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The decision of the Authority follows:
35 FLRA No. 9
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DEPARTMENT OF EDUCATION COUNCIL OF AFGE LOCALS
DEPARTMENT OF EDUCATION
DECISION AND ORDER
March 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three proposals. Proposal 1 concerns consideration by the Agency of training proposed by employees. Proposal 2 concerns providing employees with information regarding training and states that nominations and selections for training and career development programs will be made in a fair and impartial manner. Proposal 3 relates to providing employees with information regarding counseling or treatment for alcohol, drug and mental health problems and requires that employee requests for counseling be kept confidential. For the reasons which follow, we find that Proposals 1, 2 and 3 are negotiable.
II. Proposals 1 and 2
Section 25.04 Supervisor shall discuss training needs with employees, as appropriate, during the performance appraisal sessions. Employees are encouraged to present reasonable suggestions concerning their training needs to their supervisors. It is the Employer's responsibility to decide if the training proposed is directly related to accomplishing the employee's job requirements and is necessary. The Employer shall consider requested training in accordance with applicable law, regulation, and Department policies. This includes consideration of other training requests which would result in better organizational or individual performance. [Only the underlined portion is in dispute.]
Section 25.06 The Employer shall make available to employees, to the extent practicable, timely information concerning training courses and programs of which it is informed, and which are known to be available from Government or non- Government sources. Nomination and selection in training and career development programs and courses shall be made in a fair and impartial manner.
A. Positions of the Parties
The Union contends that the first disputed sentence in Proposal 1 acknowledges management's right to make decisions with respect to training assignments and needs. The Union asserts that the second disputed sentence does nothing more than state that the Agency should not act contrary to law and regulation in considering training assignments. According to the Union, the "rest of the proposal" merely requires "consideration" of employees' views and requests. Union Reply Brief at 3-4. The Union contends that a proposal which requires the Agency to consider an employee's request for training and act in accordance with applicable laws and regulations does not interfere with management's rights.
The Union acknowledges that in addition to training that is directly related to the current positions of employees, the proposals would apply to training which would afford employees promotion potential to "better jobs within the bargaining unit." Id. at 14 (emphasis omitted). The Union contends that "working conditions" and "conditions of employment" are not limited strictly to matters directly related to an employee's current position. Id. at 5. As to the requirement in Proposal 2 that the Agency make information concerning training available to employees, the Union contends that the information would have to be provided under the Statute and the Freedom of Information Act and that it "may bargain for . . . information . . . which would otherwise be available through other statutory entitlement . . . ." Id. at 15.
The Union contends that by requiring training assignments to be made in a "fair and impartial manner," Proposal 2 is intended to require the Agency to adhere to the concept of the "merit system" and consider only "merit factors" in making training assignments. Id. at 5, 15-17. The Union describes "merit factors" as excluding "such things as favoritism, nepotism, illegal discrimination, and similar matters." Union Reply Brief at 16. The Union contends that the Office of Personnel Management has issued regulations "prohibiting most if not all of these areas" and asserts that this portion of Proposal 2 is tantamount to a requirement that the Agency act in accordance with law and regulation. Id. at 16-17. The Union describes the terms "fair and impartial" as being similar to "fair and equitable" and contends that the proposal addresses the manner in which the Agency's training program will be applied rather than the establishment of the elements of the training program. Id. at 18.
The Agency contends that the Union's stated intention is inconsistent with the plain wording of Proposals 1 and 2 and that the proposals excessively interfere with the Agency's rights under section 7106(a)(2) to direct employees and to assign work. Agency Statement of Position at 2-4.
The Agency asserts that the plain wording and the intent of Proposals 1 and 2 would restrict the Agency's ability to make training assignments and would subject the Agency's determinations concerning the assignment of training to arbitral review. Agency Statement of Position at 3-4. The Agency contends that by requiring the Agency to "consider" employee requests for training, the proposal interjects the employee into the deliberative process concerning the assignment of work. Id. at 3. The Agency also contends that Proposals 1 and 2 do not concern conditions of employment because some of the training and information on training courses are unrelated to the official duties of employees or are "in no way connected to the work place." Id. at 4.
