46:0696(67)NG - - NTEU and Treasury, Customs Service, Washington, DC - - 1992 FLRAdec NG - - v46 p696
[ v46 p696 ]
46:0696(67)NG
The decision of the Authority follows:
46 FLRA No. 67
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. DEPARTMENT OF THE TREASURY
CUSTOMS SERVICE
WASHINGTON, D.C.
(Agency)
0-NG-1935
DECISION AND ORDER ON NEGOTIABILITY ISSUES
November 27, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 44 provisions(1) of a collective bargaining agreement that were disapproved by the Agency head under section 7114(c) of the Statute and three proposals that were declared nonnegotiable during bargaining.
For the reasons stated below, we make the following findings. Provision 1, which provides that the Union may establish an arbitration fund to which unit employees who are not Union members would contribute, is inconsistent with section 7114(a)(1) of the Statute and is nonnegotiable under section 7117(a)(1). Provision 2, which bars the use of supervisory notes or diaries to support disciplinary and adverse actions and performance related actions unless affected employees are shown and provided copies of the documents, is a negotiable appropriate arrangement under section 7106(b)(3). Provision 3, which requires that management select unit employees for training on a fair and equitable basis, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B). The disputed portion of Provision 4, which permits the use of performance ratings assigned more than 4 years prior to the issuance of a reduction-in-force notice, is inconsistent with 5 C.F.R. §§ 351.504(b)(1) and 351.504(c) and, therefore, is nonnegotiable under section 7117(a)(1).
Provision 5, which concerns when the Agency will approve annual leave requests, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B). Provision 6, which requires the Agency to consider certain matters in acting on requests for advanced annual leave, is negotiable. Provisions 7 and 8, which provide that home leave will be granted and used within 90 days after an employee becomes eligible, directly interfere with management's right to assign work under section 7106(a)(2)(B) and are nonnegotiable. The disputed sentence in Provision 9, which requires management to exercise its discretion in a fair and objective manner in deciding when to require evidence supporting an employee's use of sick leave, is nonnegotiable because it directly interferes with management's right to discipline under section 7106(a)(2)(A).
Provision 10, which requires that the Agency grant administrative leave to donate blood unless work demands leave no other reasonable alternatives to denial of such leave, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Provision 11, which requires that the Agency grant employees meeting certain conditions administrative leave to take certain licensing examinations, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B).
Provision 12, which requires that the Agency grant leave without pay (LWOP) in three situations, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Provision 13, which provides that any other requests for LWOP will be approved in a fair and objective manner under certain conditions, also directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Provision 14, which requires that an employee returning to duty after LWOP be assigned to the position held before the leave began or, in certain circumstances, to a like position, directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) and is nonnegotiable. Provisions 15 and 16, which authorize maternity or paternity leave in certain circumstances, are nonnegotiable because they directly interfere with management's right to assign work under section 7106(a)(2)(B).
Provision 17, which concerns the earning and use of compensatory overtime for religious observances, is negotiable. Section 2A of Provision 18, which requires immediate supervisors to make acceptable level of competence determinations, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. The last sentence of section 2C of Provision 18, which provides that an employee whose performance later improves to the fully successful level will receive his or her within grade increase retroactive to the date it was due, is inconsistent with 5 C.F.R. § 531.412(b) and, therefore, is nonnegotiable.
Provisions 19, 36, 37, 39, and 40, which require the Agency to furnish the Union with unsanitized copies of documents concerning certain personnel actions, are inconsistent with the Privacy Act and nonnegotiable under section 7117(a)(1) of the Statute. Provision 20 and paragraph (1) of Provision 21, which require that critical elements and performance standards be consistent with duties and responsibilities contained in employees' position descriptions, are negotiable procedures under section 7106(b)(2). Paragraphs (2) through (5), (7), and (8) of Provision 21, which describe the contents of performance standards, directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and are nonnegotiable. Provision 22, which provides that supervisors must prepare fair and objective performance appraisals, is negotiable.
Provision 23, which requires Internal Affairs agents to provide certain employees with information and notices, is negotiable. The first sentence of Provision 24, which requires management to grant requested leave if competent medical authority determines that the employee is unable to return to work, is inconsistent with an applicable Government-wide regulation and nonnegotiable.
Provision 25, which obligates the Agency to exercise its management rights in a fair and objective manner; Provision 26, which requires management to schedule employees' tours of duty in a fair and objective manner; and Provision 27, which requires management to assign and rotate overtime fairly and objectively, directly interfere with management's right to assign work under section 7106(a)(2)(B) and are nonnegotiable. Provision 28, which authorizes qualified employees to exchange certain overtime assignments, is a negotiable procedure under section 7106(b)(2).
Provision 29, which provides that employees can select their lodging while on official travel except under certain circumstances, is negotiable. Provision 30, which requires the Agency to provide employees with "legal support" to the extent authorized by law, is negotiable. Section (c) of Provision 31 which requires that Firearms and Range Officers be designated in a fair and objective manner directly interferes with management's right to assign work and is nonnegotiable.
