[ v22 p710 ]
The decision of the Authority follows:
22 FLRA No. 81 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2094, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL CENTER NEW YORK, NEW YORK Agency Case No. 0-NG-1006 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of nine Union proposals. II. Procedural Issue The Union's Petition for Review contained a proposal concerning the staying of adverse personnel actions pending exhaustion of grievance and appeal rights. However, the Union included no document purporting to be an Agency head determination on that proposal, nor did the Agency address that proposal in its Statement of Position. Consequently, the referenced proposal is not appropriately before us for review. American Federation of State, County, and Municipals Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 n.1 (1983). III. Union Proposal 1 The Union may recommend to Management 10 employees for EEO Counselor positions. Management will select at least 2 of the candidates as counselors. Whereby a counselor serves as a bridge between the complainant and Management in the resolution of problems rather than as a chosen representative of the employee, and in order to avoid conflicts of interest, no Union Officer or Shop Steward may be nominated. A. Positions of the Parties /1/ The Agency contends that Union Proposal 1 is inconsistent with management's rights, under section 7106(a)(2)(A) and (B) of the Statute, "to assign" and to determine the personnel by which the Agency's operations will be conducted. The Agency cites American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982) in support of its position. The Union asserts that the proposal is not inconsistent with the right to assign the workforce because the duties assigned to counselors are not their primary function, but is only part time work. B. Analysis In requiring that equal employment opportunity counselors be selected from among a list of Union nominess, Union Proposal 1 is to the same effect as the disputed portion of Union Proposal XI which was found to be outside the duty to bargain in Wright-Patterson Air Force Base, 2 FLRA 604, 622-3 (1980). Proposal XI required that half of the agency's EEO Counselors be selected from a list of union nominees. We determined that the proposal directly prescribed the assignment of certain duties to particular employees and prevented the assignment of those duties to other employees. Concluding that the disputed part of the proposal was inconsistent with management's right to assign work, we noted that "EEOC Counselors perform the duties associated with EEO counseling either as their total work assignment or in addition to the other duties which are regularly assigned to them and which comprise their appointed positions." C. Conclusion For the same reasons stated in Wright-Patterson Air Force Base, we find that Union Proposal 1 also requiring management to select from a list of Union nominees, is outside the duty to bargain because it interferes with management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute. /2/ The fact that the proposal concerns only part time duties does not alter this conclusion. IV. Union Proposal 2 The Union will be allowed to have one observer on the Position Management Committee. The observer will be designated by the President, the observer will be notified when the Position Management Committee meets. A. Positions of the Parties The Agency states that its Position Management Committee has responsibility for reviewing and recommending approval prior to implementation of all changes in organization involving work design, occupational distribution, grade distribution, staffing requirements and cost. The Agency asserts that, as the Committee is an integral part of its decision-making process, Union participation in that process would inhibit full and open deliberations and, thus, interfere with management's rights under section 7106 of the Statute. In support, the Agency cites National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 988 (1982). The Union notes that the Committee is a process whereby positions are allocated to bargaining unit employees and contends that the process by which "management engages in its right (is) negotiable." B. Analysis As described by the Agency, the Position Management Committee in this case has responsibilities nearly identical to the committee of the same name on which the union sought representation in VA Medical Center, East Orange, 9 FLRA 988 (1982). There it was determined that the committee was an integral part of the process by which management decides and acts pursuant to rights reserved to it by the Statute. We held that union representation on the committee "would thereby impair the flexibility which Congress intended management officials to have under the Statute." We therefore concluded that the proposal "would directly interfere with management's rights under section 7106 of the Statute . . . ." While we note that the disputed proposal in this case adverts only to a Union "observer" on the committee, the presence of a Union designee would nonetheless "prevent management officials from engaging in free and open deliberations among themselves." 