50:0637(83)NG - - AFGE, Council of Marine Corps Locals, Council 240 and Navy, Marine Corps, Washington DC - - 1995 FLRAdec NG - - v50 p637



[ v50 p637 ]
50:0637(83)NG
The decision of the Authority follows:


50 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF MARINE CORPS LOCALS

COUNCIL 240

(Union)

and

U.S. DEPARTMENT OF THE NAVY

U.S. MARINE CORPS

WASHINGTON, D.C.

(Agency)

0-NG-2207

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 31, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

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 concerns the negotiability of one provision of a negotiated agreement that was disapproved by the Agency head under section 7114(c) of the Statute.

The provision states that the Family and Medical Leave Act (FMLA) shall apply to employees who must care for medical emergencies for certain persons who are not covered by the FMLA. For the reasons which follow, we find that the provision excessively interferes with management's right to assign work and is, therefore, nonnegotiable.

II. Provision

Article 17, Section 8. Family and Medical Leave

a. Public Law 103-3, the Family and Medical Leave Act of 1993 (FMLA), provides substantive legal entitlement to employees regarding leave in certain specified circumstances. The Office of Personnel Management and the Department of Defense have issued implementing regulations regarding the Act.

b. The employer will implement the provisions of the FMLA consistent with the Act and its regulations, as well as this MLA.

c. The parties agree that the provisions of the FMLA shall also apply to situations where an employee seeks to care for a medical emergency of a dependent child, regardless of age, or of an in-law or grandparent of the employee.

[Only the underlined portion is in dispute.]

III. Background

The FMLA, 29 U.S.C. §§ 2601-2654, requires an employer to grant up to 12 work weeks of leave during any 12-month period to employees to care for the medical emergencies of their parents, children under the age of 18, and spouses.(1) The disputed provision would extend the FMLA provisions concerning the medical emergency care leave to employees who have to care for their grandparents, parents-in-law, and dependent children of any age.

IV. Positions of the Parties

A. Agency

The Agency claims that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) because it would require the Agency to grant leave without regard to its workload demands or its need for an employee's services. The Agency also argues that the provision does not constitute an arrangement under section 7106(b)(3) of the Statute because it does not ameliorate the adverse effects which flow from the exercise of a management right. Instead, the Agency claims that the adverse effects occur only when management denies the employee a benefit, i.e., the opportunity to take extended leave. In the alternative, the Agency claims that, even if the provision is an arrangement, it excessively interferes with management's right to assign work because it would mandate the granting of leave for up to a quarter of a year and deprive management of its discretionary authority to approve and disapprove leave.

B. Union

The Union states that the provision is intended as an appropriate arrangement under section 7106(b)(3) of the Statute for employees who are adversely affected by management's denial of leave and assignment of work at a time when they have to care for relatives during medical emergencies. The Union argues that the adverse effects on employees caused by management's denial of leave and assignment of work during a time when the employee must care for a medical emergency of a specified relative or dependent include, among other things, emotional stress and anxiety, lowered morale and physical illness, and ultimately, poor job performance. Finally, the Union claims that, as the FMLA now mandates grants of leave for health and family-related reasons as a matter of public policy, the same public policy reasons should weigh heavily in finding the provision negotiable.

V. Analysis and Conclusion

A. Management's Right to Assign Work

The disputed provision, which adopts the requirements of the FMLA, entitles specified employees to leave without pay (LWOP) for up to 12 weeks in certain circumstances.(2) Consistent with the FMLA, the provision provides for no exceptions to that entitlement. The Agency claims, and the Union "agree[s]" with the Agency, that the provision directly interferes with its right to assign work under section 7106(a)(2)(B) because it would require the Agency to grant leave without regard to its workload demands or its need for an employee's services. Reply Brief at 9. Moreover, longstanding precedent holds that proposals which restrict an agency's right to deny requests for annual or other leave directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. E.g., 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 (1991). As such, the provision runs afoul of the statutory prohibition against the negotiation of provisions "affect[ing] the authority of any management official of any agency . . . in accordance with applicable laws . . . to assign work[.]" 5 U.S.C. § 7106(a)(2)(B).(3)

B. Appropriate Arrangement

In determining whether a collective bargaining provision constitutes an appropriate arrangement, the A