54:1130(99)NG - - Professional Airways System Specialists, District No. 6 & Marine Corps Air Station, Cherry Point, NC - - 1998 FLRAdec NG - - v54 p1130



[ v54 p1130 ]
54:1130(99)NG
The decision of the Authority follows:


54 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS

DISTRICT NO. 6

PASS/NMEBA

(Union)

and

U.S. DEPARTMENT OF THE NAVY

U.S. MARINE CORPS

MARINE CORPS AIR STATION

CHERRY POINT, NORTH CAROLINA

(Agency)

0-NG-2269

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 25, 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 three proposals.

At issue are three sections of a proposed Memorandum of Understanding (MOU) offered by the Union during negotiations.(1) Although the record does not describe what events led to the proposed MOU, it appears from the Union's position statements that a particular employee who suffered from "mood swings," or some type of erratic behavior, was reassigned by the Agency to a different work location at the Agency's facility. Thereafter, the Union sought to negotiate the MOU for addressing similar situations that might arise in the future.

For the reasons explained below, we find that Proposals 1 and 3 are outside the duty to bargain because they directly determine conditions of employment of managers. Proposal 2 is outside the duty to bargain because it is contrary to law.

II. Union's Request to Sever

The Union has requested the Authority to "sever any parts, subparts, sentences, phrases, or words" of the proposals that are found to be negotiable from those that are found to be nonnegotiable. See Cover Letter to Union's Response. Generally, the Authority grants requests to sever where portions of proposals can stand independently of the remainder of the proposals and such portions have been specifically addressed by the parties. See, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 898 n.1 (1997).

In this case, we grant the Union's request to the extent that we separately address each disputed section of the MOU. This is consistent with the Union's petition for review in which it discussed the intent of the MOU on a section-by-section basis. It is also consistent with our view that each of the disputed sections can stand independently. As there are three disputed sections before us, we address each section as a separate proposal. However, we deny the request insofar as the Union requests us to sever sentences, phrases or words. The separate sentences, phrases or words do not stand independently of the section of which they are an integral part. Consequently, in addressing each of the disputed sections, if we find that any portion is outside the duty to bargain, the entire proposal falls outside the duty to bargain. See, e.g., American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1320-22 (1996) (as disputed portion of provision was outside duty to bargain, petition for review as to entire provision was dismissed).

III. Proposals 1 and 3

Proposal 1

Section 4. Determining Personnel with Mood Swings.

a. Any bargaining unit member may bring it to the attention of management that an individual (either management or a bargaining unit member) appears to have mood swings which are troublesome to the employee. As a beginning factor in determining that an individual is experiencing mood swings, there must be a [sic] least four (4) documented occurrences of suspected mood changes which have resulted in deficient work, so reflected on the employees [sic] performance appraisal, which show a nexus to the efficiency of the government. The combined occurrences must have occurred within a two week period in order to be a factor of determination, and must have occurred within thirty (30) days of the time of notification to management. Upon notification, management shall place both the notifying individual(s) and individual(s) suspected of mood swings on administrative leave while arrangements are made to have both secure a physician of their choosing who will evaluate the alleged mood swing personalities and the possible paranoia personalities of the individual(s) making the allegation. All physician (professional) expenses incurred by these individuals shall be at government expense and official time shall be granted for all visits. At a minimum, these individuals shall be awarded seven (7) months of continuous administrative leave to complete a thorough investigation of these alleged mood swings or paranoia or similar disorder in order to receive proper evaluation by these professionals to determine if such leave has reduced the mood swing or paranoia tendencies. At the end of seven (7) months the concluding results of such evaluations shall be presented in writing by the professionals to both management and the Union. Only a qualified professional can make the final determination of mood swings or paranoia or like conditions. To assure that no favoritism or discrimination is awarded the accused or accuser all individuals associated with the allegation shall complete the above evaluation time before any further steps occur as outlined below.

Proposal 3

Section 5. Assistance to professionally determined troubled individual(s).

a. Once an individual is determined by a qualified professional to be under duress the following assistance shall be provided by management:

. . . .

2. Reassignment Offers. At the employee's election, Management shall offer a lateral reassignment in the same series, grade, and tenure (career, excepted services, etc.) and the same work schedule at Marine Corps Air Station Cherry Point Station which may offer relief from duress. The employee will be offered at least two (2) offers within the bargaining unit and at least two (2) outside the bargaining unit aboard the Air Station. The offers may or may not be offered simultaneously. The employee may decline any or all of the four offers. However, if the employee declines all four offers management is not required to request further consideration of positions under this agreement. Both the accused and accuser shall be offered these positions commensurate with their series and grade and either may accept or deny. Should both decline all offers, and the Parties to this agreement agree that in the interest of both Parties, the individuals should be separated, the individual with the least Service Computation Date shall be first placed in the bargaining unit position offered above.

