21:1105(127)NG - NFFE and DOI, Geological Survey, Eastern Mapping Agency -- 1986 FLRAdec NG
[ v21 p1105 ]
21:1105(127)NG
The decision of the Authority follows:
21 FLRA No. 127
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
Union
and
U.S. DEPARTMENT OF THE INTERIOR,
U.S. GEOLOGICAL SURVEY,
EASTERN MAPPING AGENCY
Agency
Case Nos. 0-NG-746
0-NG-748
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
These cases are before the Authority because of negotiability appeals
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concern the
negotiability of four Union provisions disapproved by the Agency head
pursuant to section 7114(c) of the Statute. One of these disapproved
provisions, Provision 3, concerns the payment of travel and per diem to
employees engaged in various labor-management relations activities. The
Union appealed the Agency head's determination on two parts of that
provision in Case No. 0-NG-746 and the remaining three parts of that
provision in Case No. 0-NG-748 along with the other three provisions.
In these circumstances, the Authority deems it appropriate to
consolidate the two cases in the interest of expeditious handling and
conservation of resources.
II. Provision 1
Article 13, Section 6b. Any disciplinary action resulting in
removal shall not be effected against the employee for at least
ten (10) working days from the receipt of the letter from the
deciding official.
A. Positions of the Parties
The Agency contends that under 5 U.S.C. Section 7513(b)(1) it has the
right to remove immediately an employee where there is reasonable cause
to believe that such employee has committed a crime for which a sentence
of imprisonment may be imposed. By mandating a ten-day delay in such
removal action, Provision 1 directly interferes with the Agency's right
to discipline under section 7106(a)(2)(A) of the Statute. The Agency
contends further that, since the imposition of a ten-day delay in
effecting a removal action results in the Agency being required to
assign such employee to perform regular duties or to administrative
leave, Provision 1 also violates the Agency's right to assign under
section 7106(a)(2)(A).
The Union argues that the provision is a negotiable "procedure"
pursuant to section 7106(b)(2) and furthermore is an appropriate
arrangement, under section 7106(b)(3) of the Statute, for an employee
adversely affected by the exercise by management of its right to remove.
B. Analysis
1. Management Rights
Under 5 U.S.C. Section 7513(b)(1) the usual thirty-day advnace notice
of an intent to take an action against an employee is suspended when
there is reasonable cause to believe that employee has committed a crime
punishable by imprisonment. In such circumstances an agency may
immediately remove that employee. Provision 1, however, does not make
an exception for such a situation, nor does the Union indicate that
application of the provision would be suspended in such circumstances.
Consequently, it must be concluded that the provision contravenes the
clear legislative mandate that employees reasonably believed to have
committed certain crimes be terminated without delay. The failure of
the provision to acknowledge management's authority in that situation
substantively interferes with management's rights to take appropriate
disciplinary action against, and to remove employees under section
7106(a)(2)(A) of the Statute. Thus, Provision 1 does not constitute a
negotiable procedure under section 7106(b)(2) of the Statute. See
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
(1980), enforced sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982).
Of equal significance, in the Authority's view, is the impact of the
provision upon management's rights to direct employees and to assign
work under section 7106(a)(2)(A) and (B) of the Statute. Management, at
least in part, exercises its authority to assign work and to direct
employees by holding them accountable for meeting the standards set by
management for the performance of their work. Tidewater Virginia
Federal Employees Metal Trades Council and Navy Public Works Center,
Norfolk, Virginia, 15 FLRA 343, 344 (1984).
In the circumstances addressed by Provision 1, the concerned
employees are on notice that management has decided, after all avenues
of appeal have been followed, to terminate them and that their
separation date has been fixed. Consequently, in such circumstances,
management would have no effective method of holding those employees
accountable for their failure or refusal to carry out assigned work
during the prescribed period of ten additional workdays.
Further, since such employees could refuse, with impunity, to carry
out their assignments, the adverse affect on the effective and efficient
conduct of Government operations is a major consideration. That is,
employees involved are to be separated for "such cause as will promote
the efficiency of the service," 5 U.S.C. Section 7513(a), yet the
provision requires their retention in a paid status for ten additional
days after the termination decision has been reached. The provision,
therefore, must be considered inimical to the effective conduct of
public business.
