42:1112(78)NG - - NFFE Local 405 and Army Information Systems Command, St. Louis, MO - - 1991 FLRAdec NG - - v42 p1112
[ v42 p1112 ]
42:1112(78)NG
The decision of the Authority follows:
42 FLRA No. 78
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) and involves 21 proposals.(1)
For the following reasons, we conclude that Proposal 4, which requires the Agency to delay action to implement a contracting-out decision until a final Agency decision has been reached on an appeal, is negotiable. Proposal 6, which requires the Agency not to separate employees until completion of negotiations over contracting out, is negotiable. Proposal 7, which prohibits the Agency from assigning employees to the supervision of non-Federal employees, is nonnegotiable because it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, and the Union has not asserted that it is an appropriate arrangement under section 7106(b)(3). Proposal 10, which concerns qualification requirements, is dismissed because it is not sufficiently specific to provide a basis for determining its negotiability.
Proposals 12, 13, 14, 16, and 17, which relate to granting leave, are nonnegotiable because they directly interfere with the Agency's right to assign work under section 7106(a)(2)(B), and the Union has not asserted that they constitute appropriate arrangements. Proposal 19, which provides for changing absence without leave (AWOL) to another type of leave, if it is later determined that the absence was excusable, is negotiable. Proposal 20, which provides that approved leave or leave without pay will not be used as a basis for disciplining an employee is nonnegotiable because it directly interferes with management's right to discipline, and the Union has not asserted that it is intended as an appropriate arrangement.
Proposal 21, which entitles employees who are permitted to continue a temporary assignment beyond the termination date to retain any pay received for such duties, is negotiable. Proposal 22, which reserves to the Union the right to bargain on the subject of overtime, is negotiable. Proposal 23, which requires the Agency not to assign overtime when employees are unable to work for medical reasons, justifiable emergencies, or unavoidable personal situations, is negotiable. Proposal 24 is negotiable to the extent that it requires the Agency to grant general schedule employees compensatory time off instead of overtime. To the extent it concerns wage grade employees, Proposal 24 is dismissed because there is no dispute between the parties that wage grade employees are not entitled to compensatory time off. Proposal 25, which mandates that quality step increases be effective on the date the supervisor determines to make such an award, is dismissed because it is not sufficiently specific for us to determine its negotiability. Proposal 26, which requires that the criteria for awards be the same as the criteria for performance ratings, is negotiable.
Proposal 27, which acknowledges that the Union may represent employees and file complaints under EEO procedures, is negotiable. Proposal 28, which requires the Agency to allocate Government quarters to supervisors before employees when there are not enough quarters available at a temporary duty site, is negotiable. Proposal 30, which prohibits changes to performance standards during a rating period that are based on an employee's ability to meet or exceed the requirements, is nonnegotiable because it directly interferes with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B). Proposal 32, which mandates that any presumptive rating will be at least equal to the employee's last rating, is nonnegotiable because it is inconsistent with a Government-wide regulation.
II. Proposal 4 (2)
Article 11, Commercial Activities Program, Section 1
Action to implement any decision to contract out services will be stayed pending a final agency decision on an appeal.
A. Positions of the Parties
The Agency argues that Proposal 4 contains "the identical restriction" as Proposal 2, which was found nonnegotiable by the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 883 (D.C. Cir. 1988) (IRS v. FLRA), rev'd and remanded as to other matters, 110 S. Ct. 1623 (1990) (Treasury). Statement of Position at 5. The Agency asserts that, like Proposal 2 in IRS v. FLRA, Proposal 4 would require the Agency "to postpone implementing its decision to contract out services when they are needed . . . ." Statement of Position at 5. The Agency argues that this delay renders Proposal 4 nonnegotiable.
The Union argues that Proposal 4 "may be viewed as a procedure" under section 7106(b)(2) of the Statute. Petition for Review at 2. In addition, the Union argues that it "may also be viewed as an appropriate arrangement" under section 7106(b)(3) because "OMB Circular A-76 requires appeals of this nature to be decided within thirty days[.]" Id. Finally, the Union argues that the decision of the United States Court of Appeals for the District of Columbia Circuit in Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989) (BLM v. FLRA) supports its position that Proposal 4 is negotiable.
B. Analysis and Conclusions
The Union asserts that Proposal 4 "is not tied to the expiration of the grievance and arbitration procedure, which . . . can take years. Instead, the proposal requires a delay of contracting out pending a final Agency decision on the A-76 appeal." Reply Brief at 2. As the Union's explanation of how Proposal 4 would apply is not inconsistent with the plain wording of the proposal, we find that the appeal referred to in the proposal encompasses only appeals under OMB Circular A-76 and does not include appeals under the parties' negotiated grievance procedure.(3) That is, Proposal 4 requires that the Agency stay action to implement any decision to contract out pending a final Agency decision on an appeal under OMB Circular A-76. Consequently, contrary to the Agency's argument, Proposal 4 does not contain the "identical restriction" as Proposal 2 in IRS v. FLRA, which required management to delay implementation of contracting-out decisions until the grievance procedure was exhausted. Statement of Position at 5.