Provision 32, which requires supervisors to undertake certain actions concerning probationary employees, is negotiable. The last sentence of Section 3A in Provision 33, which requires management to allow probationary employees an opportunity to respond to supervisory recommendations concerning their retention or termination, is inconsistent with FPM chapter 315, subchapter 8-5.c and is, therefore, nonnegotiable. Provision 34, which provides certain procedural protections for probationary employees, is inconsistent with FPM chapter 315, subchapter 8-5.c and is, therefore, nonnegotiable.
Provisions 35 and 38, which require progressive discipline, are nonnegotiable because they directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. Section 10B of Provision 41, which concerns details and temporary promotions of Union officers and stewards to supervisory positions, directly interferes with management's right to assign work and is nonnegotiable. The petition for review of Sections 10A and 10C of Provision 41 is dismissed because the record does not provide sufficient information on which to base negotiability determinations. Provisions 42 and 43, which require that certain employees receive monetary performance awards, are inconsistent with 5 C.F.R. § 430.504(d) and, therefore, are nonnegotiable. Provision 44, requiring negotiation of a formula for distribution of awards is negotiable.
The petition for review also addresses three proposals that were declared nonnegotiable by the Agency during contract negotiations. Proposals 2 and 3, which require the Agency to pay for alterations and maintenance of employees' uniforms, do not concern conditions of employment within the meaning of section 7103(a)(14)(C) and are nonnegotiable. Proposal 4, which provides for an Evaluation Board to consider applicants for vacancies and requires that the Board perform certain functions, is a negotiable procedure under section 7106(b)(2), except for the second sentence of section 8A, which excludes the selecting official from serving on the Board. The latter portion directly interferes with management's right to assign work under section 7106(a)(2)(B) and is, therefore, nonnegotiable.
II. Preliminary Matter
We have not considered the Union's reply brief because it was not timely. We reject the Union's assertion that its reply brief is timely because, under section 2429.22 of the Authority's Rules and Regulations, it was entitled to 5 additional days from the date of receipt of the Agency's statement of position, which was served by U.S. Mail, to file its brief with the Authority.
Under section 7117(c)(4) of the Statute and section 2424.7(a) of our Regulations, a reply brief must be filed with the Authority within 15 days after a union's receipt of an agency statement of position.(2) Section 2429.22 of the Authority's Regulations adds 5 days to time limits only when the time limits are measured from "service of a notice or other paper upon such party, and the notice or paper is served on such party by mail . . . ." As the time limit applicable to reply briefs is measured from a union's receipt of a statement of position, section 2429.22 is inapplicable, and the Union is not entitled to 5 additional days to file its reply brief. See American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 869 n.1 (1991) (Mather) (as time limit for filing agency statement of position is measured from receipt of petition for review, additional 5 days was inapplicable).
The Union states that it received the Agency's statement of position on June 10, 1991. Union's Response to Order to Show Cause at 1. Therefore, to be timely, the Union's reply brief had to be filed with the Authority by the close of business on June 25, 1991. However, the Union filed its reply brief with the Authority by personal delivery on July 1, 1991. Consequently, the Union's reply brief was untimely. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 890 (D.C. Cir. 1982)(NFFE v. FLRA), affirming 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) ("the statutory time limits for filing union appeals, agency statements and union responses must be strictly observed").
We deny the Union's request that, if we found that the reply brief was untimely, we waive the time limit under section 2429.23(b) of the Authority's Rules and Regulations. That section provides, with exceptions not applicable here, that expired time limits may be waived "in extraordinary circumstances." The Union argues, in this regard, that it should not be penalized "for good faith reliance on a reasonable interpretation of an ambiguous regulation." Union's Response to Order to Show Cause at 2.
We reject the Union's argument. Under applicable law and regulation, the Union had 15 days from the date of receipt of the statement of position in which to file its reply brief or to request an extension of time. The Union did neither. Section 2429.22 of our Regulations is not ambiguous and our interpretation of it is not new. See Mather. In these circumstances, we find no "extraordinary circumstances" justifying a waiver of the expired time limit under section 2429.23 of our Regulations, and we will not waive the prescribed time limit.(3) See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1312-13 (1990).
As the Union's reply brief was untimely, we will not consider it in this decision. In addition, during the pendency of this issue, we granted the Agency's request to file a supplemental brief addressing matters which, it claimed, were raised for the first time in the Union's reply brief. We also granted the Union's request to respond to the Agency's supplemental brief. As we have determined that we will not consider the Union's reply brief, we find it unnecessary to consider either the Agency's or the Union's supplemental submission.
III. Provision 1
Article 3, Section 4B- The Employer recognizes that the Union may establish an arbitration fund to finance arbitrations which may require fees from non-members. The Employer takes no position as to whether the establishment of such fund does or would discriminate against employees based on their membership on [sic] non-membership in the Union.
A. Positions of the Parties
The Agency contends that Provision 1 is nonnegotiable because it is inconsistent with section 7114(a)(1) of the Statute. The Agency argues that the provision assesses arbitration costs "exclusively according to non-membership status" and, therefore, discriminates against non-members. Statement of Position at 2. The Agency also claims that Provision 1 has the same effect as a provision found nonnegotiable in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 621-25 (1990) (IRS).