B. Analysis and Conclusions
1. The Proposals Concern Conditions of Employment
At the outset, we reject the Agency's contention that Proposals 1 and 2 would extend to "training which is in no way connected to the work place." Proposal 1 as written refers to nothing other than training that would relate to "better organizational or individual performance"--matters which are clearly related to the work place. Proposal 2 as written refers only to training courses and programs "of which [the Agency] is informed." The Agency does not state, nor is it apparent to us, that the Agency would normally be informed of training that "is in no way connected to the work place." Consequently, we reject the Agency's interpretation of the proposal as extending to "training which is in no way connected to the work place" because such interpretation is not consistent with the wording of the proposal.
A number of legal and regulatory provisions establish personnel policies and practices relating to the training of Federal employees. For example, under Chapter 41 of title 5 of the U.S. Code, Federal agencies are authorized and directed to provide for the training of employees. Training is defined as "instruction or education" in "fields which are or will be directly related to the performance by the employee of official duties for the Government, in order to increase the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties[.]" 5 U.S.C. § 4101(4). The term "official duties" is not defined in Chapter 41. However, the Office of Personnel Management (OPM), which is authorized by 5 U.S.C. § 4118 to issue regulations covering the administration and implementation of agency training programs, has defined "official duties" as "the authorized duties which the employee is presently doing or can be reasonably expected to do in the future. . . . The future duties may also be at the same or higher level and in a different job or occupation." Federal Personnel Manual (FPM) Chapter 410, Subchapter 1, 1-12.a.(9). Additionally, 5 U.S.C. § 2301(b)(7) provides that Federal personnel management should be implemented consistent with the principle that "[e]mployees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance."
Proposal 1 concerns training which relates to the performance by employees of their job requirements or which would result in better organizational or individual performance. Training which is for the purpose of increasing the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties or which would result in better organizational and individual performance relates to personnel policies and practices established pursuant to the above cited legal and regulatory authorities. Moreover, training which pertains to employees' performance of their job requirements or which would result in better organizational or individual performance clearly relates directly to the work situation of employees. Therefore, we conclude that the training contemplated by Proposal 1 concerns personnel policies, practices and working conditions within the meaning of section 7103(a)(14).
The Union acknowledges that the information referred to in Proposal 2 would include training which would afford employees promotion potential to better jobs within the bargaining unit. The fact that the proposal extends to training that would enhance employee opportunities for career advancement does not remove the proposal from the scope of conditions of employment. The stated objectives of Federal personnel management include enhancing employee opportunities for career advancement through training and establishing and maintaining a career system which will provide opportunities for advancement through training. FPM Chapter 250, Subchapter 1, 1-2.a.(8) and (9). We find that training for the purpose of enhancing employees' career advancement directly relates to the work situation of employees. Therefore, we conclude that Proposal 2 concerns personnel policies, practices and working conditions.
2. Proposal 1 Does Not Interfere with Management's Right To Direct Employees and To Assign Work
The Union states that the first disputed sentence of Proposal 1 is intended to recognize that the Agency retains the right to decide whether to grant training requests. The Union's statement of intent is consistent with the wording of the proposal and we adopt it for purposes of this decision. We reject the Agency's contention that the first disputed sentence interferes with its rights to direct employees and assign work. The sentence does not place any requirements, conditions or limitations on the Agency which would restrict its right to make decisions on training requests. We conclude, therefore, that the first disputed sentence of Proposal 1 is negotiable.
The second and third disputed sentences require the Agency to "consider" training requests, including training requests which would result in better organizational or individual performance, in accordance with existing law, regulation and Agency policy.
A requirement that an agency "consider" exercising its rights does not require the agency to exercise its rights. Therefore, proposals that require an agency to consider exercising its management rights in a particular manner do not interfere with those rights. See, for example, National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 563 (1988). Compare National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA No. 162, slip op. at 6-7 (1990) (the Authority held that "consider" preserves an agency's discretion to decide how to exercise its management rights while "take into account" does not because "consider" connotes that management will review specified factors but remains free to base its decision on grounds other than those factors whereas "take into account" connotes that management's decision will be based, at least in part, on the specified factors). In addition, because section 7106(a)(2) of the Statute requires an agency to exercise its rights "in accordance with applicable law," proposals which require that an agency exercise its management rights in a manner consistent with existing law and regulations do not interfere with those rights. See, for example, National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 156-57 (1982).
