[ v20 p193 ]
The decision of the Authority follows:
20 FLRA No. 26 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2786 Union and DEFENSE MAPPING AGENCY Agency Case No. 0-NG-925 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 three provisions of the local parties' agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Provision 1 Article XXV, Section 5: Section 5. If remedial action for unacceptable performance is necessary, management shall attempt where possible to apply that action progressively i.e., reassignment, demotion, termination. The Union contends that Provision 1 herein is not significantly different from proposals, found negotiable by the Authority, requiring management to "attempt where possible" or to "endeavor" to act in a certain manner. /1/ This contention cannot be sustained. In this regard, the Agency's interpretation of the effect of the instant provision is persuasive. In the Agency's view, the provision: goes far beyond the requirement to "endeavor" to make assignments in a certain way found negotiable in the Mare Island case cited above. Rather it makes terminations and demotions of unsuccessful performers contingent on the agency's having no other choice and directs reassignments of unsuccessful employees to position vacancies if such reassignments are within the limits of the agency's ability or capacity. /2/ In agreement with the Agency, the Authority concludes that notwithstanding the presence of the phrase "shall attempt where possible," the provision would bind management to the progressive disciplinary steps prescribed unless the Agency were able to demonstrate that no other positions were available to which an employee performing in a substandard manner could appropriately be reassigned or demoted. /3/ Cf. National Treasury Employees Union, Chapter 204 and Federal Election Commission, 19 FLRA No. 25(1985) (wherein the phrase "reasonable restrictions" was held to subject the exercise of a reserved management right to arbitral review). In this respect, Provision 1 herein is to the same effect as Union Proposal 3 found nonnegotiable in American Federation of Government Employees, AFL-CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA No. 1(1984). In that case, the Authority found that a proposal which required the agency to train or reassign an employee before demoting or terminating that employee for unacceptable performance would expressly place a substantive restriction on management's discretion to decide to remove or reduce employees in grade or pay pursuant to section 7106(a)(2)(A) of the Statute. Moreover, the restriction itself involved the exercise of management's right to assign employees or work pursuant to section 7106(a) of the Statute. The Authority concluded that the proposal directly interfered with reserved management rights and thus did not constitute a procedure within the meaning of section 7106(b)(2) of the Statute. /4/ Consequently, since Provision 1 herein also would require the application of progressive discipline in performance-based disciplinary actions it is, based on National Labor Relations Board, outside the duty to bargain. Provision 2 Article XXV, Section 6: Section 6. The element rating levels and the overall rating levels will be in accordance with DMA Instruction 1434.1 except that the minimally satisfactory overall rating level will not be used. Provision 2 seeks to prescribe the numbers of performance levels by contractually eliminating one of the levels previously applied by the Agency in evaluating the performance of its employees. In this regard, the provision is to the same effect as the proposal which was before the Authority in American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578(1984), seeking inter alia to require that there be three rating levels for overall performance. In that case, the Authority found the disputed proposal to be nonnegotiable, stating, "(t)he number of performance levels for both individual job elements and overall performance are essential aspects of the rights to assign work and direct employees." Accordingly, based on U.S. Department of Justice and the reasons and cases cited therein, Provision 2 in this case is also inconsistent with the rights of management to direct employees and to assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute and is therefore outside the duty to bargain. Provision 3 Article XV, Section 5: Section 5. Committees: The Activity agrees to establish a functioning safety and health committee or counsel (sic) in accordance with the provisions of E.O. 12196. The Activity further agrees to develop and issue necessary identification, e.g., official safety and health credentials, to all committee members to assist them in carrying out their responsibilities. a. Responsibilities of Committee: (1) Principal function is to develop, monitor, implement, and evaluate the Activity's safety and health policy. (2) Monitor performance of the activities (sic) safety program and make recommendations for needed changes. (3) Participate in safety and health inspections when such activity is necessary to evaluate inspection procedures on safety and health matters. (4) Assist, monitor and evaluate the effectiveness of office safety and health training programs. (5) Comment on standards proposed as substitutes for OSHA standards as appropriate. (6) Evaluate procedures for handling safety and health recommendations from employees. (7) Review responses to reports concerned with allegations of hazardous conditions or alleged safety and health program deficiencies. If half the members of record on the committee are not substantially satisfied with the response, they may request an appropriate investigation or inspection to be conducted by the Occupational Safety and Health Administration (OSHA) or by other activities agreed to by the parties. b. Organization of Committee (1) The Committee shall consist of two members appointed by the Activity, two appointed by the Union and the Administrative Officer (GS-09) as ex-officio member. (2) Committee members will serve 3 years. (3) The Committee Chairperson shall be nominated from among the members and elected by the