23:0542(74)NG - NAGE, SEIU and VA Medical Center, Brockton/West Roxbury, MA -- 1986 FLRAdec NG
[ v23 p542 ]
The decision of the Authority follows:
23 FLRA No. 74 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL CENTER BROCKTON/WEST ROXBURY, MA Agency Case No. 0-NG-1142 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case The Union filed a petition for review under 5 U.S.C. Section 7105(a)(2)(E) challenging the Agency's allegation that the following proposal was not negotiable: The V.A. shall allow sufficient time in the regular work week for the elected Secretary (of the local Union) to perform (his/her) duties as required to expedite all matters of a Grievable nature. II. Positions of the Parties The Agency argues that the proposal violates 5 U.S.C. Section 7131(b) by requiring official time for internal union business. It also asserts that the proposal violates its right to assign work under 5 U.S.C. Section 7106(a)(2)(B). The Union counters that the Agency has not demonstrated a "compelling need" as required by 5 C.F.R. Section 2424.11. /1/ III. Analysis and Conclusions In disagreement with the Agency, we find the proposal negotiable and within the duty to bargain under 5 U.S.C. Section 7131(d). A. The Proposal Does Not Concern Internal Union Business With certain limitations, an agency and a union must negotiate on the amount of official time available for an employee representing that union. 5 U.S.C. Section 7131(d). One of the limitations is the prohibition in 5 U.S.C. Section 7131(b) against conducting internal union business on official time. The definition of internal union business is narrowly drawn, however, and relates to the institutional structure of the union. American Federation of Government Employees, AFL-CIO, Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2 FLRA 4 (1979). Activities involving labor-management contacts, as well as preparation for them, are not internal union business. For this reason, official time for union representatives to engage in contract negotiations -- over and above the official time to which they are otherwise entitled for that purpose under 5 U.S.C. Section 7131(a) -- and to prepare for such negotiations is negotiable under 5 U.S.C. Section 7131(d). See American Federation of Government Employees, AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA 461, 462-63 (1984). See also American Federation of Government Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, California, 3 FLRA 305, 309 (1980). We did not address what constituted "preparation" for labor-management contacts in that case, but held this would be more appropriately resolved by the parties during negotiations or by an arbitrator in the context of a specific case. We expressly excluded from the definition of "preparations" matters which involved the internal business of the union. The Union's proposal specifically addresses official time for the activities of its Secretary so as to enable her to expedite all grievable matters. Participation in grievance proceedings and preparation for them do not relate to the institutional structure of the Union. They are at the heart of the representational activities for which official time may be negotiated under 5 U.S.C. Section 7131(d). The Agency asserts that the Union Secretary is working and will continue to work on internal union business rather than the grievable matters proposed. The Agency points to an unfair labor practice charge which was filed by the Union within a few weeks of the negotiability petition and which summarizes the Secretary's duties: She is also a part time Steward on occasion. She does filing, types grievances and other office duties. The Union asserts that the Secretary handles grievances during her duty hours resulting in their earlier resolution. The Agency's argument anticipates that the Secretary will use negotiated official time for internal union business. An agency cannot remove a negotiable item -- one that is consistent with applicable law and regulation -- from the bargaining table because it expects it to be abused. Other proceedings -- such as a disciplinary action, an unfair labor practice proceeding, or a grievance -- are available to remedy such abuse if it occurs. See, for example, American Federation of Government Employees, Local 1778, AFL-CIO, 10 FLRA 346, 350-351 (1982); Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3231, 11 FLRA 7 (1983). We appreciate the Agency's concern with the difficulty in particular situations of distinguishing between the Secretary's representational activities and internal union business. However, as we said in Mather, these distinctions are best drawn at the bargaining table or through arbitration. The purpose of this negotiability proceeding is to decide if the Union's proposal is inconsistent with applicable law and regulation and therefore outside the duty to bargain. 5 U.S.C. Section 7117(c). The proposal concerns official time for the Union's Secretary to work on grievances. Since participation in and preparation for grievance proceedings are not internal union business, bargaining on this proposal is not precluded by the prohibition against conducting internal union business on official time. B. The Proposal Does Not Interfere With Management's Right To Assign Work In support of its assertion that the proposal is nonnegotiable, the Agency adverts to the proposal's effect on management's right to assign work under 5 U.S.C. Section 7106(a)(2)(B). The Agency here states only the obvious. If the Secretary performs representational activities on official time, the Agency is prevented from assigning work to that employee during that time. The Agency's reliance on 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 384 (1980) is misplaced. In that case, the union proposal addressed the time an employee would qualify with weapons on a firing range and would practice to maintain qualifications. The proposal would have required the agency to assign certain types of work to certain employees to the exclusion of other responsibilities. We held that the proposal was not negotiable under 5 U.S.C. Section 7106(a)(2)(B) because it violated management's right to assign work. The Marshals Service case is not on point. While authorizing official time for representational purposes necessarily affects management's ability to assign work, there is nothing in the Union's proposal that would permit the Union's Secretary to use the official time authorized by the proposal so as to disregard the needs of the Agency to assign work to her at particular times. That is, the proposal would not prevent the Agency from making whatever accommodations may be necessary between the scheduling of work assignments and the scheduling of official time. See National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270, 273-275 (1983). IV. Order The Agency must, upon request (or as otherwise agreed to by the parties), bargain concerning the Union's proposal. /2/ Issued, Washington, D.C., September 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In its allegation of nonnegotiability the Agency used the term, "compelling reason," when conveying its view that the proposal was in conflict with 5 U.S.C. Section 7131(b). The Union misconstrued this as a "compelling need" argument and argued that the Agency had not met the compelling need criteria in 5 C.F.R. Section 2424.11 to exclude its proposal from bargaining. We find no indication in the record that by use of the term "compelling reason," the Agency intended to advance a compelling need argument to support its allegation of nonnegotiability. For this reason, we will not address this issue further. (2) In deciding that the proposal is within the duty to bargain, we make no judgment on its merits.