We reject the Agency's assertion that by requiring it to consider employee requests, the second and third disputed sentences of Proposal 1 interject the employee into the deliberative process concerning the assignment of work. In support of its assertion, the Agency cites 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) (Proposals 17-20). In Bureau of Engraving and Printing, the Authority held that "[a]llowing union participation on a committee whose work involves deliberations related to the exercise of management's rights would itself interfere with the agency's rights [under section 7106 of the Statute] by allowing the union to interject itself into the agency's deliberative process." Id. at 126. However, in contrast to the proposals in that case, the second and third disputed sentences of Proposal 1 merely require the Agency to consider employee requests for training. The sentences do not require participation by employees or the Union in the Agency's consideration of the requests.
In sum, we reject the Agency's contention that the second and third sentences of Proposal 1 interfere with its rights to direct employees and to assign work. As set forth above, the second and third sentences of Proposal 1 require the Agency only to consider employee requests for training in accordance with applicable laws and regulations. The second and third disputed sentences neither restrict the Agency's right to grant or deny requests nor allow employees to participate in the Agency's deliberations on such requests.
3. Proposal 2 Does Not Interfere with Management's Rights to Direct Employees and Assign Work
Proposal 2 requires the Agency to make training assignments in a "fair and impartial manner." The Union elaborates on what it intends to accomplish by the "fair and impartial" requirement. The Union states that it seeks to require the Agency to rely on "merit factors required by applicable law, rule or regulation" in making training assignments and to preclude reliance on "non-merit factors." As examples of "non-merit factors" the Union cites "favoritism, nepotism, illegal discrimination, and similar matters." Union Reply Brief at 5, 15-16.
Based on the Union's explanation, we interpret the "fair and impartial" wording in Proposal 2 as a requirement that the Agency make training assignments in a manner which is consistent with "merit factors required by applicable law, rule or regulation."
Agencies are required to adhere to "merit factors" in administering personnel programs. See, for example, 5 U.S.C. § 2301, 5 C.F.R. §§ 300.101-300.104, and 5 C.F.R. § 410.302. As noted above in connection with Proposal 1, proposals which require that an agency exercise its management rights in a manner consistent with law and regulation do not interfere with management rights. See, for example, National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 156-57 (1982). In addition, arbitral review of the exercise of a management right to determine whether the exercise complied with law or regulation is consistent with congressional intent concerning the functions which arbitrators perform under the Statute. National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181 (1988) (Proposal 4), reversed as to other matters sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 873 F.2d 1473 (D.C. Cir. 1989).
Insofar as Proposal 2 requires training assignments to be made in accordance with the "merit factors" which are prescribed by law and regulation, the proposal does not interfere with management's rights. We make no findings as to whether the Union's interpretation of what constitutes "non-merit factors" is correct and we do not adopt the Union's interpretation for purposes of this decision. Because the Union does not enumerate specific "non-merit factors" in the proposal itself, an arbitrator would be free to interpret and apply the proposal consistent with law and regulation.
Proposals 1 and 2 concern conditions of employment and do not interfere with management's rights to direct employees and assign work. We find that Proposals 1 and 2 are within the duty to bargain.
III. Proposal 3
Section 31.06 (a) The Union and the Employer agree to work closely to encourage all employees to become aware of counseling, training, and referral programs available for conditions, such as alcoholism, drug abuse/dependency, and mental health problems. The Employer will provide employees with alcohol and drug abuse/dependency problems an opportunity to receive the appropriate services described in this section.
The Employer agrees:
(4) that where an employee voluntarily requests professional counseling or treatment, the Employer shall identify and discuss with the employee alternative counseling arrangements, and assist the employee, through the provision of information, in selecting the most appropriate counseling arrangement. Voluntary requests for counseling shall be kept in the strictest confidence between the requesting employee and the office responsible for working with the employee in making arrangements for counseling services. . . .
A. Position of the Parties
The Union states that Proposal 3 is intended to provide a "troubled employee" with information relevant to his or her job security. The Union states that Proposal 3 also is intended to protect "the employee's confidentiality which in turn, protects the integrity of the program by avoiding turning away employees who fear embarrassment and humiliation." Union Petition at 2-3.
The Union argues that Proposal 3 is intended to stress strict adherence by the Agency to confidentiality requirements placed on the Agency by Office of Personnel Management (OPM) regulations. Union Reply Brief at 6. The Union contends that the proposal does not "go beyond law and regulation by further restricting access to records or other information." Union Reply Brief at 20. Rather, the proposal is intended to "enhance the observance of those requirements by clear and strong language." Id.
