51:0133(14)NG - - AFGE Local 1900 and Army HQ, Forces Command, Fort McPhearson, GA - - 1995 FLRAdec NG - - v51 p133

[ v51 p133 ]
The decision of the Authority follows:

51 FLRA No. 14





LOCAL 1900










September 12, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

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). The appeal concerns the negotiability of eight provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(1)

For the reasons that follow, we direct the Agency to rescind its disapproval of one provision because we find it negotiable under the Statute; dismiss the petition for review as to two provisions because we find these nonnegotiable under the Statute; and dismiss the petition for review of the remaining provisions for other reasons. In particular, we find Provision 6, which concerns the use of certain evidence against employees, negotiable.(2) We find Provision 1, which concerns the granting of annual leave, nonnegotiable because of its effect on management's right to assign work under section 7106(a)(2)(B) of the Statute; and Provision 7, which prevents the Agency from taking performance-based adverse actions against employees under certain circumstances, nonnegotiable because it affects the exercise of management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is not an appropriate arrangement under section 7106(b)(3) of the Statute. We dismiss the petition for review as to Provisions 3, 4, 5, and 8 because the Union agrees to interpretations that the Agency states render the provisions negotiable. Finally, we dismiss, without prejudice, the petition for review of Provision 10, because the Union amended the provision in its reply brief and the Agency head has not reviewed it, as amended.

II. Provision 1

Once granted, the leave will not be rescinded except in those cases of bona fide emergencies.

A. Positions of the Parties

1. Agency

The Agency asserts that Provision 1 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In support, the Agency cites Authority decisions holding that proposals restricting management's authority to rescind grants of annual leave are nonnegotiable.(3)

2. Union

The Union points out that Provision 1 was agreed to and incorporated in the negotiated agreement by the parties in prior negotiations, and that the Agency head neither disapproved it at that time nor sought bargaining over the provision during the negotiations that resulted in the current dispute. According to the Union, the Agency "forfeited its management right and must now 'live with' the language, as negotiated, approved, and . . . in full force and affect, [sic] without exception, since 1988." Reply Brief at 2. The Union maintains that, had it "been made aware of the Agency's wish to negotiate in this area, the Union would have gladly considered offering proposals which would have constituted appropriate arrangements within the bounds of negotiability." Id.

B. Analysis and Conclusions

We reject the Union's argument that the Agency "forfeited its management right . . . ." Reply Brief at 2. It is well-settled that the fact that the parties included an identical provision in a previous agreement does not render a provision negotiable. See, e.g., National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1404 (1991). Similarly, there is no authority for the proposition that, following expiration of an agreement, an agency must seek to reopen negotiations on a provision in order to later disapprove it under section 7114(c).

As to the provision's negotiability, management's right to assign work encompasses the authority to determine when work will be performed. See, for example, Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 524 (1990). Included within that authority is the right to determine when an employee may use annual leave he or she has accrued. Id. Moreover, Authority precedent holds that proposals restricting 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). Id. Therefore, such proposals run afoul of the statutory prohibition against negotiation of proposals that "affect the authority of . . ." management to assign work and, consequently, are inconsistent with section 7106(a)(2)(B). See American Federation of Government Employees, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, U.S. Marine Corps, Washington, D.C., 50 FLRA 637, 640 (1995).

On its face, Provision 1 limits to bona fide emergencies the Agency's authority to rescind leave once granted. As the Union does not assert that Provision 1 is intended to be an arrangement for adversely affected employees, we find that there is no basis for considering whether it is negotiable under section 7106(b)(3). Consequently, the provision is nonnegotiable because it is inconsistent with section 7106(a)(2)(B) of the Statute.

III. Provisions 3, 4, 5, 8, and 10

Provision 3

Bargaining unit employees shall not be assigned or detailed to higher graded positions, including supervisory positions unless temporarily promoted to these positions [in accordance with] applicable law, rule, or regulation and this Agreement, except for short periods not to exceed fourteen (14) days in duration.

Provision 4

A bargaining unit employee will not be subject to an adverse action except for just cause.

Provision 5

A bargaining unit employee will not be subject to disciplinary action except for just cause.

Provision 8

Employees who can not [sic] meet the above requirements for medical or other acceptable reasons will be granted a deferral or exception to policy as a result of a review between the employee and management. Management agrees to use sound and reasonable judgement when considering deferral and granting exceptions.

[Only the underlined portion is in dispute.]

Provision 10

No action will be taken to remove an employee for unacceptable performance that is inconsistent with the provisions of 5 USC, Chapter 43.

A. Positions of the Parties

1. Agency

The Agency states that it will withdraw its disapproval of Provisions 3, 4, 5, and 8 based on specified interpretations of those provisions. In addition, noting that Provision 10 does not refer to 5 U.S.C. chapter 75, the Agency asserts that, "[b]y requiring that management take all removal actions for unacceptable performance in compliance with the terms of [5 U.S.C. chapter 43], the provision violates management's right to take disciplinary action under [chapter 75]." Statement of Position at 8.

2. Union

The Union agrees with the interpretations of Provisions 3, 4, 5, and 8 that, according to the Agency, render the provisions negotiable. The Union acknowledges its failure to include a reference to chapter 75 in Provision 10 and offers, as an amendment to that provision, "inclusion of the words 'and 5 USC, Chapter 75' between the words 'Chapter 43' and the period at the end of the present language . . . ." Reply Brief at 7.

