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The decision of the Authority follows:
40 FLRA No. 101
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). The case concerns the negotiability of two proposals addressing employee requests for accommodations because of medical conditions.
For the following reasons, we find that Proposal 1, which requires that the medical information be submitted first to the Agency's Medical Review Officer or another similarly qualified physician for review, is negotiable. We find that Proposal 2, which requires that certain work assignments be set forth in writing, is nonnegotiable because it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
II. Preliminary Matter
The Agency contends that the Union's petition for review should be dismissed because it does not include an explicit statement of the meaning attributed to the Union's proposals. The Union asserts that the Agency's contention is "groundless" because the Union's petition for review includes an explicit statement of intent. Reply Brief at 3.
We reject the Agency's contention that the Union's petition for review is deficient. The Union has provided a satisfactory statement of meaning concerning the proposals in dispute. See Attachment A to Petition for Review. Accordingly, the Agency's request that the petition for review be dismissed is denied. See American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1071 (1990).
III. Proposal 1
The information collected pursuant to any request for medical information shall go, directly and without interception, to the Medical Review Officer of the Agency or to such other similarly qualified agency-certified physician identified by the Agency in advance.
A. Positions of the Parties
1. The Agency
The Agency notes that the parties' dispute arose during impact and implementation bargaining over a new Agency policy setting forth the requirements for employees seeking an accommodation based on their medical conditions. In the Agency's view, the proposal requires the Agency's Medical Review Officer or another physician authorized by the Agency not only to review medical information submitted by an employee but also to rule on a request for accommodation. The Agency contends that the proposal would preclude other Agency officials from reviewing medical information or making determinations concerning employee requests.
Based on its interpretation of the proposal, the Agency argues that it is inconsistent with two portions of Federal Personnel Manual (FPM) Chapter 339, subchapter 4. The first portion states, regarding medical accommodations, that "[d]ecisions about employability are management decisions." The second portion states that "agency officials may review any medical documentation which is submitted or obtained in connection with an employment decision." The Agency also asserts that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it would preclude management from assigning the task of reviewing medical information to anyone but the Medical Review Officer or another Agency-approved physician.
The Agency argues that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. In the Agency's view, the proposal is distinguishable from Provision 1, which the Authority found to be negotiable in National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834 (1990) (NAFEC, Western Division), because the proposal in this case does "not address potential accommodation of an employee's medical condition[.]" Statement of Position at 9. The Agency argues that Proposal 1 "assign[s] specific duties and responsibilities to various management officials and preclude[s] other management officials from making certain decisions." Id.
2. The Union
The Union argues that Proposal 1 does not require the Agency's Medical Review Officer or other qualified physician to "make the actual determination on the scope, duration, or terms of the accommodation." Reply Brief at 5. The Union contends that the proposal merely requires that medical personnel make an "initial assessment regarding the medical condition" of the employee based on the medical information submitted. Id. The Union argues that "how the Agency actually uses" the medical assessment is a management decision and that the official who decides whether to grant an accommodation is "free to base that decision in whole or in part on the recommendations and assessment" of the Agency's medical personnel. Id. at 5-6. The Union also asserts, in this regard, that although the proposal "would preclude the Agency from assigning a supervisor the task of direct evaluation of the medical information[,]" the proposal would not "preclude the Agency's supervisors from acting" on the medical personnel's assessment of the medical information. Id. at 8-9. Finally, the Union contends that the proposal constitutes an appropriate arrangement "designed to protect employees from the adverse effects of the Agency's selection of the Agency personnel responsible for assessing the medical efficacy of employees' requests for accommodation." Id. at 11.
B. Analysis and Conclusions
The plain wording of Proposal 1 states that medical information provided by an employee seeking a medical accommodation "shall go, directly and without interception," to the Agency's medical personnel.
The Union's interpretation of the proposal is not clear. The Union asserts that the proposal does not require the Agency's medical personnel to make the decision on an employee's request for medical accommodation. The Union states, in this regard, that the medical personnel are merely to make an "initial assessment" of the employee's submission and that management retains the right to designate who will make a final determination on an employee's request for medical accommodation. Reply Brief at 5. The Union also states, however, that it proposes that the Agency's decision on a request for medical accommodation "not be based upon direct review of the medical data by unqualified Management personnel." Id. at 6.
