[ v19 p48 ]
The decision of the Authority follows:
19 FLRA No. 6 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 15 Union and U.S. ARMY ARMAMENT MUNITIONS AND CHEMICAL COMMAND, ROCK ISLAND ARSENAL, ILLINOIS Agency Case No. O-NG-1022 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 two Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Article XXI Leave Section 13 Leave Without Pay a. It shall be the policy of the employer to grant leave without pay (LWOP) under the following circumstances: 1). For educational purposes which would contribute to the best interests of the organization. 2). For recovery from illness or disability not of a permanent or disqualifying nature, after all sick and annual leave are exhausted. 3). Pending final action by the Office of Personnel Management (OPM) on a claim for disability retirement upon exhaustion of all sick and annual leave, and pending final action by the Bureau of Employees' Compensation on a claim for employment connected injury or disease. 4). To avoid a break in the continuity of service for conditional employees who must relocate because they are dependents of service members or of Federal employees who are obliged to move on rotational assignments or upon the transfer of a function or activity. b. Benefits - At least one of the following benefits should be expected to result from the granting of extended LWOP: 1). Increased job ability. 2). Protection and/or improvement of the employee's health. 3). Retention of a desirable employee. 4). Furtherance of a program of interest to the Government (e.g., Peace Corps volunteer). 5). OPM and DA guidance indicates that LWOP should not initially be granted in excess of 1 calendar year. Under special circumstances the LWOP may be extended for another year in increments of 6 months. Such extensions will be the exception rather than the rule. The Union contends the proposal would merely serve to provide guidance to management in determining when an employee should be granted leave without pay (LWOP). However, the Agency contends the proposal sets forth substantive criteria which would limit management in the exercise of its rights. The Authority finds, in agreement with the Agency, that the clear language of the proposal would require the Agency to grant LWOP to an employee who meets the specified criteria. In this regard, the Authority held in American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA No. 126, at 4-5 (1984), that a proposal which would require an agency to grant an employee's request for leave without regard to the necessity for that employee's service during the period covered by the request violates management's right under section 7106(a)(2)(B) of the Statute to assign work. Specifically, the Authority found that insofar as the proposal 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. Thus, for the reasons set forth in Kirtland Air Force Base, the Authority concludes that Union Proposal 1 would deny the Agency the discretion to exercise its right under section 7106(a)(2)(B) of the Statute to assign work and, consequently, is outside the duty to bargain. Union Proposal 2 Article XXI Leave Section 14 Absent Without Leave (AWOL) The employer agrees that absent without leave (AWOL) is to be used for purposes of charging employees who knowingly and willfully do not report for work without notifying the supervisor and employees who do not request leave in advance. AWOL should not be used for charging employees who have a legitimate reason for being absent because of events that are no fault of their own. The Union contends that this proposal is also meant only to provide guidance to management in determining when an employee should be charged with being absent without leave (AWOL). However, the Authority finds, in agreement with the Agency, that the clear language of Union Proposal 2 provides substantive criteria for management to apply when deciding whether to authorize employee absences. Based upon this interpretation, the Agency contends that, insofar as the proposal would require the Agency to approve certain employee absences, it would prevent the Agency from taking disciplinary action against employees on the basis of those absences and would therefore interfere with management's right under section 7106(a)(2)(A) of the Statute to discipline employees. /2/ The Authority agrees. In American Federation of Government Employees, Local 1822, AFL-CIO and Veterans Administration Medical Center, Waco, Texas, 9 FLRA 709, 711-12 (1982), the Authority held that a proposal which would have had the effect of modifying the substantive criteria for taking disciplinary action against employees violated management's right to discipline employees under section 7106(a)(2)(A) of the Statute. In terms of this case, the Authority notes that AWOL is a proper basis for disciplinary action against an employee. /3/ Therefore, in circumstances where Union Proposal 2 would require the Agency to approve the employee's absence, the employee would no longer be considered AWOL and the absence could not be the basis for discipline. Thus, for the reasons set forth in Veterans Administration Medical Center, Waco, Texas, the Authority concludes in agreement with the Agency that the Union's proposal would violate the Agency's right under section 7106(a)(2)(A) of the Statute to discipline employees, and, consequently, is outside the duty to bargain. /4/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C. July 11, 1985. Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ As the result of an understanding between the parties, the Union withdrew its appeal as to two additional proposals concerning areas of consideration and procedures for processing union/employer disputes. /2/ Section 7106(a)(2)(A) provides: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- (A) . . . to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees(.) /3/ Federal Personnel Manual Supplement 990-2, book 630, subchap. S1-6. FPM chap. 751, subchap. 2-1. /4/ In view of the decision herein, it is unnecessary to address the Agency's additional contentions regarding Union Proposal 2.