Similarly, there is no basis on which to conclude that Proposal 4 is intended generally to require the Agency to comply with Circular A-76 in making contracting-out determinations or to enable the Union to challenge the Agency's compliance with the Circular through a negotiated grievance procedure. Compare National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA No. 31 (1991) (NTEU II) (Authority concluded on remand that Circular A-76 constitutes an "applicable law," within the meaning of section 7106(a)(2) of the Statute, and that a proposal enabling the union to challenge alleged violations of the Circular through negotiated grievance procedure did not directly interfere with the agency's right to make determinations regarding contracting out). Proposal 4 is, therefore, distinguishable from the proposal addressed by the Supreme Court in Treasury and the Authority in NTEU II. Nevertheless, by requiring the Agency to delay implementing determinations regarding contracting-out until the internal appeals procedure in Circular A-76 has been exhausted, Proposal 4 at least implicitly requires the Agency to comply with that procedure in resolving appeals. The Agency does not assert that the proposal is nonnegotiable on this basis. However, consistent with NTEU II and for the reasons fully stated therein, we conclude that, insofar as Proposal 4 requires the Agency to comply with the internal appeals procedure in the Circular, it does not directly interfere with the Agency's right to make determinations regarding contracting out.
As noted previously, the Agency asserts that the proposal interferes with the Agency's right to make determinations regarding contracting out by delaying, in some situations, the implementation of its determinations. However, it is not clear that the proposal directly interferes with the Agency's right to contract out on this basis. Compare U.S. Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988) (proposal which required agency to delay implementation of a new program for 6 months pending a study to determine program's impact on bargaining unit employees held to directly interfere with management's rights under 7106(a) and (b)(1)) with BLM v. FLRA, 873 F.2d at 1511 (proposal requiring a 10-day delay in effecting disciplinary suspensions held not to directly interfere with management's right to assign work). Nevertheless, due to the circumstances of this case, and consistent with the Union's argument that Proposal 4 is an appropriate arrangement, we will assume such interference for the purposes of this decision. We note that insofar as Proposal 4 directly interferes with management's right to contract out, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 57 (1991) (NTEU and Treasury), petition for review filed sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1316 (D.C. Cir. July 5, 1991).
In determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3), we first determine whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If the proposal is intended as an arrangement, we examine 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) (Kansas Army National Guard).
The Union asserts that Proposal 4 "may be viewed" as an appropriate arrangement. Petition for Review at 2. We note that a management decision to contract out could result in employees being assigned to new positions or laid off. It is clear, and undisputed, that either consequence adversely affects bargaining unit employees. We note also that OMB Circular A-76 defines "[a]dversely affected" Federal employees as "employees identified for release from their competitive level by an agency . . . as a direct result of a decision to convert a Government commercial activity to contract performance." OMB Circular A-76 at I-18. Consequently, we conclude that Proposal 4 is intended as an arrangement to mitigate the adverse effects on unit employees of the exercise of management's right to contract out.
We turn now to the issue of whether Proposal 4 excessively interferes with management's right to contract out. To resolve this issue, we balance the benefit to employees afforded by Proposal 4 against the burden placed by the proposal on the exercise of management's right to contract out. Kansas Army National Guard, 21 FLRA at 31-32.
Proposal 4 effectively requires that management delay the implementation of any decision to contract out until A-76 appeal procedures are complete. Implementation of contracting out may result in the reassignment and/or lay off of employees. The possible loss of employment, and the resulting disruption to employees' lives and those of their families, that occurs as a result of a layoff is severe. Similarly, reassignments may result in demotions and, at a minimum, require that employees assume new duties. If, after instituting reassignment or lay-off procedures, the Agency cancelled a contracting-out plan as a result of an A-76 appeal, employees would have suffered needless disruption. Consequently, staying action to implement a contracting-out decision until there is a final Agency decision on an A-76 appeal benefits employees by avoiding unnecessary disruption to employees and their families.
On the other hand, Proposal 4 affects management's exercise of its right to make determinations regarding contracting-out in some situations by delaying implementation of such determinations. The delay is not extensive, however. Under OMB Circular A-76, "[t]he appeals procedure must . . . provide for a decision within 30 calendar days . . . ." OMB Circular A-76 (Revised) at I-14 (Aug. 1983). Although the time period in which to render a decision may be extended, such extension is "to a maximum of 30 working days . . . [.]" Id. at I-15. Consequently, including the 15 working days allowed for filing an appeal, the maximum delay encompassed by Proposal 4 would be 45 working days. Further, the proposal would not require the Agency to exhaust the entire appeal period available under the Circular. Instead, the Agency would be free under the proposal to decide an appeal in less time than allowed by the Circular. Moreover, the possibility of reversal is implicit in the right to appeal. As such, Proposal 4 could benefit the Agency by avoiding disruption to its operations caused by instituting reassignment and layoff procedures which later prove unnecessary as a result of a successful A-76 appeal.
Weighing the benefits afforded to employees by the proposal against the burden on the Agency of delaying implementation of a contracting-out decision for a maximum of 45 working days, we find that the benefit to employees is greater than the burden on management. In these circumstances, we conclude that Proposal 4 does not excessively interfere with management's right to contract out and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Compare National Federation of Federal Employees, Local 1214 and Department of the Army Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188-90 (1991) (proposal delaying implementation of new requirements for emergency medical technician certification for 6 years excessively interfered with management's rights to assign employees and work).
III. Proposal 6
Article 11, Commercial Activities Program, Section 6
Employees will not be separated or displaced until the completion of negotiations. This delay shall include any time consumed in negotiability appeals.