The Agency argues that Proposal 3 is nonnegotiable because it does not concern conditions of employment and is contrary to law and Government-wide regulation. The Agency argues that this proposal, like Proposal 3 in American Federation of State, County, and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983), "would restrict management's access to its own Employee Assistance Program (EAP) files, and does not concern the conditions of employment of bargaining unit employees." Agency Statement of Position at 5. The Agency argues that this proposal "does not attempt to limit management's consideration or use of the information in the files, only its access to them." Id.
The Agency states that although the meaning of the term "strictest confidence" is not clear, the proposal intends to prohibit release of any information concerning voluntary requests for counseling. The Agency contends that such prohibition conflicts with provisions of law (Pub. L. No. 93-282)(1) and regulation (42 C.F.R., Chapter 1, Subchapter A, Part 2). According to the Agency, that law and regulation "provide for" release of information concerning drug and alcohol counseling in circumstances such as medical emergencies or in accordance with a court order. Agency Statement of Position at 5-6.
B. Analysis and Conclusion
1. The Proposal Concerns Conditions of Employment
Proposals that would limit access to agency files do not concern conditions of employment where no demonstration is made as to how such restrictions directly relate to employees' employment relationship or work situation. See, for example, Library of Congress, 11 FLRA 632. However, where "it is clear that the information which is the subject of the [proposal] concerns individual employees and that the nature of the information is such that it has a direct bearing on matters affecting their employment," a proposal that restricts access to files or information concerns conditions of employment. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1074-75 (1988), remanded as to other matters sub nom. Department of the Army, Aberdeen Proving Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989).
Based on the wording of the proposal and the Union's statement of intent, we conclude that Proposal 3 is intended to protect employees from the release of confidential information concerning their drug and alcohol abuse problems. Among other things, the proposal is intended to encourage employee use of Agency employee assistance programs relating to drug and alcohol abuse. The proposal would encourage employee use of these programs by protecting the employees from the negative effects which could result from public knowledge of participation in the programs. One of the specific considerations underlying agency employee assistance programs relating to drug and alcohol abuse is the need to maintain employee productivity in order to accomplish the agency's mission. See Federal Personnel
Manual (FPM) Supplement 792-2, Subchapter S1. Additionally, it is recognized that alcoholism and drug abuse may contribute to performance problems which may lead to disciplinary action. See FPM Supplement 792-2, Subchapter S5.
The proposal concerns employee participation in programs which are designed to promote employees' usefulness and productivity and to remedy performance problems which are potential grounds for disciplinary action. We conclude, therefore, that the information about which the proposal is concerned has a direct relationship to employees' employment relationship or work situation. Accordingly, we reject the Agency's contention that the proposal does not concern conditions of employment.
2. The Proposal Does Not Conflict With Law and Government-wide Regulation
The Union states that the proposal is intended to reflect and require strict adherence to existing legal and regulatory safeguards concerning the confidentiality of employee participation in drug and alcohol abuse programs and that it is not intended to establish restrictions beyond those contained in law and regulation. Union Reply Brief at 6, 20-21. The Union's statement of intent is consistent with the wording of the proposal and is adopted for purposes of this decision. Based on this interpretation of the proposal, we reject the Agency's assertion that the proposal "would . . . prohibit release of information in situations where such release is provided for by law and regulation." Agency Statement of Position at 6.
In view of this conclusion, it is not necessary for us to determine the extent to which the Agency may have discretion under law and regulation with regard to the release of information relating to drug and alcohol abuse counseling and the extent to which that discretion may be negotiable.(2) Compare National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986), enforced sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (the Authority found that an agency must negotiate concerning the exercise of the discretion that it possessed under law and regulation to pay travel and per diem). Also, it is unnecessary for us to determine whether the regulations relied upon by the Agency are Government-wide regulations within the meaning of section 7117(a) of the Statute.
We conclude that Proposal 3 concerns conditions of employment and we reject the Agency's assertion that it conflicts with law or Government-wide regulation. We find that Proposal 3 is within the duty to bargain.
The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning Proposals 1, 2 and 3.(3)
(If blank, the decision does not have footnotes.)
1. Although the Agency does not cite a particular portion of that law (the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act Amendments of 1974), it appears, based on the Agency's arguments, that the Agency is referring to provisions that are now codified at 42 U.S.C. §§ 290dd-3 and 290ee-3.
2. See, for example, 42 C.F.R. § 2.3(b).
3. In finding that these proposals are within the duty to bargain, we make no judgment as to their merits.