9 FLRA at 1002. Thus, contrary to the Union's view, the proposal is not merely a procedure to be followed by the Agency in exercising its reserved rights, but rather would inhibit management in reaching decisions and in acting with respect to those rights. C. Conclusion Consistent with our findings in VA Medical Center, East Orange, we conclude that Union Proposal 2 in the present case is outside the duty to bargain. V. Union Proposal 3 1. Bargaining Unit employees will have use of the swimming pool when the pool is not being used for patient therapy. The Union will provide a qualified life guard to oversee the bargaining unit employees, when using the pool. 2. Bargaining Unit employees will have use of the gym on the 17th floor. The Recreation Equipment on the 17th floor will be available for the employees to use. It is understood that the gym and equipment will not be available for use by bargaining unit employees if they are being used by patients. A. Positions of the Parties The Agency contends that Union Proposal 3 does not concern matters principally related to conditions of employment. The proposal would require management to hire personnel to supervise employee use of the facilities. In addition, the prime beneficiaries of the facilities, hospital patients, would be unable to use them during the period set aside for employee use. The Union asserts that the proposal relates to working conditions because access to the facilities would allow employees to relax during lunch and break periods and thereby enhance the efficiency and effectiveness of their work performance. Under the proposal, the Union would provide volunteers to supervise use of the facilities and would assume responsibility for security of the equipment. B. Analysis In view of the Union's offer of self-supervision of employee use of the recreation facilities involved, we find that the Agency has not sustained its argument that the proposal would require it to hire additional employees to oversee the unit employees' use of such facilities. In addition, since the proposal expressly provides that employees would have access to the recreation facilities only if such facilities are not being used by patients, patients would not be denied access to such facilities. It is well established however, that the duty to bargain under the Statute extends only to "conditions of employment," as defined in section 7103(a)(14) of the Statute. Parties are obligated to negotiate concerning personnel policies, practices, and matters affecting working conditions. Consequently, proposals concerning employee activities, unrelated to assigned work, conducted while such employees are in a non-duty status, such as employee use of agency recreational facilities during non-duty time, have been held to be not within the bargaining obligation because they do not meet the section 7103(a)(14) definition. For example, see National Association of Government Employees, Local R5-168 and Department of the Army, Headquarters 5th Infantry Division and Fort Polk, Louisiana, 19 FLRA No. 75 (1985). In this case the Union indicates that its proposal would grant employees access to the listed facilities during lunch and breaks or when the employees are otherwise in a non-duty status. Therefore, based on our holding in Fort Polk, Union Proposal 3 does not concern conditions of employment of bargaining unit employees. See also United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 16 FLRA 335 (1984). C. Conclusion Union Proposal 3 does not concern matters directly related to conditions of employment affecting bargaining unit employees. Therefore, it is not within the Agency's duty to bargain. VI. Union Proposal 4 No employee will be forced to work overtime if he/she feels it will effect (sic) his efficiency, health or emotional stability. A. Positions of the Parties The Agency contends that Union Proposal 4 violates its rights under the statute "to determine the numbers, types and kinds of employees required to carry out its mission" and "to assign." The Union asserts that its proposal does not violate management's right to assign the workforce. Rather, the Union contends that the proposal "deals with a process whereby management engages in its rights" and further, that "(o)vertime is voluntary" under the parties' negotiated agreement. B. Analysis The Agency provides no support whatever for its claim that Union Proposal 4 concerns "numbers, types and kinds of employees." Thus, the Agency's argument cannot be sustained. This Proposal, however, would prevent the Agency from assigning overtime work to employees who assert the grounds listed in the proposal. In National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983), we noted, in considering Union Proposal 2, that the management right to assign work, pursuant to section 7106(a)(2)(B) of the Statute, includes the right to determine that certain work will be performed on overtime and that a proposal limiting management's authority to assign overtime work is inconsistent with the Statutory right to assign work. Thus, Union Proposal 4 is to the same effect as the disputed proposal in American Federation of Government Employees, AFL-CIO, Local 3631 and Environmental Protection Agency, 11 FLRA 637 (1983). In that case the proposal sought to prevent assigning employees to WANG terminals for more than three consecutive months if the agency health and safety committee concluded that assignment to such terminals in excess of three consecutive months induced stress. Rejecting the union's argument that the proposal merely constituted a procedure which