B. Analysis and Conclusions

When an agency contends that a provision is negotiable based on a particular interpretation and states that it will withdraw its allegation of nonnegotiability if that interpretation is adopted by the union, there is no longer a dispute as to the negotiability of the provision, if the union agrees with the agency's interpretation. See National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61, 66 (1987). The Agency states that it will withdraw its disapproval of Provisions 3, 4, 5, and 8 based on interpretations of those provisions with which the Union agrees. Consequently, there is no longer any dispute over the negotiability of these provisions, and we will dismiss the petition for review as to Provisions 3, 4, 5, and 8.

When a union offers to amend the wording of a proposal that is before the Authority to comply with agency objections, the proposal is not ripe for Authority review because the agency has not had the opportunity to review the proposed amendment. See, for example, National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Hyattsville, Maryland, 48 FLRA 599, 601 (1993). Here, the Agency head declared Provision 10 to be nonnegotiable solely because it did not expressly refer to chapter 75 of title 5 of the U.S. Code. Although the Union offers to amend the provision to include the omitted reference, the Agency has not reviewed the provision as amended. Accordingly, there is presently no dispute over whether the amended provision is within the duty to bargain, and we will dismiss the petition for review of Provision 10 without prejudice to the Union's right to file a negotiability appeal if, upon review, the Agency head declares the amended provision nonnegotiable.

IV. Provision 6

Evidence which Management is not permitted to divulge to an employee under the Privacy Act will not be used against the employee unless permitted by law.

A. Positions of the Parties

1. Agency

The Agency asserts that Provision 6 is nonnegotiable because it is inconsistent with management's right to discipline under section 7106(a)(2)(A) of the Statute by placing restrictions on management's ability to compile and use documentation as evidence in a disciplinary proceeding. The Agency cites National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 1349 (1991) (PTO) as support for its position.

2. Union

The Union maintains that the Agency has misinterpreted Provision 6 and asserts that it:

[A]llows the Agency to withhold Privacy Act restricted evidence from the employee, but also allows the Agency to utilize that evidence; provided it is "permitted by law". In effect, so long as the information withheld from the employee based upon Privacy Act release restrictions is otherwise "permitted [to be used] by law", the Agency could utilize it in support of its actions. . . .

Further, the Union's inclusion of the phrase "permitted by law" allows the Agency to utilize evidence legally obtained and not in conflict with the accepted rules of evidence.

Reply Brief at 4-5 (brackets in original).

B. Analysis and Conclusions

The Union's explanation of Provision 6 is consistent with its plain wording. Therefore, we adopt it for purposes of this decision. See, for example, Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 681 (1994). Read consistent with the Union's explanation, the provision authorizes the use of certain information (evidence which management is not permitted to divulge to an employee under the Privacy Act) in disciplinary actions, provided the information has been legally obtained and is admissible under "the accepted rules of evidence." The Union has not offered a definition of the phrase "the accepted rules of evidence." Therefore, noting that the Agency does not argue to the contrary, we find it appropriate to conclude that the Union intends the phrase to be defined contextually and to construe "the accepted" rules of evidence as those applicable in whatever proceeding is involved.(4)

Provision 6 thus is distinguishable from proposals or provisions found nonnegotiable by the Authority in previous decisions because they would have restricted an agency's use of materials and documentation as evidence in disciplinary proceedings. See, e.g, National Association of Government Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 533 (1991). Under Provision 6, as construed herein, admissibility of evidence is determined by whether it was "legally obtained" and by whatever "accepted rules of evidence" apply. The provision itself does not create any restrictions on admissibility--those restrictions derive from what is otherwise legal and consistent with evidentiary rules, and would be applicable without regard to the provision. Accordingly, the Agency's reliance on PTO, 41 FLRA 1349, is misplaced. Provision 1 in that case prevented the Agency from using certain documentation that would be otherwise admissible in a disciplinary or adverse action proceeding. For the reasons discussed above, Provision 6 does not impose such a restriction. As Provision 6 does not prevent the use of any evidence that has been legally obtained and is admissible under whatever rules of evidence apply in a particular disciplinary proceeding, there is no basis on which to conclude that the provision is nonnegotiable as inconsistent with management's right to discipline.

V. Provision 7

The Employer will provide employees with training and development opportunities to enable them to better perform their official duties subject to availability of funds and quotas when necessary. Scheduling of such training is subject to mission requirements. Adverse actions will not be taken against employees for poor performance caused by the failure of the Employer to provide customary training and development opportunities due to the above reasons.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency asserts that Provision 7 is nonnegotiable because it "completely abrogates" its right to discipline under section 7106(a)(2)(A) of the Statute. Statement of Position at 7. The Agency argues that the provision is similar to proposals that the Authority found nonnegotiable because they immunized employees from discipline under particular circumstances.

2. Union

The Union states that Provision 7 is an appropriate arrangement for employees who, without fault, have not received the training necessary either to perform assigned duties or to adapt to changed technology and methods. The Union notes that the Agency would be free to take an adverse action if an employee received the requisite training and was given a reasonable opportunity to demonstrate successful performance, but continued to perform poorly.

B. Analysis and Conclusions

Authority precedent has consistently held that proposals or provisions that protect employees from adverse performance ratings resulting from their failure to meet performa