47:0651(60)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1993 FLRAdec NG - - v47 p651

[ v47 p651 ]
The decision of the Authority follows:

47 FLRA No. 60














May 19, 1993


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). It involves the negotiability of one proposal, which addresses medical and dental services rendered by the Agency. The Agency filed a statement of position. The Union did not file a reply brief.

For the following reasons, we find the proposal is not inconsistent with 5 U.S.C. § 7901 and 5 C.F.R. § 630.401, and does not directly interfere with the Agency's right to direct and assign employees under section 7106(a)(2)(A) of the Statute. It is, therefore, negotiable.

II. Preliminary Matters

The Agency's contention that the Union's petition for review should be dismissed for failure to comply with the requirement that the Union furnish an explicit statement of the meaning of the proposal cannot be sustained. By its plain wording, the proposal is sufficiently specific for us to determine its meaning. Additionally, we reject the Agency's contention that the petition for review should be dismissed for failure to include a written allegation of nonnegotiability by the Agency. The record reveals that an allegation of nonnegotiability by the Agency was made in a letter to the Federal Service Impasses Panel, and the letter was submitted by both parties as an attachment or exhibit in this proceeding. The request for dismissal on these bases is, therefore, denied.

III. Proposal

No bargaining unit member shall be billed or required to pay any costs, nor suffer any loss of pay or other benefits for any medical or dental services rendered by the employer.

IV. Positions of the Parties

A. Agency

The Agency argues that the proposal, by obligating management to provide free medical and dental services to employees, and by preventing management from placing employees on annual leave, sick leave, or leave without pay during absence for care in the Agency's facilities, is inconsistent with statute and regulation.

First, the Agency argues that the proposal is inconsistent with 5 U.S.C. § 7901 because it requires free medical care for employees regardless of the circumstances and nature of the care.(1) Further, the Agency notes that its appropriated funds may be used only to provide care to persons who are beneficiaries under the laws relating to veteran's benefits.

Next, the Agency argues that the proposal is inconsistent with 5 C.F.R. § 630.401, a Government-wide regulation.(2) The Agency asserts that the reference in the proposal to "loss of pay or other benefits" prohibits charging employees with sick leave or other leave during absence for health care, however long the duration of the absence. By prohibiting charges to sick leave, the Agency asserts that the proposal conflicts with section 630.401. The Agency argues, as an example, that under this proposal an employee suffering a heart attack at work would be entitled to extensive, long-term free medical care without charges to leave of any kind, however long or burdensome the absence to the Agency.

Finally, the Agency asserts that the proposal is nonnegotiable because it directly interferes with management's rights under section 7106(a)(2)(A) of the Statute to direct and assign employees. The Agency argues that the proposal's broad and mandatory requirement of health care, and the prohibition on charging leave or causing loss of pay or benefits to employees, would directly interfere with management's rights to direct and assign employees.

B. Union

The entire relevant portion of the Union's petition for review is as follows:

The Union's proposal provides a benefit related to conditions of employment which is under the control of the Agency, and over which the Agency has discretion to bargain.

Petition for Review at 1.

V. Analysis and Conclusions

The Union offered no explanation of its proposal and, as noted, did not file a reply brief. The parties to negotiability matters bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1487 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Yuma Project Office, Yuma, Arizona, 44 FLRA 945, 949 (1992).

We find, as the Agency asserts, that the contested proposal has two components. First is the provision of health care to employees. Second is the prohibition of any charge, or loss of benefits to employees, as a result of receiving such health care.

Regarding the provision of health care, the Agency asserts that the proposal should be read as requiring it to provide employees with all medical and dental services, including those which are not employment-related. In this regard, the Agency asserts that the proposal is similar to one found nonnegotiable in National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785 (1987) (Defense Mapping), which provided:

The employer agrees to provide eye examinations to all unit employees who are advised to seek further examination or reimburse the employee for expenses if he/she goes to a private ophthalmologist.

Id. at 787. The Authority found the foregoing proposal nonnegotiable because it effectively required the Agency to provide routine eye care beyond that of an emergency or on the job nature, including private physician services. Id. at 790. The Authority reviewed the legislative history and stated purpose of 5 U.S.C. § 7901 in authorizing Federal employee health programs and concluded that:

[T]he statutory authorization to provide health services does not extend to treatment beyond that involving on-the-job illness and dental conditions of a minor nature or requiring emergency attention.

Id. at 789 (emphasis in original) (footnote omitted). The Authority found that the proposal in Defense Mapping was inconsistent with 5 U.S.C. § 7901 because it required the Agency to provide specific medical services exceeding the limited authorization of that section. Id. at 790.

By contrast, the proposal before us does not obligate the Agency to provide any health services. Instead, the proposal merely refers to that care which is rendered by the Agency. As the proposal does not require the Agency to provide any particular health care, we reject the Agency's argument that the proposal is substantively analogous to that in Defense Mapping. Moreover, as the contested proposal merely refers to those health services which the Agency may choose to offer its employees, we have no basis on which to conclude that the proposal is inconsistent with 5 U.S.C. § 7901.

The Agency next asserts that the proposal is inconsistent with 5 C.F.R. § 630.401 because it precludes any "loss of pay or benefits" as a result of receiving health care in the Agency facilities. Further, the Agency asserts that under the proposal, health services must be provided free of charge to the employees, as to do otherwise would result in a "loss of pay or other benefits." We agree with the Agency that, as leave is accrued as a benefit of Government service, the reference to "benefits" in the proposal logically encompasses any charges to leave. Moreover, the Union does not dispute the Agency's construction of the proposal in this respect.

5 C.F.R. § 630.401 addresses an agency's duty to grant sick leave in the circumstances set forth therein. U.S. Department of Veteran's Affairs Medical Center, Hampton, Virginia and National Association of Government Employees Local R4-17, 41 FLRA 642, 646 (1991). Clearly, the regulation requires agencies to grant employee requests for sick leave, in appropriate circumstances. The regulation is Government-wide, within the meaning of section 7117 of the Statute, and proposals inconsistent with it are nonnegotiable. See 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, 584 (1984).

However, we find no inconsistency between the proposal and the regulation. In this regard, it appears clear from the plain wording of the proposal that the Union is seeking only to enable employees to receive health care services rendered by the Agency without charge to leave. That is, we interpret the proposal as requiring the Agency to grant excused absence when employees receive such health care services.

Excused absence is an absence from duty, which is administratively authorized, without loss of pay and without charge to leave. Federal Personnel Manual (FPM) chapter 630, subchapter 11. Excused absences may be granted for such matters as participation in officially sponsored and administered health and physical fitness programs authorized under 5 U.S.C. § 7901. Id. As examples, agencies may grant excused absence for participation in officially authorized programs for disease prevention and for promoting and maintaining health and fitness, such as agency sponsored health screening or smoking cessation programs. FPM Letter 792-23 (June 25, 1992). Absences of this nature are termed "administrative leave" and may be granted in the discretion of