[ v21 p1105 ]
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.