The proposal does not address review of medical information subsequent to review by medical personnel. Accordingly, to the extent that the latter Union statement is intended to interpret the proposal as prohibiting Agency officials other than medical personnel from reviewing medical documentation, the statement is inconsistent with the plain wording of the proposal. We do not base a negotiability determination on a statement of intent which is inconsistent with a proposal's plain wording. For example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366, 1373 (1991).
Based on the plain wording of Proposal 1 and the Union's statement that the proposal encompasses an "initial assessment" of medical information, we reject the Agency's argument that the proposal directly interferes with the Agency's right to assign work, and is inconsistent with FPM Chapter 339, because it would preclude the Agency "from assigning to a supervisor the task of evaluating medical information, a duty a supervisor must perform when making determinations on the assignment of work." Statement of Position at 7. Instead, Proposal 1 would only require the Agency to send the medical information provided by an employee seeking an accommodation to medical personnel before sending it to other management officials. The proposal would not, in any way, restrict or limit the Agency's designation of the official or officials to make decisions on requests for accommodation. Compare American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 752 (1990) (Aberdeen) (designating the official responsible for tasks associated with exercising the discretion to increase the range of awards interferes with the agency's right to assign work).
We also reject the Agency's argument that the proposal is inconsistent with FPM Chapter 339, subchapter 4 because it would prohibit Agency officials, other than medical personnel, from examining medical documentation after it has been reviewed by medical personnel. The proposal requires only that medical documentation "go, directly and without interception" to the Agency's medical personnel. That is, the proposal addresses only the initial submission of medical documentation to Agency officials. As stated previously, the proposal does not, implicitly or explicitly, address review of medical documentation after its initial submission. Accordingly, as the proposal does not prohibit review of medical information by Agency officials other than medical personnel, it does not conflict with FPM Chapter 339.
For the foregoing reasons, we conclude that Proposal 1 does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and is not inconsistent with FPM Chapter 339. Accordingly, the proposal is negotiable.
IV. Proposal 2
Until a determination can be made through the Agency's Medical Review Officer or other qualified certified physician, the employee requesting accommodation because of medical conditions shall be either (a) permitted to take sick leave or leave without pay or (b) required to resume full duties pursuant to a written letter, signed and certified by the employee's first-line supervisor, in accordance with the general provisions outlined in the attached form letter.
Proposed Form Letter
To: PPQ Officer
Re: Request for Accommodation Because of Medical Conditions
This will certify that, notwithstanding your request for accommodation because of medical conditions, I have ordered you to report to duty and assume full workload responsibilities until the Agency's Medical Review Officer has completed his or her review of the medical information furnished the Agency and has made the appropriate determination or recommendation based on such data. This will also certify I have ordered you to resume full workload responsibilities in the interim without the benefit of the Medical Review Officer's review of your medical data.
I affirm that, by reporting to work as I have ordered, you will in no way be limiting your right to seek remedy against the federal government or government employees for any injury or illness you may incur as a result of complying with my order to report to work.
Signed and certified,
A. Positions of the Parties
The Agency argues that, like Proposal 1, Proposal 2: (1) is inconsistent with FPM Chapter 339; (2) interferes with its right to assign work; and (3) is not an appropriate arrangement. Specifically, the Agency asserts that Proposal 2 would require the Agency "to make decisions [about assigning employees] without benefit of critical information which may impact on those decisions--medical information." Statement of Position at 8. The Agency argues also that the proposal interferes with its right to assign work because it would assign specific tasks to specific management officials.
The Union contends that Proposal 2 merely requires that, if the Agency decides to assign an employee normal duties while awaiting a decision whether to grant the employee a medical accommodation, that assignment should be "memorialized in a letter" which recognizes that the Agency assumes "full responsibility for any injury or illness occurring as a result of the order to report to work." Reply Brief at 9.
