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27 FLRA NO. 107

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1994

                    Union

       and

MILITARY ENTRANCE PROCESSING
STATION, BOSTON, MASSACHUSETTS

                    Agency

Case No. O-NG-1130

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 three provisions of a negotiated agreement which were disapproved by the Agency head pursuant to section 7114 (c) of the Statute. 1 We hold Provisions 1 and 2 to be nonnegotiable and Provision 3 to be negotiable.

II. Provision 1

Article XII, Section 3b, sixth sentence.

Approval for annual leave scheduled in advance will not be withdrawn by the Employer except in emergencies. [

A. Positions of the Parties

The Agency contends that this provision interferes with its right to assign work under section 7106 (a)(2)(B) of the Statute.

The Union points out that employees, acting in reliance on the agency's approval of their leave requests, often spend significant sums of money on deposits for vacation cottages or trips. Therefore, the Union asserts, employees should be able to use their leave without fear of losing deposits.

B. Analysis and Conclusion

The disputed provision would prevent management from withdrawing approval of annual leave except in emergencies. It is, therefore, to the same effect as section 4 of Proposal 6 in Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987). That proposal prohibited the agency from rescinding its approval of leave requests and calling employees back to work from leave except in emergencies. In VAMC, North Chicago, we found that the proposal was not a negotiable procedure because it imposed a substantive condition which limited the agency's right to determine when assigned work would be performed. In that manner, it directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute and was outside the duty to bargain. Accordingly, based on VAMC, North Chicago, we find that Provision 1 in this case directly interferes with management's right under section 7106(a)(2)(B) to assign work and is not within the duty to bargain. See also Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66, slip op. at 17 (1987) (Proposal 4), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987); American Federation of Government Employees, AFL - CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984) (Proposal 4).

In this case, the Union asserts that employees make deposits for vacation cottages and trips in reliance on the Agency's approval of leave requests. Thus, the Union implicitly argues that Provision 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the  Statute. In VAMC, North Chicago, we also considered whether section 4 of Proposal 6 constituted an appropriate arrangement. We concluded in that case that the proposal totally abrogated management's right to assign work because it prevented the agency from cancelling approved leave and calling employees back to work from leave in all situations except in emergencies. Since proposals which totally abrogate a management right do not constitute appropriate arrangements under section 7106(b)(3), we found that section 4 of Proposal 6 excessively interfered with management's right to assign work under section 7106(a)(2)(B) and was outside the duty to bargain. In this case Provision 1 would also prevent management from withdrawing approved annual leave except in emergencies. Based on VAMC, North Chicago, we conclude that Provision 1 is not within the duty to bargain because it excessively interferes with a management right. See also VAMC, Ft. Lyons, 25 FLRA No. 66, slip op. at 17-18, American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, the U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 9).

III. Provision 2

Article XXI, Section 2, last sentence.

Disciplinary action will be initiated, if at all, within sixty (60) calendar days after identification of an employee's misconduct in the incident in question or within sixty (60) calendar days after Management knew, or reasonably should have known of such misconduct.

A. Positions of the Parties

The Agency contends that this provision directly interferes with management's right to take disciplinary action. The Union contends that the provision does not prevent the Agency from taking disciplinary action, but merely limits the time frame during which such action may be taken.

B. Analysis and Conclusion

In requiring the Agency to initiate disciplinary action against employees within 60 calendar days after it  knew, or should have known, of the incident, this provision is to the same effect as a provision the Authority found nonnegotiable in National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985) (Provision 2), aff'd sub nom. National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986). That provision required investigations of incidents for which disciplinary actions may be taken to be initiated normally within 60 days of the incident or within 60 days after the agency became aware of the incident. There, the Authority found that, by establishing a contractual "statute of limitations" on management's ability to investigate whether disciplinary action is justified, the provision prevented management from exercising its statutory right to discipline employees. Here, the provision establishes a 60 calendar day time limit within which the discipline itself must be initiated. Therefore, the provision would also, in certain circumstances, prevent management from exercising its right to discipline employees. See also American Federation of Government Employees, AFL - CIO, Local 1770 and Department of Army, Headquarters, XVII Airborne Corps and Fort Bragg, North Carolina, 17 FLRA 752 (1985). Based on the reasons and cases cited, Provision 2 is inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and is outside the duty to bargain.

IV. Provision 3.

Article XXXII, Section 1, 4th sentence.

If the conditions cannot be immediately corrected, employees will be assigned work in a safe and healthy area, or will be excused without charge to leave until the condition is corrected.

A. Positions of the Parties

The Agency asserts that the provision is nonnegotiable because it interferes with the rights to direct employees and assign work under section 7106 (a)(2)(A) and (B) of the Statute. The Union contends that the provision would merely protect employees from an unhealthy or unsafe workplace.

B. Analysis and Conclusion

The Agency contends that this provision prevents it from requiring employees to work in their normal work places  under a variety of conditions identified as unsafe or unhealthy. The Union, on the other hand, interprets the provision as applying to emergency situations where the continued presence of employees at their normal work places would put them in imminent danger. Union Response at 2. As the Union's interpretation is consistent with the language of the provision, we adopt that interpretation for the purpose of this decision.

While matters related to health and safety are legitimate factors which management may take into account in assigning work, proposals which actually preclude management from assigning work are nonnegotiable. See American Federation of Government Employees, AFL - CIO, Local 3631 and Environmental Protection Agency, 11 FLRA 637 (1983); National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Proposal 6), aff'd on other grounds sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).

In our view however, Provision 3 does not preclude the assignment of duties. Rather, we find that Provision 3 is similar in effect to Proposal 37 found negotiable in American Federation of Government Employees, AFL - CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 91 (1983). That proposal required employees to return to their normal worksite during a fire emergency unless it was the location of the emergency. In finding that proposal within the duty to bargain, the Authority noted that it was not concerned with the assignment of work. Rather, Proposal 37 concerned the safety of employees during a fire emergency and merely permitted employees to whom work was assigned to delay returning to their worksite in such circumstances. The provision in this case also is concerned with the safety of employees. It merely requires the Agency to provide employees an alternative worksite, or at its discretion, grant employees excused absences during the period of an emergency. 2 For the  reasons and cases cited in Veterans Administration Hospital, San Antonio, Provision 3 is likewise within the duty to bargain.

V. Order

The petition for review as to Provisions 1 and 2 is dismissed. The Agency must rescind its disapproval of Provision 3 which was bargained on and agreed to by the parties at the local level. 3

Issued, Washington, D.C., June 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 The Union's petition for review in this case originally contained 14 provisions. The Agency, in its Statement of Position, withdrew its allegation of nonnegotiability with respect to eight of those provisions. The issues as to those eight provisions have, therefore, been rendered moot. Additionally, in its response, the Union withdrew its appeal as to three other provisions. Consequently, the issues as to those 11 provisions will not be considered further.

Footnote 2 For a general discussion of the circumstances under which an agency has authority to grant excused absences (that is, administrative leave), see Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers Local 174, AFL-CIO, 7 FLRA 362, 365-68 (1981).

Footnote 3 In finding Provision 3 to be within the duty to bargain, we make no judgment as to its merits.

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