Turning now to whether Provision 1 constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute, the
Union asserts that the provision's purpose is "that an employee be given
ten working days following a letter informing him/her of the employer's
final decision to separate him/her, to clear any work on his/her desk
and get personal affairs in order before the separation is effective."
Union Petition for Review at 1. The provision, therefore, would
ameliorate, to a very limited degree, the adverse affect on employees of
management's exercise of its statutory right to remove employees for
cause. On balance however, the significant deleterious affect on
management's rights to impose disciplinary actions including removing
employees, to direct employees, and to assign work, and on the
efficiency and effectiveness of Government operations is
disproportionate to the limited benefit employees would receive from the
proposed arrangement. See National Labor Relations Board Union and
National Labor Relations Board, Office of the General Counsel, 18 FLRA
No. 42 (1985).
C. Conclusion
Consequently, as Provision 1 excessively interferes with management
rights, it does not constitute either a negotiable procedure under
section 7106(b)(2) or an appropriate arrangement within the meaning of
section 7106(b)(3). Provision 1 is therefore outside the duty to
bargain.
III. Provision 2
Article 19, Section 10a. DETAILS, manner: In the interests of
effective employee utilization, details to positions or work
assignments requiring higher or different skills will be based
upon bona fide needs and will be consonant with the spirit and
intent of this Article, applicable regulations, and the merit
system. Details may be used to meet emergencies or situations
occasioned by abnormal workload, changes in mission or
organization, or absences of personnel.
A. Positions of the Parties
The Agency contends that Provision 2 is inconsistent with its rights,
pursuant to section 7106(a)(2)(A) and (B) of the Statute, to assign
personnel and work.
The Union maintains that the provision, in effect, only requires
adherence to law and regulations in detailing employees and thus is a
procedure to be followed by management in exercising its authority under
the Statute. The Union further states that the list of circumstances in
the provision "is not exhaustive, but neither is it exclusive." Union
Reply Brief at 3.
B. Analysis
The Union's assertion that the part of the provision listing the
situations where details may be appropriate is not intended to be
"exclusive" is inconsistent with the express language of the provision.
That is, if the Union's intent was to limit the resort to details to
those circumstances authorized by regulations, the list of circumstances
in the provision would have been unnecessary. Mere reference to the
applicable regulations would have sufficed. However, the Union chose to
incorporate a list of situations in which details "may be used," stating
that such a list is consistent with "the spirit and letter" of Federal
Personnel Manual (FPM) Chapter 300, Subchapter 8. Reference to the
cited part of the FPM reveals that details are authorized in other
circumstances not listed in the provision. Specifically, FPM Chapter
300, Subchapter 8-3.a authorized details for the following additonal
purposes: special projects or studies, pending official assignment,
pending description and classification of new position, pending security
clearance, and for training purposes. The omission of these
circumstances, while including others listed in the FPM compels the
conclusion that the provision is intended to circumscribe management's
ability to detail. Therefore the proposal is in conflict with
management's rights to assign employees and to assign work.
C. Conclusion
The Authority concludes, based on the reasoning set forth that
provision 2 is inconsistent with rights reserved to management by
section 7106(a)(2)(A) and (B) of the Statute and, consequently, is
outside the duty to bargain.
IV. Provision 3
In addition, necessary travel and per diem expenses to the
following proceedings will be borne by the Employer:
a. Basic negotiations
b. Impact and implementation bargaining sessions.
c. Mid-term contract bargaining sessions.
d. Impasse proceedings (including mediation)
e. FLRA proceedings (i.e., ULP hearings). /1/ (Footnote
added.)
A. Positions of the Parties
The Agency argues generally that all existing contractual provisions
authorizing travel and per diem payments to union representatives
engaged in labor-managment relations activities should be declared null
and void in view of the Supreme Court's decision in Bureau of Alcohol,
Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), invalidating
the basis on which such payments were found to be negotiable.