The Union states that Provision 1 recognizes that the Union "may establish a fund to require non-members to contribute toward the cost of arbitrations." Petition for Review at 2. The Union further states that the provision "explicitly recognizes that the Agency takes no position concerning the question of whether such a fund discriminates against non-members." Id.
B. Analysis and Conclusions
Section 7114(a)(1) of the Statute provides, in pertinent part, that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." In IRS, the relevant disputed provision stated that the union had the right to require non-members to pay the union for certain costs incurred in arbitrating grievances on their behalf. We concluded that the provision discriminated against non-members on the basis of their membership status. Consequently, we found that the provision was nonnegotiable.
Like the provision in IRS, the first sentence of Provision 1 provides that the Union may require fees from non-members to finance arbitrations. Such fees would be based exclusively on the membership status of unit employees. A union's obligations under section 7114(a)(1) of the Statute require, with respect to matters falling within the scope of that section, that a union's activities be undertaken without regard to membership status. IRS, 38 FLRA at 624. By requiring non-member bargaining unit employees to pay arbitration costs, the first sentence of Provision 1 permits the Union to discriminate against non-members on the basis of their membership status and, therefore, is inconsistent with section 7114(a)(1) of the Statute and is nonnegotiable.
The second sentence of Provision 1 is inextricably intertwined with the first. Consequently, we conclude that the second sentence, also is nonnegotiable. Accordingly, we conclude that Provision 1 is inconsistent with the Union's duty of representation under section 7114(a)(1) and, therefore, that it is nonnegotiable under section 7117(a)(1). See also American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, McClellan Air Force Base, California, 44 FLRA 98 (1992) (proposal requiring certain employees to pay a fee to the union to cover expenses directly associated with the union's contractual representational obligations held to be inconsistent with section 7102).
IV. Provision 2
Article 8, Section 5B- Such records, notes or diaries shall not be used as the basis to support any disciplinary or adverse action against an employee unless the employee has been shown and provided a copy of such record, note or diary within a reasonable time after the date of the incident so recorded.
Article 8, Section 5C- Such records, notes or diaries shall not be used as a basis to support:
(1) a performance evaluation of marginal or unacceptable[;]
(2) the denial of a career ladder promotion;
or
(3) the denial of a within-grade increase;
unless the employee has been shown and provided a copy of such documentation within a reasonable period of time, not to exceed thirty (30) calendar days, after it has been determined that the information will be used for such purpose, and before it is used.
A. Positions of the Parties
The Agency asserts that Provision 2 directly interferes with management's rights to direct employees, assign work, and take disciplinary action under section 7106(a)(2)(A) and (B) of the Statute and is not merely procedural. Further, the Agency argues that the provision excessively interferes with management's rights by precluding the Agency from taking disciplinary or adverse action if "recordations of poor performance or disciplinary actions" are not given to an employee. Statement of Position at 5. In this regard, the Agency disagrees with the Authority's finding that a similar provision was a negotiable appropriate arrangement. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 57-59 (1991) (Chief Counsel, IRS, I), enforced and remanded as to other matters sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (IRS v. FLRA). The Agency requests the Authority to reconsider its determination in Chief Counsel, IRS, I.
The Union states that section 5B, of Provision 2 "requires supervisors to make an employee aware of supervisory records, notes or diaries" if such documentation is "to be used to support a disciplinary or adverse action against the employee." Petition for Review at 3. The Union states that section 5C, of the provision "sets forth rules" governing the use of supervisory documentation in evaluating performance. Id.
B. Analysis and Conclusions
Provision 2 precludes the use of supervisory records, notes, or diaries to support certain personnel actions, unless the documentation has been shared with the employee within a reasonable period of time. Section 5C defines a reasonable period of time as not to exceed 30 calendar days. Section 5B, unlike section 5C, does not limit a reasonable period to a number of days. However, the effect of both sections is the same: the Agency would be prevented from using certain documentation to support disciplinary actions or employees' evaluations.
We found that a substantively similar provision in Chief Counsel, IRS, I, directly interfered with management's rights to direct employees, assign work, and impose discipline. The provision in Chief Counsel, IRS, I prohibited the agency from using certain information to adversely affect an employee's performance rating if the information was not furnished to the affected employee within a certain period of time. As Provision 2 prevents the Agency from using certain documentation unless it is shared with the employee on a timely basis, we conclude, for reasons stated more fully in Chief Counsel, IRS, I, that Provision 2 directly interferes with the Agency's rights to direct employees, assign work, and take disciplinary action. As the provision directly interferes with a management right, it does not constitute a negotiable procedure under section 7106(b)(2). See National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1126-27 (1991) (Army Information Systems Command).
In Chief Counsel, IRS, I, the union asserted, and we found that the provision constituted an appropriate arrangement under section 7106(b)(3) of the Statute because the benefits to employees outweighed the limitations imposed on the agency's exercise of its rights. That finding was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit in IRS v. FLRA. We acknowledged that the agency's failure to comply with the provision would bar management's subsequent use of a document in appraising employee performance and, consequently, restrict the agency's ability to support a performance-based disciplinary action. However, we noted that the provision gave employees the opportunity to respond to adverse evaluations.