A. Positions of the Parties
The Agency asserts that Proposal 6 interferes with its rights to contract out, layoff and to determine the personnel by which agency operations shall be conducted. According to the Agency, the proposal would "prohibit management from removing employees from positions that were contracted out until all negotiations have been completed, including negotiability disputes." Statement of Position at 5. The Agency claims that the proposal does not provide management with any exceptions for "implementing its decision to separate or displace employees for compelling need reasons or for overriding exigencies[,]" as provided by Authority precedent. Id. at 6. In addition, the Agency claims that by being required "to keep employees on the payroll, even after it has been determined to contract out their positions . . . , management's permissive rights to determine the numbers[,] types, and grades of employees assigned to a work project are violated." Id.
The Union states that Proposal 6 "relates both to a procedure and appropriate arrangements for employees in the event of a contracting-out action." Petition for Review at 2. The Union maintains that the proposal calls for a preservation of the status quo pending the outcome of negotiations and "should be read in the context of existing law, which . . . allows an Agency to avoid this obligation in cases of overriding need." Reply Brief at 2.
B. Analysis and Conclusions
The Union asserts that the intent of Proposal 6 is to preserve the status quo, to the extent permitted by law, pending the outcome of negotiations. Reply Brief at 2. The Union's statement is consistent with the wording of the proposal. Therefore, for the purposes of this decision, we conclude that Proposal 6 requires only that the Agency fulfill its bargaining obligations, as appropriate under the Statute, before separating or displacing employees.
The Authority has long held that proposals that require an agency to maintain the status quo during the bargaining process are negotiable procedures under section 7106(b)(2) of the Statute. In Moncrief, for example, Proposal 6 required that the agency delay implementation of its emergency medical technician certification program until the Authority made negotiability determinations on any agency allegation of nonnegotiability. 40 FLRA at 1202. Noting that the bargaining process includes the resolution of negotiability procedures through the Authority's procedures, we concluded that Proposal 6 in Moncrief required the agency only to satisfy its bargaining obligations under the Statute and that Proposal 6 was a negotiable procedure.
In this case, Proposal 6 prevents the Agency from separating or displacing employees until the bargaining process, including any negotiability appeals, is completed. Proposal 6 requires only that the Agency satisfy its obligation to bargain with the Union under the Statute before separating or displacing employees. Consequently, consistent with our holding in Moncrief, we find that Proposal 6 is a negotiable procedure under section 7106(b)(2) of the Statute. See also National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA at 392 (1990).
IV. Proposal 7
Article 11, Commercial Activities Program, Section 7
. . . no bargaining unit employee will be under the supervision of a person who is not an employee of the Federal Government.
[The ellipsis appears in the original proposal.]
A. Positions of the Parties
The Agency contends that Proposal 7 violates its rights to assign work and determine the personnel who will conduct the activity's operations by restricting its ability "to require bargaining unit employees to carry out tasks assigned to them by 'a person who is not an employee of the Federal Government' and preclud[ing] the activity from requiring non-Government employees to perform supervisory functions in connection with the bargaining unit." Statement of Position at 7.
The Union contends that 5 U.S.C. § 2105 (4) "mandates that an individual, in order to be a [F]ederal employee, be supervised by another [F]ederal employee." Petition for Review at 2. In reply to the Agency's assertion that the proposal interferes with management's right to assign work, the Union asserts that this right is not "unbridled," but must be exercised "'in accordance with applicable laws'" under section 7106 of the Statute. Reply Brief at 2.
B. Analysis and Conclusions
Proposal 7 prohibits the Agency from determining that individuals who are not officers or employees of the Federal Government may supervise bargaining unit employees. Provisions restricting an agency's ability to require unit employees to carry out tasks assigned by individuals who are not officers or employees of the Federal Government directly interfere with the right to assign work under section 7106(a)(2)(B). See American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1250-51 (Provision 8) (1988) (Sierra Army Depot).
Because Proposal 7 would prohibit the Agency from assigning employees to the supervision of non-Federal employees, we conclude, based on the rationale set forth in Sierra Army Depot, that Proposal 7 directly interferes with management's right to assign work under section 7106(a)(2)(B). In view of this disposition, we need not reach the Agency's argument that Proposal 7 directly interferes with its right to determine the personnel who will conduct the Agency's operations. In the absence of a claim by the Union that Proposal 7 is an appropriate arrangement under section 7106(b)(3) of the Statute, we find that the proposal is nonnegotiable.
Furthermore, the Union's reliance on 5 U.S.C. § 2105 is misplaced. By its plain wording, 5 U.S.C. § 2105 merely defines "employee" for Title 5 coverage. Under that definition, an "employee" is "subject to the supervision" of an individual who is "appointed in the civil service." Contrary to the Union's argument, 5 U.S.C. § 2105 does not mandate that Federal employees be supervised directly by other Federal employees. Put differently, there is nothing in 5 U.S.C. § 2105 which precludes an employee from being under the direct supervision of a contractor who is in turn working under the direction a Federal employee. Accordingly, we reject the Union's assertion that Proposal 7 "merely states what the law already requires." Petition for Review at 2.
V. Proposal 10
Article 12, Reduction in Force, Section 6a(4)(a)
The employer will waive qualification requirements . . .
[The ellipsis appears in the original proposal.]
