12:0270(62)NG - NFFE Local 541 and VA Hospital, Long Beach, CA -- 1983 FLRAdec NG
[ v12 p270 ]
The decision of the Authority follows:
12 FLRA No. 62 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 541 Union and VETERANS ADMINISTRATION HOSPITAL, LONG BEACH, CALIFORNIA Agency Case No. O-NG-275 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a single Union proposal. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal Article XIII - Incentive Awards A. The employer will develop an incentive awards committee, made up of equal members from management and the Union. It will be the responsibility of this committee to design, develop, and administer the Incentive Awards Program for this Medical Center. B. The committee will encourage supervisors at all levels to utilize the Incentive Awards Program to recognize employees they consider deserving such recognition. The committee will investigate services which do not participate in the program. C. The committee will review all nominations for incentive awards and through open deliberations select those nominees they feel deserving of the award. The committee will forward these names to the Director for final approval. Should the Director disapprove any of the committee recommendations, the recommendation will be returned to the committee with a complete explanation for the disapproval. D. It will be the committee's responsibility to insure that the Incentive Awards Program is administered equally among all employees of the Medical Center. E. All employees who are nominated for an Incentive Award, will receive a letter, informing them of their nomination, and thanking them for outstanding contributions. This letter will be issued by the committee and signed by the chairperson. F. The provisions of this article do not preclude Service Chiefs from establishing an internal recognition program for employees of their service. Questions Before the Authority The questions are whether the Union's proposal is outside the duty to bargain because it extends to nonunit employees or, in the alternative, whether it is inconsistent with law or Government-wide regulation. Opinion Conclusion and Order: The Union's proposal extends to nonunit employees and, to that extent, it is not within the Agency's duty to bargain under the Statute. To the extent the proposal would apply to unit employees, it is within the duty to bargain since it is not inconsistent with law or Government-wide regulation. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on this proposal to the extent that it applies to unit employees. /1/ Reasons: The Union represents only one of several bargaining units at the Medical Center and states its intent that the proposal be applied only to the unit it represents. The language of the proposal, however, would establish an incentive awards committee to administer the incentive awards program for the entire Medical Center, which would include employees who are not within the unit represented by the Union (see, in particular, sections A and D of the proposal). It is, of course, clear that an agency has no obligation to bargain with a union over conditions of employment of employees not in the bargaining unit represented by that union. Service Employees' International Union, AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA No. 81 (1982). However, insofar as the proposal herein pertains to the conditions of employment of employees represented by the Union, which could be within the duty to bargain, it is necessary to consider further whether the proposal is consistent with applicable law and regulations. The proposal would require the establishment of a joint labor-management committee to "design, develop, and administer" an incentive awards program. As to the granting of incentive awards under such a program, the committee would have the limited authority to make recommendations subject to final approval by the Director of the Medical Center. The Agency concedes that the establishment of a joint labor-management committee to administer the incentive awards program and make recommendations as to the granting of such awards is a matter which is within its discretion under applicable law and regulation, but contends that such discretion is not subject to the duty to bargain. To the extent that an agency has discretion with respect to a matter affecting the conditions of employment of its employees, that matter is within the duty to bargain. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1981). See also American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477; American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910; Congressional Research Employees Association; and Law Library of Congress United Association of Employees and Library of Congress, Washington, D.C.; American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, Washington, D.C., 7 FLRA No. 89 (1982), enforced sub nom. Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983). Therefore, the Authority finds, contrary to the Agency, that the disputed proposal is within the scope of bargaining. The Agency also contends that the proposal would require it to negotiate on the "methods" and "means" of performing its work, matters which are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. /2/ Contrary to the Agency, the proposal would not require it to negotiate as to the method it would use to perform its work, i.e., the way in which it provides medical services to the nation's veterans. Cf. American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA No. 55 (1981) (flexible work schedule not a "method" of performing work). Nor does the proposal concern the means, i.e., the "tools," "devices," or "instrumentalities" by which the Agency will do its work. See American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA No. 52 (1981) (firearms held to be a "means" of performing work). Rather, the proposal concerns the procedures management will follow in giving incentive awards to employees. In this regard, the proposal is not materially distinguishable from Union Proposal 6 in American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA No. 34 (1981), wherein the Authority held that a proposal to establish a committee to make recommendations regarding the operation of an agency's performance appraisal system was negotiable as a procedure. Thus, for the reasons set forth in Federal Deposit Insurance Corporation, the proposal at issue herein concerns a procedure and is within the duty to bargain. The remaining argument of the Agency is that by requiring it to negotiate regarding Union membership on the committee and, thus, concerning the assignment of unit employees to tasks associated with the committee, the proposal is inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute. In support of this contention, the Agency cites the Authority's decision in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 622-3 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982), wherein the Authority determined that a proposal requiring the agency to select at least half of its Equal Employment Opportunity counselors from among union nominees directly interfered with the agency's right to assign work since it determined which employee should be assigned those duties. However, the proposal in the instant case is distinguishable. In particular, the duties associated with being an Equal Employment Opportunity counselor, as in Wright-Patterson, are official duty assignments prescribed under regulation. /3/ In contrast, under the proposal herein, participation of Union representatives on an incentive awards committee would not concern official, prescribed duties. Instead, consistent with the purposes of the Statute, the proposal would authorize a procedure for union participation in the administration of a program directly concerning a condition of employment and would not involve the assignment of "work" within the meaning of section 7106(a)(2)(B) of the Statute. /4/ Of course, a proposal which would provide for Union representatives on such a committee might under different circumstances affect the assignment of work to those employees. In this regard, a proposal which would have established an absolute prohibition against the assignment of work to employees when such assignment would have conflicted with the employees' participation on a management review study was held to directly interfere with management's right to assign work under section 7106(a)(2)(B). National Association of Government Employees, Local R14-89 and Headquarters, U.S. Army Air Defense Center and Fort Bliss, Texas, 9 FLRA No. 145 (1982) (Union Proposal 2). However, the proposal herein does not concern what accommodations, if any, might be necessary in the scheduling of work. /5/ Issued, Washington, D.C., July 7, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In deciding that the proposal is within the duty to bargain to the extent it applies to unit employees, the Authority makes no judgment as to its merits. /2/ Section 7106(b)(1) provides as follows: Sec. 7106. Management rights . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, . . . on the technology, methods, and means of performing work(.) /3/ As to the Equal Employment Opportunity Counselors, FPM Letter No. 713-37 (May 20, 1977) provides, in relevant part, as follows: 3. Official EEO duties and responsibilities assigned to employees on a collateral basis must be described in the official position description that covers the position the employee occupies(.) . . . . a. Definition. EEO collateral assignments are official duties and responsibilities assigned to any employee in addition to the primary duties and responsibilities of the position the employee occupies. /4/ Cf. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA No. 34 (1981) (Union Proposal 8) (proposal concerning official time for negotiable labor-management relations activity is within the duty to bargain under section 7131(d) of the Statute). /5/ With regard to such "accommodations," see American Federation of Government Employees, AFL-CIO, New Jersey Council of District Office Locals and Department of Health and Human Services, Social Security Administration District Office Operations, 7 FLRA No. 60 (1981).