21:0652(83)NG - NTEU and Dept. of the Treasury, Bureau of Government Financial Operations -- 1986 FLRAdec NG
[ v21 p652 ]
The decision of the Authority follows:
21 FLRA No. 83 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, BUREAU OF GOVERNMENT FINANCIAL OPERATIONS Agency Case No. 0-NG-755 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is 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 one provision of a negotiated agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ II. Procedural Issue The Agency moved for dismissal of the Union's petition for review because the petition failed to include a precise statement of the provision's meaning as required by section 2424.4(a)(2) of the Authority's Rules and Regulations. While the original petition did not contain a statement of meaning, the Union subsequently amended its petition to include the requisite statement, thus curing the defect in accordance with established Authority practice. See, e.g., American Federation of Government Employees, Local 2578, AFL-CIO and General Services Administration, National Archives and Records Service, 12 FLRA 545 (1983). III. Provision Section 2 A. Each Center will establish an occupational safety and health team consisting of two (2) members appointed by the Union. 1. Employees on the committee will receive appropriate training as available. 2. Employees have the right to report health and safety complaints to the health and safety team, who will investigate the complaints and submit reports. 3. The health and safety team will conduct at least quarterly inspections (or more frequently if in accordance with a past practice) and submit reports. 4. Time spent on team activities will be official time. A. Positions of the Parties The Agency argues, that by giving the Union the right to appoint two members to the proposed occupational safety and health team, the provision is inconsistent with its reserved management rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees, to assign work and to determine the personnel by which Agency operations shall be conducted. According to the Union, the language of the disputed provision "requires the agency to select the option of a joint health and safety committee rather than unannounced OSHA (Occupational Safety and Health Administration) inspections as that option exists in E.O. 12196 and 29 CFR Part 1960." Union Amended Petition for Review at 1. The Union advances three arguments to support its position that the disputed provision is negotiable. First, since the proposed team is not a product of law or regulation, but, rather, is to be created by the collective bargaining agreement, serving on that team does not constitute the work of the Agency. Because the reserved management right to assign work extends only to the work of the Agency, the Union's authority, pursuant to the provision, to designate two team members does not contravene a management right. Second, the Union notes that the Agency is free to appoint as many members to the team as it wishes under the terms of the provision. Finally, the Union argues that the provision constitutes a procedure which assures fairness and equity in assigning members to the safety and health committee. B. Analysis 1. Establishment of a Certified Safety and Health Committee In order to achieve the Union's stated objective of avoiding unannounced OSHA inspections the safety and health committee sought to be established must be "certified" by the Secretary of Labor under law and regulation. See, section 1-301, Executive Order 12196 and 29 C.F.R. Section 1960.36(b). Further, in order to obtain certification by the Secretary of Labor, a network of committees must be established at both the national level of the agency and, for agencies with field or regional offices, at other appropriate levels within the agency. Section 1-301, E.O. 12196, 29 C.F.R. Section 1960.37(a). The Union here represents Disbursing Center (Field) employees in the Bureau of Government Financial Operations (BGFO). The BGFO is a bureau of the Department of the Treasury. The record in this case, however, indicates that the Agency head, the Secretary of the Treasury, has not established, and is not attempting to establish, the network of committees required for certification under the executive order and regulations. Thus it is clear that the Union is not merely attempting to negotiate over membership on a joint labor-management safety committee concerned with matters of safety and health within the bargaining unit. Rather, in view of the Union's professed objective to avoid unannounced OSHA inspections, the provision seeks to bind the Agency to a course of action requiring the forming of similar committees throughout the Agency. Although the parties focused their arguments on whether the Union may negotiate over membership on the safety and health committee, the issue to be resolved initially is whether bargaining over the establishment of a certified safety and health committee is itself authorized by governing law, the implementing executive order and relevant Government-wide regulations. The legislation creating safety and health programs for Federal agencies prescribes specific roles for agency heads and employee representatives in the establishment of safety and health committees. 29 U.S.C. Section 668(a) charges agency heads with responsibility for establishing and maintaining "an effective and comprehensive occupational safety and health program" and requires agency heads to engage in "consultation" with representatives of their employees. In the legislative history the statutory objective is described as follows: The above requirements are intended to establish clear responsibility for the Federal Government's internal safety and health efforts, and provide the Secretary (of Labor) with an active role in coordinating the multiplicity of programs devised by various agencies. /2/ (Footnote added.) The relevant executive order, issued pursuant to statutory authorization, implements the expressed intent of the law by identifying agency heads as having responsibility, inter alia, for providing their employees with safe workplaces and for operating occupational safety and health programs in accordance with the executive order and with regulations promulgated by the Secretary of Labor. E.O. 12196, section 1-201. This executive order specifically defines the role of employee unions. In section 1-201(i), agency heads are required to assure that employee representatives accompany safety and health inspectors when inspecting agency workplaces. The executive order authorizes, in section 1-301, exclusive representatives to appoint members to certified committees only at levels where they hold exclusive recognition, should the decision be made by the agency head to establish certified committees. The order also provides for circumstances where there is no certified bargaining representative. In such situations, committees will be comprised of management representatives "and an equal number of nonmanagement employees or their representatives." However, the Union provides no evidence to indicate that Congress, the President or the Secretary of Labor intended to give unions a greater role in the Federal safety and health programs than that expressly prescribed for them in the law, the executive order or in existing regulations. That is, in light of the specific responsibilities assigned, it does not appear that unions are authorized to negotiate over the establishment of certified safety and health committees. See, for example, U.S. Department of Labor, Labor-Management Services Administration, Cleveland, Ohio and National Union of Compliance Officers, 13 FLRA 677 (1984) wherein it was held that the available legislative and regulatory evidence did not support the position that the termination of probationary employees was includable within the scope of negotiated grievance procedures. Finally, this view is not altered by the fact that the Authority has found proposals seeking to establish joint labor-management committees to serve as vehicles for exchanging view on matters affecting conditions of employment within a bargaining unit to be negotiable. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984). The committee sought to be created here, however, would have more than an advisory role, in that it would have the various powers and responsibilities authorized by the statutory and regulatory framework. Thus, the provision in this case is readily distinguishable from the provision before the Authority in American Federation of Government Employees, AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA 286 (1983) which sought only the establishment of an uncertified safety and health committee and which was found to be within the duty to bargain. 2. Union Membership on Certified Safety and Health Committee Assuming that the Agency head in this case were to exercise his exclusive discretion to establish certified safety and health committees, as that option exists in the cited executive order and related regulations, then Union representation on such committees would be governed by other provisions of the Executive Order. Specifically, section 1-301 of E.O. 12196 provides: "Where there are exclusive bargaining representatives for employees at the national or other level in an agency, such representatives shall select the appropriate nonmanagement members of the (occupational safety and health) committee." Thus, the Union's right to select members for the certified committee would arise directly from the governing executive order and consequently would not be inconsistent with rights reserved to management by the Statute. C. Conclusion For the reasons stated above, bargaining on the disputed provision is inconsistent with law and applicable Government-wide regulations and, consequently, is outside the duty to bargain pursuant to section 7117(a)(1) of the Statute. However, should the Agency head decide in the future to establish occupational safety and health committees in accordance with the governing statutory and regulatory prescriptions, the Union could pursuant to the executive order designate the individuals who will represent the Union on such committees. III. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 8, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union withdrew its request for negotiability determinations on two additional provisions, one concerning military leave and the other covering automatic performance ratings. Hence those provisions are not considered here. (2) S. REP. NO. 1282, 91st Cong., 2d Sess., reprinted in 1970 U.S. CODE CONG. & AD. NEWS 5177, 5196.