A. Positions of the Parties
In support of its contention that Proposal 10 is nonnegotiable, the Agency argues that the proposal "clearly provides that all qualification requirements will be waived[ ]" in a reduction-in-force (RIF). Statement of Position at 8. The Agency asserts that the waiver requirement prevents management, when "filling vacant positions in response to a RIF[,]" from determining the qualifications needed by employees to fill existing vacancies and, as such, violates management's rights to assign employees under section 7106(a)(2)(A) and to select employees under section 7106(a)(2)(C). Id. The Agency contends that as Proposal 10 "requires the waiving of . . . all qualifications[,]" it "must be found nonnegotiable and to excessively interfere with management's rights to assign and select employees." Id. at 9 (emphasis in original).
The Union contends that Proposal 10 "is not intended to compel the waiving of qualification requirements in situations where it is not already allowed by government-wide regulations." Petition for Review at 2.
B. Analysis and Conclusions
Proposal 10 addresses Agency waivers of qualification requirements. However, the wording of the proposal is incomplete, and the circumstances in which the proposal will operate are not explained. Further, the parties provide different explanations of the Agency's obligations under Proposal 10. We note particularly that it is unclear to what extent, if any, management retains under Proposal 10 the right to determine the qualifications necessary for a position. Compare American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 257 (1990) (proposal which required management to minimize displacement during RIF by a temporary waiver of qualification requirements for employees whose abilities allowed them to become at least minimally qualified through training in a short period was found negotiable as an appropriate arrangement) with American Federation of Government Employees, AFL-CIO, Local 738 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380, 382-83 (1988) (proposal establishing procedure for employee reassignment held to directly interfere with the right to assign employees because it did not allow agency to determine qualifications and skills of employees to perform work).
We conclude that Proposal 10 is not sufficiently specific to provide a basis for determining its negotiability. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE v. FLRA). On the record before us, we are unable to assess the proposal's impact on management's rights. Accordingly, the petition for review of Proposal 10 is dismissed. See American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base, California, 34 FLRA 909, 914-15 (1990) (Sacramento Air Logistics Center).
VI. Proposals 12, 13, 14, 16, 17
Proposal 12:
Article 14, Leave and Absence, Section 1b, Annual Leave
Leave will be routinely granted by the supervisor. Management will also accommodate employees [sic] request for advanced annual leave whenever possible.
Proposal 13:
Article 14, Leave and Absence, Section 2b, Sick Leave
The use of sick leave will ordinarily be approved at the time of request.
Proposal 14:
Article 14, Leave and Absence, Section 2c, Sick Leave
Sick leave will not ordinarily be denied unless there is a factual basis to believe that the reason it is requested is false or would be otherwise prohibited.
Proposal 16:
Article 14, Leave and Absences, Section 2f, Sick Leave
Management will ordinarily grant employee's request [sic] advanced [sic] sick leave if medical documentation supports such a need. The request and approval will be in accordance with appropriate laws, regulations and this Agreement.
Proposal 17:
Article 14, Leave and Absence, Section 3b, Leave for Parental and Family Responsibilities
. . . extended leave without pay for up to 26 weeks will be granted whenever possible and when it results in fulfillment of parental or family responsibilities or the improvement or protection of an employee's health.
[The ellipsis appears in the original proposal.]
A. Positions of the Parties
The Agency contends that Proposals 12, 13, 14, 16, and 17 "limit the [Agency's] authority to approve or deny leave and, thus, impinge on management's right to assign work." Statement of Position at 11. 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) (Proposal 4) (Kirtland). According to the Agency, Kirtland held that "a proposal which would require an agency to grant an employee's request for leave without regard to the necessity for that employee's service during the period covered by the request violates management's right . . . to assign work." Statement of Position at 11. In addition, the Agency notes that proposals which restrict an agency's "authority to approve or deny leave" are nonnegotiable because they require that management consider reasons other than the need for employees' services in determining whether to grant leave. Id. at 11-12.
The Agency further argues that the Union's use of the words "whenever possible," "routinely," and "ordinarily," does not give supervisors discretion in granting or denying leave. Id. at 12. The Agency asserts that, despite the qualifying language, the proposals would subject management's leave and workload determinations "to review in an arbitration proceeding" in violation of management's right to assign work. Id.
The Union maintains that Proposals 12, 13, 14, and 16 "reserve to [m]anagement the required amount of discretion . . . ." Petition for Review at 3. The Union maintains that as Proposal 17 contains the words "whenever possible," it gives the Agency the "freedom to determine whether it is possible to grant the leave based on workload requirements." Id. The Union also asserts that "[a]ll these proposals deal with leave procedures." Id.
B. Analysis and Conclusions
1. Proposals 12 and 17
Proposals which place restrictions on an agency's right to determine when annual leave may be used directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 600 (1991) (Provision 2) (provision requiring that management grant certain annual leave requests held to directly interfere with management's right to assign work); American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1177 (1987) (Fort Rucker) (Provision 6) (provision requiring that management grant employees a reasonable amount of annual leave or leave without pay in case of death in the immediate family, held to directly interfere with management's right to assign work).
The first sentence in Proposal 12 provides that employees' annual leave requests "will be routinely granted . . . ." The sentence does not provide for any exceptions to the requirement and would apply without regard to the necessity for employees' services. The second sentence in Proposal 12 requires that the Agency accommodate employees' requests that annual leave be advanced before it is earned "whenever possible." Proposal 17 requires that "whenever possible" management will grant employees leave without pay (LWOP) for up to 26 weeks "when it results in fulfillment of parental or family responsibilities or the improvement or protection of an employee's health."
