72 FLRA No. 140

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2119

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF THE ARMY

JOINT MANUFACTURING

AND TECHNOLOGY CENTER

ROCK ISLAND, ILLINOIS

(Agency)

 

0‑NG‑3498

 

_____

 

DECISION AND ORDER

ON NEGOTIABILITY ISSUES

 

March 21, 2022

 

_____

 

Before the Authority:  Ernest DuBester,  Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Member Abbott concurring)

 

1. Statement of the Case

 

In this case, we consider the negotiability of several provisions disapproved by the Agency head under § 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute).[1]  We find that Provision 2, which restates an existing statutory right, is consistent with law, but Provisions 3 and 12 are contrary to management’s right to assign work under § 7106(a)(2)(B) of the Statute.[2]  The remaining provisions fail to meet the conditions for review of negotiability appeals; thus, we will not consider those provisions in this proceeding.  Accordingly, we dismiss the petition, in part, and order the Agency to rescind its disapproval of Provision 2.

 

1. Background

 

                After the parties executed a collective-bargaining agreement, the Agency head disapproved nineteen provisions under § 7114(c) of the Statute.[3]  Subsequently, the Union filed a petition for review of thirteen disapproved provisions.[4]  The Agency filed a statement of position (statement), and the Union filed a response to the Agency’s statement (response).  The Agency did not file a reply to the Union’s response.

 

During an Authority-conducted post‑petition conference (conference) with the parties, the Union confirmed that it had withdrawn Provision 13.[5]

 

1. Preliminary Matter:  We dismiss the petition as to Provisions 1 and 4 through 11, without prejudice.

    

While the petition was pending before the Authority, Executive Order 14,003[6] revoked Executive Orders 13,836,[7] 13,837,[8] and 13,839.[9]  In response to an Authority order, the Agency withdrew its allegation of nonnegotiability as to Provisions 1 and 4 through 11 because Executive Orders 13,836, 13,837, and 13,839 constituted the basis for disapproving those provisions.[10]  Additionally, the Agency withdrew its argument that Provision 2 is contrary to Executive Order 13,837.[11]  But, the Agency maintains that Provisions 2, 3, and 12 are nonnegotiable on other grounds.[12] 

 

Under § 7117 of the Statute and § 2424.2 of the Authority’s Regulations, the Authority will consider a petition for review only where there is a negotiability dispute.[13]  The Authority’s Regulations define a “[n]egotiability dispute” as a “disagreement between a[] [union] and an agency concerning the legality of a proposal or provision.”[14]

 

Because the Agency has withdrawn its allegation of nonnegotiability with respect to Provisions 1 and 4 through 11, there is no longer a disagreement between the parties as to the legality of those provisions.[15]  Accordingly, we dismiss the Union’s petition as to Provisions 1 and 4 through 11, without prejudice.[16]  As the Agency continues to assert that Provisions 2, 3, and 12 are contrary to law for reasons unrelated to Executive Orders 13,836, 13,837, and 13,839, we consider the petition as to those provisions.[17]

 

IV.          Provision 2 (Article 4, Section 1(a))

 

                A.            Wording

 

Except as otherwise provided by 5 USC Chapter 71, such right includes the right:  To act for the Union in the capacity of a representative and the right, in that capacity, to present the views of the Union to the Employer and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and;[18]

 

B.            Meaning

 

At the conference, the Union explained that the provision “merely reiterates” § 7102(1) of the Statute and reminds employees of their statutory rights.[19]  The Agency agreed with the Union’s explanation of the meaning and operation of the provision.[20]

 

C.            Analysis and Conclusion:  Provision 2 is consistent with law.

 

                In its statement, the Agency asserts that Provision 2 is contrary to the Department of Defense Appropriations Act of 2020 (the Act).[21]  Specifically, the Agency argues that the provision violates the Act’s prohibition on employees using official time to lobby Congress on any pending legislative or appropriations matters.[22] 

 

                The Authority has previously held that provisions which “merely reiterate existing statutory provisions” are negotiable.[23]  In addition, it is well established that provisions requiring management to “take action in accordance with law[]” are within the duty to bargain.[24] 

 

Based on the parties’ mutual understanding of the provision’s meaning and operation, Provision 2 incorporates a § 7102 statutory right into the collective‑bargaining agreement in order to increase employees’ awareness of that right.[25]  Although the Agency contends that Provision 2 would entitle employees to official time in violation of the Act, we find no support in the record for concluding that the provision affects official time.  Thus, contrary to the Agency’s argument, the provision would not permit employees to use official time for a purpose that would violate the Act.  Rather, the provision – by essentially quoting § 7102(1) – requires management to do nothing more than recognize an existing statutory standard with which it is already obligated to comply.[26] 

