41:0589(57)NG - - AFGE Local 1513 and Navy, Naval Air Station, Whidbey Island, Oak Harbor, WA - - 1991 FLRAdec NG - - v41 p589



[ v41 p589 ]
41:0589(57)NG
The decision of the Authority follows:


41 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1513

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL AIR STATION, WHIDBEY ISLAND

OAK HARBOR, WASHINGTON

(Agency)

0-NG-1744

DECISION AND ORDER ON NEGOTIABILITY ISSUES

July 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of five provisions of a collective bargaining agreement negotiated by the Union and the Agency that were disapproved by the Department of the Navy under section 7114(c) of the Statute.

Provision 1 states that, under certain circumstances, the Agency will provide transportation or dispatch an individual to obtain food for employees performing overtime assignments. We find that the portion of the provision relating to transportation is not inconsistent with 31 U.S.C. § 1344. We further find that the portion of the provision requiring the Agency to dispatch an individual to obtain food directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. However, that portion of the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, we conclude that Provision 1 is negotiable.

Provision 2 provides that the granting of annual leave will not be restricted in cases where employees may forfeit leave. We find that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) and, therefore, is nonnegotiable.

Provision 3 states that employees will be allowed time for changing and cleanup prior to the meal period and at the end of the work day. We find that the provision directly interferes with the right to assign work under section 7106(a)(2)(B), but that it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, we conclude that Provision 3 is negotiable.

Provision 4 provides that employees who voluntarily refer themselves to the Navy Alcohol, Drug and Substance Abuse Program for counselling may retain all their current privileges. We find that a portion of the provision is inconsistent with Executive Order 12564. We find the remaining portion of the provision directly and excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Accordingly, we conclude that Provision 4 is nonnegotiable.

Provision 5 states that the Agency will include a Union representative at various local training sessions. Based on the parties' interpretation of the provision, we find that it is no longer in dispute.

II. Procedural Issue

The Union moves to strike the Agency's statement of position on the basis that it was untimely filed. According to the Union, the petition for review was "initiated" on August 22, 1989, and the Agency's statement of position was filed on October 25, 1989. Union Response at 4. The Union argues that the statement of position was filed beyond the time limit set forth in section 2424.6(a)(2) of the Authority's Rules and Regulations.

The record reveals that the Union's petition for review, dated August 22, 1989, was filed with the Authority on August 25, 1989. The Authority advised the Union at the time of filing that the petition was procedurally deficient because, among other things, it did not include a signed statement of service showing service on the Agency head or his designee. The Union was given an opportunity to correct the deficiencies. Also, the Union was advised that the time period within which the Agency could file a statement of position was 30 days from the date the Agency head received a petition that complied with the Authority's Regulations. The Union subsequently notified the Authority that a corrected petition was served on the Agency by overnight express mail on September 18, 1989.

Under section 2424.6(a) of the Authority's Rules and Regulations, an agency's statement of position must be filed with the Authority within 30 days of the date of receipt by the agency head of a petition for review. Where a petition contains procedural deficiencies, an agency has 30 days from the date of the completed appeal in which to file its response. See American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 161-62 (1987). The Agency's statement of position was filed with the Authority on October 25, 1989. In its statement, the Agency indicates that the Union's perfected petition was received on September 25, 1989. As the Agency's statement of position was timely filed based on the date it claims to have received the Union's perfected petition for review, and in the absence of any evidence submitted by the Union that the petition for review was not received by the Agency on that date, we conclude that the Agency's statement of position was timely filed. See American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg North Carolina, 38 FLRA 626, 627 (1990).

III. Provision 1

Article 8, Section 6

During overtime assignments when employees were not aware of the length of the job assignments so that they could provide their own food, the Employer, when requested, will provide transportation or dispatch an individual to obtain food for the employees, at the employees' expense.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 1 is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and because it conflicts with 31 U.S.C. § 1344.

The Agency argues, first, that the plain language of the provision differs from the Union's stated intent. The Agency argues that Provision 1 would require the employer to either provide transportation or dispatch an individual to obtain food, when requested, in contrast to the Union's assertion that the intent of the proposal is only to permit an individual to obtain food. The Agency argues that "[r]equiring the employer to assign an employee the work of obtaining food for employees on overtime, when the employees request it, directly interferes with [management's] right to assign work . . . ." Agency Statement of Position at 2. In support, the Agency relies on the Authority's decision in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980) aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), in which the Authority discussed the meaning of management's right to assign work.

The Agency also argues that the portion of the provision that requires the employer to furnish transportation to employees for the purpose of obtaining food, if an individual is not dispatched for that purpose, violates 31 U.S.C. § 1344. In this regard, the Agency interprets the term "transportation" referenced in the provision as meaning "government transportation." Agency Statement of Position at 3. The Agency argues that under 31 U.S.C. § 1344, Government-owned passenger vehicles can be used only for "official business." Id. The Agency asserts that because eating is not "work" or "employment," providing Government vehicles for a non-work activity does not constitute an official purpose and, therefore, the provision violates 31 U.S.C. § 1344. Id.

2. Union

In its petition for review, the Union states that the intent of the provision is to ensure that during overtime assignments of an unknown duration, the Agency would permit someone to obtain food for the employees. The Union adds that the arrangement set forth in the provision was in effect prior to the parties' most recent collective bargaining agreement and was then inserted into that agreement. The Union states that it is merely trying to maintain the established procedure.

