B. Analysis

Provision 8 is nonnegotiable because it conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provisions which require management to assign certain tasks to particular personnel conflict with the right to assign work under section 7106(a)(2)(B). For example, American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1255 (1988) (Provision 11). Provisions which require management to restrict work assignments to "qualified" personnel or which condition management's ability to assign work also conflict with this right. See, for example, Laborers International Union, Local 1276, AFL-CIO and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 15 FLRA 49 (1984) (proposal would limit packers' operation of material handling equipment).

Provision 8 limits operation of machinery or equipment only to those employees who are "qualified or in training"; that is, employees who know how to operate the machinery or equipment or who are learning to operate the machinery or equipment. Provision 8 is similar to a proposal found to be outside the duty to bargain in National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 812-13 (1987). In that case, Proposal 8 stated that only authorized employees who are "qualified or in training" will be permitted to operate machinery or equipment or to perform work that could cause injury to an inexperienced operator or endanger other employees. Id. at 812. Because Proposal 8 in Boise District Office limited management's right to assign work, it was nonnegotiable. 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, 87-88 (1987) (Provision 11, limiting the repair of moving operating machines to qualified maintenance personnel, was nonnegotiable because it conflicted with management's right to assign work under section 7106(a)(2)(B)).

Provision 8 would limit the assignment of certain work involving the operation of machinery or equipment to only those employees who are qualified or "in training," if the operation of the machinery or equipment could cause injury to an inexperienced operator or to others. While we are not unsympathetic to the principles underlying this provision, it would preclude management from assigning work to employees, unless the employees were experienced in the operation of the equipment involved or already involved in learning to operate the equipment. Provision 8, therefore, conflicts with management's right to assign work under section 7106(a)(2)(B) and is outside the duty to bargain.

XI. Order

The Agency must rescind its disapproval of Provisions 3 and 7.(4) The Union's petition for review concerning Provisions 1, 2, 4, 5, 6, and 8 is dismissed.

Member Armendariz, concurring in part and dissenting in part as to Provision 3:

I agree with my colleagues that the basis asserted by the Agency does not render the disputed sentence of Provision 3 nonnegotiable. However, I respectfully dissent from the conclusion that the provision's negotiability is unaffected by the provision's explicit requirement that "[t]he supervisor" shall post notices of the holiday schedules.

The Authority has consistently held that provisions or proposals which prescribe who must perform a task and thereby require an agency to assign a specific duty to a particular individual are nonnegotiable because they directly interfere with management's right under section 7106(a)(2)(B) to determine what work will be performed and by whom. See, for example, National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA No. 30 (1990) (Department of Agriculture); and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 7 FLRA 235, 239-40 (1981). See also Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1488 (D.C. Cir. 1989). Provision 3 specifically identifies which individual--the supervisor--should perform a particular task. Therefore, consistent with Authority precedent, I would find it to be nonnegotiable.

It is irrelevant that this contention was not raised by the Agency. In making negotiability determinations under the Statute, the Authority addresses dispositive issues where those issues are apparent from the nature of the proposal, even in the absence of specific arguments raised by a party. As the D.C. Circuit has stated, the Authority is "not foreclosed from making an independent inquiry into the law relevant to each agency's exercise of management rights[.]" National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). See also Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 32 FLRA 98, 100 (1988), order denying motion for reconsideration of 31 FLRA 131; and American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 507 (1987) (Provision 3, Section 2). The Authority has considered this very issue in other cases where the issue was not specifically raised. See National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 419, 422 (1988) (Proposal 21, sections 5 and 8), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. order Sept. 27, 1988) (sections of the proposal were found to be nonnegotiable because they assigned a particular task to a specific individual, despite the fact that the agency did not raise those specific arguments); and American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 27 FLRA 363, 366 (1987) (Proposal 4) (the Authority found that the proposal was nonnegotiable because it assigned specific duties to supervisors even though that argument was not raised by the agency).

I decline to attribute significance to the fact that the Union's petition for review as to Provision 3 states that the "employer" shall post holiday schedule notices. Provision 3 states that the "supervisor" shall post the notice. The term "supervisor" is unambiguous. In my opinion, the Union's use of the term "employer" is inconsistent with the plain wording of the provision. Where a union's statement of intent is inconsistent with the wording of a proposal or provision, the Authority bases its decision on the interpretation of the proposal or provision which is consistent with the plain wording. See National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 35 FLRA No. 5, slip op. at 3 (1990) (Department of the Treasury); and Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1155 (1990). Accordingly, Provision 3 should be interpreted as it is clearly written.

The Authority has consistently stated that the defect in provisions like this one can easily be remedied by changing the word "supervisor" to "Agency," "employer," or something similar. See, for example, Department of Agriculture; and 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). It is a simple matter to rephrase the provision to make it negotiable. However, "[i]t is for the [u]nion, not the FLRA, to draft proposals that come fully within the [e]mployer's duty to negotiate." Department of the Treasury, 35 FLRA No. 5, slip op. at 4-5, quoting Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987).

Accordingly, consistent with established Authority precedent, I would find Provision 3 to be nonnegotiable.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Authority notes that during the pendency of this case the Veterans Administration was reestablished as the Department of Veterans Aff