30:0016(4)NG - AFGE Local 2024 and Navy, Portsmouth Naval Shipyard, Portsmouth, NH -- 1987 FLRAdec NG

[ v30 p16 ]
The decision of the Authority follows:

 30 FLRA NO. 3
 30 FLRA 10

10 NOV 1987






Case No. O-NG-1388


I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of two Union proposals
which apply to nurses who are employed within the Agency's
Department of Medicine and surgery (DM&S). We reject the Agency's
contention that the Union's appeal should be dismissed on
procedural grounds. We conclude that the first proposal is
nonnegotiable. The second proposal is negotiable.

II. Procedural Issues

A. The Union's Petition as a Whole

     Without objection by the Union, the Agency requests us to
consider its supplemental submission, which asserts that the
Union's appeal should be dismissed because the Agency has not
changed conditions of employment relative to the matters proposed
for negotiation so as to give rise to a duty to bargain. We grant
the request and have considered the Agency's submission and the
Union's response concerning the Authority's jurisdiction over the
Union's petition under section 7117. We reject these contentions
of the Agency for the following reasons.

     Under part 2424 of our Regulations, we consider a petition
for review of negotiability issues only where the parties
are in dispute as to whether a matter proposed for bargaining is
inconsistent with law, rule, or regulation. In this case, the
Agency claims that the Union's proposals are inconsistent with
various provisions of law and regulation. Where, as here, the
conditions for review of negotiability issues have been met, a
union is entitled to a decision by the Authority as to whether a
proposal is negotiable under the Statute, despite the existence
of additional issues in the case. For example, in this case the
Agency claims that it has no duty to bargain because no change in
conditions of employment has occurred. See Internal Revenue
Service, 29 FLRA  No. 12 (1987) ("the goal of providing more
equality in the positions of unions and agencies ... is promoted
by requiring bargaining on union-initiated, mid-term proposals in
some circumstances").

     To the extent that there are additional issues regarding the
duty to bargain in this case, these issues should be resolved in
other appropriate proceedings. See 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, 306 n.6 (1984).
Accordingly, the Agency's claim that a threshold duty to bargain
does not exist does not preclude us from determining the
negotiability of the Union's proposals because they are otherwise
properly before us. American Federation of Government Employees,
Local 12, AFL - CIO and Department of Labor, 26 FLRA  768

B. The Union's Second Proposal

     In its statement of position, the Agency argues that the
petition should be dismissed as to the second proposal on grounds
that it is not sufficiently specific to constitute a "proposal"
within the meaning of our Regulations. In our view, the Agency
has shown no basis for this contention.

     As explained below, the proposal requires management to
provide certain information to unit employees and the Union. In
our opinion, the information which management would be required
to release under the proposal is sufficiently specific to enable
the Agency to review the proposal in connection with the
requirements of law, rule, and regulation and to enable us to
rule on the proposal's negotiability. Therefore, we reject the
Agency's claim that this proposal should be dismissed for lack of

III. Proposal 1

     If management feels that a pattern of leave abuse is
developing, it shall inform the Union 90 days prior to any type
of action being taken against the employee. Within the 90 days,
if corrective action/substantiation of need takes place, there
shall be no administrative action.

A. Positions of the Parties

     The Agency asserts that this proposal is outside its duty to
bargain because the proposal concerns disciplinary matters which
are specifically provided for by Federal statute (5 U.S.C.
7503(a)) and are therefore excepted from the definition of
conditions of employment under section 7103(a)(14)(C) of the
Statute. It also asserts that this proposal conflicts with
management's right to discipline employees, under section
7106(a)(2)(A), because the proposal would preclude effective use
of counseling and discipline for patterns of leave abuse. The
Union disputes the Agency's contentions and argues that the
proposal constitutes a negotiable procedure and/or appropriate
arrangement under section 7106(b)(2) and (3).

B. Analysis

     1. Section 7103(a)(14)(C)

     The proposal as a whole is not excepted from the definition
of "conditions of employment" under section 7103(a)(14) (C) so as
to be outside the duty to bargain, as contended by the Agency.
Under 38 U.S.C. 4108, the Agency's Administration has discretion
to establish personnel policies for nurses in its DM&S
notwithstanding any law or regulation. Furthermore, 38 U.S.C.
4119 requires the provisions of title 5 to yield to the
provisions of title 38 where a direct conflict exists between
those statutes, except in circumstances not present in this case.
See Colorado Nurses Association and Veterans Administration
Medical Center Ft. Lyons, Colorado, 25 FLRA  803, 806 (1987),
petition for review filed sub nom. Colorado Nurses Association v.
FLRA,  No. 87-1104 (D.C. Cir. Feb. 25, 1987). Accordingly, the
Agency has not shown that 5 U.S.C. 7503(a) "specifically
provides" for the matter covered by the proposal within the
meaning of section 7103 (a)(14). For example, Veterans
Administration, Washington, D.C., 27 FLRA  159 (1987), petition
for review filed sub nom. Veterans Administration, Washington,
D.C. v. FLRA,  No. 87-1341 (D.C. Cir. July 24, 1987). 
     2. The Right to Discipline Under Section 7106(a)(2)(A)

     For the reasons discussed below, we find that the proposal
directly interferes with management's right to discipline
employees under section 7106(a)(2)(A). See, for example, American
Federation of Government Employees, Local 1822, AFL - CIO and
Veterans Administration Medical Center, Waco, Texas, 9 FLRA  709,
711-12 (1982) and National Treasury Employees Union and Internal
Revenue Service, 6 FLRA  522, 522-53 (1981) (union proposals
which bar management from using discipline to correct employee
infractions conflict with section 7106(a)(2)(A)).

     Based on the proposal's wording and the Union's explanation
of its intent, this proposal requires management to inform the
Union of a suspected pattern of leave abuse 90 days before
management takes "any type of action" against an employee for
such conduct. The proposal also precludes management from
disciplining an employee for a