B. Analysis and Conclusions
1. Right to Assign Work
Consistent with the parties' arguments, it is clear that Proposals 1 and 2 are to be read together. As such, based on our analysis and conclusions regarding Proposal 1, we reject the Agency's argument that Proposal 2 interferes with its right to assign work because the proposal would require the Agency to make decisions regarding requests for accommodation without the benefit of medical information submitted by the employee. Instead, pursuant to Proposal 1, such medical information could be reviewed by Agency officials other than medical personnel and, in addition, the Agency's discretion to designate officials to make decisions regarding employee requests is unfettered. We note, in this regard, that following an employee request for medical accommodation, Proposal 2 applies only "[u]ntil a determination can be made through the Agency's Medical Review Officer or other qualified certified physician[.]" Consistent with our discussion of Proposal 1, nothing in Proposal 2 requires a decision on a request for accommodation to be made by such medical personnel.
The Agency's sole remaining objection to Proposal 2 is that it "assigns specific tasks to specific management officials[.]" Statement of Position at 8.(1) Although the Agency does not elaborate on its argument, we assume, for the purposes of this decision, that the Agency objects to the requirement that the affected employee's first-line supervisor sign and issue the letter.
With respect to the latter point, the proposal clearly requires that the form be signed by "the employee's first-line supervisor[.]" Moreover, although the Union refers generally to a decision by "management" to require affected employees to perform work, the Union nowhere states, or indicates, that the proposal would apply in any manner inconsistent with its plain wording. Reply Brief at 9-10. Accordingly, we conclude that the proposal would require the Agency to assign first-line supervisors the task of signing and issuing the proposed forms to affected employees. As such, and as the Agency has objected to the proposal on this basis, we conclude further that the proposal directly interferes with the Agency's right to assign work. See Aberdeen, 38 FLRA at 752-53; National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 482-83 (1990), petition for review filed as to other matters sub nom. United States Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. Jan. 24, 1991) (portion of proposal designating specific agency office as responsible for certain activity held to directly interfere with right to assign work). Compare Aberdeen, 38 FLRA at 753 n.2 (Authority contrasted portions of proposal to which the agency did not object with portion found to directly interfere with right to assign work); Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 528-29 (1990) (Member Armendariz concurring in part and dissenting in part) (the Authority held that portion of proposal designating an agency official to perform a certain task did not directly interfere with right to assign work because proposal did not appear to be intended to limit agency's discretion and agency did not object to proposal on that basis).
We note, in this regard, that this "defect" in the proposal would appear to be easily cured by the Union. That is, if the Union does not intend to restrict the Agency's authority to designate officials to issue the proposed form letter, the Union could, among other things, delete the portion of the proposal referring specifically to the first-line supervisor. See Aberdeen, 38 FLRA at 754.
2. Appropriate Arrangement
The Union asserts that Proposal 2 constitutes an appropriate arrangement "designed to protect employees from the adverse effects of the Agency's selection of the Agency personnel responsible for assessing the medical efficacy of employees' requests for accommodation." Reply Brief at 11. This assertion clearly relates to the negotiability of Proposal 1. It does not, however, relate to Proposal 2.
Moreover, with respect to the proposal's direct interference with the Agency's right to assign work, the Union has not identified how the requirement that the proposed form letter be signed and issued by an affected employee's first-line supervisor benefits employees or, in the converse, how the signing and issuance of the form letter by another Agency official would adversely affect employees. The Union has not, therefore, provided a record sufficient for us to determine whether Proposal 2 constitutes a negotiable appropriate arrangement.
The parties bear the burden of creating a record on which we can base a negotiability determination. American Federation of Government Employees, Local 2031 and U.S. Department of Veterans Affairs Medical Center, Cincinnati, Ohio, 39 FLRA 1155, 1161 (1991). Because the record here does not contain information sufficient for us to determine whether Proposal 2 constitutes an appropriate arrangement, we are unable to make such a determination. Accordingly, as we have concluded that Proposal 2 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, we will dismiss the petition for review as to Proposal 2.
The Agency shall, upon request, or as otherwise agreed to by the parties, bargain over Proposal 1. The petition for review as to Proposal 2 is dismissed.(2)
(If blank, the decision does not have footnotes.)
1. In particular, the Agency does not object to the content of the proposed form or the requirement that a form be issued. With respect to the latter point, we note that it does not appear that the proposal would require the Agency to issue the form letter before assigning work to affected employees. Instead, the Union asserts that the proposal only would require "the fact [that] the employee has been ordered back to work" to be "memorialized in a letter." Reply Brief at 9.
2. In finding Proposal 1 to be negotiable, we make no judgment as to its merits.