The Union does not contend that Provision 2 is an appropriate arrangement under section 7106(b)(3) of the Statute. However, as the provision is substantively similar to the disputed provision in Chief Counsel, IRS, I, we will consider the issue in order to avoid the anomaly of conflicting results in similar cases. See National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 769 (1991).
We find that Provision 2 will benefit employees by giving them the opportunity to review certain documentation and improve their performance or change their conduct before they receive evaluations or disciplinary or adverse actions based on that documentation. Although the provision burdens management by prohibiting the use of documentation that is not shared with employees within a reasonable period of time, we find, for the reasons stated more fully in Chief Counsel, IRS, I, that the benefit to employees outweighs the burden on the Agency. We note that although Provision 2, unlike the provision in Chief Counsel, IRS, I, also requires management to provide employees with documentation concerning their conduct, this addition does not require that we change our conclusion. Clearly, if employees are informed about matters which may lead to disciplinary or adverse actions, they benefit by having the opportunity to change their conduct and avoid such actions.
Consequently, we conclude that Provision 2 does not excessively interfere with management's rights to direct employees, assign work, and take disciplinary action. In reaching this conclusion, we reject the Agency's argument that Provision 2 would prevent management from disciplining an employee for poor performance. Rather, Provision 2 requires only that employees be provided with documentation that the Agency might use in taking disciplinary actions; it does not prevent the Agency from taking such actions. Accordingly, Provision 2 is negotiable under section 7106(b)(3). See IRS v. FLRA, 960 F.2d at 1070-73. See also American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63 (1992) petition for review filed sub nom. United States Department of the Treasury, Office of Thrift Supervision v. FLRA, No. 92-1170 (D.C. Cir. Apr. 17, 1992).
V. Provision 3
Article 10, Section 9b- Employees will be selected for such training on a fair and equitable basis, i.e., consistent with the needs of the service and free of personal favoritism.
A. Positions of the Parties
The Agency asserts that Provision 3 is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that the provision, by requiring "fair and equitable" training selections, imposes "substantive criteria" on the selection of trainees. Statement of Position at 8. The Agency also contends that the provision would enable arbitrators to substitute their judgment for that of the Agency "in what is plainly the exercise of a management right." Id.
The Union states that Provision 3 "establishes some rudimentary standards to govern the selection of employees for in-service training to enhance job proficiency." Petition for Review at 3.
B. Analysis and Conclusions
We reject, at the outset, the Agency's argument regarding arbitral review. As we have previously noted, an agency's argument that an arbitrator's judgment may be substituted for its own is not a basis for precluding negotiation over a provision. 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 (1991) (Health Care Financing Administration).
Provision 3 concerns the Agency's selections for training. Although training is not defined in the provision we find, relying on the Union's undisputed assertion, that Provision 3 concerns in-service training.
Provision 3 requires that management make in-service training selections "on a fair and equitable basis, i.e., consistent with the needs of the service and free of personal favoritism." Provisions that establish substantive criteria governing the exercise of a management right directly interfere with that right. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 683 (1991) (VAMC, Department of Memorial Affairs). Based on the plain wording of the provision, we conclude that the requirement that in-service training selections be made on a fair and equitable basis constitutes a substantive restriction on management's discretion to make work assignments. See, for example, id., 40 FLRA at 683-84. Accordingly, we find that Provision 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Compare American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 62-63 (1990) (a proposal which required training assignments to be made in a "fair and impartial manner" held not to interfere with management's rights to direct employees and assign work because the union explained that the proposal was intended only to require the agency to rely on merit factors required by applicable law, rule, or regulation in making training assignments). The Union does not assert that Provision 3 is an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, as it directly interferes with management's right to assign work, we find that the provision is nonnegotiable.
VI. Provision 4
Article 12, Section 6C- The service computation date for reduction in force purposes shall be adjusted for performance by the Employer for each competing employee. [A]n additional service credit will be given consisting of a mathematical average (rounded in the case of a fraction to the next higher whole number) of the employee's last three annual performance ratings computed on the following basis:
- twenty (20) additional years of service for each performance rating of outstanding or equivalent;
- sixteen (16) additional years of service for each performance rating of excellent or equivalent; or
- twelve (12) additional years of service for each performance rating of fully successful or equivalent.
The Employer will establish a cut-off date of fifteen (15) days prior to the date of the specific RIF notice. After this cut-off date, no new annual performance ratings will be put on record and used for RIF purposes. However, all performance appraisals that are due will be prepared to be considered in the RIF analysis. At a minimum, the employee's most recent appraisal will not be more than one year old unless the rating has been deferred pursuant to Article 16 or FPM Chapter 430.
[Only the underscored portion of Provision 4 is in dispute.]
A. Positions of the Parties
The Agency contends that the requirement in Provision 4 that adjustments for service credit for a reduction-in-force (RIF) be based on the last three annual performance ratings, regardless of when those ratings were given, conflicts with 5 C.F.R. § 351.504(b).
