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The decision of the Authority follows:
39 FLRA No. 48
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENGINEERING COMMAND
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns five proposals.
We dismiss the petition for review concerning Proposal 1 because there is insufficient information in the record on which to make a negotiability determination. Proposals 2 and 5, which establish procedures governing employee eligibility for certain training programs, are negotiable. Proposal 3, which concerns equal employment opportunity (EEO) orientation seminars, also is within the duty to bargain.
II. Preliminary Matter
Although the Union petitioned for review of Proposal 4, the Agency asserts that it did not allege that Proposal 4 is nonnegotiable. Rather, the Agency states that "[m]anagement's written response to the union, on this proposal, was a counter-proposal and not a declaration of nonnegotiability." Statement of Position at 11-12.
Under section 2424.1 of the Authority's regulations, the Authority will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. Here, the Agency's assertion that it did not declare Proposal 4 to be nonnegotiable is supported by the record. Accordingly, we will dismiss the petition for review as to Proposal 4 without prejudice to the Union's right to file an appeal if the conditions governing review are met. See National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 815 n. (1990).
III. Proposal 1
The employer agrees to allow all employees to attend a stress management course on administrative leave. The purpose of this program is to increase the productivity of all employees and to prevent employee problems from reaching the point of severity that requires the use of the employee assistance and rehabilitation program. The [U]nion will be given an opportunity to review and comment on the selected stress management course prior to its use by employees.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 1 is nonnegotiable because it interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that Proposal 1 would require it to allow all bargaining unit employees to use administrative leave to attend a stress management seminar for an undetermined amount of time. The Agency asserts that under Proposal 1, "management would be precluded from requiring employees to perform regular work assignments during the time they would be receiving training on the management of stress." Statement of Position at 1. The Agency also contends that the Authority has held consistently that proposals requiring an agency to provide training are outside the duty to bargain.
The Agency rejects the Union's allegation that Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3), asserting that the Union's claim is "merely speculative." Id. at 3. The Agency asserts that the Union has not provided any "information on how the exercise of management's rights produces the stress, the level of the stress, or how the stress results in an adverse impact on the employees." Id. at 4. Further, the Agency contends that "[e]ven if the Authority were to find that an adverse impact is present, the [U]nion's proposal could not be considered an appropriate arrangement." Id.
2. The Union
The Union alleges that Proposal 1 is an appropriate arrangement under section 7106(b)(3) of the Statute because it "addresses the adverse effect of stress." Petition for Review at 2. According to the Union, "[s]ome stress will inevitably follow from the customary exercise of management rights." Id.
B. Analysis and Conclusions
The Authority has consistently held that an agency's right to assign work includes the right to assign employees to training during duty hours and the right to determine what type of training is appropriate. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1053-56 (1990) (Proposal 1) (proposal requiring agency to authorize attendance of five employees at health and safety training during duty time held to directly interfere with right to assign work). On the other hand, proposals which obligate an agency only to provide information to employees are negotiable if the information concerns conditions of employment and is otherwise disclosable. American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA No. 45, slip op. at 5 (1991) (DMA).
The Union provided no statement of its intent regarding Proposal 1 and we are unable to determine from the plain wording of the proposal whether it would require the Agency only to provide information to employees or whether it would encompass instruction to, or training of, employees on the management of stress in their work. We are, therefore, unable to determine whether the proposal is negotiable under DMA, 39 FLRA No. 45, slip op. at 3-11.
The parties bear the burden of creating a record on which a negotiability determination can be made. See National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet this burden acts at its peril. Accordingly, as we are unable to determine whether Proposal 1 is negotiable, we will dismiss the petition for review as to it. See also National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 747 (1990).
IV. Proposals 2 and 5
All employees who have been functioning out of direct practice of their occupational specialty (for example, employee functioning in an administrative/managerial capacity) for a period of five (5) years or more shall be eligible for 120 hours of agency funded training within the first year of their return to direct practice of their occupational specialty. All travel and per diem expenses shall be paid for by the employer.
