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The decision of the Authority follows:
29 FLRA NO. 69 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 284 Union and DEPARTMENT OF THE NAVY, NAVAL AIR TECHNICAL TRAINING CENTER LAKEHURST, NEW JERSEY Agency Case No. 0-NG-1386
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 presents issues concerning the negotiability of two provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. We find that Pro-vision 1 is negotiable and that Provision 2 is nonnegotiable.
II. Provision 1
Article 22, Section 5: When an employee becomes capable of performing light duty work, after an on-the-job injury, the employing department will make every reasonable effort to assign light duty work consistent with the restrictions specified by the Branch Clinic.
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 and that the interference is "excessive." The union acknowledges that Provision 1 might conflict with management's right to assign work but, relying on the Authority's decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), argues that the provision is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Provision 1 would obligate the Agency to make a reasonable effort to assign light duty work to employees in a manner that is consistent with restrictions specified by the Agency's branch clinic. The effect of this provision, therefore, is to prevent the Agency from assigning duties to employees which would conflict with those restrictions. See, for example, National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (Proposal 5); Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA No. 48 (1986). Provision 1 is distinguishable from Provision 6 in American Federation of Government Employees, AFL - CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA No. 1 (1987). The provision in that case required management to make every effort to grant employee requests for the assignment of less arduous work only insofar as granting a request would be in accordance with applicable rules and regulations. We found that by its terms the provision in that case did not directly interfere with management's right to assign work, and was within the duty to bargain under section 7106(b)(2) of the Statute.
Because Provision 1 in this case directly interferes with management's right to assign work under section 7106(a)(2)(B) by limiting the work which can be assigned to employees, it is outside the Agency's duty to bargain unless it is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). As we stated in Kansas Army National Guard, in order to determine whether a provision constitutes a negotiable appropriate arrangement, we must first determine whether it is intended to be an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the provision is intended to be an "arrangement," we will determine whether it is appropriate, or whether it is inappropriate because it excessively interferes with the exercise of management's rights.
According to the Union, this provision is intended to take effect only when an employee suffers "actual adverse effects" resulting from management's exercise of its right to assign work under section 7106(a)(2)(B). Union Response at 2. Provision 1, then, is intended to mitigate against additional injury to employees by limiting the types of assignments which supervisors are able to require employees in a "light duty" status to perform. In short, this provision requires that "light duty" assignments be consistent with the recommendations of the Agency's own branch clinic. We conclude therefore that Provision 1 is intended to be an arrangement for employees who may be adversely affected by the exercise of management's right to assign work.
The remaining question is whether the burden imposed on management's exercise of its rights by Provision 1 is excessive when weighed against the provision's benefit to employees. We conclude that, on balance, the benefit accruing to employees outweighs the detriment imposed on the Agency's right to assign work.
As we have stated, Provision 1 simply requires that every reasonable effort be made to assign "light duty" work to employees in accordance with the restrictions of the Agency's branch clinic. The union further states, and the Agency does not dispute, that the branch clinic is the arm of the Agency which initially determines that the employees should be in a "light duty" status. Petition for Review at 2. In our view, once the determination is made by the Agency's branch clinic that an employee should be placed in a "light duty" status, to require the Agency "to make every reasonable effort" to make work assignments which are consistent with the branch clinic's recommendations does not excessively interfere with management's right to assign work. The limitations established by the provision are those recommended by the Agency's own officials. moreover, management is not absolutely bound by those limitations, but is obligated to make reasonable efforts to comply. Management thus has some flexibility as to the implementation of the clinic's requirements. On balance, therefore, we conclude that the protection afforded employees against further job-related injury outweighs the detrimental impact on management's ability to accomplish its work load. Consequently, we find that Provision I does not excessively interfere with management's right to assign work and is an appropriate arrangement within the meaning of section 7106(b)(3).
Provision 1 in this case is distinguishable from Provision 2 in American Federation of Government Employees, AFL - CIO, Local 1409 and Department of the Army, U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 28 FLRA No. 22 (1987). The provision in that case prevented the agency from assigning work to employees which conflicted with restrictions placed on the employees by "competent medical authority." In finding that the provision in that case excessively interfered with management's right to assign work, we concluded that the standard governing the assignment of work which was established by that provision was too broad. Moreover, the provision in that case expressly prohibited the assignment of duties to employees which conflicted in any manner with the restrictions placed on the employees by competent medical authority. Provision 1, unlike Provision 2 in U.S. Army Adjutant General Publications Center, affords management a measure of flexibility in the assignment to employees of "light duty" work.