The Union argues that the provision does not interfere with management's rights, but instead, provides an option to the Agency of either dispatching an individual to obtain food or providing transportation for that purpose. The Union explains that the Agency's facility is divided into two areas, with food service available in the area that is not the principal work area where employees are located. The Union states that the person designated to obtain food would not have to be an employee on overtime, but could be another employee or a military individual.

The Union also argues that if the Authority finds the provision to conflict with the exercise of a management right, then the provision is designed to be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union states that the provision would become operative only after management has directed employees to work overtime and only when the notice of overtime is insufficient to enable employees to obtain food in some other manner. The Union argues that the provision is designed to apply when employees are working "overlong overtime assignments" that require the employees to miss meals. Union Response at 10. According to the Union, the provision would mitigate the adverse effects on employees who miss regular meals and would provide "significant health and morale benefits to employees[.]" Id.

In response to the Agency's contention that Provision 1 conflicts with 31 U.S.C. § 1344, the Union asserts the Authority should reject this contention as it did with respect to a provision authorizing the use of a Government vehicle in American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy Naval Weapons Station Concord, California, 32 FLRA 1023, 1059 (1988) rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989). Union Response at 10-11. The Union argues that 31 U.S.C. § 1344 merely "proscribes transporting employees between their domiciles and places of employment[,]" and that "Provision 1 does not fall within the proscription[.]" Id. at 11. Finally, the Union argues that the provision does not mandate providing transportation and that the provision is intended to apply in a manner that is consistent with applicable law.

B. Analysis and Conclusions

For the following reasons, we find that the portion of Provision 1 that would require the Agency to dispatch an individual for the purpose of obtaining food interferes with management's right to assign work. However, we further find this portion of the provision to be a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. We also find that the portion of the provision requiring the Agency to provide transportation does not conflict with 31 U.S.C. § 1344.

1. Requiring the Agency to Dispatch an Individual Directly Interferes with the Agency's Right to Assign Work

At the outset, we note that the language is silent as to the type of individual who will be dispatched for the purpose of obtaining food items. The Union states that the individual need not be an employee who is on an overtime assignment but, rather, could be another employee or a member of the military. The Agency does not distinguish between unit and non-unit employees or military personnel in arguing that the provision interferes with its right to assign work. Because the provision is silent as to the type of individual who will be assigned the task we assume, for purposes of our decision, that the provision would not require the Agency to make assignments to military personnel. Instead, we interpret the provision as applying to unit or non-unit civilian employees, including supervisors and management officials.

Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990). We find that Provision 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) because it would require the Agency to assign a specific task, that of obtaining food, to an employee. Accordingly, we conclude that the portion of the provision requiring the Agency, when requested, to dispatch an individual to obtain food directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. The Provision Constitutes a Negotiable Appropriate Arrangement

In determining whether a provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is first necessary to determine whether the provision is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the provision is intended to be an arrangement, the Authority next examines whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

The Union argues that Provision 1 is intended to be an arrangement to mitigate the adverse effects on employees who miss regular meals "when working overlong overtime assignments[.]" Union Response at 10. The Union states that the provision becomes operative only when employees have been given insufficient notice of overtime assignments to enable them to provide their own meals. The Union states, without contradiction, that food service is not readily available in areas in which employees work.

We conclude that this portion of the provision is intended to be an arrangement for employees adversely affected by the exercise of management's assignment of overtime. We also conclude, for the reasons set forth below, that this portion of the provision does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In concluding that the provision does not excessively interfere with the exercise of management's right, we note that the provision applies only when employees are unaware of the duration of an overtime assignment and, therefore, are unable to take measures to provide their own meals. In this regard, it is uncontroverted that employees may be called on to work long hours and in areas that do not have food service readily available. Under such circumstances, dispatching an individual to procure food items, at the employees' expense, so that employees do not miss meals, clearly relates to the health and well-being of the employees. Employees who are required to stay on the job for unknown periods of time without adequate nourishment may suffer ill effects and reduced productivity. The ability of employees to perform their assigned tasks under such circumstances could be seriously impaired.

In contrast, the effect on the Agency's right to assign work, on balance, would be less significant. While the Agency would be required to dispatch an individual for the purpose of obtaining food, the Agency would maintain the discretion to determine which individual to dispatch. Also, we find that when faced with requests to dispatch an individual, the Agency would be able to determine when, during the overtime assignment, to dispatch the individual. Nothing in the provision requires the individual to be dispatched immediately, on the employee's request, rather than when the Agency deems the dispatched individual to be available to perform the task. In addition, disruption could be minimized by having the Agency solicit food orders when a request is first made or otherwise determining when the dispatched individual will actually obtain the food items. Moreover, the fact that the practice of dispatching an individual for this purpose has been in existence, as the Union states, suggests, in the absence of any arguments by the Agency to the contrary, that the requirements of Provision 1 would not significantly affect management's ability to assign work.

Consequently, on balance, we find that Provision 1 does not excessively interfere with the Agency's right to assign work and constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

3. Provision 1 Is Consistent with 31 U.S.C. § 1344

As an alternative to dispatching an individual to obtain food, Provision 1 also states that the Agency will provide transportation, when requested, to enable employees to obtain food during overtime assignments. Contrary to the Agency's assertion, we find that this portion of the provision is consistent with 31 U.S.C. § 1344.

31 U.S.C. § 1344 governs the use of passenger carriers owned by the Government and prescribes the circumstances under which funds may be expended for the operation, maintenance and repair of passenger vehicles that are used for "official purposes." As noted, the Agency contends that the use of Government vehicles for obtaining food for employees assigned to overtime in the circumstances of this case is not for an official purpose and, therefore, the provision is inconsistent with 31 U.S.C. § 1344.