The Union states that Provision 4 "describes the process for calculating service computation dates" to be used in a RIF. Petition for Review at 4.
B.Analysis and Conclusions
In determining retention order for a RIF, service credit for employee performance is governed by 5 C.F.R. § 351.504, a Government-wide regulation. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1019 (1990). 5 C.F.R. § 351.504(b)(1) provides that:
An employee's entitlement to additional service credit for performance under this subpart shall be based on the employee's three most recent annual performance ratings of record received during the 4-year period prior to the date of issuance of reduction in force notices[.]
(emphasis added).
The disputed sentence of Provision 4 requires management to use the last three annual performance ratings in calculating an employee's entitlement to additional service credit. Although employees are generally rated annually, one or more of an employee's last three ratings may not have been actually assigned during the 4-year period prior to the date of issuance of a RIF notice. 5 C.F.R. § 351.504(c) provides for such circumstances:
(c) Service credit for employees who do not have three actual annual performance ratings of record received during the 4-year period prior to the date of issuance of reduction in force notices, or the 4-year period prior to the agency-established cutoff date for ratings permitted in paragraph (b)(2) of this section, shall be determined as follows:
(1) An employee who has not received an annual performance rating of record shall receive credit for performance on the basis of three assumed ratings of fully successful (Level 3) or equivalent.
(2) An employee who has received at least one but fewer than three previous annual performance ratings of record shall receive credit for performance on the basis of the actual rating(s) received and of one, or two assumed rating(s) of fully successful (Level 3) or equivalent, whichever is needed to credit the employee with three ratings.
By requiring management to use performance ratings without regard to when they were assigned, the disputed sentence conflicts with 5 C.F.R. § 351.504(b)(1). In addition, as the sentence requires use of actual performance ratings, including those more than 4 years old, it is inconsistent with 5 C.F.R. § 351.504(c) which requires substitution of assumed fully successful ratings for ratings of record more than 4 years old. Accordingly, as the disputed sentence of Provision 4 permits the use of ratings assigned more than 4 years prior to the issuance of a RIF notice, the sentence is nonnegotiable under section 7117(a)(1) of the Statute. Compare Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 941 (1990) (section of proposal requiring that employee's last three ratings of record be used, in certain circumstances, to determine employee's retention standing in a RIF held to be inconsistent with 5 C.F.R. § 351.504(b) and nonnegotiable). As the Agency advances no additional arguments concerning Provision 4, we conclude that the remainder of the provision is not in dispute and will order the Agency to rescind its disapproval of it.
VII. Provisions 5 and 6
Provision 5
Article 13, Section 2B
Annual leave will be approved in accordance with this Article. However, nothing contained in this Article will restrict the Employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.
Provision 6
Article 13, Section 10- Requests for advanced annual leave may be made by an employee and will be considered in a fair and objective manner in accordance with the terms of this article when:
(a) the employee is eligible to earn annual eave;
(b) the employee has served more than 90 days in his appointment;
(c) the employee makes the request in writing (i.e. memo) and provides a rationale for the request;
(d) the employee does not request more advanced annual leave than would be earned during the remainder of the year; and
(e) the liquidation of the advance may be anticipated by subsequent accruals of leave or recovery of the value of the advanced leave (through the use of retirement funds, withheld salary, etc.), in the event of separation.
If the request is denied, the employee will be given written notification of the denial.
A. Positions of the Parties
The Agency contends that Provision 5 establishes a standard, "no other reasonable alternatives," for denial of annual leave requests. The Agency asserts that, because Provision 6 requires consideration of advanced annual leave requests "in accordance with the terms of this article," it also requires that advanced annual leave be denied only when there are "no other reasonable alternatives." In the Agency's view, the provisions' standard for denial of leave restricts management's discretion to deny annual leave to a greater extent than the standard in Federal Personnel Manual (FPM) chapter 630, subchapter 3-4, "pertaining to annual leave generally, which is the responsibility of the supervisor and subject to the needs of the service."(4) Statement of Position at 12. Therefore, the Agency contends, Provisions 5 and 6 are "inconsistent with the FPM." Id.
The Agency also argues that Provisions 5 and 6 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that annual leave requests be approved unless "work demands leave 'no other reasonable alternatives.'" Id. at 11 (quoting from Provision 5). The Agency asserts that the provisions establish a standard that "virtually mandates" granting annual leave. Id. at 12.
The Union states that Provision 5 "sets the basic standard for the Agency to approve requests for annual leave." Petition for Review at 5. The Union describes Provision 6 as setting "the parameters for the Agency to consider requests for advanced annual leave." Id. at 6.
B. Analysis and Conclusions
1. Meaning of the Proposals
Provision 5 requires that annual leave be approved in accordance with the procedures contained in Article 13 of the collective bargaining agreement. Under Provision 5, the Agency may only deny annual leave requests if it determines that "work demands leave no other reasonable alternatives." Provision 6 requires that the Agency consider requests for advanced annual leave from employees who meet certain criteria. Because Provision 6 states that requests will be considered "in accordance with the terms of this article," the Agency may deny requests for advanced annual leave only if it determines that "work demands leave no other reasonable alternatives."