By requiring that management grant employees' requests to use annual leave and LWOP, these proposals directly interfere with management's right to determine when work will be performed. The qualifying language "whenever possible" does not change the fact that management's discretion to advance annual leave and to grant LWOP is restricted. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 353 (1991) (NTEU and SSA); NTEU and Treasury, 39 FLRA at 50-51. Accordingly, we find that Proposals 12 and 17 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. As these proposals directly interfere with a management right, they do not constitute negotiable procedures under section 7106(b)(2) of the Statute. Id. at 57. In the absence of a claim by the Union that these proposals are intended as appropriate arrangements under section 7106(b)(3) of the Statute, we find Proposals 12 and 17 to be nonnegotiable.
2. Proposals 13, 14, and 16
Proposal 13 requires that the Agency "ordinarily" approve sick leave at the time it is requested. Proposal 14 provides that sick leave will not "ordinarily" be denied unless there is "a factual basis" for believing "that the reason it is requested is false or would be otherwise prohibited." Proposal 16 requires that management "ordinarily" advance sick leave to an employee if the employee's request is supported by medical documentation. In addition, Proposal 16 states that the request and approval of advanced sick leave will be consistent with appropriate laws, regulations, and the parties' agreement.
Proposals 13, 14, and 16 require that the Agency "ordinarily" approve employees' requests for sick leave and advance sick leave before it is earned. None of the proposals makes any exception for workload requirements or the need for employees' services. As we noted above, qualifying language such as "ordinarily" does not eliminate the substantive limitations these proposals place on management's right to assign work. See, for example, id. at 50-51.
By requiring that management "ordinarily" approve employees' requests to use and be advanced sick leave, Proposals 13, 14, and 16 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Further, because these proposals directly interfere with management's right to assign work, they do not constitute negotiable procedures under section 7106(b)(2) of the Statute. NTEU and Treasury at 57. In the absence of a claim by the Union that these proposals are intended as appropriate arrangements under section 7106(b)(3) of the Statute, Proposals 13, 14, and 16 are nonnegotiable. Compare National Association of Government Employees, SEIU, AFL-CIO, and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 678-80 (1991) (Provision 6) (provision requiring agency to grant sick leave in accordance with Government-wide regulations constituted an appropriate arrangement).
For the reasons discussed above, Proposals 12, 13, 14, 16, and 17 are nonnegotiable.
VII. Proposal 19
Article 14, Leave and Absences, Section 8, Absence Without Leave
. . . AWOL will be changed to appropriate leave if it is later determined that the absence was excusable.
[The ellipsis appears in the original proposal.]
A. Positions of the Parties
The Agency maintains that Proposal 19 limits its discretion in deciding whether to excuse employee absences which were recorded as absent without leave (AWOL) and, consequently, directly interferes with the Agency's right to assign work. The Agency argues that the proposal does not permit management to make the determination that the leave is to be excused, but requires management to convert the leave if "the leave itself was 'excusable.'" Statement of Position at 12. The Agency argues that Proposal 19 would require it to approve an employee's leave "regardless of the employer's mission or the necessity for the employee's presence, if the leave is 'excusable.'" Id.
The Union maintains that it is "[w]ell established case law shows that management must be reasonable in charging an employee with AWOL." Petition for Review at 3. Relying on Foster v. Dept. of Health and Human Services, 18 M.S.P.R. 339 (1983), the Union asserts that an AWOL charge automatically becomes unreasonable when an employee is able to demonstrate that his absence was excusable. Id.
B. Analysis and Conclusions
Proposal 19 requires the Agency to convert AWOL to an appropriate form of approved leave, if it is later determined that an employee's absence was excusable. Nothing in the proposal supports the Agency's conclusion that it will be precluded from determining whether AWOL was "excusable." We read the wording "if it is later determined" as preserving management's right to make the determination whether an absence which resulted in an AWOL charge was excusable. Further, nothing in the proposal prevents the Agency from considering the Agency's mission and the necessity of the employee's services in deciding whether an employee's absence was excusable.
We conclude that Proposal 19 does not restrict management's discretion to approve or deny leave or to determine whether AWOL was improperly charged. Accordingly, we conclude that Proposal 19 does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. No other basis for finding Proposal 19 nonnegotiable is argued or is apparent to us. Consequently, Proposal 19 is negotiable. Compare National Federation of Federal Employees, Local 15 and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA 48, 50-51 (1985) (Proposal 2) (proposal providing substantive criteria for management to apply in determining whether employees should be charged with AWOL found to prevent the agency from taking disciplinary action against employees based on AWOL and, therefore, to directly interfere with management's right to discipline employees under section 7106(a)(2)(A)).
VIII. Proposal 20
Article 14, Leave and Absences, Section 9
Once leave or leave without pay has been approved, its use will not be the basis for disciplinary actions or placing the employee in a restricted leave use category, unless it is determined that the employee misrepresented the need for leave.
A. Positions of the Parties
The Agency argues that Proposal 20 "establishes specific criteria for management's use in determining whether to discipline an employee for leave abuse[]" and, therefore, interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. Statement of Position at 15. According to the Agency, the Authority has found proposals nonnegotiable which established specific criteria for management to apply in imposing discipline. The Agency argues that the restrictions in Proposal 20 prohibit management from issuing a leave restriction letter if management has previously approved sick leave and, in effect, requires that "an employee must take unapproved leave before a sick leave restriction letter can be issued." Id.