Recently, we addressed a proposal involving the use by employees of Government vehicles to obtain food and in which to eat meals. In National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479 (1991) (Pacific Missile Test Center), we found that such use did not constitute an official purpose in the circumstances presented. However, we also indicated that there are situations in which the use of a Government vehicle can be authorized under 31 U.S.C. § 1344. We noted, by way of example, that the use of Government vehicles may be authorized when employees are unexpectedly detained at the work site or work in remote locations.

In this case, based on the language of the provision and the Union's stated intent, we find that the use of Government vehicles is consistent with "official purposes" within the meaning of 31 U.S.C. § 1344. This portion of the provision would allow the use of Government vehicles for the purpose of obtaining food only when employees are unaware of the duration of an overtime assignment and could not otherwise provide their own meals. Because the employees would be detained at the Agency's facility, performing duties that are assigned to them on an overtime basis, and in areas that are remote from food service facilities, we conclude that the use of Government vehicles would be for "official purposes" within the meaning of 31 U.S.C. § 1344.

In sum, we find that Provision 1 does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and does not conflict with 31 U.S.C. § 1344. Accordingly, we conclude that Provision 1 is negotiable.

IV. Provision 2

Article 9, Section 2

Granting of annual leave shall not be restricted to the extent that an employee forfeits earned leave because of the restrictions on the amount of annual leave which may be carried forward to the next leave year. Employees shall be notified at least four (4) times during the leave year of the amount of leave that must be used to avoid forfeiting leave. (Only the underlined portion of the provision is in dispute.)

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. More specifically, the Agency asserts that the Union's statement of intent regarding Provision 2 is inconsistent with the wording of that provision. As characterized by the Agency, the Union's intent is to prevent employees from losing accrued annual leave. However, the Agency maintains that the plain language of the provision "would prevent the [A]gency from denying leave or rescinding previously approved leave if the employee is in a 'use or loose' [sic] leave status, regardless of the need for the employee's services." Agency Statement of Position at 5. Consequently, the Agency contends that Provision 2 is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B). In support of its position, the Agency cites American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580 (1984) (Headquarters, 1606th Air Base Wing (MAC)), and other cases in which proposals restricting an agency's right to disapprove leave requests were held to be outside the duty to bargain.

Additionally, the Agency maintains that "there is no need to negotiate a contractual provision to permit the carry over of unused annual leave." Agency Statement of Position at 4. According to the Agency, "5 U.S.C. § 6304(d) provides conditions and procedures for leave restoration, which fully protects employees who have complied with the [statutory] requirements." Id. In the Agency's view, "[t]o attempt to negotiate contract provisions to provide protections that already exist in law is pretexual [sic]." Id.

2. Union

In its petition for review, the Union states that the intent of this provision is to protect employees from forfeiting annual leave when unforeseen workload requirements occur that prevent employees from taking scheduled annual leave prior to the end of the calendar year. The Union states that this provision would simply allow unused leave to be carried over to the next calendar year. The Union argues that management would not be prevented from disapproving annual leave because of work load requirements or the need for employees' services.

In its response to the Agency's statement of position, the Union argues that Provision 2 "permits the agency to consider its staffing and workload needs when approving or cancelling annual leave" and, therefore, is "equivalent" to a proposal found negotiable in National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 370 (1988) (Veterans Administration). Union Response at 12.

The Union also maintains that Provision 2 is similar to two proposals found negotiable in National Treasury Employees Union, Chapter 22 and Department of the Treasury, Internal Revenue Service, 29 FLRA 348, 352-354 (1987) (PSC Proposal 9 and PRP Proposal 7) (Internal Revenue Service), which required the agency to take appropriate actions so that employees in the use or lose leave category would not lose leave. The Union argues that Provision 2, likewise, does not "specify the manner in which 'use or lose' leave will be protected when the employer determines whether or not to approve requests for use of annual leave[,]" but "merely provides that the Agency's actions will not result in forfeiture of earned annual leave." Id. at 14.

B. Analysis and Conclusions

For the following reasons, we find that the provision 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.

The plain wording of Provision 2 states that the granting of annual leave shall not be restricted where an employee would forfeit use or lose leave because of restrictions on the amount of annual leave that can be carried over from one leave year to the next. Stated otherwise, the provision would prevent the Agency from disapproving annual leave requests or rescinding previously approved requests for annual leave if such action would result in the forfeiture of annual leave. The Union states that the provision is not intended to prevent management from disapproving annual leave either because of workload requirements or the need for the employees' services. However, we find that the Union's stated intent is not consistent with the plain wording of the provision, which does not permit the Agency to take into account workload requirements or the need for employees' services. Where there is an inconsistency between the language of a proposal and its stated intent, we will not base a negotiability determination on the union's intent. Rather, we will base our determination on the language of the proposal. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990).