concerned health and safety matters to be followed in assigning work, we found that "the proposal would absolutely prohibit management from assigning certain duties to employees beyond a specified period of time if the circumstances described in the proposal apply." Such a complete prohibition on the assignment of work "is inconsistent with management's right under section 7106(a)(2)(B) of the Statute to 'assign work' and is not within the duty to bargain." This analysis is not altered by the Union's claim that under a provision of the parties' agreement "(o)vertime is voluntary." Since there is nothing in the record to indicate the existence of such a provision, the Union's claim is totally unsupported. C. Conclusion Union Proposal 4 is not a "procedure," but rather is a substantive infringement on the Agency's right to assign work. Therefore, based on our findings in Social Security Administration and Environmental Protection Agency, it is outside the duty to bargain. VII. Union Proposal 5 The Medical Center will provide the use of vehicles to representatives of the Union for official business (this does not include internal Union business). Transportation will also be provided to and from the subway along 23rd Street in the non-daylight hours. If necessary Union representatives will be given the opportunity to obtain Federal drivers license. A. Positions of the Parties It appears from the record that the Agency objects only to that part of this proposal requiring it to furnish transportation to and from the subway. In the Agency's view, that part of the proposal does not concern a condition of employment. The Union contends that the disputed part of the proposal is a condition of employment. Citing the high incidence of crime committed against unit employees, the Union states that the Agency-furnished transportation "would provide a safer means of reaching the place of employment." B. Analysis It is clear that the transportation contemplated would be provided to employees to assist them in commuting between their homes and the work site. Further, based on the reference in the proposal to "Federal drivers license," such transportation would be provided in the form of a Government motor vehicle. Title 31 U.S.C. Section 1344 governs the use of Government-owned passenger motor vehicles and provides that appropriations may be expended for operation, maintenance and repair of passenger motor vehicles that are used for "an official purpose." This section further states, "An official purpose does not include transporting officers or employees of the Government between their domiciles and places of employment . . .," except in certain situations not relevant in this case. In interpreting 31 U.S.C. Section 1344, the Comptroller General has determined that, in the absence of other specific authorization, one narrow exception to the general prohibition on use of Government vehicles for commutation is authorized when the home-to-work transportation of employees is incident to otherwise authorized use of the vehicles involved. See 62 Comp. Gen. 438 (1983). Thus, in American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982), Union Proposal 10, which permitted an employee already authorized to use a Government vehicle in traveling to and from his home to arrange a carpool with other employees living in the same general area, was found to be within the duty to bargain. Specifically, we held that the proposal was consistent with the official use only requirement "where transportation of employees in a Government vehicle between their homes and place of employment is such that they merely accompany another employee on an otherwise already authorized trip for the transaction of official business, and the Agency determines that the trip is in the Government's interest." See also American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) where a union proposal requiring an agency to provide shuttle bus service between various work sites and permitting employees to ride the buses as part of their travel to and from work was found to be within the duty to bargain because it was also consistent with the statutory requirements concerning the use of Government vehicles. There is nothing in the record to indicate that the Government vehicle required by Union Proposal 5 would be used for any official purpose at the same time it is engaged in transporting employees to and from the subway. Hence, it must be concluded that the vehicle would be dedicated exclusively to assisting employees in commuting between home and work; a purpose which is inconsistent with Federal law. C. Conclusion Union Proposal 5 violates the prohibition in 31 U.S.C. Section 1344(a) against the use of Government vehicles for transporting employees between their domiciles and places of employment. Therefore, pursuant to section 7117(a)(1) of the Statute, it is outside the duty to bargain. VIII. Union Proposal 6 The Medical Center will provide training to all bargaining unit employees on the definition of reasonable accommodation for handicapped employees. This training should include all the aspects of how management can provide a reasonable accommodation for handicapped employees. A. Positions of the Parties The Agency states that bargaining over Union Proposal 6 is barred by the terms of the parties' master agreement. The Agency argues that the proposal also violates its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency further appears to contend that the type of training proposed is inconsistent with the definition of "training" contained in 5 U.S.C. Section 4101(4). The Union asserts that the proposal is not inconsistent with the master agreement, but rather "has to do with a process whereby management engages in its EEO responsibilities." B. Analysis 1. Duty to Bargain When a union files a negotiability appeal under section 7105(a)(2)(E) of the Statute, section 7117(c) entitles it to a decision on the negotiability issues in dispute. To the extent there are factual issues disputed by the parties in the circumstances of a case, such issues should be resolved in other appropriate proceedings. 