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15:0580(126)NG - AFGE Local 2263 and Air Force, HQ, 1606th Air Base Wing (MAC), Kirtland AFB, NM -- 1984 FLRAdec NG

[ v15 p580 ]
The decision of the Authority follows:

 15 FLRA No. 126
                                            Case No. O-NG-588
    The petition for review in 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 2
          When filling bargaining unit positions by the promotion method,
       the Employer agrees that the minimum area of consideration
       (Kirtland AFB-wide) plus voluntary applications from other tenant
       organizations will be explored first.  If one or two highly
       qualified candidates are available, the selecting official may
       make the selection from that group or may request that the area be
       extended either MAC-wide or Air Force-wide.  However, no further
       extension of the area of consideration will be made when there are
       at least three highly qualified candidates available, if the
       Employer wishes to fill the position through the Merit Promotion
       Plan.  If less than three highly qualified candidates are
       available within the extended area of consideration, enough
       qualified candidates may be referred to bring the total number of
       candidates to at least five.  All Unit employees will be provided
       bona fide consideration for all vacant positions for which they
       are eligible.  (Only the last sentence of the proposal is not in
    In agreement with the Agency, the Authority finds that Union Proposal
 1 interferes with management's right pursuant to section 7106(a)(2)(C)
 of the Statute to make selections for appointments from a promotion list
 of properly ranked and certified candidates or from any other
 appropriate source.  Specifically, the proposal would foreclose the use
 of the Merit Promotion Plan as a source for selection if management
 declined to make a selection from a list of "at least three highly
 qualified candidates" initially identified through use of the Plan.  In
 this respect, Union Proposal 1 is to the same effect as the Union
 Proposal in American Federation of Government Employees, AFL-CIO, Local
 2494 and Strategic Weapons Facility Pacific, Bremerton, Washington, 7
 FLRA 590 (1982), preventing extension of the area of consideration when
 three or more candidates within the area of consideration were rated
 highly qualified, which the Authority found operated to preclude the
 Agency from exercising its right to select within the meaning of section
 7106(a)(2)(C).  Hence, based on Strategic Weapons Facility Pacific, and
 the reasons and cases cited therein, Union Proposal 1 is not within the
 Agency's duty to bargain.
                             Union Proposal 2
          Section 1.  The Employer will assure that there is equal
       employment opportunity on all levels and that the full workforce
       is free from discrimination because of race, color, religion, sex
       (including sexual harassment), national origin, age, mental or
       physical handicap, marital status, political affiliation, and
       reprisal, coercion, restraint, interference, because of having
       filed an EEO complaint, grievance, or been a witness or
       representative on an EEO complaint or grievance.  The Employer is
       responsible for promoting equal opportunity through a positive,
       continuing program involving all management policies, programs,
       objectives, practices and personnel.  (The underscored portions of
       the proposal are in dispute.)
    The Agency points out that only 2,000 of the 5,500 employees at
 Kirtland Air Force Base are represented by the Union herein.  The Agency
 interprets Union Proposal 2 as seeking to encompass "the full
 workforce," that is, all 5,500 employees, including those not in the
 bargaining unit.  On this basis alone it claims the proposal is outside
 the duty to bargain.  The Union, however, states that the Agency
 misunderstands the proposal which "is not intended to apply to other
 than bargaining unit employees." The Authority finds the Union's
 interpretation of its proposal to be consistent with the express
 language thereof and adopts it for purposes of this decision.
 Accordingly, the Authority finds that Union Proposal 2, is within the
 duty to bargain.  /2/
                             Union Proposal 3
          In connection with efforts to correct underutilization and
       underrepresentation of minorities and women, the Employer will at
       the minimum:
          (a) Identify and provide work opportunities commensurate with
       employee skills and potential at all grade levels and occupational
       series, but with emphasis at the lower levels.
    Union Proposal 3 expressly would require management to provide
 employees with opportunities to perform work commensurate with their
 skills and abilities.  The proposal is to the same effect as the
 proposal designated as "the last sentence of Article 10 section 9" in
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, 9 FLRA 983 (1982) which obligated management to assign
 work which would enable an employee's ability to perform higher grade
 work to be evaluated.  Noting that the proposal could result in an
 arbitrator substituting his or her judgment for that of management with
 respect to the assignment of duties, the Authority concluded that it
 directly interfered with the agency's right, pursuant to section
 7106(a)(2)(B) of the Statute, "to assign work." Consequently, based on
 U.S. Customs Service, and the reasons and cases cited therein, Union
 Proposal 3, herein, is outside the duty to bargain.
                             Union Proposal 4
          (h) Permit individuals with physical or mental handicaps,
       chronic illness, illnesses or injuries, and single heads of
       households with dependents to use sick or annual leave or LWOP
       (leave without pay) to handle responsibilities for themselves
       and/or dependents.  Supervisors will grant leave in all cases
       where the need is clearly documented on the request for leave,
       without undue pressure to the employee.  (The underscored portion
       of the proposal is in dispute.)