Here, as noted, the provision would prevent the Agency from disapproving annual leave requests or rescinding previously approved annual leave requests when such action would result in the forfeiture of annual leave. The provision makes no exception for workload requirements or the need for employees' services. The Authority consistently has held that proposals which place restrictions on an agency's right to deny the use of annual leave or rescind previously approved annual leave requests are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 250-52 (1990) (Proposal 1) (proposal that would permit management to deny annual leave only where the absence of the particular employee would prohibit the agency from accomplishing a critical job found to impose a substantive criterion on management's ability to assign work in violation of section 7106(a)(2)(B)); Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 523-25 (1990) (Provision 1) (provision that would prevent the agency from rescinding approved leave except in extreme emergencies found to directly interfere with section 7106(a)(2)(B)); Headquarters, 1606th Air Base Wing (MAC), 15 FLRA at 583 (Proposal 4) (portion of proposal that would require the agency to grant annual leave as long as the employee's need was clearly documented removes management's discretion to deny leave and violates section 7106(a)(2)(B)).  As Provision 2 would restrict the Agency's right to disapprove or rescind leave, it directly interferes with management's right to assign work under 7106(a)(2)(B) of the Statute.

The Union's reliance on Veterans Administration is misplaced. On remand from the United States Court of Appeals for the District of Columbia Circuit, the Authority dismissed the petition for review in that case, finding that the agency had no obligation to bargain over conditions of employment of professional medical employees under 38 U.S.C. § 4108(a). National Federation of Federal Employees Council of Veterans Administration Locals and Veterans Administration, 33 FLRA 349 (1988). Additionally, the provision in this case is distinguishable from the two proposals found negotiable in Internal Revenue Service, on which the Union also relies. Those proposals provided that the agency would take appropriate actions so that employees in the use or lose category would not lose leave. The Authority determined that the proposals were negotiable because they did not restrict the agency's right to disapprove leave requests when such requests conflicted with work requirements. In contrast, the provision here does not involve measures the Agency will take to ensure that employees do not lose leave. Instead, the provision would prevent the Agency from disapproving or rescinding leave requests in all circumstances.

Based on the foregoing, we conclude that Provision 2 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and as the Union has not argued that Provision 2 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we find the provision to be nonnegotiable. In view of this conclusion, it is unnecessary to address the Agency's additional argument regarding the statutory provisions concerning leave restoration.

V. Provision 3

Article 25, Section 4

Time will be allowed, consistent with the nature of the work performed, for employees to change and clean up prior to the eating period and at the end of the work day. In the same manner, a reasonable amount of time will be allowed for employees for the storage, cleaning, change, report, and protection of government property, equipment, and tools prior to the end of the work day. (Only the underlined portion of the provision is in dispute.)

A. Positions of the Parties

1. Agency

The Agency contends that Provision 3 is nonnegotiable because it conflicts with law and interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. More specifically with regard to the latter assertion, the Agency cites various Authority decisions to support its view that requiring an agency to provide employees time to clean up, during the workday, directly interferes with management's right to assign work under section 7106(a)(2)(B).

As to the Agency's argument that the provision is inconsistent with law, the Agency states that 5 U.S.C. § 6101 requires a basic 40-hour workweek. The Agency argues that Provision 3 is inconsistent with this requirement because the provision "requires the counting of 'personal clean up time,' a non-work activity," as work for fulfilling the 40-hour workweek requirement of 5 U.S.C. § 6101. In support of this argument, the Agency cites American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600 (1987) (Social Security Administration).

2. Union

The Union concedes that the Authority previously has found proposals similar to Provision 3 to be outside the duty to bargain. The Union argues, however, that the Authority should reconsider its position and find that cleanup time constitutes work within the meaning of section 7106 of the Statute. In this regard, the Union argues that there are Agency directives, which employees are required to follow, that pertain to "personal and equipment cleanliness[.]" Union Response at 16. For this reason, the Union argues that cleanup is an activity that is assigned by the Agency, for the primary benefit of the Government, and that it, therefore, constitutes work.

The Union also argues that Provision 3 is an appropriate arrangement for employees adversely affected by management's right to assign work under section 7106(b)(3) of the Statute. The Union notes that "[e]mployees work with potential hazardous materials, including cleaning with methyl ethyl keton (MEK) and industrial chlorine, and handl[e] containers of radioactive materials and liquid components of avionics 'black boxes[,]'" and "get such materials on their hands arms and clothing[.]" Union Response at 17. The Union states that employees also work with non-hazardous, dirty materials. The Union argues that, like the proposal in The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988), Provision 3 is necessary for the health and safety of employees. The Union also asserts that employees are subject to discipline for failing to adhere to the Agency directives regarding personal and equipment cleanliness. The Union adds that "practice and common sense militate against trying to distinguish between personal and non-personal clean up activities in the context of this dispute." Union Response at 18.

Finally, the Union argues that Provision 3 would cause "minimal interference" with management's right to assign work because "the amount of clean up time and the occasions on which it would be provided to employees is not guaranteed, but is to be used only 'consistent with the nature of the work performed[.]'" Id. Additionally, the Union maintains that the provision "would improve the efficiency of the activity by contributing to higher employee health and morale levels and by promoting attention to safe working practices." Id.

B. Analysis and Conclusions

Recently, the Authority reexamined the statutory and regulatory restrictions applicable to proposals concerning cleanup time. American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 381-97 (1991) (Fort Campbell) (Member Armendariz concurring), petition for review filed sub nom. United States Department of the Army, 101st Airborne Division, Fort Campbell, Kentucky v. FLRA, No. 91-1298 (D.C. Cir. June 24, 1991). On the basis of that decision, and for the reasons more fully set forth below, we find that Provision 3 is consistent with 5 U.S.C. § 6101.(1) We further find that although the provision directly interferes with management's right to assign work under section 7106(a)(2)(B), it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

1. Provision 3 Is Consistent With 5 U.S.C. § 6101

In Fort Campbell, we held that, under law and regulation, including 5 U.S.C. § 6101, an agency has the discretion to consider time spent in cleanup as work. 40 FLRA at 388, 392. We further held that, under law and regulation, cleanup time can constitute compensable work. Id. In reaching these conclusions, we also stated that we would no longer adhere to previous Authority decisions holding that proposals providing for cleanup time are inconsistent with 5 U.S.C. § 6101. Id. at 392. In accordance with our decision in Fort Campbell, we therefore reject the Agency's argument that Provision 3 in this case is inconsistent with 5 U.S.C. § 6101. The Agency's reliance on Social Security Administration is inapposite, as that case dealt with time set aside for eating, and not with time to be used for cleanup purposes.

