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U.S. Federal Labor Relations Authority

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[ v11 p632 ]
The decision of the Authority follows:

11 FLRA NO. 109






Case No. 0-NG-551



This case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues concerning the negotiability of five Union proposals. 1 Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal 1

Section 5. Responsibilities

The Staff Relations and Health Services Offices are responsible for implementing and coordinating this Program and for assisting staff members with special behavioral problems through counseling, diagnosis, and referral to appropriate public and private facilities for treatment and rehabilitation. [ v11 p632 ]

A. The Staff Relations Office is responsible under this Program for providing (1) a broad range of counseling to staff members who are referred or who come into it voluntarily; (2) professional guidance and assistance in solving problems; and (3) advice to supervisors in connection with their supervising and counseling of such staff members. Staff members who may require medical diagnosis and treatment, shall be referred to the Health Services Office for appropriate action.

B. The Health Service Office is responsible under the Program for: (1) assessing and evaluating special health problems when necessary, referring such staff members to the appropriate private or public community facilities where treatment and rehabilitation services are available; (2) providing follow-up care and counseling for staff members until their problems have been corrected or until other action has been taken, as required; and (3) providing appropriate advice to supervisors in connection with their supervision of staff members with special health problems.

Union Proposal 2

Section 6. Employee participation

An employee who believes that his/her supervisor suffers from a special health problem which affects job performance may report the problem in confidence to the EAP (Employee Assistance Program) Coordinator, who shall take appropriate action.

Section 7. Labor Organization's Participation

Labor organizations may contribute to the success of the program by advising employees to consult the EAP coordinator if appropriate.

Section 2.... The Library shall designate the Medical Officer, the Supervisor of Health Services, and such other appropriate employees to work with the committee.... The Library will identify the person who will coordinate the Employee Assistance Program.

While the Union expressly acknowledges that these proposals "appear on their face to be nonnegotiable," its stated purpose in making them was to require management to publish, in its regulation governing the Employee Assistance Program and for the information of employees, the [ v11 p633 ] offices to which various responsibilities are assigned. However, the Union's intent is inconsistent with the clear language of the proposals, which specifically or implicitly assigns certain responsibilities to organizational segments and/or employees of the Agency. In this regard, these proposals are to the same effect as the proposal found to interfere directly with management's right under section 7106(a)(2)(B) of the Statute "to assign work" in American Federation of Government Employees, AFL - CIO, Local 1331 and Department of Agriculture, Science and Education Administration, Eastern Regional Research Center, Philadelphia, Pennsylvania, 4 FLRA No. 2 (1980). Hence, based on Science and Education Administration, Eastern Regional Research Center, and the reasons stated therein, Union Proposals 1 and 2 are outside the duty to bargain.

Union Proposal 3

Section 10A(2). No information or records under the Employee Assistance Program may be maintained in nor made available to personnel who work in offices of the Library which have the responsibility for the recommendation, review, or disposition of supervisory counseling under LCR 2017-5 or adverse actions under 2020-3.

Notwithstanding the Union's statement that it proffered this proposal in order "to prevent disclosure of confidential medical information to (certain) Library officials," the proposal would expressly restrict management's access to its own files. In this regard, this proposal is to the same effect as Union Proposal 1 which was held to be outside the duty to bargain because it did not concern matters which are "conditions of employment" within the meaning of section 7103(a)(14) of the Statute in American Federation of Government Employees, AFL - CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA No. 75 (1982). Therefore, based on Immigration and Naturalization Service and the reasons stated therein, Union Proposal 3 also must be found to be outside the Agency's duty to bargain.

Union Proposal 4

Section 8D. Record all actions taken and referrals to the Employee Assistance Program. Give the Employee the opportunity to see and initial such records.