A. Positions of the Parties

1. Agency

The Agency claims that Proposals 1 and 3 are outside the duty to bargain on several grounds. The Agency claims that they involve conditions of employment of non-bargaining unit employees, including managers, and affect the exercise of various management rights. In addition, the Agency maintains that Proposal 1 is contrary to law and regulation.

2. Union

The Union explains, generally, that Proposal 1 "defines the procedures and appropriate arrangements that individuals alleged to have mood swing personalities, along with the accusing individuals, shall use to begin evaluation by a professional physician." Petition for Review, Attachment 3 at 1. The Union also argues that Proposal 1 is consistent with law and regulation, although it does not expressly address all of the Agency's contentions in this regard.

As to Proposal 3, the Union argues that, consistent with E.O. 12781, it has the right to bargain over "the series, grade, number and positions of bargaining unit employees and the assignment of these individuals to any work project or position within the agency." Response at 6. The Union also claims that this proposal outlines the procedures and appropriate arrangements to be used to minimize the effects of a reassignment of employees.

As to both proposals, the Union refutes the Agency's position that they affect the exercise of management's rights. With regard to the claimed inclusion of non-unit employees, the Union emphasizes that Section 2 of the MOU, which is not in dispute, limits the application of the MOU to bargaining unit employees.

B. Analysis and Conclusions

1. Meaning of the Proposals

The precise meaning of each sentence of Proposal 1 is not clear from the record. However, overall, the meaning of the proposal is sufficiently clear to permit us to resolve the petition for review. The proposal would allow bargaining unit members to bring to management's attention the fact that an individual, defined as either management or a bargaining unit member, appears to have mood swings which are troublesome to the employee. The proposal further describes the criteria comprising a mood swing and the time frame in which the mood swings must occur; requires the Agency to place individuals who are suspected of having mood swings, as well as the individuals who report such behavior to management, on administrative leave, for a minimum of seven months while arrangements are made to secure and complete medical evaluations; requires exhaustion of the negotiated "time frame" before any further action is taken in order to assure that no individuals associated with the allegation of mood swings are shown favoritism or discriminated against, Response at 5; requires that only a "qualified professional" can make final determinations regarding such conditions as mood swings or paranoia; and requires the furnishing, in writing, to management and the Union, of the results of professional evaluations. In addition, Proposal 1 requires the Agency to pay for all physician expenses and authorizes the use of official time for physician visits.

Proposal 3 requires the Agency to make reassignment offers to employees, referred to as the "accused" who are determined by a qualified professional to be under duress, and to employees called the "accuser" who are apparently the individuals who have reported employee mood swings to management. The offers, which would not have to be made simultaneously, consist of at least two bargaining unit positions and at least two non-bargaining unit positions. The proposal further describes what will occur if the offers are declined.

2. The Proposals Are Outside the Duty to Bargain Because They Directly Determine the Working Conditions of Managers

The parties dispute whether these proposals extend to employees outside the bargaining unit. In particular, the Agency argues that they would unlawfully regulate the conditions of employment of managers, supervisors or employees in other bargaining units. In response, the Union claims that application of the MOU is limited to bargaining unit employees.

The Union correctly notes that Section 2 of the MOU defines its coverage to include "[a]ll bargaining unit members within the G-6 Directorate of MCAS Cherry Point." By its terms, however, Proposal 1 clearly extends to "managers." Specifically, Proposal 1 permits bargaining unit personnel to apprise management that a manager appears to have mood swings. At that point, the various provisions of Proposal 1 come into play and the manager, as well as the apprising employee, is placed on administrative leave for a minimum of seven months and is subject to medical evaluations, including disclosure of those evaluations. Although Proposal 3 does not expressly refer to managers, the citation therein to the "accused" is an obvious reference to the individuals named in Proposal 1 and, as such, includes managers. Accordingly, under Proposal 3, the Agency could be required to provide reassignment offers to a manager and to actually reassign a manager to a bargaining unit position if that individual has "the least Service Computation date."

Under Authority and judicial precedent, proposals that directly determine the conditions of employment of managers and supervisors are outside the duty to bargain. See American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995), petition for review denied, 110 F.3d 810 (D.C. Cir. 1997). Therefore, an agency cannot be compelled to bargain over such proposals. However, nothing would prevent an agency from choosing to bargain over such a matter provided it is otherwise within the duty to bargain. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 682 (1996).