 

Accordingly, we find that the provision is negotiable, and we direct the Agency to rescind its disapproval of Provision 2.[27]

 

V.            Provisions 3 and 12

 

                A.            Wording

 

1.           Provision 3 (Article 4, Section 6)

 

It is the policy of the Employer that all employees shall be treated fairly and equitably in all respects.  Employees who feel they have not been treated fairly and equitably have a right to present their grievance to appropriate management officials for prompt consideration and an objective decision.[28]

 

1. Provision 12 (Article 36, Section 1(c))

 

The Employer agrees to provide training fairly and equitably to all employees.[29]

 

B.            Meaning

 

The parties agreed that the intent of Provision 3 is to make employees aware of their “right to be treated fairly and equitably” and their opportunity to seek recourse through the grievance procedure if they believe they have not been treated in such a manner.[30]  Under Provision 12, employees would “know that everyone gets trained equally and that no employee gets more training than others.”[31]

 

C.            Analysis and Conclusion:  Provisions 3 and 12 are contrary to law.

 

The Agency argues that Provisions 3 and 12 affect its right to assign work under § 7106(a)(2)(B) of the Statute.[32]  The right to assign work includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned.[33] 

 

In order for an agency to demonstrate that a proposal or provision is contrary to a § 7106(a) right, the agency must allege and demonstrate that the proposal or provision affects a management right.[34]  If the agency does so, then the Authority will examine any union argument that the proposal or provision falls within an exception set forth in § 7106(b) of the Statute.[35]  The Authority has previously held that terms such as          “fair and equitable,” “equitable,” and “equitably,” when used in proposals or provisions that govern the exercise of a management right, affect the exercise of that right.[36] 

 

By requiring management to take all actions “fairly and equitably” – including, but not limited to, determining which employees will perform various tasks and when they will perform them – Provision 3 would affect management’s right to assign work.[37]  Similarly, Provision 12 would affect management’s right to assign work by precluding management from training an employee without providing an equal amount of training to other employees.[38]  In its response, the Union argues that the terms “fairly and equitably” do not affect management’s right to assign work “because the [Agency] has the [s]tatutory duty to treat all employees in this regard without the words.”[39]  However, the Union’s claim is without merit because, as explained above, the Authority has specifically held that these terms affect the exercise of a management right when used in provisions governing the exercise of that right.[40]  Accordingly, we find that Provisions 3 and 12 affect management’s right to assign work.

 

Having found that Provisions 3 and 12 affect management’s right to assign work, we next consider whether the Union has argued that the provisions fall within an exception contained in § 7106(b) of the Statute.[41]  Based on our review of the record, the Union does not allege that the provisions concern permissive subjects of bargaining under § 7106(b)(1), are negotiable procedures under § 7106(b)(2), or constitute appropriate arrangements under § 7106(b)(3).  Accordingly, because Provisions 3 and 12 affect management’s right to assign work, and the Union has not argued that either provision falls within an exception to management’s rights under § 7106(b), Provisions 3 and 12 are contrary to management’s right to assign work under § 7106(a)(2)(B) of the Statute.[42] 

 

VI.          Order

 

                We direct the Agency to rescind its disapproval of Provision 2.  We dismiss, with prejudice, the petition for review as to Provisions 3 and 12.  We dismiss the petition with respect to Provisions 1 and 4 through 11, without prejudice to the Union’s right to refile. 

 

 

 

Member Abbott, concurring:

 

When parties restate statutory rights in a collective‑bargaining agreement, it is left for arbitrators, administrative law judges, and ultimately the Authority to determine whether that restatement creates a separate avenue by which to seek relief.  Specifically, is a claim that an agency violated a contractual provision                (a restated statutory right) an issue that precludes the union from filing a separate ULP claim?  Section 7116(d) of the Federal Service Labor­‑Management Relations Statute prohibits forum shopping and the litigation of the same issue or matter in multiple forums.1  We attempted to resolve this question in U.S. Department of the Navy, Navy Region Mid‑Atlantic, Norfolk, Va.               (Navy Mid-Atlantic), by expanding the standard through which the Authority applies § 7116(d).2  But that alone has not and will not prevent attempts to circumvent § 7116(d) by fragmenting the same or similar issues and matters into separate grievances that allege contractual violations of restated statutory rights and charges that allege a violation of the same statutory rights.3  Section 7116(d) and our decision in Navy Mid-Atlantic sought to avoid this fragmentation. 

 

Therefore, in my view, no purpose is served when parties insert language that merely restates or reiterates statutory rights in a collective bargaining agreement.