The Union asserts only that Proposal 20 "is not intended to have any different effect than the long-standing rule that an agency may not take an action against an employee based upon the use of leave which has been previously approved." Petition for Review at 3. In support, the Union cites Williams v. Department of the Army, 24 M.S.P.R. 537 (1984) (Williams).
B. Analysis and Conclusions
Proposals that prevent management from taking disciplinary action against employees directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 206 (1990) (Robins AFB) petition for review filed sub nom. U.S. Department of the Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990) (proposal providing that employees would not receive disciplinary action for failing to report to work timely when a security gate malfunctioned held to directly interfere with the right to discipline employees).
Proposal 20 prevents the Agency from using approved leave, including leave without pay (LWOP), as the basis for disciplinary actions or placing an employee in "a restricted leave use category[.]" By preventing management from basing disciplinary action on approved leave, the first part of the proposal directly interferes with the Agency's right to discipline employees. The remaining question is whether the proposal's prohibition against using approved leave to place an employee in a restricted leave use category also directly interferes with management's right to discipline.
Initially, we note that Proposal 20 does not define "a restricted leave use category[.]" The Agency asserts that the proposal "prohibits the [Agency] from, after approving an employee's request for sick leave every Monday for six months, issuing a leave restriction letter." Statement of Position at 15. According to the Agency, "[a] leave restriction letter imposes more stringent requirements on employees in requesting and justifying sick leave usage." Id. Although the Agency discusses only sick leave, Proposal 20 does not state, and the Union has not asserted, that the proposal is limited to restrictions on the use of sick leave. Accordingly, we find, for the purposes of this decision, that a restricted leave use category means that management has limited the situations in which it will approve an employee's requests to use annual leave, sick leave, and LWOP.
The issue before us is whether restricting employees' use of leave constitutes a disciplinary action within the meaning of section 7106(a)(2)(A) of the Statute. For the following reasons, we find that management's right to discipline includes placing an employee in a restricted leave use category.
In granting sick leave, annual leave, and LWOP, the Office of Personnel Management (OPM) has provided guidance to agencies in the FPM. Granting sick leave is appropriate "when an employee is physically incapacitated to do his job, or for related reasons." FPM chapter 630-11, subchapter 4 (Sept. 30, 1968). Related reasons include:
(1) Exposure to a contagious disease that would endanger the health of coworkers;
(2) Presence of contagious disease in an employee's immediate family which requires his personal care; [and]
(3) Dental, optical, or medical examination or treatment."
Id. Annual leave, according to OPM, is "a benefit" and employees may use it for "rest and recreation" and "for personal and emergency purposes." FPM chapter 630-3, subchapter 3-4 (Oct. 29, 1975). Determining when annual leave is taken, however, is a supervisory responsibility and the decision will "generally be made in the light of the needs of the service rather than solely on the desires of the employee." Id. The FPM provides that LWOP, "a temporary nonpay status," may be granted upon an employee's request. FPM chapter 630-27, subchapter 12 (July 24, 1986). Generally, employees' requests for leave are approved by agencies based on the reasons furnished by employees without further inquiry. However, over a period of time an agency may, after examining an employee's leave record, conclude that an employee has consistently failed to obtain advance approval for leave, that an employee's use of leave has resulted in the employee not being available for duty as required, or that an employee's use of leave is inconsistent with FPM requirements.
In FPM chapter 752, subchapter 3(b), OPM advises agencies on appropriate action to correct an employee's use of leave. According to OPM, the Agency should:
--inform[] the employee that his or her attendance record is unsatisfactory and needs to be improved; and
--warn[] the employee that further sick leave will not be approved without sufficient medical documentation and that annual leave and leave without pay will be approved only if requested in advance and the employee's services are not essential during the period for which the leave is requested.
If the employee is then absent without prior approval or proper medical documentation, OPM recommends that the agency record the absence as AWOL, which may serve as a basis for adverse action.
FPM chapter 752, subchapter 3(b) (Dec. 31, 1980) (emphasis in original).
Although OPM recommends that employees' use of leave be restricted before disciplinary action is taken, there is nothing in the regulations which precludes agencies from disciplining employees based on approved leave. However, the necessity of following OPM's advice is underscored by the holding of the Merit Systems Protection Board (MSPB) that approved leave is generally not a valid basis for removal. In the case cited by the Union, Williams, 24 M.S.P.R. 537 (1984), an agency approved annual leave requested by an employee despite the employee's failure to schedule leave in advance. The agency argued that although it had approved the improperly requested leave, it should not be barred from relying on the employee's excessive use of leave to support its removal of the employee. MSPB rejected this argument, reaffirming its holding "that unsatisfactory attendance generally cannot constitute a valid basis for removal when the agency has granted leave covering the employee's absences." Id. at 541. See also Cook v. Department of the Army, 18 M.S.P.R. 610 (1984); Watson v. U.S. Postal Service, 13 M.S.P.R. 56 (1982).
Considering OPM's advice to agencies and MSPB's holding that approved leave is generally not a basis for disciplinary action, leave restrictions are, in practical terms, a precondition of an agency's decision to discipline an employee based on the employee's use of leave. Under Proposal 20, the Agency would not be able to place an employee in a restricted leave use category based on previously approved leave. Because the Agency generally also would not be able to take disciplinary action based on approved leave, management would be precluded from responding to an employee's inappropriate use of leave through discipline.