2. Provision 5
We reject the Agency's argument that Provision 5 conflicts with FPM chapter 630, subchapter 3-4, which governs the granting of annual leave. Subchapter 3-4.b.(1) states that a decision to grant or deny annual leave requests "will generally be made in the light of the needs of the service rather than solely on the desires of the employee." This provision of the FPM does not specify any situations where granting or denial of annual leave is mandatory and affords supervisors broad discretion in responding to requests for annual leave. Where an agency has discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically limits the exercise of discretion to the agency or the proposal or provision is otherwise nonnegotiable. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1060 (1991) petition for review filed sub nom. U.S. Department of the Army, Red River Army Depot, Texarkana, Texas v. FLRA, No. 91-1472 (D.C. Cir. Sept. 26, 1991). Consequently, negotiation over Provision 5 is not barred by FPM chapter 630, subchapter 3-4.
However, proposals placing substantive restrictions on an agency's right to determine when annual leave may be used directly interfere with management's right to assign work. See, for example, Army Information Systems Command, 42 FLRA at 1126 (proposal requiring that leave requests routinely be granted and that advanced annual leave requests be accommodated whenever possible held to directly interfere with management's right to assign work); 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 requiring that management grant annual leave requests when leave would otherwise be forfeited held to directly interfere with management's right to assign work).
Provision 5 limits the circumstances in which annual leave may be denied. Under the provision, the Agency could deny annual leave only if work demands leave "no other reasonable alternatives" to requiring an employee's presence on the job. Consequently, management would be unable to assign work to an employee during the period covered by the employee's leave request, unless it could establish that there were no other reasonable alternatives to requiring the employee to work during the requested leave period. As
Provision 5 imposes a substantive restriction on the Agency's discretion to make work assignments, we find that it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
The Union does not claim that Provision 5 is intended as an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, Provision 5 is nonnegotiable.
3. Provision 6
The plain wording of Provision 6 requires management to "consider" requests for advanced annual leave fairly and objectively in accordance with Article 13 of the negotiated agreement. The provision would not prevent the Agency from denying such requests, but would require that management consider certain factors, including whether work demands are such that there are no other reasonable alternatives to denying leave.
Proposals that require management to "consider" specified factors do not direct a particular result. Such proposals preserve management's discretion to decide how to act because they permit management to weigh and assess factors and decide on a course of action based on its evaluation of the factors' significance. By requiring management only to consider certain factors, including whether work demands dictate the denial of advanced annual leave requests, Provision 6 preserves management's right to grant or deny leave and, therefore, does not directly interfere with management's right to assign work under section 7106(a)(2)(B). See, for example, National Association of Government Employees, Local R12-29 and U.S. Department of the Navy, Naval Facilities Contracts Training Center, Construction Battalion Center, Port Hueneme, California, 43 FLRA 810, 818 (1991); Health Care Financing Administration, 39 FLRA at 1199-1200. Accordingly, for the reasons more fully stated in those cases, Provision 6 is negotiable.
VIII. Provisions 7 and 8
Provision 7
Article 13, Section 14- Home leave will be granted when:
(a) the employee has completed a basic service period of twenty-four (24) months of continuous service abroad; and
(b) the employee has been selected to return for at least a one (1) year assignment.
Provision 8
Article 13, Section 17- Approved home leave will be used within ninety (90) days after the employee becomes eligible under Section 14 of this Article, unless scheduling leave within this period would restrict the employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.
A. Positions of the Parties
The Agency asserts that, by requiring the Agency to grant home leave, Provision 7 is inconsistent with 5 C.F.R. § 630.606(a) and is nonnegotiable.(5). The Agency contends that, although an employee is entitled to leave under 5 C.F.R. § 630.606(a), that entitlement "is not equivalent to a grant of leave." Statement of Position at 14.
The Agency asserts that Provision 8 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute by requiring it to grant home leave within 90 days after an employee becomes eligible. In the Agency's view, the requirement that home leave be granted unless work demands leave no other reasonable alternatives "virtually mandates the grant of leave and eliminates management's discretion to grant or deny the leave." Id.
The Union contends that Provision 7 establishes a "standard" for the granting of home leave for eligible employees. Petition for Review at 6. The Union argues that Provision 8 establishes the time period during which home leave "should normally be used." Id.
B. Analysis and Conclusions
The Agency asserts that Provision 7 is inconsistent with 5 C.F.R. § 630.606(a). We disagree. 5 C.F.R. § 630.606(a) provides that an employee must complete 24 months of continuous service abroad to be eligible for home leave. The Agency has not explained, and it is not apparent to us, how Provision 7 conflicts with 5 C.F.R. § 630.606(a). In fact, Provision 7 includes the requirement, found in 5 C.F.R. § 630.606(a), that an employee must complete 24 months of continuous service abroad. Moreover, 5 C.F.R. § 630.606(b) provides that "[a] grant of home leave is at the discretion of an agency." Where an agency has discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically limits the exercise of discretion to the agency or the proposal or provision is otherwise nonnegotiable. See, for example, National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019, 1025 (1991).