2. Provision 3 Directly Interferes with the Agency's Right to Assign Work

Provision 3 would require the Agency to provide employees with time during their regular tours of duty, either prior to the eating period or at the end of the day, for cleanup. As such, the provision is substantively similar to Proposal 3 in Fort Campbell, which required the agency to provide employees with cleanup time during their regularly scheduled workdays, both before their lunch periods and at the end of the workday, and also during scheduled overtime assignments. We found that the proposal directly interfered with management's right to assign work under section 7106(a)(2)(B).(2) We reach the same conclusion here. See also National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657 (1991) (Provision 2).

3. Provision 3 Constitutes a Negotiable Appropriate Arrangement

The Union states that Provision 3 is necessary for the health and safety of employees inasmuch as employees work with potentially hazardous materials, including methyl ethyl keton (MEK) and industrial chlorine. The Union further asserts that employees handle containers of radioactive materials and liquid components of avionics "black boxes," as well as non-hazardous and dirty materials, all of which come in contact with the employees' hands, arms, and clothing. Union Response at 17. The Union also states that employees are required to adhere to Agency directives pertaining to personnel and equipment cleanliness, and that failing to comply would subject employees to disciplinary action.

Based on the Union's assertions concerning the nature of the work performed by unit employees, we find that Provision 3 was intended to be an arrangement for employees adversely affected by the exercise of management's right to assign work. In reaching this result, we find unpersuasive the Agency's claim that the Union has failed to establish that "inherently toxic materials are handled by the employees in the unit . . ." and that the Agency "requires employees to clean up prior to eating or leaving work." Agency Statement of Position at 6. Instead, as the Union states, employees use a variety of substances while performing work, some of which are potentially dangerous and others that are non-hazardous but involve dirty materials, and these substances come in contact with employees' clothing and skin surfaces. As the Union argues, authorizing time for the purpose of cleanup contributes to employees' health and safety.

We find, on balance, that the provision is appropriate because it does not excessively interfere with management's right to assign work. As the Union states, the amount of cleanup time to be used and the occasions on which employees could use cleanup time are designed to be consistent with the nature of the work performed. The provision does not grant time for cleanup to all employees in the bargaining unit, regardless of the nature of their work. When employees are not performing tasks that involve or bring them into contact with potentially dangerous chemicals or non-hazardous but dirty materials, nothing in the provision requires that employees be given cleanup time.

On the other hand, the provision could place a restriction on the exercise of management's right to assign work by precluding the Agency from assigning other tasks to employees during the time they are engaged in cleanup. However, the benefits to employee health and safety that will be gained by giving employees time to clean up after performing assigned tasks that expose them to potentially dangerous chemicals, as well as to non-hazardous and dirty materials, outweigh the burdens on management's right to assign other work during those periods. In addition, the provision would not otherwise significantly restrict management's right to assign work, because the provision requires that the time allowed for cleanup be "consistent with the nature of the work performed" and does not automatically provide cleanup time for all bargaining unit employees. Finally, the record indicates that the parties' current collective bargaining agreement provides for unit employees to use paid time for cleanup purposes. The Agency has not established that this practice has excessively interfered with its right to assign work.

In sum, we find that Provision 3 does not excessively interfere with the Agency's right to assign work and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

VI. Provision 4

Article 30, Section 3

Employees voluntarily referring themselves to the Navy Alcohol, Drug and Substance Abuse Program (NADSAP) for counselling may retain all current privileges (driving on/off base, driving government vehicles, clearances for professional purposes, etc.).

A. Positions of the Parties

1. Agency

The Agency contends that Provision 4 is nonnegotiable because it interferes with management's right to determine internal security practices under section 7106(a)(1) of the Statute and with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency also argues that the provision conflicts with Federal law, namely, Executive Order 12564 (E.O. 12564).

With regard to its right to determine internal security practices, the Agency argues that the intent of Provision 4 is to allow an employee who has a problem such as alcoholism, substance abuse or an emotional disorder to voluntarily refer him or herself to the Navy Alcohol, Drug and Substance Abuse Program (NADSAP) for counselling in order to retain his or her "current privileges." Agency Statement of Position at 8. The Agency argues, by way of example, that the provision would permit an employee charged with driving under the influence of alcohol to retain both on and off base driving privileges regardless of the outcome of the charges. The Agency asserts that retention of driving privileges by an employee in such circumstances would be inconsistent with Department of Defense and Agency regulations that require revocation of on-base driving privileges for one year. More specifically in this regard, the Agency argues that revocation of on-base driving privileges is a part of the Agency's plan to protect its personnel and its physical property. By allowing employees to retain their driving privileges, the Agency contends, the provision is inconsistent with the Agency's internal security practices. In support, the Agency cites Defense Logistics Council of American Federation of Government Employees Locals and Defense Logistics Agency, 20 FLRA 166 (1985) (Defense Logistics Council), aff'd in part, rev'd in part and remanded sub nom. Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234 (D.C. Cir. 1987).

