53:1440(131)NG - - NAGE Local R14-23 and Defense Commissary Agency, Kelly AFB, TX - - 1998 FLRAdec NG - - v53 p1440
[ v53 p1440 ]
The decision of the Authority follows:
53 FLRA No. 131
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
KELLY AIR FORCE BASE, TEXAS
DECISION AND ORDER ON NEGOTIABILITY ISSUE
February 27, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, 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 proposal that was submitted during the parties' negotiations over a local supplement to their master collective bargaining agreement.
For the reasons that follow, we find that the proposal, which concerns the Agency's assignment of light duty work to temporarily disabled employees, is not within the duty to bargain because it affects management's right to assign work under section 7106(a)(2)(B) of the Statute, and the record does not establish that it constitutes an appropriate arrangement under section 7106(b)(3).
The EMPLOYER will make a reasonable effort to provide temporary light duty assignments for temporarily disabled EMPLOYEES to help reduce the loss of accumulated sick leave, provided there is reasonable medical evidence that the employee will return to full duty.
a. The meaning of light duty is determined in individual cases to be available work (not necessarily an established job or in their current tour of duty) which is commensurate with physical limitations established by the medical official. If light duty is not available during the EMPLOYEE'S regular tour of duty, the EMPLOYEE will have the option of not accepting the light duty work.
b. In the event no light duty is available, the Employee is encouraged to request sick, annual or leave without pay.
c. The Employer will make every reasonable effort to find work commensurate with the Employee's physical abilities.
[Only the underscored language is in dispute.]
III. Positions of the Parties
The Union contends that the disputed sentence is intended for employees who "are suffering from injury or illness and have been limited to light duty by a medical official." Response at 4. The Union contends that the disputed sentence is an appropriate arrangement for temporarily disabled employees who for personal reasons could not perform the assigned light duty on any tour except their regular one, which for some employees is a day tour. The Union asserts that employees are hired for specific tours and that family commitments, transportation problems, or other valid reasons could prevent them from working a different tour. According to the Union, if an employee declined the assignment, then the employee could request sick or annual leave or leave without pay in lieu of the assignment.
The Union contends that the cases cited by the Agency to show that the disputed sentence is not an appropriate arrangement are not applicable because they do not address light duty or duty for injured employees. Instead, the Union relies on National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1453 (1992) (BATF), remanded as to other matters, 30 F.3d 1510 (D.C. Cir. 1994), in which the Authority held that a proposal stating that "[a]pproval of sick leave will be granted to employees when they are incapacitated for the performance of their duties[,]" was an appropriate arrangement.
The Agency asserts that the disputed sentence affects management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that the disputed sentence would preclude management from assigning an employee light duty work on a different tour of duty than the employee's regularly assigned tour unless the employee agreed to perform the work.
The Agency asserts that the disputed sentence is not an appropriate arrangement under section 7106(b)(3). According to the Agency, because the disputed sentence would absolutely prohibit management from assigning light duty work on a different tour to an employee unless the employee agreed to accept the assignment, its impact on management's right to assign work is disproportionate to the benefits it affords employees.
IV. Analysis and Conclusion
A. Meaning of Proposal
The disputed sentence specifically provides, in part, that the "[e]mployee will have the option of not accepting the light duty work." It is uncontroverted that, as plainly worded, the disputed sentence would allow a temporarily disabled employee to decline work assignments on any tour other than the employee's regular tour of duty.
B. The Disputed Sentence Affects Management's Right to Assign Work
The right to assign work under section 7106(a)(2)(B) of the Statute includes, among other things, the determination of the particular employee to whom work will be assigned, when work assignments will occur and when work that has been assigned will be performed. See, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed, 691 F.2d 553 (D.C. Cir. 1982 ); see also, National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 585 (1997).
The disputed sentence would allow a temporarily disabled employee to determine whether light duty work would be performed by the employee and when the work would be performed. The disputed sentence, therefore, affects management's right to assign work under section 7106(a)(2)(B).
C. The Disputed Sentence Does Not Constitute an Appropriate Arrangement Under Section 7106(b)(3)
In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Authority set out its approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) of the Statute. Under that approach, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. If the proposal is determined to be an arrangement, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. KANG, 21 FLRA at 31-33.
An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); see also American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 141 (1995). The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See, id. As the Authority has explained, relying on U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management right. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996).
The disputed sentence here applies to all temporarily disabled employees -- those who "are suffering from injury or illness and have been limited to light duty by a medical official." Response at 4. According to the Union, the disputed sentence is intended to assist those temporarily disabled employees who have "personal reasons," such as "family commitments, transportation problems, or other valid reasons" that prevent them from working a tour other than their regularly scheduled one. Id.
It is not asserted or apparent that these employees are affected in different ways from any employee who is assigned to a new tour of duty. Moreover, the disputed sentence would allow any temporarily disabled employee assigned light duty on a tour other than the employee's regular tour to decline the assignment, even if the employee does not suffer the scheduling problems the disputed sentence is intended to address. Thus, even assuming the effects identified by the Union constitute adverse effects within the meaning of section 7106(b)(3) of the Statute, the disputed sentence is not sufficiently tailored to compensate those employees suffering the effects asserted by the Union as attributable to the exercise of management's rights. See e.g., National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 843, 853-54, review denied, National Association of Agriculture Employees v. FLRA, No. 96-1106 (D.C. Cir. Dec. 20, 1996) (finding a proposal not sufficiently tailored where not limited to employ