From the record, it appears that the instructions contained in this proposal are directed toward supervisory personnel of the Agency. [ v11 p634 ] Thus, the proposal, by requiring supervisors to maintain certain records which would have to be shown to, and initialed by, employees affected by such records, would obligate the Agency to continue assigning specified duties to named employees for the agreement's term. This proposal, therefore, is to the same effect as Union Proposal VII, which was held to violate management's section 7106(a)(2)(B) right "to assign work" in National Treasury Employees Union and Department of Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981). Hence, based on Internal Revenue Service and the reasons stated therein, Union Proposal 4 is outside the duty to bargain.

Union Proposal 5

Section 8F. Employees who accept assistance will be given a reasonable opportunity to improve their performance before being subject to adverse action.

It appears from the record that this proposal would apply when a performance based adverse action is contemplated against an employee who performance is unsatisfactory due to drug or alcohol abuse. That is, if that employee accepted assistance for the drug/alcohol problem in accordance with the Agency's assistance program at any time up to the last day before the effective date of the adverse action, such adverse action would be held in abeyance and the employee would be given a reasonable opportunity to improve job performance. Contrary to the Agency's contention, this proposal would not prohibit the Agency from disciplining an employee for an unacceptable level of performance. Rather, as with Union Proposal 1, which was found to be negotiable in American Federation of Government Employees, AFL - CIO, Local 1999 and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforce sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, U.S. 102 S.Ct. 1443 (1982), the only effect of the proposed procedure would be to delay the imposition of discipline for those employees whose performance does not improve after having accepted assistance under the program.

The Agency additionally contends that the proposal would totally negate its statutory right to discipline an employee for past unsatisfactory performance related to circumstances covered by the program, if, as a result of an employee's participation in the program, that employee's performance returns to a satisfactory level. In this regard, this proposal does contemplate that no disciplinary action will be taken if participation in the program results in improved performance. However, the Office of Personnel Management regulations promulgated pursuant to the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, as amended, [ v11 p635 ] 42 U.S.C. 4561, and the Drug Abuse Office and Treatment Act of 1972, 21 U.S.C. 1180, specifically define the objective of the alcohol and drug abuse program as being rehabilitative rather than punitive: "...its is most important that the program be carried out as a nondisciplinary procedure aimed at rehabilitation of persons who suffer from a health problem." 2 Moreover, providing an employee with the opportunity to improve performance so that a contemplated adverse action based on previous unsatisfactory performance will not be effected is entirely consistent with law, i.e., 5 U.S.C. 4303(d); and Government-wide regulations codified at 5 CFR 432.203(b) (1982). Thus, the proposal does not conflict with the right to discipline under the Statute. 3

Accordingly, pursuant to section 2424.10 of the authority's Rules and Regulations, IT IS ORDERED that the petition for review, as it relates to Union Proposals 1, 2, 3 and 4 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on Union Proposal 5. 4


Issued, Washington, D.C., March 18, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member



[ v11 p636 ]


Footnote 1 In its response to the Agency's statement of position, the Union addressed the negotiability of a sixth proposal. However, it appears from the record that a nonnegotiability allegation concerning this proposal was neither sought nor received by the Union. Since such an allegation is a prerequisite, under section 7117(c)(1) of the Statute and section 2424.1 of the Authority's Rules and Regulations, for the Authority's review of a negotiability issue, this proposal may not now be considered. See American Federation of Government Employees, AFL-CIO, Local 32 and U.S. Office of Personnel Management, 8 FLRA No. 90 (1982).

Footnote 2 Federal Personnel Manual Supplement 792-2, Subchapter 5-1C (1980).

Footnote 3 The Authority notes that the Agency's contention that Union Proposal 5 would prevent it from taking adverse action against an employee guilty of misconduct cannot be sustained. The Union points out that the "proposal clearly restricts the 'reasonable opportunity' provision to performance, not misconduct cases," and this interpretation is consistent with the plain language of the proposal.

Footnote 4 In deciding that Union Proposal 5 is within the duty to bargain, the Authority makes no judgment as to its merits.