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). Hence, the Agency argument that it is relieved of any duty to bargain on the proposal by the master agreement is not relevant in the context of this negotiability appeal. 2. Management Rights Since both parties interpret this proposal as requiring formal training sessions to be conducted during employees' duty hours, such meaning will be adopted for the purpose of our analysis. It is well established, under Authority precedent, that proposals requiring management to provide formal training, or periodically to assign employees to specific types of training programs, are outside the duty to bargain. In National Federation of Federal Employees, Local 422 and Department of Interior, Bureau of Indian Affairs, Colorado River Agency, Parker, Arizona, 14 FLRA 48 (1984), we noted our consistent position "that training assignments during duty hours are assignments of work, covered by section 7106(a)(2)(B) . . . . As such, any proposal addressing the substantive aspects of training is a direct interference with management's right to assign work." Because Union Proposal 6, like the proposals in Bureau of Indian Affairs, prescribes the content of training and requires that such training be conducted during duty hours, it is also not a procedure for implementing a training program, but is likewise inconsistent with section 7106(a)(2)(B). 3. Violation of Law The Agency's reliance on 5 U.S.C. Section 4101(4) is misplaced. The definition contained in the referenced section does not cover the kind of training proposed by the Union and does not render such training illegal. That section of law concerns long-term professional and technical training but does not expressly bar the type of training proposed. Thus, the proposal is not inconsistent with 5 U.S.C. Section 4104(4). C. Conclusion Union Proposal 6 does not violate 5 U.S.C. Section 4101(4), but directly interferes with the right to assign work under section 7106(a)(2)(B) of the Statute. Consequently it is outside the duty to bargain. IX. Union Proposal 7 During the third quarter of an employee's work tour, the employee will be eligible for release without charge to leave of any kind in case of emergency or illness. A. Positions of the Parties The Agency contends that the proposal violates laws governing the purpose and uses of annual and sick leave and also is inconsistent with the right to determine the personnel by which Agency operations are conducted under section 7106(a)(2)(B) of the Statute. The Union contends that the proposal does not violate management rights because discretion to grant or deny an employee's request remains with the supervisor. B. Analysis Because the proposal does not mandate the granting of leave upon request, we do not find it to be inconsistent with management rights. However, the question remains as to whether the proposal is consistent with law and regulation. More specifically, the issue to be addressed is whether the Agency has the authority to grant administrative leave upon the request of individual employees who are ill or have a personal emergency. Title 5 U.S.C., chapter 63 governs the accumulation of both annual and sick leave and further authorizes agencies "to grant administrative leave excusing an employee from work when it is in the public interest." 5 U.S.C. Section 6326(c). 5 U.S.C. Section 6311 states: "(t)he Office of Personnel Management may prescribe regulations necessary for the administration of this subchapter." Thus, the coverage of the relevant OPM regulations is coextensive with that of chapter 63, covering most, but not all, employees in the executive and judicial branches of Government. The OPM regulations are, therefore, "Government-wide" within the meaning of section 7117(a)(1) of the Statute. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 754 (1980). Federal Personnel Manual (FPM), Chapter 630, subchapter 11 governs excused absences and prescribes when absences may be granted to individuals without loss of pay or charge to leave. Subchapter 11-5.b provides: Brief absences from duty of less than an hour and tardiness may be excused when the reasons are justifiable to the supervisor. When not justifiable, the absence must be made up or charged to an appropriate leave account; in addition the absence may become the basis for disciplinary action. Although what constitutes a "justifiable" reason for such a grant is not specified, FPM Supplement 990-2, Book 610, Appendix A-2 provides that when employees are dismissed because of an emergency situation, the emergency "must be general, rather than personal in scope and impact." In this connection, it is pertinent to note that