    Insofar as the disputed portion of Proposal 4 concerns the granting
 of annual leave (or LWOP in lieu thereof), it leaves management with no
 discretion to deny such requests from employees as long as the
 employee's need is "clearly documented" in the request.  That is, the
 proposal would require that an employee's request be granted without
 regard to the necessity for that employee's service during the period
 covered by the request.  /3/ In this regard, the Authority noted, in
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National
 Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d
 553 (D.C. Cir. 1982), that the right "to assign work" pursuant to
 section 7106(a)(2)(B) of the Statute "includes the right to assign
 general continuing duties, to make specific periodic work assignments to
 employees, to determine when such assignments will occur and to
 determine when the work which has been assigned will be performed."
 Since Union Proposal 4 removes management's discretion to deny annual
 leave in the circumstances described, it would effectively nullify the
 Agency's ability to determine when assigned work will be performed and
 thus violates management's right, pursuant to section 7106(a)(2)(B) of
 the Statute, "to assign work."
    Insofar as the disputed portion of Union Proposal 4 concerns the
 granting of sick leave (or LWOP in lieu thereof), it is noted that,
 pursuant to its responsibility pursuant to 5 U.S.C. 6311, the Office of
 Personnel Management (OPM) has promulgated criteria for the granting of
 sick leave.  Specifically, 5 CFR 630.401 (1983) provides that sick leave
 will be granted when an employee:  (1) receives medical, dental or
 optical treatment or examination;  (2) is incapacitated for duty by
 sickness, injury, or pregnancy and confinement;  (3) is required to care
 for an immediate family member suffering from a contagious disease, or
 (4) would threaten the health of others at the worksite because of
 exposure to a contagious disease.  To the extent that Union Proposal 4
 would require the Agency to grant sick leave on bases other than those
 provided by 5 CFR 630.401, so long as the need is "clearly documented,"
 it is inconsistent with a "Government-wide" regulation /4/ within the
 meaning of section 7117(a)(1) of the Statute /5/ and thus is outside the
 duty to bargain.
                             Union Proposal 5
          Accommodations, including granting administrative leave, will
       be made to the religious needs of employees, including those who
       observe the Sabbath on a day other than Sunday, when such changes
       can be made without undue adverse impact on the other employees.
    Union Proposal 5, by basing the standard for granting administrative
 leave or other "accommodations" to the religious needs of unit employees
 upon the absence of undue adverse impact on other unit employees, is
 inconsistent with the management right pursuant to section 7106(a)(2)(B)
 of the Statute "to assign work." In this regard the proposal would,
 except in the circumstances prescribed, prohibit management from
 assigning work to employees who wish to absent themselves from work for
 religious reasons.  The proposal excludes from consideration, in
 excusing an employee for religious reasons, the Agency's need for the
 employee's services during the period of excusal.  Rather, such excusal
 could only be denied when the absence would have an "undue adverse
 impact" on fellow employees.  Thus, by mandating that leave for
 religious reasons be granted except when other employees are affected by
 the grant, the proposal is inconsistent with the management right
 pursuant to section 7106(a)(2)(B) to assign work, which includes the
 right "to determine when . . . assignments will occur and to determine
 when the work which has been assigned will be performed." /6/
    Moreover, the standards for denial of an accommodation to an
 employee's religious needs, as set forth in the proposal, is
 significantly different from that prescribed in governing law.  /7/ The
 Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., in
 section 2000e(j) provides:
          (j) The term "religion" includes all aspects of religious
       observance and practice, as well as belief, unless an employer
       demonstrates that he is unable to reasonably accommodate to an
       employee's or prospective employee's religious observance or
       practice without undue hardship on the conduct of the employer's
    Union Proposal 5, by failing to permit management to deny an
 accommodation because of undue hardship on the conduct of the Agency's
 business, does not comport with the standard for accommodating religious
 practice established by section 2000e(j).  /8/ Since the proposal is not
 consistent with the statutory standard for denying accommodations on
 religious grounds and is also inconsistent, as noted above, with
 management's right "to assign work," Union Proposal 5 is not within the
 duty to bargain.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Union
 Proposals 1, 3, 4 and 5 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 concerning Union Proposal 2.
    Issued, Washington, D.C., August 28, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ As the result of an understanding between the parties, the Union
 withdrew its appeal as to four additional proposals concerning merit
 promotion, matters appropriate for negotiation, equal employment
 opportunity, and coverage of the agreement.
    /2/ In finding Union Proposal 2 within the duty to bargain, the
 Authority makes no judgment as to its merits.
    /3/ The Authority's conclusions with respect to Union Proposal 4 do
 not concern grants of emergency annual leave since the proposal does not
 specifically allude to those situations.
    /4/ Accord 55 Comp.Gen. 183 (1975).
    /5/ The Authority concludes that the cited OPM regulation is a
 Government-wide regulation within the meaning of section 7117(a)(1)
 because it applies to the Federal civilian workforce as a whole, i.e.,
 employees who earn sick leave under the provisions of 5 U.S.C. 6307.
 See National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 748 (1980).
    /6/ Bureau of the Public Debt, 3 FLRA 769 (1980).
    /7/ See, e.g., Haring v. Blumenthal, 471 F.Supp. 1172 (D.C. D.C.
    /8/ See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).