Provision 7 provides that home leave "will be granted" when an employee meets certain eligibility requirements. Provision 8 provides that such leave "will be used" within 90 days of the time when an employee is eligible unless work demands leave no other reasonable alternatives to denying the leave. Read together, we interpret Provisions 7 and 8 as requiring that the Agency grant home leave within 90 days after an employee becomes eligible unless, because work demands leave no other reasonable alternatives, the Agency must require an employee to work. As we noted in our discussion of Provision 5, provisions which substantively restrict management's discretion to determine whether or when to grant leave directly interfere with management's right to assign work under section 7106(a)(2)(B). Because Provisions 7 and 8 place a substantive restriction on management's right to grant home leave, these provisions directly interfere with management's right to assign work.
The Union does not assert that these provisions are intended as appropriate arrangements. Consequently, Provisions 7 and 8 are nonnegotiable.
IX. Provision 9
Article 13, Section 23A- Regardless of the duration of the absence, the Employer may consider an employee's certification as to the reason for his absence as evidence administratively acceptable. However, for an absence in excess of three work days or when the Employer has reasonable grounds to suspect the employee of leave abuse, the employer may also require a medical certificate, or other administratively acceptable evidence, as to the reason for the absence. This discretion will be exercised in a fair and objective manner.
[Only the underscored sentence is in dispute.]
A. Positions of the Parties
The Agency asserts that, because Provision 9 directly interferes with management's right "to direct its work force under section 7106(a)(2)(B), it is nonnegotiable." Statement of Position at 15. The Agency contends that the provision "imposes an impermissible substantive restriction directly on the exercise of a management right and, moreover, subjects that right to arbitral review." Id.
The Union describes Provision 9 as setting forth the Agency's "right to request a medical certificate or other reasonably acceptable evidence, including an employee's certification, to explain absence on sick leave." Petition for Review at 7.
B. Analysis and Conclusions
Initially, we find no merit in the Agency's argument that the disputed sentence of the provision is nonnegotiable because it would subject the exercise of a management right to arbitral review. As we stated in connection with Provision 3, an agency's argument that an arbitrator's judgment may be substituted for its own provides no basis for preventing negotiation over a provision.
The disputed sentence of Provision 9 requires the Agency to exercise its discretion to require evidence to support sick leave usage "in a fair and objective manner." Requiring an employee to furnish medical certification supporting certain sick leave requests is a necessary preliminary step to management's decision to impose discipline for misuse or abuse of sick leave under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, Local 1156 and U.S. Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania, 42 FLRA 1157, 1162 (1991). Further, provisions that restrict the range of management action pursuant to a right under section 7106 of the Statute, such as the right to discipline, constitute substantive limitations on the exercise of that right and, thereby, directly interfere with that right. See VAMC, Department of Memorial Affairs, 40 FLRA at 683.
In VAMC, Department of Memorial Affairs, Provision 8 required, among other things, that the agency distribute work "equitably" among employees within job classifications. In finding that the provision directly interfered with the agency's right to assign work, we noted that the Authority has found terms such as "equitable" or "equitably" to have varying substantive effects. Id. at 684. We concluded that terms such as "equitable" or "equitably," when used in proposals or provisions that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right, and we stated that we would no longer follow previous decisions that held to the contrary. Id.
A requirement that management exercise its rights under the Statute in a "fair and objective" manner is not substantively different from the requirement that such a right be exercised "equitably," found to be a substantive limitation in VAMC, Department of Memorial Affairs. Consequently, for the reasons set forth more fully in VAMC, Department of Memorial Affairs, we find that the disputed sentence of Provision 9 directly interferes with the exercise of the right to impose discipline under section 7106(a)(2)(A) of the Statute.
As there is no indication in the record that the Union intends the provision to be an appropriate arrangement under section 7106(b)(3), we conclude that the disputed sentence in Provision 9 is nonnegotiable. As the Agency advances no arguments concerning the remainder of Provision 9, we conclude that it is not in dispute and will order the Agency to rescind its disapproval of it.
X. Provision 10
Article 13, Section 30B
Employees will be released for the purpose of donating blood in accordance with this Article unless permitting such release would restrict the Employer's ability to assign work under 5 USC 106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.
A. Positions of the Parties
The Agency asserts that "there is no entitlement to administrative leave . . . ." Statement of Position at 16. Citing FPM chapter 630, subchapter 11, the Agency claims that administrative leave is "purely a creation of management" and that any proposal mandating such leave is inconsistent with the FPM. Id. The Agency also contends that Provision 10 "virtually mandates the grant of leave" to donate blood and "effectively eliminates management's discretion to deny leave." Id. The Agency asserts that, by eliminating such discretion, the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
The Union states that Provision 10 "describes the standard to be used in granting employee requests to donate blood on administrative leave." Petition for Review at 7.
B. Analysis and Conclusions
Consistent with the statements of both parties, we find that Provision 10 requires the Agency to grant administrative leave to employees to donate blood.