Each employee of GS-12 or higher shall be eligible for one (1) academic year (approximately 12 months duration) of full time study for each seven (7) years of employment with the Northern Division. The cost of this schooling shall be funded completely by the employer including all travel and per diem expenses, and the cost of all books, laboratory supplies, etc[.], necessary to properly attend the schooling. The [U]nion shall receive a copy of all sabbatical programs for review and comment.
All employees shall be informed yearly of the program and be given instructions on how to apply. The employer shall nominate employees from among the applicants. The [U]nion shall receive a copy of all applications, nominations, and rejections. The employer agrees to advise the [U]nion of any changes to the program.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposals 2 and 5 are nonnegotiable because they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring management to establish training programs. According to the Agency, Proposal 2 "would obligate management to provide and pay for the type of training which the employee determines is necessary." Statement of Position at 6. Proposal 5, the Agency argues, "requires management to establish a program to provide extended training to employees at or above the GS-12 level." Id. at 12. The Agency also asserts that the proposals directly interfere with its right to determine its budget under section 7106(a)(1). The Agency notes that both proposals would have "a substantial impact" on its budget. Id. at 7, 14.
The Agency contends further that Proposals 2 and 5 violate "5 U.S.C. º 4101(4) which provides that training must be in fields which are or will be directly related to the performance of official duties." Id. at 7. Additionally, the Agency argues that Proposal 5 requires that "employees would be eligible for one year of training for each seven years of employment with [the Agency]" in violation of 5 U.S.C. º 4106(a)(3). Id. at 12-13. Finally, the Agency asserts that Proposal 5 "violates 5 U.S.C. º 4107(c) which prohibits the assignment of training for the purpose of providing an opportunity to obtain an academic degree." Id. at 16.
2. The Union
The Union asserts that Proposals 2 and 5 provide procedures, within the meaning of section 7106(b)(2) of the Statute, to be followed if management elects to establish and utilize such programs. The Union also asserts that "[n]o part of [Proposal 5] actually requires management to provide the training to any given employee." Reply Brief at 1.
B. Analysis and Conclusions
Proposals 2 and 5 establish procedures that would take effect if the Agency chose to initiate refresher training and sabbaticals. As plainly worded, Proposals 2 and 5 establish employee eligibility for training. Consistent with the Union's statement of intent, nothing in the plain wording of the proposals would require the Agency to establish a training program, to provide training to its employees, or to select any employees for training. Further, Proposals 2 and 5 do not require the Agency to obligate any funds for training programs. As Proposals 2 and 5 do not require that the Agency institute either refresher training or a sabbatical program, the proposals do not directly interfere with any of management's rights under section 7106 of the Statute and do not conflict with 5 U.S.C. ºº 4101(4), 4106(a)(3), or 4107(c). See American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 61 (1990) (proposal requiring agency to consider requested training does not directly interfere with right to direct employees and assign work because requirement that an agency consider exercising its rights does not require the agency to exercise its rights).
With regard to Proposal 2, the Agency asserted that "management would have no discretion as to which employees might need or benefit from such training." Statement of Position at 6. We disagree. Although Proposals 2 and 5 set forth eligibility requirements for refresher training and sabbatical programs, they would not prohibit management, if it established such programs, from selecting employees who do not meet the eligibility requirements provided in the proposals.
The Agency also asserts that Proposals 2 and 5 require management to provide a specific amount of training to employees. The Authority has held, in this regard, that proposals which prescribe the duration of training directly interfere with management's right to assign work. See, for example, Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 486-87 (1987) (Proposal 1), enforced as to other matters sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990).
In this case, however, the Agency is not required to establish the refresher training and sabbatical programs for which employee eligibility is set forth in the disputed proposals. Consequently, as Proposals 2 and 5 do not mandate the establishment of the programs identified therein, and do not require the selection of unit employees for such programs even if they are established by the Agency, we conclude that the proposals do not prescribe the duration of training.