Proposals 1 and 3 would directly determine the conditions of employment of managers and, therefore, are outside the duty to bargain. We dismiss the petition for review as to these proposals. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830 (1996).

We also find it is unnecessary to address the remaining contentions presented by the parties. In particular, since the Agency cannot be compelled to bargain over these proposals, it would make no difference to the outcome if we were to decide that the proposals were not contrary to law. Similarly, the petition for review as to Proposal 3 would be dismissed even if, as the Union claims, the proposal were electively negotiable under section 7106(b)(1) of the Statute. See id. at 837.

IV. Proposal 2

Section 5. Assistance to professionally determined troubled individual(s).

a. Once an individual is determined by a qualified professional to be under duress the following assistance shall be provided by management:

1. Professional Counseling.  Professional counseling shall be offered to an individual under duress. The individuals [sic] acceptance of such counseling is voluntary. The counseling will be at the government's expense and official time will be granted for all counseling sessions.

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 2 is outside the duty to bargain because it is contrary to law and affects the exercise of management's rights. More particularly with regard to furnishing counseling at Government expense, the Agency claims that such a requirement conflicts with 5 U.S.C. § 7901 and a ruling of the Comptroller General. In support, the Agency cites, respectively, National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785 (1987) (Defense Mapping Agency) and 53 Comp. Gen. 230 (1973).

2. Union

According to the Union, Section 5 of the MOU, of which Proposal 2 is a part, is an appropriate arrangement for employees who are "determined to be under such duress from their workplace environment." Petition for Review, Attachment 3 at 1. The Union adds that professional counseling "could include OWCP expense if determined to be work related," id., and that the Union "is not choosing the professional" but, rather, is accepting "the Agency's own 'counseling offer'[.]"(2) Response at 5. The Union adds that since the Agency "has determined this condition is a result of the working environment[,]" it has the discretion to pay expenses and provide official time. Id.

B. Analysis and Conclusions

1. Meaning of the Proposal

By its terms, Proposal 2 would require the Agency to provide professional counseling, at Government expense and on official time, to employees who are determined by a qualified professional to be under duress. The acceptance of such counseling is voluntary on the part of the employee.

2. The Furnishing of Counseling at Government Expense Is Contrary to Law

5 U.S.C. § 7901, which is set forth below in pertinent part, authorizes Federal agencies to provide health service programs for their employees. It also identifies the type of services that may be provided:

§ 7901. Health Service Programs.

(a) The head of each agency of the Government of the United States may establish, . . . a health service program to promote and maintain the physical and mental fitness of employees under his jurisdiction.

. . . .

(c) A health service program is limited to-

(1) treatment of on-the-job illness and dental conditions requiring emergency attention;

(2) preemployment and other examinations;

(3) referral of employees to private physicians and dentists; and

(4) preventive programs relating to health.

The Authority has previously addressed the application of this section. In Defense Mapping Agency, 26 FLRA 785, the Authority found that a proposal, which required the employer to provide eye examinations for all unit employees or reimburse employees for the expenses of private opthamologists, was inconsistent with section 7901. The Authority determined that "[a]gency-provided treatment for medical conditions beyond those of an emergency or on the job nature and reimbursement for private physicians for routine employee medical care exceeds the statutory authorization of medical services under 5 U.S.C. § 7901." Id. at 790. See also National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 49 FLRA 973 (1994) (portion of proposal requiring agency to reimburse employee for cost of eye examination held contrary to § 7901). Cf. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 47 FLRA 651 (1993) (where a union proposed that employees not incur any costs for medical or dental services already rendered by an agency, there was no violation of 5 U.S.C. § 7901 because the proposal did not obligate the agency to provide any health services).

The Union claims that the Agency has the discretion to pay for counseling because it is the Agency that determines that an employee is under duress.(3) Even assuming the Agency retains the right to identify the employees for whom counseling would be made available, the Union points to no authority that would allow the Agency to pay for counseling expenses. Furthermore, the Union has not explained how "duress" equates to, or results from, an on-the-job illness, which is a prerequisite for payment.

We recognize that an employee under duress may display work-related problems, for example, diminished performance, or that duress may have work-related ramifications, such as the need to reassign an employee. However, these possible consequences do not signify that the duress necessarily concerns an on-the-job illness, which is one of the requirements that must be satisfied in order for payment to be authorized under 5 U.S.C. § 7901. Cf. U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 52 FLRA 46, 50 n.6 (1996) (5 U.S.C. § 7901 does not authorize payment of medical expenses incurred by employee attending in-patient alcohol counseling program).

