23:0189(24)NG - Hawaii Federal Employees Metal Trades Council and Pearl Harbor Naval Shipyard -- 1986 FLRAdec NG

[ v23 p189 ]
The decision of the Authority follows:

 23 FLRA No. 24
                                            Case No. 0-NG-1186
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of one Union proposal.
                            II.  Union Proposal
    The Agency notified the Union on July 8, 1985 that it had decided to
 disestablish the Naval Occupational Safety and Health (NAVOSH)
 Deficiency Abatement Committee.  The Union proposal which is the subject
 of this appeal is:
          Our proposal is to keep the NAVOSH Deficiency Abatement
       Committee and add equal numbers of Labor Representatives.
                      III.  Positions of the Parties
                            A.  Union Position
    The Union argues the proposal is negotiable "regarding the impact to
 the unit employees." It states that a committee such as this "can make a
 contribution to the safety of all employees if it is given the
 opportunity to function with equal numbers of employees and
 representatives of management.  This is allowed under the Executive
 Order 12196 of February 26, 1980, Occupational Safety Health Programs
 for Federal Employees." (Union Petition p. 1).  Citing the Department of
 the Navy instruction which established the Committee, the Union notes
 that the function of the Committee was to periodically review safety
 abatement projects and to determine if additional actions were needed to
 assure their timely completion.  The Committee was to address problems
 with funding, priorities or implementation of specific projects.
                            B.  Agency Position
    The Agency declared in its allegation of nonnegotiability that the
 proposal interferes with management's rights to assign work under
 section 7106(a)(2)(B) of the Statute, to determine the organization of
 the Shipyard under section 7106(a)(1) of the Statute, and to determine
 the methods and means of performing work under section 7106(b)(1) of the
    The Agency's Statement of Position was untimely filed and will not be
 considered.  Section 2424.6 of the Authority's Rules and Regulations
 requires that an agency file a statement of position within thirty days
 after receipt of a petition for review.  In its Statement, dated
 November 29, 1985, the Agency noted that it received the petition on
 October 29, 1985.  Therefore the Statement was filed more than thirty
 days after receipt of the petition and was untimely filed.
                               IV.  Analysis
    Attachments to the Union's petition for review indicate that the
 Shipyard Occupational Safety and Health Deficiency Abatement Program was
 set up by Instruction 5100.23A in 1983 under the authority of Executive
 Order 12196, and provided for the NAVOSH Deficiency Abatement Committee.
  The regulation designated as members the Shipyard Safety Director, a
 designee of the Production Engineering Division, and a designee of the
 Staff Civil Engineer Department.  As noted, the duties of the committee
 were to periodically review deficiency abatement projects and to
 "address and resolve any problems with funding, priorities, or
 implementation of specific projects." (Instruction 5100.23A, para. 5i,
 April 19, 1983).
    Based on these facts, the Authority finds that the Union's proposal
 to reestablish the committee, and to "add equal numbers" of labor
 representatives, is nonnegotiable on two of the grounds asserted by the
    1.  The proposal interferes with management's right to assign work
 under section 7106(a)(2)(B) of the Statute.  The duties of the Committee
 involve the deliberative process of the Agency in making decisions and
 resolving problems "with funding, priorities, or implementation of
 specific projects." The proposal to require Union representatives on
 such a committee constitutes an assignment of work to individuals not
 chosen by management.  See Fort Knox Teachers Association and Fort Knox
 Dependent Schools, 22 FLRA No. 88 (1986) (Union Proposal 3).  See also
 National Federation of Federal Employees, Local 1431 and Veterans
 Administration Medical Center, East Orange, New Jersey, 9 FLRA 998
    2.  The proposal also interferes with management's right to determine
 the organization of the Shipyard under section 7106(a)(1) of the
 Statute.  As noted, the Committee was created by a regulation to address
 and resolve problems in the Agency's safety and health deficiency
 abatement program.  The decision to disestablish the Committee and
 redistribute its functions determines the manner in which these Agency
 responsibilities will be accomplished.  The proposal's requirement to
 reverse that decision, and add Union representatives, interferes with
 management's decision as to the formal organizational structure by which
 it makes decisions.  Therefore, the proposal directly interferes with
 management's rights under section 7106(a)(1) of the Statute, and is
 outside the duty to bargain.  See Veterans Administration Medical