The Agency further argues that the provision interferes with management's right to take disciplinary action. The Agency explains that if an employee's driving privileges are suspended, and that employee is employed as a driver, the Agency might be required to reassign or remove the employee based on an inability to perform the duties of the employee's position. The Agency states that such action would be defined as an adverse action under the parties' negotiated grievance and arbitration procedure. The Agency further states that "[b]ased on the language of the instant [provision], management's action would be violative of [the provision], as the intention is that voluntary self-referrals would 'retain all current privileges . . . .'" Id. at 8-9.

Finally, the Agency contends that Provision 4 is inconsistent with E.O. 12564 by allowing an employee who has admitted to using illegal drugs to retain security privileges. The Agency states that an employee who voluntarily refers him or herself to NADSAP, and admits to illegal drug use, is not permitted to remain in a sensitive position under Section 5(c) of E.O. 12564. The Agency cites guidance issued by the Office of Personnel Management (OPM) as support that "the employee's own admission" establishes illegal drug use by the employee. Id. at 9.

2. Union

The Union states that the intent of Provision 4 "is to protect an employee from any adverse or punitive action either veiled or unveiled, because an employee may realize that he or she has a problem and seeks professional help on their own." Petition for Review, Attachment at 5. According to the Union, the provision "intends for an employee to be able to retain driving and security privileges." Id. The Union explains that "[a]s long as the employee[']s work is not affected and the security area is not impacted the Union feels that the employee should retain all privileges." Id.

The Union also argues that Provision 4 is limited to the narrow circumstance of self-referral to NADSAP for counselling on alcohol, drug, or other substance abuse, and not to other problems as the Agency suggests. The Union further asserts that Provision 4 is not intended to shield an employee from potential prosecution, and is not intended to be applied in a manner inconsistent with existing or future laws and Government-wide regulations, including Department of Defense and Agency regulations and E.O. 12564. More particularly with regard to the Agency's assertion that the provision would require the retention of privileges without regard to a charge of driving under the influence of alcohol, the Union asserts that "[n]othing in Provision 4 addresses retention or loss of privileges . . . as a result of such an arrest." Union Response at 20. The Union adds that the privileges referenced in the provision do not "mean actions required by . . . E.O. 12564 and implementing government-wide regulations[,]" and that Provision 4 does not "preclude the [Agency] from applying any appropriately implemented policy or regulation under which either a civilian arrest or seeking counselling for the purpose of avoiding potential prosecution were involved in a decision to suspend employee privileges." Id. at 20-21.

The Union also argues that the Agency's reliance on Defense Logistics Council is misplaced as the issues presented in that case and those presented here are different. The Union also contests the Agency's claim that the provision interferes with management's right to discipline based on an interpretation of the parties' collective bargaining agreement. The Union states that "an alternative interpretation" of the agreement exists "which is consistent with the [provision's] facial language." Id. at 22.

The Union also contends that Provision 4 is not inconsistent with E.O. 12564. The Union argues that Section 5(c) of the Executive Order provides the Agency with discretion to determine whether to remove an employee from a sensitive position and that Provision 4 does not dictate how that discretion will be exercised. Furthermore, the Union argues that even if Provision 4 precluded removal of employees from sensitive positions, it would not be inconsistent with the Executive Order because the Executive Order does not require removal in every instance of illegal drug abuse. Finally, the Union contends the provision is not inconsistent with the OPM guidance cited by the Agency. The Union states that the guidance does not mandate that every admission by an employee of illegal drug use must result in an agency determination of that employee's drug use. The Union adds that even if such an agency determination were required, nothing in the guidance would prevent the Agency from electing to treat the employee's admission "in a rehabilitative mode . . . ." Id. at 24-25.

B. Analysis and Conclusions

For the reasons that follow, we conclude that the portion of the provision that would allow an employee who voluntarily refers him or herself to NADSAP to retain on-base driving privileges, including the driving of Government vehicles, directly interferes with management's right to determine internal security practices under section 7106(a)(1) of the Statute. Additionally, we find no basis on which to conclude that the provision constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. We also conclude that the portion of the provision that would allow an employee who voluntarily refers him or herself to NADSAP to retain "clearances for professional purposes" is inconsistent with E.O. 12564.

Initially, we note that the provision also refers to the retention of off-base driving privileges and other unspecified privileges. The parties bear the burden of creating a record on which the Authority can base a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (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). In the absence of any arguments concerning these privileges, we are unable to decide the negotiability of Provision 4 as it relates to the retention of such privileges for employees voluntarily referring themselves to NADSAP. Rather, our analysis is limited to the arguments raised concerning the retention of on-base driving privileges, including the driving of Government vehicles, and security privileges.

1. Retention of On-Base and Government Vehicle Driving Privileges Directly Interferes with the Agency's Right to Determine Its Internal Security Practices

The Agency asserts that the portion of the provision allowing employees who voluntarily refer themselves to NADSAP to retain on-base driving privileges interferes with the right to determine its internal security practices under section 7106(a)(1) of the Statute. By way of example, the Agency states that the provision would allow employees to retain their on-base driving privileges without regard to convictions for such infractions as driving under the influence of alcohol. The Agency argues that as part of its plan to protect its personnel and to safeguard its physical property, it has determined that suspension of on-base driving privileges for employees convicted of alcohol-related driving infractions is necessary to maintain its internal security practices.