FPM Chapter 630, subchapter 3-4.a(2) states that one of the purposes of annual leave is to provide time off for "emergency purposes." Similarly, with regard to illness, FPM Chapter 630, subchapter 4-2.a states that one of the purposes of sick leave "is for use when an employee is physically incapacitated to do his job . . . ." Thus, annual and sick leave are intended to cover the circumstances described in Union Proposal 7 and the governing regulations do not contemplate personal emergencies or illness as justifiable grounds for granting administrative leave in lieu of either annual or sick leave. Union Proposal 7 is distinguishable from the proposals before us in International Federation of Professional and Technical Engineers, Local 174, AFL-CIO and Long Beach Naval Shipyard, Long Beach, California, 7 FLRA 362 (1981). In that case, the proposals concerned the agency's practice of curtailing its operations during the Christmas/New Year holiday period. The proposal specifically sought to change the requirement that employees not needed during that period (4-5 workdays) take annual leave. Noting that pertinent regulations gave management discretion to grant administrative leave when it decided to curtail operations, we found the proposals to be within the duty to bargain. Union Proposal 7 in this case does not concern absence from duty caused by a managerial decision to close a facility temporarily. Rather, it deals with absences sought by individual employees based on their personal needs. Consequently, our decision in Long Beach Naval Shipyard has no bearing on Union Proposal 7. C. Conclusion Union Proposal 7 is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with Government-wide regulations. X. Union Proposal 8 If employee tours are scheduled for more than 5 consecutive days, the Medical Center will make every effort to insure that the employees will receive three (3) consecutive days off. A. Positions of the Parties The Agency, states that it is a medical facility providing around the clock care to veterans and asserts that the proposal is integrally related to, and consequently determinative of, the numbers, types and grades of employees assigned to a work project or tour of duty. Hence, the Agency claims the proposal is negotiable only at its election in accordance with section 7106(b)(1) of the Statute. In support the Agency cites American Federaion of Government Employees, Local 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 2 FLRA 641 (1980). The Union contends that its proposal is a procedure to be observed by management in exercising its rights under section 7106(b)(1). B. Analysis When a proposal sought to be bargained does not "explicitly" relate to the numbers, types and grades of employees assigned to a tour of duty or organizational subdivision, it is incumbent upon an agency to support an allegation that section 7106(b)(1) applies to that proposal. In National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927 (1979) the disputed proposal did not, on its face, relate to "numbers, types and grades," nor was the agency able to support its assertion that a direct or integral relationship existed. The proposal was therefore found to be within the duty to bargain. As with the proposal in Kansas City Service Center, a reading of Union Proposal 8 does not reveal any direct or integral relationship to numbers, types and grades of employees assigned to a tour of duty or organizational subdivision. The Agency appears to argue that Union Proposal 8 relates to these section 7106(b)(1) matters in the same manner as the disputed proposal in VA Medical Center, Minneapolis. In that case, the agency clearly established that the proposal applied to nurses with highly specialized medical skills and knowledges and that the proposal's requirement that the nurses be guaranteed every other weekend off would necessitate the hiring of additional nurses with the requisite skills to provide adequate around-the-clock medical care to the hospital's patients. The Agency having established the necessary connection, we found the proposal to be within the scope of section 7106(b)(1) and to be not within the duty to bargain. While it is noted that the activity in this case is also a hospital, the Agency nonetheless fails to establish the necessary connection between Union Proposal 8 and the numbers, types and grades of employees. The Agency merely asserts that such a nexus exists without establishing that the employees covered by the proposal possess highly specialized skills such as those in VA Medical Center, Minneapolis that would not be available to the hospital's patients under the terms of the proposal. The record in this case is in fact silent concerning the types of occupations and skills within the bargaining unit. The Agency has, therefore, failed to meet its burden of demonstrating a "direct or integral relationship" between the proposal and 7106(b)(1) of the Statute as required by the Kansas City Service Center decision. C. Conclusion The Agency has not established, nor is it otherwise apparent, that Union Proposal 8 imposes any limitation on its ability to determine the numbers, types or grades of employees assigned to a work project or tour of duty. Consequently, the proposal is within the duty to bargain. XI. Union Proposal 9 The employer and the Union jointly recognize alcoholism as a treatable illness and drug abuse as a