As to the Agency's argument that the provision would permit arbitrators to substitute their judgment for that of management in the assignment of work, we have held that an arbitrator's award which simply enforces a properly negotiated appropriate arrangement under section 7106(b)(3) of the Statute is not contrary to section 7106(a) of the Statute. Office of Personnel Management and American Federation of Government Employees, AFL - CIO, Local 32, 19 FLRA 39, 41 (1985).
III. Provision 2
Article 28, Section 8: Employees are responsible for initiating action to cancel their dues withholding when they move outside the unit of representation. Management is responsible for effecting dues revocation. Failure of management to do so will not result in any financial liability on the part of the Local.
A. Positions of the Parties
The Agency contends that Provision 2 is contrary to law and Government-wide regulation; specifically, 5 U.S.C. 7115(b), 5 U.S.C. 5584, and 4 C.F.R. 91.5. In particular, the Agency argues that, by absolving the Union from "any financial liability," the provision constitutes a "blanket waiver" of dues erroneously remitted to the Union and is therefore contrary to law and regulation.
The Union disputes the Agency's contentions and argues that, because a union is not an "employee" within the meaning of 5 U.S.C. 5581(1), the statutory and regulatory provisions cited by the Agency concerning "waiver" do not apply. Further, the Union asserts that Provision 2 merely restates the requirement that dues deductions be cancelled when employees move outside the bargaining unit.
Provision 2, in addition to restating certain general principles concerning dues revocation, would exempt the Union from any financial liability in the event that the Agency continued to remit to the Union dues which had been erroneously withheld after an employee was no longer a member of the bargaining unit. Essentially, therefore, as argued by the Agency, this provision would amount to a blanket waiver of the Agency's claim to recoupment of an erroneous overpayment of dues.
Applicable law and regulations, in particular 5 U.S.C. 5584 and 4 C.F.R. Part 91, establish the standards for waiver of claims for the erroneous payment of pay and allowances to or on behalf of an employee, other than travel, transportation, or relocation payments. Notwithstanding the Union's arguments, the circumstance contemplated by this provision--waiver of a claim by an agency against a union for the payment of erroneously withheld dues--is squarely within the scope of the cited provisions. See Matter of National Federation of Federal Employees, Local 1239, 61 Comp. Gen. 218, 220 (1982). Under those standards, waiver may be granted if (1) collection action would be against equity and good conscience and not in the best interests of the United States, and (2) there is no indication of fraud, misrepresentation, fault or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver. See 5 U.S.C. 5584. Moreover, only the Comptroller General, not the head of an agency, can waive claims for an erroneous payment exceeding $500. 5 U.S.C. 5584 and 4 C.F.R. 91.4. Further, 4 C.F.R. 91.5(c) specifically provides that an Agency's waiver of erroneous payments necessarily depends on the facts of each particular case. Thus, the regulations require that an individual, case-by-case assessment be made of the factors which would support the granting or denial of a request for waiver.
We agree with the Agency that the wording of the provision is unequivocal: the Union will not be liable for repayment of erroneously remitted dues withholding. The provision effectively requires the Agency to waive all claims to those erroneous payments regardless of the circumstances. Because it is so broadly worded, the provision could require the Agency to waive a claim against the union in circumstances where a waiver would be prohibited by law and regulation; for example, where the amount of the claim exceeds $500 or where the payment was procured by fraud, misrepresentation, or lack of good faith. We find, therefore, that the provision is inconsistent with law and regulation and outside the duty to bargain under section 7117(a)(1) of the Statute. See National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543 (1983), affirmed as to other matters sub nom. NFFE, Local 1745 v. FLRA No. 84-1054 (D.C. Cir. September 18, 1987). See also Overseas Education Association v. FLRA, No. 86-1491 (D.C. Cir. August 28, 1987), affirming Overseas Education Association, Inc. and Department of Defense, Office of Dependent Schools, 22 FLRA No. 34 (1986).
The Agency must rescind its disapproval of Provision 1. 1 The Union's petition for review as it relates to Provision 2 is dismissed.
Issued, Washington, D.C., October 20, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Footnote 1 In finding Provision I to be within the duty to bargain, we make no judgment as to its merit.