Accordingly, Proposal 20 directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. In the absence of an assertion by the Union that Proposal 20 constitutes an appropriate arrangement under section 7106(b)(3), we conclude that Proposal 20 is nonnegotiable.
IX. Proposal 21
Article 15, Pay, Section 5b
Employees continuing to receive pay for temporary assignments to a higher grade or duties will be entitled to the pay they received for those duties after the ["]not to exceed["] date if administrative errors or delays fail to remove the employee from these duties and the higher payments are not stopped, if the employee continues to be assigned or allowed to perform those duties.
A. Positions of the Parties
According to the Agency, Proposal 21 provides "that an administrative error or delay in terminating a temporary promotion will result in the continuation of the temporary promotion[,]" possibly beyond the 2-year limitation on temporary promotions established by 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5.(5) Statement of Position at 16. Therefore, the Agency asserts that the proposal violates Government-wide regulations and is nonnegotiable under section 7117(a)(1) of the Statute.
The Union argues that the proposal does not "unlawfully require the extension of temporary promotions." Petition for Review at 3. Further, the Union contends that Proposal 21 "protects employees against efforts to recoup money erroneously paid to them on temporary promotions[.]" Id.
B. Analysis and Conclusions
We reject the Agency's argument that Proposal 21 would result in the continuation of temporary promotions beyond the limits in 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5. As plainly worded, the proposal does not require that temporary promotions be extended beyond 2 years or for any specific period of time. Consequently, the Agency's reliance on Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968, 972 (1986) (New Cumberland Army Depot) is misplaced. In New Cumberland Army Depot, the Authority found an arbitration award deficient to the extent that it ordered a grievant temporarily promoted retroactively for a period in excess of the 2-year limit established by regulation. As noted, Proposal 21 includes no such requirement. Accordingly, we find that Proposal 21 does not conflict with 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5. As the Agency offers no other arguments that the proposal is nonnegotiable, and none are apparent to us, we conclude that Proposal 21 is negotiable.
X. Proposal 22
Article 16, Overtime, Section 1
The Union will be afforded the opportunity to negotiate that requirement as necessary.
A. Positions of the Parties
The Agency asserts that Proposal 22 interferes with management's right to assign work by requiring the Agency to negotiate "over the decision to assign overtime." Statement of Position at 17. The Agency claims that the words "as necessary" allow the Union to be involved in the assignment of work. The Agency also argues that the proposal is "too vague" to permit the Authority to make a negotiability determination. Id.
The Union maintains that the proposal "merely states that the Union will be afforded the opportunity to negotiate concerning mandatory overtime." Petition for Review at 3. The Union claims that the phrase "as necessary" means that the Union is reserving its bargaining rights on the subject of overtime "'in accordance with applicable law.'" Id.
B. Analysis and Conclusions
We reject the Agency's assertion that Proposal 22 is too vague to permit the Authority to determine its negotiability. We find that the word "requirement" in Proposal 22 refers to overtime, which is the subject of Article 16. Our reading is consistent with the Union's statement that it seeks to negotiate over mandatory overtime. Accordingly, we find that Proposal 22 requires that the parties negotiate over assignment of overtime work. Compare Sacramento Air Logistics Center, 34 FLRA at 914-15 (proposal consisting of "[a]ny other proposals deemed appropriate" found not sufficiently specific to provide a basis for determining its negotiability).
The Union also asserts that it intends to negotiate overtime "'in accordance with applicable law.'" Petition for Review at 3. As this statement is consistent with the wording of Proposal 22, we adopt it for the purposes of this decision. Read in this manner, Proposal 22 requires only that the Agency bargain concerning overtime to the extent required by Statute. We have held that proposals which are merely restatements of an agency's duty to bargain under the Statute are negotiable. See, for example, International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1503-04 (1991) (Proposal 1) (proposal requiring that management delay implementation of drug testing until negotiations were satisfactorily resolved found to be no more than a restatement of the agency's duty under the Statute and, therefore, negotiable). Consequently, as Proposal 22 requires nothing more of the Agency than is required by the Statute, we find Proposal 22 to be negotiable.
XI. Proposal 23
Article 16, Overtime, Sections 3a and 3c
Employees shall not be required to work under the following conditions:
a. When unable to work for medical reasons, continuing or prolonged medical conditions will be certified in writing . . . .
c. If the employee has a justifiable emergency or unavoidable personal situation.
A. Position of the Parties
The Agency claims that sections 3a and 3c conflict with management's right to assign work, specifically the right to assign "work which is performed on overtime." Statement of Position at 19. The Agency argues that the Authority has found that proposals which prohibit an agency from assigning work to employees on the basis of medical reasons were nonnegotiable. Id. (citing American Federation of Government Employees, AFL-CIO, Local 1409 and Department of the Army, U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 28 FLRA 109, 111-13 (1987)). The Agency also claims that Proposal 23 does not require that the medical certification be provided by the "base medical authority" and, therefore, it is not similar to proposals which the Authority has found negotiable. Statement of Position at 17.
With regard to section 3c, the Agency asserts that the Authority has held proposals nonnegotiable which require that an employee's leave request be granted for a particular reason, without regard for the necessity for the employee's services. Further, the Agency asserts that section 3c "totally" bans overtime assignments if an employees has "a justifiable emergency or unavoidable personal situation." Id.