treatable health problem. Therefore, the employer will 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. Membership of the VA Medical Center Committee established to implement this program will include five Union representatives. The Union representatives will be designated as Substance Abuse Counselors for the Union. They will be given official time to conduct substance abuse program and to counsel bargaining unit employees. Any employee participation in the program should remain confidential. Medical records, if any, will be protected. No medical records will be released without the employee's consent. Substance Abuse Coordinators should be given beepers in order to cope successfully with emergencies due to the abundance to (sic) substance abuse problems. A. Positions of the Parties The Agency contends that it is not obligated to bargain over the proposal because of its conflict with provisions of the parties' master agreement. The Agency also argues the proposal is inconsistent with management's right to discipline employees pursuant to section 7106(a)(2)(A) of the Statute and cites in support National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Union Proposal 1). The Agency further asserts that the portion of the proposal permitting the Union to designate five Substance Abuse Counselors violates management's right "to assign" and to determine the personnel by which Agency operations will be conducted pursuant to section 7106(a)(2)(A) and (B) of the Statute. The Union contends that the Counselors it would designate would represent the Union. According to the Union, substance abuse is a condition of employment. In the Union's view Union representatives are entitled to official time to represent and counsel employees on alcoholism and substance abuse. The designated Counselors would be more accessible to both managers and employees if provided with beepers by the Agency. B. Analysis The Authority will address only the negotiability issues involved in a case. Wurtsmith Air Force Base, 14 FLRA 302 (1984). Thus, the Agency's argument that it has no duty to bargain in the circumstances of this case is not relevant in the context of this negotiability appeal. We previously held in Internal Revenue Service, 1 FLRA 522 (1981) that a proposal, prohibiting the agency from disciplining an employee as long as the employee was an active participant in a recognized alcohol/drug abuse program and requiring a stay of discipline if the employee entered such a program, to be inconsistent with management's right to discipline under section 7106(a)(2)(A). Further, in American Federation of Government Employees, Local 1812, AFL-CIO and United States Information Agency, 16 FLRA 308 (1984), we held to be nonnegotiable a provision in that case preventing management from disciplining for substandard performance an employee experiencing personal problems if the employee was participating in a formal counseling program and progressing toward an acceptable performance level. Noting that pursuant to the provision "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," we found that the provision directly affected management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Similarly, as this proposal effectively would enable employees to avoid discipline indefinitely by continuing in any program, the object of which is to treat alcoholism or drug abuse, it would for the reasons more fully stated in Internal Revenue Service and USIA, 16 FLRA 308 (1984) also prevent the Agency from exercising its right to discipline. In addition, Union Proposal 9 permits the Union to select five members of the committee concerned with alcoholism and drug abuse, prescribes the five members' titles and grants them official time to carry out their functions. As with Equal Employment Opportunity Counselors, counselors in Alcohol and Drug Abuse Programs perform work assigned to them by their employer as part of a program established by that employer. /3/ The designation of specific employees to perform alcohol and drug counseling is, in reality, a decision to assign specified duties. Allowing a union to make such designations is outside the duty to bargain. Air Force Logistics Command, 2 FLRA 604 (1980). C. Conclusion The disputed portions of Union Proposal 9 interfere with management's rights to discipline employees pursuant to section 7106(a)(2)(A) of the Statute and to assign work under section 7106(a)(2)(B). Consequently, those segments are outside the duty to bargain. XII. 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 Union Proposals 1 through 7 and 9, be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 8. /4/ Issued, Washington, D.C., July 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union's positions with respect to all nine proposals are drawn from its petition for review because no reply brief was filed in this case. (2) In view of our conclusion concerning Union Proposal 1 and the long-standing precedent embodied in the cited case, we find it unnecessary to address the Agency's further contention that its right to determine the personnel by which its operations are to be conducted is also violated. (3) Agencies are required to establish such programs by the following: 42 U.S.C. Section 290dd-1 and ee-1 and 5 CFR Section 792.105 (1986). (4) In finding Union Proposal 8 to be within the duty to bargain, the Authority makes no judgment as to its merits.