committee. Chairpersons will serve for 1 year and alternate between managerial-bargaining unit members. (4) The Committee will meet monthly. Special meetings shall be called as necessary. Adequate notice of meetings shall be furnished Committee members in advance by the Chairperson. Written minutes of each meeting will be maintained and distributed to the Office Director, the Union President, the Administration Office and each Committee member. Minutes will be made available to employees upon request. The Agency contends that Provision 3 attempts to establish a certified Occupational Safety and Health Committee within the meaning of Executive Order 12196. In this regard, the Agency points out that, pursuant to the executive order, a certified committee must be part of a network of such committees established both at the national level and at other appropriate levels within an agency. Since the parent agency, the Department of Defense, has exercised the option available under the executive order not to establish certified committees, the Agency argues that the parties to the agreement were without the power to establish a certified committee within the bargaining unit. The Union, however, responds by stating: There is nothing in the language (of the Provision), nor is it the intent of the union to require the agency to establish a "certified" safety committee as defined by the agency. Rather, the union merely seeks an agreement on the establishment of a safety and health committee at the level of its exclusive recognition, in accordance with provisions of E.O. 12196. /5/ While the Authority finds, contrary to the Agency's position, that Provision 3 does not mandate the establishment of a certified occupational safety and health committee within the meaning of E.O. 12196, the record indicates that the Agency has carried out the mandate of E.O. 12196 by providing, through internal agency regulations, for "uncertified" occupational safety and health committees. /6/ In these circumstances, the Authority concludes that such occupational safety and health committees, established by DoD Instruction 6055.1, are internal management committees and that the tasks associated with carrying out the functions of those committees involves the assignment of work, pursuant to section 7106(a)(2)(B) of the Statute. In this respect, the provision is to the same effect as Provision 4 in Association of Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346(1981), rev'd, per curiam as to other matters sub nom. Adjutant General, Department of Military Affairs v. FLRA, 685 F.2d 93 (3rd Cir. 1982), which required that the union be permitted to select its representatives on wage survey data collection teams. The Authority noted that the provision in that case "would require the Agency to relinquish its statutory authority to assign work, i.e., data collection duties, to the Union." Thus, the provision herein, which requires both that the Union be permitted to appoint two members to the committee and that management assign the responsibilities of chairmanship of the committee to a Union representative in those alternate years in which a management official is not scheduled to be chairman, likewise interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Association of Government Employees, AFL-CIO, Local R14-87 and Department of the Army and the Air Force, Kansas Army National Guard, 19 FLRA No. 50(1985). Moreover, the disputed provision herein, is distinguishable from Provision 2 in American Federation of Government Employees, AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA 286(1983) which also concerned the establishment of local non-certified health and safety committees and which the Authority found to be negotiable. The disputed provision in that case did not prescribe substantive responsibilities to be undertaken by committee members. Nor would the committees in that case be empowered to request, pursuant to Section 1-303 of the executive order, an evaluation or inspection by the Secretary of Labor. However, the disputed provision herein assigns specific functions: participation in safety and health inspections and monitoring office safety and health training programs. In addition, Provision 3 herein authorizes the committee, as a body, to bypass management, i.e., to abandon its advisory role, and request inspections by OSHA, "or by other bodies agreed to by the parties." Hence, it is concluded that, for the reasons set forth above, as Provision 3 herein concerns the assignment of work pursuant to section 7106(a)(2)(B), it is outside the duty to bargain. Cf. American Federation of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA 438(1984) (wherein a proposal to establish a joint training committee was found negotiable because the committee merely served as a forum for union comment on agency training programs rather than a vehicle for negotiating over the substance of such programs). 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., September 20, 1985 (s) HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union cites International Association of Fire Fighters, Local F-48, AFL-CIO and Naval Support Activity, Mare Island Station, California, 3 FLRA 489(1980) in support of its position. /2/ Agency Statement of Position at 3. /3/ In this regard, the Agency asserts that it is "aware of no circumstance involving . . . bargaining unit employees where it is not possible to demote or reassign an unacceptable employee." Id. /4/ See also National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel, 18 FLRA No. 42(1985), petition for review filed, 85-1474 (D.C. Cir. July 29, 1985). Although not raised in the instant case, the Authority also determined in National Labor Relations Board that the proposal there did not constitute an "appropriate" arrangement within the meaning of section 7106(b)(3) of the Statute because it interfered with management's rights pursuant to section 7106(a)(2)(A) to an excessive degree. /5/ Union Reply Brief at 9-10. /6/ Instruction 6055.1 prescribes policies and procedures for establishing local safety and occupational health councils within DoD. Agency Statement of Position at 10.