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The decision of the Authority follows:
30 FLRA NO. 3 30 FLRA 10 10 NOV 1987 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3884, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER, FARGO, ND Agency Case No. O-NG-1388 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 (1987). 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 specificity. 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 pattern of leave abuse if the employee corrects the pattern within the 90-day period. So intended, this proposal does not merely delay management actions concerning patterns of leave abuse, as argued by the Union. It prevents management form taking effective action to prevent or correct patterns of leave abuse. After management has informed the Union that a pattern of leave abuse has occurred, management must remain blind to the the abuse for 90 days. It cannot take action to correct the abuse which has occurred. It cannot act to prevent abuse which may be continuing. Management is also totally precluded from taking disciplinary action concerning a pattern of leave abuse, no matter how severe the pattern prior to or during the 90-day period if the employee corrects the pattern at some time during the 90-day period (for example, on the 90th day). 3. Section 7106(b)(2) and (3) As explained above, the proposal directly and substantively interferes with management's right to discipline employees under section 7106(a)(2)(A). Therefore, it does not constitute a procedure which is negotiable under 7106(b)(2). For example, National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA 848 (1987) (Proposals 4-6). Further, we conclude that the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3). Like subsection (a) of Provision 22 in International Plate Printers. Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987), this proposal concerns employees against whom management may initiate discipline for conduct for which the employee is at "fault." Further, by both (1) substantively limiting management's ability to use discipline to prevent recurrences of leave abuse and (2) precluding management from disciplining an employee no matter how severe the abuse, if the employee corrects the pattern consistent with the proposal, the proposal would excessively interfere with the right to discipline. In this regard, we find that the nature and extent of the proposal's interference with the right to discipline strongly outweighs the alleged benefit to employees from the Union's proposed arrangement. Id. C. Conclusion Proposal 1 is nonnegotiable. It excessively interferes with management's right to discipline employees under section 7106(a)(2)(A). IV. Proposal 2 Management shall supply to the Union all pat-terns of leave use which Management feels are leave abuse. A. Positions of the Parties The Agency asserts that the information which this proposal requires management to provide the Union is governed by Agency regulations (1) which are promulgated under the authority of 38 U.S.C. 4108 and (2) which mirror the requirements of Government - Wide regulations of the Office of Personnel Management (OPM). It argues that the proposal is outside its duty to bargain for these reasons. The Agency also argues that the proposal conflicts with management's right to discipline employees under section 7106(a)(2)(A). The Union disputes these contentions and argues that the proposal is negotiable. B. Analysis and Conclusion This proposal is negotiable. It merely requires management to notify the Union of the patterns of leave use which management believes would constitute patterns of leave abuse. There is nothing in the wording of this proposal or the Union's explanation of its intent which indicates that implementation of this proposal would affect the descriptions of leave abuse which may be contained in the Agency's regulations. In any event, the Agency has not asserted that the proposal conflicts with its regulations, that a compelling need exists for its regulation to bar negotiation of the proposal, or that the regulations involve the exercise of management's rights. Accordingly, the Agency's contention that this proposal is barred from negotiation by Agency regulations is without merit. The contention that this proposal conflicts with management's right to discipline employees is also without merit. As explained by the Union, this proposal is only intended to require management to provide the Union and employees with advance notice of the patterns of leave use which management feels are indicative of leave abuse. In our view, based on the plain wording of the proposal, the proposal would not limit management's prerogative to discipline employees for leave abuse when management decides that leave abuse has occurred, even if the pattern of leave abuse involved was one as to which the Agency has not previously informed the Union. V. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposal 2. 1 The Union's petition for review is dismissed as to Proposal 1. Issued, Washington, D.C., November 10, 1987 Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In finding this proposal to be within the duty to bargain, we make no judgment as to its merits.