The Agency specifically contends that Provision 3 is not within the
duty to bargain for the following reasons:
(a) It does not concern conditions of employment within the meaning
of section 7103(a)(14) of the Statute because payment of travel expenses
is specifically provided for by law;
(b) it is inconsistent with Federal law and Government-wide
regulations;
(c) it interferes with the Agency's right to determine its budget
under section 7106(a)(2)(1); and its right to assign under section
7106(a)(2)(A);
(d) it is inconsistent with an Agency regulation for which a
compelling need exists.
The Union asserts that the provision concerns conditions of
employment and addresses a matter over which agencies have
administrative discretion. The Union also contends that a finding that
the provision is negotiable would be "wholly consistent" with the
Supreme Court's holding in BATF. Further, the Union explains that
Provision 3, by its terms, would only require the payment of "necessary"
per diem and travel expenses. Finally, the Union argues that the
potential increase in costs resulting from the provision does not, per
se, make it nonnegotiable as a violation of the Agency's right to
determine its budget.
B. Analysis
1. Enforcement of Travel and Per Diem Provisions in
Existing Collective Bargaining Agreements
No claim is made that Provision 3 is improperly before the Authority.
Thus, the present negotiability appeal is the appropriate vehicle to
determine its negotiability. While the Agency argues that all existing
contractual provisions concerning travel and per diem payments to union
representatives should be declared null and void, it adverts to no
existing contractual provisions against which such declaration could be
made in the context of this negotiability appeal. Moreover, the
question of enforcement of any existing contractual provisions
concerning travel and per diem payments to union representatives should
be raised in appropriate proceedings other than a negotiability appeal.
American Federation of Government Employees, AFL-CIO, Local 2736 and
Department of the Air Force, Headquarters, 379th Combat Support Group
(SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984).
2. Conditions of Employment
The Agency involved in this case makes an essentially identical
"conditions of employment" argument to that made by the Agency in
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986). The Authority rejected that
argument in Customs Service and it is rejected here for the same reasons
as set forth in that case.
3. Inconsistent with Federal Law or Government-wide Rules
or Regulations
The Agency contends, in essence, that under the Travel Expense Act
and the Federal Travel Regulations (FTRs) an "official business"
determination is dependent on the particular facts involved in each
individual situation. Consequently, such a determination is not a
matter of unlimited discretion on the part of the Agency.
For reasons set forth in its decision in Customs Service, the
Authority has found that agencies have discretion, under the Travel
Expense Act and implementing regulations, to determine whether, and
under what circumstances, travel attendant to labor-management relations
activities is sufficiently within the interest of the United States so
as to constitute official business and, hence, pay for resulting
appropriate expenses from Federal funds. The exercise of that
discretion is subject to the negotiation process. The Agency here makes
no specific argument that the provision does not meet the statutory and
regulatory standards discussed in Customs Service. Moreover, as noted
in the Union's position, the provision envisions case by case
determinations as to appropriateness of specific travel and expenses
which are necessary and proper under law and governing regulation.
Given these circumstances, and for the reasons expressed in Customs
Service, the Agency's contention that the provision is inconsistent with
law and Government-wide regulations must be rejected.
4. Conflict with Management Rights
The Agency's position that the provision interferes with management
rights, specifically including "the right to assign," is unpersuasive.
The provision is not concerned with authorization of travel or absence
from the workplace, but, rather, concerns the payment of travel and per
diem expenses for travel in connection with the collective bargaining
relationship.
The Agency also contends that management decisions on travel and per
diem are determinations of priorities affecting the Agency's mission.
The Agency explains that granting travel and per diem expenses for
labor-management relations activities makes that much less money
available for mission-related activities. While the Agency
characterizes this argument as concerning other management rights, the
Authority finds this contention is actually directed at budgetary
issues.
The Authority stated, however, in National Treasury Employees Union
and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2
(1986), that a "budget" argument must be supported by a substantial
demonstration that a significant and unavoidable increase in costs, not
offset by compenstating benefits, will result from implementation of the
disputed proposal. Here, no such demonstration has been proffered. To
the contrary, it would appear from the record in this case that no
significant and unavoidable increase would result from the provision,
particularly in light of the Agency's argument that the provision is
unnecessary because travel would not be required in the conduct of
labor-management relations. Hence, based on Customs Service, the
Agency's argument cannot be sustained.
