[ v19 p1027 ]
The decision of the Authority follows:
19 FLRA No. 120 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2094, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL CENTER, NEW YORK, NEW YORK Agency Case No. O-NG-1038 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises issues concerning the negotiability of four Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/ Union Proposal 1 Employees of the bargaining unit will be given 15 minutes after starting time to reach their duty station. Employees will be given 15 min. before the end of their shift for personal hygiene and changing of clothing. The Agency argues that this proposal violates its right to assign work under section 7106(a)(2)(B) of the Statute /2/ by effectively shortening normal working hours, thereby precluding the Agency from assigning other types of work during the time employees would otherwise be on duty. The Union contends that the proposal merely states a procedure that management would follow in exercising its right to assign work. In agreement with the Agency, the Authority finds that the proposal violates management's right "to assign work" under section 7106(a)(2)(B) of the Statute. The proposal would require management to refrain from assigning employees normal duties during the time periods specified therein, and would preclude the assignment of other work at those times. In this regard, the proposal is substantively identical to Proposal 7 in National Treasury Employees Union and NTEU Chapter 80 and Department of the Treasury, Internal Revenue Service, Central Region, 8 FLRA 197 (1982), which required that the first and last 15 minutes of each workday were to be devoted to packing and unpacking files and not to the work those employees normally performed. In that case, the Authority found the proposal outside the duty to bargain since it removed management's discretion to assign work to employees under section 7106(a)(2)(B) of the Statute. Thus, for the reasons set forth in Internal Revenue Service, the Authority finds that Union Proposal 1 in the present case is outside the duty to bargain. /3/ Union Proposal 2 Official Time will be granted to bargaining unit employees when they visit their Congressman for any job related reason. Union Proposal 3 Official Time will be granted to bargaining unit employees when employees have to appear at any Federal agency for interviews, or testing. These proposals, on their face, would require the Agency to grant official time to bargaining unit employees for, respectively, visits to their Congressmen for any job related reason and for appearances at any Federal agency for interviews or testing. /4/ In support of the negotiability of these proposals, the Union contends, among other things, that they do not violate any law, rule or regulation. For the reasons stated below, the Authority disagrees. Section 7131 establishes the authority for the granting of official time under the Statute. That is, subsections (a), (b) and (c) concern the authorization of official time for contract negotiations, impasse proceedings and proceedings before the Authority respectively. While subsection (d) authorizes the granting of official time to employee representatives in "any amount" the parties agree to be "reasonable, necessary, and in the public interest," such authorization is expressly limited to those matters which are not already provided for in the other portions of section 7131. In the Authority's view, subsection (d) clearly can only be read to authorize the negotiation of official time for other labor-management related representational matters such as contract administration, participation in grievance arbitration and the like. /5/ However, the Union Proposals herein do not specifically concern representational matters but would require the Agency to grant such official time broadly to any bargaining unit employee regardless of whether or not the employee is representing an exclusive representative. In this regard, Union Proposal 2 would grant official time to bargaining unit employees who visit their Congressmen for any job-related reason, and, on its face, employs language which is clearly inconsistent with the requirement of section 7131(d) that such official time may be granted only for representational matters. Similarly, Proposal 3 would grant official time to bargaining unit employees for appearances at any Federal agency for interviews and testing. Such a requirement is completely unrelated to representational matters. Therefore, the Authority concludes that Union Proposals 2 and 3 are outside the Agency's duty to bargain because they do not concern representational matters, in violation of section 7131(d) of the Statute. Union Proposal 4 The Employer does not institute disciplinary action against an alcoholic or drug abuser until he/she is given every opportunity to overcome his/her alcoholism or drug abuse problem. In American Federation of Government Employees, Local 1812, AFL-CIO and United States Information Agency, 16 FLRA No. 48 (1984) (Union Provision 2), the Authority considered the negotiability of a union proposal which would have restricted the agency in taking disciplinary action against an employee having work performance problems while the employee was an active participant in a counseling program progressing toward the renewal of acceptable work performance. The Authority found the proposal was inconsistent with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute /6/ and, therefore, was outside the duty to bargain. The Authority noted that under the proposal, an employee would completely avoid disciplinary action for his or her conduct or unacceptable work performance by remaining a participant in the program and making progress, however slight, towards acceptable performance, and the agency's right to discipline such an employee would be permanently restricted, rather than having the effect of merely delaying the imposition of disciplinary action. See also National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981). In the instant case, the Union argues that the proposal is intended merely to assure that employees receive a reasonable accommodation to overcome their handicap. However, contrary to the Union's argument, this proposal expressly would prevent the Agency from instituting disciplinary action against an employee until the employee is given every opportunity to overcome the alcoholism or drug abuse problem. /7/ Hence, as in United States Information Agency, the Agency's right to discipline such an employee would be permanently restricted, rather than having the effect of merely delaying the imposition of disciplinary action. /8/ Union Proposal 4, therefore, directly affects management's right to discipline employees under section 7106(a)(2)(A) of the Statute and 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 Union's petition for review as to Proposals 1, 2, 3, and 4 be, and it hereby is, dismissed. Issued, Washington, D.C., August 27, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency did not file a Statement of Position and the Union did not file a Reply Brief in this case. /2/ Section 7106(a)(2)(B) provides as follows: 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-- . . . . (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.) /3/ See also American Federation of Government Employees, AFL-CIO, Local 3424 and Federal Home Loan Bank Board, San Francisco, California, 14 FLRA 79 (1984). /4/ Although the Union references its statement of position with respect to these proposals in terms of administrative leave instead of official time, the Authority bases its decision herein on the expressed terms of the proposals themselves, which refer specifically to official time. /5/ See AFGE, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984), affirming U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731 (1983). /6/ Section 7106(a)(2)(A) provides as follows: 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 . . . direct . . . employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees(.) /7/ The Authority has consistently held that it will not base a negotiability determination on a union's statement of intent which is inconsistent with the express language of the disputed proposal. See, e.g., American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA No. 118 (1985) at 5 n. 7 of the decision. /8/ Cf. American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983), (proposal to give employees who accepted assistance in the Alcoholism and Drug Abuse Assistance Program a reasonable opportunity to improve their performance before being subjected to adverse action was found to be negotiable, as the only effect of the proposed procedure would be to delay the imposition of performance-based discipline for those employees whose performance does not improve to a satisfactory level after having accepted assistance in the program).