National Association of Government Employees, Local R5-168 (Union) and U.S. Department of the Army, Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, Louisiana (Agency)

[ v56 p796 ]

56 FLRA No. 133

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
LOCAL R5-168

(Union)

and

U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, JOINT READINESS
TRAINING CENTER AND FORT POLK
FORT POLK, LOUISIANA
(Agency)

0-NG-2526

_____

DECISION AND ORDER DISMISSING
PETITION FOR REVIEW

September 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal.

      For the reasons explained below, we dismiss the petition for review without prejudice.

II.     The Proposal

Air Traffic Controllers (ATCs) at Fort Polk, Louisiana will continue to use the Medical Qualifications Standards developed by the Office of Personnel Management (OPM) as reflected in the Qualification Standards Handbook for GS-2152 occupations. These standards will apply to entrance on duty and retention.

III.     Background

      In late July 1999, the Agency notified the Union that it intended to implement the Standards of Medical Fitness applicable to ATCs in Army Regulation (AR) 40-501, "upon completion of its labor relations obligations." Letter from Agency to Union dated July 22, 1999, Attachment to Union's Petition for Review. In response, the Union proposed that the "current practice be continued," namely that the Agency continue to follow the medical fitness standards for ATCs prescribed by OPM. [n1] Letter from Union to Agency dated July 29, 1999, Attachment to Union's Petition for Review. In early September 1999, the Union submitted to the Agency the proposal that is presently before the Authority pertaining only to ATCs at Fort Polk. In early October, the Union filed a grievance challenging the implementation of AR 40-501 in violation of OPM's Regulations and DOD Directives. In the post-petition conference, the parties informed the Authority that the grievance was pending at the third step. The Authority has been advised that this continues to be the current status of the grievance.

IV.     Positions of the Parties

A.     Agency

      The Agency maintains that the proposal violates management's right to assign employees, namely the right to determine qualifications. The Agency also contends that the proposal violates its right to determine its internal security practices under section 7106(a)(1) since its medical qualification standards are "part of the [A]gency's plan for securing and safeguarding [its] personnel,[.]" Statement of Position at 10. Further, the Agency maintains that the proposal is not negotiable as a procedure or as an appropriate arrangement.

      Regarding the Union's claim that Agency is not authorized to implement new or different medical qualification standards in violation of DOD Directives and OPM Regulations, the Agency contends that this claim is not rightfully addressed by the Authority in the context of a negotiability appeal. Instead, the Agency maintains that this issue is suitable for resolution within the context of the grievance procedure, and that the Union recognized the grievance procedure as the appropriate forum by filing a grievance challenging the Agency's authority to issue AR 40-501. The Agency states that it has the authority to promulgate its own medical standards in light of exemptions that no longer require Army ATCs to obtain certain medical certificates. [ v56 p797 ]

B.     Union

      The Union contends that the "proposal seeks to insure that Fort Polk's Air Traffic Controllers are not subject to more stringent medical standards than other ATC's within the Department of Defense, and to prevent [an] adverse impact on Fort Polk's ATC's to be retained in the [GS-]2152 positions." Petition at 4. The Union maintains that the proposal "does not adversely [a]ffect the Agency's ability to administer its internal security practices nor does it infringe upon their rights to [a]ssign employees and [w]ork." Id. at 3.

      The Union also challenges the Agency's authority to deviate from OPM's qualification standards for ATCs claiming that the Agency is "compelled to adhere to OPM's medical qualification standards for ATCs." Response at 1. The Union also argues, however, that, in developing its own standards, the Agency failed to satisfy the OPM Regulations that grant agencies discretion to do so under 5 C.F.R. § 339.202 provided the agencies have 50 percent or more of the positions in a particular occupation. [n2] See Minutes of Mid-term Bargaining Session One at 2 (August 27, 1999), Attachment to Petition.

V.     Meaning of the Proposal

      There is no dispute that the proposal would require the Agency to continue to apply OPM's qualification standards for ATCs at Fort Polk for entrance on duty and for retention.

VI.     Analysis and Conclusions

      Section 2424.30 of the Authority's Regulations establishes the procedure for resolving petitions for review that concern both negotiability disputes and bargaining obligation disputes. [n3] As relevant here, the Authority will dismiss the petition for review where the petition raises a bargaining obligation dispute and the grievance concerns issues directly related to the petition for review. Under these circumstances, the dismissal will be without prejudice to the right of the union to refile the petition for review no later than thirty (30) days after the grievance has been resolved administratively, including resolution pursuant to an arbitration award that has become final and binding. The Authority will then determine whether resolution of a refiled petition is still required.

      Here, the petition for review raises the issue of whether the Agency's promulgation of its standards in AR 40-501 comports with the requirements set by OPM in 5 C.F.R. § 339.202. Similarly, the Union's grievance alleges, among other things, that the Agency failed to meet the standards set by OPM for an agency's establishment of its own medical standards for certain types of positions. In particular, the Union claims that the Agency does not possess the requisite 50 percent or more of ATC positions in the government, and therefore must adhere to the medical qualification standards for ATCs prescribed by OPM. In our view, the Union's claim constitutes a bargaining obligation dispute. Since the grievance concerns an issue that is directly related to the petition for review, we dismiss the Union's petition for review, pursuant to section 2424.30(a). [n4] 

VII.     Order

      The petition for review is dismissed.



Footnote # 1 for 56 FLRA No. 133

   During the post-petition conference held pursuant to section 2424.23 of the Authority's Regulations, the parties agreed that the medical fitness standards promulgated by the Agency are different in certain respects from the OPM standards. In the Union's view, the Agency's standards are more stringent.


Footnote # 2 for 56 FLRA No. 133

   5 C.F.R. 339.202, which is entitled Medical Standards, provides in pertinent part that:

OPM may establish or approve medical standards for a Governmentwide occupation (i.e., an occupation common to more than one agency). An agency may establish medical standards for positions that predominate in that agency (i.e., where the agency has 50 percent or more of the positions in a particular occupation). . . . Standards established by OPM or an agency must be:
(a)     Established by written directive and uniformly applied,
(b)     Directly related to the actual requirements of the position, and
(c)     Consistent with OPM instructions published in FPM chapter 339.

Footnote # 3 for 56 FLRA No. 133

   A bargaining obligation dispute arises when the parties disagree on whether there is a duty to bargain over an otherwise negotiable proposal in light of the specific circumstances in that case. A negotiability dispute arises where the parties disagree on the legality of a proposal or provision. See section 2424.2 of the Authority's Regulations.


Footnote # 4 for 56 FLRA No. 133

   In our view, resolution of some of the outstanding factual issues, such as whether the Agency has satisfied § 339.202 by having the requisite 50 percent or more of ATC positions, is best addressed in the g