[ v15 p580 ]
The decision of the Authority follows:
15 FLRA No. 126 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2263 Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 1606TH AIR BASE WING (MAC), KIRTLAND AIR FORCE BASE, NEW MEXICO Agency Case No. O-NG-588 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 ARTICLE 5 - MERIT PROMOTION 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 dispute.) 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 ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY 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 business. 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. 1979). /8/ See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).