The Union maintains that section 3a of the proposal covers those instances when an employee "cannot work when he or she is unable to work." Petition for Review at 4. The Union also adds that management may require "medical documentation." Id. With regard to section 3c, the Union claims that managerial decisions to grant leave must be reasonable and that a refusal to excuse employees when a justifiable emergency or an unavoidable personal situation arises would "be overturned in every instance." Id. The Union also argues that, despite the Agency's claims that sections 3a and 3c directly interfere with management's right to assign work, the proposal does not "excessively interfere" with that right. Reply Brief at 2.
B. Analysis and Conclusions
1. Proposal 23 Directly Interferes with the Right to Assign Work
The right to assign work encompasses the assignment of work which is performed on overtime. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region, 39 FLRA 675, 690 (1991), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region v. FLRA, No. 91-70259 (9th Cir. Apr. 12, 1991). Further, the Authority has held that proposals which limit management's right to assign overtime work directly interfere with that right. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1042 (1988), rev'd mem. as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California, No. 88-7408 (9th Cir. Feb. 7, 1989) (provision providing that employees not be required to work more than 12 hours in 1 day except in unusual circumstances held to directly interfere with the right to assign work). See also American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 715-16 (1986) (VA, New York) (proposal held nonnegotiable which provided that no employee could or would be forced to work overtime if such work would affect employee's efficiency, health, or emotional stability).
Sections 3a and 3c, read in conjunction with the introductory wording "[e]mployees shall not be required to work[,]" prevent the Agency from assigning an employee overtime when the employee is "unable to work for medical reasons" or has "a justifiable emergency or unavoidable personal situation." By preventing management from assigning overtime in these situations, sections 3a and 3c directly interfere with management's right to assign work. Consequently, Proposal 23 is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
2. Sections 3a and 3c of Proposal 23 Constitute Negotiable Appropriate Arrangements
As we discussed in our analysis of Proposal 4, the Authority applies the requirements in Kansas Army National Guard, 21 FLRA 24, 31-33, in determining whether a proposal constitutes a negotiable appropriate arrangement.
The Union argues that Proposal 23 is intended to excuse an employee from working overtime when "certain compelling personal circumstances are present." Petition for Review at 3. Section 3a, the Union asserts, "seems only logical" because it would excuse an employee from work when he or she is unable to work for medical reasons. Id. Section 3c is intended, according to the Union, to relieve an employee from overtime if the employee has a justifiable emergency or unavoidable personal situation. Based on the Union's statements, we find that sections 3a and 3c are intended to ameliorate the effect of management's right to assign overtime and, therefore, they constitute arrangements within the meaning of section 7106(b)(3) of the Statute.
Turning to the second requirement in Kansas Army National Guard, 21 FLRA at 33, we determine whether sections 3a and 3c excessively interfere with management's right to assign work.
Section 3a would benefit employees by excusing them from overtime work when they are unable to work for medical reasons. It is reasonably foreseeable that if employees are ill or injured, section 3a would contribute to employees' improved health and decrease the possibility that they would aggravate injuries. Furthermore, because employees would not be working when they are ill or injured, employees' work would be less likely to be evaluated as unsatisfactory. Similarly, section 3c would benefit employees who are unable to work overtime because of personal reasons. This section lessens the possibility that employees would be disciplined for their failure to report for duty when situations occur that are unavoidable or beyond their control. Sections 3a and 3c, we conclude, would provide significant benefits to employees.
On the other hand, sections 3a and 3c would prevent the assignment of overtime in certain circumstances. Section 3a restricts management's right to assign overtime when employees are unable to work for medical reasons. It is unclear from the wording of section 3a whether management may require that all medical reasons be certified in writing or whether certification is limited to "continuing or prolonged" medical conditions. In this regard, the Union asserts that "[t]he proposal itself allows [m]anagement to insist on medical documentation." Petition for Review at 4. Consistent with the Union's assertion, which is not limited to continuing or prolonged medical conditions, we find that, under section 3a, management may require medical certification whenever employees assert that they cannot work for medical reasons. It follows, in our view, that management may refuse to excuse employees from overtime assignments when such medical certification is not supplied or does not demonstrate that, under the proposal, employees are "unable to work for medical reasons."
The Agency's ability to require medical certification does not eliminate the proposal's direct interference with the Agency's right to assign work. Compare National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 838-39 (1990) (Navy) ("proposals . . . which require an agency to observe medical restrictions on work assignments which are imposed by the agency's own medical authorities do not directly interfere with the agency's right to assign work"). However, the Agency's ability to require the submission of, and review of the sufficiency of, medical documentation mitigates the effect on the Agency's right to assign work. Compare VA, New York, 22 FLRA at 715-16 (proposal prohibiting agency from requiring an employee to work overtime if the employee "feels" it would affect "efficiency, health or emotional stability" held to constitute a "complete prohibition" on right to assign work).
With regard to section 3c, we reject the Agency's claim that it "totally" bans overtime assignments if an employee has a justifiable emergency or unavoidable personal situation. Statement of Position at 17. Nothing in section 3c prevents management from deciding whether an emergency is justifiable or a personal situation is unavoidable. Finally, we note the Union's argument: "What legitimate interest could the Agency have in assigning work to an employee who is unable to work for medical reasons, or who has a justifiable emergency or unavoidable personal situation?" Reply Brief at 3.
On balance, we find that the significant benefits that employees would gain from sections 3a and 3c outweigh the burden on management's right to assign overtime work. In reaching this conclusion, we note, particularly, that management retains the right to determine the adequacy of the medical documentation and whethe