FPM chapter 630, subchapter 11 is a Government-wide regulation which provides guidance on the granting of excused absence, that is, administrative leave. See, for example, International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 714 (1988) (Bureau of Engraving). The FPM provides that agencies "have authority to grant excused absence in limited circumstances for the benefit of the agency's mission or a Government[-]wide recognized and sanctioned purpose." FPM chapter 630, subchapter 11-5.b. Further, the FPM specifically notes that blood donations "may warrant" administrative leave. FPM chapter 630, subchapter 11-6.c. As the applicable regulation authorizes grants of administrative leave to donate blood, we conclude that Provision 10 is not inconsistent with FPM chapter 630, subchapter 11.
Provision 10, however, precludes the Agency from denying administrative leave unless the Agency determines that "work demands leave no other reasonable alternatives." As we found in connection with Provision 5, this standard imposes a substantive limitation on the Agency's discretion to make work assignments. Accordingly, we find that Provision 10 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. As the Union has not argued that the provision constitutes an appropriate arrangement under section 7106(b)(3), we conclude that Provision 10 is nonnegotiable.
XI. Provision 11
Article 13, Section 32
A. An employee who is eligible to take a bar or CPA examination, or an examination for license as a professional engineer, and who serves in a functional area and position where professional accounting, professional engineering or legal knowledge is required or very helpful, shall be granted administrative leave to take such an examination.
B. Such an eligible employee shall also be granted administrative leave for travel to and attendance at an oral interview required as a prerequisite to his being licensed in the profession.
C. The time authorized under this Section is limited to a single examination for any one employee.
D. The time authorized under this Section shall not exceed three (3) days.
A. Positions of the Parties
The Agency contends that Provision 11 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it "divests the [A]gency of any discretion in determining whether to grant leave to an employee[.]" Statement of Position at 17. The Agency asserts that Provision 11 is "virtually identical" to a provision in Chief Counsel, IRS, I, 39 FLRA 27, which the Authority found was nonnegotiable. Id.
The Union asserts that Provision 11 merely sets forth a procedure for "considering" requests for administrative leave. Petition for Review at 7.
B. Analysis and Conclusions
Provision 11 requires the Agency to grant administrative leave to an employee who is eligible to take certain professional examinations, if the employee works in an area where such professional expertise "is required or very helpful."
Provision 11 has the same effect as Provision 5 in Chief Counsel, IRS, I, which required the agency to grant administrative leave to enable certain employees to take a bar or CPA examination. We held that the provision directly interfered with management's right to assign work because it failed to preserve management's discretion to decide whether to grant administrative leave. We noted that, although the union argued that Provision 5 granted administrative leave only after an employee's absence to take an examination was approved, the requirement in Provision 5 that employees "will be granted administrative leave" mandated the approval of such leave. 39 FLRA at 43.
Like the disputed provision in Chief Counsel, IRS, I, Provision 11 requires the Agency to grant administrative leave. We reject, in this regard, the Union's assertion that the provision merely describes a "procedure for considering requests for administrative time to take bar or CPA exams." Petition for Review at 7. The provision plainly states that eligible employees "shall be granted" administrative leave to take certain professional examinations and for related travel. We do not base negotiability determinations on a union's statement of intent which is inconsistent with the plain wording of the provision. See, for example, Chief Counsel, IRS, I, 39 FLRA at 43. Consequently, as Provision 11 requires the Agency to grant administrative leave to eligible employees to take certain professional licensing examinations, we conclude that it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. As the Union does not assert that Provision 11 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we conclude that it is nonnegotiable.
XII. Provision 12
Article 13, Section 40- The Employer agrees to approve leave without pay in the following circumstances when it will not restrict the Employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the employer determine that work demands leave no other reasonable alternatives:
(a) For one (1) year to any employee elected to positions of National President or Executive Vice President of the National Treasury Employees Union. Such leave will be extended on a year by year basis, and will be terminated when the employee leaves office.
(b) For one (1) year for up to three (3) employees who have been selected to serve full-time in appointive positions with the National Treasury Employees Union. Such leave will be extended on a year by year basis for up to no more than four (4) years, and will be terminated when the employee leaves such employment.
(c) For one (1) school year for an employee to participate in full-time study at an accredited institution of higher learning when the following conditions are met:
(1) the study is directly related to the employee's position in the Customs Service;
(2) the employee has completed a minimum of five (5) years of service with the Customs Service;
(3) the employee is judged by his supervisor to be performing his duties at least at an acceptable level of competence;
(4) it can reasonably be anticipated that the employee will return to work in the Customs Service upon completion of the study period; and
(5) the approval of such leave will not restrict the Employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.
Such leave will be terminated at such time as an employee withdraws or is dropped form [sic] the study program.
(d) For up to six (6) months when an employee has an illness or injury, that would otherwise be covered by sick leave, when the following conditions are met:
(1) the employee's annual leave and sick leave has been exhausted;
(2) there is reasonable assurance that the employee can and will return to work at the Customs Service at the conclusion of the leave period; and
(3) the approval of such leave will not restrict the employer's ability to require the presence of an employee, pursuant to its rights [sic] to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.
A. Positions of the Parties
The Agency contends that Provision 12 applies a "no reasonable alternatives" standard to management's decisions to grant o