5. Compelling Need
While the Agency states that a compelling need determination is not
necessary because Provision 3 is inconsistent with applicable law and
Government-wide regulations the Agency does claim that a compelling need
exists for its travel regulations. As to such regulations, the Agency
argues that a compelling need exists under criterion (c) of section
2424.11 of the Authority's regulations because its travel regulations
implement a nondiscretionary mandate to the Agency under law and
Government-wide regulations. However, those arguments are based
essentially on the Agency's view that, since its travel regulations
parallel applicable law and Government-wide regulations which it
contends bar negotiation of Provision 3, its regulations must also bar
negotiation of Provision 3. The Agency has provided no other basis to
support its conclusion that a compelling need exists for its
regulations. Thus, in view of the decision that Provision 3 is
consistent with applicable law and Government-wide regulations the
Authority finds that the Agency has not sustained its compelling need
contention.
C. Conclusion
For the reasons set forth above, and based especially on the findings
contained in the Decision and Order on Remand in Customs Service, the
Authority finds Provision 3 to be within the Agency's duty to bargain.
V. Provision 4
Article 25, Section 5 ADMINISTRATIVE LEAVE OR EXCUSED ABSENCE:
. . . Excused absence shall be authorized when the activity shuts
down due to circumstances beyond the agency's control for a short
period of time. Instances involving snow storms, floods, lack of
heat or electricity and similar events are covered by this type of
excused absence.
A. Positions of the Parties
The Agency contends that Provision 4 is of "questionable legality,"
and interferes with its reserved rights under section 7106(a)(2) to
elect to furlough or lay off employees and to assign them and direct
their work under section 7106(a)(2)(A) and (B).
The Union's position is that there is no material difference between
Provision 4 and the proposal held to be within the duty to bargain in
Long Beach Naval Shipyard, Long Beach, California and International
Federation of Professional and Technical Engineers Local 174, AFL-CIO, 7
FLRA 362 (1981).
B. Analysis
The record in this case clearly indicates that this provision was not
intended to apply to circumstances where laying off of employees would
be the appropriate course of action in accordance with applicable
regulatory requirements. Thus, the Agency's arguments to the contrary
cannot be sustained. Nor does the provision require that employees be
excused from work. Rather, the provision only requires the granting of
administrative leave or excused absences after management has decided to
close temporarily the installation for any of the enumerated reasons.
In the Authority's view, Provision 4 is to the same effect as the
proposal requiring the granting of 4 to 5 days administrative leave
during a curtailment of agency operations held to be within the duty to
bargain in Long Beach Naval Shipyard. In that case, the Authority held
that the granting of administrative leave for the short period in
question (4 to 5 workdays) affected the working conditions of unit
employees and was a matter within the agency's discretion under
applicable Government-wide regulations. Since it was not shown that the
exercise of such discretion by means of the collective bargaining
process was barred by law or regulation, the proposal was held to be
negotiable. Therefore, based on the reasoning more fully explained in
Long Beach Naval Shipyard, Provision 4 is likewise within the duty to
bargain.
C. Conclusion
Based on the foregoing analysis, the Authority finds that Provision 4
concerns a condition of employment which is within the Agency's
administrative discretion and that the provision is not inconsistent
with law or Government-wide regulation. Therefore, the provision is
within the duty to bargain.
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review, as it relates
to Provisions 1 and 2, be, and it hereby is, dismissed. IT IS FURTHER
ORDERED that the Agency shall rescind its disapproval of Provisions 3
and 4 which were bargained on and agreed to by the parties at the local
level. /2/
Issued, Washington, D.C., May 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Petition for Review in Case No. 0-NG-746 sought review of the
Agency's disapproval of parts a and c of Provision 3. Authority review
of the Agency's disapproval of parts b, d and e of the provision was
sought in Case No. 0-NG-748.
(2) In deciding that Provisions 3 and 4 are within the duty to
bargain, the Authority makes no judgment as to their merits.