We find this portion of Provision 4 to be to the same effect as a proposal found nonnegotiable in National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (Proposal 4). Relying, in part, on Defense Logistics Council, the Authority found that the proposed removal of civilian employees from coverage by the agency's policy of suspending or revoking driving privileges directly interfered with management's right to determine its internal security practices by affecting its plan to safeguard its personnel and physical property. We reach the same conclusion here because Provision 4 would enable certain employees to retain driving privileges and to continue to operate Government vehicles notwithstanding the Agency's policy that is designed to maintain internal security practices.

Our conclusion applies equally to the suspension or revocation of driving privileges of employees who voluntarily refer themselves to NADSAP based on illegal drug use. Clearly, the same internal security concerns that have been expressed with regard to alcohol-impaired employees would apply to those impaired by illegal drug use. Moreover, the Union does not argue, and it is not otherwise apparent to us, that Provision 4 is required by E.O. 12564. Compare American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868 (1991) (in which the Authority discussed personnel actions from which an agency may be required to refrain for employees who refer themselves to rehabilitation).

The Union's statement that the intent of the provision is to allow employees to retain driving privileges as long as "the security area is not impacted" does not compel a different result. Petition for Review, Attachment at 5. In order for the Agency to effect its policy of protecting its personnel and physical property, the Agency suspends employees' driving privileges in certain circumstances to avoid potentially unsafe and dangerous conditions that may have a harmful impact on its personnel and physical property. In this connection, the Agency states that Department of Defense and Agency regulations require revocation of on-base driving privileges for one year based on a conviction for driving under the influence of alcohol. The effect of Provision 4 is to allow employees to retain their driving privileges for whatever period of time they are undergoing counselling at NADSAP unless there is a showing that "the security area is . . . impacted." During this time, an employee's on-base driving may become impaired by alcohol or other substance abuse, thereby creating a danger to the Agency's personnel and its physical property. If the Agency were unable to suspend the employee's on-base driving privilege until there has been a showing that the security area has been "impacted," the Agency's ability to protect its personnel and safeguard its physical property before a dangerous situation occurs would be seriously impaired.

The Union's acknowledgement that the Agency could apply "appropriately implemented policy or regulation under which either a civilian arrest or seeking counselling for the purpose of avoiding potential prosecution were involved in a decision to suspend employee privileges[,]" similarly does not warrant a different result. Union Response at 21. As we indicated above, implicit in the Agency's policy is the goal of avoiding dangerous situations leading to charges and prosecution. Even if we were to read the Union's statement as authorizing the Agency to suspend driving privileges under certain circumstances, we find the range of such circumstances to be too restrictive.

Because we find that the portion of Provision 4 that would allow employees to retain their driving privileges directly interferes with the Agency's right to determine its internal security practices, it is unnecessary to address the Agency's additional contention that this portion also violates management's right to take disciplinary action.

2. Retention of On-Base Driving Privileges Does Not Constitute an Appropriate Arrangement

As indicated above, the Union states that the provision is designed "to protect an employee from any adverse or punitive action either veiled or unveiled, because an employee may realize that he or she has a problem and seeks professional help on their own." Petition for Review, Attachment at 5. However, we find that the provision does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with the exercise of management's right to determine its internal security practices.

Previously, we found that the suspension of driving privileges in certain circumstances is designed to ensure that employees whose driving may be impaired by alcohol or drug usage do not create a danger to the Agency's personnel or its physical property. Also, we found that the inability to suspend driving privileges and the use of Government vehicles until there has been a showing that there has been an impact on security areas would seriously impair the Agency's ability to protect its personnel and safeguard its physical property.

The Union explains that the purpose of the provision is to protect an employee from adverse or punitive actions when that employee voluntarily seeks help for an alcohol or drug-related problem. Thus, we conclude that the provision is intended to be an arrangement to ameliorate the adverse effects that might flow from an employee's self-referral to NADSAP. On balance, however, we find that the dangers to which the Agency's personnel and physical property would be exposed by alcohol or drug-impaired drivers outweigh the protections that the Union seeks to afford individual employees. An employee whose driving is impaired poses a significant risk to the safety of all the personnel, as well as to the Government vehicles and other property on the base. This risk cannot be eliminated, but remains present at all times if the Agency cannot suspend or revoke an employee's driving privileges or use of Government vehicles. Consequently, we find that the retention of driving privileges, as required by Provision 4, would excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

3. Retention of Security Privileges Conflicts with Executive Order 12564

The language of Provision 4 enumerates among the privileges to be retained, "clearances for professional purposes." From the contentions raised by the parties concerning this portion of the provision, it is apparent that the parties construe the term "clearances for professional purposes" to mean "security privileges." See Petition for Review, Attachment at 5 and Statement of Position at 10. Further, we construe the parties' arguments to mean that employees who have such security privileges occupy sensitive positions. See Statement of Position at 10 and Union Response at 24. For purposes of our decision, we adopt the meaning of the terms ascribed to them by the parties.

The Agency argues that allowing employees to retain security privileges is inconsistent with section 5(c) of the Executive Order. The Agency states that an employee who voluntarily refers to NADSAP and admits to illegal drug use cannot be allowed to remain in a sensitive position. We agree.