We conclude that Proposals 2 and 5 constitute procedures which would take effect only if the Agency chose to establish refresher training and sabbatical programs. We note that consistent with the plain wording of the proposals as well as the Union's interpretation of the proposals, on which we rely in reaching our decision, it is unclear whether the proposals have practical effects. As stated previously, the proposals merely set forth eligibility for programs which are not now established and which are not required to be established by the proposals. Based on the record before us, however, as there is no basis on which to conclude that the proposals are inconsistent with law, rule, or regulation, we conclude that Proposals 2 and 5 are negotiable under section 7106(b)(2) of the Statute.
V. Proposal 3
The employer agrees that EEO problems can lead to reduced productivity and that therefore any training that reduces EEO type problems will have for its effect increased productivity. In consideration of that, the employer agrees to make available an in-house seminar. The seminar will illuminate the various resources of the Northern Division EEO department of which a concerned employee who has the perception of discrimination may avail himself or herself. The attendees shall be on official time. Two [U]nion designated employees shall be permitted to attend the seminar. The [U]nion shall be given the opportunity to review and comment on the seminar before its use. The following groups shall be permitted to attend:
(a) all employees over 39 years of age
(b) all female employees
(c) all non-white employees.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 3 is nonnegotiable because the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that Proposal 3 requires it "to conduct a seminar, providing training on certain specified issues related to the [equal employment opportunity] program[.]" Statement of Position at 8. According to the Agency, "employees would attend this seminar during official duty time." Id. at 9. Further, the Agency contends that Proposal 3 "specifies the content of the training[.]" Id. Finally, the Agency rejects the Union's allegation that Proposal 3 is an appropriate arrangement within the meaning of section 7106(b)(3). The Agency contends that the Union's allegation is "merely speculative." Id. at 10.
2. The Union
The Union contends that Proposal 3 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because "the proposal addresses the adverse effect of reduced morale that will result if managers exercise rights in a discriminatory manner." Petition for Review at 3. The Union asserts that "[e]xperience indicates that discrimination problems will arise in the most exemplary of organizations." Id.
B. Analysis and Conclusions
Proposal 3 requires that the Agency provide employees information about the resources of the Agency's equal employment opportunity (EEO) department in an in-house seminar on official time.
We note, at the outset, that the Agency does not dispute the negotiability of Proposal 3 on the basis that it requires that the seminar be made available to certain specified groups of employees. The Agency states, in this regard, that it "presume[s] that the . . . proposal is not intended to prohibit" other employees from attending the seminar. Statement of Position at 9. Consistent with the Agency's statement, and in the absence of any statement from the Union to the contrary, we conclude that this portion of Proposal 3 merely identifies those employees, included in the classes protected by relevant statutory and regulatory provisions, to whom the information regarding the Agency's EEO resources would be particularly relevant and whose ability to attend the seminars should be ensured. We do not, in this regard, interpret the proposal as in any way denying access to any employee who wishes to attend the seminar.
As noted in connection with Proposal 1, the Authority recently has held that proposals which obligate an agency only to provide information to employees are negotiable provided the information concerns conditions of employment and is otherwise disclosable. DMA, 39 FLRA No. 45, slip op. at 3-11. The plain wording of Proposal 3 states that the purpose of the seminar is to "illuminate the various resources of [the Agency's] EEO department . . . ." There is nothing in the plain wording of Proposal 3, or in the record before us, which suggests that the seminar is intended to encompass anything other than the provision of information concerning the Agency's EEO resources. Moreover, such information clearly concerns conditions of employment and there is no assertion, or other basis on which to conclude, that the information is not disclosable. Consequently, we conclude that, consistent with DMA, Proposal 3 is negotiable.
The petition for review of Proposal 1 is dismissed. Additionally, the petition for review of Proposal 4 is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and the Union chooses to file such an appeal. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposals 2, 3, and 5.(*)
(If blank, the decision does not have footnotes.)
*/ In finding Proposals 2, 3, and 5 to be negotiable, we make no judgment as to their merits.