In sum, we find that the furnishing of counseling at Government expense, as authorized by Proposal 2, is contrary to law. Given this result, there is no need to address the parties' remaining contentions. Accordingly, we find that Proposal 2, in its entirety, is outside the duty to bargain.

V. Order

The petition for review is dismissed.

APPENDIX

The Memorandum of Understanding provides as follows:

Section 1. This agreement is made by and between the Professional Airways Systems Specialists (PASS), hereinafter referred to as the Union, and the Department of the Navy, Marine Corps Air Station Cherry Point, North Carolina, hereinafter referred to as the Employer.

Section 2. Coverage

a. All bargaining unit members within the G-6 Directorate of MCAS Cherry Point.

Section 3. Purpose

a. The purpose of this MOU is to provide the methods and means, and determination of series, grades, numbers, and positions to be assigned to any work project or tour of duty as a result of medically defined "mood swings." In addition, the appropriate arrangements and procedures to minimize the adverse affects to all parties affected by such mood swings are defined below.

Section 4. Determining Personnel with Mood Swings.

a. Any bargaining unit member may bring it to the attention of management that an individual (either management or a bargaining unit member) appears to have mood swings which are troublesome to the employee. As a beginning factor in determining that an individual is experiencing mood swings, there must be at least four (4) documented occurrences of suspected mood changes which have resulted in deficient work, so reflected on the employees [sic] performance appraisal, which show a nexus to the efficiency of the government. The combined occurrences must have occurred within a two week period in order to be a factor of determination, and must have occurred within thirty (30) days of the time of notification to management. Upon notification, management shall place both the notifying individual(s) and individual(s) suspected of mood swings on administrative leave while arrangements are made to have both secure a physician of their choosing who will evaluate the alleged mood swing personalities and the possible paranoia personalities of the individual(s) making the allegation. All physician (professional) expenses incurred by these individuals shall be at government expense and official time shall be granted for all visits. At a minimum, these individuals shall be awarded seven (7) months of continuous administrative leave to complete a thorough investigation of these alleged mood swings or paranoia or similar disorder in order to receive proper evaluation by these professionals to determine if such leave has reduced the mood swing or paranoia tendencies. At the end of seven (7) months the concluding results of such evaluations shall be presented in writing by the professionals to both management and the Union. Only a qualified professional can make the final determination of mood swings or paranoia or like conditions. To assure that no favoritism or discrimination is awarded the accused or accuser all individuals associated with the allegation shall complete the above evaluation time before any further steps occur as outlined below.

Section 5. Assistance to professionally determined troubled individual(s).

a. Once an individual is determined by a qualified professional to be under duress the following assistance shall be provided by management:

1. Professional Counseling. Professional counseling shall be offered to an individual under duress. The individuals acceptance of such counseling is voluntary. The counseling will be at the government's expense and official time will be granted for all counseling sessions.

2. Reassignment Offers. At the employee's election, Management shall offer a lateral reassignment in the same series, grade, and tenure (career, excepted services, etc.) and the same work schedule at Marine Corps Air Station Cherry Point Station which may offer relief from the duress. The employee will be offered at least two (2) offers within the bargaining unit and at least two (2) outside the bargaining unit aboard the Air Station. The offers may or may not be offered simultaneously. The employee may decline any or all of the four offers. However, if the employee declines all four offers management is not required to request further consideration of positions under this agreement. Both the accused and the accuser shall be offered these positions commensurate with their series and grade and either may accept or deny. Should both decline all offers, and the Parties to this agreement agree that in the interest of both Parties, the individuals should be separated, the individual with the least Service Computation Date shall be first placed in the bargaining unit position offered above.

3. EEO Counseling. Should the professional counseling determine that the individual under duress is suffering from manic depression or similar conditions warranting a mentally handicapped evaluation, the employee will be referred to an EEO counselor to be counseled as to his/her rights under EEO procedures.

4. Acceptance or rejection of any assistance offerings by an employee under duress will not result in any administrative, disciplinary, or adverse action taken against him/her. In addition, no employee shall have accusations or be discriminated under these procedures for exercising any right granted him/her under law, rule or government wide regulation.

Section 6. Management will ensure that the supervisor of an employee under duress is trained in conflict resolution, communication skills and stress management.




FOOTNOTES:
 

1. The Agency initially declared the entire MOU, which is set forth in the Appendix to this decision, outside the duty to bargain. In its statement of position, the Agency objected to only four sections of the MOU. Subsequently, the Union withdrew one of the disputed sections. There are thus three disputed sections before the Authority in this proceeding, each of which has been denominated as a separate proposal.

2. </