In American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 39 FLRA 1197, 1200-1206 (1991) (DHHS), the Authority found negotiable a proposal that essentially required the agency to make every effort to return to duty an employee in a position consistent with the protection of public health, safety and national security, following the employee's successful participation in a rehabilitation program. The Authority also found, however, that if the proposal were interpreted to require the Agency to "continue" an employee in a sensitive position, rather than "return" the employee following rehabilitation, the proposal would conflict with section 5(c) of E.O. 12564. Section 5(c) of the Executive Order provides that "[a]gencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to successful completion of rehabilitation through an Employee Assistance Program." Executive Order 12564, section 5(c).

Consistent with our decision in DHHS, we find that the provision would impermissibly allow an employee to retain security privileges and, thereby, remain in a sensitive position as long as the employee voluntarily refers him or herself to NADSAP. Section 5(c) of E.O. 12564, however, makes nondiscretionary the removal of an employee from a sensitive position who is found to use illegal drugs prior to the successful completion of rehabilitation. Only as part of a rehabilitation or counselling program, and following removal of an employee from a sensitive position, may an agency exercise discretion and "allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security." Id. The Union's statement of intent as to Provision 4--that employees retain their privileges as long as their work is not affected and the security area is not affected--directly contravenes the Executive Order, which requires the removal of all employees from sensitive positions pending successful rehabilitation. Because the provision does not allow for the removal of an employee under such circumstances, but, instead, would allow the employee to remain in a sensitive position, the provision is inconsistent with E.O. 12564. As the Authority has found that the Executive Order constitutes law under section 7117(a)(1) of the Statute, this portion of Provision 4 is nonnegotiable under section 7117(a)(1) of the Statute. See International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1524 (1991).

Accordingly, we find that the portion of Provision 4 allowing employees to retain their security privileges and, thereby, to remain in sensitive positions if they voluntarily refer themselves to NADSAP conflicts with E.O. 12564. In reaching this result, we note that the parties' arguments concerning the retention of security privileges relate solely to voluntary referrals based on illegal drug use, and not to referrals based on alcohol or other non-drug related substance abuse. Consequently, in the absence of any arguments raised by the parties, we specifically do not pass on the retention of security privileges by employees who voluntarily refer themselves to NADSAP for other than illegal drug use.

In sum, we conclude that Provision 4 is nonnegotiable because it excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and because the portion concerning the retention of security privileges is inconsistent with Executive Order 12564.

VII. Provision 5

Article 23, Section 7

The Employer agrees to include a representative of the Union at local training sessions pertaining to the implementation of new laws, Union contracts, or regulations concerning the working conditions of civil service employees, except where a specific cost is incurred.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 5 is nonnegotiable because it "would grant the union access to the agency's decision making processes and provide the union access to manager and supervisor training[.]" Agency Statement of Position at 11-12. The Agency asserts that section 7114(b)(4)(C) of the Statute "denies the [U]nion access to data which constitutes guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]" Id. at 11. Therefore, the Agency argues that because the provision "grants the union access not only to the data, but to the actual training sessions themselves[,]" the provision is outside the duty to bargain. Id.

The Agency further notes that it previously had approved the provision subject to the limitation that it would apply to training sessions comprised of bargaining unit employees only. The Agency claims that if the provision were so limited, the Union would have a right to be present at training sessions because such sessions would constitute formal discussions under 7114(a)(2)(A) of the Statute. The Agency maintains, however, that the Union has no statutory right to be present at training sessions on the implementation of new laws, union contracts or regulations concerning the working conditions of unit employees, if the sessions are conducted for non-unit employees, including managers, supervisors, and confidential employees.

2. Union

The Union argues, as an initial matter, that the Agency head has not disapproved Provision 5 in accordance with section 7114(c) of the Statute, because there is no provision in the Statute for conditional disapprovals. The Union also apparently argues that as the provision has not been declared nonnegotiable, there is no question that the matter is within the duty to bargain. Consequently, the Union states that Provision 5 should be dismissed from the petition for review. The Union also argues, however, that if the disapproval is effective, the provision is negotiable.

In its petition for review, the Union stated that it was requesting attendance at training sessions "when Management provides training to non-bargaining and bargaining unit members concerning new laws, Union contracts, or new regulations." Petition for Review, Attachment at 4. The Union also stated that the Agency could decide whether to mix bargaining and non-bargaining unit employees in the same training classes. In its response to the Agency's statement of position, however, the Union states that there is "no substantive negotiability dispute between the parties[,]" because the parties agreed the provision would be "interpreted as applying only to [training] sessions which 1) at the activity's election, consist of only bargaining unit members; and 2) take place after management deliberations on the subjects discussed in the sessions have occurred." Union Reply Brief at 7 (emphasis in original).

B. Analysis and Conclusions

We reject the Union's contention that the Agency head's disapproval was not properly made under the Statute. While the Agency may have used conditional language in describing its position, a review of the disapproval letter provided to the Union indicates that approval of the provision was limited to an interpretation that training sessions would be comprised of bargaining unit employees only. It is clear to us, although not expressly stated, that the provision was being disapproved if interpreted in any other manner. Consequently, the disapproval was properly made and we find no basis on which to dismiss the provision from the petition for review.

We also find, based on the Union's modified intent, that the provision is no longer in dispute. Consequently, we will dismiss the petition for review as to Provision 5.

As noted, the Agency states that it would approve the provision if limited to attendance at training sessions comprised only of bargaining unit employees because Union representation under such circumstances would be authorized under section 7114(a)(2)(A) of the Statute. The record establishes that although the Union initially sought to apply the provision to training sessions that include non-bargaining unit employees, the Union subsequently modified its intent and stated that the provision "is to be interpreted as applying only to